As befits a discussion group devoted to politics, philosophy, and other public issues, CivCon has done a lot of topics on the Constitution. Oddly though, we have never looked explicitly at how democratic our founding document was and (as amended and interpreted) is. I phrased the topic as a normative question, since is begs the question of ought. It also might make for a livelier discussion and prompt us to make the political preferences behind our opinions more explicit.
I see more than one way to approach our pondering, too. We could focus more on the standard (but important) stuff, like looking at the basic structures and functions the Constitution sets up. As Jim Z. noted last week, the whole document is in some ways “rigged” against pure democracy; e.g., the Electoral College, two senators per state regardless of size, an unelected judiciary, vetoes and supermajorities requirements, etc. College students spend a lot of hours reading classic books on this topic, some of which are referenced in the links. We definitely should discuss why the Founders did this and whether it’s too little or too much democracy for the 21st century (or for our tastes).
A second approach would be to look at the Bill of Rights. These rights are fundamental to protecting democracy. Are they being enforced today as designed, and is that sufficiently democratic? I’m thinking campaign finance as free speech, curtailment of civil liberties in the War on Terror, and conservatives’ religious freedom initiative (bakeries and gay weddings) might come up in this part of the meeting.
Thirdly, we could take a strict result-oriented approach. How responsive is our national government to the will of the people? Whose interests does our constitutional system represent and who does it not listen to? Some big studies have tried to quantify that in recent years. Their conclusions are sobering.
Here are some guiding discussion questions and suggested readings/skimmings.
DISCUSSION QUESTIONS –
- Was/Is: What are the major anti-democratic (or at least non-majoritarian) features of the Constitution? Why did the Founders include them? What key components of democracy were left out and why?
–> Which of these have survived unchanged to today and why?
- Ought: What is “too much” or “too little” democracy? Upside/downside of both?
- Rights: Which rights (speech/religion, voting, property, etc.) matter the most? Are any rights under assault or overly-broad now?
- Results: How responsive is our constitutional system to the will of the people? Which people? Evidence?
–> Is un-accountability self-correcting via elections?
- Future: What are your biggest concerns about our constitutional democracy going forward?
SUGGESTED BACKGROUND READING –
Not democratic enough –
- Our Undemocratic Constitution: Well-known book, skeptically reviewed (by Cass Sunstein). Much shorter description/review here. Recommended.
- A similar view from another well-known scholar.
- The Framers’ Coup. Constitution was an anti-democratic power grab.
Bad consequences –
- In highly polarized times like now, the Constitution’s undemocratic features produce gridlock. Recommended.
- Too much economic inequality threatens constitutional democracy. Recommended.
- But don’t despair! Citizen activism can expand how democratic the Constitution is interpreted to be. [Oops link changed to the right one Sunday eve.]
No, too MUCH democracy is our problem –
- Excessive democracy is destroying ours. Recommended, semi-conservative POV, but long. A good, short direct rebuttal to it.
- We have too much democracy. Requires free site registration.
NEXT WEEK: Fascism, Part II – Is a global movement emerging?
It’s kind of a holiday weekend. But, I really like this topic idea of Aaron’s asking whether universal democracy should still be considered a kind of “Manifest Destiny” for the 21st century. Yes, it has been conventional wisdom for more than a decade that democracy around the world is in retreat. Authoritarianism has descended on country after country. The Arab Spring was stillborn and Iraq and Syria flew apart. Eastern Europe’s promising “color revolutions” petered out with help from a newly-aggressive Russia. Chinese democracy is still a no-show and the country has entered a new period of repression. In the West, right-wing political parties are surging all over the EU and we elected Donald Trump. So much for the end of history and all of that post-Cold War democratic triumphalism, maybe.
Or, maybe not. History is rarely a painless and quickly-triumphant march of progress, is it? There was bound to be a backlash to the post-Cold War spasm of democratic reforms in fragile countries, wasn’t there? And the 2008 financial collapse and growing economic inequality had to at least postpone the party, didn’t it?
FWIW, I think the relationship between economic and social change and democracy is really complicated. For example, globalization can either spur democratic and liberal reforms or a backlash against them. Religion often gets in the way of democratization, but it also binds societies together. I also try to take a long view. I think developing countries are going through the same highly-disruptive, painful struggle the West endured in its century of rapid industrialization and cultural change during 1848-1945. Like we did, the non-West will evolve its own forms of popular governance and institutions to empower and contain government. Results are going to vary a lot country to country and region to region.
Anyway, here are a small number of readings on the topic of the “democratic recession” we are currently experiencing and some speculation as to why and what might happen next. They are all general (not country-specific), but a few are long and/or a bit complicated. We don’t need lectures on basic stuff in this group. So, I will give open us up by highlighting a few of the tensions inherent between rapid econ/social/cultural change and emergence of/persistence of democracy.
- West: What is the Western model of democracy and how does it vary?
- Rest: Have other democratic models emerged outside of the West? Why?
- Retreat: Why has democracy been in retreat lately? Which causes are specific to countries/regions and which any common causes?
- Complexity: What tensions exist between: Democracy and liberalism? Democratic rule and individual rights? Globalization and democracy? Transnational governance and national/local control? Religion and democracy?
- Future: How will we all deal with all these tensions in the future? What’s the future of democracy worldwide?
- Our Role: Is USA leadership necessary, or is our absence? Doing what, exactly?
SUGGESTED BACKGROUND READING –
- Why is democracy in retreat? Easier read but 5 years old here. Recommended.
- Six preconditions for democracy.
- Democracy’s retreat is only temporary. Recommended, or this longer (pdf) Democracy is NOT in decline worldwide.
- Lefty: Neoliberal globalization threatens democracy.
- Conservative: USA should be cautious and realistic about democracy promotion. (Long historian Walter Russell Mead)
- Will Trump abandon U.S. leadership on democracy promotion? Recommended.
NEXT WEEK: What is progressive religion?
My God. It can happen here. And now it has. Why will be debated for decades. How did Donald Trump easily win the Republican Party nomination for president and garner enough of the popular vote (48%) in the right combination of states to pull off an Electoral College victory against Hillary Clinton?
We’d better come up with an answer fast, because already we are seeing the normalization of Trump by political and Media elites. In a way, what else can they do? Trump is now the president-elect, chosen in a constitutionally-legitimate election. Yet, history will ask us how, in 2016, we elected the presidential candidate that ran on a platform of using governmental power to ethnically cleanse the country, jail his enemies, retaliate against the press, blackmail our allies, and literally wall us off from the rest of the world – and not the candidate that violated administrative procedures in her government email account.
Before it hardens into conventional wisdom that Donald Trump lies within the normal range of American political and Constitutional norms, I think we owe it to our children to ask who bears the most responsibility for all that is to come. To me, the comforting answer – “a mere 4% of the voters [compared to Obama’s 2012 performance] plus the antique Electoral College” – is inadequate.
We also must avoid other easy answers. In a razor close election, any single factor can be cited as being “the” reason for the outcome. If only 5,000 people in Ohio had voted for Nixon instead of Kennedy, or 600 in Florida for Gore, etc. I’m talking about something larger. What made 50+ million Americans desparate enough to take such a gamble on Trump, and to ignore his obvious odious unfitness for office? Below are some articles, some pre-election, some post, that takes stabs at explaining it.
ALSO: I am not inclined to continue my participation in Civilized Conversation in the future. The very name is now a mockery of what our country is soon to become – and maybe what it has been all along. I don’t think I can bear having to prepare every week to review the latest developments in our self-destruction. Also, it’s been 10 years for me now, which is a long time to do what I do in this group 50 times per year.
I will open the meeting on Monday with a discussion of where, if anywhere, CivCon should go next. Then, on to greater horrors.
SUGGESTED BACKGROUND READING –
- Theories of Trumpism, our meeting of one year ago.
- A conservative POV: Conservatism did not fail; our institutions did.
- Cause? The System and/or abuse of it:
- The Electoral College strikes again.
- A shocking weakness in American democracy has been revealed. Similar but distinct arguments: Constitution meets reckless authoritarianism. Both highly recommended.
- James Comey’s disgraceful conduct at the FBI, and/or GOP voter suppression in a handful of key states like WI, OH, and NC. Too easy, IMO.
- Cause? Racism and White backlash.
- Cause? Economic anxiety.
- Key IMO: Don’t think of it as either racism or economic anxiety. Think of it as complicated.
- Cause: The Media?
- Cause: Pure old authoritarianism?
This is a great topic we haven’t done before. Thanks to Carl for suggesting it.
I know very, very little about Native American social and political interests and issues. According to Wiki, the last U.S. Census counted just under 3 million Native Americans in this country, plus another 2.2 million people that claimed partial native heritage. There are close to 600 recognized tribes, each with a formal nation-to-nation relationship with the federal government.
That sounds like a lot of people, but their numbers are small by America political standards, and several other factors combine to weaken Native American influence. For one, they are the most rural of all U.S. ethnic/racial groups. About 1 million live on reservations, often far removed from the centers of state power. In most states, Native American votes are a rounding error: They comprise less than 1 percent of the population in most states and more than 5% percent of the population in only 6 states (AK, NM, SD, OK, MT, ND). It also doesn’t help, I imagine, that many American think casino gaming has made all tribes rich. It hasn’t – not even close.
The social and economic problems affecting Native American communities are legion, of course. From poverty to poor schools to environmental degradation. Governments at all levels have proven indifferent to and incompetent at handling Native affairs.
President Obama has a very strong record on issues of importance to Native American communities, according to accounts I’ve read. You can read the details below and I’ll summarize them quickly to open our meeting. Both Bernie Sanders and Hillary Clinton made it a point to court Native American votes. Donald Trump…well, loves to call Senator Elizabeth Warren “Pocahontas” while the crowd makes mock war woops. But, there is a conservative POV that Native Americans are too dependent on the federal government for their own good. I think this is an idea worth discussing, as is the notion of whether progressives have (and should have) abandoned the belief that cultural and economic assimilation is a positive good for minorities like Native Americans.
On Monday night I’ll open our meeting with a little basic information about Native Americans in the United States and some issues that (I’ve read) are of major concern to those communities. Then, I’ll turn to Carl for his thoughts.
SUGGESTED BACKGROUND READING –
- Wiki entry: “Native Americans in the United States.”
- Part-Native Americans are the largest multi-racial group in the USA, but they don’t think of themselves that way! Recommended.
- “13 issues facing native people beyond mascots and casinos.” Recommended. Or: Wiki has a list.
- Youth: Native young people especially face terrible conditions, few opportunities.
- Casinos: The myth of Indian casino wealth. Many tribes are looking beyond casinos for new sources of wealth.
- Obama: He’s been a great president for Native Americans, doing “more for tribes than the last five presidents combined.” Recommended.
- George W. Bush deserves some credit, too.
- Voting rights: Native people are particularly outraged by the gutting of the Voting Rights Act and GOP efforts to make it harder for them to vote. Recommended.
- (Here for more legal details + history of Native citizenship/voting rights.)
- Donald Trump’s long record of racism towards Native Americans, including the “Pocahontas” thing.
- Conservative POV: “
Freeing Indians from Obama’s grip.” WSJ.
[Update: It’s gated and I’m having trouble finding another one.]
Next Week: GOP convention wrap-up –
Trump, Trumpism, and the
Doomed Grand Old Party
Breaking the law in order to highlight its injustice (one, but not the only, definition of civil disobedience) is all around us these days. In our crowded media environment, many individual acts or organized campaigns of civil disobedience don’t break through to the mass media. But, some that did in a big way are:
- Black Lives Matter;
- Occupy Wall Street;
- Protestors disrupting Donald Trump rallies;
- Cliven Bundy, et. al., facing down authorities in Nevada and Oregon to protest federal govt land policies;
- Local government officials (like Kim Davis in Kentucky) refusing to sign same sex marriage licenses;
- Edward Snowden leaking classified information on NSA eavesdropping programs.
Some of thee efforts involved many legal as well as illegal acts, of course, and some have achieved a lot more than just publicity. Black Lives Matter has had a major impact on the Democratic presidential primary and renewed efforts to reform policing. (We will discuss police reform and oversight on June 8.) The anti-Trump protestors have influenced the Republican presidential primary process, just maybe not in the way they intended. Others either fizzled out (Bundy) or just need more time to grow support (Snowden, perhaps).
The perpetrators of all of these illegal acts done for a higher purpose routinely cite as their inspirations famous civil disobedience actions of the past by abolitionists, civil and women’s rights activists, etc. As the author of one recent book on the subject puts it, civil disobedience is an American Tradition.
Now, I believe we may be entering a new era of political activism. Why is a subject for another days – many, actually. But I see this new era as arising from widespread public discontent with our political system and parties, income stagnation, and rapid demographic and cultural change. I think civil disobedience will play a heightened role in our politics because of the Internet and social media. Even if I’m wrong, the recent big protest movements cited above are well worth a meeting.
My idea here is for us to see if we can identify some universal principles on when civil disobedience might be morally and politically justifiable. We’ll look to our own values and our current political and social environment, sure. But we also can use our history, others’ histories (e.g., from Gandhi all the way to terrorism!), religion, and philosophy. The latter two have been arguing about when civil disobedience is and is not justified for generations. There are many interesting questions we can pose. For example…
DISCUSSION QUESTIONS –
- DEFINITION: What is “civil disobedience [CD]?” How does it differ from passive resistance or non-cooperation?
a. Must CD be non-violent? What is non-violence, anyway?
b. When does CD become something else, like insurrection?
- CURRENT: What major CD movements/acts are occurring right now?
a. How have they been justified by their perpetrators?
b. Are they helping or hindering budding political movements?
- PAST: Are there any major lessons from U.S. history on when civil disobedience is justified? Do all Americans agree on them?
a. Has it all depended on the object of the disobedience; i.e., on the morality of the goal? What else has mattered?
b. Has CD ever worked by itself, unattached to a big political movement?
- RELIGION and PHILOSOPHY: What do they say about civil disobedience? When is it justified and within what limits?
- LAW/GOVT/YOU/ME: Should the law treat acts of civil disobedience differently from ordinary law-breaking?
a. What about when there is no democracy or no way to redress grievances?
b. Is CD ever morally or religiously required?
SUGGESTED BACKGROUND READING –
Movements involving civil disobedience [CD]:
- Black Lives Matter has hugely influenced the Democratic Party. Recommended.
- Mass arrests of anti-Citizens United protestors happened just last week at the U.S. capitol building.
- Bundy stand-offs: What were they all about?
- Other recent conservative uses of civil disobedience. Recommended.
- MLK’s Letter from a Birmingham jail, 1963. Highly recommended because notice how he justifies taking direct action.
- Still, civil disobedience involves many thorny issues. Recommended.
- Civil disobedience in philosophy. A hard read from the Stanford Encyclopedia of Philosophy.
Problem with + limits to civil disobedience:
- The public usually sides against law-breakers, per the “Bigger Asshole” axiom. Recommended
- Targeted vs. untargeted civil disobedience.
- Crowds are disinhibiting and riots lead to backlashes.
Building grass roots political movements
Next Week: Thomas Jefferson and His Legacy. Jim Z. will guide us!
The Supreme Court was always going to be the big prize of the 2016 election. Justice Antonin Scalia’s death on February 13, 2016, just raised the already high stakes to an unequaled plateau because we now know the Court’s 20+ year-long conservative ideological majority hangs in the balance.
I originally scheduled this topic to discuss the string of 5-4 conservative decisions on major cases that everybody expected to come down the pike in April to June. These cases included ones on Obama’s climate regulations, the 1-person-1-vote redistricting standard, union rights, abortion and contraception access, affirmative action, and the death penalty. Oops. Now, those cases either will be reargued next term, remanded to lower courts, or let stand because SCOTUS is tied.
So, I think it might be fun to re-purpose this meeting to look more broadly at the relationship between the Supreme Court and elections – and public opinion. We kind of did this 2012 (Whose side is SCOTUS on?). But, that was more about how public opinion influences SCOTUS and how often the Court has defied majority public opinion to make unpopular rulings.
On Monday, I’d like us to begin by asking about the reverse relationship: How much does the public care about SCOTUS and how do high-profile Supreme Court issues influence voting? As the first link or two below explain, typically SCOTUS is not a very visible issue in our elections except for political activists, the most well-informed voters, and the economic interests intimately affected by Court decisions. But, given the historic moment, it might be different this time. Especially with presidential candidates running on issues that are before the Court but in limbo because of Scalia’s death, like Ted Cruz running on abortion and immigration and Bernie Sanders demanding that the next SCOTUS justice commit to overturn Citizens United.
I will give a short introduction to our meeting that focuses on the public’s view of the Supreme Court and whether/why that matters. Then, we can discuss if that is changing.
DISCUSSION QUESTIONS –
- Stakes: How high are the stakes in this election for the future of SCOTUS and American law and policy? Re:
- High-profile cases next term?
- Big areas of constitutional law, like civil rights, civil liberties, presidential power, natl security, voting rights and campaign finance, reproductive rights, labor unions, federalism, etc.?
- Obama’s achievements (many are reversible by SCOTUS)?
- Lower federal courts?
- Is a “constitutional revolution,” either progressive or conservative, at stake?
- History: Traditionally, how big an issue is SCOTUS in voters’ minds? Which voters care the most and why?
- 2016 Rhetoric: What are the candidates saying about SCOTUS stakes and who is the rhetoric aimed at (voters, activists, Media, donors)?
- 2016 Receptivity: Will it have any effect – how will we know? Will it raise expectations that have to be met?
- 2017 and beyond:
- What kinds of justices would Hillary/Bernie or Cruz/Trump/other nominate? Any chance of picking a moderate?
- Will GOP refuse any nominee, keeping a 4-4 Court?
- How would your answers to Q1/ a-e be different with a GOP or a Democratic Supreme Court?
SUGGESTED BACKGROUND READING –
- Written before Scalia’s death:
- Scalia’s death already has ended the conservative SCOTUS majority. Recommended.
- And it rockets the Court into a mainstream campaign issue in 2016. Recommended.
- [Very optional – Scalia’s legacy
- If a Democrat wins White House:
- If a Republican wins White House:
- 2017 and beyond: Will extreme partisanship cause the Supreme Court to just disappear? Recommended.
Next Week: When is civil disobedience justified?
I’ve mentioned many times that in my view the modern conservative political program can be (simplistically, of course) described as in three words: Cut, deregulate, and privatize. Cut taxes, especially on investment. Deregulate industry, especially President Obamas new ones on Big Finance and the health care industries. Privatize public services at all levels of government. This week John S. wants us to talk about a little-understood but very important part of the last part of this three-pronged agenda: The growing privatization of our legal system, especially of the right to sue.
We’re all familiar with the growing private control over the making of our laws, due to lobbying and loosened campaign finance rules. John’s idea should spur us to talk about the increasing private control over the enforcement of our laws. This is true of both civil and criminal law.
In civil law, tort reform (a major conservative political priority) and the now-ubiquitous use by big corporations of binding arbitration clauses in consumer agreements and even employment contracts has severely limited your ability to sue for damages when you are wronged by a big company. Use of class action lawsuits, another check on corporate power, also have been curtailed. I suppose you also could add the rise of secretive investor dispute settlement panels in international trade agreements to this list, since they basically privatize a part of what used to be strictly government-to-government trade law enforcement.
In criminal law, we have privately-owned and operated prisons housing almost 10 percent of all prisoners, and outsourced probation enforcement. The incentives built into this privatizing of legal punishments can lead to sometimes disastrous results (see links). I’m sure I’m missing some of the ways our penal system has been turned over to private contractors.
Finally, and analogous to what is happening with corporations, we have seen our right to sue government when it harms us restricted. Government officials have always had qualified immunity from lawsuits when they are performing their statutorily-mandated duties. But, recent court decision have expanded this type of immunity, as well.
I don’t want to exaggerate these trends. Our entire legal system has not been handed over to corporations and private interests. Yet. Nor, of course, should they all be automatically condemned nor laid at the feet of political conservatives. The public good may benefit from some of these developments. But, I think you will learn some unsettling things about the bowels of our legal system on Monday.
Since I’m low on time this weekend, my research (and the readings, below) will focus on the binding arbitration and class action issues. My intro on Monday night will emphasize them. In addition, you may want to read one of the articles on the consequences of state/local governments privatizing the enforcement of probation.
SUGGESTED BACKGROUND READING –
- Q: Why do Americans sue so much?
A: Many reasons, including that – unlike other countries – we rely on litigation to enforce govt regulation.
- Civil law privatization:
- Criminal law privatization:
Next Week: What Are the Sources of Islamist Radicalism?
Okay, maybe I’m reaching on this one. When I google phrases like “is American democracy collapsing” I get either Socialist Workers Party-type left-wing screeds or Obama’s FEMA army is coming for your guns right-wing stuff. But, an avowed White supremacist con-man has been the leading candidate for president of one of our two major political parties for seven months. Our national legislature is as dysfunctional as at any time since Fort Sumter. The middle class keeps hollowing out. Something’s wrong.
But, can we say that the system failing us lately augurs something much worse, like a devolution into some kind of non-functioning failed state or – maybe worse – a softly-authoritarian super-state? Many countries have the forms of democracy without the substance. Are we really immune?
To me, our first step on Monday should be to explore what we think American democracy is supposed to be like when it’s functioning properly. How does it determine the public interest, mediate between conflicting demands on govt resources, and self-correct? We also have to avoid getting carried away. There’s no military coup in our future, almost certainly. Nor are we likely, IMO, to discard the basic outer forms of democracy, like elections and a free press. And, yes, every generation has worried U.S. democracy will fall apart unless it does what the complainer wants. We’re pretty resilient pessimists.
The thing is: Sometimes the pessimists have been right to worry. Our democratic system was bent and broke or nearly broke over slavery, Reconstruction, Robber Baron excesses, labor rights and violence, the Great Depression, and the fight over ending segregation, to name just the most obvious ones. Today, people are worried over whether our democracy is flexible enough to handle a bunch of intersecting/interrelated problems:
- Rising economic inequality and concentrated wealth with unlimited access to the political system.
- A broken Republican Party.
- An increasingly extreme GOP, bent on changing the electoral rules (voter suppression laws, weakening “1 person 1 vote,” completely deregulating campaign finance laws, gerrymandering, etc.) to lock in its advantages.
- Polarized voters that live in different news/public affairs factual universes.
- A growing dependence (conservative POV) on govt programs for peoples’ livelihood. In this theory, the addicted masses will just keep voting to make govt larger and larger until it becomes a tyranny of the majority that destroys the economy.
- Growing racial and immigration tensions.
- Creeping presidential power due to Obama’s contempt for democracy, or congressional paralysis, or legitimate anti-terrorism needs, or what have you.
Hmmm. I guess we need to dissect the question before we attempt an answer. I will list some of the IMO less-than-nutty worries about the health of American democracy in my brief opening remarks and then we can see where this goes.
DISCUSSION QUESTIONS –
- OUGHT: What is American democracy supposed to be like? Whose interest should it serve and how well does it adapt to new conditions and self-correct?
- IS: What has gone wrong recently that might be different from our usual political/social turmoil? Why? What’s the connection between democracy’s health and (a) a healthy economy, (b) social peace versus rapid change, (c) conflicts between elite and group and public interests, and (d) intermediating institutions (like the news media)?
- MIGHT BE: What does it mean to have the forms/institutions of democracy but not the function/actual democracy? Is USA immune?
- ARGUMENTS/EVIDENCE: Who really worries democracy is at risk? What specific evidence/arguments do they offer? Persuasive??
- HISTORY LESSON: How has U.S. politics righted the ship in past times of great doubt about our democracy? (Depression, Robber Baron era, etc.)
- SIGNS TO LOOK FOR: If the pessimists are right, what signs should we look for? What does the GOP civil war augur?
SUGGESTED BACKGROUND READING –
- CivCon has debated important failings of our political system often, such as: Can our political system still solve problems (2/1/714); Who broke Congress (12/7/15); Why great nations fail and could we (4/8/13); What could force the GOP to moderate (1/28/13 before Trump); Are so many Americas dependent on govt it threatens republican democracy (3/3/14)?
- A few of the better links from those meetings:
- The Constitution makes U.S. political paralysis easy.
- The GOP;
- No. Elites in general have failed us. Could be.
- No. The voters are the real extremists.
- Some new material:
Next Week: Do neoconservatives still control GOP foreign policy?
Happy Religious Freedom Day! January 16 commemorates the adoption in 1786 of Thomas Jefferson’s Virginia Statute of Religious Freedom, a pioneering law protecting religious faith and practice. Since then, the contours of and limits to religious liberty in our country have, like all other constitutional rights, evolved.
Since the at least the 1960s, state laws often have allowed people to claim an exemption from some secular laws in some circumstances based on their personal religious objection. Conscience clauses are common in education (opt-outs for vaccinations and sex education), health care (refusing to participate in abortions), and in other areas.
I had us discuss this topic in 2013 because conservatives had begun a political campaign to expand the scope of what they term ‘religious freedom” laws into new areas, like marriage equality and LGBT rights. I timed our meeting to coincide with oral arguments in the Burwell vs. Hobby Lobby” Supreme Court case. In that case, the owners of a big craft chain store argued that their first amendment religious liberty included the right to disobey the Obamacare mandate to cover all effective forms of contraception in its employee health insurance plan.
A few months after we met, SCOTUS ruled in Hobby Lobby’s favor. The Court’s reasoning was…innovative, to say the least. It said that the religious freedom of the companies’ owners extends through the corporate veil, all the way to the earned benefits of its employees. Hobby Lobby had the first amendment right, the Court said, to dictate which forms of contraception its health care plan would pay for, solely on the basis of its owners’ personal religious beliefs. Progressives immediately grew suspicious that SCOTUS had opened the door to new corporate abuses of power and/or new ways for conservatives to ignore law they didn’t like.
Don’t worry, said the Court. This ruling really is a narrow one. It applies only to “closely-held” companies and only to the specific forms of birth control that Hobby Lobby’s owners believed were immoral. If in the future other claimants tried to use this decision to make more outlandish religious claims – outlandish in the Court’s eyes, I guess – SCOTUS would not be receptive.
Well, guess what? In March 2016, SCOTUS will hear a new case in which a religious non-profit employer wants out of the Obamacare contraception mandate, too. The Court might use its ruling to open the religious conscience exemption door even wider – perhaps much wider. And it’s not just the Supreme Court. Since Hobby Lobby, congressional conservatives have introduced the First Amendment Defense Act and the Marriage and Religious Freedom Act, both designed to protect conscientious religious objectors to federal LGBT laws. Ted Cruz and Marco Rubio cosponsored both these bills and Donald Trump just said he would sign the latter. On the state level, GOP-controlled governments have tried to enact similar laws.
You see my motive for this topic revisit. Maybe all of these efforts to expand religious conscience laws to protect lost culture war battles will fade away or be contained by ether the courts or public opinion. (Maybe some are even sensible – we shouldn’t dismiss the whole idea of expanding conscience clauses out of hand, IMO). But, I doubt it. I think conservatives’ conscience clause/ religious freedom movement is major a new frontier of our 21st century culture wars.
On Monday, I’ll open our meeting with a little more info on what conservatives have planned in this area and a bit of the reasoning supporters and opponents use.
Discussion Questions –
- What is a religious conscience clause and what is its moral and constitutional justification? Historically, what were their limits?
- How did (or, did) the Hobby Lobby ruling change the limits of religious conscience?
- How do conservatives want to expand this part of the law? Do their ideas have merit?
- Is DavidG wrong: Are conservatives not going to keep the pedal to the metal on this issue?
- Are there other ways to split the baby on these tough moral questions; e.g., more federalism, or defining the limits to religious exemptions in a single, federal law?
SUGGESTED BACKGROUND READING –
- A short history of use of these types of laws in the USA. Recommended
- What’s coming in 2016:
- What progressives fear/want:
- Religious conscience movement is our new culture war battlefield. The article that prompted this topic idea.
- GOP-run states are passing laws that allow people to claim exemptions from a wide range of laws they don’t like on the basis of their religious beliefs. Recommended.
- What conservatives fear/want:
Next Week: Solutions to California’s Water Woes (yeah, yeah, it’s raining).
I read once that every era of American history has its own defining frontier of constitutional law, the battlefield on which many of its most contentious issues gets fought. Arguably say, in the post-Civil War era it was the meaning of citizenship. In the 1920s freedom of speech. The post-War civil rights era defined the meaning of the equal protection clause. Maybe our current era’s biggest fight is over the limits of govt regulation of business. And so on.
Okay, this “one-era, one-constitutional right fight” idea is overstated. Americans fight over every constitutional right all of the time. Still, that same book made a very interesting prediction: That the 21st century’s main constitutional battlefield will be the right to privacy. Hence this topic idea of mine.
Privacy is a huge, multifaceted issue. We old timers think of it mainly in terms of Roe v. Wade and reproductive rights, since an implied right of privacy was the controversial basis for deciding Roe. But, there are a half dozen or so major types of privacy that have some protections under the law, such as personal (bodily) privacy, privacy of behavior, privacy of thoughts and feelings, privacy of communications, data privacy, and privacy of association. Here is a list of “issues in privacy” that concern just one of these realms, according to one digital privacy advocacy group:
Anonymity, Biometrics, CALEA, Cell Tracking, Cyber Security Legislation, Digital Books, Do Not Track, Encrypting the Web, International Privacy Standards, Locational Privacy, Mandatory Data Retention, Mass Surveillance Technologies, Medical Privacy, National Security Letters, NSA Spying, Online Behavioral Tracking, Open Wireless, PATRIOT Act, Pen Trap, Printers, Real ID, RFID, Search Engines, Search Incident to Arrest, Social Networks, Student Privacy, Surveillance Drones, Travel Screening.
I don’t even know what some of those are. Fortunately, as we covered when we discussed natural rights recently, not every concern people have is a constitutional issue. Something can be protected by positive law without it being a constitutional right. Still, most Americans probably believe they have a constitutional right to privacy, and so do I. I think debating the meaning and limits of this right will make an interesting evening – and a useful one too, since the Supreme Court is going to decide a major abortion case this term.
My short introduction on Monday will be a festive review of the do we have a right to privacy issue and of the major frontiers of the privacy debate.
Discussion Questions –
- What are the major “types” of privacy? Privacy about what and from whom?
- What are the arguments that the Constitution does/does not contain an implied right to privacy?
- Who cares? Why is a constitutional right to privacy so important?
- What are the frontier issues of privacy in a digital world? What major laws are in play?
- Discuss specific privacy issues; e.g., NSA/surveillance state, reproductive freedom, corporate data mining and info sharing, etc.
SUGGESTED BACKGROUND READING –
- Privacy means different things to different Americans, and their privacy worries reflect that.
- Does the Constitution guarantee a right to privacy
- Some libertarians believe in a right to privacy and say it reinforces limited govt.
- Law, Shmaw – Privacy is disappearing so fast that if you’re not paranoid these days, you’re crazy! Recommended.
- [UPDATE: It’s late on Sunday, but here is a very useful discussion of the many aspects of privacy – legal, philosophical, practical, technological.]
Next Week – What was the Cold War all about?