Chick-fil-A, Citizens United, and Being Accountable for Your Speech

Thomas Jefferson would have said, the more speech, the better. That's what the First Amendment is all about. So long as the people know where the speech is coming from.”—Justice Antonin Scalia

        Fast food joints do not need a domestic policy. They don’t have to take positions on things like same-sex marriage, abortion, or gun control. I am pretty much OK if McDonalds never tells me whether or not they support the individual mandate. As long as they keep their opinions to themselves, I will be happy as one can be eating food that will kill me.
       However, if a fast-food chain does take a position on an issue, and that position contradicts my own sense of fairness or political morality, then I am probably going to take my business elsewhere. People are like that--hence the recent dust-up over Chick-fil-A President Dan Cathy’s comment  that his company is “guilty as charged” in opposing efforts to extend marriage rights to same-sex couples.
       Bully for Chick-fil-A. Many people support this position and will probably eat more Chick-fil-A sandwiches. Many others are outraged and will probably eat there less frequently, or not at all. The Chick-fil-A corporate office can say pretty much anything it wants to say. If they say things that make people upset, they will have to deal with the consequences, which may mean losing business. Presumably, Mr. Cathy wears big-boy underpants and can deal with the consequences of his speech.
       But here is a thought experiment: imagine what would have happened if Chick-fil-A had said the same thing anonymously. This is, of course, an absurdity: corporations cannot speak anonymously. Dan Cathy can post random anti-gay comments on discussion boards anonymously, but that is something very different. He can only speak in the name of his company if he uses the name of his company. There is just no way under current definitions of “speech” for a corporation can make an anonymous statement.
        Except that there is, sort of, in the bizarre world created by the Supreme Court's Citizens United decision in 2010. Under the terms of that decision, corporate donations to political causes are classified as protected free speech. Current laws allow institutions to donate to "super-pacs" with no disclosure requirements whatsoever. This allows corporations to do the logically impossible and speak, as corporations, anonymously.
          Which brings us to the current Republican filibuster of the Disclose Act, which would require political donations above $10,000 to be disclosed. Disclosure is already required, of course, for direct donations to political campaigns; the Disclose Act would apply the same standards to contributions to the super pacs that have emerged since 2010. This legislation is does not limit the ability of corporations to donate as much money as they please to political causes; it simply requires them to acknowledge those donations and accept the same political responsibility for speech-that-is-money as they already do for speech-that-is-speech. 

       But political responsibility is not currently on Mitch McConnell’s agenda. The Senate Minority leader calls the Disclose Act “nothing less than an effort by the government itself to expose its critics to harassment and intimidation.” Well, no, not really. Or at least, not entirely. We already have laws that protect people from harassment and intimidation. What disclosure laws expose the critics of government to (and its supporters as well) is criticism and economic pressure, which are simply other words for the exercise of free speech by other people. As Justice Scalia wrote in his concurring opinion in Doe v. Reed:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.

       Let’s accept (since we have no choice) that institutional spending on political advertisement is a form of protected free speech. It does not follow that we should allow such speech to be anonymous. As a consumer, I have a right to know how the money that I give to a corporate entity will be used. And I have a right to criticize, and withhold support from, companies that support political agendas that I oppose. That's not harassment; It's democracy.

My Two Statues: Thoughts on Education and the Good Life

“Making money cannot be the permanent business of humanity, for the simple reason that there is nothing to do with money except spend it. And we cannot go on spending. There will come a point when we will be satiated or disgusted or both. Or will we?”—How Much Is Enough? Money and the Good Life

“Knowledge is capable of being its own end. Such is the constitution of the human mind, that any kind of knowledge, if it be really such, is its own reward.”—Blessed John Henry Newman, The Idea of a University

Two statues grace the main campus of Newman University. Blessed John Henry Newman, our namesake, watches the the campus from the front of the administration building. Some two hundred feet to his left, in the plaza that was once McCormick Street, St. Maria de Mattias has her arm around a young woman, guiding her into the future. Walking across campus, I often think of our two statues and of what they represent to the profession of education.

        Though both were 19th century Catholic educators, Newman's two founders could not be more different. St. Maria devoted her life to teaching literacy and household management to poor women and girls in rural Italy. Everything about her curriculum was useful. Newman, on the other hand, was the 19th century's greatest advocate of the proposition that one should learn things for no other reason than that learning things is good. 

       Between St. Maria and Cardinal Newman lie most of the goals of the modern university. On the one hand, education must teach people how to do useful things. To justify society's investment, schools must prepare people to be useful to society. And, since America's founding, education has been the universally acknowledged ticket into the middle class.
        Modern education teaches people how to make a living. But, for most of human history--during which people worked with their bodies rather than their minds--this, was not the case. From ancient times through the end of the 19th century, societies have considered "an educated person" (of whom there were always very few) to be somebody who knew how to use leisure time for personal enrichment. An "educated person" was somebody who know how to live a good life.
       One of the central insights of How Much Is Enough? Money and the Good Life--a wonderful new book by British economists Robert and Edward Skideisky--is that education in Western societies has become very good at training people to enter the work force and very bad at teaching them what to do when they aren't working. Lacking any clear understanding of how to use our leisure time, most of us gravitate to the most passive and least enriching forms of entertainment. We watch hours of TV every day. We play video games. We obsess about our "like" count on Facebook. And when all this fails to satisfy us, we throw up our hands and say, “I’m bored.”
       People have a right, of course, to amuse themselves however they see fit, as long as they do no harm. It does us no good, however, to pretend that the above activities are on par with more meaningful leisure activities: reading literature, creating art, playing an instrument, gardening, jogging along a river bank, having deep conversations about interesting things, or even just thinking about stuff because some stuff is fun to think about. 
        A decent education, I believe, must prepare us to do all (or at least most) of these things. Of course, this means rejecting one of the central tenets of the modern liberal state, which is that all perspectives are morally and aesthetically equal. I, for one, am willing to make this sacrifice--to say without embarrassment that Sponge Bob and Shakespeare, Bach and Bieber, are separated by more than just the accidents of human preference. I am even willing to throw in a good word or two for exercise.
        For most of human history, education has done precisely these kinds of things—although only a privileged few have had access to it. The only things worthy of the name "education," Seneca famously remarked, are the "liberal arts"--or those that can be profitably studied by a free man (a liber) who does not have to worry about making a living.
        But one of the strongest tendencies of modern societies has been to view education purely as an end to something else, with the “something else” usually being to lift people out of poverty, train them for the work force, qualify them for good jobs, and, generally, help them make money. This is not a bad thing at all. Unlike Seneca's Romans, we have set a goal of educating everybody, not just the elite, and non-elites have a legitimate need to know how to make money.
        And up to a fairly definable point, money is a non-negotiable component of a good life. When that threshold is reached, however, we see almost no correlation between money and happiness. The person who makes ten million dollars a year is not guaranteed one iota of marginal satisfaction over the person who makes merely five million dollars a year.
        Most people, I think, understand instinctively that there is more to a good life than making a lot of money. And yet we are moving at light speed towards a model of education that focuses primarily preparing the student for eventual success in the workplace. For the third grader, this may mean less recess and more test preparation. For the college student, it means an impoverished core curriculum that cuts down times to graduation and makes sure that every person will become a productive member of society.
        But let's be careful. If the primary purpose of education is to prepare people to work, and the primary purpose of work is to earn money, we are at a dead end—for unlike education, money is not logically capable of being its own end. We encourage an irrational psychosis when, in the name of readying students to make a good living, we eliminate those aspects of education that themselves constitute living well.

Why Voter ID Laws Suck

“Voter ID, which is going to allow Gov. Romney to win the state of Pennsylvania, done.”
   --Pennsylvania State Representative Mike Turzai (R)

       Mike Turzai has been taking a lot of heat for suggesting that Pennsylvania’s new voter ID law may have more to do with keeping Democrats from voting than with preventing voter fraud. He didn’t say it quite this way, of course. However, neither he nor anybody else has ever presented even the weakest of evidence of voter fraud on a scale that could swing a presidential election. It is not difficult to draw from his words the conclusion that the primary purpose of voter ID is voter suppression.
       But we knew that. All Mike Turzai did was articulate what pretty much everybody already knows but has the good sense not to say publicly: Democrats benefit more than Republicans when people from the margins of society (i.e. those less likely to have driver's licenses) vote in large numbers. Voter ID laws (which Republicans usually enact) are designed to suppress this vote; motor-voter laws (which Democrats usually enact) are designed to encourage it. Everyone wants to make it easier for their people to vote and harder for the other side. It's, like, Duh!
       Both strategies (encouraging voting and discouraging voting) are equally political, but they are not equally problematic. Purely by accident, the Democrats are on the side of the angels. More participation by citizens in elections really is more democratic than less participation. In fact, that is kind of what democracy means. 
       But what about fraud? Isn’t it legitimate to require that citizens prove that they are, well, citizens? Of course it is, which is why every state requires people to register to vote in advance and to provide evidence of citizenship and residency when they do. People can lie, of course, and even forge documents. (They can even forge picture IDs—trust me on this; I’m a college administrator.) Those who do so are committing voter fraud and should be prosecuted.
        How many cases of voter fraud would you imagine that Pennsylvania governor Tom Corbett, the governor who signed the Pennsylvania law, prosecuted when he was Attorney General? That would be none. To me, this is one of the most important points in the debate. Voter ID laws have been presented as a solution to the problem of voter fraud. And yet, we already do have a solution to the problem, which is to prosecute those who register and vote fraudulently.  Before taking drastic measures to solve a supposed problem, one should at least try the non-drastic measures already available.

       But are voter-ID laws really “drastic measures”? Perhaps the most common statement I have heard in favor of such legislation goes like this: “I have to show my ID almost everywhere I go. I have to have show my license to drive, to cash a check, to buy insurance, and even to get opera tickets. Why shouldn’t somebody have to show an ID to vote?”
       This is a very good question, and it has a very good answer—one that gets to the heart of why I object to voter-ID laws. Driving, cashing checks, buying insurance, and going to the opera are not fundamental rights. Voting is. By requiring one to have a state-issued ID in order to exercise a fundamental right, voter-ID laws take us across a fundamental Constitutional threshold that I do not believe we should cross.
       As many as 750,000 eligible Pennsylvania voters—citizens all—could be prevented from voting under the current legislation. This is the potential cost of the legislation. Non-citizens, of course, will prevented from voting too. But there is no actual evidence that ineligible voters vote in Pennsylvania or that the current laws against voter fraud are insufficient to control any voter fraud that actually exists. Why would anybody in a free society want to accept the very real cost of suppressing eligible votes in order to solve a problem that does not appear to exist? Such a question is absurd, of course, if suppressing these votes is actually the point.
      The most eloquent rebuttal to voter-ID laws that I have heard comes from Pennsylvania State Senator Daylin Leach, who said, "If you have to stop people from voting to win elections, your ideas suck."
       Voter-ID laws suck.

"E Plebnista" vs "We the People"

       The original Star Trek series occasionally went, more or less boldly, into politics--perhaps most notably in the “The Omega Glory” episode which first aired on March 1, 1968. In this episode, Kirk finds himself on a strange planet caught in the middle of a war between a tribe of Asiatic village dwellers called the “Khoms,” and a group of wild nomads called the “Yangs.” (“Yankees” and “Communists,” get it). The Yangs are mostly barbarians, but they do evidence a (surprisingly familiar) past culture in their use of talismanic  “worship words” such as “Freedom,” “Liberty,” and “Justice for All.” 
        The greatest of all Yang worship words—known as the "E plebnista"—can only be spoken by a chief. In the dramatic climax (which does not explain why the Yangs speak English and carry around American flags), Kirk resolves the great conflict by recognizing that E plebnista is actually a corruption of “We the People” and giving the Yangs a good dose of high school civics. 

       Gene Roddenberry’s here point is worth remembering: when the Constitution is made the subject of adoration, and when its key passages are converted into acontextualized proof texts, we end up with a ridiculous form of ancestor worship instead of a participatory democracy. We ignore the flesh-and-blood Founders by converting them into two-dimensional deities and their ideas about self-government into a prescriptive list of commandments. “We the people” becomes “E plebnista.”

       For me, a sign that somebody has gone well down the E plebnista road to is the tendency to talk about the government as a “them” and the American people as an “us.” This is common on both sides of the political spectrum these days, depending on whose ox happens to be getting gored. 

       If we can learn only one single lesson from the Declaration of Independence, the Constitution, and the lives of the Founding Fathers, it is that the government is an “us” not a “them.” But since we don’t always agree with each other, the “us” that is the government will sometimes act in ways we, as individuals, do not support. That’s how participatory democracy works in a large republic. When we insist on speaking of the government as something other than ourselves, we invalidate the right of people who disagree with us to take part in the democratic process.
       We miss the point badly when we try to guess what Thomas Jefferson and Alexander Hamilton would have thought about the individual mandate or the top capital gains tax rate. That is “E plabnista” thinking, or lookin to the Constitution as a religious text designed to provide us with a list of commandments to run our lives by. But the whole point of “We the people” is that we are, well, the people. The Framers gave us a process that we can use to create the kind of society that we want to live in; they never meant to give us “worship words” to keep in a box. 

 

                

What the Framers Meant v. What the Framer's Said; or, How Justice Scalia Jumped the Shark

    This was not a good week for the nation’s senior Supreme Court Justice. On Thursday, he saw his former BFF, Chief Justice Roberts, bolt from the conservative coalition on health care and become a liberal rock star. Moments before that decision was announced, he was also abandoned by the Chief on the “Stolen- Valor-Act” ruling, which gave evildoers everywhere free reign to lie about their military exploits.

       But it his dissent in this week’s first big decision—Arizona v. United States—that signaled to both the left and the right that Scalia might just have lost his mind. In this decision, a majority, including Chief Justice Roberts, ruled that, in granting the federal government the power to regulate immigration, the Constitution intended to grant the federal government the power to regulate immigration. Scalia disagrees. The uniform-rule-of- naturalization clause, he insists, grants the federal government the power to set citizenship requirements, but not the sole authority to secure the borders.
       Fair enough. I don’t agree, but this is within the scope of interpretations that the text will support. But, in his extraordinarily political bench statement, Scalia went much further and imagined what the Framers of the Constitution would have thought about the Court’s ruling:

So the issue is a stark one: Are the sovereign States at the mercy of the federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Imagine a provision—perhaps inserted right after Art. I, §8, ci. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits from Independence Hall.

       With this statement, Justice Scalia is playing a very dangerous game. It is a very common game among the far right called "What Would the Framers Have Thought If Only They Could Have Seen Our Day?” As historically interesting as this question may be, it is a spectacularly bad way to try to interpret the Constitution. Trying to derive the Framers’ Intent about the issues they faced is a tricky proposition enough proposition—as not all of them intended the same things; trying to imagine their intent about issues that they did not face is inherently impossible.
       But even if we could know with certainty what the Framers would have thought about immigration, it would still be a fallacy to try to interpret the Constitution based on those intentions. There is a huge difference between the interpretive strategy known as “textualism,” which I fully support and which tells us that we need to interpret the Constitution based on the words on the page in their original context; and the interpretive fallacy known as “intentionalism,” which holds that we must try to derive the intentions of the Constitution’s authors, from any source available, and apply those intentions to the text. The first of the strategies is consistent with the rule of law. The second is not.
              My understanding of the difference between textualism and intentionalism has been informed by a remarkable book called A Matter of Interpretation that was written in 1998. One key passage from this book tells us that

it is simply incompatible with democratic government, or indeed with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. . . . It is the law that governs, not the intent of the lawgiver. That seems to me the essence of the famous American ideal set forth in the Massachusetts constitution. A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us. 

             This, it seems to me, gets to the heart of the decision in Arizona v. United States. What the Framers might have THOUGHT about the rights of states to control their own borders is irrelevant; everything that they actually WROTE conferred the responsibility for setting immigration policy on the federal government alone.

             Oh, and the author of these words, and of the excellent book A Matter of Interpretation is, as  you have probably already guessed, none other than Justice Antonin Scalia. 

You're a Good Man, Justice Roberts, and a Conservative

       Like many liberals, I have gained a new respect for Chief Justice John Roberts this week. In both Monday’s decision on the Arizona immigration law, and today’s Affordable Care Act decision, Robert’s broke with the Conservative wing of the court and sided with the liberals. Conservatives are not amused. Rush Limbaugh  and Mark Levin, of course, are going craz(ier). Half of the right-wing bloggers in the country want to impeach their former hero for disloyalty. And Glenn Beck is driving all over the country looking for an edge that he hasn’t already gone over. In general, white men in America haven’t been this upset since M*A*S*H* got cancelled.
       Strangely enough, my newfound respect for Justice Roberts comes from the long-suppressed conservative side of my split political personality. Unlike most of my liberal friends, I was genuinely ambivalent about the Constitutionality of the individual mandate. I supported (and continued to support) the idea of universal health care, but I was not convinced that the commerce clause could legitimately be extended to requiring a commercial transaction. And while I thought that the mandate was a very tax-like thing, I did not think that the government should be able to get away with calling it a tax only when it served their purposes. Like most commentators, I was fairly sure that the mandate was going to be struck down, and I was resolved to see the entire Affordable Care Act go along with it.
       And then John Roberts happened.
       I am still not sure that I agree with the core of Roberts’ decision today. The court basically ruled that if it waddles and quacks it’s a duck, and if it redistributes income to purchase services it’s a tax. I can see the point, but, on the other hand, Congress could have made this process a lot simpler if they had admitted that it was a tax to begin with and structured the legislation accordingly. However, once Roberts came to the conclusion that the mandate was essentially a tax, he could not have ruled other than he did without becoming an in-your-face judicial activist—as the Congressional power to tax is virtually unlimited by the Constitution.
       In his Federalist papers on the subject—especially #34-#36—Alexander Hamilton makes two things very clear: 1) that we cannot safely limit the power to collect taxes because we cannot accurately predict our need for revenue; and 2) that the political difficulties of raising taxes are sufficient to prevent excessive taxation, even with unlimited Constitutional authority. This second point has generally held true. People don’t like taxes, and when members of Congress forget this, they usually end up losing their jobs.
       It is precisely because tax increases are so politically difficult that the Framers felt that they could make them, Constitutionally speaking, slam dunks. This was actually pretty sneaky on their part. By granting Congress complete authority over taxation and spending, they made these issues completely political--questions to be confronted by the people who depend on the electorate for their jobs. Had they created a list of Constitutional and Unconstitutional avenues of taxation, they would have given a great deal of interpretive power to judges with lifetime appointments. As the Constitution stands, however, the courts are simply not part of the revenue-enhancing process.
        Roberts did a good job of bracketing all of the non-Constitutional questions involved with the Affordable Care Act. He did not ask “Is it a good idea?” or “Is it an effective policy?” He did not try to determine whether or not health care was a right. And while the four liberal Justices wanted to tie the mandate to the Commerce Clause, Roberts absoltuely refused to go there. He confined himself the very narrow question, “is the individual mandate a tax?”--a question with clear Constitutional implications. My favorite passage from the decision goes like this.

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. . . . Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

          In his landmark decision today, Chief Justice Roberts exercised formidable judicial restraint. He presented the Court's role with humility, and he framed the question at issue as narrowly as it could possibly be framed. He declined to legislate from the bench or to overturn the decisions of elected officials without a clear Constitutional mandate to do so. He tied his decision entirely to an interpretation of the Constitution that he had the authority to make. And (breaking with the liberal justices) he did nothing to expand the power of the federal government.
          Until about a week ago, we had a word for judges who thought this way. We called them “conservatives.”

I Think Scott Walker is a Jerk; and I Hope the Jerk Wins Big

The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” (Federalist #62)

          I don't like Scott Walker. I think he has been a disastrously bad manager who has allowed his state to become become a three-ring circus. And his union-busting in Wisconsin has nothing to do with fiscal responsibility; going after collective bargaining is a ploy to attack a Democratic power base and increase the chance that Republicans will be elected in the future. He has done a great disservice to his state by presenting this as something that has anything to do with balancing budgets. I think he is a colossal jerk, and I really hope that he wins.

           I want the jerk to win, not because I think he is better than the guy he is running against. I think he is much worse. However, I believe, fundamentally, that recall elections are, absent major felonies, very bad things. Furthermore, I believe that the recall madness sweeping Wisconsin during this election cycle is based on seriously incorrect assumption—one that is quickly becoming an article of faith among Americans across the political spectrum. All evidence to the contrary, we believe that our leaders are not responsive to the will of the people.

            What the current debt crisis shows us, however, is exactly the reverse: that our leaders are excessively responsive to the will of the people. And this is a problem because what the people want is more stuff than they are willing to pay for. When people give us stuff and make us pay for it, we get mad and throw them out of office. When people take away our stuff because we can’t afford to pay for it, we get mad and throw them out of office. But when people give us stuff and don’t make us pay for it, we give them power and let them keep it as long as they want. An understanding of how to turn this characteristic into a governing philosophy, I believe, was Ronald Reagan’s most enduring gift to the American way of life. Run up the debt.

             Fiscal responsibility is a good thing to talk about during an election, but it has never actually been a particularly good political strategy. Most people who are really serious about it never get elected; and the few people who do get elected and try to deal with it usually get thrown out of office with all of the subtlety of a mob hit. Deficit spending, on the other hand, is a great political strategy. It gives us(or at least seems to give us) exactly what we want: free stuff.

            We now seem to be groping towards a national consensus that the debt is too high and that we need to do something about it. Wonderful. But there is no such consensus on what to do, and both parties show every willingness to wrench every short-term political advantage from whatever the other side tries. When Democrats suggest raising taxes, Republicans go off the deep end and call them socialists; when Republicans suggest deep entitlement cuts, Democrats take to the air waveand scare senior citizens. The next election is already shaping up to be the ugliest contest of scare tactics and demagoguery since, well, the last election.

            We all know that this is disgusting, immoral, and counterproductive. But they wouldn’t do it if it didn’t work. The great tragedy of a democracy is that it gives us the government we deserve.

            But in the rush to blame Democrats, Republicans, Obama, the Tea Party, and every one  else in Washington for the mess that we are in, the vast majority of Americans have steadfastly refused to place the blame where it belongs: squarely on their own pampered shoulders. For years, we have been rewarding politicians who give us stuff and don’t make us pay for it. And we have been punishing anybody who tried to do otherwise. Why would we expect that they would act differently now?

            Hopefully, Walker will win tomorrow with a big enough margin to prevent the recall election from becoming a standard tactic to use against politicians who raise taxes, cut spending, negotiate with the other side (not that the Walker did any of this—it’s the principle of the thing), or otherwise engage in activities that ignite “violent passions” and tick off “factious leaders.” It will be impossible to expect politicians to act like grown ups if they can be fired at any time by a collective temper tantrum.