ReligiousLeftLaw.com

The Right's Demonization of Labor Unions

Check out this post at Mirror of Justice by Catholic legal scholar Charles Reid.

Liberal Judaism in Decline

Sightings  2/28/2011

Liberal Judaism in Decline

-- Martin Marty

“Liberal Denominations Face Crisis as Rabbis Rebel, Numbers Shrink: Struggling for Relevance and Funding” headlined the prime story by Josh Nathan-Kazis, in the newspaper Forward. A prime column follows it a week later, as Dana Evan Kaplan writes on “The Theological Roots of Reform Judaism’s Woes.” Translation of Nathan-Kazis’s headline, for non-Jews: synagogue memberships in Conservative Judaism, a major liberal denomination, “are in free fall.” Since 2001 the decline was 14 percent, while in the Northeast, family memberships dropped by 30 percent. Meanwhile, we read, in the other large liberal group, Reform Judaism, highly-placed rabbis are working to shake things up, to reform Reform, which is also in crisis.

Sociologist Mark Chaves offers perspective but not policy help by reminding Jews that most Christian denominations are also in decline or even in travail, when local congregations progressively, or regressively, drag their feet, close their pocketbooks, and go their own way, often into decline. I could write of counter-signs of vitality in Jewish and Christian directions, but that would be a different topic for a different day. Not being a policy-maker but a reporter on varieties of perspectives, I am doing what I can to discern and describe the trends, observe the statistics and strategies—and hope. Why invest hope on the part of those of us who have no great stake in liberal Judaism?

Many of the reasons are obvious, among co-religionists who wish for the best for fellow citizens and the collegially-religious. Non-Jews who take note of religion-in-public have reasons to care because it is often liberal Jews, not the Orthodox or the non-affiliated or non-practicing, who are their natural partners in dialogue. Robert Putnam in American Grace found strong evidence that non-Jews feel “warmest” to Judaism, among the religious families in America today. (That finding itself may be a sign of the weakening bonds of liberal Judaism after the time when overt and consistent anti-Semitism helped foster cohesion and inspire energies among beleaguered Jews.)

If response to anti-Semitism is less of a binding and energizing force among Jews, many argue that the defense of Israel has its enormous part to play. But observe the polls or listen to reports of especially younger Jews, and you will hear concerns that this will not be enough to keep Judaism strong. Now for that column by Rabbi Dana Evan Kaplan, author of Contemporary American Judaism. He notices that “triumphalism,” bragging rights and expressions by Reform as “the biggest” no longer is in place. He argues that the current “organizational malaise” obscures the fact that “the problem facing liberal Judaism is theological.” The pluralism, virtually the “anything goes” approach to liberal belief has replaced classical Reform’s emphasis on “the clear theological formulations of ethical monotheism and the mission of Israel.”

Today as Reform stresses “religious autonomy and the importance of choosing what each person finds spiritually meaningful,” in the words of Kaplan, there are few grounds for forming community and finding commitment. “Benign neglect” of theology and of witness to “the authority of God” have weakened liberal Judaism. After writing this but before you read it, I will have strolled down the block to Chicago’s Sinai Temple to hear a Sunday Sinai Symposium on, you guessed it, “Does Reform Judaism Have a Future?” Five notable and concerned rabbis will provide their answers in the afternoon session. Their audience, including this columnist, will have good reasons to pay attention.

References

Josh Nathan-Kazis, “Liberal Denominations Face Crisis as Rabbis Rebel, Numbers Shrink, Struggling for Relevance and Funding,” Forward, February 18, 2011.

Dana Evan Kaplan, “The Theological Roots of Reform Judaism’s Woes,” Forward, February 16, 2011.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

A Call from Saudi Intellectuals to the Political Leadership

 

Details at Jadaliyya.

See too Mai Yamani’s article in the Guardian, “Why a king’s ransom is not enough for Saudi Arabia’s protesters,” which concludes as follows:

   “Denial remains the dominant state of mind of the Saudi rulers. The royals believe that they have a special status in the Arab world and that no revolution can touch them. And if one tries, they will follow the words of Prince Naif: ‘what we took by the sword we will hold by the sword.’

   In Saudi Arabia, the technologies of globalization have been deeply felt. When people are awakened in this way, the view that economic development would automatically produce political stability has been shown as a lie by the events in Tunis and Cairo, Bahrain and especially Libya. There is no automatic stabilizing factor in either economic or the social bribery that King Abdullah is now engaged in.

   To preserve their throne, the Saudi royals must embark on a political evolution commensurate with the country’s accidental economic modernisation. Today’s inchoate unrest can still evolve in the direction of a constitutional monarchy. Now is the time for King Abdullah to act and not to bribe.”

Politics and Structuring of the Market for the Rich

Jacob Hacker and Paul Pierson have an important new book, Winner-Take-All, that is reviewed in the Christian Century. The book tells the tale of how the rich became so rich. It turns out to become a political tale, and the political manueverings underlying the massive redistribution of wealth in the U.S. begins in the Carter administration. Lower taxes for the rich, financial market deregulation, and union busting play a major role and the years between 2001-2007 are crucial. Perhaps most disturbing is the role of the Democratic party in this tale. The Democrats, according to Hacker and Pierson, basically abandoned their commitment to bread and butter concerns and have catered instead to various liberal rights concerns of the affluent as well as the environment. The review maintains that the book is trenchant in its discussion of the politics, but it does not focus on the devastating social consequences on the middle class. And the review suggests that one might expect that religions emphasizing the gospel of prosperity and private salvation might flourish in such desparate times. I am adding the book to my reading list and recommend the review. 

Andrew Cuomo and Communion

A canon law teacher in Detroit and consultant to the Vatican court (the tightness of the relationship to the Vatican is not clear) named Edward Peters has ignited a flurry of headlines by stating that Andrew Cuomo should not receive communion because he is living with a woman outside of wedlock (Cuomo is divorced and absent an annulment could not remarry under church law) and because he does not believe that abortion should be outlawed. I do not know if Peters was encouraged to do this by anyone in the Church hierarchy (the Albany bishop has stated this issue should be treated privately); I do think the headlines implying he speaks for the Vatican are out of line.

Peters says that Cuomo's living with an unmarried woman and receiving commmunion creates a "grave scandal." Actually for a scandal to take place, people have to know about it. Perhaps, I have been hermetically sealed off from the rest of civilization, but I did not know that Cuomo is living with a divorced woman, and I am not aware of their sleeping arrangements, or sex habits. From what I can tell, it is Peters that has created the public scandal. Alongside this public scandal, there is another one that deserves comment: the tendency of conservative Catholics including the Bishops to identify Democratic public officials who create scandal by their views on abortion, but ignoring Republican officials who instead of joining a war on poverty engage in a war on the poor while lining the pockets of the rich.

The Pew Forum on "The Tea Party and Religion"

A new analysis by the Pew Research Center's Forum on Religion & Public Life finds that Tea Party supporters tend to have conservative opinions not just about economic matters, but also about social issues such as abortion and same-sex marriage.  An interesting read ... here.

Humanitarian (i.e., military and/or otherwise) Intervention in Libya?

Tom Hayden argues “Obama should tell Qaddafi to go:”

“Rarely, if ever, do I advocate U.S. intervention in the affairs of other nations. But President Obama should be supported if he calls for Libya’s Muammar el-Qaddafi to step down and asks the United Nations to intervene, if necessary.

There are two criteria that matter to me. The first is whether the leader in question is unleashing official violence against a popular movement, as was the case in China during Tienanmen, Chile’s armed forces against Salvador Allende, and Mexico during the Tlotelcolco massacre when U.S. strategic partnerships outweighed the value of human rights. The second is taking the opportunity to clear the name of the United States after decades of being sullied by spending our tax dollars and reputation on murderous regimes. An immediate declaration that the Libyan regime has gone too far, coupled with a call for global support of the Libyan resistance, will have a serious impact on the balance of forces and be long remembered when people, including our own children, ask which side we were on during this rising of the Arab nation. Declaring such a principle – that the U.S. will not support dictators and monarchs who open fire on their own people – should be the guide to policy in other countries in the weeks ahead.

President Obama is quoted as seeing in the Egyptian revolution an opportunity for an alternative narrative to that of al Qaeda, that peaceful mass democratic uprisings are possible against Arab dictatorships. Here is his chance to prove it.”

There’s a nice (and a bit more nuanced) discussion of the issues and options regarding “humanitarian intervention” at the Jadaliyya blog by Asli Bali and Ziad Abu-Rish here.

Steve Negus has also weighed in on the question of intervention at The Arabist.

And now Issandr El Amrani adds his thoughts at The Arabist as well.

At Slate, Shadi Hamid appears to dismiss the possible problems and blowback effects of intervention in arguing that it is

“time for bold, creative policy-making. For starters, NATO should quickly move to enforce a no-fly zone over Libya, both to send a strong message to the regime and to prevent the use of helicopters and planes to bomb and strafe civilians. The United States and European allies should freeze the assets of senior Libyan officials and consider other targeted sanctions. Meanwhile, the international community should also let it be known that any individuals involved in perpetrating atrocities will be prosecuted before the International Criminal Court, while regime figures who defect to the opposition will be granted amnesty.”

Background reading (alas, those entrusted with the unenviable task of making timely decisions about such matters don’t have the luxury to read this material at present but one would hope at least some of them have a familiarity with the arguments contained therein):  

For a principled discussion of humanitarian intervention from the perspective of philosophy of law and legal theory, see Allen Buchanan’s book (specifically, under ‘humanitarian intervention’ in index), Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004).

See too:

• Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
• Chatterjee, Deen K. and Don E. Scheid, eds. Ethics and Foreign Intervention. Cambridge, UK: Cambridge University Press, 2003.
• Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. New York: Oxford University Press, 2001.
• Fletcher, George P. and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press, 2008.
• Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
• Greenwood, Christopher. Humanitarian Intervention: Law and Policy. Oxford, UK: Oxford University Press, 2001.
• Harriss, John, ed. The Politics of Humanitarian Intervention. London: Pinter, 1995.
• Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, UK: Cambridge University Press, 2003.
• Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues. Orchard Park, NY: Broadview Press, 2003.
• Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Ardsley, NY: Transnational, 3rd ed., 2005.
• Welsh, Jennifer M., ed. Humanitarian Intervention and International Relations. New York: Oxford University Press, 2004.

I’m acquainted with, and therefore partial to, the titles written or edited by Chatterjee, Chesterman, Holzgrefe and Keohane (which has a chapter by Buchanan), and Jokic.

 If, as Juan Cole has posted today at Informed Comment, it is true that 90% of Libya is in the hands of the rebels (I’m uncertain as to how he arrived at this figure, as it is not based on the article from the Los Angeles Times he cites), I’m skeptical about the more vigorous proposals for (e.g., some form or forms of direct military) intervention.

Update: Helena Cobban prefers an “incapicitation mission” to a “decapitation mission.” Jonathan Wright sensibly argues that the “U.S. also needs to show some self-restraint:”

“It’s a very bad idea for the United States to intervene in Libya and I have no doubt that no one credible in the Libyan opposition will accept such an offer. ‘We’ve been reaching out to many different Libyans who are attempting to organize in the east and, as the revolution moves westward, there as well. I think it’s way too soon to tell how this is going to play out, but we’re going to be ready and prepared to offer any kind of assistance that anyone wishes to have from the United States,’ said Secretary of State Hillary Clinton. The last thing any Arab rebellion (and that is what we have in Libya) needs is the kiss of death that any association with the United States would bring. If the US administration is reacting to domestic pressures, as it did in the case of its decision to veto the UN Security Council resolution on Israeli settlements, then it should resist the temptation. Even the vague offer could do damage. Who is giving advice to these US officials, and what is driving them?”

At Jadaliyya, Ayça Çubukçu is worried about the prospects of UNSC sanctioned intervention in Libya, the larger argument animated by the axiomatic premise that the “UN Security Council does not have [the] authority speak in the name of humanity or the international community.”

[Image: Residents stand on a tank holding a pre-Qaddafi era national flag inside a security forces compound in Benghazi, Libya on Monday, Feb. 21, 2011. (AP Photo/Alaguri)]

(cross-posted at the Ratio Juris blog)

Two Cheers for Obama on Marriage Equality!

Yesterday’s announcement that under President Obama’s direction the pernicious Defense of Marriage Act will no longer be defended by the Justice department is a major victory for the GLBT community and its allies. Certainly there was no coherent way that Obama could in good conscience continue to use his office to send lawyers into the arena to defend a law he believes to be unconstitutional.

Yet in continuing to draw a distinction between marriage and civil unions, and accepting the later while demurring on the former for glbt couples, Obama is, I would argue, still clinging to an ethically and theologically problematic position. As is well known, Obama, in an interview with the Chicago Tribune during his presidential campaign defended this distinction on theological grounds:

"I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman."

On the surface the statement seems sensible enough, and clearly Obama has plenty of company among Christians and other religious folks across the political spectrum. And yet, to suggest that marriage and gender complementarity are necessarily tied together and that this is in fact the Christian position does not follow for a number of reasons.

First, Obama seemed not yet to have come to terms with the fact that there now exist in this country, and throughout the world, legally married, GLBT, Christian couples. One is tempted to respond to Obama’s blindness here by re-staging a famous (fictional?) dialogue: Q: So, do you believe in gay marriage? A: “Believe in it? Hell, I’ve seen it!’ That there are more and more GLBT Christian married couples whose religious beliefs are every bit as robust and perhaps even as orthodox as Obama's,  simply exposes the precarious ground upon which the above distinction rests. Plenty of theology has been done by Christians, among other religious groups, articulating a defense of marriage inclusion that in no way undermines traditional theological claims, and in some cases even heightens and deepens our understanding of the theological tradition. If President Obama has not read, among many others,  the works of James Allison, Eugene Rogers, Sarah Coakley, robustly Christian theologians all, one hopes that some of his religious advisors (Jim Wallis, maybe?) will encourage him to do so. He need not cling to this troublesome notion that being a Christian necessitates marriage discrimination.

Secondly, Obama’s invocation of gender complementarity as an essential aspect of marriage is increasingly hard to maintain. One might of course appeal to the rigorous arguments of queer theorists like Judith Butler showing  that gender is not and has never been a straightforwardly binary structure without slippage. Furthermore, the Christian tradition is full of examples of what we might today call ‘gender-bending’, whether one looks, as Stephen Moore and others have done at the fascinating gender problematics of the Song of Songs, or of the tradition of the ‘manly eunuch’ in Matthew Kuefler’s brilliant work (The Manly Eunuch: Masculinity, Gender Ambiguity and Christian Ideology in Late Antiquity U. of Chicago Press, 2001). Recent critical scholarship has increasingly shown that the Christian tradition is not at one with itself on such matters as gender complementarity.

And yet one need not delve into these historical and theoretical intricacies to render problematic Obama’s reliance on gender complementarity. Even closer to the present, and perhaps especially relevant to readers of this blog, one has only to look at the increasingly tangled legal issues surrounding the marriage of transgendered couples, where attempts at fixing the gender of couples is a very difficult and puzzling legal matter. To take perhaps the most famous example:  Texas, a state that does not recognize marriage between same-sex couples, has recently been forced to deal with this issue when El Paso County Attorney Anne Bernal asked Texas Attorney General Greg Abbott to render a ruling on whether she should issue a marriage license to  Sabrina Hill and her female partner. Hill, born a man in the state of NY but, following gender re-assignment therapy now holding a Washington state birth certificate as a woman, upends the neatness of Texan law. On the face of it, to issue the license would appear to grant a marriage license to a same-sex couple, which Texas does not allow. However, at the time Texas did not recognize the legal right to change one’s gender, and so Hill’s original birth certificate as a man would seem to require Ms. Bernal to issue the marriage license. One can see immediately the tangled legal, ethical, and even biological thickets into which this case necessarily leads. At what level is gender determined: chromosomal, anatomical, cultural-performative? There are no easy answers here, unless, I suppose, one simply refuses to grant marriage licenses to transgender couples of any sort, though this seems a rather far-fetched solution. I wonder whether  cases like Sabrina Hill’s will be dismissed as ‘outlier’ cases irrelevant to legal reasoning and here I would be very interested to hear what our legal scholars at Religious Left Law think!

My own, theological  view is that Sabrina Hill’s case highlights the very  dubious grounds for maintaining a rigid gender complementarity as theologically normative. I am heartened here by the work of theologian  Cameron Partridge, a transgendered Episcopal chaplain at Harvard and a patristics scholar whose work is on the cutting edge of exploring resources within the Christian tradition for re-thinking gender within a Trinitarian, robustly Christian framework.

Obama's decision yesterday is a victory to be celebrated even as there is a great deal more work to be done. There is reason to hope that his position on marriage equality is evolving, and one hopes he will listen attentively to these  Christian and other religious voices from the left in his own theological discernment.  

Why Are We So Anxious?

In 1983, Time Magazine declared that stress was the number one American health problem. Stress contributes to heart disease, strokes, and diabetes and many other maladies.  The nation now spends $300 billion dollars per year because of anxiety, and 18% of Americans suffer from an anxiety disorder. See here. A report last year by the American Psychological Association makes clear that the majority of Americans are stressed and cope with it in counterproductive ways.

Some might think that the economy is the most significant factor in the nation's stress, but a new book by Taylor Clark argues otherwise. According to Clark, our anxiety is caused by our lack of community. Given our mobility and our attachment to technology, our human relationships have become more frail. As Clark observes, when crises comes, we need to turn to close flesh and blood friends, not facebook friends.

Second, Clark argues that the glut of information in the mass media overloads are brains and contributes to a culture of fear - fear that X will cause cancer; fear of crime etc.

Finally, Clark points out that repressing our anxiety (or resorting to alcohol or shopping sprees to cope) only intensifies the problem. Our attitude toward negative emotions is almost precisely designed not to effectively cope with them.

Clark argues (I do not agree) that we live in a society where anxiety is less warranted than before. We certainly can expect on average longer life spans. Yet the USA is the anxiety center of the world. For starters, we might turn off the computer and the television more often and we might stop "Bowling Alone."

It's a Sin to Tell a Lie—Or Isn't It?

Robert George, in a post on Mirror of Justice titled The Left's Turn to Condemn Lying "in a Good Cause," has a challenge for those on the left who have congratulated George and others for declaring that lying is an intrinsic evil, and hence always impermissible, even when used by LiveAction in their Planned Parenthood stings. George says those on the left, especially Catholics, can earn some congratulations themselves by condemning Madison, Wisconsin, doctors who are in some cases are "falsely attesting that protestors have legitimate medical excuses for failing to report for work." George says, "This is out and out lying."

I completely agree. Physicians should not be providing false medical statements for protestors. This is also the position of The Wisconsin Medical Society and the Association of American Physicians and Surgeons. Ford Vox makes a particularly strong case against the practice in a piece in The Atlantic:

They've managed to belittle a public trust between physicians, employers and patients. A doctor's sick note is a serious document. It represents an employer's desire to verify through a respected, independent, medically qualified third party the fact of an illness and the true need for convalescence. In the videos now circulating online, we witness multiple members of a noted family medicine department trash one of the well-recognized rights and privileges of their profession, with little forethought as to the consequences.

UW's doctors have demeaned not only the doctor-patient relationship, but in so doing, risked the stature doctors hold in our discourse on public policy. When commenting on social issues, physicians trade on the honor of our profession, benefiting from the public's assumption that the wisdom won of caring for so many at their most vulnerable imbues us with some privileged understanding of collective need.

It seems to me Professor George is accurately presenting the traditional Catholic view of lying, although a more recent, less absolutist view was found in the first edition of the Catechism of the Catholic Church: 

 2483 Lying is the most direct offense against the truth. To lie is to speak or act against the truth in order to lead into error someone who has the right to know the truth. By injuring man's relation to truth and to his neighbor, a lie offends against the fundamental relation of man and of his word to the Lord. [Emphasis added]

However, then-Cardinal Ratzinger, in approving the official Latin text (the translation of which is the English language second edition), made a slight but significant change in this paragraph, which in the second edition reads as follows: 

2483 Lying is the most direct offense against the truth. To lie is to speak or act against the truth in order to lead someone into error. By injuring man's relation to truth and to his neighbor, a lie offends against the fundamental relation of man and of his word to the Lord.

The "pro-lying" case, when not based on the "right to know the truth" interpretation of lying, seems often to be made by appealing to "intuition" and "common sense"—how could lying to expose such an evil organization as Planned Parenthood be blameworthy? If the Nazi's had come to your door during the Holocaust and asked if you were hiding Jews, can anyone really imagine it would have been immoral to lie and say no? Are undercover cops doing something immoral?  Of course, if you buy those arguments, you might very well argue that fake doctors' notes for demonstrators in Wisconsin are unjustified, but if doctors in Nazi Germany could have saved Jews by providing false medical testimony, it would have been permissible for them to do so. 

Blind Human Rights Lawyer Beaten and Isolated in Chinese Crackdown

 

 Chen Guangcheng, a blind, 39 year old, self-taught, human rights lawyer in China who was recently released after years in prison has been put in home detention, isolated and beaten by authorities. Winner of numerous human rights awards, Mr. Chen was imprisoned for investigating violence and forced abortions against families in China.  He is one of many Chinese human rights lawyers and advocates harassed, imprisoned and disappeared recently.

 

Since being released from prison in September 2010, Mr. Chen, his wife and his young daughter, have been cut off from phone, internet and personal contact.  They are confined to their home which is surrounded by guards 24 hours a day. 

 

China Aid posted a video on their website in which Mr. Chen describes being monitored around the clock by three shifts of 22 agents each.

 

After the video was posted, Mr. Chen and his wife were beaten.  Journalists from CNN, Le Monde, and the New York Times who tried to visit him have been threatened and harassed.  Two lawyers, Tang Jitian and Jiang Tianyong, were detained by police in Beijing after discussing Mr. Chen’s situation, according to TIME. 

 

Mr. Chen, who has minimal formal legal training, began his legal career by challenging his own taxes.  Later he helped an organization of farmers fight to close a paper mill polluting local water.  

 

In 2002, Newsweek recognized Mr. Chen as part of a new generation of “barefoot lawyers” who were helping people assert their legal and human rights. (The idea of “barefoot lawyers” takes its name from the training of local Chinese in basic medical education who were then sent out into their communities as “barefoot doctors.”)

 

The International Federation for Human Rights reported Mr. Chen was arrested in March 2006 after investigating, putting together briefs, and campaigning against the use of government violence and forced abortions in the enforcement of the national population policies of one child birth quotas in Linyi, China.  He spent over four years in prison after a two hour trial where his lawyer was not allowed inside the courtroom. 

 

Now?  “I have come out of a small jail and walked into a bigger jail,” said Mr. Chen, according to UPI, which recognized this as the understatement of the week.

 

Numerous other Chinese human rights advocates and lawyers have been arrested, disbarred or disappeared.  Gao Zhisheng, the most prominent human rights lawyer in China who ran the Open Constitution Initiative from his home, once recognized as one of the top 10 lawyers in China, was hooded and dragged from his home by government agents in 2009 and has not been seen since.  Guo Feixiong, another human rights lawyer, was imprisoned in 2007 after assisting villagers challenging corruption.  Human rights lawyer Liu Shihui, recently denied a license to continue practicing law, was hooded, beaten and had his leg fractured outside his home on his way to a protest is support of the Jasmine Revolution.  Nobel Peace prize winner Liu Xiaobo is serving an 11 year prison sentence for helping draft Charter 08 calling for democratic freedoms; his family is under house arrest as well.

 

What can we in the US do to assist human rights defenders in China? 

 

First, we must work to get our own house in order.  Unfortunately, the US has given the world many examples of human rights violations, especially in the last 10 years.  We must demand transparency and accountability for our own government’s human rights abuses.  Without that, it is unlikely other countries will take the US seriously when it asks others to respect human rights. 

 

Second, we can insist that the US government grow a spine and consistently apply international human rights standards when we deal with other countries.  Most elected officials are concerned about human rights obligations only in the countries where they think US interests are at stake and then human rights are all too frequently just bargaining chips in the quest for economic and military advantage.   

 

Third, we must take individual actions to strengthen human rights and to protect human rights defenders.  The International Federation for Human Rights has a Human Rights Defender program which sends out alerts when human rights advocates are at risk.   People can also write the People’s Republic of China, c/o Embassy for the People’s Republic of China, 2300 Connecticut Avenue, NW, Washington DC 20008.

 

Courageous people like Chen Guangcheng and others should inspire us all to work more diligently and take more risks for justice and human rights in China, in the US, and in all countries.

 

 By Bill Quigley. Bill is Legal Director of the Center for Constitutional Rights and law professor at Loyola University New Orleans.  Contact Bill at [email protected]

 

 

"Covenants of Faith and Fate"

A podcast of a recent talk I gave at the annual week-long Limmud Conference in England is available here.  I'm afraid I can't vouch for the intelligibility of the recording (not to mention the content).  Here's a brief description:

Jews who reject Jewish religion and its ‘covenant of faith’ can nevertheless be accepted as being bound to a ‘covenant of fate’ and a common Jewish identity. But what about the converse? This session will explore the fascinating stories of individuals and groups, from sixteenth-century Russians to contemporary Africans, who adopted forms of Jewish practice and belief without conversion or even contact with Jews. How does this recurring phenomenon challenge our assumptions about Jewish identity?

Limmud, incidentally, is a wonderful experience, with offshoots all over the world, including several in the United States.

The Nature of Secularism

Much of the dialogue surrounding political and legal reform in the Middle East revolves around visions of secularism, which are usually meant to frame the relationship between religion and the state. In the most recent issue of Commonweal, Charles Taylor recasts secularism as the response of the democratic state to diversity. See "Religion Is Not the Problem." See also Charles Taylor's fascinating book, A Secular Age.

Crossposted from Mirror of Justice

We have met the enemy . . . and it is not government!

Sightings  2/21/2011

A Bishop’s Defense of Government

-- Martin E. Marty

Belgian sociologist of religion Henri Desroche once observed three functions of religion in society. Religion normally attests a society when it is in the business of “affirming.” There and then it serves an integrating function. That’s normal: think “God bless America.” Next, in a society that is examining its own premises and reorganizing its constituencies, the function of religion is to be contending “within the limit of contesting the status quo.” Think Martin Luther King, Jr. “In a society that is denying, challenging and refusing its own right to exist, religion appears as a function of protesting, revolting and subverting,” writes Desroche. Think recent Egypt.

Beyond these three functions of attesting, contending and protesting are chaotic movements like anarchism, or, closer to home in today’s America, simple “anti-government” actions, expressions, and tantrums. Think of Ayn Rand’s shrugs and the many current declarations in praise of the selfish individual. Now and then religious leaders, themselves aware of the attesting, protesting, and even, though too rarely, the contending functions of faiths, will examine and take on selfish declarations. One whose words reached publics in the Minneapolis StarTribune and subsequently, of course, on the internet, is Peter Rogness, a bishop within the Evangelical Lutheran Church in America and president of the Minnesota Council of Churches. He had the sense to speak of the obvious to multitudes and the courage to take on the anti-government folk, in a column entitled “Government is not the enemy.”

His question is clear: “Is government us or them?” a question which he follows up with the observation: “With no public announcement, we have changed from a people sharing a common life to several hundred million individuals who happen to live near one another, and we risk losing our soul in that change.” His “we” is “the people” who appear(ed) in so many of “our” founding and later public documents. He adds: “As people withdraw into greater concern for their private welfare, government as public enterprise fades; the ‘we’ becomes ‘they,’ common purpose becomes interference and the poor and vulnerable are left on the margins.”

Government, in our history and for Rogness, is not an “it” or a “them.” “Taxes aren’t theft; they’re the means by which we pool our resources, fairly and with order, to underwrite this common life.” Ready to take on an icon, he looks back to 1981 when an unnamed U.S. President announced, “Government is not a solution to our problem; government is the problem.” The bishop anticipates legitimate debate over his words “fairly and with order.” No party, no policy, has a monopoly on “fairness” and good “order.” Contesting policies and programs is a right and duty of “we the people.”

Rogness asks, “So why is a Lutheran bishop writing a social and historical critique?” He is not unique. Numbers of other bishops do so, among them Archbishop of Canterbury Rowan Williams. They do it because at stake are “values rooted in the faith traditions of the people who make up this state and nation.” And: “A budget is a moral document.” Let debating over budgets continue, something that can’t happen in an “anti-government” moment, which one hopes will not become an era of potential destruction. It would be caused by the “I’s” who, Rogness writes, take care of themselves and do not notice or who do disdain the “others.” These others, the vulnerable and marginal, are prime in the faith traditions of which the bishop speaks.

References

Henri Desroche, Jacob and the Angel: An Essay in Sociologies of Religion (University of Massachusetts, 1973).

Peter Rogness, “Government is not the Enemy,” StarTribune.com, February 6, 2011.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Public Unions as Scapegoats

Robert Reich has a column in which he exposes the false assumptions behind the Republicans attacks on public unions. Republicans maintain that public unions were a major cause of large deficits. It turns out that many states without  public unions have  deficits exceeding 30% of government spending and many states with public unions have deficits below 10%. It is also the case that public employees do not make more money than private employees if education is taken into account. As Reich further observes, if the the Republicans can spotlight attention on public unions, they might divert attention from the rich. Many hedge fund managers have their jobs because of the bailout, and here's the scandal: "Last year, America’s top thirteen hedge-fund managers earned an average of $1 billion each. One of them took home $5 billion. Much of their income is taxed as capital gains – at 15 percent – due to a tax loophole that Republican members of Congress have steadfastly guarded.

"If the earnings of those thirteen hedge-fund managers were taxed as ordinary income, the revenues generated would pay the salaries and benefits of 300,000 teachers. Who is more valuable to our society – thirteen hedge-fund managers or 300,000 teachers? Let’s make the question even simpler. Who is more valuable: One hedge fund manager or one teacher?"

Reich concludes by wondering what the Democratic strategy for combatting this might be. Noam Chomsky had some thoughts about this in the first few pages of an interview by Amy Goodman on Democracy Now (see here). I think he overstates by omission the complicity of the Democrats in anti-union behavior. But he provides enough material to make clear why union leaders would not think of Democrats as unqualified allies.

The heartening news is that people are taking to the streets. If the corporate grip on our government is ever successfully combatted, it seems to me that direct action will have to be the catalyst.

 

Ki Tissa

This past week, Jews read the portion of the Torah (first five books of the Bible) called "Ki Tissa" (Exodus 30:11-34:35), which includes the incident of the Golden Calf.  Here's a D'Var Torah (sort of a sermon, literally "word of Torah") that I delivered at my synagogue this morning during Shabbat services.

            Everything seems to going great.  The people of Israel have been liberated from Egypt with signs and wonders, miracles and song.  They received the Ten Commandments and heard God’s own voice.  Moses goes up the mountain.  He receives the great stone tablets.

            Then he comes down the mountain and encounters horror – the sin of the golden calf.  Moses is outraged.  God is outraged.  We’re outraged.  Cecil B. DeMille is outraged.  It takes a whole lot of negotiation and rebuilding of trust to keep the project of the people of Israel from being permanently defunded.

The World of Work & Labor Law

 
Over at Ratio Juris I've posted a link to my bibliography for the “world of work and labor law” as well as an apologia that is perhaps propitious given recent events in the state of Wisconsin (although I don't address the possible significance of the differences between private and public sector unionism).

Post-Revolutionary Developments in the Middle East and North Africa

 
As I will be turning my attention to other matters for a time, I thought to make available some links essential to following developments related to the quest for democracy and social justice in the Middle East and North Africa (MENA). I’ve not included well-known mass media sources (e.g., Guardian, Huffington Post, The New York Times…). While this list is far from complete, I suspect it will suffice for most purposes, as many of these sites contain further links that are also helpful. Let me know in the comments of any other links you deem “indispensable” and I’ll consider adding them.

• Al-Dameer Association for Human Rights—Gaza: http://www.aldameer.org
• Al-Haq (An independent Palestinian non-governmental human rights organisation based in Ramallah, West Bank. Established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory (OPT), the organisation has special consultative status with the United Nations Economic and Social Council.): http://www.alhaq.org/etemplate.php?id=3  
• Al Jazeera (news): http://english.aljazeera.net/ 
• The Angry Arab News Service: http://angryarab.net/ 
• The Arab Association for Human Rights (Association in Service of the Palestinian Arab Minority in Israel): http://www.arabhra.org/
• Arab Reform Bulletin (Carnegie Endowment for International Peace): http://www.carnegieendowment.org/arb/ 
• 3Arabawy: http://www.arabawy.org/ 
• The Arabist: http://www.arabist.net/ 
• Bikya Masr: http://bikyamasr.com/wordpress/ 
• B’Tselem—The Israeli Information Center for Human Rights in the Occupied Territory: http://www.btselem.org/english/About_BTselem/Index.asp
• End the Occupation (U.S. Campaign to End the Israeli Occupation): http://www.endtheoccupation.org/index.php
• From the field (Augustus Richard Norton) - Excursions on the Middle East, politics, the Levant, Islam in politics, civil society, and courage in the face of unbridled, otherwise unchecked power: http://bostonuniversity.blogspot.com/ 
• Gaza Youth Breaks Out: http://gazaybo.wordpress.com/  
• Haaretz: http://www.haaretz.com/  
• Informed Comment: Thoughts on the Middle East, History, and Religion http://www.juancole.com/ 
• International Humanitarian Law Research Initiative—International Humanitarian Law in Israel and the Occupied Palestinian Territory: http://opt.ihlresearch.org/ 
• International Middle East Media Center: http://www.imemc.org/index.php
• Jadaliyya: http://www.jadaliyya.com/
• Jonathan Wright (journalist): http://jnthnwrght.blogspot.com/
• Links to Israeli Peace Groups (Peace and Justice Support Network of Mennonite Church, USA): http://peace.mennolink.org/articles/israelpeacegroups.html
• Middle East Monitor: http://www.middleeastmonitor.org.uk/ 
• Middle East Nonviolence and Democracy: http://www.mendonline.org/aboutus.html
• Middle East Online: http://www.middle-east-online.com/english/
• The Middle East Research and Information Project (MERIP): http://www.merip.org/ 
• The Moor Next Door (Maghreb Affairs/Geopolitics/International Relations): http://themoornextdoor.wordpress.com/ 
• Never Cast Lead Again: http://nevercastleadagain.wordpress.com/ 
• Occupied Palestine: http://occupiedpalestine.wordpress.com/
• The Palestine Chronicle: http://palestinechronicle.com/
• Palestine Media Watch: http://www.pmwatch.org/pmw/index.asp
• Palestinian Centre for Human Rights: http://www.pchrgaza.org/
• Socialist Project: http://www.socialistproject.ca/ 
• Syria Comment (Joshua Landis): http://www.joshualandis.com/blog/ 

End the Subsidy for Commercial Broadcasters?

House Republicans are proposing to end the subsidy to public broadcasters purportedly as a deficit cutting measure. If they were serious about that and if it were not an ideologically motivated exercise, Republicans should jump at the chance to eliminate the much larger subsidy for commercial broadcasters. Both commercial and public broadcasters are permitted to use the frequencies for free. In the case of commercial broadcasters, this is a massive giveaway because they can and do charge advertisers for access to the frequencies. Commercial broadcasters are even permitted to sell the frequencies they have received for free. I recall many years ago a station in a major city being sold for hundreds of millions of dollars.

Why don't we end this free use of the public airwaves? Why don't we charge broadcasters before we give them a license to gobble up money? The theory used to be that these broadcasters were licensed to be public trustees. In practice, with deregulation, commercial broadcasters are trustees for commercial advertisers. There is a name for a system in which commercial broadcasters collectively are given this subsidy (a subsidy worth tens of billions of dollars): it's called corruption.

Left Behind: Taking Reinhold Niebuhr to Hell

As a deeply appreciative reader of Religious Left Law for some time now, I am delighted to have been asked by Steve Shiffrin to participate on this blog. As an Episcopal chaplain here at Cornell and a doctoral student in theology at Syracuse, I suppose my competence falls more on the ‘religious’ than on the ‘law’ side of the blog, so I will use my posting privileges to ruminate on what a progressive political theology might look like for our time.

In 1933, Reinhold Niebuhr, in an attempt to re-vitalize what he considered a politically and ethically stagnant religious left in America, wrote that what was needed was ‘‘a more radical political orientation and more conservative religious convictions than are comprehended in the culture of our era.’  Unwilling to concede theological integrity to the theo-political right, Niebuhr famously re-introduced such seemingly moribund notions as original sin to account for what post-niebuhrian theologies will sometimes call structural or institutional sin. He then used this creative re-reading of the Augustinian tradition to launch a Marxist influenced attack on corporate power and greed (Henry Ford was a favorite target),  religious nationalism, and the complicity of liberal elites in economic inequality.

Niebuhr’s theo-political vision is a rich and complex one. He was not always clear about the theological import of the political language he brilliantly wielded, and his oeuvre has inspired, ironically, the likes of neo-conservative thinkers like Richard Neuhaus. When one of the inheritors of the Niebuhrian tradition, Jim Wallis, questions the very use of the political idiom of ‘left’ and ‘right’, ‘liberal’ and conservative’, he is perhaps cautiously warning of the potential straightjacket the Niebuhrian position can lead to when it allows its own biblical idiom to be thrust into a notoriously narrow political landscape.

Nevetheless, I remain convinced of the soundness of the Niebuhrian vision of a progressive politics married to a theological vision that refuses to give ground to those who would seek to push progressive voices outside the reach of the life-giving wellsprings of our various spiritual traditions. I am in deep agreement with Steve’s recent post “Spiritual, But Not Religious” suggesting that  many young people are seeking a religious voice that is progressive in its political orientation. In my view this desire is combined with a deep longing to be re-connected to the rich and life-giving spiritual traditions and practices that sustain one in fighting social, economic, and political injustice against very long odds.

Niebuhr’s  mobilization of original sin for radical political ends is thus one of a number of powerful examples of how progressive religious voices can re-claim spiritual nourishment from reactionary forces. Perhaps it is true that Niebuhr did not always see that such a stance may lead one, not into the hallowed halls of political power and theological neo-orthodoxy, where he often liked to find himself, but into the very precincts of the powerless,  what the psalmists knew as sheol, or hell-on-earth.

 Yet I suspect that the author of the famous Serenity Prayer would have appreciated this saying from the twelve step rooms for those on the verge of being banished to the outer darkness by reactionary religious forces: ‘Religion is for those who are afraid of going to hell. Spirituality is for those who have already been there.”  A theology born out of hell? It may be even less obvious than the Niebuhrian recovery of original sin,  but it is my own sense  that  just such a politics of spirituality  is needed in our day, when hell on earth is all too real for so many, and thus where people of faith most need to abide- in solidarity and in fighting, hopeful love. And hell born by the merciful heart of love may prove to be far more hospitable a place to wrestle with God than any orthodox or neo-orthodox dream of heaven has ever imagined. Certainly no one has ever been turned away from approaching and even entering through hell's gates! And oddly enough, as the great Algerian writer Hélène Cixous noted after time spent in a Cambodian refugee camp, this 'hospitality of hell' may be the very ground of a new political hope for those on the left and for those left behind. 

 

 

Spiritual, But Not Religious: Comparing Europe and the U.S.

It is commonly thought that Europeans are godless. In fact, as Grace Davie and Andrew Greeley in independent work have confirmed, more than half of Europeans believe in God, but they do not belong to any religious denomination. Davie calls this “believing without belonging.” We might call it “spiritual, but not religious.”

As I discussed yesterday a rising percentage of Americans belong to no religious denomination. Many might assume that these American are atheists or agnostics, but as Putnam and Campbell argue in American Grace, a very small percentage of this group fall in the category of atheists or agnostics. They are classic believers who do not belong.

Most interesting, at least to me, is that the principal cause of joining this group is political. Jose Casanova has argued that a principal cause of Catholics leaving the Church in Europe was its tight connections with corrupt dictators and kings. There is an irony here. The Church often maintained these connections in order to receive privileges to aid its evangelization. But doing so had huge anti-evangelical effects. Of course, sometimes it was more complicated. The Church sided with Franco in part because the socialists were killing priests (I am not sure if the Church ever considered being neutral). In any event, anticlericalism is a significant aspect of those who belong to no church in Europe.

The rising number of those who belong to no religious group in the United States is also politically motivated. According to Putnam and Campbell, it is primarily a reaction against the religious right. There is a strong tendency among young people (the largest component of this group) to associate organized religion with the religious right and a tendency to see the religious as hypocritical, judgmental, homophobic and insincere.

The sociology of religion suggests that as people grow older and have children, they turn to religion (though the Europeans do not fit that pattern). If the young turn to organized Christian religion in the U.S. when they have children, they are likely to turn to mainline Protestant churches rather than to Catholic or evangelical churches. If immigration is not considered, the Catholic Church in the U.S. has already experienced a percentage decline equivalent to that of mainline Protestants. It may not get better for the Catholic Church. Putnam and Campbell argue that churches that are distant from the political right have a recruiting opportunity with this increasingly large group. If in Europe those who do not belong are anti-clerical; in the U.S. those who do not belong are opposed to conservative views of sexuality in general, and conservative views of same sex relations in particular.  

Update: It turns out that those without a religious home tend to stay that way even after having children. Indeed, the percentage of those leaving this category is lower than any of the major religious traditions. By contrast, 60% of Anglo Catholics leave the Church entirely or are only nominal Catholics. Importantly, the retention rates for Latino Catholics is far higher, a factor that will become more and more significant in the future.

Update: 

SD "Abortion Doctor" Bill

The South Dakota legislature is about to consider the following bill:

FOR AN ACT ENTITLED, An Act to expand the definition of justifiable homicide to provide for the protection of certain unborn children.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 22-16-34 be amended to read as follows:
22-16-34. Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.
Section 2. That § 22-16-35 be amended to read as follows:
22-16-35. Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, or the unborn child of any such enumerated person, if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

Critics have said that the bill would make it justifiable homicide to kill an abortion doctor where doing so would prevent an imminent, legal abortion at any stage of pregnancy.  The bill's sponsor disputes this.  According to TPM, he says that the bill would not apply to an abortion doctor performing a legal abortion because the abortion would not be homicide.

On a purely textual reading of the bill, the critics seem to have the stronger argument.  The bill does not permit killing someone about to commit "homicide" on a fetus.  It permits killing someone about to harm your unborn child "in a manner and to a degree likely to result in the death of the unborn child" (sec. 1) OR who is about to "do some great personal injury" to the fetus of another person (sec. 2).

Section 1 appears to only provide a right of self-defense and to extend that right to one's fetus.  A woman seeking an abortion would not be the one trying to kill the doctor in defense of the fetus she is about to abort.  So this part of the bill is broadly consistent with the sponsor's characterization.  But Section 2 extends the right of to kill in self-defense to encompass a right to kill in defense of a limited universe of third parties -- those who are husband, wife, parent, child, master, mistress or "the unborn child of any such enumerated person."  If I'm reading the bill correctly, this could easily lead to a situation in which the law would justify the killing of a doctor performing a legal abortion.  If a woman is seeking an abortion and her husband (or father or mother) does not approve, that person could kill the abortion doctor (as long as the danger to the fetus is imminent) and then claim the protection of this statute.

UPDATE:  As a commenter over at dotCommonweal has pointed out, section 1 could be read to empower fathers to kill an abortion doctor.  I had been reading the "such person" language as limiting the right under section 1 to the person undergoing an assault that also threatens the fetus (with section 2 covering aid by third parties), but I agree with the commenter that section 1 could be read as applying to fathers as well.  Needless to say, this further cuts in favor of the critics of the bill and against the sponsor's understanding.

The Sociology of U.S. Religion

I recently discovered a treasure trove of data about the sociology of religion in the U.S. though it has been sitting on the web for some time. The survey by Kosmin and Keysar (see here ) involved answers from more than 54 thousand respondents. I am surprised by the large and rising number and character of those who have no religious identification - up to 20%. Interestingly, the stereotype that those with no religious identification is a function of class or education is false. The Nones are not marked by either (see here). The rise of the Nones has come at the expense of mainline Protestant and other Christians (see here) except Catholics whose numbers have remained constant - though as I have discussed before, only because of immigration. If immigration did not help Catholic numbers, the percentage of Catholic decline would be the same as mainline Protestants. Speaking of Catholics, as I have mentioned before, the second largest "religious group" in the United States is former Catholics.

For further discussion of this data, see Mark Silk's February 15th post on his excellent blog Spiritual Politics.

Immigration and Race

[Cross-posed at dotCommonweal]  Here’s the transcript of a back and forth between Republican Kansas state legislator Connie O’Brien and a Democratic counterpart (Rep. Sean Gatewood) on a legislative committee discussing the payment of in-state tuition by the children of illegal immigrants.

REP. O’BRIEN: My son who’s a Kansas resident, born here, raised here, didn’t qualify for any financial aid. Yet this girl was going to get financial aid. My son was kinda upset about it because he works and pays for his own schooling and his books and everything and he didn’t think that was fair. We didn’t ask the girl what nationality she was, we didn’t think that was proper. But we could tell by looking at her that she was not originally from this country. [...]

REP. GATEWOOD: Can you expand on how you could tell that they were illegal?

REP. O’BRIEN: Well she wasn’t black, she wasn’t Asian, and she had the olive complexion.

Where to begin….

Assessing the Democratic Legitimacy and Political Authority of the Supreme Council of the Armed Forces during the Transition to Democracy in Post-Revolutionary Egypt

The following are a few (very) tentative and thus preliminary thoughts regarding the assessment of the democratic legitimacy and political authority of the Supreme Council of Armed Forces* in Egypt during the post-revolutionary transition to democracy. At a later point I would hope we can articulate more systematically and in a generalizable fashion, the criterial standards essential to assessing the behavior of actors and institutions during “extra-legal” transitions to (constitutionally) democratic regimes.

Are not revolutions by definition “extra-legal” socio-political events? If so, one of the foremost questions we need to ask is if they are, at the same time, “democratic” in the sense that they somehow (perhaps only making the claim to) represent the “will of the people” (or democratic sovereignty). In this case, and without going into the various reasons that lead to the conclusion, I think we can safely answer in the affirmative. The next question, in the instant case, is whether the Supreme Council of the Armed Forces in Egypt can be said to fairly represent in institutional form, the extra-legal yet democratic “will of the people” in the transitional period to a would-be democratic regime. One way to establish its “authority” (and by implication its legitimacy) in this regard would be to assess its commitment to democratic methods and processes (e.g., reliance on consultation, representation, bargaining, negotiation, and so on) during the transitional period, including its capacity and willingness to be, as it were, constitutionally-sensitive, that is, to evidence pre-occupation with amending or modifying the existing constitution or forming a coordinating convention by way of making a new constitution giving concrete institutional and representational form to democratic sovereignty or will, a will that took on revolutionary form and thus extra-legal character only as a necessary means toward attaining long-term democratic embodiment, institutional and otherwise.

   Constitutional sensitivity is only one of the criteria we might invoke to assess the temporary political authority of the Supreme Council, such authority according it prima facie democratic legitimacy. For the representation of the “will of the people” is not, at least in our day and age, simply an aggregative exercise that endeavors to fairly represent the collective expression of individual “voices/votes,” for the right to collective self-determination is (at least arguably) constrained by justice and basic moral principles generally, constraints that entail directly or by implication a commitment to basic human rights, such as those rights exercised and advocated by “the people” during the revolution. So alongside “constitutional sensitivity” and “reliance on democratic methods and procedures,” we have “respect for basic human rights” (avoiding here the precise content of any such list) as among the criteria we can use to assess the legitimacy of the democratic political authority assumed by the military during this extra-legal transitional moment. One immediate question raised in this vein is whether or not the Supreme Council should permit organized labor’s “right to strike,” a right it seems, at this point at any rate, reluctant to grant. In addition, the Supreme Council’s willingness to acknowledge if not represent the myriad groups and movements of the organized democratic opposition in civil society provides tangible evidence of whether or not it is meeting (or shows signs of attempting to meet) our aforementioned “democratic” and “legal” criteria for the transition to democracy of some sort. Thus, for example, the Council should accord serious consideration of the proposals proffered by the Forum of Independent Human Rights Organizations: Roadmap for a Nation of Rights and the Rule of Law.

“Extra-legal” thus need not denote or connote a lack of respect for legality (e.g., either ‘authoritarianism’ or ‘mob-rule’) or even the necessary absence of a “culture of legality,” especially insofar as these are related to democratic legitimacy. After all, it’s such “extra-legal moments” that give birth to exemplary, foundational, or constitutive coordinating conventions that result in democratic constitutions, and thus their (temporary) “extra-legal” character is not necessarily an expression of disregard for legality or an indication of the poverty of existing legal culture. Intriguingly, such a culture may have been “underground” in the pre-revolutionary period inasmuch as it existed, notionally, that is to say, normatively and ideally, as an aspirational goal in the hearts and minds of those actors in civil society who mobilized of behalf of the revolution.

*As to the public political intentions and policies of the military, all we have to rely on to date are the following five communiqués.

Addenda: Jonathan Wright examines some myths about the Egyptian military here. He also provides us with a “full translation of the informal minutes of a meeting between two members of the Egyptian ruling military council and eight of the young people who helped organise the protest movement that brought down President Hosni Mubarak. The minutes, a historic document, were drafted by Wael Ghonim and Amr Salama from the youth movement, and so they are not endorsed by the generals.” See here.

[cross-posted at the Ratio Juris blog]

Obama's Relationship to the Business Community

Patrick O'Donnell posted this link on his Facebook page to an essay by Richard Flacks, a distinguished emeritus Professor of Sociology at UC Santa Barbara, the author among other things of Making History: The American Left and the American Mind (recommended by Patrick on this site some time back), and a long-time political activist from SDS days to the present. I think the essay Patrick linked to is a must read with surprising insights about the politics of Obama's relations with business, surprising because there are more progressive aspects to those politics than are generally assumed - but Flacks presents a critical perspective as well.

 

The Sound of Silence

From The New York Times

A week from Tuesday, when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.

 If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.

 

The Egyptian Revolution, 2011...What's Next? [Updated 2/14/2011]

 

 

1919 Revolution: “Egypt, occupied by Great Britain in effect since 1882, achieved its independence from colonial rule only in the aftermath of sustained protests. In the wake of the 1919 revolution, and after two years of stalled negotiations, the British abolished martial law and granted Egypt unilateral nominal independence from colonial rule in February of 1922. Despite this, the British continued to maintain control over the security of imperial communications, the defense of Egypt, the protection of foreign interests and minorities, and the Sudan. The 1919 revolution had two stages: the violent and short period of March 1919 that involved large-scale mobilizations by the peasantry in rural areas that were suppressed by British military action; and the protracted phase beginning in April 1919 that was less violent and more urban, with the large-scale participation of students, workers, lawyers, and other professionals.” (Omnia El Shakry at Jadaliyya)

1952 Revolution: “Egypt’s 1952 military coup and revolution led by Gamal Abdel-Nasser and the Free Officers ousted Egypt’s decadent monarch, King Faruq, and put Muhammad Naguib as President of the new Republic in his place. An understanding of this period of Egyptian history helps to clarify somewhat the ambivalent attitudes towards the military in Egypt, and the initial expectations of protestors that the military would help protect them from Egypt’s violent security and police services.

Interpretations of Nasserism have centered on the state apparatus. Discussions have focused on the authoritarian-bureaucratic state structure, characterized by a highly state-centralized process of socio-economic development, a corporatist patrimonial state bourgeoisie, a single-party system bolstered by a repressive state apparatus, and a populist nationalist ideology. This political formation, interpreters argue, proved incapable of radically restructuring the Egyptian state, society, and economy, as signaled by the failure to build a fully industrialized, capitalist or socialist, liberal democratic nation-state. This is the classic ‘authoritarian military dictatorship model’ we have been reading about in the press. But such a monolithic model fails to adequately capture the complexity of Nasserism.

Nasserism was equally characterized by an ideology and practice of social-welfare, premised upon the state apparatus as arbiter not only of economic development, but also of social welfare. Such a social welfare model was premised on an ethical covenant between the people and the state, a social contract in which the possibility of revolutionary or democratic political change was exchanged for piecemeal social reform and the amelioration of the conditions of the working classes. It was further based on a view of ‘the people’ (al-sha’ab) as the generative motor of history and as resources of national wealth (the motor of its development, as it were); and an interventionist policy of social planning and engineering. Social welfare, of course, should not be understood as a benevolent process whereby the state shepherds citizens in their own welfare. Rather, it entails the social and political process of reproducing particular social relations, often based on violence and coercion, at least partly to minimize class antagonisms.” (Omnia El Shakry at Jadaliyya) 

2011 Revolution: “Rather than view the spontaneous eruption of protests on January 25, 2011 as signaling the absence of ideological or political cohesion, we can view it instead as the product of an unprecedented historical assemblage of complex forces and contradictions. As Mohammed Bamyeh noted in ‘The Egyptian Revolution: First Impressions from the Field,’ the revolt has been characterized by a large degree of spontaneity, marginality, a call for civic government, and an elevation of political grievances above economic grievances. Thus, we have seen the participation of a wide range of groups with differing ideological orientations but nonetheless coherent and articulate in their demand for an end to the ancien regime. These have included strong elements of trade unions and other labor organizers, such as the April 6 movement (named after its call for a General Strike in support of the workers in Mahalla). Indeed, since 2008 there has been a tremendous upsurge in labor and union organizing. But labor movements do not exhaust the types of players involved—including, of course, the new social movements (whether leftist, feminist, legal-judicial, NGO based, or social-media galvanized organizations) discussed in Paul Amar’s ‘Why Mubarak is Out,’ as well as the Muslim Brotherhood who have publicly declared their commitment to a civil and pluralist government.

Those on the ground in Egypt know what they want: an end to Mubarak, and end to the emergency laws that have strangled political expression in Egypt since 1981, a civil government with a new constitution guaranteeing elections and the curtailment of political power, and trials for those involved in the massacres of the protesters. Despite the machinations of the West, it is clear that what will simply not do is an insinuation of ancien regime forces of any kind into a post-Mubarak Egypt, whether neo-liberal robber barons, counter-revolutionaries, or political opportunists. The voices from Tahrir, Alexandria, Mahalla, Suez, and Minya must be heard in their call for a ‘reversal of the relationship of forces.’ In other words, this is a people’s revolution.”—Omnia El Shakry, “Egypt’s Three Revolutions: The Force of History behind this Popular Uprising.”

The Egyptian Revolution of 2011: a truly democratic, non-violent social revolution made, in the end, by all sectors of the Egyptian populace persevering in the face of fear, threats and intimidation, lies, economic uncertainty and insecurity, repression, Realpolitik and conventional power politics, Islamaphobia, violence.... We are privileged to be witness to this remarkable moment in history.

The nonviolent revolutionaries of Egypt have achieved one of, if not their foremost, short-term goals, namely, the removal of Hosni Mubarak from office as President of Egypt. Mubarak “gave up” the Presidency. It is a sweet day in Egypt, indeed, across the Arab world. In fact, all of us around the planet who believe in democracy and social justice have cause to join our brothers and sisters in Egypt in this moment of celebration. The highest political power in the land now formally rests with the Egyptian armed forces. Egyptian activists are right to feel--as one of them said on Al-Jazeera while I’m composing this--that “now, anything is possible.” Egyptians have discovered afresh that with intelligence, passion, courage, and determination, they too can, as individuals-in-collective-and-concerted-action, “make history.”

Daniel McMullin

I am pleased to announce that Daniel McMullin has agreed to join our blog as a contributor.

Clark West

I am pleased to report that Clark West has joined our site as a contributor.

California Supreme Court and Zip Code Privacy

The California Supreme Court ruled yesterday that retailers could not ask customers for their zip code in credit card transactions because it violated a California statute designed to protect privacy. My first reaction was that the statute as interpreted reflected a rather exquisite conception of privacy. If someone at Buffalo books asks my zip code, I will have revealed that I live in the general Ithaca area. Perhaps it is devil-may-care on my part, but I do not see this as a significant prying into my private life. Moreover, I see how asking for a zip code might protect me if someone has stolen my credit card.

But it turns out the Court ruling was not as sweeping as some sources have reported. Gas stations can still ask for zip codes at the pump; retailers like Williams-Sonoma may not. What's the difference? Well I'm glad you asked. The gas station does not retain the information. It sends it directly to the credit card company for verification. But Williams-Sonoma is alleged to have retained the information in a successful effort to find customer's addresses which are then used to send catalogues and Williams-Sonoma is alleged to have sold the information to other businesses. I think it is reasonable to confine a retailer to using a zip code for checking on a credit card transaction and prohibiting its retention.

The issue is settled in California - unless a first amendment cheerleader successfully argues that prohibiting a merchant from asking for a zip code violates the Constitution. But it is not settled elsewhere.  That issue is coming to a state near you.

Immigration and Indigenous Theology

By Colin Bossen

From Sightings  2/10/2011

I did not go to jail expecting to meet a theologian. But jail was where I met Tupac Enrique Acosta. Tupac, like me, was arrested in front of one of the Maricopa County Sheriff’s offices for protesting against Arizona's anti-immigrant law SB1070 on July 29, 2010. Unlike me, Tupac had an analysis of the bill's place in history that put it firmly within the context of the ongoing repression of the indigenous peoples of North America.

Tupac, who would probably reject the label theologian, is the leading figure behind the Phoenix-based Nahuacalli, an organization that describes itself as "A Cultural Embassy of the Indigenous Peoples." He is also closely linked with Puente, the grassroots organization behind many protests against SB1070 in Phoenix, and Puente's leader Salvador Reza. Understanding his views on SB1070 illuminates that, for some, the struggle over immigration is about something larger.

In Tupac's view the history of SB1070 does not begin in 2010. It begins in 1492 with Christopher Columbus's arrival in the Western Hemisphere. Columbus's "discovery" of the Americas prompted European political and religious leaders to develop what indigenous activists refer to as the "Christian Doctrine of Discovery." This is the belief that because the lands of the Western Hemisphere were without Christians prior to 1492 they were free for the taking upon "discovery." For activists like Tupac, the issues as stake in SB1070 are not so much political as theological.

Tupac shared his analysis with me as we waited to be processed through the legal system in holding cells and, later, when we were bunkmates in the cell block. More than once our conversations were interrupted when we were moved, it appeared arbitrarily, between cells. They were also interrupted when the Maricopa County Sheriff Joseph Arpaio came into our cell to "talk" with us. Sheriff Arpaio, who is currently under investigation by the United States Department of Justice Civil Rights Division, runs what he likes to call "America's toughest jail." He is known for his tactics of intimidating and dehumanizing prisoners, including trying to humiliate male prisoners by placing them in pink underwear and pink handcuffs.

Rather than intimidate us, Arpaio served as an unwitting example for our impromptu seminar on the Christian Doctrine of Discovery. Tupac suggested to me that the logical outcome of a legal system grounded in such a doctrine is laws like SB1070 and men like Sheriff Arpaio. SB1070 would not exist without the doctrine. Arpaio exists to enforce it.

As we sat together in jail Tupac traced the history of the Christian Doctrine of Discovery from its origin to its often unacknowledged presence in contemporary debates about immigration. He suggested that the doctrine was first articulated in Pope Alexander VI's 1493 Papal Bull "Inter Caetera" and the 1494 Treaty of Tordesillas between Spain and Portugal. Together these documents created a theological and legal framework that justified the expropriation and division of indigenous lands by Spain and Portugal.

In the view of Tupac and many indigenous legal scholars the framework created to facilitate the seizure of indigenous lands continues to form the core of much of federal property law today. This is particularly true as it relates to indigenous property claims. The indigenous legal scholar Steven Newcomb, for example, has found traces of the Christian Doctrine of Discovery within U.S. Supreme Court cases as recently as 2001.

Tupac believes that the principles of the Christian Doctrine of Discovery are operative in SB1070 as well. As he told me, "the purpose of SB1070 was to consolidate the perceptions of some white Americans around the idea of an America that is white in a continent that belongs to them." In his view, SB1070 is just another attempt to assert non-indigenous dominance over the continent. After all, SB1070 is designed to enforce a border that divides not only the United States and Mexico but the indigenous peoples who belong to the Uto-Aztecan language group. They have been moving back and forth between what is now the U.S. and Mexico long before either country existed. SB1070 criminalizes their traditional freedom of movement.

As Tupac understands it, the struggle against SB1070 is the continuing indigenous struggle against colonialism. As he said in a talk, "When we did that marching... we didn't come to legalize ourselves before the state of Arizona. We came to legalize Arizona... Now, let's get this clear, colonization is illegal... If we're going to legalize Arizona we have to decolonize Arizona." Elsewhere he has written that "SB1070 is not a law." He makes this claim because he believes that the entire framework of laws governing immigration rest upon the Christian Doctrine of Discovery. For him, the Mexican and Central American migrants are indigenous and those who would keep them from coming to the United States are the descendants of colonizers.

Tupac and I were briefly reunited when I travelled back to Arizona to stand trial. After a day-long trial which touched on none of these issues the judge ruled us not guilty. Then Tupac set to work again to educate people about the Christian Doctrine of Discovery and passed around a flyer titled "SB1070 is Not a Law."

References

Steven Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum Publishing, 2008).

Vine Deloria, Jr., God is Red: A Native View of Religion (Fulcrum Publishing, 1994).

Watch Tupac Enrique on a panel with Cornell West at North High School in Phoenix on October 2, 2010 at http://www.yotube.com/watch?v=S6t2esf1Hgk.

The Nahuacalli official website can be found at http://www.nahuacalli.org/.

[Colin Bossen is minister of the Unitarian Universalist Society of Cleveland. He keeps a blog at http://infidelity.blogsome.com/.]

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Communion Without Baptism: The Insightful Perspective of Sara Miles

Some time back I cited (here) a series of articles at Episcopal Cafe that opposed opening communion to the unbaptized. Sara Miles, whose book Take This Bread was mentioned in one of Taryn Mattice's comments (both worth reading) to my post yesterday A Beautiful Prayer, wrote an insightful comment to the last of the series (see here) which persuasively argues for an open table: "My first communion (at St. Gregory of Nyssa in San Francisco) was an entirely unexpected experience of the risen Christ in bread and wine: it knocked me upside down and drew me inexorably toward baptism. While my own conversion might not represent the way things are supposed to happen, it's the way they did happen.

"I hesitate to draw broad conclusions about what that experience means for others, and I agree that individual experience is not the point here. But as someone who's been baptized now for ten years, and continues to share communion with unbaptized people, I'd like to offer some observations.

"I completely agree that the secular rhetoric of "inclusion" or "welcome" is inadequate to explain what's happening sacramentally during communion. Offering communion in order to be friendly, polite, or socially broadminded toward the unbaptized quickly reduces a mystery of God to being about our niceness.

"The pastoral reason for offering communion to everyone without exception strikes me as being far more about the spiritual health of the baptized partakers––we who say repeatedly that we're not worthy to receive the meal, and yet frequently pretend that we're somehow prepared for it. I think it's good for Christians to eat bread and wine alongside people who incarnate the truth that nobody gets communion because she deserves it––or, for that matter, understands it. It's good for Christians to see that we can't control who is going to hear the good shepherd's voice, or when. It's good for Christian churches to feel themselves hungry and in need of something they cannot manage.

"It's one thing to pride myself that, from a privileged position of correct belief, I'm generously sharing communion with unbaptized outsiders to make them feel "welcome." It's a very different thing to have to witness God's extravagant love for the unprepared, the unworthy, the laborers who show up at the 11th hour...to learn that God might be using foreigners, the unclean, the Gentiles and even the wicked to save me and my tribe, and to show us something about the wideness of his grace.

"Grace is not sequential. It frequently shows up at the wrong time, to the wrong people. It doesn't follow the logic of the world. I'm not sure how we will discern the movement of the Spirit in our present struggles over communion before baptism. But I'm pretty sure it's a mistake to imagine the Spirit tidily walks everyone through a ladder-like curriculum of spiritual development before she decides to blow."

For more on Sara Miles and her writings, see http://saramiles.net/

A Beautiful Prayer: Comparing a Catholic Practice with a Protestant Practice

Yesterday I explained why I left the Catholic Church. One of the aspects of the Church that persistently troubled me were the attempts without biblical foundation to say which sinners could receive communion and which could not (consider those who had impure thoughts and not made it to confession, the divorced, the politicians and less prominent persons whose views on abortion were unacceptable etc.). This policing in my view was hard to reconcile with the presence of Judas at the last supper and it is contrary to the whole spirit of the gospels. Much closer to the spirit of the gospels in my view is this beautiful prayer composed by someone at Iona (an island off the coast of Scotland) and used by the Cooperative Protestant Ministry at Cornell:

The table of bread and wine is now to be made ready.

It is the table of company with Jesus,

And all who love him.

It is the table of sharing with the poor of the world,

With whom Jesus identified himself.

It is the table of communion with the earth,

In which Christ became incarnate.

 

So come to this table,

You who have much faith

And you who would like to have more;

You who have been here often

And you who have not been for a long time;

You who have tried to follow Jesus,

And you who have failed;

Come. It is Christ who invites us to meet him here.

The Impetuous Folly & Perils of Pax Americana: The MENA Variation

Perhaps some RLL readers would be interested in this post at Ratio Juris.

Update: On an “Orderly Transition” from a Non-Violent Revolutionary Perspective is also up at Ratio Juris.

Why I Left the Catholic Church

Several months ago I left the Catholic Church. I had never been an Orthodox Catholic. I had been the kind of Catholic who drew more sustenance from Commonweal Magazine than from the Vatican. Like most Catholic subscribers to Commonweal, I disagreed with Vatican teachings about a range of important moral issues. In some cases, I thought the Vatican was simply wrong (e.g., homosexuality); in others I thought the Vatican was overly rigid (e.g., divorce, birth control). I objected to the alliance between Church leadership and the Republican Party and to its privileging of the abortion issue over all other moral issues. I was offended by the exclusion of women from the clergy and the exclusion of those who are married from the clergy particularly because of the declining availability of the sacraments. And I was outraged by what I regarded as the criminal handling of the sex abuse crisis especially when the Church declared that gays were not fit to raise children. From my perspective this was not only wrong, but the moral standing of the Church to discuss the raising of children had already been seriously tarnished.

I stayed in the Church despite these and other views as do most Commonweal Catholics. The Church has many many strengths. I particularly admire its fostering of a demanding Christian life, its historic commitment to the Christian message of helping the oppressed, its rejection of the materialistic consumerism of modern society, and its recognition of the limitations of capitalism. Nonetheless, It was annoying to have to say to people, “I am a Catholic – but . . .” Despite the "but," I identified as a Catholic and I was fortified by the fact that there were so many other liberal Catholics like me. Part of it also was that I liked the Cornell Catholic Community – a nurturing and welcoming church attended by Orthodox and liberal Catholics alike. The goal of the leaders of the Cornell Catholic Community was and is to build on those views that parishioners shared to strengthen their faith, their love of God (particularly in light of God's love for us) and neighbor, and to emphasize the importance of prayer as a part of and deciding how to live a Christian life.

Nonetheless, for me, the Pope and the Bishops were the elephant in the room.  Particularly disturbing to me was a U.S. Bishops’ statement, “Happy Are Those Who Are Called to his Supper.” As I read the statement, a statement made on the same day the Bishops also reaffirmed their views on birth control and homosexuality, it says if you cannot bring yourselves to agree with us on moral issues after trying, you have separated yourself from the church and should not receive communion. As one prominent ethicist told me, this is not yet part of the magisterium and can be safely ignored. As another good Catholic said, I know the Catholic leaders do not want me, but “they will have to throw me out.” Nonetheless, the statement is part of a larger web of discourse which I understood to mean that liberal Catholics are not really Catholics. For my part, I spent far too much of my spiritual energy resenting the actions of Church leaders and sometimes them as a group. For me, the Catholic Church had become a place in which my spiritual development – such as it is – was being arrested, not nurtured by my membership.

I admire those liberal Catholics for whom the Church is a spiritually satisfying place – despite its limitations. For many of them, church leadership is far away – not an elephant. Or it is an elephant, but the idea of leaving is not a category. For me it was a category because I had left before and when I returned, it was not on the ground that it was the one true church. I had always thought there are many paths to the same God. So now I am a mainline Protestant attending a wonderful church (a note on that tomorrow) with visits here and there to my local Catholic Church, a church which I continue to hold in high regard.

The Transition in Egypt from Tahrir Square to Democracy: Recommended Reading

 

 
By way of an analytically and theoretically sensitive introduction to and taste of the myriad kinds of issues the oppositions groups and parties in Egypt will face in the transition “from Tahrir Square to democracy,” see the following books: Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, UK: Cambridge University Press, 2004); Jon Elster, ed., The Roundtable Talks and the Breakdown of Communism (Chicago, IL: University of Chicago, 1996); Jon Elster, Claus Offe, and Ulrich K. Press (et al.), eds., Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea (Cambridge, UK: Cambridge University Press, 1998); and Cass Sunstein, Designing Democracy: What Constitutions Do (New York: Oxford University Press, 2001).

One particular salient and poignant if not urgent issue revolves around the formal (or quasi-formal) representation of the many young Egyptians participating in the uprising that to-date have not been involved in, or even necessarily identify with, existing secular and religious political parties.

There may be some lessons to be derived from the following book as well: Mona N. Younis, Liberation and Democratization: The South African and Palestinian National Movements (Minneapolis, MN: University of Minnesota Press, 2000). Indeed, while many of the transitional problems faced by post-apartheid South Africa were (and are) clearly of a different order than those Egyptians will face, I think the South African experience is worth studying in-depth. Perhaps later I’ll find the time later to post some titles from the growing literature documenting and critically examining that experience.

Addendum: I was remiss in not mentioning Bruce K. Rutherford’s prescient book, Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World (Princeton, NJ: Princeton University Press, 2008).

Added February 8, 2011:

Courtesy of Ruthann Robson of the Constitutional Law Prof Blog:

“Clark Lombardi has been posting some thoughtful analysis over at Comparative Constitutions, including tackling the large question about the relevance of ‘a constitution’ during regime change.  For an in-depth and scholarly consideration, Tamir Moustafa’s The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge, UK: Cambridge University Press, 2007) comes highly recommended by ConLawProf Miguel Schor.”

[cross-posted at Ratio Juris]

Thinking about Egypt as a Person of Faith

Commmonweal currently has interesting pieces on events in Egypt here and here.  A stable Egypt has contributed to peace in the region since the Camp David Accords, but our economic and strategic support of the regime has undoubtedly been in tension with our commitments to democracy and human rights.  As someone who studies the region, I believe that this is a complicated situation that belies simplistic solutions.  Let us pray for leaders in the U.S. and Egypt and most importantly for peace, justice, security and the defense of human dignity in Egypt.

(Crossposted from Mirror of Justice)

Simone de Beauvoir and the Transcendence of Realism

 

Among the books I’m currently reading is “the first, complete scholarly edition of Beauvoir’s philosophical essays in English translation:” Simone de Beauvoir, Philosophical Writings (Edited by Margaret A. Simons, with Marybeth Timmons and Mary Beth Mader) (Urbana, IL: University of Illinois Press, 2004). I thought I’d share a small snippet from one of the essays, “Moral Idealism and Political Realism” (1945), that I found stuffed with food for thought: 

“…[U]pon closer examination, the lines separating utopianism from realism are less distinct than they may have appeared at first. In fact, we can prove that squaring the circle and perpetual motion are impossible, but man is not what he is in the way a circle is, whose radii remain invariably equal. He is what he makes himself be, what he chooses to be.[1] Whatever the given situation, it never necessarily implies one future or another since man’s reaction to his situation is free. How can he decide in advance that peace, war, revolution, justice, happiness, defeat, or victory are impossible? When Lenin was preparing in Switzerland for the coming of a new order, he could have been taken for a great dreamer; and if no one had been so bold as to want the Russian Revolution, if Lenin and all the revolutionaries had thought of themselves as insane, they would indeed have been so, for the revolution would not have happened.

That is why, when reform is suggested, the first reaction of the political conservative is always to declare it impossible, because he knows that by declaring it impossible, he contributes to making it so.[2] It was, no doubt, not enough, as French pacifists imagined it was, simply to declare ‘There will be no war’ for it not to happen. However, it is also true that the impulse through which we accept the advent of a certain future contributes to its formation. We therefore do not accept the collaborators’ excuse of having been victims of a simple intellectual error. They argue that they believed Germany’s defeat to be impossible. This means that they consented to her victory. In reality, they opted for the German supremacy that they claimed merely to have recognized. Furthermore, the word ‘recognition’ is itself ambiguous, because when we recognize a government, we make it exist as such. Gaining an awareness is never a purely contemplative process; it is engagement, support or rejection. In 1940 some Frenchmen accepted collaboration with Germany in the name of realism. But they are striking proof of the weakness of an attitude that mutilates and distorts the very reality on which it claims to base itself, since it refuses to make the fact of human freedom an integral part of this reality. If all nations had resigned themselves to accept Hitler’s triumph, Hitler would have indeed triumphed; but they could refuse and they did. It is this refusal that the collaborator was unable [or refused] to see. Anxious to give up his own freedom, he wished to be carried along on the great current of history, forgetting that history is made by men. To be sure, the occupation of France by Germany was a reality. But it was equally real that the French remained free to give the event the meaning they chose. If everyone had collaborated, Germany would have become an ally. If they resisted, she would remain an adversary. [….] The first mistake of the political realist is to underestimate the existence and weight of his own reality. This reality is not given. It is what it decides to be. The lucid political man who truly has a hold of things is also conscious of the power of freedom in him and in others.

The ends of action, therefore, are neither given nor even prefigured in reality; they have to be willed. Despite his desire to lose himself in pure objectivity, the realist cannot avoid the question of what to will. But he will try to regain on the level of values the objectivity that eludes him on the level of being. [….]

The conservative associates the interests of the bourgeois class with the preservation of spiritual values whose guardian it claims to be. At the same time he strives to demonstrate the primitive and purely material character of the interests of the working class.[3] [….] In the name of his spiritual authority, the bourgeois declares himself to be in a better position to define the conditions suitable for the working class than the working class itself. [….]

The standard of living that the worker demands is not required by his immediate needs, nor is it called for by dreams of compensation. It is the actualization, the expression of the idea that the worker has of himself, in the same sense that our body is the expression of our existence. It is the objective form that a transcendence takes on. For this reason it is not absurd that a man is willing to risk his life in a strike, or in a war, in order to maintain or gain a certain standard of living. The aim of the striker is not so much an increase in salary, as a crude amount of money, but an increase of something he has gained; it affirms his power to improve his condition on his own. [….]

 

Bad Lawyering by Democrats and the Affordable Health Care Act

I have previously argued that the Congress has the power under the commerce clause to require individuals to buy health insurance, and that power is unmistakably clear under current doctrine despite the partisan decisions of some Republican judges to the contrary. See here. It is also even more obvious that people have no independent constitutional right to refuse to buy insurance. They also can be compelled to pay dues for the collective bargaining of unions, and they can be prevented from engaging in the inaction of secondary boycotts.

Nonetheless, I think the Democrats made a major error in the drafting of the health care law. The law provides that a person who does not buy health insurance must pay a $695 penalty. It would have been immensely better if the law had been crafted to provide a choice either buy insurance or pay a tax of $695. Why? Congress has the power to tax, but in theory, but not generally in practice, it may not impose a penalty in the form of a tax. In this circumstance the able bodied need to provide support for the health care system and they can do it either way. The $695 exaction is really not a penalty for failing to buy insurance; it is a source of funding for the health care bill. If the Democrats had called the $695 exaction a tax, it should and I believe would have been clear sailing. But the law calls the exaction a penalty. It is harder to deny the exaction is a penalty when it is labeled a penalty. In fairness, the law characterizes the exaction as a tax in many spots, and Congress need not call an exaction a tax in order to claim the taxing power in litigation (see here), but the word "penalty" should never have appeared in black and white.

I confess to an inordinate and wistful fondness for Red Vienna....

 

• Blau, Eve. The Architecture of Red Vienna, 1919-1934. Cambridge, MA: MIT Press, 1999.
• Bottomore, Ted and Patrick Goode, eds. Austro-Marxism. Oxford, UK: Oxford University Press, 1978.
• Danto, Elizabeth Ann. Freud’s Free Clinics: Psychoanalysis and Social Justice, 1918-1938. New York: Columbia University Press, 2005.

 

• Gruber, Helmut. Red Vienna: Experiment in Working-Class Culture. New York: Oxford University Press, 1991.
• Marcuse, Peter, “A Useful Installment of Socialist Work: Housing in Red Vienna in the 1920s,” in Rachel G. Bratt, Chester Hartman, and Ann Meyerson, eds. Critical Perspectives on Housing. Philadelphia, PA: Temple University Press, 1986.
• Rabinbach, Anson, ed. The Austrian Socialist Experiment: Social Democracy and Austro-marxism, 1918-1935. Boulder, CO: Westview Press, 1985.

Hawaii Abandons Mandatory Legislative Prayer

Hawaii is the first state to abandon a requirement to open sessions with prayer although it does not prohibit them either. I would guess this would be politically unthinkable in most states. Yet it is sometimes constitutionally tricky how to comply with constitutional requirements for such prayers. Can such prayers persistently be within specific faith traditions?  Can the prayers be within specific faith traditions if the legislature secures different religious leaders to pray within their faith traditions? Can any faith traditions be excluded on this model? If the decision is made to avoid specific faith traditions, is it easy for government to identify which prayers are sufficiently generic. Issues such as these are ably discussed by Charles Haynes, Senior Scholar at the First Amendment Center in an interview here. A sample: "[O]nce the government is involved, and the Supreme Court in this case has carved out an exception and allowed government prayers, we're always going to be fighting because it satisfies no one really. I mean, people of faith, deep conviction, are not happy with generic, to whom it may concern, prayers. Because for most religious people, those kinds of generic prayers are not real prayers. So it doesn't satisfy authentic religious faith for the government to be in a position of giving prayer as long as it's not real prayer.

"On the other side, people that don’t think their government should be involved in the religion business, they're not happy no matter how generic you make the prayer. You know, just because it's all watered down, and the least common denominator to whom it may concern, doesn't cure the problem for them that the government is in the business of promoting religion. So really this solution that the court carved out in Marsh, I don’t think satisfies anybody. So therefore, we're always going to be fighting, with one side wanting it to be a little bit more prayer and the other side, wanting it to be a little less prayer. So there’s no real good answer to that except meaningless prayers that, as I say, leave everybody feeling unsatisfied."

Activity, Inactivity, and Libertarianism

My last post discussed the activity/inactivity distinction from the perspective of federalism.  But even from the sort of libertarian perspective that I don't personally share, I'm still baffled by why a mandate to enter into a commercial transaction should raise more hackles than other types of legal regulation.  If anything, I would think that the distinction would work the other way, at least as long as nobody is being forced actually to use the product being purchased.  I don't much like creamed spinach.  But I don't think I'd consider my liberties cut to the bone by a law that required me to buy creamed spinach, as long as it didn't force me to eat it.  More important, I would certainly far prefer such a law to one that forbid me to buy asparagus, a vegetable I do like.

There are limits to my argument here, of course, particularly when claims of conscience are involved.  It would be wrong, for example, to require vegetarians to buy meat, even if they weren't made to eat it.  And it would also be wrong to require the Amish to buy health insurance, which is why they and others like them are rightly exempted from the individual mandate.  But most libertarian critics of the new health law don't claim that they are conscientiously opposed to health insurance.  (Most, I am confident, either have health insurance or plan to buy it when they get older or sicker.)  They just object, in principle, to being forced to enter into any economic transaction.  And it is that abstract but vehement objection, especially in the face of the thousands of other laws that limit our ability to enter into other economic transactions, that I find odd.

Activity, Inactivity, and Constitutional Limits

In striking down the individual mandate in the new health reform Act (and then the rest of the Act too just for good measure), Judge Vinson parroted the common argument that if Congress "has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself 'commercial and economic in nature, and substantially affects interstate commerce' [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted."  As I've argued before, though, this is just plain wrong.  The Supreme Court's existing Commerce Clause doctrine, under which it has struck down laws that bore no genuine connection to economic matters or encroached on areas traditionally left to State regulation, applies to legal mandates as much as to legal prohibitions.  Some mandates (including the one in the health care Act) pass the test; others wouldn't. 

Of course, some folks think that existing limits on federal power are too lax (I don't), but that has nothing to do with the activity/inactivity distinction.  And if those critics wanted to tighten limits on federal power in ways that actually responded to some coherent and sensible ideas about federalism, the last thing they would do is just pull an activity/inactivity distinction out of thin air.  They might, for example, want to demand that the intrastate behavior that a law addresses actually have something to do with a national economic market whose effective regulation arguably requires a coordinated national response.  Some federal laws would fail such a test.  But an individual mandate to buy health insurance as part of a comprehensive rethinking of the national health care system would pass it easily.

(For bloggy critiques elsewhere of the Vinson opinion, see, for example, here, here, here, here, here, and here.)

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/02/J.-Vinson-on-ACA-1-31-11.pdf

Civility

I want to say something about civility in American politics.  First, though, what might seem like a detour.

A group of young people in Gaza recently posted a remarkable manifesto titled "Gaza Youth Break Out" ("GYBO").  (See also here for more recent developments.)  The English translation of the document begins:

Fuck Hamas. Fuck Israel. Fuck Fatah. Fuck UN. Fuck UNWRA. Fuck USA! We, the youth in Gaza, are so fed up with Israel, Hamas, the occupation, the violations of human rights and the indifference of the international community! We want to scream and break this wall of silence, injustice and indifference.... [W]e are like lice between two nails living a nightmare inside a nightmare, no room for hope, no space for freedom. 

What I find so compelling about this document has relatively little to do with whether I agree with some or all of it or "like" it, Facebook-style.  Rather, the manifesto stands out amidst the cacophony of the web for two deeply related reasons.

The Democratic Egyptian Uprising

 

Far and away the best coverage of the uprising in Egypt on behalf of democracy and socio-economic justice is provided by the live-streaming of Al Jazeera. It puts the media coverage in this country to utter shame. Our commentators and pundits are woefully ignorant of Egyptian history and politics, of the Arab world in particular and the larger Islamic world generally, of secular and religious politics in those worlds, of the nature of nonviolent protests and revolutionary uprisings, of the different kinds of “Islamist” politics (which are not equivalent or reducible to what comes under the heading of ‘jihadist’ politics), of the global economic and financial crisis, and so forth and so on. I’m nauseated by the inordinate amount of media attention devoted to American tourists trying to flee Cairo and other tourist destinations in Egypt, of the irrational fears expressed by government spokespersons and putative experts over the Muslim Brotherhood in Egypt.

Recommended:

On the irrational fear of the Muslim Brotherhood, see Bruce Riedel’s piece for Brookings.

For excellent daily coverage of events in Egypt and elsewhere in the Arab world, see Juan Cole’s Informed Comment.

For a rational yet impassioned perspective based on a deep understanding of recent events in Egypt, see Scott MacLeod’s piece for the Los Angeles Times: “A proud moment in Egypt’s history.”

A 2009 paper prepared for the International Labor Organisation by the economist Samir Radwan addresses the precipitating or directly relevant economic causal variables with regard to the Egyptian uprising (which is not to claim that the uprising is only about that): “Economic and Social Impact of the Financial and Economic Crisis on Egypt.”

For a “political economy” analysis of the states in the Middle East and North Africa (MENA), far and away the best treatment is provided by Clement M. Henry and Robert Springborg’s Globalization and the Politics of Development in the Middle East (2001; 2^nd ed., 2010). Their first edition was spot-on and uncannily prophetic with regard to Tunisia and Egypt as “bully praetorian states” (one of the three ‘ideal-types’ of regimes in MENA). Indispensable reading.

On “Islamist politics” in Egypt, the foremost study remains Carrie Rosefsky Wickham’s Mobilizing Islam: Religion, Activism, and Political Change in Egypt (2002).

For background material on Tunisia and Egypt, see past issues of Middle East Report (MERIP) and the articles found under Middle East Report Online at MERIP’s website (for Tunisia, use the search engine).

On non-violent social and political protest, see Adam Roberts and Timothy Garton Ash, eds., Civil Resistance and Power Politics: The Experience of Non-Violent Action from Gandhi to the Present (2009).

On conflict resolution and non-violent politics in Islam, see Abdul Aziz Said, Nathan C. Funk and Ayse S. Kadayifci, eds., Peace and Conflict Resolution in Islam: Precept and Practice (2001).

On nonviolent political action elsewhere in the Middle East, see Mary Elizabeth King’s The First Palestinian Intifada and Nonviolent Resistance (2007).

For my recent bibliography for the “contemporary Arab world,” see this post at Ratio Juris.

New material (2/02/2011): See this prophetic article by Joseph Mayton in The Guardian. And his recent blog post at Bikya Masr: “Egyptians doing it old school.”

Shadi Hamid’s op-ed in the Los Angeles Times, “America’s ‘Islamist Dilemma,’” nicely complements Riedel’s article above.