Posts © 2011-2012 by Gerald G. Day

Friday, November 21, 2014

November 20, 2014
President Obama has been accused of being a socialist. Absurd as that charge is, it is part of a long tradition; any progressive initiative is sure to be called "socialist," implying something profoundly un-American. Despite the inanity of the charge, it works; as Edmund Wilson said, "The surest way to shake an American reformer and make him back down has always been to accuse him of socialism."[79]  It has been suggested that public opinion is changing in a way that would deprive the label of its sting, but this is based on the opinions of younger voters, so any effect may lie in the future.[80]
Bernie Sanders might run for the presidency. He is a socialist, and would face widespread denunciation and misrepresentation. However, if he were able to get his actual views across, and to point out that they are not subversive of anything other than the rule of the rich, he might do well, and rescue "socialism" from contumely.
The need for a little socialism was underlined by a report that 29 of America’s 100 largest corporations paid more to their CEOs in 2013 than they did to the federal government in taxes. Included are 7 of the 30 largest corporations: Boeing, Chevron, Citigroup, Ford, J.P. Morgan, General Motors and Verizon. All seven were profitable, together reporting $74 billion in pre-tax profits in 2013, but together, they received $1.89 billion in refunds.[81]
Another indicator is the increasing concentration of wealth at the top. Thomas Piketty has shown that about 71% of is wealth owned by the top 10% of the population, about 34% by the top 1%.[82]   A paper by Emmanuel Saez and Gabriel Zucman carries it a step further, showing that the top .1% holds over 20% of wealth, the top .01% over 11%. "At the very top end of the distribution, wealth is now as unequally distributed as in the 1920s. In 2012, the top 0.01% wealth share (fortunes of more than $110 million dollars belonging to the richest 16,000 families) is 11.2%, as much as in 1916 and more than in 1929. . . . Wealth is getting more concentrated in the United States . . . .[83]
Something needs to change. Let those who have nothing better to do fuss about labels.

Murray Kempton, Part of Our Time, p. 140
80. been-called-socialism
81. taxes

Piketty, Capital in the Twenty-First Century; see chart p. 348.
83. A link to the study is here:  The quote is from the paper’s Abstract. Charts follow p. 46.


Monday, October 27, 2014

October 27, 2014
Among, no doubt, many others, there are two ways to illustrate the excessiveness of the ebola panic. The first is by satire. Andy Borowitz, online at The New Yorker, has mocked the media-fed fear with columns entitled "Man Infected with Ebola Misinformation Through Casual Contact With Cable News," "Some Fear Ebola Outbreak Could Make Nation Turn to Science" and "Study: Fear of Ebola Highest Among People Who Did Not Pay Attention During Math and Science Classes." In the last of those, he noted that, "when a participant of the study was told that he had a one-in-thirteen-million chance of contracting the virus, his response was ‘Whoa. Thirteen million is a really big number. That is totally scary’."[75]
On a more somber note, consider the contrast between the demands for action about ebola and the complacency regarding gun deaths. A Republican Congressman, Jason Chaffetz, complained about the appointment of an "ebola czar," asking "Why not have the surgeon general head this up?"[76]  Apparently he was unaware that we don’t have one. And why do we not? Because the NRA, and therefore Republicans (and some timid Democrats), oppose President Obama’s nominee because he has indicated support for such modest gun-control measures as an assault weapons ban, mandatory safety training and limits on ammunition sales.[77]
One American has died from exposure to the ebola virus; roughly 30,000 people are killed annually by guns.[78]  So the hyped panic about one will continue, as will the inaction on, and far greater menace from, the other.
75. people-pay- attention-math-science-classes?intcid=mod-most-popular
. head-Ebola-efforts-Thanks-to-Republicans-there-isn-t-one#
. html? _r=0; nominee
78. other-country-study-finds/; /16/16547690-just-the-facts-gun-violence-in-america?lite

Tuesday, October 21, 2014

October 20, 2014
David Brooks wrote an odd column on October 16, entitled "The Case for Low Ideals." Ostensibly he was offering advice to those who might approach politics burdened with high ideals, but his notion of "low ideals" seems really to be the absence of ideals. In any case, his use of the term "ideals" is confusing.
The 2008 campaign, he tells us, "was based on the idea that people are basically innocent and differences can be quickly transcended. It was based on the idea that society is easily malleable and it’s possible to have quick transformational change. It was based in the idea of a heroic savior (remember those ‘Hope’ posters)." That’s a peculiar and tendentious reading, and an idea is not exactly synonymous with an ideal, but never mind. The point he was trying to make, I think, is that politics should be conducted in an atmosphere of compromise and accommodation. As an abstract principle, that is perfectly sensible.

His formula for achieving this is "low idealism," which seems to describe his preferred attitude of the voter, rather than of the official:
[L]ow idealism starts with a tone of sympathy. Anybody who works in this realm [politics] deserves compassion and gentle regard. The low idealist knows that rallies with anthems and roaring are just make-believe, but has warm affection for any politician who exhibits neighborliness, courtesy and the ability to listen. . . . [T]his kind of idealist has a full heart for those who serve the practical work of legislating . . . . Believing experience is the best mode of education, he favors the competent old hand to the naïve outsider.
However, tucked into the first ellipsis is this: "The low idealist understands that those who try to rise above the messy business of deal-making often turn into zealots and wind up sinking below it." That seems to denounce high idealism in the officeholder as well.
Returning to the voter, Brooks thinks that the low idealist, in looking for a leader, wants "not the martyr or the passionate crusader or the righteous populist. He likes the resilient one, who maybe has been tainted by scandals and has learned from his self-inflicted wounds that his own worst enemy is himself." I haven’t noticed a tendency on the part of voters to favor those tainted by scandal, but perhaps his low idealist would. "He likes the person who speaks only after paying minute attention to the way things really are, and whose proposals are grounded in the low stability of the truth." What might those proposals be? He doesn’t say; he seems to be advocating a content-free politics: elect a nice, friendly representative, and sit back; all will be well. "Low idealism . . . holds that people can be improved by their political relationships, so it ends up with something loftier and more inspiring than those faux idealists who think human beings are not a problem and politics is mostly a matter of moving money around." I don’t know what the last two phrases relate to, but again here is an empty politics: "something loftier. . . ."

If Brooks’ notion of a voter is theoretical, his view of government is minimalist and reactionary: "The core functions of government are negative — putting out fires, arresting criminals, settling disputes — and much of what government does is the unromantic work of preventing bad situations from getting worse." Perhaps that conclusion follows from this presumed characteristic of his preferred voter: "The low idealist is more romantic about the past than about the future." That person "believes, as Samuel Johnson put it, that ‘The happiness of society depends on virtue’ — not primarily material conditions." Government shouldn’t make people’s lives better on the low moral plane of physical well-being. No, its task is to raise the tone; "better laws can nurture virtue. Statecraft is soulcraft. Good tax policies can arouse energy and enterprise. Good social programs can encourage compassion and community service."
His borrowing of the title of one of George Will’s books is ironic. Mr. Will has moved so far to the right that he may now share Mr. Brooks’ preference for a minimal state but, when he wrote Statecraft as Soulcraft, in 1983, he hadn’t reached that point. He then declared his "belief in strong government, including the essentials of the welfare state" and stated that the values of the conservative tradition "are threatened less by 'big' government than by abdication by the government."[74]
Idealism, if naïve, can be a poor foundation for governing (or for voting, whichever it is that we are talking about), but the problem we face at the present isn’t a surfeit of idealism, but the dire effects of ideology; not high and noble aspirations but a cramped, rigid, uninformed, often deliberately ignorant philosophy of government and of society which issues primarily in servitude to the wealthy. If Mr. Brooks truly is concerned about the influence of attitudes and mental states, and about whom voters should support, he might direct his attention there.

74. Quotes from Statecraft as Soulcraft pp. 12, 22.

Saturday, September 27, 2014

September 27, 2014
There are so many football games on television now that we often get down to the third, or fourth or fifth-string broadcast crews. Listening to those announcers, especially the color guys, brings to mind the word "bloviate," which then makes me think of political commentary. Here’s a definition: "To talk at length, especially in an inflated or empty way."[64]  I especially like this one: "To discourse at length in a pompous or boastful manner. To pretend to understand technical subject matter and sell it to others even dumber than oneself."[65]  The latter perfectly describes some color commentators: they have only a rudimentary understanding of the game, but feel compelled to demonstrate that by offering analysis of every play.
However, that is only a temporary, if repeated annoyance; in politics, inflated, empty talk is dangerous, because it influences attitudes and votes. Consider the following examples on Fox "News" and/or by its pundits:
Up to May 2, Fox ran 1,098 segments that "included significant discussion of Benghazi, an average of roughly 13 segments each week.[66] Having found a faux-scandal, it has blabbed about it continuously.
Andrea Tantaros personifies the phenomenon. She has become a star on Fox, having the necessary ability to have an uninformed opinion on every subject. As to Obama’s speech in ISIS, she observed, "I'm very deeply troubled by what he will say." As Stephen Colbert put it, "I couldn't have agreed more, because I also have not seen it and I am furious about what I think it will be."[67]  Ms. Tantaros also managed to find Obama at fault in the Ray Rice/NFL scandal: "I wanna know, where is the President on this one?"[68]  So, If he says anything, he’s wrong, but if he fails, in her view, to say something soon enough, he’s wrong. She claims that the government is pushing single motherhood, that it wants mother and child on the dole.[69]  Attorney General Holder has been Obama’s "cover-up guy." He’s "one of the most divisive, polarizing, controversial, dangerous men in America — unethical." "He ran the DOJ much like the Black Panthers would. That is a fact."[70]
However, she has stiff competition. Lindsey Graham, an expert at bloviating, has outdone himself in his panic over the threat posed by ISIS: "I think of an American city in flames because of the terrorists’ ability to operate in Syria and Iraq." "This is a war we’re fighting! It is not a counter-terrorism operation. This president needs to rise to the occasion before we all get killed back here at home."[71]
Religion offers many opportunities; Here’s Mike Huckabee’s contribution to Middle East theory: "I’ve got good news for all the dispirited and disquieted Christians in America who somehow are afraid that the Sons of Ishmael who are challenging us now in the Middle East will overwhelm the Sons of Isaac," Huckabee said. "Let me assure you, I have read the end of the Book! My dear friend, we win!"[72]
Without using the term, H.L. Mencken described bloviation, using a speech by President Harding as his foil:
It reminds me of a string of wet sponges; it reminds me of tattered washing on the line; it reminds me of stale bean-soup, of college yells, of dogs barking idiotically through endless nights. It is so bad that a sort of grandeur creeps into it. It drags itself out of the dark abysm . . . of pish, and crawls insanely up the topmost pinnacle of posh. It is rumble and bumble. It is flap and doodle. It is balder and dash.[73]
It’s Fox.

However, bloviating isn’t limited to the political right; arts reviews are perhaps the outstanding, although less sigificant, manifestation. Every week the Friday The New York Times provides a comical example of the genre. Consider this from September 26, describing a series of paintings (the one shown is all red): "Irony is now obscured by a veneer of sincerity that can seem almost apologetic. The nine paintings suggest dilutions of quasi-abstract, expressionistic, visionary styles by a painter long dead and best forgotten. Among their generic illusions are cataclysms of light, watery darknesses, a trail of sparkles worthy of Tinker Bell and a red-on-red orb so dry with pigment it looks like velvet. . . . A barely discernible back story confirms that the resemblance to generic emo-painting is intentionally superficial. . . ."
Alas for the English language, clear thinking, responsible politics and the culture.






69. /197473; p/200718

70. (video)

ending_doomsday_visions/ See my note of 8/24/12 for more examples of political bloviating.

72. defeat-sons-ishmael

73. %E2%80%93-baltimore-sun-%E2%80%93-3721/

Sunday, August 31, 2014

August 30, 2014
Some years ago, William H. Gates, Sr. coauthored a book entitled Wealth and Our Commonwealth .[57]  Its message was that the estate tax, hated by many of the wealthy and their sycophants, is important not only for revenue but because "concentrations of wealth and power distort our democratic institutions and economic system and undermine social cohesion." Gates’ choice of the word "commonwealth" is interesting. Four of our states [58] are called commonwealths, a reflection presumably of the original meaning of the word: "Body politic founded on law for the common ‘weal,’ or good."[59]  However, dictionaries tell us that "commonwealth," meaning public welfare or the general good, is "archaic" or "obsolete."[60]   As with definition, so with politics: the notion of cohesion, of social solidarity, of our being in it together, has become quaint; the country is divided, with no sense of the common good or common welfare.
Even the term "common" is suspect. David Brat, who made news by defeating Majority Leader Eric Cantor, declared, clumsily but emphatically: " ‘Common’ - anything I'm against. United Nations. Common everything. If you say common, by definition you're saying it's top-down. I'm going to force this on you. That's what dictators do."
The conservatives on the Supreme Court are equally dismissive of anything that smacks of common interest. In McCutcheon v. FEC , Chief Justice Roberts, writing for the plurality of four,[61] noted that the dissent disagreed with his focus on rich individuals’ right to speech (spending) because, according to Roberts, "it fails to take into account ‘the public’s interest’ in ‘collective speech’." Note the ironic quotation marks. Of the eight times the word collective appears in the plurality opinion, it is in quotes seven times, as if a collective or common interest were a foreign — or socialist — concept.
It wasn’t always so. Tony Judt described the change which took place in the Eighties: a shift from "the pursuit of public goods to a view of the world best summed up in Margaret Thatcher's notorious bon mot : ‘there is no such thing as society, there are only individuals and families’." Meanwhile, in the United States, Ronald Reagan declared that government "was no longer the solution—it was the problem."[62]
Reagan’s political philosophy contrasts sharply with that of a more notable Republican: "The object of government is the welfare of the people." Or, again: "The National Government belongs to the whole American people, and where the whole American people are interested, that interest can be guarded effectively only by the National Government. The betterment which we seek must be accomplished, I believe, mainly through the National Government."[63]
That view of government is not the only issue on which Theodore Roosevelt differed from Mr. Reagan and his even more regressive acolytes. Consider the matter of common interests: "I hold that while man exists it is his duty to improve not only his own condition, but to assist in ameliorating mankind." Imagine a Republican member of the 2014 House saying that.
Present-day conservatives would be shocked by Roosevelt’s views on working people and on capital: "Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration." That harks back to an even earlier form of Republicanism: "If that remark was original with me," TR said, "I should be even more strongly denounced as a Communist agitator than I shall be anyhow. It is Lincoln’s."
The contrast is equally great as to the influence of money:
[O]ur government, National and State, must be freed from the sinister influence or control of special interests. Exactly as the special interests of cotton and slavery threatened our political integrity before the Civil War, so now the great special business interests too often control and corrupt the men and methods of government for their own profit. . . . For every special interest is entitled to justice, but not one is entitled to a vote in Congress, to a voice on the bench, or to representation in any public office. The Constitution guarantees protection to property, and we must make that promise good. But it does not give the right of suffrage to any corporation.
TR’s desire to control capital would be baffling to those who believe in the unregulated market:
The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; . . . The citizens of the United States must effectively control the mighty commercial forces which they have called into being.
It would be anathema to those who think that taxation is a Marxist plot:
The really big fortune, the swollen fortune, by the mere fact of its size, acquires qualities which differentiate it in kind as well as in degree from what is possessed by men of relatively small means. Therefore, I believe in a graduated income tax on big fortunes, and . . . a graduated inheritance tax on big fortunes . . . .
Property, capital and business are important and are entitled to proper protection but, again, the common interest is paramount: "The man who wrongly holds that every human right is secondary to his profit must now give way to the advocate of human welfare, who rightly maintains that every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it."

In a sense, its inaccurate to state that the contemporary Republican Party follows Reagan, as its views are well to his right. However, it’s apt in that Reagan led a shift in attitude that his followers called a revolution, more accurately a reaction. It is too much to expect Republicans to rediscover a better path so long as they win elections. If that ever ends, through demographic change or the end of gerrymandering, they may rediscover the virtue, if only politically, of thinking about the common good.


Gates and Collins, Wealth and Our Commonwealth: Why America Should Tax Accumulated Fortunes

Kentucky, Massachusetts, Pennsylvania, Virginia

Britannica Concise Encyclopedia

Webster’s Encyclopedic Unabridged Dictionary of the English language (1989); Compact Oxford English Dictionary (2002)

Justice Thomas concurred only in the result.

Judt, Ill Fares the Land , pp. 96-97 (2010)
All Roosevelt quotes are from his "New Nationalism" speech, August 31, 1910.

Monday, August 4, 2014

August 3, 2014
A recent report indicated that the chances of a Republican takeover of the Senate stand at 60%. I find this baffling. The news media are not good at showing the backwardness and obstructive tactics of the Republicans in Congress, but certain facts are difficult to ignore. Instead of dealing with important problems, the House has voted, prior to going on vacation, to sue the President. Apart from the waste of valuable time, the proposed suit is absurd, as it is based on the complaint that the President has delayed the implementation of part of the Affordable Care Act, which the House Republicans hate and have voted more than fifty times to repeal. As political theater, this certainly falls in the category of farce, especially when accompanied by such comic lines as "Our freedom is in peril, my friends."[50]
The proposed suit is ironic in another way. Obama is accused of arrogating power, but G.W. Bush embraced a theory — the "unitary executive" — which allowed him to ignore or negate any part of an act of Congress he disliked and otherwise to act as he wished. "Through the use of presidential signing statements, executive orders, and memoranda, the Bush administration has often governed unilaterally when faced with political and/or constitutional obstacles."[51]
Other items in the news are illustrative of Republican thinking, and ought to give any voter pause: a prominent Congressman declared, "Climate change occurs no matter what," and that proposed power—plant emissions standards are "an excuse to grow government, raise taxes, and slow down economic growth;"[52] the Senate was blocked by an Oklahoma Senator from acknowledging that climate change is real;[53] a candidate for the Senate opposes an increase in the minimum wage and talks of impeachment and nullification of federal laws;[54] another Congressman won’t "assert where [Obama] was born, I will just tell you that we are all certain that he was not raised with an American experience. So these things that beat in our hearts when we hear the National Anthem and when we say the Pledge of Allegiance doesn’t [sic] beat the same for him."[55]
However, these are bits and pieces. A Republican platform provides a considered and comprehensive statement of principle and policy. Some time back I looked at the Iowa platform; this time let’s consider this year’s product of the Texas GOP.[56]
To give Texas Republicans their due, there are a few progressive planks:
— "We urge the repeal of the USA Patriot Act and spying on law abiding Americans must stop immediately. We support court ordered warrants on an individual basis in cases directly involving national security."
— "Texans should have the right to recall their elected officials."
Oddly, they oppose initiative and referendum.
— "We oppose the use of signing statements by the President to circumvent the law."
I wonder if that plank was in the platform during the Bush years.
— "We encourage the development and use of wind energy, coal-fired plants, solar, and nuclear power, and bio-sources without government subsidies."
At least part of that is progressive.
There are a number of points that are fairly debatable, but the document is overwhelmingly reactionary.
1. It embraces the limited/local theory of government with a vengeance:
— "We strongly urge the Texas Legislature ignore, oppose, refuse, and nullify any federal mandated legislation which infringes upon the states' 10th Amendment Right. All federal enforcement activities in Texas must be conducted under the auspices of the county sheriff with jurisdiction in that county."
— "We further support abolition of federal agencies involved in activities not originally delegated to the federal government under a strict interpretation of the United States Constitution."
Those destined for removal include the Department of Education, The Environmental Protection Agency (EPA), the Transportation Security Agency (TSA) and the Department of Energy.
2. The platform is resolutely reactionary as to economic matters:
— "We believe Congress should repeal the Federal Reserve Act of 1913 thereby abolishing the Federal Reserve Banking System." Until then, "We call for the removal of the ‘full employment’ part of the Federal Reserve System's current dual mandate."
In other words, fight inflation, but never mind about unemployment.
— "We support the return to the time-tested precious metal standard for the United States dollar."
— "We support the repeal of Sarbanes Oxley legislation. . . . We support the immediate repeal of Dodd Frank legislation."
Let Wall Street drag us down again.
3. The federal government isn’t the only target:
— "We support the withdrawal of the United States from the United Nations and the removal of United Nations headquarters from United States soil."
— "We support United States withdrawal from the International Monetary Fund, the World Trade Organization, and the World Bank."
— "We oppose foreign aid, except in cases of national defense or catastrophic disasters, with Congressional approval."
4. Of course government should not be involved in the public welfare, despite the preamble to the Constitution, a document they otherwise revere:
— "We support an immediate and orderly transition to a system of private pensions based on the concept of individual retirement accounts, and gradually phasing out the Social Security tax."
— "Welfare reform should encourage partnerships with faith based institutions, community, and business organizations to assist individuals in need. The current system encourages dependency on government and robs individuals and generations of healthy motivation and self-respect."
— "We demand the immediate repeal of the Patient Protection and Affordable Care Act, [Obamacare] which we believe to be unconstitutional."
Besides, it’s socialistic, and has no place here:
— "Socialism breeds mediocrity. America is exceptional. Therefore, the Republican Party of Texas opposes socialism in all of its forms."
5. Voters (who might be the wrong kind) are not welcome:
— "Full Repeal of the 17th Amendment of the United States Constitution - Return the appointment of United States Senators by the state legislatures."
— "We urge that the Voter [sic] Rights Act of 1965, codified and updated in 1973, be repealed and not reauthorized."
This is accompanied by proposals making voting more difficult.
6. Not surprisingly, Texas Republican don’t like taxes; they would
— "Adopt a balanced budget by cutting spending without increasing tax rates or adding new taxes and capping spending with a percent of GDP as calculated prior to 2009."
In addition, they "believe the most equitable system of taxation is one based on consumption," so they support:
— The "Fair Tax" [i.e., sales—tax] system", and
— "A Flat Tax". None of those nasty progressive rates.
— "We support the abolishment of property taxes, but in the interim, property taxes should be paid on the price of the property when it was initially purchased."
And they urge:
— "Abolishment of estate taxes or the ‘Death Tax’ as it's more commonly [argumentatively?] known",
— "Abolishment of capital gains taxes",
— "Abolishment of franchise and business income taxes", and
— "Abolishment of the gift tax."
— "We strongly oppose any cut in the defense budgets and troop levels at this time."
7. As to the environment, the EPA goes, and
— "We support land drilling and production operations including hydraulic fracturing."
— "We oppose the implementation of any cap and trade (a.k.a. "Cap and Tax") system through legislation or regulation."
— "We support the immediate approval and construction of the Keystone XL" pipeline.
— "While we all strive to be good stewards of the earth, ‘climate change’ is a political agenda which attempts to control every aspect of our lives."
— "We believe current evidence is not conclusive on the cause of climate change; we reject the use of this natural process to promote more government regulation of the private economy."
8. Are they pro—labor? Not quite:
— "We oppose the Employee Free Choice Act (card check) . . . We also encourage the adoption of a National Right-to-Work Act."
— "We believe the Minimum Wage Law should be repealed."
— "We urge Congress to repeal the Prevailing Wage Law and the Davis Bacon Act."
— "We urge the Legislature to resist making workers' compensation mandatory for all Texas employers."
9. Of course, they love guns:
— "[W]e strongly oppose all laws that infringe on the right to bear arms. We oppose the monitoring of gun ownership, the taxation and regulation of guns, ammunition, and gun magazines."
— "All federal acts, laws, executive orders, and court orders which restrict or infringe on the people's right to keep and bear arms shall be invalid in Texas, not be recognized by Texas, shall be specifically rejected by Texas, and shall be considered null and void and of no effect in Texas."
— "Firearms and ammunition manufactured and sold in the state of Texas are not covered under the Commerce Clause (Article I Section 8 of the United States Constitution) and therefore are not subject to federal regulation."
This copies a model act known as the Firearms Freedom Act (FFA), which is popular with the gun crowd.
— "We call for truckers working within the state of Texas to enjoy the full benefits of the Texas Concealed Handgun License law irrespective of unreasonable and intrusive federal regulations."
Even Texas law is suspect; they want to remove from the state Constitution this phrase: "the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."
10. Running through the platform are references to religion, or to be slightly more specific, "Judeo—Christian" religion:
— "We support school subjects with emphasis on the Judeo-Christian principles upon which America was founded and which form the basis of America's legal, political, and economic systems."
That historical illusion is an example of the emphasis on religion throughout. 
— "We pledge our influence toward a return to the original intent of the 1st Amendment and toward dispelling the myth of separation of church and state."
— "We oppose any governmental action to restrict, prohibit, or remove public display of the Ten Commandments or other religious symbols."
— "[W]e urge Congress to withhold Supreme Court jurisdiction in cases involving abortion, religious freedom, and the Bill of Rights."
I wonder how they propose to protect religious freedom or the Bill of Rights.
— "The Republican Party of Texas will protect the rights of commercial establishments to refuse to provide any service or product that would infringe upon their freedom of conscience of [sic] religious expression as stated in the 1st Amendment."
That sounds like an extension of Hobby Lobby, as does this:
— "Additionally, we oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values."
As if anxious to demonstrate the perils of mixing religion and politics, the Texas Republicans set forth a theory dear to the religious right which bedevils American policy toward Israel. This plank begins with a secular, if debatable claim:
— "We believe that the United States and Israel share a special long-standing relationship based on shared values, a mutual commitment to a republican form of government, and a strategic alliance that benefits both nations."
There follows another relatively neutral statement of principle:
— "Our foreign policy with Israel should reflect the right of sovereign nations to govern themselves and have self-determination. In our diplomatic dealings with Israel, we encourage the continuation of peace talks between Israel and the Palestinians, but oppose pressuring Israel to compromise their [sic] sovereignty or security."
Then comes the religious punch line:
— "Our policy is inspired by God's biblical promise to bless those who bless Israel and curse those who curse Israel . . . ."
The Bible is used by the right to justify various positions, such as disbelief in the dangers of climate change, but most of those positions could and would be held in any event, because they conform to anti—government, pro—property rights biases. American policy toward Israel also probably would be generally supportive without the religious factor, but it is especially dangerous in that context. We need to conduct foreign policy on a rational basis. However, that isn’t likely to be forthcoming from the right, for whom reason, and science, are elitist.

Tom Rice, R—S.C., reported in The Seattle Times.

"Rethinking Presidential Power — The Unitary Executive and the George W. Bush Presidency"



54. ;



Tuesday, July 15, 2014

July 15, 2014
The Supreme Court continued its run of controversial decisions with Hobby Lobby,[1] which involved religious objections to the requirement, of regulations under the Affordable Care Act, that health insurance policies include all of the methods of contraception which have been approved by the FDA. The plaintiffs, corporations and their owners, claim that four specified methods of contraception involve destruction of a fertilized egg which is, in their view, equivalent to abortion, which they reject on religious grounds. They "have no objection to the other 16 FDA-approved methods of birth control."
  The majority opinion, by Justice Alito, is superficially less ideological than others in the recent series. It is based on a statute concerning the exercise of religion which arguably applies and, rather than merely declaring that corporations are legal persons, which has led to so much criticism, it cites another statute which so states. However, it still manages to get everything wrong. There are two issues, religion and corporate law, and other considerations.
 A. Religion
 The Religious Freedom Restoration Act (RFRA) was adopted by Congress in 1993. It was a reaction to a decision of the Supreme Court, Employment Division v. Smith,[2] which upheld a refusal by the State of Oregon to award unemployment benefits to two men discharged by their employer for ingesting peyote. That act took place in a ceremony of the Native American Church, which used peyote as part of its ritual. State law prohibited use of drugs, with no exception for religious use. The Court upheld the Oregon law, and the denial of benefits, on the ground that a law of general application, which makes no attempt to single out religion, is valid and does not violate the First Amendment guarantee of religious freedom, even though it has a collateral effect on religious practices.
RFRA was designed specifically to overturn Smith, and to mandate that such cases be measured against an earlier standard, which subjected any impact on religion to strict scrutiny. The operative section of RFRA reads as follows:  
(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.[3]
Legal recourse is afforded for violation of RFRA: "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."[4]

The exercise of religion is defined[5] oddly, vaguely and circularly: "the term ‘exercise of religion’ means religious exercise, as defined in section 2000cc–5 of this title", which states that the "term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief."[6] That fails to tell us what the exercise of religion is but, by decoupling it from a system of religious belief, makes it open-ended; virtually any assertion could be religious under that definition.
 Faced with a statute so sloppily drafted, a court might refuse to apply it, for the reason that there is no way to know what is covered. This Court especially might be so inclined, having little respect for the ability of Congress to draft statutes clearly. (McCutcheon v. Federal Election Commission provides an example of that attitude; see my note of May 13, item 11). However, this Court is nothing if not flexible; here the statute is a flawless statement of principle.
  Vague as the language is, it does include an implicit limit, by omission: it does not prohibit burdening religious belief, and does not provide judicial relief for such a burden. Those provisions are limited to religious exercise, or the exercise of religion. There is a savings clause which refers to belief: "Nothing in this chapter shall be construed to authorize any government to burden any religious belief."[7] However, the government isn’t attempting to use RFRA to burden belief, so that is irrelevant. Even ignoring that, the clause provides no affirmative relief, so cannot be the basis of this action. As we shall see, that did not bother Justice Alito.
 At no point does the opinion question whether the objection by the plaintiffs to providing the four types of contraception is an exercise of religion. It simply assumes that the statute controls. Here is Alito’s summary of the holding:
Since RFRA applies in these cases, we must decide whether the challenged HHS [Health and Human Services] regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.
Buried in that conclusion is this formula: an objection, based on religious belief, to providing insurance which covers the use of a certain type of contraceptive is "an exercise of religion" which, by definition, is "a religious exercise," which in turn is "any exercise of religion." That is so inane that only a court focused on a result could avoid subjecting the claim and the statute to critical analysis. (Note that the reference here is to the owners; only later are the corporations brought into the picture).
 Alito, perhaps aware of the implications of his conclusion, rewrote the statute to avoid the religious exercise problem:
HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue. This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). [emphasis added]
This misreading of RFRA is not a momentary slip; at several points he either states the issue in terms of belief or runs together the concepts of belief and the exercise of religion.
 He also is mistaken in asserting that reasonableness is not a factor to be considered; it is the only protection against ridiculous, contrived "religious" claims and the only way to rescue the statute from absurdity.
 The Court did not make any determination as to whether the plaintiffs’ understanding of the effects of the four methods is factually sound. (Here again the statute helps the majority, for it too ignores the question of factual validity. However, that is just another reason to treat the statute with care, if not disdain: any assertion garbed in religious terms could be the basis for a claim, even if divorced from reality). The following is the information provided in the opinion as to whether the four methods amount to abortion; it simply describes a disagreement:
Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.
[footnote to the above] The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, . . . do not so classify them.
The argument seems to come down to this: the plaintiffs’ exercise of religion is burdened because, if Hobby Lobby provides compliant insurance, some of its female employees probably will make use of the contraceptive coverage; some smaller number of those may use one of the four disapproved methods; those methods may in some cases prevent development of a fertilized egg, and that, according to plaintiffs’ belief, is the equivalent of abortion and therefore immoral. This is too tenuous a connection to take seriously. In addition, it assumes that the practice of religion includes controlling the behavior of others.
  The other half of the test is that the burden to the plaintiffs’ exercise must be "substantial." Justice Alito found that the penalties which HHS could impose for failure to have a conforming policy are very large and therefore a substantial burden. Assuming that the opinion is accurate in describing them, the possible penalties are onerous indeed. However (leaving aside the postponement of the enforcement of employer penalties) we can pass that, because Alito has fastened onto the wrong consequence of the plaintiffs’ action. Even assuming belief to equate to the exercise of religion, the burden imposed by the law is the plaintiffs’ unwilling, innocent, indirect, hypothetical complicity in what they believe to be immoral behavior. That is no more substantial a burden than one we all face: living in an imperfect society in which choices are made that we oppose or deplore.
  The potential monetary penalties would be the consequence of flouting the law, not of religious exercise so, apart from their being speculative at this point, they are not relevant.
   B. Corporations
 The Citizens United opinion stirred much comment about corporate personhood, including assertions that the Court had invented the concept. Alito attempted to silence that by citing a statute which provides as follows: "In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. . . .[8] He wasn’t altogether successful. For example, an e-mail from "The Pen" claims that "Alito says ‘corporation’ MEANS a natural ‘person,’ . . ." Alito didn’t say that, but the confusion is perhaps understandable. His attempt to find that corporations can have religious beliefs in effect merges, or confuses, the corporate entity and its human owners.
  As noted above, Alito’s summary refers to the religious exercise of "owners of the businesses." However, the desired result required finding that the corporations also were protected. This would require finding that corporations "exercise religion." However, Alito didn’t establish that.
 He began his analysis badly, by referring to legal personhood as a "fiction," not exactly the best way to defuse an argument. More accurately it is, as shown by the cited statute, a definition, which is in turn a matter of convenience in drafting. The effect is to include corporations in the rights granted to "persons," unless the context requires otherwise. The issue of whether a corporation can exercise religion certainly is one where the context should raise some doubt.
 Possibly because of that, Alito fudged:
But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. . . . When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.
That isn’t altogether accurate, but it furthers his attempt to blur the line between people and corporations, and leads to this conclusion: "protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies." That assumes that corporations exercise religion, the very point he supposedly is establishing. In other words, corporations must have these rights so that owners may be protected.
 However, that won’t work because, in some closely held corporations there may be religious disagreement between owners. Then the corporation’s alleged exercise of religion, presumably an extension of the majority owners’ views, may offend the other owners. So much for the pass-through, protect-the-owners theory. This shows that the supposed special case of the closely-held corporation is just so much rhetoric: if the minority owners in a closely held corporation may be ignored, so may shareholders in widely-held corporations; perhaps they too can engage in the exercise of religion.
 The statutes offer no assistance on this point, and could be interpreted as covering all corporations, of whatever size and makeup. Justice Alito limited his analysis to "closely held" corporations, but how much of a limitation is that? We don’t know, as no definition was offered. In the case at hand, each corporation was owned by members of a single family, but that isn’t offered as a test. Depending on the definition (there are several), the number of closely held corporations, and the number of employees, could be huge.
 C. The government’s position
 The decision was made easier, if no more convincing, by positions taken by the government. The most disadvantageous to its argument is the exemption for contraception coverage given to religious organizations, which are defined as follows:
For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in . . . the Internal Revenue Code . . . .[9]
The government argued that there is a legitimate distinction between a non-profit organization devoted to religious work and a profit-making corporation owned by religious people. The distinction is plausible and should have been upheld, but Mr. Obama made HHS’ task more onerous by granting that exemption, as Alito argued that it should apply to these plaintiffs.
  The other problem is the penalty schedule for non-compliance. It should not have been the measure of the burden, but the penalties are potentially so drastic as to make HHS look like a tyrant.
D. Scope of the decision
 Alito’s opinion is in part an exercise in duplicity. After referring repeatedly the four challenged methods of contraception, and noting that the plaintiffs had no objection to the others, he summarized the holding as follows: "Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. The contraceptive mandate, as applied to closely held corporations, violates RFRA." That could be read as abandoning the narrow focus of the opinion and calling all contraception into question, which is exactly what happened. The day following its decision, the Court issued orders in several cases in which all forms of contraception were challenged. Where the government had prevailed, the case was sent back with instructions to reconsider in accordance with Hobby Lobby; where the government had lost, its appeal was denied.[10]
  The obvious moral to the story is that we need an inclusive government health care program, such as Medicare for all. The employer-based system was past due for retirement even before this controversy.
1. Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al.
2. 494 U. S. 872 (1990)
3. 42 U.S. Code § 2000bb-1 (a), (b)
4. 42 U.S. Code §2000bb-2 (4)
5. 42 U.S. Code § 2000cc–5 (7)(A)
6. 42 U.S. Code §2000bb-1 ( c)
7. 42 U.S. Code § 2000bb–3. The operative sections refer to religious exercise or exercise of religion eleven times, belief zero.
8. 1 U.S. Code §1
9. 1 U.S. Code §1