the real reason we should put Harriet Tubman on the twenty

The group Women on 20s has recently gotten some pretty good press for the idea that Harriet Tubman should replace Andrew Jackson on the $20 bill. Personally I always favored John Ross for the twenty, just to really stick it in Ol’ Hickory’s eye, but the voters (well, internet voters) have spoken, and I approve of their choice. And anyway, Tubman has a distinct advantage over other historical figures whose names have been bandied about to replace Jackson: she is a legitimate badass.

So was Jackson, of course. But Jackson is best known for driving Indians off their land, helping to annex Florida, and for fighting the British (who were supporting the Indians) in a dumb war that did little to accomplish its ostensible goals but did, again, screw the Indians. Jackson’s military adventures are one face of American courage, but not its best face — rather, the face of America the Expansionist and Belligerent.

Tubman, on the other hand, represents a different kind of physical courage. It’s well-known, of course, that she put her life on the line again and again by returning to Maryland to help others escape slavery after her own daring escape. Less well-known, but at least as dramatic, is this spectacular episode from the Civil War in which she masterminded a Union raid into Southern territory to free slaves to join the fight:

It’s no exaggeration to say that the Combahee raid was unique in American history. All Union operations in slave territory, especially as the Emancipation Proclamation become well known, yielded the self-liberated by the hundreds. But the Combahee raid was planned and executed primarily as a liberation raid, to find and free those who were unable or unwilling to take the enormous risks to reach Union lines on their own. That’s how Tubman conceived of it. That, too, is unique – because for the first and only time in the Civil War, or for that matter any American conflict before this century, a woman (and a civilian at that) played a decisive role in planning and carrying out a military operation….

Tubman did not speak Gullah, a language common among coastal slaves. As Tubman herself says of a crucial moment in the raid: “They wasn’t my people … because I didn’t know any more about them than [a white officer] did.” And these were slaves who worked mostly in the fields, men and women who trusted “house” slaves as little as they trusted whites, even white Yankees.

In other words, the amazing thing about Tubman’s role during the raid was not that she was in her element, but that she was so far outside it.

Yet it’s clear that it was Tubman who visited the camps of liberated slaves along the coast and recruited the 10 scouts named in Union records, 9 of whom had escaped from nearby plantations. Lieutenant George Garrison, posted to one of the Northern-raised black regiments, said, “She has made it a business to see all contrabands escaping from the rebels, and is able to get more intelligence than anybody else….”

The Second South Carolina was not made up of veterans. The men had far more in common with Tubman than with their own officers. That’s why she went with them on the raid. Yet Tubman wasn’t a passenger. The intelligence she gathered, the soldiers she recruited, indicate that she actually planned the raid with Hunter and Montgomery: three landings on the right, one on the left….

As the troops finished their demolition work, the fleeing slaves started to reach the boats, many more slaves than there was space available. “When they got to the shore,” Tubman recalled later, “they’d get in the rowboat, and they’d start for the gunboat; but the others would run and hold on so they couldn’t leave the shore. They wasn’t coming and they wouldn’t let any body else come.”

That’s when a white officer told Tubman to sing to “your people.” Even decades later, when she would regale white audiences with the Combahee story, she said she resented that – a surprisingly modern sensitivity. But she did sing. And it worked. “Then they throwed up their hands and began to rejoice and shout, glory! And the rowboats would push off.”

It’s hard to understand how the song Tubman recalled singing – about how “Uncle Sam is rich enough to buy you all a farm” – could have persuaded those left behind to let the boats go. Did she intentionally omit the fact that she threatened to shoot anyone who tried to back out from escaping? Meanwhile, the Confederates set upon those on shore with dogs and guns; at least one young girl was killed. But hundreds escaped.

The difference I’m getting at is not about nonviolence, per se. The Combahee raid was an act of war and involved fighting. But Tubman replacing Jackson on the twenty could symbolically represent a shift in American thinking about honor and courage — away from the kind of courage it takes to take things from a weaker people, or to dominate those you define as “enemies,” and toward the kind of courage it takes to put yourself at risk so that people can be free.

I say this without personal critique. Jackson was a certain kind of violent, aggressive man, of which there will always be some among us, and that is fine. People are as they are, and Jackson had his good points: he was apparently a loyal friend and a large-hearted husband and father. (In one of those perversities that are forever wrinkling up neat historical narratives, Jackson even adopted an Indian son — after massacring most of his village.) He also took a more expansive view of suffrage and popular democracy than the prior generation of (largely well-to-do) revolutionary-era leaders had. But Jackson was a duellist, literally and otherwise, an irascible man who made enemies easily and held long grudges. Perhaps his natural tendencies toward conflict were brought to full flower by a bellicose Southern culture of honor. I don’t know. I don’t care. It’s not about a judgment of the man as an individual — something I care about less and less in these matters. It’s much more about the cultural forces that selected such a man, put him at the head of various armies and then at the head of the country, and gave him the power and authority to do some measure of evil.

We love stories of physical, direct heroism. And I think they do more than just scratch the itch we have for vicarious adventure. They provide models for thinking about, and feeling drawn to, acts of less concrete heroism. That’s a good thing. But this country has matured quite a bit in two hundred years. If Jackson — symbol of courage in the name of acquisitiveness and terrorizing your enemies — was one model of American badassery in our nation’s youth, he needn’t be the only one we ever have. Tubman’s model — courage as the taking of personal risks in pursuit of a truer, deeper, more equal liberty — could take a turn in the front for a while.

Jacksonian courage is the sort of courage that fueled investment banking and business culture for decades. That culture — intensely macho, fratty, willing to substitute bluster for facts and understanding, and determined to see the world as zero sum — set the stage for the financial crisis.

Maybe that’s not what we need so much of these days. Maybe what we need are politicians who buck their leadership, even at cost to themselves, when the really important things are on the line. Maybe what we need are public defenders and civil rights lawyers keeping the justice system honest, even if doing so more-or-less shuts them out of the legal profession’s positions of power. Maybe we need more whistleblowers. Maybe we need more citizen journalists. Maybe that’s the kind of courage we should celebrate.

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born in flames

I have more thoughts on presidents, war, and voting that I hope to get to soon. But at the moment the eruption of violence in Baltimore seems more urgent.

On Sunday I posted this well-intentioned Mic article to Facebook:

On Saturday, over 2,000 protesters marched to Baltimore’s City Hall to protest the death of 25-year-old black man Freddie Gray. Gray died on April 19 after suffering a spinal injury while in Baltimore Police Department custody a week earlier. At some point between when Gray was put into a police van and shackled and the time paramedics were called over half an hour later, something nasty happened.

According to Gray’s family attorney, his spine was 80% severed at the neck. Deputy Police Commissioner Jerry Rodriguez admits that Gray gave up without the use of force.

Since then, thousands of people have taken to the streets every day to demonstrate against the fate that befell Freddie Gray and countless other people who have been killed by police in America. But on Saturday night, a small minority of Baltimore’s residents decided to irresponsibly engage in property destruction and acts of violence — and the media lost its mind….

Despite the fact that there have been peaceful protests in Baltimore every day since Gray died on April 19, some folks seem determined to frame the narrative around the actions of a disgruntled minority.

The article makes some very good, worthwhile points about the way the violence is interpreted by the media, including all the usual notes about the difference between white riots (hijinks) and black riots (END TIMES!!!) and the fact that complex images are often misintepreted. This, for example:

riot drunk chair throw

went through the following permutation, as explained by journalist Brandon Soderberg:

here is a photo of me stopping a woman from going at protestors (she seemed very drunk) . . . saving her from herself.

that image is being sent around to suggest I was protecting her from protestors . . . .

you’ll also see images of @trustpunch and @ItsGiannaBitch trying to stop her. we were part of the protest. drunk lady was walking AT protest

another drunk woman threw a stool at me and someone else then kept yelling at protestors, walking at them hands up “Come at me”

But while the media criticism is invaluable, as of today it no longer seems tenable to say that this violence is the work of a rotten few. The rioters and window-smashers might still be a minority, but at this point they are powerful, driving force in what’s going on in Baltimore. This is not, for example, the brief, mild violence that interrupted demonstrations in Los Angeles after the Zimmerman verdict a couple of years ago. As yesterday’s photos show, what’s happening in Baltimore right now involves sustained, violent confrontation with police:





A slightly shell-shocked Shep Smith suggested that it looked like Palestinians fighting with the IDF. Which seems about right:


Of course, clashing with police is one thing; even white kids from the leafy suburbs did that, once upon a time:


Harder to take, for a squeamish white liberal at least, are the images of looting, which conjure the worst stereotypes imaginable and seem impossible to square with political protest:




In one sense — a strictly logical sense — it of course does not matter whether protesters are doing bad things. If they are correct about police violence and ongoing, systemic oppression, they are correct about that, independent of their own actions this week. But because humans are human, and because they have a hard time separating the message from the messenger, it is worth exploring where this violence — including the desire to commit property crimes against convenience stores and other businesses — really comes from.

This thoughtful post by blogger Radical Faggot attempts to locate all these acts in a logical strategy of disruption:

I’m overwhelmed by the pervasive slandering of protesters in Baltimore this weekend for not remaining peaceful. The bad-apple rhetoric would have us believe that most Baltimore protesters are demonstrating the right way—as is their constitutional right—and only a few are disrupting the peace, giving the movement a bad name….

Non-violence is a type of political performance designed to raise awareness and win over sympathy of those with privilege. When those on the outside of struggle—the white, the wealthy, the straight, the able-bodied, the masculine—have demonstrated repeatedly that they do not care, are not invested, are not going to step in the line of fire to defend the oppressed, this is a futile political strategy….

The political goals of rioters in Baltimore are not unclear—just as they were not unclear when poor, Black people rioted in Ferguson last fall. When the free market, real estate, the elected government, the legal system have all shown you they are not going to protect you—in fact, that they are the sources of the greatest violence you face—then political action becomes about stopping the machine that is trying to kill you, even if only for a moment, getting the boot off your neck, even if it only allows you a second of air. This is exactly what blocking off streets, disrupting white consumerism, and destroying state property are designed to do….

[W]hile I don’t believe that every protester involved in attacking police cars and corporate storefronts had the same philosophy, did what they did for the same reasons, it cannot be discounted that when there is a larger national outcry in defense of plate-glass windows and car doors than for Black young people, a point is being made….

A fine point. I also don’t think every person who smashed a convenience store window today (or even every person who threw a rock or set fire to a police vehicle) was motivated by political consciousness. But Baltimore and communities like it are sending us a very clear message, intended or not: they are in a permanent state of civic disaster:

Over the past four years, more than 100 people [in Baltimore] have won court judgments or settlements related to allegations of brutality and civil rights violations. Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson ….

And in almost every case, prosecutors or judges dismissed the charges against the victims—if charges were filed at all. In an incident that drew headlines recently, charges against a South Baltimore man were dropped after a video showed an officer repeatedly punching him—a beating that led the police commissioner to say he was “shocked.”

And while the Department of Justice declined to pursue civil rights charges against Darren Wilson in the Mike Brown shooting, the Department’s investigation of the Ferguson city government and police department revealed a scheme of policing-as-revenue-collection that would make the Sheriff of Nottingham’s hair stand on end:

Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community. Further, Ferguson’s police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes. Ferguson’s own data establish clear racial disparities that adversely impact African Americans. The evidence shows that discriminatory intent is part of the reason for these disparities. Over time, Ferguson’s police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular.

The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved. City officials routinely urge Chief Jackson to generate more revenue through enforcement. In March 2010, for instance, the City Finance Director wrote to Chief Jackson that “unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. . . . Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.” Similarly, in March 2013, the Finance Director wrote to the City Manager: “Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try.” The importance of focusing on revenue generation is communicated to FPD officers. Ferguson police officers from all ranks told us that revenue generation is stressed heavily within the police department, and that the message comes from City leadership. The evidence we reviewed supports this perception.

The City’s emphasis on revenue generation has a profound effect on FPD’s approach to law enforcement. Patrol assignments and schedules are geared toward aggressive enforcement of Ferguson’s municipal code, with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation. Officer evaluations and promotions depend to an inordinate degree on “productivity,” meaning the number of citations issued. Partly as a consequence of City and FPD priorities, many officers appear to see some residents, especially those who live in Ferguson’s predominantly African-American neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue.

It’s also worth pointing out, perhaps not quite as a side note, that the businesses that were looted are convenience stores and check cashing stores, not Whole Foods and Bank of America. That, in itself, is part of the message.

Because even to the extent that it is not intended as a political message, what’s happening in Baltimore, like what happened in Ferguson, is a message. It is telling us what happens when you put your fellow human beings in, not merely difficult situations, but situations that are devoid of hope. It is not mere poverty that we are talking about here, but the disastrous consequences of centuries of personal experience teaching people that the civil society is not for them, does not protect them, and indeed is actively out to weaken, confine, rob, and ultimately destroy them.

Back when Ferguson exploded, I bookmarked this nice bit of writing from a few years ago, by Tumblr user ladycyon. It’s about, of all things, “Dog Whisperer” Cesar Millan’s theories of dog psychology. The author thinks Millan reads dogs all wrong, based on old research that did not take into account the impact of environments on complex mammal brains. This section, in particular, struck a chord with me:

The majority of Millan’s theories stem from research done on wolves “in the wild.” The problem with this is that for the majority of the last hundred years, up until 1975 (the year wolves gained endangered species protection from the government) it’s been difficult if not nearly impossible to find a wild wolf pack due to extensive efforts to eradicate the species. In an article featured by the Canadian Journal of Zoology, David Mech writes, “Most research on the social dynamics of wolf packs, however, has been conducted on wolves in captivity. These captive packs were usually composed of an assortment of wolves from various sources placed together and allowed to breed at will,” (Mech, 2). This meshing of random unrelated individuals created a very different social dynamic than those found in wolves in the wild; specifically concerning the occurrence of fights for dominance.

Adult wolves placed in a precarious social situation, will fight with each other, for control of food and resources, and – supposedly – rank in the pack, the strongest, most ferocious animals coming out on top. This is where the concept of an “alpha” wolf stemmed from . . . . The problem with this is the fact that wolves in the wild do not form packs in this manner. Mech writes: “Rather than viewing a wolf pack as a group of animals organized with a “top dog” that fought its way to the top, or a male-female pair of such aggressive wolves, science has come to understand that most wolf packs are merely family groups formed exactly the same way as human families are formed . . . .” [T]hese family groups do not compete for dominance. The parents become the leaders of these groups, the pups following the parents naturally and learning from them. In other words, there are rarely, if ever, fights for dominance amongst wild wolves inhabiting the same pack. To base a dog training theory on this faulty concept of wolf behavior is bad science, yielding inaccurate and ineffective results.

Increasingly I think this is almost word-for-word true of humans as well. Put humans in precarious social environments, and they tend to behave differently — more violently, more aggressively, more fearfully, more selfishly. They “choose” short-term, risky survival strategies over more “rational” long-term planning.

We tend to think of acts like rioting and especially looting as the making of rational choices, but my suspicion is that the behavior changes tend to be sub-rational, a whole different pattern of responses that acts as a kind of emergency override of our more normal responses. Like wolves, we humans have one set of (cooperative, pro-social) behaviors that emerges in environments where those behaviors are likely to be rewarded. But we have another set that emerges in environments that are chaotic, tipped against us, or otherwise sufficiently unrewarding of good citizenship.

For the environment to foster pro-social behavior, then, I think it has to convince the individual that there is enough fairness and enough predictability in his environment that his pro-social actions — generosity and forgiveness, self-sacrifice, obedience to authority and moral codes, forbearance from violence, etc. — will have a meaningful effect. He has to believe that pro-social behavior on his part will generally invite the same from others, allowing for occasional mistakes. When that belief is lacking, a person (or any intelligent, social mammal!) feels what ladycyon calls “precarious.” And that feeling of precariousness, I think, might explain a lot of anti-social or seemingly irrational behavior.

I think Jay Smooth is getting at this when he talks about rioting in Ferguson and people “reaching their limit”:

But also, Ta-Nehisi Coates is approaching the same thing when he says that “having a boot on your neck, while deeply tragic, is not an ennobling experience.”

Baltimore is teaching us, if we can hear it, that contrary to the mainstream liberal narrative, the periodic eruptions of violence that arise in the protest environment are not the work of “bad apples,” of evildoers sneaking into what would otherwise be a festival of Zen calm punctuated occasionally by the joyous singing of spirituals. (Though if we think the first civil rights movement consisted solely of such, we misremember history.) Rather, violence and anti-social behavior are the natural reaction of a significant minority of people on the ground in these communities to their lived experiences.

There are several possible explanations for what is happening in Baltimore. One is the racist explanation — that black people are somehow more prone to violence and theft than other people. (Or the slightly more sophisticated cousin of this idea, which is that black people are such rubes that they’ve been misled by “race hustlers” into a resentment all out of proportion to their own experiences.) Apart from being the racist (in the most literal sense) explanation, it is also deeply contradicted by the long history of white political rioting and destruction of property, whether for good or for evil.

Then there’s Radical Faggot’s explanation — that this violence and destruction is strategic. That might be partly true, but I think there’s something else mixed in there.

And then there’s my explanation — that if you put humans into a hopeless, desperate situation, if you teach them over a long period of time through brutal experience that they are outside the polity and the protection of the law, then they will react accordingly. Not as a matter of strategy, or even as a matter of rational choice or moral decisionmaking, but purely as a matter of an organism changing survival strategies in a near-apocalyptic environment.

That is not to say that the explosive rage of the “precarious” is not often channeled by and merged with political consciousness. Here is Marvin Gaye talking about the moment when his own anger and desperation came welling up in the 1960s:

I remember I was listening to a tune of mine playing on the radio, “Pretty Little Baby,” when the announcer interrupted with news about the Watts riot. My stomach got real tight and my heart started beating like crazy. I wanted to throw the radio down and burn all the bullshit songs I’d been singing and get out there and kick ass with the rest of the brothers. I knew they were going about it wrong, I knew they weren’t thinking, but I understood anger that builds up over years — shit, over centuries — and I felt myself exploding. Why didn’t our music have anything to do with this? Wasn’t music supposed to express feelings . . . ? I wondered to myself, With the world exploding around me, how am I supposed to keep singing love songs?

Gaye was never, to my knowledge, involved with rioting in the ’60s. He was a songwriter, and he was able to pour his heartache and rage into brilliant, beautiful political music. But arguably he died of the rage anyway, when his father shot him after the two men fought over a trivial argument between Gaye’s parents. This is not to say, obviously, that every domestic murder is the result of systemic racism and the alienation of black people from the society in which they live. But it is to suggest that systemic racism and alienation will raise, dramatically, the number of domestic murders in a community.

Often, when black activists complain about police violence, the retort is “What about violence within the black community!?” What, indeed, about that? Where does it come from? Why does it persist, despite universal condemnation within the black community? (As a side note — even the Crips and the Bloods are calling each other brother and speaking out for peace in Baltimore today.) The two kinds of violence — police violence and intra-community violence — are elements of the same problem. When we truly accept black communities and black people into our body politic, I suspect we will see less violence of both kinds.

Anyway, I’ve now spent a thousand words to say what Langston Hughes said better a century ago in a few dozen. So I’ll give him the last word.

What happens to a dream deferred?

Does it dry up
like a raisin in the sun?
Or fester like a sore—
And then run?
Does it stink like rotten meat?
Or crust and sugar over—
like a syrupy sweet?

Maybe it just sags
like a heavy load.

Or does it explode?

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insert tired Douglas Adams lizard joke here

Ah — the season for browbeating progressives into submission has arrived! Here’s an essay by Allen Clifton in the old familiar style:

Let me list a few numbers for everyone:
Those are the ages that Supreme Court Justices Stephen Breyer, Antonin Scalia, Anthony Kennedy and Ruth Bader Ginsberg will be when the next president is sworn in, respectively. The next president we elect (assuming he or she serves two terms) could very well be the individual who selects four Supreme Court Justices.

Now, in a world where we’ve all seen how powerful the Supreme Court can be concerning the laws that impact all of us, who on the left wants a Republican such as Jeb Bush, Ted Cruz or Scott Walker potentially selecting four Supreme Court Justices . . . ?

Liberals might not like hearing this, but it’s going to be Hillary Clinton or a Republican in 2016. It really breaks down to these two options:

Either get on board with Hillary Clinton, even if she’s not everything you’ve dreamed of. – or –

Whine and cry because Elizabeth Warren isn’t going to run, become apathetic, then let Republicans win the White House in 2016; likely replace four Supreme Court Justices over the following 8 years; start a war with Iran; ruin the planet; destroy our economy again; and undo all the good that’s been done these last 6 years.

Yes, it’s really that simple.

Well, I’m sure that chiding, superior, I’m-the-adult-here tone is really gonna get ’em to the polls, bro.

All right. I will try to be nice. There are, I think, three reasons not to be sucked into the Clinton vortex just yet. I will address them in descending order of their being likely to convince other progressives.

First, the nomination is not yet hers. At this point in the 2008 cycle, Obama had not yet declared his candidacy, and although he had given a well-liked speech, he was not really a familiar national presence. (As John McCain pointed out at every turn, he had been a senator for, like, all of five minutes.) There are plenty of interesting Democrats out there, including Jim Webb and Martin O’Malley (who are already in Iowa!) and even Bernie Sanders, who has been hinting. Clifton argues that Sanders is just too OLLLLLDD, get out of the way, oldie, even though a President Sanders would be 83 at the end of a second term, which is… the same age that Justice Ginsburg is now. (Justice Ginsburg, who is widely supported among liberals in her decision not to step her old ass down from the bench.)

Clifton also argues that Sanders is unelectable because he is a self-described “socialist”:

Even if you get past his age, which many wouldn’t, he’s also a self-described socialist. If you really think this country is going to elect a self-described socialist to the White House, you really don’t know much about politics.

I don’t know, man. 40% or so of the electorate thinks that any Democrat is basically Stalin, and Republicans will inevitably paint any Democratic candidate as a state socialist, because that’s the playbook. There hasn’t recently been a charismatic populist in a presidential race who was willing to own the “socialist” label, instead of scurrying away from it like a fearful ninny. Americans may be suspicious of socialism (the name, not the practice), but they’re even more suspicious of people who are cowardly. Voters can smell fear, and they admire straightforward conviction. I don’t know how much this term would hurt Sanders if he owned it and explained what he meant by it, early and often, in populist terms.

But even if Sanders is unelectable, there may be other Democrats who aren’t, and who tick at least some progressive boxes better than Clinton does. I don’t know why we have to assume, without discussion, that she gets the nomination.

The second reason I don’t think I have to roll over for Clinton is that we don’t know who the Republican nominee will be. I am not a single-issue voter, but to the degree that I have a single issue that dominates all others, it would be my generally anti-war position. I am not a pacifist, but I am an anti-interventionist, I favor dramatically limiting executive authority to wage undeclared wars, and in general I’m a follower of Smedley Butler. Hillary Clinton is, to say the least, a hawk. She voted for the authorization of force for the Iraq War, did not vote for an amendment that would have increased opportunities for a diplomatic solution, and never really apologized for any of it. (I mean, for God’s sake, Montresor — Andrew fucking Sullivan apologized.) She also has nice things to say about Henry Kissinger, has consistently supported militarization of the drug war, and has provided public and backroom support for creepy and dubious foreign regimes, like the one that ascended to power in Honduras in 2009.

Meanwhile, the Republican field so far includes someone who at least claims to be much less warlike — Rand Paul. Paul is an unlikely candidate in today’s Republican party precisely because he’s taken some dovish stances (Lindsay Graham is coming after him for it). As I wrote last week, Paul has already shown a willingness to capitulate to military-industrial interests, which makes his anti-war cred open to suspicion. But suppose he somehow seizes the nomination, and further suppose that he makes a less interventionist, less violent foreign policy an issue in his campaign. What then? I would have the opportunity to vote for a major party candidate whose first instinct is not to assert military dominance over every corner of the world. Would I have to consider that? Yes, I think I would.

Of course, Paul comes with his own zany baggage, such as wanting to eliminate the Department of Energy and privatize everything that’s not bolted to the floor. President Paul would be very bad on, e.g., the social safety net and abortion. Weirdly, for a supposed “libertarian,” he is also not great on immigration. It should also be said that, apart from Supreme Court justices, presidents appoint the people who run executive agencies, and that matters, too; for example, federal engagement with Indian tribes has surged under President Obama because it was an executive priority. On the other hand, Paul would be good, probably much better than Clinton, on things like drawing down the drug war and restraining police violence and warrantless surveillance. And to the extent that many of his domestic policies are terrible, President Paul would be constrained to some degree by Senate Democrats — and the same thing is true of his Supreme Court choices.

But presidents have wide latitude to wage war (and the warlike ones always seem to take even more latitude than they actually have), and the human suffering of people outside our borders should matter to progressives, just as the human suffering inside our borders matters. Al-Jazeera America has a good op-ed this week reminding us of the scale of misery the United States created with our misguided wars in Iraq and Afghanistan:

The report estimates that at least 1.3 million people have been killed in Iraq, Afghanistan and Pakistan from direct and indirect consequences of the U.S. “war on terrorism.” One million people perished in Iraq alone, a shocking 5 percent of the country’s population. The staggering civilian toll and the hostility it has engendered erodes the myth that the sprawling “war on terrorism” made the U.S. safer and upheld human rights, all at an acceptable cost.

As the authors point out, the report offers a conservative estimate. The death toll could exceed 2 million. Those killed in Yemen, Somalia and elsewhere from U.S. drone strikes were not included in the tally. Besides, the body count does not account for the wounded, the grieving and the dispossessed. There are 3 million internally displaced Iraqi refugees and nearly 2.5 million Afghan refugees living in Pakistan.

I think there’s a lot to be said for not repeating that kind of thing in the coming decade. Fortunately, another debacle on that level seems unlikely to happen in the near future. But I am unconvinced that Hillary Clinton would not, say, get into armed conflict with Iran — or even just engage in the hinky shit we always get into when playing world policeman.

There is, of course, another big elephant in the room, one that affects human happiness or misery around the world for decades to come, and that’s climate change. Paul is a libertarian-ish Republican politician, so he’s probably never going to win the Ed Begley Lifetime Achievement Award. But his position on climate change is apparently evolving — he recently voted for an amendment stating that climate change is real and that human activity contributes to it, which is more than you can say for Ted Cruz or Marco Rubio. And he told Bill Maher that he’s “not against regulation,” citing the Clean Air and Clean Water Acts, which practically makes him green for a Republican. Progressives are right to be skeptical of Paul’s change of heart, but at least he’s making movements, and in the correct direction. (So far, however, his suggested solutions seem pretty lackluster — deregulating natural gas, for example. (…?) )

In all likelihood, I’d vote for Clinton over Paul because of her much stronger take on climate change (though O’Malley and Sanders are better still) — that is to say, I’d be willing to risk the possibility that she’d get us into war, be lethargic about dismantling the drug war, and do nothing at all about the surveillance/security state, in order to have a better shot at preventing serious planetwide ecological disaster.

But that’s a pretty grim lesser-of-two-evils: voting to take two steps back from the worst of climate change, while continuing to take a step or two forward in state violence, is not a cheering thought. I take the anti-war and anti-violence mandate very seriously, and that’s something I don’t think I share with Clinton, and might share with Paul. It remains to be seen whether he is at all serious about a non-aggressive foreign policy, whether he is actually a complete moron or just puts his foot in his mouth, and whether he can win the nomination.

(Also, to go back to the Democratic field for a moment: Jim Webb was right on Iraq at the time, which is a rare quality, and seems otherwise a pretty unobjectionable liberal. Soooo… why Clinton again?)

The third factor weighing against a vote for Clinton is the possibility of a third-party vote. I’ve argued before that a third-party vote is not necessarily a wasted vote: if you have minority viewpoints, sometimes the only way you get traction in a coalition party (and both our major parties are coalition parties) is to be willing to walk out and deny the party managers your support. Tea Partiers grasped this, which is why they were able to steer the Republican Party, however haphazardly, toward their policy preferences. They lost some elections and won some, and not all of their ideas found welcome in the mainstream, but indisputably they dragged the party in a certain direction. Progressives should at least consider this basic principle of political life, even while acknowledging that it could result in losses for progressive ideals in the short term.

The great defining myth (in the social and psychological sense) for progressives about third-party candidates is that Nader Cost Gore The Election In 2000. I’m not entirely convinced, for reasons that others have articulated here and here, but let’s assume that it’s true. So what? That is in fact the point of a protest vote — to hurt the mainstream wing of the party. The fact that something terrible happened in this case, way out of proportion to what should have happened, because God or Mighty Thor reached down and gave us a 9/11, does not mean that denying the mainstream wing of our party the opportunity to rule will always and forever result in such calamitous developments.

Consider, for example, Theodore Roosevelt spoiling the 1912 race for the Republicans. Woodrow Wilson won handily, and Wilson was more progressive than Taft, the Republican nominee. Additionally, Roosevelt’s Progressive Party, by being in the race, was able to push ideas like “giving women the right to vote, the abolition of child labor, minimum wages, social security, public health standards, wildlife conservation, workman’s compensation, insurance against sickness and unemployment, lobbying reform, campaign finance reform and election reform” to the front. And by laying the groundwork for a strong, independent progressive wing of the Republican party, Roosevelt and the Progressives arguably made a bipartisan New Deal possible.

Of course it helped that basically everybody in the race that year (including, to a lesser degree, Taft) was some flavor of progressive — except Eugene V. Debs, who went Full Socialist and got 6% of the vote (see, Sanders??). When everybody is pretty close, splitting the vote arguably matters less. Still, 1912 shows, at the very least, that when the moment is right (I don’t know that it is yet, but I do think change is a-comin’), a spoiler candidate is not a bad thing and can even prepare the party and the country for some very good things.

And sometimes third party candidates do not swing the election but do meaningfully shape the debate. Consider Ross Perot, who did not swing the country for Clinton but did have a lasting influence (not for the better, in my opinion, but an influence) on the nation’s debt debate, putting the fear of God into voters about the national deficit and making it a viable issue for the Republicans.

And then there was George Wallace, who came close to throwing the 1968 election to the House of Representatives and foreshadowed the Republican Party’s turn to being the party of class resentments, racism, hippie-punching, and anti-intellectualism. (Not to say Nixon didn’t hold his own in those departments.)

Still other times (most times, in fact) third party candidates have had little or no effect on anything, and are remembered as either an embarrassment or a non-entity.

My best guess is that every election is different and probably every election is sui generis. I’m not willing to let the fact that a third party candidate (may have) brought us a heap of disaster one time poison me on third party candidacies in the future. Other people’s mileage may vary, and I’m comfortable with that. But I don’t think it’s unreasonable to say that there could easily be situations, now or in the future, where voting for a third party candidate moves a certain agenda forward, changes the nature of a political party, and does not bring about an Iraqpocalypse (even if it does come with a certain price tag as to other things). I don’t know if that will be this year (I doubt it), but I go through the thought experiment anyway, because I think it’s important, for the health of the Democratic party and progressivism, for progressive voters to be able to say that it is possible to walk away, and to let things burn a bit, in order to reach a greater good.

So those are my three reasons for not being Ready For Hillary. One is what I hope for — primary challengers to either sharpen Clinton’s left side or replace her altogether. One is the Faustian bargain I’m willing, for now, to at least contemplate. And one is the Thing We Are Afraid Of, which I think we should not fear quite so much.

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you don’t have to hold the hearing until you hold the hearing

There’s a great bit of news out of South Dakota: tribes and parents have won a federal Indian Child Welfare Act (ICWA) case against the state, based on a South Dakota court’s persistent practice of delaying a meaningful hearing after an Indian child is removed from the home.

The key provision of ICWA at play is 25 U.S.C. § 1922, which deals with “emergency removal” of an off-reservation Indian child from her home by the state:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.

The statute does not say what “expeditiously” means. Child welfare practices vary widely from state to state. Some states have a very short hearing within no more than a day or two of removal, followed by a much more leisurely timeline before there is a full hearing at which parents (and, in the case of Indian children, the tribe) can be heard. Other states have a full hearing within a few days, or a week.

In the particular South Dakota circuit (the Seventh) whose officers were sued, the presiding judge used the former procedure:

Judge Davis typically conducts hearings within 48 hours of an Indian child’s removal from the parents’ care. The hearings usually last less than five minutes.

The 48-hour hearings were not just brisk — they frequently failed to give parents any substantial notice of the reasons the child was removed; nor did they give parents or the tribe any opportunity to make a meaningful argument:

In a number of transcripts [of 48-hour hearings] there are specific exchanges with a judge in which an Indian parent asked about the allegations against them or why their children were removed . . . . In none of these hearings did a Deputy States Attorney, DSS representative or the judge contradict the statements of the Indian parents or counsel or recess the proceedings to allow the parties to receive and review the ICWA affidavit and petition for temporary custody . . . .

Every time the Seventh Circuit judges agreed during a 48-hour hearing to appoint counsel for indigent parents, the judges delayed the appointment of counsel until after granting DSS custody . . . .

Judge Davis does not conduct any inquiry during the 48-hour hearings to determine whether emergency removal remains necessary. He permits no testimony by the Indian parents or presentation of testimony by the tribal attorney to determine whether the risk of imminent physical harm has passed.

Even so, at the end of every hearing the court managed to make factual findings and determine that other alternatives were hopeless.

At the conclusion of every 48-hour hearing, Judge Davis entered a temporary custody order finding that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts have proven unsuccessful,” and “continued custody of the child(ren) by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child(ren).” This language appears in the standardized temporary custody order used by all the Seventh Circuit judges when removing Indian children from their parents.

The majority of children were separated from their families, with no meaningful due process, for weeks or months at a time.

Eight hundred twenty-three Indian children were involved in 48-hour hearings in Pennington County, South Dakota, during the years 2010 to 2013. Of those 823 Indian children

  • 87 children were discharged from DSS custody the day of the 48-Hour hearing;
  • 268 children were discharged from DSS custody within 1-15 days after the 48-hour hearing;
  • 114 children were discharged from DSS custody within 16-30 days after the 48-hour hearing;
  • 44 children were discharged from DSS custody within 31-45 days after the 48-hour hearing;
  • 50 children were discharged from DSS custody within 46-60 days after the 48-hour hearing; and
  • 260 children remained in DSS court-ordered custody for more than 60 days after the 48-hour hearing . . . .

So if the 48-hour hearing probably can’t be considered an expeditious child custody hearing, and state custody of the child in the majority of cases seems to be for considerably longer than the minimum necessary to get the child out of imminent physical danger, then what is going on here?

The state officials argued, with admirable, Mad Hatter-like simplicity, that § 1922 just isn’t triggered until a child custody proceeding is held. Including the provision that requires them to expeditiously hold a child custody proceeding.

The federal court did not buy that argument. The court cited Department of Interior guidelines requiring judges to “[p]romptly hold a hearing to hear evidence and evaluate whether the removal or placement continues to be necessary whenever new information is received or assertions are made that the emergency situation has ended[] and … [i]mmediately terminate the emergency removal or placement once the court possesses sufficient evidence to determine that the emergency has ended.” The court also noted that the Seventh Circuit judges’ practice of holding only a brief hearing and routinely adopting the findings of the state Department of Social Services was essentially an “abdication of judicial authority” and was “contrary to the protections guaranteed Indian parents, children and tribes under ICWA.”

Interestingly, the Seventh Circuit judges’ procedures in child welfare cases were so deficient that the federal court also found for the plaintiffs on a due process claim, because parents did not have counsel during the 48-hour hearing, they were not given time to review the allegations against them, and they were not permitted to testify on their own behalf.

A very good decision, IMO.

In other good news for people studying/practicing Indian law, the Indian law issue of Federal Lawyer has the ultimate cheat sheet: a list of every Supreme Court Indian law case of the last 40 years, compiled and annotated by Lawrence Baca. There are things to quibble with in Baca’s descriptions — I’m not sure, for example, that I agree that Hodel v. Irving, which invalidated a federal statute intended to deal with fractionated land interests, really “[f]avors Indian interests.” But it’s a wonderful thumbnail guide and a great thing to keep bookmarked.

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RFRAs, discrimination, and the prickly question of whether to trust judges

Eugene Volokh has a worthwhile series of posts up in response to the controversy over Indiana’s recently-passed “Religious Freedom Restoration Act,” or RFRA. The law prevents the government from “substantially burden[ing] a person’s exercise of religion, even if the burden results from a rule of general applicability,” unless there is a “compelling government interest” at stake and the burden on religious exercise is the “least restrictive means” of vindicating that interest.

Opponents of the bill worried that it would allow discrimination against LGBT people for religious (or “religious”) reasons. Proponents insisted that was not the intent, though the lobbyists associated with the bill appear to be firmly in the anti-gay-rights rear-guard. In any event, in broad strokes, the Indiana law is almost identical to a longstanding federal law [UPDATE: Eric points out a key difference in comments below] and a passel of other state laws, none of which has been particularly controversial, although, as Josh Blackman points out, there has been a split of authority as to whether the federal RFRA acts as an affirmative defense in lawsuits under anti-discrimination statutes. The majority of circuits to have ruled on the issue hold that it does — so, for example, a church that forces its clerics to retire at 70 can raise the federal RFRA as a defense to lawsuits based on federal age discrimination statutes. (That particular application has probably been rendered moot by the Supreme Court’s decision in Hosanna-Tabor Evangelical v. EEOC, but it still serves as an example.)

But — and this is the critical thing in all RFRA and RFRA-like cases — the fact that you have the technical right to invoke the statute as a defense to a discrimination lawsuit does not mean that the defense will work. If a government can show that its anti-discrimination law serves a compelling interest and is the “least restrictive means” of achieving that interest, the defense fails, and the plaintiff (assuming the facts are otherwise in her favor) wins her lawsuit.

How does this play out in the gay rights context? Well, Indiana it may be a moot point. The state does not have a state-wide anti-discrimination statute as to sexual orientation and gender identity, which means there is probably not a statutory cause of action in the first place. Thus, the legal effect of the RFRA on gay couples seeking wedding cakes (or, uh, pizza) was perhaps dubious all along. In any event, the Indiana RFRA has now been amended to clarify that it does not provide a defense to a civil action for refusal to provide services generally available to the public. Again, though, without a cause of action to sue under in the first place, that amendment doesn’t seem to matter much.

But what about a state like Illinois, which has both a RFRA and an anti-discrimination statute covering sexual orientation and gender identity? Can a baker in Chicago who sincerely believes his religion prohibits providing cake to gay couples on their wedding day shield himself from a discrimination lawsuit based on the state RFRA?

The likely answer is that the baker could invoke the statute, but a judge would find that the state has a compelling interest in preventing discrimination. Whether uniform enforcement of an anti-discrimination statute is the least restrictive means of accomplishing that interest in all situations is not beyond doubt; under the federal RFRA and RFRA-like statutes, for example, the government must show that the means chosen are the least restrictive by arguing that other alternatives are infeasible. Thus, for example, it might be argued that there is a less restrictive alternative: not enforcing the statute as long as there is at least one baker in the jurisdiction who will serve gay couples. But in the specific case of providing public accommodations (i.e., offering your baking business to the public), it seems unlikely that a judge would hold the government to that alternative, because to do so is to impose a “separate but equal” fiction that, as is now well-understood, thoroughly undermines the anti-discrimination regime. In short, a judge would essentially have to adopt the reasoning of the Plessy v. Ferguson majority. It’s hard to imagine that happening, and if it did, it’s hard to imagine the Illinois Supreme Court supporting such a reading of the state RFRA.

So why did the Indiana law provoke such a firestorm of controversy? The obvious answer is that most people don’t understand how RFRAs and strict scrutiny work, but sophisticated journalists and lawyers added their voices to the condemnation of the law. That may reflect a certain disgust with the anti-gay animus motivating the law, absent consideration of its likely effect (which, as I’ve said, may be none at all). But another explanation is that gay rights activists don’t yet trust the courts to vindicate gay rights. People do not necessarily trust judges to conduct the above compelling interest/least restrictive means analysis, understand its implications, and rule against the baker.

And there’s some reason for that skepticism when it comes to gay rights. One reason we don’t have to worry about state RFRAs creating loopholes for racist bakers to refuse service to black couples is that there is a whole framework of federal anti-racial-discrimination law that easily preempts any state statute. No corresponding comprehensive federal law currently exists as to sexual orientation and gender identity. And a few judges have shown themselves determined to support discrimination in the area of gay marriage.

But as Eugene points out (especially here), not trusting judges to sensibly balance religious liberty with other social interests is largely a conservative position. It was Justice Scalia‘s opinion in Employment Division v. Smith, holding that the Free Exercise Clause did not provide any exemption from laws of general application, that provided the impetus for Congress to pass the federal RFRA in the first place.

In Smith, the plaintiffs were American Indians who were fired from their jobs, and subsequently denied unemployment benefits, for using peyote as a sacrament. Under an older case called Sherbert, the Supreme Court had held that the government had to meet a compelling interest standard to be able to substantially burden religious exercise. Scalia’s opinion in Smith, overruling Sherbert, famously observed that allowing religious exemptions based on religious belief would permit every believer, “by virtue of his beliefs, to become a law unto himself.” In a passage evincing a stunning lack of faith in the ability of American courts to sort out complex questions, Scalia announced that the “compelling interest” test could not hold back the tide of “anarchy” that would result if a court found that the Free Exercise Clause allowed an Indian to smoke some peyote:

If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because we are a cosmopolitan nation made up of people of almost every conceivable religious preference, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.

bender anarchy

These alarming predictions did not come to pass, even though the federal RFRA, its sister statute RLUIPA (the Religious Land Use and Institutionalized Persons Act, which applies the compelling interest test to state actors as to land use and prisoners’ rights), and the state RFRAs have been in place long enough now that we ought to have seen the collapse of our system of law and order, if that were going to happen.

In large part, this is because judges are not idiots. (Pertinent exceptions are, of course, noted.) As Chief Justice Roberts explained in a later RFRA case, responding to the Justice Department’s contention that drug laws must be applied uniformly in order to be effective,

[T]he Government’s argument for uniformity . . . rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” This determination finds support in our cases; in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as “no more than a possibility” the State’s speculation “that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work” would drain the unemployment benefits fund.

Justice Scalia joined in that opinion, and conservatives have since embraced the compelling interest test, once they realized it could be read as solicitous of, say, the right not to provide contraception coverage. But Eugene’s general point is very strong — conservative legal thinkers tend to trust legislatures and the political process, because the legislative process is (theoretically) imbued with “democratic legitimacy.” In other words, they represent the majoritarian strain in democratic theory. Mid-20th-century liberals, on the other hand, looked to the courts and strong (conservatives mights say “made-up”) readings of constitutional protections as a check on the majority and the power of the state. They represent the counter-majoritarian strain of thought. For Scalia in 1990, the courts had become undemocratic and nearly lawless, finding “constitutional rights” to things that aren’t mentioned in the Constitution, like abortion and Miranda warnings. “What’s next,” he seems to be asking in Smith, “a ‘constitutional right’ to use drugs???”

Today, however, the Supreme Court — which is what most people think of when they think of judges interpreting the law — is dominated by conservative thought. It has been moving rightward for more than two decades, since the early 90s saw Justices Blackmun and Brennan replaced with the decidedly less liberal Souter and Breyer and Justice Marshall replaced with arch-conservative Justice Thomas. The Rehnquist and Roberts Courts have been visibly hostile to affirmative action, abortion rights, gun control, the sovereignty of Indian tribes, the Affordable Care Act, and counting votes in Florida. Progressives have reason to be skeptical that our highest judges, at least, will act to protect the weak and vulnerable. At the same time, at least in the case of gay rights, there’s been a sudden upwelling of popular support. So for many progressives, embracing the use of political and economic clout to change the minds and force the hands of Indiana legislators probably seemed preferable to leaving to a judge who might get it wrong.

There was nothing illiberal or nonprogressive about the use of political pressure and the political process to change the Indiana law, even if, as I suspect, it was to little actual legal effect. But we should be careful about dismissing religious liberty statutes out of hand as nothing but a tool of bigotry. Not all progressive causes are experiencing an upswing of mainstream support. One of the key functions of at least the federal RFRA and RLUIPA has turned out to be securing a modicum of human comfort to the most despised segment of our population: prisoners.

Absent the statutes, prison officials could nearly always create internal regulations of “general applicability” that would have the effect of depriving prisoners of the right to free exercise. The statutes have helped secure the right to things like the wearing of long hair and sweat lodges for American Indians, kosher/halal/vegetarian meals, group worship ceremonies, the possession of certain artifacts or objects of reverence, and the possession of religious texts. They have protected the rights even of members of disfavored religions like Wicca and Satanism. Recently, the Supreme Court unanimously struck down a ban on beards — including beards grown for religious reasons — in Arkansas prisons. Notably, Justice Alito’s opinion held that RLUIPA “does not permit . . . unquestioning deference” to prison officials’ determinations of what is feasible. That is the polar opposite of the approach taken to prisoners’ rights other than religious liberty, as even the briefest perusal of Eighth Amendment cases reveals.

This relatively strong protection of one aspect of the human dignity of incarcerated people did not arise because the American people felt a brief rush of affection and sympathy for them. It was at best a side effect of RFRA, and when the Supreme Court held that the federal RFRA could not be applied to the states, RLUIPA was passed only with a great deal of debate: the legislative history of early incarnations of the bill shows, for example, that some legislators wanted to exclude prisoners from any religious freedom statute aimed at the states. Strom Thurmond expressed deep skepticism toward the idea of expansive religious liberty for prisoners, while the Commissioner of the New York State Department of Correctional Services urged Congress not to adopt the compelling interest/least restrictive means test. Nonetheless, the bill was passed, in part because of lobbying by influential members of the Christian right like Chuck Colson. Colson had gone to prison in connection with Watergate and had emerged reborn as an evangelical who ministered to prisoners and worked for prison reform. Religion provided one — perhaps the only — humanizing narrative about prisoners for conservative legislators, and so religious liberty became a small window through which a light of hope could shine into America’s prisons.

But this salutary effect of the religious freedom statutes has come about largely because Congress entrusted judges to sensibly apply the compelling interest test. There is simply no way to create a statute comprehensive enough to cover every belief system and every possible request, and even if there were, a direct command to prison officials to allow every religious expression on a compiled list, without due regard for the conditions within the prison, would be the real path to anarchy. What staves off anarchy on the one hand, and grim oppression on the other, is individualized human judgment: a reasonably impartial, reasonably fair person trying to balance competing interests. This is not to say the considered judgments of America’s jurists are uniformly the best choices. At a minimum, for example, the federal bench is heavily weighted toward former prosecutors and “big law” commercial attorneys, which introduces considerable bias into the system, and not by any means a bias that favors prisoners. But as a general matter, the way that you deal with competing interests — which is what the law, fundamentally, is about — is not by having an ironclad rule, but by setting priorities and letting human beings make (admittedly imperfect) assessments as to the right balance.

Conservative jurists do not like this approach, as can be seen in Justice Scalia’s scornful blast at Justice Breyer’s proposed “judge-empowering interest-balancing inquiry” in District of Columbia v. Heller:

After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

Of course, we balance interests with regard to “constitutional guarantees” all the time, as Justice Scalia recognizes a few sentences later when he notes exceptions to the First Amendment for “obscenity, libel, and disclosure of state secrets” (in the heat of the moment, he apparently forgets incitement to riot). He waves a vague hand at the idea that “the people” conducted their own balancing of interests in adopting the Bill of Rights (including these exceptions which are, mysteriously, nowhere to be found in the text of the First Amendment). That idea, however, is thoroughly undermined a short time later when he assures readers that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” As has been argued by a number of scholars, those prohibitions are not longstanding — they certainly do not date back to the ratification of the Bill of Rights, when the “people” are supposed to have done their interest-balancing. Those exceptions can only be the product of Justice Scalia’s own consideration of certain interests, like reducing violent crime and protecting children, that outweigh the seemingly absolute textual right to keep and bear arms. He was not wrong to place those interests in the balance, but balance them he did. (Moreover, despite the majority opinion’s clear rejection of interest-balancing, in practice post-Heller courts have largely vindicated Breyer’s approach, even though they genuflect to the majority.)

Much of the conservative legal project comes down to an attempt to create simple, clear, but often harsh and inflexible rules, usually based on an “original meaning” theory, and explicitly shunning, to the degree possible, legal decisions based on considerations of policy, competing interests, or consequences. As we can see with Heller, it is nearly impossible to carry out that project perfectly, but that is the goal.

The 20th century liberal project, on the other hand, was very much based on the notion that judges should take important, conflicting social interests into account and try to fashion both individual judgments and rules of law that took account of those interests and tried to do justice to them.

It is not, perhaps, clear yet whether 21st century progressivism is quite so invested in the sagacity of judges, and there may be good reasons to doubt it. But legislation is and always will be a blunt instrument, compared to individualized judicial inquiry, and an attempt to create blanket rules through legislation will frequently result in harsh, unjust, unintended results. Even the amendment to the Indiana RFRA, which is a solid and thoughtful political compromise, represents a choice to potentially exclude from the compelling interest protection of the RFRA at least some acts of discrimination in the provision of services or public accommodations that should probably be lawful.

For example, one can imagine a conservative evangelical Christian poet who writes, for a small fee, special wedding poems for other conservative evangelical Christians, celebrating their love and unity in Our Lord Jesus Christ. She does not, however, write poems for Catholic, Muslim, or gay couples, because she believes she is not called to do so. Because she provides a service, for money, to the public, she is not under the shelter of the Indiana RFRA, given the new amendment. Should she be? Assuming there is an applicable anti-discrimination statute, she likely has other defenses — freedom of speech, certainly, and perhaps freedom of religious exercise under the First Amendment, though under the Free Exercise Clause the court would have to be much more deferential to the anti-discrimination statute than under the RFRA. But if those defenses apply to a poet, why don’t they also apply to a baker? Perhaps because poetry is somehow inherently more expressive than baking… but then what about photography, which is easily held to be expressive speech? And does anything about this change if our poet/photographer/baker refuses to serve black couples for religious reasons, given the Constitution’s particular concern, post-Civil War, with discrimination on the basis of race?

I don’t know the answers to any of these questions. But they probably can’t be justly resolved by resort to a general principle, even one articulated in legislation, that discrimination is bad, or that discrimination in the provision of goods and services or accommodations is bad. Untangling the knot of human interests at stake — including the right to be a bigot, at least in one’s heart and one’s words — probably can’t be done by “the people.” It has to be done by one person, to whom we extend some measure of discretion.

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i am the Lorax, i speak for the F-35!

Ah, to be part of the 47%! Remember them? The people who were just never going to vote for lower taxes for the rich?

There are 47 percent of the people who will vote for the president no matter what . . . . These are people who pay no income tax. Forty-seven percent of Americans pay no income tax. So our message of low taxes doesn’t connect. So he’ll be out there talking about tax cuts for the rich. … My job is not to worry about those people. I’ll never convince them they should take personal responsibility and care for their lives.

Well sign me up for the Republican Party, because I got a job offer recently! It won’t pay me Warren Buffett money, or even Warren-Buffett’s-secretary-money (ha-ha, just kidding, Debbie!), but if everything goes smoothly I will be officially lifted out of the “poors” bracket and into the, oh, I don’t know, they haven’t told me what it’s called yet, but I’ll label it the “junior mandarins” bracket for now. That means that, unlike all the ne’er-do-well teat-suckers Obama carries around in his pocket, I will now see a BUNCH of my paycheck go voomp! through the vacuum tubes and across the continent to Uncle Sam every week. (When you are in the “poors” bracket, a good portion of your income also goes voomp!, but in much tinier pieces, at the store and at the DMV, and it goes to Uncle Jerry.)

And I have to admit, when I did a back-of-the-envelope estimate of my take-home… it stung. I’ve had this experience once before, years ago, when my wife for one glorious year had a high-paying job with a fancy media company. We got her first check, and it was so much smaller than what we were expecting we thought at first that it must have been for a partial pay period. But… nope. That was it. That was the whole thing.

Now I could give you a lot of Sam Seaborn about how a junior mandarin such as I just has to pay high taxes because “that’s the only way it’s gonna work.” But let’s not get there quite yet. Let me just sit with my feelings for a moment.

One of my feelings is that I wish I could pay less. Mythologically speaking, then, the Republican party is supposed to be for me: they will advocate for small, tight budgets and low, low taxes, right? I mean, yes, they really ran to embrace racism in the 1960s and ’70s and then stoked gay panic, abortion panic, family values panic, and drug panic in the ’80s, and then embraced racism again in the ’90s, but will you shut up already, you goddamned Social Justice Warriors?? …is the kind of thing I would say, probably, if the Republican Party were offering me a tax break at the federal level.

So you can imagine how disappointed I was to read, this week, that even the so-called “libertarian” Republican proto-candidate, Rand Paul, is not that serious about giving me a tax break:

Just weeks before announcing his 2016 presidential bid, Kentucky Sen. Rand Paul is completing an about-face on a longstanding pledge to curb the growth in defense spending.

In an olive branch to defense hawks hell-bent on curtailing his White House ambitions, the libertarian Senator introduced a budget amendment late Wednesday calling for a nearly $190 billion infusion to the defense budget over the next two years—a roughly 16 percent increase.

Paul’s amendment brings him in line with his likely presidential primary rivals, including Florida Sen. Marco Rubio, who introduced a measure calling for nearly the same level of increases just days ago. The amendment was first noticed by TIME and later confirmed by Paul’s office.

The move completes a stunning reversal for Paul, who in May 2011, after just five months in office, released his own budget that would have eliminated four agencies—Commerce, Housing and Urban Development, Energy and Education—while slashing the Pentagon, a sacred cow for many Republicans. Under Paul’s original proposal, defense spending would have dropped from $553 billion in the 2011 fiscal year to $542 billion in 2016. War funding would have plummeted from $159 billion to zero. He called it the “draw-down and restructuring of the Department of Defense.”

Et tu, Rand?

discretionary spending

If that big blue part is going to stay the same or keep growing anyway — if I’m never going to see an appreciable tax break, no matter who I vote for, that is not funded by deficits — then fuck it: I’m gonna vote for the guy/gal who will give poor people food stamps, too. (That’s [a small portion of] the teeny-tiny, sky blue sliver.)

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a riposte, sir!

Via my friend and law school colleague Michael Smith: Orin Kerr has written (finally!) the essay that John Roberts has always wanted to studiously pretend he has not read:

Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

Behold, Mr Chief Justice:

This short essay explains why, in all likelihood, Kant’s influence on evidentiary approaches in 18th-century Bulgaria was none.

It is indeed short (three pages, with footnotes) and pretty amusing (to a very narrow band of readers).

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