Dear Friends, I am delighted to be able to report that our own Eduardo is to return to Cornell Law School this summer to serve as our new Dean. The Law School's announcement is here.
Dear Friends, I am delighted to be able to report that our own Eduardo is to return to Cornell Law School this summer to serve as our new Dean. The Law School's announcement is here.
Ari Fleischer has a surprising column in today's Wall Street Journal. His claim is that if we are concerned about poverty and income inequality, then we should focus our efforts on addressing 'the breakdown of the family,' since these two phenomena tend to correlate. I think that Fleischer at best mistakes a case of bidirectional causation for a case of unidirectional causation, and at worst privileges a case of weak causation at the expense of a case of much stronger causation. Either way, the mistake vitiates his policy advice.
It is widely observed in the social science literature that people experience much greater difficuly in forming and maintaining stable families when they are in dire poverty. It is also widely observed that 'cultures' of child-bearing outside of stable family structures tend to develop in desperately poor communities. Even apart from the social science literature, many of us hear anecdotally or directly experience the near truism that one of the primary sources of marriage- and family-imperiling stress in contemporary society is 'money trouble.' And it is not difficult to imagine why families in which one or two parents must work very long hours, often at multiple low-wage fast-food or retail jobs, tend to be families in which children have little time with or guidance from their parents. This is precisely why many of our peer nations in Europe and East Asia not only work to ensure that the national income is distributed more equitably, but also mandate and/or directly subsidize generous family leave provisions in their labor laws.
Against this backdrop, Mr. Fleischer's column could have been titled 'Want to Be Able to Afford a Family? Then Fight Income Inequality' at least as plausibly as it is presently titled.
I suspect that there's a good bit of symbiosis at work in these correlations. Poverty renders family stability much more difficult to maintain, and unstable families in turn can render poverty more difficult to escape. When it comes to public policy, however, I suspect that it is much more difficult for a government directly to effect more familial stability in impoverished communities than it is to improve employment rates, incomes, family leave provisions and educational opportunities. That, then, might be the best way to improve family stability, and Mr. Fleischer would do well to consider that likelihood.
At the corner of Wall and William Streets in downtown Manhattan, just up the stairs from the 2 and 3 subway stop, in front of the Cipriani restaurant frequented most nights by glitterati delivered in limousines and welcomed by non-whites in top-hats and tails, next door to where A. Hamilton lived when the new federal government worked in New York, one block from the stock exchange and from Federal Hall where G. Washington first was sworn-in as President, and three blocks from (a) Trinity Church where Secretary Hamilton and his beloved Betsy Schuyler are interred, (b) the Federal Reserve Bank of New York where Wall Street’s banks are supposed to be regulated, (c) T. Jefferson’s erstwhile residence as first Secretary of State, and (d) Zuccotti Park where the ‘Occupiers’ first modeled an ideal community in 2011, there stands a gray metal news kiosk. A bent, weathered old fellow clad in an oily tan jacket, who chain smokes and smells of cigars all the time pedals newspapers, magazines, and beverages here. It is always affecting to watch this man patiently plying his trade, patronized as he is by the pushy and chesty young shaved-headed men, cloaked in expensive but ill-fitting coats, who work here as traders. At least as remarkable this week, however, is a blue billboard on the kiosk’s east face. This reads as follows:
We’re not for everyone. Just the 1% that matter.
Elite Protection for the World’s Elite.
I am not making this up (though apparently Cinemax did). Sometimes circumstances throw up juxtapositions that are so rich in irony that you cannot outdo them, even by ‘mak[ing] [things] up.’ This week’s kiosk billboard is in a certain sense one of those cases, even if intentionally - and indeed brilliantly - manufactured as a television promotion. What could be more remarkable than the sign’s ersatz brazen appeal to financial elites who would probably rather not be exposed as elites, here at ground zero of their characteristic daily frenzies? Or its doing so within earshot or eyeshot of the homes of that apostle of the American ‘yeoman republic’ (Mr. Jefferson) and the founder of the Manumission Society of New York (Mr. Hamilton)? Or its doing so within eyeshot or earshot of the site where the first popularly elected national chief executive of the modern era (Mr. Washington) was inaugurated, of the symbol of democratized finance (the NYSE), of the symbol of popular government’s control over finance (the FRBNY), of the symbol and spiritual home of ‘the 99%’ (Zuccotti Park), and of that potent symbol of God’s stooping down to the humble status of man (Trinity Church)? And who could miss the significance of this company’s name – ‘Byzantium’ – as if lower Manhattan were a mosaic fortress of gilded beauty, Justinianian Roman Law order, and Orthodox spirituality rung round by ravenous Avars, Bulgars, Crusaders and Ottoman Turks?
I’d like to suggest, though, that the ironies here, rich and evident as they are, are nevertheless outdone by those on more subtle display worldwide in the lead-up to ‘Black Friday’ this week. And in this latter case, as it happens, the irony does not seem to be intended.
As some will have heard or have read, yesterday saw Walmart employees commencing a labor action for higher pay, while millions of other Americans began Giving Thanks and celebrating the Festival of Lights or the beginning of the Christ-Mass season by mobbing ‘big box’ stores in search of temporarily sale-priced goods – an ugly development which policy wonks now must ironically celebrate for its salutary effects on a still slumping economy. As some will also have heard or have read, the United States sent B-52 bombers into airspace over the East China Sea this week, to register American rejection of a recent unilateral assertion, by ‘Communist’ China, of sovereignty over the space in question.
What’s ironic about all of this, you ask? Well, consider: For nearly a hundred years, American laborers struggled for recognition of collective bargaining rights, then patiently but firmly collectively bargained for living wages and humane working conditions. Over time, their efforts bore fruit, and the nation in consequence became more prosperous, on fairer terms, than probably any society in history had managed to date. Yet then, nearly as soon as the victory had been won and American workers had grown able to purchase their own homes, send their children to university, and reasonably expect their descendants to live better than they had lived, it was all thrown away. Their government entered into multiple trade agreements that put American labor into competition with barely paid slave- and prison-labor toiling in inhuman conditions abroad – particularly, though not solely, in China. Unionized domestic manufacturing jobs dwindled, and American labor was left to seek low-paying, non-unionized ‘service’ and ‘retail’ jobs in their stead. By far the largest source of the latter, it turns out, is Walmart, which also turns out to be the principal emporium at which Americans purchase the aforementioned prison- and slave-manufactured goods whose ‘outsourcing’ to China and elsewhere has thrown American labor out of decently paying work in the first place.
But there is more. If the front page of Friday’s New York Times is to be believed, a great many Walmart and similarly situated retail employees are unable to afford even the cheap, often chintzy and toxic slave-produced products on Walmart’s and other ‘big box’ stores’ shelves. They can only buy these things by taking on consumer debt – debt that stems ultimately from … you guessed it, China and other newly manufacturing nations that have been steadily racking up trade surpluses with us, and debt that, when taken on in excess, fuels asset price bubbles and busts of the kind with whose sequels we’re still struggling. These same employees were also required to work on Thanksgiving Day itself, so as to ‘backwardate’ Black Friday back into Thursday and thereby monetize the one remaining non-monetized holiday we had left.
Walmart should not be uniquely blamed for this, of course, since if it did not skimp on wages it would be outcompeted by other 'big box' outlets that would. (That’s why civilized nations pass living wage legislation, after all – to forestall wage-cutting arms races.) Heck, it even emerges that Walmart has a heart too, since its management is both (a) encouraging non-starving employees to give generously to starving fellow employees, and (b) assisting its employees with filling out application forms for various forms of public welfare assistance. But this will of course bring further government expenditures of the kind that so agitate ‘austerians’ in our Congress, which of course will be piled atop further military spending needed to register our objections to further Chinese projections of military power across the East China Sea – projections that we make possible, indeed subsidize, by giving away both our manufacturing capacity and our living-wage jobs, and projections that we will finance our objections to by … borrowing from China.
Now I have suggested that this is all very ironic – more ironic even than the ‘Byzantium Security’ billboard in lower Manhattan. But is it merely ironic, or is it insane? Simply give away your manufacturing capacity and your living-wage jobs – the source of your nation’s broadly shared prosperity and power – to a nation you treat as your adversary. Thereby impoverish your laborers - the backbone of your nation and its economy - and subsidize your adversary. Next put your impoverished laborers to work in emporia that serve as no more than outlets for your adversary’s cheap toxic products – products which, though cheap, nevertheless few of your impoverished laborers are paid enough to afford. Now borrow from your adversary in order to provide public assistance to your impoverished laborers and to finance your military challenges to the new military adventures that your adversary is undertaking, which adventures, again, you have made possible in the first place by giving your adversary your manufacturing capacity and your living-wage jobs. Merely ironic? I’m going to go with ‘insane’ here. It looks crazy. It seems an abomination, a profound injustice, and a national suicide attempt all at the same time.
Is this perhaps our nation’s way of doing penance for all the injustice it did to the continent's original inhabitants after being assisted by them in the leadup to that first Thanksgiving Day? Were it so, I suppose we could say that at least it’s well motivated. I think, however, we might do a better job of it, and thereby repent more productively, were we to take these two steps: First, either bring the manufacturing jobs back home or require, as a prerequisite to continued liberal trade, that ‘outsourced’ employees be given ownership shares in all firms – domestic and foreign – that benefit by their being outsourced. (Share, in other words, those vaunted ‘gains’ wrought by ‘free trade’ with the victims of free trade.) And second, when domestic prosperity is thereby restored, get serious about aiding those worldwide who are ‘underdeveloped’ – not by immiserating domestic labor, but by assisting the development abroad of both (a) domestic technologies and infrastructures, and (b) internal, not external, markets for goods and services. Stop robbing Peter to pay Paul. Enable Peter and Paul to pay themselves and one another instead. Then we’ll have no more ironic Black Fridays.
Early last year, I noted with pleasure some progress underway in connection with a truly 'win-win' mortgage bridge loan statute I'd drafted with a friend and colleague at FRBNY. Today I am pleased to be able to report that the same is now S 5035, under consideration in the New York Senate. Here is hoping it passes in what remains of the current legislative session, for reasons elaborated in brief at the previous link and more fully here.
Hope you all are enjoying a truly beautiful weekend like that underway at least here in New Haven today,
Cross-Posted at MOJ
Both Patrick's recent post marking the birthday of Malcom X, and Steve's post before it questioning just how 'scandalous' the IRS pseudoscandal really is, invite some reflection on President Obama's reaction to the mentioned pseudoscandal thus far. In my humble opinion, that reaction has been the very contrary of what it ought to be, and this might owe partly to a handicap that many have long suggested the President might labor under. If that perception of handicap does indeed partly explain the President's weak showing right now, I very much hope he will recognize that he has nothing to worry about, then reclaim his spine and resume his hard work for the nation. Let me explain.
To begin with, let us refresh ourselves on the backdrop against which the President has recently professed 'outrage' and accepted the resignation of acting commissioner Steven Miller at the IRS. There is so much irony, injustice, and outright lying in these latest Republican and 'Tea Party' attacks on the IRS and the President that it is difficult to know where to begin in demonstrating their empirical falsehood and sheer venality.
First, note that the head of the IRS at the time in question (2010-2012) was a Bush appointee who, as a Republican, had much more reason to 'target' Tea Party groups for scrutiny concerning their right to tax subsidization for non-qualifying, avowedly political activities than did any Democrat. For the 'Tea Party' circa 2010, recall, was to the Republican Party much what Ralph Nader was to Al Gore circa 2000 - a spoiler.
Second, note that huge numbers of these new 'Tea Party' groups - groups named, by the way, lest we forget, for a famous act of criminal vandalism and property-destruction in the name of an anti-tax protest - began suddenly claiming tax exempt status during the time in question, requiring IRS verification of the groups' charitable rather than political status. Even if deliberations at the IRS over how best to meet these new verification needs antedated by some months the actual influx of applications, as suggested by the Washington Post late last week, this would hardly be surprising given how likely it clearly became that such screening would be necessary once these groups began forming in 2009 and the Supreme Court's infamous Citizens United decision virtually invited them to begin seeking 501(c)(4) status.
Third, House Republicans had by this time cut funding for the IRS to the point (check the numbers - they're shocking) that such verification was nearly impossible without using streamlined 'profiling' methods commonly employed in law enforcement - methods, by the way, that self-professed 'conservatives' regularly endorse when it is African Americans or putative 'Islamist terrorists' who are to be profiled rather than racist rightwing hate groups and gun-toting tax-evaders. This fund-cutting of course followed a familiar pattern of Republican slash and burn tactics where the drowing of government in Grover Norquist's bathtub is concerned. Indeed, that other preposterous pseudoscandal which has plagued news outlets in recent months - 'Benghazi!' - itself stems directly from the Republican House's slashing of funding for US embassy needs abroad, and is itself being used now to 'target' the front-runner for 2016's forthcoming Presidential Campaign, former Secretary of State Hilary Clinton.
(And this is of course not to mention the recently revealed real scandal, to the effect that Republican operatives actually doctored White House documents which they sent to ABC News last week with a view to slandering the Obama Administration - why is this not being 'investigated'?)
Fourth, and as mysteriously unmentioned by 'conservatives,' the IRS used the same methods to screen for progressive, not just 'Tea Party' groups, while Republican Senator McConnell is on record as claiming that such progressive groups should be specifically 'targeted.' You can watch and listen to McConnell on this point here, at 3.12 minutes in.
Fifth, the IRS ultimately (and to my mind, bizarrely) approved the tax-exempt status of all of the 'Tea Party' groups whose applications for tax subsidization it reviewed, while denying that status to some of the progressive groups that applied (just as Republican Senator McConnell recommended). You can read about that in painstaking detail on the front page of yesterday's Sunday NYT.
Sixth, as we all know, Republicans have fought the President at every turn to prevent his restoring equity to the tax code in the name of both justice and budget-balancing. So devoted have they been to this cause that they have actually made history by forcing the nation's first-ever credit downgrade by a bond rating agency in 2011, all in the name of economically illiterate 'austerity' policies that have brought Europe to virtual ruin. The Republicans finally lost this ongoing battle decisively in November 2012, yet they are now on record as being willing to pursue their ends, in the immortal words of Malcolm X, 'by any means necessary' - e.g., through appropriations refusals and false 'scandal' manufacture - when they lose, as they increasingly are doing now, at the ballot box.
Seventh, the same holds true in respect of the President's signature health insurance reform legislation, the Affordable Care Act (ACA) of 2010, which Republicans have now voted 37 times to undo or 'repeal,' and which is administered in part by the IRS. Indeed, that the latest attack on the IRS is simply a new front in this ceaseless guerilla war against res judicata and the ACA is essentially admitted both by Mr. McConnell in yesterday's Meet the Press interview linked to above, and in a host of similar Sunday morning speaches by and talkshow interviews with other Republican legislators that aired yesterday. (Not a single Republican speaker or interviewee in recent days has failed to highlight the shrunken IRS's role in administering their favorite 'big government power grab,' 'Obamacare.')
And finally eighth, the Republicans are also on record as having explicitly adopted a srategy, immediately following the 2008 election and during the months preceeding the President's taking office, of preventing the President's accomplishing anything at all while in office - even things that they themselves might agree to be good for the country - simply in order to enhance their own future electoral prospects. Republicans have even regularly admitted this, apparently taking a chortling pride in it, as can be read about in further detail here. This is of course fully as astonishing as was Republican willingness to ruin the nation's credit rating. It is nothing short of a clucking, Cheshire cat style admission of intent to sabotage the nation itself in the name of future partisan prospects - the very contrary of that repudiation of 'faction' which so characterized the ideals of the Founders whom Republicans and Tea Party types comically purport to admire and follow.
Add all of this together, throw in now-routine Republican filibuster abuse in the Senate and attempts to prevent voting during electoral seasons in racial minority districts, and you see at once what the latest Republican pseudo-scandals are really about. They are about nothing more than continuing, systematically planned Republican 'dirty tricks' in the name of undermining national tax policy, health care policy, economic policy more broadly and even the democratic process itself. They are simply the latest tactic, in other words, in the ongoing Republican strategy of systematic sabotage.
Against this backdrop, I submit, the only real offense of which the President is guilty is either Pollyannish blindness, low energy, or cowardice. And this takes me to the putative 'handicap' to which I referred above.
Why in heaven's name did the President presumably ask for and certainly accept the resignation of a decent man, Mr. Miller, over at the understaffed, underfunded IRS last week? Why did he stand by in silence while grandstanding and outright lying Republican House members publically humiliated this decent public servant in bad faith showtrial 'hearings' last week? And why does the President not change course now, now that Republican intentions are so transparent?
Many will recall that, during the 2008 electoral cycle, some commentators worried that then Senator Obama would have to take care to avoid evoking the 'angry black man' stereotype in his campaigning, and that this need to appear 'more Martin than Malcolm' might render him vulnerable to unscrupulous campaign tactics on the part of the McCain campaign. After all, it would require a form of unilateral disarmament. This worry became all the more manifest when some began attacking the then Senator for his past attendance at the church of the so-called 'firebrand' Rev. Jeremiah Wright, and when the self-congratulatorily know-nuthin' Republican Vice Presidential candidate began suggesting that Senator 'Barack Hussain Obama' liked to 'pal[ ] around with terrorists' such as the educator William Ayres.
While the then future President fortunately weathered this ugly storm in 2008, during his first term - especially during its first half - he seemed often to continue to act as if he still had to bend over backwards to seem more Martin than Malcolm, even after he had long since come by many to be considered 'post-racial.' So, for example, very shortly after the Fox 'News' clown Glenn Beck began relentlessly slandering White House 'Green Energy Czar' Van Jones in 2009, the President accepted Jones's resignation. Then, shortly after perennially angry Andrew Breitbart began slandering Shirley Sherrod of the Department of Agriculture the following year, the same happened. And of course, all the while, the President continually sought to demonstrate his cooperative and compromising spirit by preemptively surrendering all of his principal druthers ahead of all negotiations with Republicans on matters of financial reform, health insurance reform, tax policy and budget policy more generally.
None of this placating and preemptively compromising behavior, of course, availed the President - or the causes of justice and national economic recovery - anything. For the President was dealing with nothing more than political boors - bestial types who view good faith and friendliness as no more than weakness inviting more bullying. And happily, for a time, the President seemed to have figured this out.
Upon discovering that Breitbart had outright lied about Ms. Sherrod, for example, the President's Department of Agriculture offered her a new position. And as the 'Occupy' movement proved it safe to discuss plutocracy and worsening inequality again just as the 2012 electoral cycle began picking up in late 2011, the President grew increasingly vocal in his Teddy-Roosevelt-channeling commitment to restoring the American middle class, even if this meant holding firm on allowing some of the profoundly unjust and profligate Bush era tax cuts for plutocrats to expire. And then, best of all, upon decisively winning reelection this past November, the President seemed virtually a new man, ready to push hard for what he professed to believe and no longer worried about latent racialist fears in 'post-racial' America.
What, then, has happened? Why do we seem to be right back to 2010 only four months into the President's new term?
I confess, I do not know. Perhaps the President is tired. Or perhaps he is disgusted and demoralized by the recent failure of new gun 'background check' regulation to get past yet another Senate Republican abuse of the philibuster. What ever the cause, I think we must all pray - and now urge - that the President return to his January 2013 mentality at once. He should not be professing 'surprise' and 'outrage' at the IRS, or acting as an accomplice to venal Republicans seeking to gut that essential government instrumentality - and with it, his own signature ACA - even further than they have done since the 1990s. He should not be throwing Mr. Miller under the bus of grotesque Republican posturing and bullying. And, finally, he should not be acting as if he were aloof or 'above the fray.' 'Transformational' leaders don't duck frays; they win them - precisely because their causes are just.
What then should the President do? And what should the other forces of light - in this case, the Democrats - do? I think it's very simple. They should 'come clean with the American people,' as all of those ersatz-'outraged' Republicans often put it, and call out the current Republican tactics for what they are. The President should hold a frank, thorough discussion with the public, in the form of a long address, interview, press conference, or some combination thereof, in which he begins with Mr. McConnell's first articulation of the Republican scorched earth policy immediately after the 2008 election and proceeds from episode to episode, demonstrating in stark detail the sabotage policy that has been at work in literally every Republican action and tactic of the past four years.
He should sprinkle the discussion with all telling numbers - number of IRS employees in 1998 and now, number of resorts to the philibuster, number of agency posts and judgeships still unfilled, magnitude of cuts to agency budgets, amounts of campaign donations from sectional interests to Republican candidates for office, etc., etc., etc. He should paint the entire picture in bold strokes and with full narrative sweep, finally closing with both a demand that Republicans begin actually joining in governing rather than sabotaging all governance and a request that the public join him in this demand. Call the Republican tactics for what they are. And do it every single hour of every single day until it becomes the subject of the national discussion, as well it ought. For this is the scandal - literally the only true scandal. As it has been since late November of 2008.
Meanwhile, and in this same spirit, the Democratic Senate should complement the President's efforts by holding 'hearings' of its own to supplement and correct the Republican House's bad faith showtrial proceedings. It should call before it all private political 'operatives' and 'consultants' with whom the Republican 'leadership' has met since late 2008, requesting enlightenment as to every detail of the scorched earth, propaganda and sabotage strategy that has been Republican 'governance' policy since losing the 2008 election. This should be easy, in view, once again, of how proud these self-satisfied creatures seem ever to be in discussing the successes thus far of their tactics.
The Senate should also, of course, conduct a very public inquest into how Republican operatives came literally to doctor White House documents released to ABC, with a view to falsely incriminating the Administration in connection with the 'Benghazi' nonscandal. And it should commence at once to change the philibuster rules to put an end once and for all to antimajoritarianism in the Senate. Again, the goal should be to show all of this to constitute the scandal. For again, that is precisely what it is. The Republican sabotage strategy, at work since 2008, is the scandal. The only scandal.
All of this, it seems to me, should be done at once, while there is still time to salvage the first half of the President's second term. And the President should coordinate with the Democrats in both chambers on all of it, while also compiling a comprehensive agenda of all helpful measures that the Administration can constitutionally take without antidemocratic House approval (recall that even the House is now undemocratic, inasmuch as gerrymandered districts yielded a slim Republican majority notwithstanding over 1.4 million more votes' having been cast for Democrats than Republicans). It should also go without saying that the President and the Democratic Caucus should now be working quite energetically to ensure a return of the House to the Democrats - the one party that still believes in governance - in 2014, so that the process of full economic recovery can be well and truly completed before the President leaves office. Only then will his presidency be truly 'transformational.'
Oh, and finally, lest I forget: the President should rescind his acceptance of Mr. Miller's resignation from the IRS - and offer a new position while at it to Van Jones for good measure. (What better symbol of his finally having learned his lesson?) Here's hoping he does this 'with all deliberate speed' - if possible, as early as tomorrow morning.
[N]one shall entomb him or mourn but leave him unwept, unsepulchered, a welcome object for the birds, when they spy him, to feast on at will.
Many an educated reader - and many an educated lawyer in particular - will have encountered the line I've just quoted, as well as the name I have quoted in the title to this post. These are words spoken by Antigone, apropos an edict prohibiting entombment of her brother, Polynices, in the Attic tragedy that bears her name. Polynices has made war on his own polis, Thebes, and for this reason Creon, the ruler of Thebes, has decreed he is not to be accorded the rites that both sacred and customary law prescribe. The 'luckless corpse of Polynices' is to be left to be eaten by carrion-birds. A resultant clash of contrary obligations - that to obey ruler-posited law on the one hand, that to obey divinely and custom-posited law on the other hand - is of course what renders Antigone's predicament 'tragic' in the classical Greek ('damned if you do, damned if you don't') sense rather than in the watered-down, contemporary sense per which 'tragic' is roughly synonymous with 'unfortunate.'
I'd like to suggest here that a cognate tragedy to Antigone's is now in the course of enactment in Cambridge, Massachusetts, where the family of Tamerlan Tsarnaev, the accused Boston Marathon bomber killed in the course of his apprehension by authorities, is finding it impossible to locate a cemetary at which Mr. Tsarnaev can be properly interred.
To be sure, there are obviously critical differences between the Tsarnaevs' case and that of Antigone. One is the irony that in the present instance it is private parties who are refusing proper burial while ultimately a state institution will likely be that which accords it. Another, related distinction is that the tragic clash of principle in the present instance is not between divine or customary law and royal decree, as in Antigone, but between the former on the one hand and an apparently deeply felt imperative to express and even 'live out' disgust and disapproval on the other.
Nevertheless, I think we shall ultimately agree that the similarities between the Tsarnaevs' plight and Antigone's are more salient than are the distinctions. That is primarily for two reasons. The first is that in both cases, the clash of principles at work can indeed be understood as a clash between admittedly compelling principles. The second is that, again in both cases, it seems nevertheless clear which principle must ultimately prevail.
As for the first of these, I trust it is obvious that both 'sides' of Antigone's predicament are compelling. Divine and customary law in the polis are binding requirements par excellence, while municipal law is for its part a prerequisite to that 'order' which underwrites 'ordered liberty.' In contemporary Cambridge and human society more generally, by much the same token, custom, a decent respect for (not to mention cherishing of) our fellow citizens and their faiths, and, I believe, what many if not most of us still thankfully consider 'divine' and 'natural' law remain as compelling here and now as they were in the Hellenic world of Sophocles's day. At the same time, the irreducibly reverential character of any proper funeral rite, combined with the unspeakable monstrosity of what was done in Boston this past month, certainly can make it seem, on the surface at least, as though permitting proper burial would constitute some falling short of full repudiation of the deed now attributed to the dead.
Ultimately, however, I think the mentioned surface appearance illusory, and this takes me to the second salient similarity that I think we shall find between the cases of Antigone and the Tsarnaev family. In the case of Antigone, it seems clear to me at any rate that the divine and customary law of Thebes must ultimately prevail in the event of conflict with a monarch's arbitrary and vindictive decree. And much the same, I believe, can be said even of many conceivable cases in which even bona fide democratically decided legislation offends certain more 'fundamental' precepts, even if in most of these cases the calls will be tougher. In the case of the Tsarnaev family, by the same token, resolution seems to me similarly straightforward - indeed even moreso. For, unlike the compellingness of civic decree, that of symbolic repudiation is not predicated upon any determinate necessity - at least not determinate in the sense of 'independent of articulated interpretation.' What is more, I think that the interpretations of what we are doing that we both can and ought articulate in connection with doing right by the Tsarnaev family is far more plausible than that which today's refusers of proper rites appear to assume.
What do I mean here? I mean essentially two things, one of them primarily in connection with the previous sentence but one, the other in connection with the previous sentence itself.
So first, in alluding to 'determinacy,' I mean to say that there is no message of approval - no symbolic condoning of bombing - inherent in according our sisters, brothers, and fellow citizens in the Tsarnaev family the space in which to grieve, pray for, and properly bury their kinsman. That is particularly so insofar as we, and in particular the proprietors or administrators of what ever cemetary ultimately proves to be the final resting place, make plain that so doing is the reason for ending the current refusal. The meanings of actions are critically, even if not always solely, what we take, decide, and articulate them to be; and I suggest that respect for and empathy with the Tsarnaev family both is and should be the dominant meaning that will attach to ending the present refusal to let them bury their kinsman. (And lest you find 'empathy' too strong a word here, please view any clip now available on the web of Tamerlan Tsarnaev's uncle's expressions of distress over not being able to find a resting place for his nephew; it is heartbreaking beyond measure.)
Second, I think another meaning is worth noting in connection with the case of Tamerlan Tsarnaev - a meaning that I think at least as much there to be seen and appreciated as to be deliberately attributed: In according the proper funereal respects to Mr. Tsarnaev, I think, we attribute full significance to the deed of which he stands accused, in a way we might not if we simply 'make him disappear.' Not allowing proper burial - leaving him out for the carrion-birds, so to speak - seems to me to suggest a certain deteriorability or dissipatability in connection even with the dead's alleged deed, as if the wrong will dissolve into nothingness with the body. It suggests that there is no meaning borne by this man's body or person, hence that no meaning inheres in his actions.
To continue to hold fast to Tamerlan Tsarnaev's sacred humanity and his soul's persistence, by contrast, in recognizing and embracing his family's sacred right and obligation to do with his body what their (not to mention our) religious laws require, is to accord the permanence and significance of his alleged deed its proper weight. It is to recognize that this deed is still 'out there,' as it were, still weighing on the moral and spiritual economy of our lives. And it is also, it bears noting in passing at this site in particular, to recognize the continuing opportunity of the dead to repent, and the hope that they will, in eternity.
Cross-posted at Mirror of Justice
[NB: I hope it will be clear in the foregoing that I recognize 'proper rites' to be faith- and culture-specific. As Patrick could no doubt remind us, Polynices's being left to 'carrion-birds' would be no disgrace within certain Tibetan or Native American traditions in which 'feeding the sky' is the prescribed mode of disposition of the dead, nor would one's being cremated constitute any disgrace in Hindu or Old Norse societies that prescribed the same. In Tamerlan Tsarnaev's faith tradition, on the other hand, proper burial is the prescribed rite, and to deny this to the Tsarnaev family here and now is to wrong them most grievously.]
A certain rightwing radio 'personality' with a for-some-reason perpetually wheezy, windbaggy voice and a wide following has apparently undertaken to illuminate for us the true significance of the Martin Luther King holiday as celebrated this year: It is that the Second Amendment to the U.S. Constitution guarantees what Americans of African descent should have regarded as one of the most important civil rights of all in the 1950s and 1960s - the right to take up arms. Had they but carried firearms, this personality excitedly suggests, 'they would [not] have needed Selma.'
It scarcely needs pointing out that the ironies here simply abound. For one thing, of course, the very reason we celebrate Dr. King, his movement, and their legacy in the way that we do as a nation is that, like the Mahatma whose example he and his followers followed, Dr. King expressly eschewed violent means of attaining political rights-recognition. We do not, for example, celebrate the legacy of Malcom X with a national holiday - justly or otherwise - and that surely is owing to his adovacy of rights-vindication 'by any means necessary,' armed means among them. Perhaps the rightwing radio personality believes we should correct for that error now? (For the record, I think that we can learn a great deal from Malcom X and the arc of his life, what ever we think of the justice or otherwise of armed resistance to Jim Crow and cognate abominations that were abundant until only recently.)
A second and related irony is that, as the windy rightwing radio personality surely remembers at least as well as those of us who were children or not even born at the time, there were well known armed wings of the progressive and civil rights movements back in the day of Dr. King, as well as in the years immediately following his assassination by an armed rightwing racist. The excesses of some representatives of these wings were, of course, causes celebre among those who voted-in the conservative reaction represented first by Barry Goldwater, then by Ronald Reagan in late 1960s California and Richard Nixon in the 1968 presidential election. The likes of Goldwater, Reagan, and Nixon, in other words, presented themselves as leaders of reaction against precisely the sorts of 'Second-Amendment-vindicating' action that our perpetually breathless radio personality now purports to endorse.
Finally, a third and again related irony has to do with the aforementioned Messrs. Reagan and Nixon. A seemingly forgotten bit of the later 1960s is the degree to which serious gun control legislation actually originated in this period largely on the initiative of Republican and other conservative politicians alarmed by the rise of armed leftist groups. Nixon famously called guns 'an abomination,' and Reagan promoted gun control legislation in 1967 as Governor of California, for example, in response to armed Black Panther Party appearances at polling stations in defense of African American voting rights - this apparently in response to Republican and other rightwingers' routine harrassment of minority voters earlier in the decade. (The man who Nixon later named Justice and Reagan named Chief Justice of the U.S. Supreme Court, William Rehnquist, was of course notoriously among those accused - though, one must add, said by others to be innocent - of the latter.)
All of these ironies, I think, can be viewed as expressions of a larger irony oft-noted in recent years in connection with the rise of rightwing whackjobbery: namely, the remarkable degree to which those who call themselve 'liberals' and 'progressives' are actually today's conservatives - at least in the Burkean sense of that word - while self-labeled 'conservatives' are among the principal sources of subversion in contemporary America. That is true, remarkably enough, even where 'arming for revolution' - once a catchphrase of the left - is concerned. Anyone who doubts this should take a gander at this recent empirical study produced by a U.S. military thinktank.
Bless you, Dr. King - and may you forgive us.
Dear Friends, I've been a bit buried of late by an initiative about which I had to keep mum for a while, but which now finally can be made public. It involves use of municipal eminent domain authority, financed by private investors, to solve at long last that host of collective action problems which stand in the way of resolving the nation's still dragging underwater mortgage crisis at long last. As use of the term 'collective action problem' suggests, even solutions that literally benefit all - creditor, debtor, and innocent third party alike - are blocked unless we are able to find some duly authorized collective agent able to act in effect on behalf of all parties. I believe that municipalities are the necessary agents, for reasons adduced in a full article explaining and justifying the plan. You can read that full article, and more about the plan, including press, here: http://www.lawschool.cornell.edu/spotlights/Hockett-Reveals-Plan-to-Address-Underwater-Mortgage-Loans.cfm. I will be very eager to hear your thoughts.
When I was an undergraduate, a number of what struck me as mutually supporting factors prompted me to convert to 'Popery,' as most of the American Founders, alas, would have called it - and as many, double-alas, would have denounced it. Two of these factors, both of which seemed to me somehow to be particularly deeply connected, were especially compelling.
The first such factor was that I seemed always to see humbly dressed folk in faded bluejeans and plaid shirts delivering boxes of donated items to the food & clothing pantry operated by St. John's Catholic Parish in Lawrence, KS, whose parking lot lay across the street from my window. The same humbly dressed folk, still humbly dressed, could then be found at Sunday mass, which I attended a few times as a curious onlooker, then as a guest. I was struck by how, in a sense, these humble yet generously giving people seemed to treat Sundays and other days as being in a sense continuous - as being of a piece - and in so doing appeared to be treating their liturgical lives and their giving lives as both being of this selfsame piece. The parishoners, in other words, did not doll up on Sundays and strike worshipful postures, then dress down on other days and forget about those Sundays. They dressed the same, and in a certain crucial sense acted the same, on all days - worshipping throughout the week, in effect, with the shape taken by their worship just slightly differing between Sundays and other days. 'Just slightly' in view of the second factor that somehow moved me...
The second factor was that there was always a corpse represented on the cross in these peoples' church. Corpse, corpor, corporeal. A dead body. For some reason that really hit me. It seemed important. The dude these people worshipped and wept for had a body. He was a body. Somehow that made the whole thing more 'real' to this perhaps primitive, over-tactile,post-adolescent in a way that empty crosses at other kinds of churches I'd visited by that point did not. (I might have mentioned something about this in my very first post here some several years back.) I know that the empty cross at these other places is said to represent a triumph - 'He is risen!' - and all of that; and sure, I buy that. But for some reason I still needed the body. (Habeus corpus!) And, what was more, that broken body seemed somehow connected to the broken people on whose behalves the congregants during the week were dropping off all of those boxes of supplies. And both that body and the broken people whom it seemed connected to seemed also to serve as reminders of some sort that we're all broken in various ways. It was in this sense, then, in addition to the sense made manifest in the non-changing mode of their dress, that these people's Sunday and weekday forms of worship seemed to me continuous - minor variations on one major theme.
And so I converted.
Now it seems to me, believe it or not, that all of this bears quite directly upon - and is born quite as directly upon by - several subjects that have figured importantly in discussions here at our site and at Mirror of Justice of late.
One such subject, to which I will confine myself for now, is the matter of 'post-birth abortion' as advocated by two strange (Swiftian?) authors whose recent peer-reviewed article Robert George has recently shared over at Mirror. I gather, from an admittedly cursory reading, that the authors advocate allowance of this form of homicide on the same ground that many advocate allowance of more conventionally understood abortion - essentially, on grounds that it is 'persons,' understood in a particular sense to which I shall attend in a moment, whom legal and moral rights aim to protect, while foetuses and newborns are not yet persons in the requisite sense.
As our own Patrick O'Donnell will recall from a disucussion at Dorf on Law to which he and I both contributed about two and a half years ago, for some reason I have never been quite able to find any force in the argument from 'personhood.' This has been so ever since first I encountered a rendition of it in (the often wonderful) Professor Dworkin's book of 1993. (Life's Dominion, if I recall correctly, which might better have been titled Personhood's Dominion?) For what I now suspect is the very same reason, I have never been able to find any force in cognate arguments offered by some other philosophers, notably David Velleman, to the effect that cows' and other animals' lives lack value. Somehow all such arguments always struck me as what I was tempted, for some reason that I couldn't then and perhaps still can't articulate, to label 'thin,' 'watery,' 'non-viscous,' even 'airy' or 'vaporous.' An impression of a sort of 'unbearable lightness of nonbeing' seemed to accompany my reading them. They were 'insubstantial' relative to what they purported to be about - life, be it human or other animal life - even if 'deep' or insightful relative to what they were actually about - personhood, understood as something that is in fact categorically distinct from life even if dependent on life as its essentially intermingled substrate when 'embodied.'
Trying to make sense of those impressions now, what I seem to come up with is something like this: What these arguments all appear to have in common is two theses, the first of which just doesn't seem to register with me, at least relative to the argumentative purpose for which it is deployed. This first thesis is sometimes labeled 'value-internalism,' and has it that what is valuable in connection with some creature is only what can be valued, per some form of consciousness how ever rudimentary, by that creature. The second thesis is sometimes labeled 'wholism' but might be better labeled 'narrativalism,' and has it that a life - a full, temporally extended life - can be ('internally') valued by the creature living that life only insofar as the creature in question possesses a conception, or, in a more Kantian idiom, a 'representation' of that life. Put these two theses together and you reach the unsurprising conclusion that 'the life,' qua life, of a creature lacking in consciousness of its own life as a temporally extended, narratival whole is ... valueless.
I think that those who argue that cows' and other creatures' lives are devoid of value, on the one hand - people like Velleman - and those who argue that unborn and newborn humans' lives are devoid of value, on the other hand - people like Dworkin circa 1993? - are all in essence making the same argument. And somehow I find it ultimately unsatisfactory in both cases - largely, I think, for reasons given here, in an argument that I offered in defense of animal rights against Vellemanians in the aforementioned discussion at Dorf on Law to which Patrick and I both contributed. (How do you like that? I'm defending animal rights, as Singer has notably done, on the basis of an argument - more on which in a moment - that if correct means that Singer is wrong about infanticide.) The argument is titled What's the Harm?
So, what's the harm? And what's unsatisfactory about 'internalism'? Well, the short-playing version to which I confine myself here is that I think that it appeals to the wrong 'level' of internality, so to speak. Harm to a particular kind of creature - a creature that exemplifies a particular life form - it seems to me, can only be understood by reference to characteristics that are internal to that creature's form of life, rather than internal to its form, if any, of consciousness. Such forms of consciousness, how ever rudimentary or sophisticated, are surely internal to the forms of life with which they are associated, but they don't exhaust those forms; and waxing or waning, flourishing or withering, pertain to all characteristics, not just the consciousness characteristics, that are internal to the form. For they pertain to the form, not just to features of the form.
So, cows wax and flourish under some conditions, while they wane and wither under other conditions. Likewise for all other forms of life - all of these remarkable, beautiful, gorgeous, miraculous forms! - the particular conditions varying with the particular forms. To impose conditions upon cows, cats, crows, or other critters that prompt their waning or withering rather than their waxing and flourishing, in turn, seems to me to be always prima facie wrongful unless there is some compelling reason to do so - reason that itself sounds in life, and reason that does not needlessly or gratuitously or cavalierly subordinate some lives to other lives.
Human beings, of course, wax and flourish under different conditions than do other creatures, though of course there is significant and growing overlap between the sets of conditions as we proceed from forms of life that bear less, to forms that bear more, in common with human life. And of course the same goes for waning and withering. And narratival consciousness is of course a particularly prominent characteristic among all of those characteristics that jointly constitute the human form of life, which of course renders it not all that surprising that some might find themselves tempted simply to equate, in effect, human life to that characteristic, or to equate value in connection with that life to value in connection with the living human being's self-conscious conception or self-representation of that life. But the fact is that it is but one of the many constitutive characteristics of a human life, and there seems no reason what ever to interpret 'value' solely by reference to that characteristic rather than by reference to the whole lifeform of which it is but one constitutive characteristic.
It also seems to me, on essentially the same grounds as seem to me to underlie what I just said, that early, late, and intervening 'stages' of a life within some form, rather like the 'organic' or constitutive characteristics of that form, have to be understood as resting in deep unity with one another. All such stages, just like all of those characteristics, are jointly constitutive of the form of life in relation to which they represent or amount to stages. If this is right, then it is no more permissible to inflict unjustified harm - harm as, again, understood relative to the life form in question - on a particular creature in its 'early' or 'late' life than it is to inflict such harm on that creature in its 'middle' life. For harm is done the creature - the creature as a representative of the life form - not to the 'creature-phase' as representative of ... what?, that phase alone?
To think otherwise that as I've just suggested, it somehow seems to me, is to fall into a sort of category error not unlike that of those amusing late 18th Century 'empiricists' and early 20 Century 'positivists' who took themselves to be seeing 'apple-sides' and 'color patches' rather than seeing apples and colored objects, or to be tasting 'pineapple tastes' rather than pineapples. The living thing is neither but one of its characteristics nor one of its stages or phases. The characteristics and stages are characteristics and stages of the creature; and it is the creature, not the characteristics or stages, that waxes or wanes, flourishes or withers, is accorded respect or is gratuitously and unjustifiably harmed.
Once we move, then, as I believe that we must, from 'internalism' understood by reference to consciousness ('internality to consciousness') to 'internalism' understood by reference to life form ('internality to form'), arguments like Velleman's against the value of bovine life, and 'Minerva's' (one of the earlier mentioned Swiftian authors) against the value of owl ... er, human life both show themselves for puzzlingly arbitrary if not clearly category-inapt. For once we make the move that I am describing, we see the various forms of consciousness experienced by creatures of various forms simply to be aspects of living those various life forms rather than identical to or even exhaustive of those forms, while value for its part pertains always to forms rather than to aspects of forms.
To take life's value to be internal to life-consciousness - and, worse, to narratival life-consciousness, to 'personhood' - rather than to life-form, then, seems to me in the final analysis to be to engage in a species of reductionism that is not unlike triumphalism, chauvinism, parochialism... even certain forms of racism and 'imperialism.' And it is to do so not only in the form of 'speciesism' - as Singer, ironically, would once have called it - but, worse yet, in the form of 'life-stageism' within that already objectionable speciesism. For it is to treat internality to one constitutive feature of one particular life form, a feature available even to that form only at some of its stages - viz. narratival consciousness - as internality simpliciter. (Hence the use, perhaps, by those who indulge this view, of the term 'internalism' alone rather than 'human narratival consciousness internalism,' which latter name would both (a) better specify the view, and (b) manifest at once what is problematic about the view.)
All right, so this all takes us back to where we began. Why do I find the argument from personhood, and with it Vellemanian 'internalism' plus 'wholism,' somehow 'thin' and 'vaporous' - 'bloodless,' as it were? I think it's probably because I find it bodyless, just like those crosses that left me so cold. I think the same thing that made that body on that Cross at St. John's Parish in Lawrence somehow 'resonate' with 'me,' in other words, might be what prevents the argument from personhood from thus resonating. Our embodiment would seem to be essential to who and what we are; and what has value in our judgment, it would seem to me, must accordingly itself relate back to embodiment.
I suspect that this is why resurrection, which of course many Christians of various persuasions are soon again to celebrate this spring, matters to so many. It's why the Hebraic tradition which has it that we rise on Judgment Day rather than convert to ghosthood and hover about is the tradition with which many Jews, Christians, Muslims and others claim continuity. And it's presumably also why Platonic metampsychosis, disembodied spirithood, being a brain in a vat, and so forth are all so unappealing to some of us. We won't settle for being merely 'persons.' That's not what we value. We want it all - human life, in all its stages, through all its course, with all of its defining features, in all of their organic, gorgeous unity. Wholeness of the life. That is what we value, and it's that - at the very least - by reference to which we so much as understand all value.
Nor, then, will we settle for regarding those whom we love and care for as being merely 'persons,' let alone as 'person-phases' or 'life-stages.' (Again, we taste apples, not mere 'apple-tastes.') They are lives, whole lives, partaking of whole life forms. And this shows up in what we give, especially when we give out of love. Those people who dropped off those items every day at St. John's Parish dropped off items usable by whole human organisms, not just persons. They brought foodstuffs, drink, clothing, blankets, and the like - things that beings with bodies need. Sure, there was 'food for thought' and 'food for conscious play' as well, inasmuch as they brought books and magazines and boardgames and the like. But that is just the point. They brought all of it - just as those who donate things to 'animal shelters' donate food and bedding and 'playtoys' alike - things associated with the flourishing of, hence with what is valueable to, the per se valuable recipients along the multiple dimensions of their flourishing.
And what is true of giving here surely is true of defending. In giving of our lives on behalf of and in defense of other lives, we are living not merely personhood, but life, and giving to and for not just persons, but lives.
Again a deep restorative Lenten season to all who are partaking of it. And to all of our sisters and brothers of other traditions, as well as to all other creatures, to life, to life, la Kayim!
(Cross-posted in modified form at Mirror of Justice)
The analogy is perhaps a bit strained, but only a bit: That posture which many of us take as bright, shining, miraculous but nevertheless blemished beings at Lent is not altogether unlike that which many non-wealthy folk take as fabulously creative and value-adding, while nevertheless liability-burdened, beings during debt deflations like that which our national economy's experienced since 2008.
In both cases, ordinarily vital, bouyant and energetic creatures, freighted with obligations that can never be fully repaid, necessarily hunker down and go quiet for a time. And in both cases, there is something profoundly healthy and natural, rather like inhaling and exhaling - like breathing - in this cycling between inwardness, self-reassessment and pecatum-purging on the one hand, outwardness, self-giving and action-in-the-world on the other. Few if any can put the point better than did Lao-tzu, Heraklitos or, especially, the Ecclesiast: there is indeed 'a time to every purpose/ under Heaven.'
But there might also appear to be an important difference between the two cases, at least on the surface of things. For in the Lenten case, after the tomb comes the rising. Easter Sunday follows Ash Wednesday and Good Friday as a matter of divine course, quite irrespective of what we as responsible agents might do. The debt is forgiven no matter the merit.
New life and resumed growth in the sphere of temporal economic activity, it might be thought by contrast, need not follow as a matter of course. Retrenching citizens who hunker down under debt overhang can drain economies of their lifeblood indefinitely for year after collectively unnecessary year, laying waste to lives, livelihoods, even peace and stability. Such is one lesson that the theory of longterm underemployment equilibria and liquidity traps, as well as the recent 'lost decades' experience of Japan and the less recent global experience of the 1930s and -40s, all make plain. Any counterpart to this in 'the spirit realm' would require that there be no Easter Sunday reliably following Good Friday in that way day follows night.
I'd like to suggest, however, that beneath the surface of things the two cases still bear a deep inner unity. For just as the temporal debt deflation requires the collectively focussed, determined, and concentrated work of 'Jubilee'-style debt-restructuring and -forgiveness as well as public investment to trim back the overhang from both ends, reopen the door and jolt people back to employment-productive activity, so does full emergence from Lent require both (a) an act of forgiveness and (b) active appropriation by all of us as individuals and as faith communities of the resurrection gift. (To hold off or hold out on that active appropriation, I suspect, is what the Medievals had in mind in describing the sin of despair - a full theologico-categorical counterpart, it would seem, to the temporal economic category of deflation-prolonging depressed 'animal spirits.')
Easter Sunday might well follow Ash Wednesday and Good Friday as a matter of divine course, then, but there is neither anything 'automatic' or 'mechanical' about it, nor anyone who grows in response to it without zestfully seizing and acting upon it. In that sense, for each of us, both our and another's responsible - and indeed responsive - agency is as needful in the 'divine economy' as it is in the temporal.
Let us, then, remain inward-turned and self-cleansing for as long as is needed in both spheres right now. But let us also, soon, vigorously act upon what we thus learn and receive when the time comes - as surely it will, come this spring.
Incidentally, although I have mentioned and linked here to the Way Forward piece on our ongoing debt deflation before, I've recently learned there's a video version of the same. It stems from an event in DC late last year at which my co-authors Dan Alpert and Nouriel Roubini and I shared the podium with the redoubtable Liaquat Ahmed, Bruce Bartlett, and Leo Hendry. Also present were a host of great American public servants like Senator Don Riegle, as well as such luminaries as Dean Baker, NPR's Marilyn Geewax, and PBS's Hedrick Smith. Interested readers can view it here.
A restorative Lenten season to all.
(Cross-posted at Mirror of Justice)
One of the loveliest upshots of that Friday and weekend work with the New York Fed that I mentioned two days ago has been the opportunity that it has afforded to spend time with, get to know, and ultimately join some of the banking and economic policy committees of the OWS movement. (Zuccotti Park is but two blocks from the Fed and my little Wall Street apartment.) In this connection, like very many people across America and the world, I thought Mayor Bloomberg's 'crackdown' on the movement this past November wrong-headed. One upshot of that conviction was this OpEd published in the New York Daily News at the time, a longer rendition of which was posted on Dorf on Law here.
It strikes me now that there is an instructive analogy to be drawn between that case and the case of the first rendition of the HHS's mandate - 'Mandate 1.0' - that we've all discussed here over the past several weeks. The link has to do with the 'prudence' one might hope to find in such government actions as sometimes implicate First Amendment jurisprudence or the values given expression in that jusrisprudence. Pursuant to this prudence, wise government functionaries accommodate exercises of First-Amendment-implicating freedoms even when not, strictly speaking, constitutionally required to do so. Why do we hope, as I put it, to find this form of prudence in government decisions? I think there are are least two complementary reasons. One is that our political society at large often learns much from that 'witness' which is the flowering and flourishing of 'alternative' takes on many practices and lifeways that majorities have come to take for granted. Another is that individual citizens often grow and flower as human souls both through witnessing and through participating in such experiments - recapitulating, in their less fateful and momentous but nevertheless important ways, the transformative experience of the 'upper room.'
For my part, I've found the inspiringly earnest, insistently pluralistic, and above all the determinedly democratic egalitarian culture that flowered in Zuccotti Park a particularly salutary case in point - so starkly so that I very much hope those who are reading this post will read the descriptions provided in the two articles linked to above. (The full length version at Dorf on Law includes brief description of the 'Tree of Life' at which multiple faiths were officially represented and honored in Zuccotti, including that of the many members of the Catholic Worker movement who were present throughout the 'occupation.') But likewise important cases in point are, quite often, the lifeways and worldviews lived and given 'witness' by the healthcare-providing, education-supplying, and other institutions founded by our many faith communities. Hence my provisional welcoming, along with that by many others, of the HHS's recent announcement that Mandate 2.0, once more fully specified, will indeed be accommodative. I await that further specification as eagerly as I do the return of the 'Occupiers' to Zuccotti Park come this spring.
(Cross-posted at Mirror of Justice)
Here is another post prompted in part by Michael's kindly getting us back to the matter of social justice this week...
As some of our readers might know, I moonlight on Fridays and weekends at the New York Fed, an involvement which stems from my academic involvement in monetary and financial law both domestically and globally considered. A large part of that bailiwick, in turn, is occupied these days by attention to the all-important mortgage markets - and, less coldly and bloodlessly, the families that owe mortgage debt in those still troubled markets.
In the wake of the bubble and burst that culminated in 2008, as we know, many American families have been left with mortgages that are 'under water.' That is to say that their debts, denominated as they are at fixed rates, have not plummetted as have the variable rates of their market-valued homes. This in turn means that many families will be faced with near-bankruptcy and possible foreclosure unless and until some form of mortgage-restructuring, probably involving principal write-downs accompanied by shared-appreciation agreements and capital-regulatory forbearance, can be done on a larger scale than HARP, HAMP, and other initiatives thus far have proved able to do in the face of creditor collective action problems.
Such is one upshot of Dan Alpert's, Nouriel Roubini's and my Way Forward white paper to which Rick Garnett kindly drew Mirror of Justice readers' attention last October when Joe Nocera discussed it in his NYT column. And so, much of what I do these days concerns how we might set about that large, formidable task as described in The Way Forward.
As it happens, however, there also are many mortgages faced with possible foreclosure that has little to do with 'underwater' status or any other difficulty other than temporary un- or under-employment of the sort that we often experience in times of macroeconomic slump. Because all it takes is 60 days' delinquency to trigger default and foreclosure on many mortgage contracts, mortgagors who are temporarily laid off or partly laid off can, with their families, find themselves suddenly faced with loss of a home through little if any fault of their own notwithstanding their general creditworthiness.
The harms that these innocent people face, moreover, ultimately redound to the harm of their lenders, their neighborhoods, the home and mortgage markets and the broader macro-economy as well. Rigidities introduced by the lending contracts, moreover - particularly those that are securitized - typically prevent even value-maximizing forbearance or adjustment on the part of servicers. We are accordingly faced with a classic market failure that harms all concerned parties.
Against this backdrop, a colleague - Michael Campbell - and I have drafted legislation inspired by a highly successful Pennsylvania program that comes down to us from back in the great Robert Casey days. We call ours the Home Mortgage Bridge Loan Assistance Act (HMBLAA).
Pennsylvania's Home Emergency Mortgage Assistance Program (HEMAP), upon which HMBLAA is loosely patterned with the benefit of hindsight, has a near 30-year track record of keeping lenders paid, families in their homes, and the public fisc almost entirely unaffected. It has managed this simply by extending temporary bridge loan assistance to families whose breadwinners are temporarily unemployed or underemployed through no fault of their own, which loans are repaid in full once employment resumes. It is made to order for times of temporary slump like the present.
Michael's and my plan incorporates many administrative lessons learned from the HEMAP experience. The New York City Bar Association - on whose Banking Law Committee we both sit, Michael as Chair - and now the New York State Bar and the New York State Bankers Association all now have come down in support. Our hope, as well as our now increasingly reasonable-looking belief, is that not only New York, but other states too, as well as Congress, will soon pass HMBLAA and/or counterpart legislation much like it. It could work very well in states like Ohio, Indiana, and others disproportionately hit by the nation's current economic woes.
Michael and I have received much in the way of helpful suggestion from private and public sector lawyers and financiers alike in the process of developing this proposal, but can always do with more. I hope, then, that interested readers might click on the links below and let me know what they think. The first link is (once again) to the statute itself. The second is to a white paper we've drafted in support of the statute, complete with a regulatory impact analysis conducted by colleagues at the Fed. Please let us know what you think!
Thanks again to all.
(Cross-posted in part at Mirror of Justice)
It's the day of rest so I ought perhaps not to be doing this, but I simply cannot bear to see nothing new on our weblog today. What I'd like to do, then, is just quickly to direct such of our readers as might be interested to what seems to me an engaging discussion concerning the two renditions of HHS's recent mandate.
The first entry in the discussion is a very arresting and vigorously argued article by Robert George and Sherif Girgis, titled Morals and Mandates ('MM'). This piece provides what might be the most compelling philosophical justification available for continuing skepticism, on the part of the US Catholic Bishops and others, in face of the White House's recent 're-do' of the original HHS mandate. There then follow three interconnected entries by yours truly, each focussed on one question raised in my poor addled brain by MM.
The upshot of my provisional answers to my own interrelated queries is that MM, which argues that there is no morally substantive difference between the first and second renditions of the HHS mandate, might have overlooked something important - something which afforded very good reason for even us 'lefties' to be troubled by the first version of the mandate even as we respond more favorably to the possible shapes that a 're-do' of the mandate, of the sort broadly sketched by the White House last weekend, might take.
The 'something' in question is what I am tentatively calling an 'integrity,' or 'dignitary' interest held by religiously affiliated institutions, to which some forms of mandate can do violence while other such forms do not. That which renders some mandates violative in this sense, I suspect, is their directly conscripting the moral agency of the institutions in question in such manner as requires those institutions to take intentional actions that 'speak' very directly to the contrary of those institutions' magisterial (i.e., moral teaching) messages.
That which distinguishes cases of such apparent conscription from less troubling demands or requirements, such as those to pay taxes that ultimately finance what is objectionable to the tax-payer, seems to be deeply linked to those 'proximity heuristics' that can be seen also at work in 'proximate causation' queries in the law of tort and in 'trolley problems' in philosophical ethics.
(It's also linked, I suspect, to what ever prompted Justice O'Connor's anti-'commandeering' concern given expression in New York v. United States, how ever peculiar I might have found that opinion when a JD student. (Since US states do not seem to me to have any normatively interesting 'messages,' 'meanings,' or other expressive/representative functions over against those of the nation)).
The 'heuristics' I mention might well be more intensional or connotative than they are extensional or denotative, hence more about meanings and intentions than about effects or material consequences. But they are nevertheless causally efficacious and hence as materially important as they are formally important - precisely in owing to the fact that our actions in the world always give not only expression, but much additional material-consequential effect, to our 'meanings.'
Our 'meanings,' in other words, 'matter.'
Here are links to the pieces in question...
Comments are open, all thoughts appreciated.
The US Conference of Catholic Bishops is apparently unsatisfied with the HHS's 'walkback' from the contraception coverage mandate announced Friday. Rick Garnett and Robby George at Mirror have posted a link to a letter that they have composed which explains why.
Absent further information on the revised mandate itself, I find it difficult to know what to make of the letter, and hope that someone might supply the necessary information. Here is what I mean:
For present purposes, one can envisage two distinct scenarios that the revised HHS mandate might, well, mandate. (If there are alternatives that I ought to be considering, do please somebody let me know.)
Per one such scenario, a religiously affiliated employer is required, like all other employers under the ACA, to purchase one health insurance policy covering all of its employees, which policy covers contraceptive pharmaceuticals and devices. The employer is then 'accommodated' (which term I believe stems from the Surpeme Court's Amish-defending Wisconsin v. Yoder decision of 1973, right?) by not being required to inform its employees of the latter coverage, that role being assigned to the insurance company.
Per the other such scenario that I envisage, the religiously affiliated employer is accommodated a la Yoder by being required, unlike other employers, to purchase a policy for its employees that need not cover contraceptives, while the insurance company is then separately required to provide to the same group of employees a second policy that does cover contraceptives.
The first scenario, which the present wording of the aforementioned letter appears to me to suggest is the actual scenario with which Friday's White House announcement presents us, would seem pretty clearly to warrant the damning language employed by the letter, if not indeed worse. For it then would amount not even to anything so exhalted as an 'accounting gimmick,' as the letter characterizes it, but instead to a mere 'speak no evil ['evil' being defined by the institution]' allowance.
One can imagine variants of the second scenario, by contrast, that might well not warrant such criticism as that offered by the letter, at least not absent an account of what sorts of accounting arrangement constitute mere gimmickry devoid of moral substance (to repeat more language employed in the letter) and what sorts do not.
(I have, for example, since well before the Supreme Court effectively constitutionalized the argument, often defended flows of education and health grant funds from the public fisc to religiously affiliated schools, hospitals, and other social service organizations as consistent with non-establishment, on the ground that, accounting-wise, they amounted to equal pro rata shares provided for the benefit of the clients of these institutions, which equality rendered the clients' choices 'intervening' choices of precisely the sort that 'cleanse' government funds of 'endorsement' significance.)
I wonder, then, whether anyone might clarify (a) whether the revised mandate mandates some such scenario as the first I described rather than the second, and (b) where one might find detailed verification of this if indeed it does? If, instead, the revised mandate mandates some variant of the second scenario that I described, I wonder whether someone might clarify (c) what the particulars of the variant are, (d) where one might find those, and (e) whether any variant on this second scenario would be permissible?
I pose the last query - (e) - partly because, if the answer is no, I might have to abandon an argument that I quite often employ in defense, against what I currently believe to be spurious 'establishment' charges, of public funds' being directed to religiously affiliated schools, hospitals, and other social service agencies.
I pose the full set of queries - (a) through (e) - because I wish both to come to an informed judgment of the HHS mandate, and to ensure that I hold a coherent general account of how we as a nation might maintain our eclectic amalgam of mixed public-private social insurance and safety net provision on the one hand, without running aground on the Scylla of establishment or the Charybidis of curtailed free exercise on the other hand.
(Apropos this latter point, by the way, it is tempting once more to suggest that direct public provision of health insurance might solve the conundrum where health care is concerned much as does public provision of education, pension insurance, and unemployment insurance funding where those public goods are concerned.)
Comments are open. Many thanks.
(Cross-posted at Mirror of Justice)
Those readers who have been following the back-and-forth over the HHS mandate in recent days will be interested to learn that the White House plans today to announce a revision, at about 12.15pm EST.
More on this news can be read here: http://www.cnn.com/2012/02/10/politics/contraception-controversy/index.html?hpt=hp_t2 . (Incidentally, the observations made in this story about an apparent division within the White House and Democratic Caucus over the original HHS mandate are fascinating, in that it seems that Vice President Biden, Senator Kerry, former Chief of Staff Daley, and quite a few other progressive Democrats warned against the current version, while HHS Secretary Sebelius (herself a progressive Catholic) and others were equally adament in favor. This matter that has so rent the Church since the 1960s, in short, seems to have rent its best known government functionaries as well. Perhaps all the more reason, that, for the government to do its level best to leave this one alone.)
A key question that looms now in connection with the expected revision is whether it will sufficiently address the specific conscience concern that the HHS mandate as it currently stands has implicated. Much, if not all, one suspects, will hinge upon how specific or direct the new mandate will require the advice given by religiously affiliated employers to their employees, as to what they should do given that the institutions' group insurance policies do not cover contraception, to be.
My own surmise and hope, for what they might be worth, are that some formulation such as that which I offered here on Wednesday should satisfy all. Similarly, I believe that Steve's proposal made here yesterday should satisfy all.
I harbor some marginal worry at the moment, however, that the compromise actually announced in about one hour's time might turn out to amount to a case of our graceful President's 'stepping into it' twice. For current reports hint that the requirement might be that religiously affiliated employers provide quite specific instruction to their employees as to how and where they may procure contraception coverage. Something along those lines seems apt to implicate the same penumbral first amendment concerns as does the mandate as presently found.
I am very much hoping, then, both for the sake of first amendment values and, just as much, for the sake of justice in the distribution of health risk nationwide, that the White House gets it spot on this time, that we might finally put this altogether needless distraction behind us quite quickly - as far before November as possible.
Tom Berg has an encouraging post up at Mirror today which I encourage all to examine: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/the-beginning-of-a-walk-back-on-the-contraception-mandate.html .
I think that Tom's notice of an incipient 'walk back' on the part of HHS is provisionally very good news both for the cause of free exercise and association, and for the cause of socio-economic justice consistent therewith. (As Tom notes, when Chris Matthews - and, we might add, E.J. Dionne and countless other similarly situated folk - gasp aloud at the clumsiness of a putatively graceful Democratic President, that President has assuredly mis-stepped.)
One possibility under consideration is to adopt a model of exemption similar to one used in Hawaii. This would allow religiously affiliated institutions to refrain from covering objectionable devices or procedures, require insurers to permit employees of such institutions to purchase the excluded coverage on their own at the same pro rata rates, and require the religiously affiliated institutions to instruct the individuals how to go about procuring those still equally affordable devices or procedures.
I think the first two parts of this proposed solution altogether well advised. I would register one provisional objection, however, to that third piece of the Hawaiian model of accommodation. To my thinking, a state-imposed requirement that religiously affiliated institutions provide detailed instructions on how to procure that which the religious communities themselves see as wrongful is both profoundly demeaning of those religious communities and their adherents, and ominously close to first-amendment-violative forced speech or commandeering.
I accordingly find Tom's suggested reformulation of this provision, over at MOJ, much to be preferred. Per his suggestion, the religiously affiliated institutions would simply advise individuals of the devices and procedures not covered by the institutions themselves, and let them know that they can find out further details by contacting the insurers.
I would perhaps even do Tom one further in the direction of generality by adopting some such language as this:
Because we are a(n) [Name of Ecclesial Affiliation] institution, there are some devices and procedures offered by some medical providers for which we are not able, in clear conscience, to subsidize insurance coverage. For further information please consult your insurance provider.
Let me also note here in passing, if I may, that were the U.S. to adopt a single-payer mode of insuring health as do all of our peer nations, we would not only enjoy a much more just and efficient spread of health risk over our population, but also would not be faced with the many Ptolemaic contortions we can expect in the years ahead, of which the present conundrum is doubtless but one early instance. (Even given that the 2010 reforms are preferable to what went before, as I maintain they are.)
It is only fitting, I suppose, that a putatively 'progressive' President who alienated scores of millions of his supporters by taking 'single payer' 'off of the table' in the 2009-2010 health insurance reform efforts now finds himself alienating many of those same supporters a second time, along with other 'moderates' and 'conservatives,' as his HHS collides with first amendment values in trying to make a social insurance program of what remains for the most part a privately provided such 'program.'
(Cross-posted at Mirror of Justice)
Michael Moreland raises an interesting question over at Mirror of Justice today -http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/mitt-romney-conscience-and-the-boston-globes-mistakes.html. He implicates, I think, an even more interesting one.
Michael references a recent Boston Globe story, to which he helpfully links. The story concerns certain putative discrepencies between Mitt Romney's current campaign trail condemnations of the HHS's recent decision requiring insurance coverage of contraception for employees of religiously affiliated schools and hospitals, on the one hand, and Mr. Romney's own enforcement of a Massachussetts law requiring abortion coverage back in 2005, on the other hand. Michael takes the story for evidence that the Globe is aiming to draw a spurious equivalence between Messrs. Romney and Obama, and in so doing both to 'impugn' Mr. Romney and to 'defend[ ] the Obama Administration's attack on religious freedom in the HHS decision.' I take Michael's story itself for possible - though only possible - evidence of something else.
To set the stage for what I have in mind here: I read the piece that Michael takes to task and, somewhat to my surprise, found it to be much more balanced than his post had led me to expect.
First it seems clear in the story that it is not the Globe that is suggesting any Romnobama equivalence, but C. J. Doyle of the Catholic Action League. Mr. Doyle figures prominently in a large photograph accompanying the story and is quoted, quite early on, as saying that '[t]he initial injury to Catholic religious freedom came not from the Obama administration but from the Romney administration.' Of course we hear like remarks all of the time from other conservatives, who routinely note 'Obamacare's' precedent in 'Romneycare,' and surely are not taken on that account by anyone for defenders of Mr. Obama, let alone of attacks on religious freedom.
Second, and in keeping with that last observation, there is no evident defense in the article of Mr. Obama, let alone of the recent HHS decision, at all. Mr. Doyle himself indeed goes on to say, in the paragraph just cited, that 'President Obama's plan certainly constitutes an assault on the constitutional rights of Catholics.' It's just that Mr. Doyle is 'not sure Governor Romney is in a position to assert that, given his own very mixed record on this' (emphasis supplied). So far as I can tell, Mr. Doyle looks to be neither 'impugning Mitt Romney' nor 'defending the Obama Administration's attack on religious freedom in the HHS decision' here. He's simply invoking a variant of the Clean Hands Doctrine and, again, is far from the only conservative doing so these days where Mr. Romney is concerned.
Thirdly worth noting, it seems to me, is that the Globe story also makes plain at the outset that Mr. Romney first sought to veto the legislation upon which he was acting in requiring Catholic hospitals in 2005 to provide emergency contraception to victims of sexual predation, and that he 'angered reproductive rights advocates' in so doing. That almost reads like a defense of Mr. Romney in face of the now well familiar conservative line taken against him.
Fourth, the story (a) notes conspicuously that plenty of conservative Catholics as prominent as Mr. Doyle give Mr. Romney the benefit of the doubt where his positional shifts on life questions are concerned, and (b) leaves the distinct impression - surely accurate - that the weight of American Catholic opinion is very much opposed to the Obama HHS's recent decision. If there's any 'negative focus' at work here, then, it seems to me it is fixed at least as (or more) directly upon Mr. Obama as (or than) it is upon Mr. Romney.
Finally the Globe story also, near its end, quotes the reliably and, it now seems, obligatorily quotable 'zany' new Catholic Newt Gingrich, who levels charges agains Mr. Romney more or less identical to those leveled by the Catholic Action League's Mr. Doyle and other conservatives. The only surprise occasioned by this particular quote is its not turning up until near the end of the story. Were the story meant for a hatchet job on Mr. Romney, a puff piece on Mr. Obama, or an equivalence piece on both, one might have expected the characteristically incendiary Gingrich quote to figure more prominently. Indeed one might have expected the Globe to play up the now familiar 'Romney hypocrisy' narrative and picture Mr. Gingrich, mouth open as ever, pointing or wagging a finger toward the camera lens in the generally expected 'J'accuse' manner.
On balance, then, it doesn't seem to me that there is any reason to be indulging suspicions of the Globe on the basis of this story. Indeed if anything, it is rather refreshingly more balanced than much of what we find in the more familiar news organs, and surely worthy of praise on that account. Certainly it rides far lighter on the oft-purportedly opportunistic Mr. Romney than most 'liberals' and 'conservatives' tend to do. Why, then, does the story elicit the reaction it does from Michael?
Here is my worry, which is of a type I am sure many now share: In times like the present it is just all too easy to fall prey to paranoia in interpreting the words and actions of those with whom we are accustomed to disagreeing. We are, after all, moving through troubled and unfamiliar waters right now, and accordingly prone to a bit more than the usual measure of fear and loathing that modern life can induce. Economic and social conditions are such as we'd thought locked in the history books. People speak of 'decline' in a way that they used to do only of other 'lost empires.' And all the while urgently needed restorative action is blocked, always and everywhere, by all-the-time frowning and sneering, ignorant yayhoos elected a bit over a year ago by scared angry voters. If the (in the main) shockingly ill-informed, ill-educated, ill-tempered cranks recently seeking the Republican nomination for President are any indication, moreover, it would seem we are in for far worse even than we find on their side of the aisle in Congress right now. (Let us pray they're a tiny minority in Congress itself come next year.)
Against this backdrop, I'm inclined to think it a good idea for us with the charity of heart and clarity of head requisite to the task to read newspaper stories with a good dose of trust in good faith - defeasible trust, sure, but trust nonetheless. A piece covering some matter associated with some candidate might get it wrong, or might lend itself to some false impression or other, sometimes. But surely few authors intend that. Yes, there's a widespread tendency to notice, and then write about, things that play into some popular narrative, and that can admittedly be harmful and is in any event a manifestation of mediocrity. But mediocrity isn't bad faith. It is more like 'the mean' than 'mean spirit' - a sort of arithmetic mean among popular media. Let us induce a rise in that mean, then, by critiquing laze and cliche where we find them, rather than eliciting unhelpful defensiveness by imputing bad faith where it's dubitable. That'll be my resolution, anyway.
A final, more personal plea in respect of my own motives here, for what little it might be worth: I am, as it happens, among those inclined to take Mr. Romney at his word when he speaks of his relatively recent 'life issues epiphany,' and even find the story moving. That is so even as I literally pray Mr. Romney be far less sincere in his profession of new faith in the 'old religion' of 1928-style economic policy, which would be absolutely calamitous for our nation and the world and must - absolutely must - be prevented. I am also among the many who were surprised by the recent HHS decision, which I believe Mr. Obama soon will recognize for the uncharacteristically oafish and destructive blunder that it was. I am not, then, myself trying in this post to 'impugn' Mr. Romney or 'defend' Mr. Obama. There'll be occasion enough for that soon, I am sure.
Robert George makes an interesting observation this week over at Mirror of Justice: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/01/which-side-are-you-on-boys-which-side-are-you-on.html. He notes that it is 'Catholic politicians---mostly Democrats---who are leading the charge to abolish the conjugal understanding of marriage as a one-flesh union of sexually complementary spouses and replace it with a revisionist understanding of marriage as a romantic-sexual domestic partnership.'
Robby finds that this reveals something significant - namely, that 'the philosophical tradition that shapes the reasoning and actions of these people is expressive individualism, or what is sometimes called "life-style liberalism"; it is not Catholicism, or the Judaeo-Christian ethic, or the natural law tradition. Whatever is to be said for and against that tradition,' Robby continues, 'it is deeply alien (and hostile) to the Catholic tradition's commitments to the sanctity of human life in all stages and conditions and the dignity of marriage as a conjugal partnership.'
I've a good deal of sympathy with Robby's concerns. And I've no doubt that he is right about at least some Catholic politicians, in surmising that their views and voting behavior might be shaped and guided by some form of expressive individualism. I've also little doubt that some forms of the latter are, at a minimum, in tension with the Catholic and natural law traditions, as well as with some widely accepted understandings of the Jewish and Christian, not to mention Islamic, ethical traditions. I wonder, though, whether a somewhat more charitable interpretation - in a 'giving the benefit of interpretive doubt' understanding of 'charity' here - might not be available to us in the case of some Catholic or otherwise religiously committed government officials.
What I have in mind is this: Perhaps some religiously committed political figures attempt in good faith, how ever successfully or otherwise as an analytic or conceptual matter, to draw a sharp distinction between matters of church (or temple or mosque or ...) on the one hand, and matters of state on the other hand. (Perhaps they've not read, or not read and yet found persuasive, the 'communitarian' literature challenging the distinction.) Marriage these people might in turn find to constitute a strictly sacramental or ecclesial category, while finding something like 'domestic partnership' to constitute all that there is by way of analogue in the realm of state categories.
These people might then also firmly subscribe and commit to, and with sincere hearts defend and act in accordance with, their congregations' understandings of marriage, while at the same time believing that state functionaries would be abusing state office were they to employ identical criteria in framing the conditions of domestic partnership as they do in framing the conditions of marriage within their ecclesial traditions. One such criterion that they might then in good faith find legitimate in the first case but not in the second case might be the genders of the would-be spouses or partners. So far as legitimate state interests are concerned, they might reason, dyadic partnership is what deserves state recognition and favor of various sorts, while sameness of flesh, sexual complementarity, and like matters of profound metaphysical significance are matters of ecclesial but not state competence.
It is true, of course, that the word 'marriage' is used, at least in the U.S., in respect of both of the categories I mention - ecclesial and state. In that sense, our legal terminology perhaps regrettably conflates the two categories. It seems to me, however, that a, say, Catholic legislator might prefer globally to change the legal terminology where state-recognized domestic partnership is concerned, while at the same time being willing, until some such thing happens, to approve legislation that ends the state's making what amount to ecclesial decisions concerning the substantive criteria upon which state-recognized and -encouraged dyadic domestic partnership is to be determined.
Assuming that the charitable interpretation of at least some tradition-faithful state functionaries' decisions and actions in respect of 'same sex unions' here offered is plausible, it should go without saying that it does not carry over, at least absent further elaboration and argumentation, to the case of such functionaries' decisions or actions in respect of abortion. For that latter, of course, involves not only two acting partners of one sort or another, but innocent third parties as well - or at the very least critically implicates precisely that fateful question.
By Bob Hockett (cross-posted at Dorf on Law)
I wonder whether, like Neil Buchanan (see last Friday's great post at Dorf on Law) and me, you who are reading this post have noticed the frequency with which a new word appears to be finding its way into the public statements of Republicans and their wealthy clients these days. The word is 'uncertainty.'
Wednesday morning one week ago I heard the representative of a trade group, who is lobbying for the repeal of certain regulatory paperwork requirements to which some businesses are subject, employ the 'u' word in justifying the sought repeal. Businesses, he said, were faced with 'uncertainty' insofar as they had to fill out such forms, which is unfortunate indeed during slump times when firms are still hesitant about new investment outlays and hiring, and when banks are in any case hoarding.
The weekend immediately preceding that Wednesday, I heard House Minority Leader Boehner employ the same word in attempting to justify new lower tax rates for millionaires and billionaires. Allowing the astonishingly large 2001 Bush tax cuts for millionaires and billionaires to lapse early next year as the 2001 legislation itself mandated, he claimed, would induce 'uncertainty' among business executives, which would be unfortunate indeed during slump times when firms are still hesitant about new investment outlays and hiring, and when banks are in any case hoarding.
Prior to that weekend, I heard many additional uses of the 'u' word from other Republicans and their clients, in each case to justify some benefit -- either in pecuniary or in regulation-evasive form -- for millionaires, billionaires, or 'small businesses.' Neil this past Friday catalogued some from this past summer. Hmm, I wonder, what -- apart from the government to the wealthy, per these Republicans' wishes -- gives?
To be perfectly candid, my first, albeit naive and fleeting reaction upon hearing the word 'uncertainty' employed with such abandon by Republicans was something on the order of, 'wow, this is welcome news!' For, as many of us who have sought to diagnose either or both the nation's recent financial woes and its continuing economic slump have been arguing, our financial markets and our macroeconomy are very Keynesian things: 'Keynes Chapter 12,' or 'Knightian' uncertainty as distinguished from actuarial risk is by far their most salient characteristic in times of boom and in times of bust. And many mistakes made by Republicans and 'moderate' Democrats alike where the regulation of financial markets and the framing of fiscal and monetary policy are concerned, for their part, are attributable precisely to these people's not having hewed to, or in most cases so much as noticed, the distinction. (For more on its significance, see my post here in September of last year, on Keynes, Richard Posner, and James Dean.)
The false belief that rational expectations on the part of economic actors -- which might indeed be formed and acted upon by most -- are always accompanied by a capacity to assign determinate probabilities to all future contigencies, for example, seems to have led most Republicans and many Democrats to think silly things. (See the aforementioned post.) They appear to have supposed, for example, that bubbles and busts in financial markets are incompatible with individual rationality and informational efficiency in those markets. And they have sometimes suggested that sundry monetary and even fiscal policy changes are doomed to ineffectuality simply by dint of affected parties' capacity precisely to anticipate, calculate, and 'discount' -- that is, in this case, to sidestep or otherwise neutralize -- with precision all effects of those changes in advance. A favorite trope, that one, of those who brouht you the so-called 'rational expectations revolution' in macroeconomic 'thought' late in the 20th century. Such suggestions have proved erroneous precisely by dint of their resting upon the conflation of uncertainty with actuarial risk.
Against this backdrop, then, it naturally seemed good news, at least at first, that Republicans were now embracing the category of Knightian uncertainty -- particularly as their party had conspicuously embraced the thinking of the aforementioned 'rational expectations' types in the 1970s and especially '80s. So 'if only,' one thought, 'Alan Greenspan and his acolytes had discovered the "u" word ten or more years ago! But better late than never.'
And yet now comes a puzzle: Uncertainty, or even risk for that matter, seems to have no application what ever to the Bush millionaire/billionair tax cuts, as Neil nicely brought out last week. Nor does it seem to have much if any bearing on regulatory paperwork. After all, what could be more certain, or even more measurable, than the changes long set -- set for ten years! -- to take place in the taxes owed by millionaires and billionaires come 2011? And what could be less uncertain than what is required, in the way of paperwork, by legally prescribed boilerplate forms? In view of the manifest determinacy and long-anticipated occurrence of these now finally imminent occurrences, the affixing of the predicate 'uncertain' to them by Republicans right now seems initially curious indeed. Is it just a case of poor word-choice?
I think, sad to say, that there might be a better explanation. The first clue emerges when we recall certain rhetorical and related political strategies characteristic of the Bush campaign in 2000. Further, supporting clues emerge when we turn then to political strategies employed by both the Bush administration and the Republican Congressional caucus, from about 2002 through 2008. Here is the tentative story, which I admit to be merely conjectural for now:
To begin with, first recall a puzzling exchange that occurred during the first Bush-Gore presidential debate in the autumn of 2000. In discussing candidate Bush's then-proposed massive tax cut plan and Social Security privatization scheme, Gore cited the recklessness of both proposals, and provided precise CBO estimates of the likely fiscal and budgetary impact of the tax cut plan in particular. Bush for his part had no rebuttal at all. He offered no reason to doubt the budget projections, and offered no contrary figures of his own. Instead he said, simply, 'fuzzy math,' while wearing one of the more fuzzy expressions I've ever seen on a human face. (He proved capable of continuing to wear it for many years thereafter.)
In thinking about Bush's surprisingly weak response (even for Bush) at the time, it occurred to me that what Bush was doing was probably no more than acting upon a very well Rove-calculated strategy. The aim, I hypothesized, was effectively to 'implant,' by suggestion, a perception of fuzziness or indeterminacy in the minds of debate viewers, whom Rove probably had (not implausibly) guessed were innumerate and readily manipulable where attitudes toward budget projections were concerned. 'Get Bush conclusorily to ascribe fuzziness and look puzzled himself,' I surmised Rove to have probably calculated, 'and you will effectively exploit viewers' mirror neurons and get them to experience something like fuzziness and indeterminacy, and thus to discount Gore's knock-down argument.' How I then yearned for a 'Senator, you're no Jack Kennedy' moment -- in this case, some such rejoinder from Gore as 'the arithmetic's clear, Mr. Governor, any fuzz here is strictly in your confused head.'
My provisional interpretation of the bizarre 'fuzzy math' trope later found what struck me as corroboration in the subsequent strategy of global warming skeptics and their deep pocketed petroleum-extracting sponsors, to finance and promote sundry self-styled 'studies' purporting to show that the case for climate change is still undecided and up for grabs. Make it look as if there's still real 'debate,' on this question, as Neil has noted these people to reason, and you will induce in them doubt and uncertainty about what to believe, hence induce them to fall back on stasis. For one tends, where there's doubt, simply to keep doing what's been done -- a Burkean variation on the tendency that Keynes noted on all of our parts to assume, absent affirmative reason to the contrary, that tomorrow will be more or less much like today.
So here is my conjecture about Republicans' recent discovery of the 'u' word: I'll bet the Republicans are now acting, pursuant to deliberate strategy, to instill the uncertainty they pretend attaches to expiring millionaire/billionaire tax cuts and to all forms of externality-preventive regulation. They're aiming to do so, in part, just as Rove did in programming Bush to say 'fuzzy math' and look, well, fuzzy-faced in that first debate. That is, again, by 'communicating' (in the 'communicable disease' sense) or inducing that sense of uncertainty by suggestion, in effect commandeering our mirror neurons -- the things that lead us to smile when we see smiling, to tear up when we see weeping, and to fear when we see others fearing -- to manipulate our very perceptions and mood.
Republicans also appear to be aiming to do this -- to foment slump-sustaining uncertainty -- by another, by now more familiar and complementary means. That is by randomly obstructing most pending recovery-facilitative legislation, while occasionally letting some through. For erratic governance of course does constitute a ground for uncertainty. The party of 'no' is in this sense holding our economic recovery hostage.
Why would Republicans do this? I can see two related possible reasons: First, as Mike and I have discussed together in recent days, by so doing the Republicans can (falsely) attribute the uncertainty that many now Keyesianly -- and rightly -- blame for our ongoing hording and slump, to what are quite unrelated factors that the Republicans are bent upon changing for reasons having nothing to do with the health of the economy. Tax cuts for millionaires and billionaires, for example, only fuel speculative bubbles, not real investment or economic growth. For millionaires and billionaires manifest very low marginal propensities to consume. But Republicans nevertheless have other reasons to channel money to these -- their bankrollers -- notwithstanding their harm to the broader economy.
Second, by actually causing, instilling or fomenting continuing uncertainty, hence continued economic slump, Republicans can enhance their own electoral prospects. That is the case precisely by dint of the public's oft-encountered Pavlovian tendency (itself actively encouraged by Republicans but also by others when out of power) to blame whoever is currently in the White House for the economy's current performance.
If I am right about this, then Republicans effectively just are the disease for which they puport to be offering a 'cure,' as Karl Krauss might have put it. They are the cause of continuing slump-protracting uncertainty, hence the cause of continuing slump. And that is a shame -- not to mention a dangerous game. It is even more dangerous, in view of the present state our economy, than was Bush's bizarre claim in 2005 that the Social Security trust fund required privatization because it contained 'only IOUs.' As if Federal Reserve notes -- yep, dollar bills -- didn't themselves rest on trust for their value, and as if U.S. Treasury bills had not long been the gold standard, virtually equivalent to cash, where safe investment vehicles are concerned.
Is my conjecture correct, then? Are the Republicans in fact aiming to cause the very uncertainty -- and with it the very dangers -- that they ridiculously attribute to long-anticipated phase-outs to destructive and budget-busting millionaire/billionaire tax cuts from 2001, and to familiar boilerplate regulatory requirements? Well, one reason to think so is the obvious implausibility just mentioned -- that of the link they attempt to draw between continuing uncertainty on the one hand, and the tax cut phase-out and regulatory boilerplate on the other. Another reason to think so is the Republicans' regular resort to fear -- 'terrorism uncertainty,' let's call it -- as a political strategy from 2001 through 2008. Against that recent historical backdrop, the Republicans' late discovery of Knightian uncertainty looks simply to be a retooling of the by now shop-worn terrorist fear strategy for use in the economic domain, capitalizing on the recent rediscovery of the wisdom of Keynes in so doing to boot. Surely it isn't implausible to hypothesize some such strategy as this on the part of the Republican party. If you are finally learning that 'it's the economy, stupid,' after all, but at the same time are still inclined to appeal to anger, fear, and others of our baser attributes rather than to hope, charity, and solidarity, then inducing Knightian uncertainty is for you. It is your Terror Paranoia 2.0.
However plausible my conjecture, though, the real clincher -- what would make clearest of all that the Republicans are up to what I'm supposing -- would be our finding another nice memo from Frank Luntz. Mr. Luntz, recall, is the current crown prince of negative Pavlovian political strategy among the Republicans, whom we've found occasion to notice before here at DoL. Just as Luntz counseled Republicans simply to repeat, over and over and over again, the word 'takeover' in connection with health insurance reform, and then the word 'bailout' in connection with finance-regulatory reform, he might well have counseled, in a similar memorandum, that Republicans now begin to incant the 'u' word over and over and over again in connection with millionaire/billionaire tax cuts, as well as with all forms of externality-preventing regulation. Let us, then, look for this memo. It's virtually certain to be out there!
And while we are searching, as an antidote to this latest round of Republican anger-, fear-, and 'uncertainty'-mongering, let us recall the level headed wisdom of this great Republican of the not so distant past, who acted to calm the nation at another time of politically prompted paranoia: . And let us remember the wisdom of this great Democrat as well, who presided the last time we lived through economic times like those we're now seeing. When he said that all we have to fear is fear itself, he wasn't just playing on words. He meant it. Contrast that with today's Republicans, who seem to fear, most of all, that you won't be afraid come November.
As someone whose law school was recently compared to this artist by the Wall Street Journal -- here: http://blogs.wsj.com/law/2010/02/03/the-cornell-law-mystery-continues-or-why-cls-is-like-lady-gaga/ -- I suppose I am under something akin to a fiduciary duty to learn more about Lady What's-Her-Name. But alas, I doubt I could pick her out of a lineup that included herself, Brittney Spears, Madonna, or even Debbie Harry in some of her past guises.
As it happens, I often am plagued by this problem, and in a much more general way, where celebrity is concerned. In the past, for example, I have wondered 'just what's the difference between Rob Lowe, Matthew Broderick, and Tom Cruise, anyway' or even among Lee Iacocca, Ed McMahon, and Helmut Kohl for that matter. Incessantly assaulted by their vaguely cross-reminiscent images as I've been, I have done what I suppose any creature with limited RAM would do: I've made them share memory space, so as to leave room for other fare.
This tendency of mine, I admit, might be partly the product of a hermit's or nerd's or curmudgeon's sensibility. After all, is there really any doubt that Helmut Kohl and Ed McMahon were not the same person? They didn't even occupy similar roles, for heaven's sake! But at least where the celebrities in question are celebrated for little more than their 'fashion statements,' I think my lumping of folk together might be pardonable. For it does seem that most who are known for these things tend to recycle earlier such 'statements' all of the time. They invite assimilation to others.
At last night's Video Music Awards (VMA), for example, a number of notables whom I've never happened to note or notice before evidently wore something called 'garbage bag dresses' -- outfits made to look like large black plastic refuse bags, as if the wearers had been dressed by the 'Man from Glad.' See, e.g., here: http://celebs.gather.com/viewArticle.action?articleId=281474978515060 . And so, well, 'how delightfully nostalgic,' I thought upon hearing about this today. For I recall reading, in a memoir of hip 1970s New York, that Debbie Harry used to wear something like this, fashioned in her case of real garbage bags, at Max's Kansas City on Park Avenue during what was one of the coolest periods in recent history. (Here's a somewhat disppointingly glitzed version of the outfit as she wore it on a British television program in the 1980s: http://www.youtube.com/watch?v=dYON9Uv9MBU .) And those were times that I sometimes wish that I could have been part of. (Steve's and Eduardo's and my colleague Kevin Clermont, I am told, used to attend some of Andy Warhol's factory events, at which the Velvets played and Gerard Malanga and Edie Sedgwick danced like ecstatic lunatics. (Here's what it would have looked like to Kevin: http://www.youtube.com/watch?v=iNwp4nNTeJg&feature=related .) Yet another respect in which I can only envy, never equal, the man!)
Most talk of last night's VMA fashion, however, has centered not around garbage bag apparel, but yet another fashion statement on the part of the aforementioned Lady What's-Her-Name -- in this case, a 'meat dress.' Here are two images: http://www.huffingtonpost.com/2010/09/13/lady-gagas-meat-dress-photos_n_714117.html .
My first thought upon hearing this today was, 'hey, that's my idea!' The reason, you see, is that some bandmate/artist friends and I, during the brief period that we were sort of 'cool,' conceived a music video back in the 90s in which we would wear something we called (simulated) 'meat bikinis.' And, wouldn't you know, it turns out that Lady What's-Her-Name has worn one of those too, on the cover of some version of Vogue magazine: http://www.huffingtonpost.com/2010/09/07/lady-gagas-meat-bikini-vogue-hommes_n_707357.html .
Apart from feeling a bit robbed, however, I didn't take any offense at this 'statement.' Yet others have. If you click on the link just prior to the last, for example, you will note that HuffPo is polling readers on the matter, a majority of whom thus far are deeming the outfit 'offensive' rather than 'awesome.' (I'd simply call it 'bloody,' and perhaps a bit more 'fatty' than I'd have thought a modern fashion-conscious celebrity to be comfortable with.)
What I can't quite figure out is, why is it that so many evidently find Ms. Gaga's outfit offensive? Do not scores of millions of Americans, day after day, wear meat jackets, meat shoes, meat watchbands, and the like? Don't others sit daily on meat seats when driving their expensive sportscars, read meat-bound Bibles and other holy books, and, of course, consume meat meals all the time? If so, then don't most Americans do daily more or less the same thing that Ms. G did last night, only moreso and more regularly? Is there any more distinction between her and us than there is between Mickey Rourke and Bruce Willis?
One possible distinction between Lady G and others was proposed by Mike Dorf today in an email conversation with Sherry Colb, moi, and a number of other conscientious objectors to animal exploitation. It is that the objectors might be objecting to the sheer waste involved in Ms. G's couture, which waste they do not perceive in their own consumption of animal products -- since we all must, after all, dine and protect ourselves from the elements.
I think Mike's conjecture quite as plausible as it is characteristically charitable. But I can't help but think there's another element at work here as well: Perhaps those who object to Ms. G-g's apparel are especially disturbed by the waste it involves precisely because it occasions their (at least subconsciously) noticing the waste involved in their own practices. For, as Mike also suggested in the mentioned conversation today, as well as in earlier weblog posts of his own, to kill our fellow creatures for clothing and nourishment is itself wasteful, not to mention unhealthy, inasmuch as we're able to nourish and clothe ourselves now without resort to such expedients.
Perhaps some such thought-provocation as this is what Lady G had in mind in her choice of apparel last night. Certainly it is what my band/artist friends and I had in mind with the video I mentioned -- though in this case the point was to drive home not only the animal-exploitation 'message,' but also a more general woman- and even humanity-exploitation message that magazine cover and mass media life-culture had brought to our not very subtle young minds. (We were great fans of Guy Debord's situationist manifesto, The Society of the Spectacle, and convinced that mondern American life had become little more than a bad television program with lots of canned laugh-tracks, baddabooms, impossibly emaciated barely clad women, and comical 'tragedies' such as the fraying of a family's shag carpet, or the falling and breaking of a lava lamp.)
As it happens, though, I doubt that any of this is what Ms. Gaga had in mind. But who cares? If the apparel gets people to thinking, or to confronting their own less-shocking-only-because-more-familiar practices, it will have served a useful purpose. And that is surely one function of art. Ms. G's is a lumpen, mass-marketed sort of art, to be sure, but a 'prole art threat' is no less potentially salutary for that: http://www.youtube.com/watch?v=kvG5fUDTaFc&feature=related .
It's great to be reminded of Steve's terrific post on inequality from this past July. I want in particular to recommend the double-issue of The Nation that Steve cited that month. It is available here: http://www.thenation.com/article/36894/inequality-america . In addition to Reich's piece, there are thoughtul pieces by Dean Baker, Jeff Madrick, and others.
Reich's mention of a possible link between growing wealth- and income-inequality on the one hand, and asset price bubbles and busts -- hence recessions and depressions -- on the other, is especially worth noting and exploring. Two old acquaintances of mine, Dave Moss at the Harvard Business School, and Richard Freeman with Harvard's Economics Department and NBER, have in separate empirical studies found a pronounced correlation between wealth- and income-inequality on the one hand, and financial asset price bubbles and busts on the other hand. The link is robust across continents and centuries.
The mechanisms that Moss and Freeman posit to account for the correlations, however, I think inadequate. They speculate that as the rich grow richer, they are able to procure laxer and laxer regulation of financial markets. While there is doubtless some truth in that, I think the story inadequate because I don't think asset price bubbles are the product of lax regulation so much as they are the product of central banks' and other government organs' failure to recognize the sense in which bubbles and bursts are collective action problems, and their consequent failure to use monetary and tax policy, respectively, to address those problems on behalf of the collectivity. (I've harped on this point before, and linked to some articles I've written on it, so I won't harp much now.)
If I am right about this, then the role that wealth- and income-inequality play is that of instigating and fueling the collective action problem that is the asset price bubble itself. More specifically, the story is a Keynesian one, in which greater wealth yields a diminishing marginal propensity to consume and a correspondingly higher marginal propensity either to invest or to speculate. The first of those developments of course yields lower consumer demand and hence lower working class incomes and growing consumer debt meant to maintain purchasing power. The second for its part yields hyperinflation in financial asset markets -- a vicious cycle of price rises that can only be slowed either by (a) higher interest rates or tightened money supplies that risk worsening the lower consumer demand and lower working class income problems, or (b) higher capital gains taxes that tamp down the incentives of rich speculators to speculate and at any rate channel the 'winnings' to the general public.
A colleague and I are now at work on an empirical project aimed to test this hypothesis. Details to come. But what can be said even now is that it is somewhat suprising that so few seem thus far to have considered this proposed mechanism. Reich in this respect represents a refreshing change of pace. Thanks again to Steve for drawing our attention to him.
Rick Garnet and David Nikol posted nice, thought-provoking sets of comments to my recent post on marriage over at Mirror of Justice. I commend them to all RLL readers. It occurs to me that RLL readers might also be interested in a somewhat modified and more fully elaborated rendition of my attempts there at replying.
Rick asks, among other things, whether a priciple per which states cannot rationally deny thinly defined civil marriage rights to same-sex partners might not also prohibit states from denying such rights to larger family units. David, for his part, points out among other things that marriage in past times used to be more a matter of state than a matter of religious concern. He also suggests that polygamy is at least one form of non-nuclear familial arrangement that is socially harmful. In consequence, Rick and David severally take issue with my suggestions that (1) we perhaps ought to distinguish sharply in law between civil union and ecclesial marriage, with the former contoured by Equal Protection law and the latter enjoying far-reaching autonomy under Free Exercise Law, and (2) that one upshot of proposition 1 would be that the state might best be viewed as obligated not to restrict civil unions even to couples, let alone to heterosexual couples. I've a few tentative thoughts in response:
First, I don't know much about what role marriage or its analogues played in earlier religious traditions or in the earlier phases of presently continuing religious traditions. Nor do I know much about the political, as sometimes problematically distinguished from the religious, history of marriage many centuries or several millennia back. I am under the impression, however, that ecclesial courts handled marriage and family law matters in the not so distant past, with the 'king's' courts handling matters of more unambiguously state-style concern. (Didn't Chancery, for example, handle these matters in England?) I also believe, in any event, that a liberal polity such as our own aspires to be, in which all citizens are to be taken for autonomous moral equals irrespective of their faith commitments, bears a special burden of justification when it pursues policies that tend, and especially policies that intendedly tend, to support or encourage some living arrangements over others. Even a very retro-minded type (as I myself tend to be in some contexts), for example, might well be troubled by state favoring of 'nuclear' families over 'extended' families. And certainly a liberally minded type (as I tend even more strongly to be), by way of another example, will be troubled by state judgements to the effect that 'blood is thicker than water,' or any cognate judgement that systematically favors conjugal unions over more 'intentional' family arrangements, including such as are larger than 'nuclear.'
Second, I'm no expert on polygamy, and certainly I don't like the idea of 'two [or n] girls for every boy,' as I guess Jan and Dean had it in the beach movie days. After all, the corrollary would seem to be 'half [or 1/n] a boy for every girl,' which seems in potential at least to be a bit inequitable, to say the least. It is interesting, however, that this form of familial arrangement seems to have prevailed in the earlier days during which the Bible was composed, rendering it something of a puzzle that self-described 'Christian conservatives' have racked up so nasty and bigoted a track-record in the 19th century persecution of Mormons in the US. In any event, my own (very much provisional) tendency is simply to think of polygamy and polyandry as matters of vigilently enforced contract law, in which the informed consent of the truly autonomous contracting parties would constitute the principal legal - not to mention ethical - question raised by any arrangment. Presumably many who have been engaged in latterday polygamous or polyanderous familial arrangements would be found to have been illegitimately exploited under such a regime, since so many seem to have been pushed into those arrangements prior to having formed autonomous selves. But so long as the law took the autonomy and equal bargaining power requirements truly seriously, I'd see little obvious reason categorically to prohibit non-nuclear familial arrangments tout court. (Didn't Fannie Flagg's novel, 'Fried Green Tomatoes,' involve a less problematic such arrangement? I've not read the novel, but seem to recall being told that it did.)
Another, third thought in effect generalizes the view that I think might be implicit in the first two: One feature that I think constitutive of the peculiar genius of the commonlaw of (business) partnership is the fact that a p'ship can simply evolve into being, out of the temporally extended behavior of the parties to a p'ship-like relation. There need be no formal agreement in writing or even in speech. People can 'fall into' partnership, as I often think of it. It occurred to me last night, in thinking more on this subject, that the old institution of 'commonlaw marriage' might then have constituted a straightforward counterpart in the realm of domestic arrangement. I'll have to ask Eduardo's, Steve's and my splendid colleague, Cynthia Bowman, for further clarification on this, as she's truly expert on the subject. But in any event, if the speculation is correct, then just as a commonlaw business p'ship can include more than two p'ners, perhaps a commonlaw domestic p'ship should be able to do so as well, so long as the 'capacity to consent' is as verifiably present in the one case as in the other. And if so, then there would seem no reason not to permit statutory domestic p'ship to do likewise, again as in the case of (now statutory) business p'ship. The potential legal and moral issues involved seem to be much the same, after all -- all of them straightforward contractual issues so far as 'internal,' governance relations are concerned, and straightforward tort and b'ruptcy issues so far as 'external,' third party relations are concerned. It's all about the special vulnerabilities to which people internal and external to p'ships become prone in virtue of the p'ship relation itself. It's not clear to me that such vulnerabilities can only be dealt with by categorically requiring all p'ships to have no more than two members, let alone to heterosexual members. The only possible argument to the contrary that comes to mind would sound in the infeasibility, as an adminstrative matter, of effectively policing the bona fide informed consent of the putatively autonomous parties. (Note that a similar argument seems to be proferred by opponents of doctor-assisted suicide. The claim is that it's just not feasible for the state to ensure bona fide consent. Is this true? It seems to me this might constitute the proverbial $64k question here.)
That segues into a fouth and final thought for now. As just noted, business p'ship law is largely about the obligations the p'ners incur to one another and to third parties by dint of the relations inter se that they fall into, given that those relations give rise to new vulnerabilities. Presumably commonlaw marriage and domestic p'ship law have been and would be largely the same, at least in part, irrespective of the number of parties to the 'relational contract' involved. Insofar as presentday domestic p'ship law is instead about benefits from fellow p'ners and from third parties to which p'ners become entitled by dint of their relations to their p'ners (inheritance, insurance, hospital visitation rights, etc.), well, that's long been statutorily determined on an ad hoc basis, so far as I can tell. I see no reason why that would not continue, with various commonsense adjustments made in response to unanticipated problems that arise in the face of the sundry alternative domestic arrangements that might develop, were we to recognize domestic p'ships that included more than the now most familiar dyadic and 'nuclear familial' forms.
My guess is that many RLL readers will find food for thought in the trenchant observations made this past weekend by Cardinal O'Brien of Edinburgh. I'm not well acquainted with the Cardinal, but certainly experience considerable sympathy with the claim that the US is included among 'invidious company' where its penal regime is concerned.
Cardinal O'Brien's observations are reported here: http://www.bbc.co.uk/news/uk-scotland-10905562
Cross posted at Mirror of Justice
Mike Dorf has a characteristically illuminating analysis of the Prop 8 decision over at Dorf on Law, as well as (at fuller length) on Findlaw. The first is located, and the second is accessible, here: http://www.dorfonlaw.org/2010/08/rationality-review.html .
Mike agrees with the outcome, but is troubled by the means by which the Judge got there.
For what my own higly inexpert opinion is worth, I continue to wonder why we do not treat civil union as the apt civil category, and treat marriage solely as the religious category that I've always thought it to be. In such case it would be hard - for me, at any rate - to see denial of civil union to any couple, of sound mind that has reached the age of consent, as capable of surviving rationality review. And it would be just as hard - for me, at any rate - to see any justification for state interference with ecclesial organizations' defining their more specific conceptions of the separate category of marriage in what ever manner was consistent with their theologies. But I've written at some length on this already, so I won't belabor the point here.
Here's a post from last November, complete with amusing video clip from a wonderful film: http://www.dorfonlaw.org/2009/11/tale-of-two-marriages.html .
Cross posted at Mirror of Justice
Our Michael has initiated an interesting discussion over at Mirror of Justice, by posting there a recent BBC interview with Les Green, Simon Blackburn, Archbishop Rowan Williams, and others about Pope Benedict's expressions of concern about a 'dictatorship of relativism' (HT Brian Leiter's weblog). The discussion has loosened a memory in my poor head, some reflections on which might be of interest to the RLL community.
When I was young, innocent, and hopeful, a conversation broke out among several friends and myself about the old 'Nazis marching in Skokie' case, which I had read about in connection with a history of the ACLU. (The case was said to have deeply divided that organization.) Some of my friends, with whom I was inclined to agree, thought if fitting for the city to prohibit the march. Other friends, with whom I was inclined to disagree, argued that the prohibition was a violation of the Nazis' First Amendment rights. (Isn't that rich? No 'clean hands doctrine' here it would seem!) This faction further argued, in effect, that it was incoherent for those of us who thought the ban warranted to favor it in the name of tolerance, since in so doing we were ourselves being, they asserted, intolerant.
I recall feeling great irritation with this latter observation, and I said as much. It just couldn't be licit, I thought. For it seemed to me that, as an argument, it must surely have 'proved too much.' After all, if one could not, on pain of self-contradiction, refuse to tolerate any instance of intolerance itself, then presumably one would have to tolerate everything. And then that would open one to self-contradiction. For in 'tolerating everything' one would be tolerating, among other things, intolerance -- toleration's contrary.
So were both sides of our juvenile argument committing themselves to incoherence, I wondered, the anti-marchers by being intolerant of intolerance, hence acting contrary to their own professed anti-intolerance, and the pro-marchers by tolerating intolerance, hence affirming their own contrary? Could one simply not speak coherently of tolerance at all in ethically oriented conversation?
As I cast about for means of dissolving this conundrum in the course of our lengthy discussion, I hit upon a tentative solution that I later recognized to have been a primitive grope in the direction of Kripke's response to the Epimenides (the 'paradox of the liar'). The Epimenides, as many here will recall, is the paradox occasioned by a statement's apparent self-denial -- a statement of the form 'this statement is false.' The putative paradox stems from the statement's being false if it is true, and true if it is false -- assuming, of course, that it must be one or the other and not both. (That assumption turns out to be false.)
Now intuitively, Kripke's response to paradoxes of this form, if I'm remembering it rightly, involves distinguishing between what he calls 'grounded' and 'ungrounded' statements. A grounded statement, again if I recall this correctly, is about something other than a statement. It's about dogs, or cats, or what ever, anything other than statements. So long as you have one of those, then any statement about that statement, or about a statement about the statement about the (grounded) statement, or ... , will itself be grounded as well. Otherwise, not. If one then stipulates that only a grounded statement is possessed of a truth value, one defuses the Epimenides by observing that the self-denying proposition in question is ungrounded, hence possessed of no truth value at all, true or false, hence not paradoxical in the 'both true and false' sense.
(Kripke's 'ground' serves, in the language of topology, as a 'fixed point' for any hierarchy of statements about statements about statements about ... And Kripke makes use of that fact in a clever deployment of Brouwer's fixed point theorem to derive interesting semantic conclusions about grounded and ungrounded hierarchies of statements -- again, assuming I recall this correctly. But my own purpose is much simpler, so enough about that.)
Now my own youthful proto-Kripkean response to the 'tolerance' conundrum worked in much the same way as Kripke's response to the Epimenides: 'Tolerance,' I speculated, always carried what I then called a sort of 'argument place' with it. It always implicates what the grammarians call a 'direct object.' One does not simply 'tolerate.' One 'tolerates x,' or 'tolerates y,' etc. And there surely are things -- x's -- that it is right to tolerate, things that it is wrong not to tolerate, things that it is not right to tolerate hence wrong to tolerate, and so on. Further, assuming some x that it is right to tolerate and wrong not to tolerate, it surely will often be right not to tolerate intolerance of that x. At any rate it will need not be incoherent to deny toleration to such instances of intolerance.
Well, you see where this is going, I trust. The first moves in my arguments with my pals over the Skokie case, I decided, were 'ungrounded,' in the sort of pseudo-Kripkean sense I'm appealing to here. My pals and I were speaking of 'tolerance' in abstracto, without attending to the argument place -- the x, y, or what ever -- that the word 'tolerance' always opens. Hence we experienced a strange sort of vertigo in the early stages of our back-and-forth. The conversation was unteathered, unanchored, unmoored. Once you attend to the argument place, by contrast, things grow quickly more tractable. For you recognize that you must 'ground' the discussion before it will take you anywhere. And once you have done that, you might actually make headway. At the very least, you might figure out what you actually disagree about.
Triumphantly bringing my tentative solution to bear on the Skokie case, I decided that what we were actually disagreeing about was a doctrinal or prudential question rather than a logical or even ethical question. I reasoned as follows: If it is wrong for the Nazis not to tolerate people of a certain ethnicity, then surely it can be perfectly in order as a logical and ethical matter not to tolerate this Nazi intolerance. At any rate it will involve no incoherence, and any argument on behalf of the Nazis' right to march will accordingly have to proceed from something better than the accusation of incoherence. For it was not 'tolerance itself' -- what ever that might mean -- that was rightful or wrongful on the part of the Nazis or their antagonists. It was 'tolerance of [this ethnic group],' 'tolerance of [this attitude],' 'tolerance of [this behavior]' that is rightful or wrongful. And what the Nazis refuse to tolerate it is wrongful not to tolerate, such that the refusal to tolerate the intolerance in question can be altogether rightful. It might still be constitutionally problematic -- though I did not and do not think so -- but if so this would be a matter of the legal doctrine not logic.
Now, how does this bear on the conversation here? I think in this way: Much of the professedly moral opining that many in Pope Benedict's Europe deplore, I suspect, expresses intolerance of things about which most of us would agree it is wrongful to be intolerant. There seems to be much intolerance afoot in some quarters, for example, of girls and women who wish to participate on equal terms with boys and men in educational and vocational settings. My guess is that most of us in 'the West,' be we generally 'leftward'- or 'rightward'-leaning where political questions are concerned, agree that instances of this form of intolerance are not to be tolerated, either as an ethical or as a legal matter. And there is no incoherence, nor need there be any bigotry or relativism, in any such judgment.
All of us, 'left' or 'right' or 'in between,' who find sexism of the specified type intolerable are simply taking a universally applicable human right seriously -- 'absolutely' seriously. We are not thinking as 'bigots' or 'relativists.' And we might even be right, moreover, in some cases, to describe certain instances of the particular form of intolerance itself as bigoted or relativist -- if prompted or defended, say, by reference to a putatively relevant 'fundamental difference' between women and men, or to a putative 'religious' or 'cultural' right to subordinate women.
Other instances of the moral opining to which I refer, by contrast, express intolerance of things about the morality of which reasonable people still disagree -- be they in Europe, the Americas, Africa, Asia, or anyplace else. There are some, for example, who appear to take sexual orientation to be more a matter of behavior or 'lifestyle choice' than of genetically determined or deeply-psychologically-rooted identity. There are others who appear to see things the other way round.
To those who see things the other way round, it will of course sometimes be tempting, in careless moments, to view proponents of the contrary position as 'bigots.' For it will seem to them, prior to reflection, that what they take for granted as an ineluctable characteristic on all fours with ethnicity is not being tolerated. To those who see sexual orientation as merely a 'lifestyle choice,' by contrast, it will sometimes be tempting, again in careless moments, to view defenders of 'gay rights' or 'gay marriage' as 'relativists.' For it will sometimes seem to them, again prior to reflection, that their opponents think 'anything goes' where behavior and 'lifestyle choice' are concerned. But in fact bigotry and relativism are apt to be neither here nor there in these cases. For in fact most on both sides will be absolutists about moral and ethical matters, and in agreement that it is ethically wrongful to view persons as subordinate on the basis of ineluctable attributes.
In cases of this latter sort, then -- cases in which reasonable people continue to disagree about moral (and perhaps related metaphysical) questions, rather than cases in which reasonable people are disagreeing with unreasonable people -- I think we are probably well advised to take special care not to think of tolerance in abstracto, and hence not to play fast and loose with charges of 'bigotry' or 'relativism.' For what these cases are ultimately about is whether some specific act or attribute is tolerable or intolerable. And it is only by keeping one's eye on the real ball -- that is, by fixing attention on the act or attribute in question -- that we keep the door open to real progress. I fear that labeling, as 'bigots' or 'relativists,' those who view the ball differently than we do is, all too often, an indicator that our eyes have strayed from the ball, and that the discussion has accordingly become ungrounded.
I hasten to add that I do not in saying these things mean to imply that I think Pope Benedict's expression of concern about a 'dictatorship of relativism' to be ungrounded in this sense. For, truly, I do not know what he had in mind. Nor do I mean to imply that I think any particular charge of 'bigotry' now before my memory to be ungrounded. I've little doubt that it's perfectly correct to say of many unreasonable people that they hold bigoted views, and of many unreasonable people that they hold 'relativistic' and hence ultimately incoherent views. But I do think by far the greater part of humanity is reasonable, and that none of these reasonable people are bigoted or relativist. They simply continue to disagree, pending further argument on the actual merits, on a number of very specific moral and ethical questions. And I can't help but hope -- yep, I'm still hopeful! -- that in keeping our eyes on those 'balls' we might still move them forward.
In response to some interesting back-and-forth at the Mirror of Justice blog between Robby George, our own Michael Perry, and others, I have posted the following thoughts, which might be of some interest to RLL readers as well:
Though one might laud our (early 1930s through mid-1990s) American system of mortgage finance from many nominally distinct points of ideological view, I have long been struck by how well this system cohered, until recently, with the Catholic 'distributist' ideals of such as Chesterton and Belloc. Advocates of distributism, some MoJ readers will likely recall, cast their 'ism' as a sort of 'third way' between perceived capitalist excess on the one hand, and perceived communist excess on the other. The form of excess shared at those putatively opposite ends of what was actually a de facto circular 'spectrum' (the 'end-points' actually touched), of course, was the tendency for wealth and property distributions to skew over time in favor of oligopolistic or oligarchic elites -- that is, corporate or party elites -- who often came to control the instrumentalities of the state to their own advantage. The remedy, in the view of the distributists, was for a republic of small holders to employ the instrumentalities of the state to maintain itself and its character over time, essentially by ensuring that property not only remained privately owned, but also -- and quite essentially -- broadly owned. (The pre-imperial Roman republic did just that for centuries through its law of property. Bill Simon at Columbia has written wonderfully on this.)
Many Americans are aware that a vision much like that held by the distributists, in this case under the rubrics of 'Jeffersonian' or 'yeoman' republicanism, animated early colonial American reforms to the English common law of property (perhaps most notably the elimination of primogeniture), as well as the Lincolnian Homestead and Land Grant Acts (yes, there were multiple such enactments, clear into the 20th century). Fewer seem to be aware of the role played by the late Hoover and subsequent Roosevelt administrations in realizing the same broadly distributist ends. It is the latter two administrations that brought us, respectively, (a) the 1932-vintage Federal Home Loan Bank Board, as well as, in consequence, the savings and loan industry that the Board effectively regulated and enabled to thrive until deregulation during the Reagan years; (b) the 1934-vintage Federal Housing Administration, which invented mortgage default insurance and the 30-year, fixed-rate mortgage, upon which FHA insisted as a condition for extending default insurance, both of which rendered mortgage credit much less expensive; and (c) the 1938-vintage Fannie Mae, which invented and 'made' the secondary market for mortgages by purchasing, with mixed private and publicly supplied capital, now nationally standardized (yep, those 30-year, fixed-rate) mortgage instruments from home loan banks in need of liquity, which rendered loanable funds all the more inexpensively available to home-buyers.
The upshot? We moved from being a society in which fewer than 40% of American households owned their own homes circa 1928 (because loan-to-value ratios were typically well below 50%, down payments in consequence had to be huge, and mortgage debt had to be refinanced every two to three years) to one in which nearly 70% did by the late 1970s.
What went wrong? Long story, but suffice it to say that the destruction of the deregulated savings and loan industry opened a vacuum into which stepped a new industry of 'mortgage banks,' which were not banks at all and accordingly were not regulated as such, over the course of the 1990s. This new industry pioneered new mortgage products, which did not meet FHA standards, just in time to exploit a new tidal wave of cheap credit brought to you by (a) a Greenspan-led Fed on a bender, and (b) a cash-flush China and set of OPEC countries looking for places to park their (cheap, toxic) export- and petroleum-bought dollars. That of course brought us a classic credit-fueled, feedback-sustained asset-price bubble of the sort that makes many individual decisions which, ordinarily, would look irrational, look altogether rational, at least in the short-to-medium term. (Example: If the house that collateralizes a risky borrower's debt is rising in market value by 50% per annum, and has been doing so for a while, it looks rather less crazy to lend to that borrower than it otherwise would, since at worst you are left holding a rapidly appreciating asset; and if you don't extend the loan, someone else will.) These bubble conditions, I've argued elsewhere, are in the nature of collective action problems. Multiple acts of individual rationality aggregate into collectively wasteful, if not calamitous, outcomes. (Compare: arms races, consumer price hyperinflations, employee-lay-off-fueled recessionary spirals, 'prisoner's dilemmas,' & cet.)
Collective action problems require collective agents for their solution. That agent in this case should have been the Fed, whose statutory mandate is, precisely, to control the credit-money supply economy-wide with a view to maintaining price stability -- a form of stability that is of course the very antithesis of price bubbles and bursts. The Fed's greatest chairmen of the past -- Paul Volcker and, especially, William McChesney Martin -- would likely have been up to the task. (Martin is he who memorably said that the role of the Fed is to 'take away the punch bowl just as the party is getting good.') Alan Greenspan, who seems not to have understood the structure of the asset price bubble we went through -- and who said multiple times that private borrowers, private lenders, and secondary market makers like Lehman and Freddie alike would be 'crazy' to 'leave money on the table' by favoring boring FHA-approved 30-year fixed-rate mortgages over ever-refinanceable 'balloon' mortgages -- was not. Collective action problems also, of course, are such that one need not impute sinister motives or irrationality to any market participants to explain them. I accordingly think we distract ourselves when we look for demons among the investment banks, the secondary market makers, or at other nodes of our ramified financial-cum-mortgage markets. Doubtless there were sharp practices and lunacies aplenty -- there always are -- but the point is that they're not the culprits. Collective agents who do not believe in their own mandates are the closest we have to those.
Readers who would like more on the history of our mortgage finance programs, as well as additional distributist-friendly American social welfare programs, might enjoy a USC Law Rev piece titled A Jeffersonian Republic by Hamiltonian Means, written by an eccentric law professor, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926409
Readers who would like to read more about a set of new distributist-friendly proposals, themselves offered by an eccentric law professor, might enjoy a Cornell Law Rev piece titled What Kinds of Stock Ownership Plans Should There Be? Of ESOPs, Other SOPs, and 'Ownership Societies,' available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931049
There is also a 'global' rendition of the previous piece in the U. Va. L. & Bus. Rev., titled Insource the Shareholding of Outsourced Employees: A Global Stock Ownership Plan, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1108226
Finally, readers who would like to read more on the nature of asset price bubbles and bursts of the sort we have just been through might enjoy a piece called A Fixer-Upper for Finance, a draft of which is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1367278 . The final version of the piece has just gone to press for the Wash. U. L. Rev.
There are also some interesting posts at Dorf on Law concerned with these matters, e.g. these: http://www.dorfonlaw.org/2009/09/what-maynard-keynes-james-dean-and-now.html ; and http://www.dorfonlaw.org/2010/05/meanings-of-goldman-sachs.html .
All best and more soon,
I've just had a chance to read Michael P's fascinating post of earlier this week, on 'Ape Pieta.' I had heard brief mentions of the practices described in the piece that Michal quotes, but only on reading the detail in this piece, and taking a look at some of the images linked in it, have I come to appreciate how profoundly affecting they are. How marvelous, indeed, are our nonhuman cousins! I'm so very grateful to Michael for posting this.
I've also got two quick comments to add in response to the piece which might be of interest here.
The first comment is this: Just as the studies reported in Michael's post indicate that we as humans will do well to avoid pretending to uniqueness in our capacities to mourn the losses of our fellows and venerate them, in view of chimpanzees' manifestly doing the same in response to losses of their own, so will observers of chimpanzees themselves do well to avoid pretending that these practices are confined to anthropoids. For there is a wealth of literature, reportage, and of course (scads of) anecdotal evidence tending to demostrate beyond reasonable doubt that all manner of animals additional to humans mourn the losses of loved ones -- both intra- and inter-species loved ones -- and that they likewise experience multiple cognate forms of care. They love, they miss, they pine, they experience joy upon reuniting, they are downcast when 'in trouble,' & cet. & cet.
What is more, much of the evidence to which I allude involves, not only vocal or gestural expressions of such forms of care, but also what often appear to be evocatively symbolic ones too -- as in, for example, the recently reported case of a dog who transferred the entirety of her horde of socks, toys, and other hidden treasures to the bed of her human companian while that companion was convalescing after a bout with cancer, only to return the goods to their hiding place once the companion had recovered. I think, then, that the story that's begun to be told in the piece quoted in Michael's post will ultimately prove to be much richer even than is apparent in that piece itself.
This takes me to the second comment.
The second comment has to do with the third and final paragraph of the piece quoted in Michael's post. While I by and large admire the first two of the piece's paragraphs, I find the third a bit puzzling in juxtaposition with them: At the end of the second paragraph, the author suggests that the chimpanzee practice of carrying dead infants on their backs is a 'culturally transmitted tradition[ ]' among the chimps. Immediately thereafter, in beginning the third paragraph, the author enjoins us to 'ponder the significance of the fact that chimpanzees, aware of their mortality, grieve and mourn without religious symbol or ritual.'
Leaving to one side the fact that nothing in the tales the author recounts in the first two paragraphs seems to speak one way or the other about any 'aware[ness] of their own mortality,' what I find puzzling here is this: the 'cultrually transmitted tradition[ ]' to which the author refers would seem itself just to be the 'religious ... ritual' that he declares to be 'absent,' would it not? Indeed, it seems as pure and elemental a ritual practice as one can imagine -- at least assuming, as seems altogether safe to assume, that the chimpanzees are aware of the fact that their mummified infants are indeed deceased. Why, then, not view chimp practice as itself a form of religiosity in the only honest sense of that word -- not a 'nascent' religiosity, as the author countenances, but a religiosity much more pure and august than any of the cheap cant we encounter each day at the hands of human (political and) 'religious authorities' all over the airwaves and all over the planet?
I recall, as an undergraduate, attending a series of what were billed as 'Asian film masterpieces.' One of these old films, from 1960s Japan I think, was set in the late-mid-1940s. It concerned a hermit who inhabited one of the islands on which thousands of Japanese and American soldiers had died in the Second War. All that this man did, day after day, was bury dead soldiers, irrespective of their nationalities. Nobody else was doing this -- or, if I recall correctly, even living on the island. The man said nothing, asked for nothing, asserted nothing, denied nothing, perhaps even wondered nothing. He simply buried the dead.
This was the most stirring bit of liturgy, I think, that I've ever witnessed, immeasurably more powerful than anything I've experienced in any formal ecclesial context. But the lesson I take away from it is not that which the author of the piece Michael posted seems to take from chimpanzee practice. The real lesson, I think, is that there is no more need, or warrant, for asserting a metaphysical absence than there is for asserting a metaphysical presence in the face of such stirringly resolute payments of love and respect as those we find among our fellow creatures including chimps, dogs, and hermits. It strikes me as profanation -- it's bullsh** -- to put any metaphysical spin what ever on these powerful acts. They are enough. They speak for themselves.
In a way, it might be that the sensibility which leads one to react in the way that I do to this third paragraph is that of what Rabbi Soloveitchik, I believe, called 'Halakhic Man' -- the observant who is averse to waxing romantic, rhapsodic, or metaphysical about matters religious, preferring simply to 'pay the proper respects,' 'in the prescribed manner.' It is also, of course, distinctly possible that I've got Rabbi S wrong. But if I am right, then my guess is that the good Rabbi would also have found the anecdotes to which I've alluded here, as well as those recounted in Michael's post, fit for an appreciative nod. For all of them have in common the fact that those 'paying the proper respects' do not purport to be doing anything magical -- they do not claim to turn water into wine or wine into blood, they do not pretend to 'change the course of the universe' or 'enter into the divine economy' or anything else of that gaudy sort. They simply are fitting. And that is enough.
Warm thanks again to Michael,
I'd like to commend to all RLL readers, at least if they also occasionally read Mirror of Justice, two newspaper stories recently cited and linked to by Rick Garnett and Greg Sisk at the latter site. The reason is that I take very different impressions away from those stories than those highlighted by Rick and, especially, by Greg, and so I worry that some who do not read the full stories might take what I would regard as an inaccurate impression away from such posts as theirs.
The first sentence of Greg Sisk's second paragraph, for example, elides quickly from quoted words concerning 'demand for abortions,' to quoted words concerning a 'possible increase in demand because of the new federal health care bill.' Examination of the full article, however, quickly reveals that ten paragraphs separate these quoted phrases, and that the 'demand' referenced in the second phrase is demand for clinic services generically considered. Those services actually specified are birth control and disease screening. As for abortion, the article cites Minnesota Citizens Concerned for Life, 'the state's leading voice against abortion, [as being] sharply critical of the [health insurance reform bill] because it would provide more funding for community clinics like those operated by Planned Parenthood, though not for abortion.'
Other noteworthy passages in the two articles, from my point of view anyway, include the following:
'Minnesota ... is one of 17 states that pays [sic] for low-income women to receive abortions through Medicaid, the result of a 1995 decision by the state Supreme Court.' (Second page of Greg's linked article.) This of course invites the question - at least for those like me who know little of the details of Medicaid law or Minnesota constitutional law - whether abortion opponents should be arguing for repeal of Medicaid, or amendment of the Minnesota state constitution, or both. My guess is we don't hear such calls for reasons not unlike those that explain our not hearing calls to shut down the interstate highway system, the power grids, and like government-afforded goods that incidentally affect abortion availability.
'Most health insurers in Michigan pay for abortions, but not necessarily for birth control.' (From Rick's linked article.) This of course re-raises a question I raised at MoJ in December and March - viz., why are abortion opponents not arguing, as I have argued, for requirements that insurance companies that offer policies covering abortion also offer identical policies not covering abortion. It also re-raises another question I raised in March - viz., how many abortion opponents, including at MoJ, are insured by insurers who offer abortion coverage?
'Recession has heightened demand for contraception and for abortion, especially from clients who wouldn't have gone to Planned Parenthood in better times. "Over the last couple of years, we've been getting calls that go, 'I'm pregnant, we don't have health insurance, my husband isn't working and we can't afford another child.' These calls have become routine for us," says Lamerand [a Michigan PP executive officer].' (Again from Rick's linked article.) This of course once again suggests - though of course only suggests, as distinguished from statistically corroborating - a correlation between economic hardship and perceived need of reproductive health services and abortions.
I don't wish in quoting and commenting as I do here to suggest that I've any firm view as yet concerning the merits of various claims made by defenders and critics of PP or the health insurance reform legislation where abortion is concerned. I wish only to highlight the fact that the two cited articles appear to tell rather more than a simply a 'health insurance reform legislation funds and increases the incidence of evil deeds - abortions - by evil entity - Planned Parenthood' story. Matters appear rather more complex than that on all scores, and accordingly invite careful further inquiry.
A final point: I've read apparently carefully reasoned opinions by such as Tim Jost to the effect that no federal funds will be proximately led by the new legislation to the subsidization of abortions, and carefully reasoned opinions by such as the USCCB to the contrary effect (not to mention Robby George's latest post at MoJ on this matter), and confess to not knowing who has the better of this argument. I'm just not sufficiently well versed in the intricacies of health law.
But it seems to me there's a much easier way for abortion opponents to handle this uncertainty than continuing to read various peoples' attempts at parsing statutory and regulatory 'language' (which often seems scarcely lingual): Monitor actual expenditures, with a view to determining whether federal funds actually do begin funding abortions in some manner that they have not done prior to the legislation. Then if they do, act to close the apparently unintended loophole. My guess is that it would be easy to procure legislation to do that, as for better or worse, there does seem to be broad political consensus that federal funding programs should be abortion-neutral in recognition of the continuingly deep legal and political controversy on this fraught subject.
And while at it, by the way, lest any be criticizing the motes in our neighbors' eyes while ignoring the beams in our own, let any of us who oppose federal funding for abortion look to our own insurance plans while asking whether, in purchasing our policies from them, we are ourselves alreadly subsidizing abortions in much more direct ways than the federal government is accused now by some of doing. And let us also focus efforts on seriously ending the economic dysfunction and poverty that seem to prompt so much perceived need of contraception or abortion, as well as on the provision of better alternatives to those that many now seem to experience as sole alternatives. It seems better, as the blessed proverb has it, to light even one candle than to curse the darkness.
Blessings and Peace to All,
Steve Schneck, a policy analyst at Catholic University of America, has posted a thoughtful narrative of his involvement with the House and Senate health insurance reform bills in the comments section of a post I placed over at Mirror of Justice. Because it seems apt to be of interest to our RLL readers as well, I add it here as a post in its own right.
I thought it might be useful to recount how I came to support this bill. And, let me say in advance, that despite some of my friends including my name among “Catholic leaders,” my role has been very limited.
I am, though, strongly pro-life. I’m a regular at Washington’s January marches for life. I continue to advocate for overturning Roe. Moreover, I’ve been a supporter for just about every policy proposal to limit access to abortion. Despite my support for other aspects of the Obama administration, very early on I spoke publicly against its Mexico City reversal and against its handling of stem cell policies. At the same time, for me, being pro-life extends far beyond abortion to incorporate the whole of Catholic moral and social teachings.
It’s in the latter sense that I have also been a lifelong advocate for comprehensive health care for America. I see this as a moral imperative. In my estimation the failure of our society to provide for the health care needs of so many of our brethren reflects the same anti-life values behind abortion. And, I do believe—albeit without sufficient data—that comprehensive health care would reduce abortion rates.
It was in this spirit that I was an early advocate for the administration’s plan to move health care legislation. When the first bills began to be hammered out last spring, however, I was dismayed. Despite pledges by all sides that the legislation would respect Hyde, all five of the initial bills (two in the Senate and three in the House) fell short of the spirit of Hyde. With many other pro-life advocates I objected loudly. In response to our concerns, on the House side (in the circle around Henry Waxman) language was crafted to separate federal funding from abortion. It was introduced by Lois Capps and came to be called the Capps amendment.
Despite being a good faith effort, in fact the Capps language allowed significant mingling of federal funds in the exchanges that permitted abortions. This was unacceptable to me and in print and media I spoke out in opposition to the Capps amendment, working with others against it.
It was about at this time that nineteen pro-life Democrats in the House went public with a declaration that they would not vote for a bill that included such mingling. Along with Kristen Day of Democrats for Life and several other pro-life progressives I went public with my praise and support for these courageous nineteen Democrats. Among the nineteen was Bart Stupak, who was something of the leader among the group. Over the next few months, I did a few radio shows and media interviews defending and promoting Stupak’s efforts.
When these pro-life Democrats ultimately succeeded in forcing the House to amend its version of the health care legislation to respect Hyde by forbidding insurance coverage of any abortions (with the usual exceptions) in the exchanges. I rejoiced and celebrated this tremendous victory, again in print and in media interviews.
As the legislative ball moved to the Senate side, however, things began to look dire for pro-life concerns and I feared that I might not be able to support the legislation. Stupak’s language, (introduced by Democratic Sens. Casey and Nelson, and the Republican Hatch) failed overwhelmingly, with even many Republicans voting against it. But taking advantage of the need for sixty votes, tough negotiations by Nelson and especially Casey pushed back against their own leadership for hard won pro-life changes to the bill. In November, Casey crafted a new mechanism for segregating federal funds from abortion in the exchanges that required rigorous accounting mechanisms and even separately written “abortion checks” so that all abortion coverage would be paid not by federal dollars but privately and out of pocket. And, thanks to Nelson, states were given the opportunity to opt out of offering any abortion coverage in their respective exchanges. I still preferred Stupak’s approach for incorporating Hyde, but saw some legitimacy in the Casey-Nelson approach. What did win me over to the Senate bill, though, was what else Casey and friends achieved. They used their leverage to write into the Senate bill all the key provisions of the Pregnant Women Support Act, which puts in place a ton of money to encourage at risk women to carry their babies to term and provided generous incentives for adoption. Coupled with the Senate bill’s greater largess to the health care needs of the poorest of the poor, I concluded that Senate bill was more pro-life than the House bill. I endorsed it at that time and beginning in early December began to speak publicly on its behalf.
Throughout my engagement with this legislative effort, pro-life advocates negotiated and contested stridently with pro-choice advocates. Anyone who has ever worked in Washington’s policy-making can imagine how tough this was. I was continually struck, however, with the sensitivity that the administration evidenced for the concerns of the pro-life side in regard to this legislation. In my encounters with administration people working on this legislation, I found them to be very seriously attentive to my pro-life concerns, even when we disagreed.
This is probably much more than any of us want to hear about the pro-life history of this legislation. I offer this level of detail, frankly, in an effort to allay the questions of integrity that have been raised. As I said at the outset, the moral questions at issue here are very difficult and not to be taken lightly. I utterly respect any fellow pro-lifer who comes to a different determination.
I thank Bob for this wonderful site and wish very best wishes to you all!
By Robert Hockett
Father Rob Araujo, at Mirror of Justice, has offered some interesting queries concerning the legislative process, and whether 'Catholic Legal Theory' has anything to say about that process. Post is here: http://mirrorofjustice.blogs.com/mirrorofjustice/2010/03/does-catholic-legal-theory-have-something-to-say-about-the-legislative-process.html . In this connection he also suggests he is troubled by current goings-on in the Congress in connection with the now pending health insurance reform legislation, and that he also is troubled by the thought that legislators and general public alike might be unable to absorb the contents of bills that occupy multiple pages in their articulation. For what little they may be worth, I've a few tentative thoughts on these subjects.
The first is that I doubt that Catholic legal, political, or moral theory has much to say that is fundamentally different from what more garden variety democratic theory says on the matter of legislative processes. But I would be happy to be set straight if I'm wrong about this. Anybody?
The second is that I would be surprised if the Catholic tradition, like democratic political theory more generally, did not exercise a presumptive 'preferential option' in favor of majoritarian legislative decision-making, with any departure from that default position requiring justification by reference to some extraordinary circumstance. (A textbook case in point would of course be that circumstance in which certain fundamental individual rights are at stake, which even a supermajority of everyone-save-the-affected party cannot legitimately disregard.) Personally, I am increasingly inclining to think that most of the anti-majoritarian rules of the Senate are outmoded, rooted in earlier times when the Senate was truly deliberative, collegial, and significantly more insulated from political hackery than the House. Those days appear to be gone, and we seem as a polity to have evolved into something much more like a parliamentary democracy than we used to be. There accordingly seems to be significantly less 'benefit' purchased with those 'costs' to democratic governance which are the antiquarian Senate rules.
The third is that Father Araujo is surely correct that legislators and public alike ought to know what they are voting on and arguing about, and that a bill that occupies thousands of pages in its articulation is apt to be difficult to read carefully in a short span of time. Regrettably, however, just about all Congressional legislation for many decades now seems to sprawl over thousands of pages. I don't know that there's any way round this any more than there seems to be any plausible way to comport in the old fashioned (pre-20th century) way with the pre-modern understanding of the 'Non-Delegation Doctrine.' I suspect that we're stuck, for better or worse, with simply working to keep such changes within reasonable bounds, more or less as we've done in the delegation context through the APA.
My fourth observation segues immediately from the third: Over the past couple of decades, it seems to me to have become common for a side of the Congressional aisle that is poised to lose a battle over charged legislation to adopt a troublingly disingenuous tactic. This is (a) to seize upon some quirk of the legislative process that is quite familiar to all members of Congress but not so well known to the general public, (b) observe that the winning side has made use of this quirk, and then (c) suggest that in doing so the winning side has done something highly irregular or even extra-constitutional. Both major political parties, alas, have resorted to this tactic -- the Dems, unsurprisingly, when Republicans have held Congress and perhaps White House, and the Republicans, unsurprisingly, when Democrats have held Congress and perhaps White House. And I think it deplorable, amounting to the willing sacrifice of longterm confidence in, and even acceptance of, constitutional government in order to reap cheap short term public opinion games. (A political analogue to much Wall Street trading activity.)
Here are three cases in point that seem to me to have been salient of late:
First, highlighting the 'bigness' of 'big' bills and suggesting that 'bigness' of this sort is both unusual and tantamount to 'socialist' 'takeover' of something: During the President's 'health care summit' a few weeks back, Rep. Cantor ostentatiously stacked the pages of the many-thousand page legislation up on a table, as if to suggest that there is something unprecedented about the size of this complex piece of legislation. Unstated here was that similarly sized stacks could have been piled up in connection with countless 'big' pieces of Democratic and Republican and Bipartisan legislation alike over the past 70 years or so.
Second, suggesting that resort to budget reconciliation as a means around frivolous use of the anti-majoritarian Senate filibuster is somehow nefarious. This suggestion was, of course, all the rage just a few weeks ago. But a look at all past uses of budget reconciliation since this procedure was introduced about thirty years ago quickly reveals that (a) Republican Congresses have employed this procedure twice as often (ten times) as have Democrats (five times), (b) Republican Congresses have employed the procedure in three of their ten resorts to it to increase the size of the federal budget enormously -- ironic, of course, in view of current Republican piety about budget balancing -- while Democratic Congresses have employed it in all five of their resorts solely to decrease -- in two or three of those cases, enormously -- the federal deficit, and (c) all past Republican and Democratic resorts to reconciliation have been just as 'social issue' involving as is the currently contemplated Democratic resort to this process. If you find this surprising, you might find even more astonishing the fact that the data I report here comes from Norman Ornstein of the American Enterprise Institute, writing in conjunction with a couple of others. Here is the fuller story, still summarized: http://www.dorfonlaw.org/2010/03/republican-deficits-and-budget.html .
Third, suggesting that resort to 'deem and pass' is somehow unconstitutional or uniquely 'Democrat' in character. This canard is the new 'reconciliation.' And while I have no particular attachment to this procedure -- I think reconciliation is going to be necessary henceforth, now that we have in effect transitioned to being a parliamentary democracy, but I think deem and pass likely always to be less common -- it is definitely an error to associate it uniquely with one party. Of five resorts to this process in the past 20 years, two have been by Democratic Congresses, three by Republican Congresses. The first two of those uses -- in 1989 and 1993 -- were by Democrat-controlled Congresses to pass smoking bans on domestic airline flights and the Family and Medical Leave Act, respectively. The next three of those uses -- in 1996, 1997, and 2005 -- were by Republican-controlled Congresses to confer an ultimately-deemed-unconstitutional line-item-veto power on the President, to prohibit use of modern statistical sampling techniques in the census, and to trim Medicaid, welfare, and student loan program growth, respectively.
I emphasize once more that neither major political party appears to have a lock on resort to the unfortunate tactic I describe here, but it is common for the losing side to be that which employs it. Currently that is the Republicans. When one day in future the Democrats do the same, it will be just as deplorable. It would be lovely were the general public sufficiently knowledgable about the legislative process as to render the tactic less politically useful to losing sides. But I won't now indulge that Quixotic hope.
Thanks as ever,
Twenty-five pro-life Catholic theologians and Evangelical leaders yesterday sent letters to members of Congress urging them not to let misleading information about abortion provisions in the Senate health care bill block passage of sorely-needed reform.
Catholics in Alliance for the Common Good, a Washington-based advocacy group, said that the Senate health bill upholds abortion funding restrictions and supports pregnant women.
The letter included a page by page analysis of the Senate bill as it pertains to abortion.
The group asked members of Congress “to make an informed decision about this legislation based on careful deliberation guided by facts.”
“We believe that the provisions below provide extensive evidence that longstanding restrictions on federal funding of abortion have been maintained. Furthermore, this bill provides new and important supports for vulnerable pregnant women,” the letter states.
The complete text of the letter follows:
Dear Member of Congress,
As Christians committed to a consistent ethic of life, and deeply concerned with the health and well-being of all people, we want to see health care reform enacted. Our nation has a rare and historic opportunity to expand coverage to tens of millions of people, make coverage more affordable for all families, and crack down on many of the most harmful practices of the health insurance industry.
We are writing because of our concern about the lack of clear and accurate information regarding abortion provisions in the health care reform bill passed by the Senate on December 24, 2009.
Reforming our health care system is necessarily complex, and the provisions related to abortion, or any other issue, require careful examination of the facts as they exist in the legislative language. We believe that the provisions below provide extensive evidence that longstanding restrictions on federal funding of abortion have been maintained. Furthermore, this bill provides new and important supports for vulnerable pregnant women.
Following is a comprehensive factual listing of all provisions related to abortion and positive supports for pregnant women in HR 3590, along with specific page references.
Abortion-Related Provisions Included in the Senate-Approved Health Care Reform Bill “Patient Protection and Affordable Care Act” (HR 3590 EAS/PP)
· Prohibits the Secretary of HHS from requiring the coverage of any abortion services as part of the essential health benefits for any qualified health plan offered in a state insurance Exchange (pg. 2070);
· Allows the insurance company to decide whether or not to include coverage of abortion services, including the Hyde abortion exceptions, in a qualified health insurance plan offered in a state insurance Exchange (pg. 2070);
· Prohibits insurance companies from using federal funds, including federal tax credits and cost-sharing assistance, to pay for abortion services except for those services allowable under the Hyde amendment (pg. 2071);
· Requires an insurance company that chooses to offer a plan in a State Exchange with abortion coverage, beyond the Hyde abortion exceptions, to collect a separate second premium payment from each enrollee for the cost of the abortion coverage (pgs. 2071-2072 & 2074-2075);
· Requires the insurance company to deposit all separate payments into a separate account that consists solely of abortion premium payments and that it is used exclusively to pay for such services (pgs. 2072-2074);
· Requires the state health insurance commissioners to ensure that insurance companies comply with these requirements in accordance with guidance and accounting standards set by the Office of Management and Budget and the Government Accountability Office (pg. 2075);
· Requires insurance companies that offer general abortion coverage as part of a qualified health plan to provide a notice of coverage in the summary of benefits and coverage explanation (pg. 2076);
· Allows states to pass a law prohibiting the inclusion of abortion coverage in plans offered in a state health insurance Exchange (pg. 2069);
· Requires the director of the Office of Public Management to ensure that there is at least one private, multi-state qualified health plan offered in each state insurance Exchange that does not provide coverage of abortion services beyond the Hyde exceptions (pgs. 2087-2088);
· Prohibits insurance companies offering qualified health plans from discriminating against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions (pg. 2076);
· Prohibits the preemption of state laws regarding abortion (pg. 2077);
· Maintains current Federal laws relative to conscience protection; willingness or refusal to provide abortion; and discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion (pg. 2077);
· Establishes and provides $250 million for programs to support vulnerable pregnant women (pgs. 2170-2173); and
· Increases the adoption tax credit and makes it refundable so that lower income families can access the tax credit (pgs 2400-2407).
We are now at a critical moment in the history of our country. More than 30 million Americans may finally gain access to a health care system that is affordable -- providing families, children and seniors with fundamental care that is essential to human dignity. We respectfully ask that you make an informed decision about this legislation based on careful deliberation guided by facts.
Catholics in Alliance for the Common Good
Evangelicals for Social Action
Rev. Jim Wallis
President and CEO
Stephen F. Schneck
Director, Institute for Policy Research & Catholic Studies
The Catholic University of America
Dr. David P. Gushee
New Evangelical Partnership for the Common Good
Professor of Faith and Culture
University of Dayton
Francis Xavier Doyle
Former Associate General Secretary
U.S. Conference of Catholic Bishops
Institute Justice Team
Sisters of Mercy of the Americas
Professor of Theology
Bryan N. Massingale, S.T.D.
President, Catholic Theological Society of America
Associate Professor of Theology
Director of Campus Ethics Programs
Markkula Center for Applied Ethics
Santa Clara University
Nicholas P. Cafardi
Dean Emeritus and Professor of Law
Duquesne University School of Law
Dennis M. Doyle
University of Dayton
Terrence W. Tilley
Avery Cardinal Dulles, S.J. Professor of Catholic Theology
Chair, Theology Department
Murray/Bacik Professor of Catholic Studies
University of Toledo
Vincent J. Miller
Department of Religious Studies
University of Dayton
Jesuit Social Research Institute
Sandra A. Yocum, Ph.D.
Chair of Religious Studies
University of Dayton
Rev. Dr. Cynthia L. Hale
Ray of Hope Christian Church, Decatur, GA
Dr. Barbara Williams Skinner
Skinner Leadership Institute
Cheryl Bridges Johns
Professor of Christian Formation & Discipleship
Pentecostal Theological Seminary
Author, Speaker and Founding Pastor
Cedar Ridge Community Church
Lewis B. Smedes Professor of Christian Ethics
Fuller Theological Seminary
Lisa Sharon Harper
Executive Director, NY Faith & Justice
Author, Evangelical Does Not Equal Republican...or Democrat
By Robert Hockett
Hello again to all. I thought I'd have another try at the subject I've been writing on lately both here and at Mirror of Justice, from another angle. Specifically, I want to address it through the lense of one simple question.
The question is this: Suppose that the state has bracketed some question as being beyond its competence, either for the present or for the indefinite future. If it has done so, is it possible for the state to avoid violating that bracketing by taking care to disburse funds (a) only in furtherance of purposes that bear no essential relation to the bracketed subject, and (b) in such a way that only an 'intervening' action taken by an individual acting in a private capacity can possibly implicate the bracketed subject?
It seems to me that the answer here must be yes, and that this must be the case irrespective of what the bracketed subject is -- sectarian truth, the morality or regulability of abortion, or something else. And it seems to me that this idea is what accounts for the intuition of folk like me who tend to regard the state as innocent of aiding, abetting, or 'endorsing' sectarianism and abortion alike if it disburses funds in furtherance of some clearly legitimate public interest like education or health insurance and does nothing to push recipients toward or away from particular private providers of such items as education or health insurance. Am I wrong here?
Here's another Gedenkenexperiment that might aid reflection here: My guess is that most if not all RLLers and MoJers, along with most if not all RLL and MoJ friends and other readers, have health insurance. My guess is, moeover, also that most or all companies from whom they purchase their coverage offer policies that cover abortion. And I'll conjecture yet further that many, if not indeed most or even all, of the people I have just referenced, are even beneficiaries of insurance policies that themselves cover abortion. Are these people -- are we -- then, relevantly 'subsidizing,' aiding, abetting, or 'endorsing' abortion?
If we decide that we are not, is this not because (a) the insurance industry does not offer us alternatives here, (b) we have decided that in such case we can do little but 'settle' for policies we're not thrilled with, which settling we are in turn more prepared to do than we otherwise would be because (c) at least it is not we ourselves who are seeking abortions, while (d) we deem other policy-holders who do seek such abortions to be taking 'intervening' decisions that effectively sever any salient (any 'proximate') causal linkage between our premium payments and their abortions? If the answer here is yes, then why should the state be viewed any differently than we here? Why is it any less innocent or more guilty than we?
One final point by way of an aside: Please note that one very easy way to eliminate the unhappy facts (a) and (b) just mentioned would be to institute a 'public option' in health insurance that did not itself include abortion coverage. It strikes me as quite significant, both from a public policy point of view and from a Catholic social teachings point of view, that the only reason we're having to resort to this conversation about 'proximate' causal linkages between public disbursements and abortion right now is that we're treating the private insurance industry -- which is almost entirely free of federal regulation and offers virtually no non-abortion-including choices to US consumers -- as sacrosanct and untouchable in the current debate.
Thanks again for listening,
By Robert Hockett
Hello again, All,
In case it's of interest, the post over at MOJ that I referenced yesterday has elicited some response, which responses in turn have provoked a bit more thinking on my part about the role that intervening cause arguments have in discussion of voucher programs and health insurance reform. If you're at all interested, please visit here -- http://mirrorofjustice.blogs.com/mirrorofjustice/2010/03/addendum-another-thought-on-rick-and-intervening-decisions.html -- and the few posts below it where the discussion unfolds. As ever, your reactions would be very very welcome!
Steve Shiffrin, Eduardo Penalver, Michael Perry and I would like to welcome all viewers of this new weblog, which we hope soon will include a good many more posters additional to us. Our aim is to offer a site at which people who adhere to a variety of faith traditions, with perhaps varying degrees of intensity across persons and through time, might discuss legal and cognate subjects together in mutual respect and affection. As the weblog's name suggests, another thing that we all share in common is a more or less 'left-leaning' or 'progressive' orientation where political matters are concerned. 'Left-leaning,' 'progressive,' and sundry rough synonyms are of course systematically open-ended and contestible terms, and we do not purport to have arrived at any 'bright line' style closure or contest-ending determination of what shall count and what shall not. But we are confident that we'll be found recognizably to be on the soft-hearted, but we hope not soft-headed, side of most legal and political issues of our day. It is our impression that people in the academy who hail from religious faith traditions and at the same time are 'progressive' in the sense just sketched currently lack a single venue at which to share ideas and discussion. This site is aimed at filling that gap.