“Fundamentalist Constitutionalism”: Punctuation Marks, Antonin Scalia, And The Farce Of “Originalism”
I have no idea whether Supreme Court Justice Antonin Scalia is heading to the beach this summer now that he has made America safe for religious employers to discriminate against their female employees. Nor do I have any idea whether Danielle Allen’s new book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality” is on his beach-reading list. But it should be.
You have probably heard about the book and its assertion that there is a significant typo smack in the middle of the Declaration’s most famous part. We read the phrase “life, liberty and the pursuit of happiness” with a “.” at the end. It’s not there in the original, according to Prof. Allen. It was added in later versions, as a mistake or perhaps even as a small spot of errant ink. The result, Allen asserts, is a dramatically different meaning to the entire document.
Historians will debate the conclusions Allen has drawn from her detective work, but those conclusions aren’t the reason Scalia ought to read the book. Rather, it is that starting premise about the punctuation that should give him pause (I know, it won’t) because it succinctly puts the lie to the entire enterprise of Constitutional “originalism” upon which Scalia has built his career.
Originalism, briefly put, is a jurisprudence resting on the following wobbly assumptions: the Constitution only has one meaning; that meaning can be known without ambiguity (by those smart enough to read it); all laws ought to be judged against that singular, unchanging meaning. Not too long ago originalism resided on the lunatic fringe of legal thinking, sort of like Ayn Randian economics. Over the last generation it has entered the mainstream, sort of like Ayn Randian economics, and no one has been more responsible for that than Antonin Scalia.
Opponents of originalism have often argued instead that the Constitution needs to be a “living” document, adaptable to a changing society. That view became prominent a century ago as legal thinkers, among them Woodrow Wilson and Oliver Wendell Holmes, tried to reckon with a rapidly changing industrial society. And to these Scalia and his comrades have said that the Constitution is resolutely dead and should be read historically, not in light of contemporary society.
But as the business of the pesky punctuation in the Declaration of Independence reminds us, words can mean different things and can be read in different ways. and even small changes in a sentence can yield different ideas. We know what Hamlet’s “To be or not to be” soliloquy says, but any high school junior can tell you that it might have any of several meanings. Or all of them. Or none of them.
Pretending that reading a document like the Constitution is a simple, transparent and an entirely objective and neutral task is naïve at best, intellectually dishonest at worst. All acts of reading are necessarily acts of interpretation, and as a consequence there are no objective truths nor single meanings. The most we can do is achieve a best consensus, recognizing that it might change in the future.
Scalia knows all of this, I suspect. I don’t think even in his extraordinary arrogance and self-regard he believes he can know exactly and perfectly what was in the minds of all the delegates who wrote the Constitution. And indeed, whatever one thinks of Scalia as a jurist, his track-record as a historian is shoddy, filled with cherry-picked examples, incomplete understandings and downright risible conclusions. The history Scalia presented as part of his majority opinion in District of Columbia v. Heller wouldn’t pass muster in my undergraduate seminar.
Scalia’s real goal in promoting “originalism” is to remove Constitutional issues from the realm of political debate altogether and treat them instead as theological dogma.
“Originalists” like Scalia read the Constitution in much the same way that fundamentalist Christians read the Bible. In the world of those conservative Christians, the Bible says what it says, there is no room for any interpretation of it, and the Bible is inerrant. In fact, we might coin a new term, “fundamentalist Constitutionalists,” since there is now a small but growing number of people convinced that the Constitution, like the Bible, may have been written by men but was actually inspired by God.
While this kind of reading may be intellectually indefensible – or downright silly – it does have the advantage of bestowing extraordinary power on those who can claim to possess The Truth, whether huckstering evangelical, tyrannical bishop, or snarky Supreme Court justice.
Ironically, of course, we will look back on “originalism,” or “fundamentalist Constitutionalism,” as being entirely of its political and cultural moment. One hundred years from now, we will see it as engineered by revanchists like Scalia who recoiled at the dramatic social changes of the recent past – civil rights, feminism, gay rights, and more – and thought they could use the Constitution to retreat into a past largely of their own invention. Future scholars might even debate what, exactly, Antonin Scalia meant as they parse his body of writing, and might find that his very words could be subject to multiple readings. That would be the final, most delicious and fitting irony for “originalism.”
By: Steven Conn, Author/Professor, Ohio State; The Huffington Post Blog, July 7, 2014
“The Alleged Socialists Are Saving Capitalism”: Why You Don’t Know Obama Has Created 4.5 Million Jobs
The terrific June jobs report may be the signal we’ve been waiting for that we’re finally turning the psychic corner. The overall jobs number was great at 288,000, and the unemployment rate was down to 6.1 percent. But the most important number was that the employment-to-population ratio, which many economists think of as the truest measure of the jobs market, was up a bit to 59 percent, a high for the recovery, indicating that maybe more people are finally out looking for work than staying home.
A lot of liberals puzzle over why the Obama administration isn’t getting more credit, or doesn’t do a better job of making sure it gets credit, for such good economic news. There are a lot of theories, and most of them hold varying amounts of water. But the main reason to me is fairly obvious: Liberals don’t speak as one big fat propagandistic voice on this subject in remotely the same way conservatives do when a Republican president is in power.
Before I get into all that, I want to review some numbers with you, because unless you’re a hyper-informed political junkie, I doubt you know them. How many net jobs has the economy created during Barack Obama’s presidency, and how many did it create during George W. Bush’s tenure? Notice first that I wrote “has the economy created” rather than “did Obama create/did Bush create.” I think it’s a better description of reality.
I also should note that I just measured the numbers under each president—I gave Bush the numbers from January 2001 to December 2008, and Obama the numbers from January 2009 to the present, with the following asterisk. January 2009 was when Obama became president, but he didn’t start until the 20th, of course. That was a particularly awful month, with 798,000 jobs lost. So I think it’s reasonable to give Bush, whose policies helped cause the meltdown anyway, two-thirds of that 798,000. (January 2001, by the way, was a tiny number, 30,000 jobs lost, but just to be consistent, I assigned only 10,000 of those to Bush.)
Here are Bush’s numbers: It’s 8.657 million jobs gained, and 7.121 million jobs lost, for a net job-creation number of 1.536 million. Pathetic. It’s interesting to look back over the numbers from 2001. The economy stank. The month of 9/11, we lost 242,000 jobs. Want to ascribe that just to the attacks? In August, we’d lost 158,000. The decent Bush years were 2004, 2005, 2006, and part of 2007, but even then the numbers were hoppy and inconsistent: 307,000 jobs added in May 2004 and just 74,000 in June, for instance.
And what about Obama’s numbers? I’d bet that even if you’re an Obama partisan, you think they’re not all that different from Bush’s. After all, 2009 was miserable: minus 798,000, minus 701,000, minus 826,000, and so on. The numbers went into the black in early 2010, but dipped back into the red in the summer. But remember, since October 2010, every report has been positive—the now 45 straight months of job growth that the president and his team, to little avail, crow about.
But they’ve added up, because under Obama, the economy has added 9.425 million jobs and lost 4.887, for a net gain of 4.538 million jobs. That’s a 3 million advantage over Bush. Now, 6.5 million jobs doesn’t put Obama up there in Clinton (22 million) and Reagan (around 16 million) territory. But remember—he has 30 months to go yet. Let’s say we average a gain of 250,000 a month the rest of the way. That’s another 7.5 million. And that would edge him up toward Reagan territory. And that seems conservative, if anything. If the recovery gets genuinely humming, we could start seeing months between 300,000 and 400,000 next year. It seems unlikely to happen, but God would it be hilarious if Obama, with everything the Republicans in Congress have done to keep the economy in a state of contraction, ended up surpassing Reagan.
[UPDATE: I rechecked my math this morning, and it’s a good thing I did. I had originally given Obama nearly 2 million more jobs created than the actual numbers reflect. Obviously, I want to be accurate here. I added and re-added these three times.]
But all that’s speculative. After all, there could be a recession coming, too, though most experts don’t seem to fear that much. So let’s just talk about the up to now, the 6.5 million net jobs. As I said before, I bet you didn’t know that. Why?
Two main reasons. One, the administration doesn’t go a great job of trumpeting it, and I think for good reason. Officials may feel constrained from doing too much boasting because a lot of people’s perception and experience is still worse than that. A lot of these aren’t great jobs, and the economy is still only doing real well for the top 5 or 10 percent.
The second reason is that figures on the broad left simply aren’t superficial cheerleaders. The two men who are probably the most influential economic voices on the left, Paul Krugman and Robert Reich, have both been pretty harsh critics of the administration’s economic policies, as have other liberal economists. They, and less well-known but still prominent people such as Dean Baker, look at the numbers and report the truth as they see it. Democratic politicians are cheerleaders in varying degree—there’s Debbie Wasserman Schultz on the rah-rah end, but most Democrats don’t brag too much for the same reason the White House doesn’t.
And the media voices on the left—the folks on MSNBC, say—try to accentuate the positive in political terms, but they don’t ignore the bad news by any stretch of the imagination. MSNBC talks a lot about obstreperous Republicans, a theme to which I certainly contribute on air, but the network also offers a consistent diet of news features on and interviews with people stuck in the dead-end economy and having a hard time of it, segments that usually demand the government do more.
Now, imagine that a Republican president produced 45 straight months of job growth coming off the worst financial crisis since the Depression. Lord, we’d never hear the end of it from Fox and Limbaugh and even from CNBC. They wouldn’t care about the reality that a lot of the jobs are low wage. They’d just trumpet the bottom-line numbers as evidence of their president’s Churchillian greatness.
That’s how they are, and nothing’s going to change them. The important question now, as I said up top, is whether we’re really turning the psychic corner. Corporations have been hoarding record profits, banks still aren’t lending they way they should be, businesses have been skittish about large-scale hiring. It’s a big game of economic chicken, and it certainly has a political element. Most of these corporate titans and bankers and business leaders are Republicans. I don’t think most of them would intentionally hold the economy back because they don’t like the president, but I do think they take their cues from elected Republicans more than from Obama. When the Republicans stand up and say repeatedly that the president’s policies are failing, failing, failing, these private-sector titans hear them, and it influences what they do.
It may be that we’re finally working our way through all that. Happy days aren’t yet here again, but, once again, Democrats, the alleged socialists, are saving capitalism from the supposed lovers of capitalism who almost destroyed it.
By: Michael Tomasky, The Daily Beast, July 7, 2014
“It Will Be Ugly, And It Will Escalate”: Buffer Zones, Clinic Escorting, And The Myth Of The Quiet Sidewalk Counselors
The Supreme Court struck down the Massachusetts “buffer zone” law — which barred antiabortion protests immediately outside clinics. Justice Scalia portrayed the law as hindering ‘sidewalk counselors’ who lovingly entreated women to consider alternatives. This portrayal, embodied by the grandmotherly petitioner, allowed some to view the decision as protecting gentle civility. Referencing one particular Planned Parenthood clinic in Boston, this “quiet counseling” was seen as well-intentioned, and, more importantly, constitutional.
It is also a myth — or at least a dramatic euphemism that applies to very few at the Boston site. I should know. I was there.
For four years, I volunteered as an escort on Saturday mornings. The scene described in the court — like a delusional game of telephone — was drastically different from reality.
Our mornings were mostly spent scanning the streets, attempting to spot patients before they approached the zealous spectacle. We’d tactfully ask if they were looking for the clinic, and walk them through the crowd.
Saturdays were favored by protesters, so escorts arrived in the early morning. Wearing identifying vests, we flanked the entrance and greeted patients outside the zone. Two would rotate to the back to watch the garage entrance, where only the more tenacious protestors wandered. We’d accompany patients up the long walk to the front, usually trailed by someone asking if Satan sent us. (He didn’t.)
During the freezing New England winters, we would briefly warm up inside, but were mostly left to stomp our feet and count how many toes we could feel. Once a month, a Christian band would show up, surreally, and hold a concert.
We knew the “quiet counseling” well. “Just like Auschwitz,” one would say, “you’re delivering them right into the furnace.” This particular protester would speak right into her ear — until he approached the painted line on the ground.
Sometimes, a male accompanying a patient would lose his cool. He could have been her boyfriend or brother. We didn’t know and never asked. Once they entered, the doors could burst back open and he would charge whichever protestor called his companion a whore. We would intervene.
Justice Alito felt the law represented “viewpoint discrimination” — constitutionally, one message can’t be favored over another. But as an escort, I never talked about abortion, even outside the zone. When guiding patients, I would detail what they could expect. I didn’t offer my perspective, or even criticize the protestors. My goal was to provide a calming presence seconds before what would be one of the more trying moments of their lives. I explained how to access the clinic, and maintained a low patter to distract them from strangers calling them beasts and murderers. If they were confused by the protestors’ Boston Police hats, we cleared that up too.
If the patient was African-American, the protestors said they were “lynching” their child. If the protestor was crying, they said the tears would never stop, even in hell. If a patient was with her mother, they thanked the mother — for not killing her own baby.
Surprisingly, those Saturdays were not without their lighter moments. For a group dedicated to attacking Planned Parenthood — a multi-purpose clinic — they seemed stunned when someone wasn’t seeking an abortion. “You’ll never be the same. You’ll always be a dirty killer,” one would say. A startled patient would respond, “Why would a Pap smear make me a dirty killer?” Many others sought birth control — though they didn’t approve of that either.
This is not to paint all protesters as unhinged. I still remember one young priest who didn’t condemn me and chose instead to make small talk — which we continued periodically. Another time, upon news of the Columbia shuttle deteriorating upon reentry, we all shared a collective moment of humanity.
Being in a college area, there were counter-protestors (also kept out of the buffer zone) — who promoted pro-choice politics through direct and shocking slogans. Many of us didn’t care for them either. We just wanted calm in an atmosphere of invective and hysteria.
The desire for calm stemmed, in part, from the 1994 Brookline shootings. The victims were known by some of my fellow volunteers. This very real risk led the police to call for a buffer zone. One of the victims, a 25-year-old receptionist, was not just in the wrong place at the wrong time. The murder was premeditated; her killer focused on her.
Even when I was there, clinic staff driving up would be greeted with protestors filming them and, not so subtly, stating the staffer’s home address. Those were the more chilling moments.
It is difficult (though not impossible) to argue that a unanimous Supreme Court case was wrongly decided. After all, it is a broad law. But that is not my goal. Instead, I’m writing to dispel the myth painted of Good Samaritans softly offering a helping hand. In the public relations war over whether the affected individuals were compassionate counselors or marauding bullies, many justices seemed to accept the former characterization.
The law was overturned as an overreaching infringement on free speech. Is this a free speech issue? Yes, of course it is. But as others have pointed out, buffer zones exist elsewhere, including outside the Supreme Court. Favoring free speech, the Court famously allowed Nazis to march in Illinois and, more recently, the Phelps church to picket funerals (at a distance). But parades and funerals eventually end. Here, the Court risks turning clinic entrances into permanently hostile environments — inciting those who have spent weeks agonizing over their decision. They overturned the express wishes of an elected legislature — including pro-life lawmakers who supported the measure in the interest of public safety.
Similar zones were upheld by the court in 2000, a ruling which was not overturned. Clinic entrances still cannot be blocked, and injunctions are allowed against particularly worrisome parties. Chief Justice Roberts even suggested other mechanisms the state can use in lieu of the zone. But it’s an ever-changing landscape, and those remaining precautions have become the next targets of these quiet counselors. Because, to those that brought the case, speech alone is not the goal.
The grueling decision of whether to have an abortion should never be taken lightly, and there is no shortage of advocates for either side that fill our collective eardrums. But that debate stops a few feet outside the clinic. Just like politicking outside voting booths, these last ditch efforts lose the veneer of debate and become akin to intimidation — which can easily morph into confrontation or devastating anguish. Anyone who wants to stop and chat can do so. But once patients decide to cross the line, they should be left alone. The Court noted that the environment is currently more peaceful than it once was. There’s a reason for that.
None of this is to say that this isn’t a legitimate debate. It is. But those who favor stripping the buffer zone away — what small help it is — shouldn’t kid themselves into thinking that a flood of polite conversation will follow. It will be ugly, and it will escalate.
By: Brian Giacometti, Field-based NGO Program Manager for Governance and Rule of Law; The Huffington Post Blog, July 7, 2014
“Preposterous”: The Lethal Legal Threat To Obamacare That Could Land This Week And End It All
With all the headline grabbing going on over the SCOTUS Hobby Lobby decision, many pundits have not been paying much attention to another case set for a decision from the influential D.C. Court of Appeals as soon as this week—a decision that could, realistically, finish off Obamacare once and for all.
In Halbig v. Burwell, a challenge has been lodged by opponents of the Affordable Care Act who argue that the language of the law restricts government provided subsidies to state operated exchanges only—meaning that the premium subsidies being offered to qualified purchasers in the 34 states where the federal government is operating the healthcare exchanges, are illegal under the law.
The plaintiffs in the case explain their position as follows:
“The premium-assistance tax credit provisions of the PPACA clearly, consistently, and unambiguously authorize tax credits only in states that establish a health insurance “exchange” that complies with federal law. Specifically, Section 36B authorizes tax credits for the purchase of qualifying health insurance plans only in exchanges “established by a state under Section 1311…The IRS rule, by contrast, purports to authorize tax credits in Exchanges that are neither “established by the State” nor “established . . . under Section 1311.” This it cannot do. Because the language of the PPACA speaks directly to the question at issue, the IRS has no authority to provide tax credits in federal exchanges, nor is the IRS due deference in its interpretation of the Act.”
While it is generally agreed that the Congressional leaders who wrote the PPACA intended the premiums to be available via all health insurance exchanges—whether operated by the state itself, or the federal government in the instance of states not setting up their own exchanges—the plaintiff argues that the statutory language is clear and must be interpreted and enforced per the clear statement of the law.
If you think that those attempting to undo Obamacare are making a far-fetched argument—and a ruling from the Court of Appeals holding that the premium supports were only meant for state run exchanges would, in all likelihood, irrevocably tank the law—you are not alone.
Federal District Court Judge Paul Friedman held that the plaintiff’s claims were “unpersuasive” and that, since the federally run exchanges are created and operated on behalf of the states that chose not to do so, the federally operated exchanges were intended by Congress to be treated as state operated exchanges.
However, there are more than a few highly qualified legal experts who are not so sure that Judge Friedman got this right and believe that the result could be very different in the Court of Appeals.
Jonathan Turley—the widely respected constitutional law expert, television analyst and professor of law at George Washington University Law School—notes:
“Of all the challenges since the individual mandate, this is the one that presents the most mortal threat to the act. If this case were decided on the basis of the statutory language, the advantage goes to the challengers. If the court is willing to broaden its interpretation then the administration may have an edge. It depends entirely on how the panel structures its analysis.”
Put another way, the language pretty clearly says one thing even if the intent was something else.
So, should the D.C. Court of Appeals be willing to review the legislative history—and the Friend of the Court brief submitted and signed by the Congressional leaders responsible for drafting the law which purports to inform the Court of their actual intent—or give plain meaning to what the statute actually says?
As Sahil Kapur reports , two members of the three judge panel hearing the case appeared, in oral arguments, to have considerable sympathy for the anti-Obamacare point of view.
Points out Judge A. Raymond Randolph, appointed to his seat by President George H.W. Bush, “If the legislation is just stupid, I don’t see that it’s up to the court to save it. ” Meanwhile, Judge Thomas Griffith, a George W. Bush appointee, was a bit more reserved in his take on the case but did not fail to point out that there was a special burden on the Obama Administration (defending the action) to prove that the statutory language does not mean what it appears, on its face, to mean.
Only Democratic appointee, Judge Harry T. Edwards, took the position that the plaintiff’s claims were “preposterous”.
Should we get a decision in favor of the challenger here, Obamacare bashers might wish to withhold their enthusiasm as the Obama Administration will surely exercise its right to appeal the three judge panel’s ruling to the full D.C. Court of Appeals via an en banc motion.
Given that the full D.C. Court of Appeals includes seven Democratic appointees and only four Republican appointees, a vote of the entire court could well result in a very different decision.
By: Rick Ungar, Op-Ed Contributor, Forbes, July 7, 2014
“Beliefs, Facts And Money”: Conservative Delusions About Inflation
On Sunday The Times published an article by the political scientist Brendan Nyhan about a troubling aspect of the current American scene — the stark partisan divide over issues that should be simply factual, like whether the planet is warming or evolution happened. It’s common to attribute such divisions to ignorance, but as Mr. Nyhan points out, the divide is actually worse among those who are seemingly better informed about the issues.
The problem, in other words, isn’t ignorance; it’s wishful thinking. Confronted with a conflict between evidence and what they want to believe for political and/or religious reasons, many people reject the evidence. And knowing more about the issues widens the divide, because the well informed have a clearer view of which evidence they need to reject to sustain their belief system.
As you might guess, after reading Mr. Nyhan I found myself thinking about the similar state of affairs when it comes to economics, monetary economics in particular.
Some background: On the eve of the Great Recession, many conservative pundits and commentators — and quite a few economists — had a worldview that combined faith in free markets with disdain for government. Such people were briefly rocked back on their heels by the revelation that the “bubbleheads” who warned about housing were right, and the further revelation that unregulated financial markets are dangerously unstable. But they quickly rallied, declaring that the financial crisis was somehow the fault of liberals — and that the great danger now facing the economy came not from the crisis but from the efforts of policy makers to limit the damage.
Above all, there were many dire warnings about the evils of “printing money.” For example, in May 2009 an editorial in The Wall Street Journal warned that both interest rates and inflation were set to surge “now that Congress and the Federal Reserve have flooded the world with dollars.” In 2010 a virtual Who’s Who of conservative economists and pundits sent an open letter to Ben Bernanke warning that his policies risked “currency debasement and inflation.” Prominent politicians like Representative Paul Ryan joined the chorus.
Reality, however, declined to cooperate. Although the Fed continued on its expansionary course — its balance sheet has grown to more than $4 trillion, up fivefold since the start of the crisis — inflation stayed low. For the most part, the funds the Fed injected into the economy simply piled up either in bank reserves or in cash holdings by individuals — which was exactly what economists on the other side of the divide had predicted would happen.
Needless to say, it’s not the first time a politically appealing economic doctrine has been proved wrong by events. So those who got it wrong went back to the drawing board, right? Hahahahaha.
In fact, hardly any of the people who predicted runaway inflation have acknowledged that they were wrong, and that the error suggests something amiss with their approach. Some have offered lame excuses; some, following in the footsteps of climate-change deniers, have gone down the conspiracy-theory rabbit hole, claiming that we really do have soaring inflation, but the government is lying about the numbers (and by the way, we’re not talking about random bloggers or something; we’re talking about famous Harvard professors.) Mainly, though, the currency-debasement crowd just keeps repeating the same lines, ignoring its utter failure in prognostication.
You might wonder why monetary theory gets treated like evolution or climate change. Isn’t the question of how to manage the money supply a technical issue, not a matter of theological doctrine?
Well, it turns out that money is indeed a kind of theological issue. Many on the right are hostile to any kind of government activism, seeing it as the thin edge of the wedge — if you concede that the Fed can sometimes help the economy by creating “fiat money,” the next thing you know liberals will confiscate your wealth and give it to the 47 percent. Also, let’s not forget that quite a few influential conservatives, including Mr. Ryan, draw their inspiration from Ayn Rand novels in which the gold standard takes on essentially sacred status.
And if you look at the internal dynamics of the Republican Party, it’s obvious that the currency-debasement, return-to-gold faction has been gaining strength even as its predictions keep failing.
Can anything reverse this descent into dogma? A few conservative intellectuals have been trying to persuade their movement to embrace monetary activism, but they’re ever more marginalized. And that’s just what Mr. Nyhan’s article would lead us to expect. When faith — including faith-based economics — meets evidence, evidence doesn’t stand a chance.
By: Paul Krugman, Op-Ed Columnist, The New York Times, July 6, 2014
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