In re: Joshua Prager, “For Branca, an asterisk Of a Different Kind,” NYT, 8-15-11
This article, given front page status in the Monday Sports section of the New York Times, is both interesting and annoying. The annoying part is easy to articulate: not only because such stories are not unique (e.g., Madeleine Albright), but they are not surprising given the generation and era the subjects are drawn from. Whether part of the “children surviving the Holocaust” narrative or the “new immigrant creating a new identity” narrative, the decision of an increasingly secular Jewish diaspora during a period of intense anti-Semitism cannot be regarded as some shocking revelation that warrants above the fold coverage — even if in the sports section.
What is interesting and deserves attention is the way in which the article is presented, reflecting a sense that this “discovery” of Branca’s Jewish roots should somehow make a difference to him or to baseball (or to the world in general). Branca’s wife probably had it right by being somewhat dismissive of importance of the news that she had been “married to a Jew” all these years. Even Branca seems to take the position that this is all very interesting, but except for the renewed attention to his very minor role in a very minor part of American “popular culture” history, of what import is this news to him personally? Would it have made any difference if he had known he was Jewish, or that a Jew had given up the famous home run to Thomson?
As to its importance to the Jewish community, here we find some insight into a phenomenon of the 1950s and 1960s involving the Jewish community’s (secular and otherwise) desire to highlight the contributions those of Jewish descent had made to American society. For me this effort reached its absurd (and hilarious) height with the lyrics to 1966 song, “Would you believe it?” that was part of a comedy album by Bob Booker (lyricist in this instance) and George Foster (“When you’re in love, the whole world is Jewish”):
I’ve had a lot of thrills in my life
Three kids, a gorgeous wife
(Such looks)
I’m thrilled about my car: a Riviera
My sister Sarah
And John O’Hara’s books
But the thrill of thrills that gave my heart a clout
Was the thrilling night when I thrillingly found out
Steve McQueen is Jewish would you believe it?
He’s just like you and I, couldn’t you almost die?
And Cary Grant is Jewish could you conceive it?
Such a living doll in a prayer shawl
Marlon Brando’s Jewish, Pat O’Brien and Richard Conte
Not to mention that lovely couple, Harry and Bela Fonte
Frank Sinatra’s Jewish would you believe it?
Sean Connery and Lyndon Johnson too
As a matter of fact the whole world is Jewish
Since I fell in love with you
Rosie McGonegal!
Since I fell in love with you
What might have been so important to the Jewish community of the 1950s and 1960s has faded as late baby boomers and their kids have shifted attention inward and focused on the personal nature of Jewish identity rather than community pride. Prager’s article on Branca would have been appropriately highlighted during the 1960s, perhaps; but for now it serves little purpose, except as a reminder of the “alien” character of Jewishness in the US and the distance we as a nation have travelled culturally over the past half century. Had he pursued those aspects of the story, it would have been worthy of its place in the Times.
But I do have to admit that, as an early baby boomer, I now have a little tune playing in my head (“Kevin Youklis is Jewish, would you believe it?”)….
August 15th, 2011
Posted by
mjd |
accountabilitybloke |
no comments
Until recently, my culinary thoughts about fish have been limited to the price and size of cans of tuna and anchovies, as well as the occasional salmon (in its various forms). Unless I was at Legal Seafoods or some similar restaurant (or happened to pay attention to the seafood assortment at Whole Foods on our occasional visit there), I have rarely faced a list of fresh fish options to contemplate.
That has all changed over the past month as we’ve become part of what is fast becoming a New England “foodie” movement: the Gloucester-based Cape Ann Fresh Catch Community (CAFC). The brief description at the website gives you the facts (see also coverage on WGBH), but the value of this endeavor is in the tasting. I have already noted my growing interest in the subject of fisheries management (see last post), but suddenly I am interested in the various types of fish that are landing on our dinner plates on Thursday evenings.
Which brings me to a bit of reflection….
I am not one to think a good deal about childhood memories — growing up in a Brooklyn working class tenement during the 1950s was interesting, I guess, but few things stand out except for the fact that it was not anywhere near the suburbanite “Leave It To Beaver” or “Father Knows Best” ideal that the media fed us at the time. One thing I do recall was the regimen of the weekly dinner menu — on certain nights you ate certain types of meals. One night was chicken, one was beef, one was some Eastern European concoction of my grandmother’s choice (that I now appreciate more than ever), etc. I do recall quite clearly that for some reason Thursday nights was “dairy night,” which typically included canned tuna or salmon. Other than that, I do not recall any night being devoted to fish, although I have always associated weekend mornings eating “whitefish” and having lox with cream cheese and bagels.
But back to our “new” Thursday night tradition and the CAFC story….
The CAFC scheme for my town (Beverly MA) involves signing up for a “season” of fresh catch deliveries on Thursday afternoons at a specific location. Between 4 and 6 PM, my wife and daughter (we share a weekly 2 pound “Fillet share” with her) pick up whatever has been determined to be the weekly fresh catch (an email comes out a day or so before with specifics and suggested recipes), and by seven in the evening it is on our dinner plates (thanks to Randi’s new found genius with on-the-spot cooking) typically in some awesome form.
We have now completed three weeks of the summer schedule, and thus far the menu has been striped bass, Atlantic pollock (an “alternative” to the overfished cod and haddock), and redfish (either an ocean perch or — less likely — a red snapper that is sometimes found off the southern New England coast). (Wikipedia does come in handy when you know absolutely nothing about what you are eating!)
Making Thursday dinners even more interesting is that spouse and daughter have also purchased “shares” in a community supported farm on the North Shore – and during the growing season they make regular Thursday afternoon treks to the Long Hill Farms CSA to gather up whatever greens and vegetables are ready for the table.
With all this, and despite the winters, is it any wonder folks fall in love with New England….
August 13th, 2011
Posted by
mjd |
accountabilitybloke |
no comments
Doing some summer side reading, and at moment it is about the management of New England fisheries — particularly in the Gulf of Maine and Georges Bank. In addition to location, my interest comes from two “accidental” sources: a superb segment of a superb series of CBC programs on How to Think About Science first aired in 2009; and the work of a student enrolled in one of my courses who happened to be affiliated with a UNH program focusing on fisheries management (actually part of a larger consortium)..
I recently came across a comment online (cannot recall exactly where) that if you want to understand the problems and prospects of the New England fisheries, you need to read three books: Junger’s The Perfect Storm, Kurlansky’s Cod, and (the basis of this post) David Dobbs’ The Great Gulf.
The basic theme of Dobbs’ work is reflected in the book’s subtitle: “Fishermen, Scientists, and the Struggle to Revive the World’s Greatest Fishery”. For me the fisheries management “struggle” is a fascinating (if offbeat) case study of the tensions inherent in “governance”, and therefore a classic example of issues facing contemporary public policy making and public administration. From a PA perspective, the tensions manifest themselves in the history of the US Bureau of Fisheries — an agency that we ought to be studying in greater detail. At the outset (Part I, which is where I am now in my casual reading of the book), Dobbs focuses on the work of one individual, Henry Bryant Bigelow, who seemed to have bridged the gap between the fishermen and scientists for decades. One of his central contributions was to link up two fields of study (oceanography and the study of fisheries) which were surprisingly indifferent to each other despite their obvious connection. Oceanograhy, Dobbs explains, was the study of oceans without a concern for fishes or fisheries — and vice versa.
Besides the inherently interesting story of this mypoic behavior related to the New England fisheries, I found the pre-Bigelow situation of the two fields comparable, perhaps, to the divisions that have characterized the relationship between PA theorists and practitioners. Bigelow, as the founding director of Woods Hole Labs, did not end the tension (the rest of Dobbs’ book attempts to provide an observer’s view of the ongoing “struggle”), but he did attempt to construct an institutional bridge between the two. Which got me thinking about the role played by some major organizations (e.g., ASPA, NAPA) in the PA field….
August 11th, 2011
Posted by
mjd |
accountabilitybloke |
no comments
Initially I thought the idea absurd, but have now come around to the view that, under the Constitution, there is no need for a debt ceiling bill. In fact, I’d go further: any debt ceiling bill is in fact unconstitutional — and thus all this debate is much ado about nothing.
The argument is relatively simple and based on a basic Constitutional premise: nothing can be done by the US federal government unless it is authorized by legislation. In fact, authorization obligates government officials to take actions required by congressional mandate, including spending those dollars appropriated by Congress to carry out the authorized actions.
Whatever debt the US government has, in other words, is a result of congressionally authorized expenditures. Period.
The same general premise applies to any actions taken by US government officials (i.e., the much demeaned bureaucracy): there can be no action, whether involving expenditures or no, without authorization.
With one major exception: government officials can (and MUST) act in accord with provisions of the Constitution. The Constitution trumps Congress! If Congress was to require actions on the part of government officials contrary to provisions of the Constitution, they can either refuse to do so or take the actions and leave it up to the Court to make a determination in regard to the constitutionality of the authorization.
These are the basic lessons of American constitutional history.
With that in mind, the very notion of a debt ceiling law is questionable — and one wonders whether this act is really nothing more than an unnecessary symbolic gesture that has somehow become institutionalized.
A very conservative reading of the relevant provision of the 14th Amendment (Section 4: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned…”) establishes the authority of Treasury to pay any and all bills incurred by authorized public officials in carrying out congressionally authorized activities. In the jargon of constitutional law, it establishes a “plenary power” in the Treasury that cannot be trumped — not even by Congress.
While put into the 14th Amendment in order to deal with controversies surrounding debts incurred during the Civil War (a second clause effectively prohibited the payment of any debt incurred by the Confederacy), its importance and meaning was really established when the Supreme Court upheld the emergency actions taken by FDR and Congress during the early days of the New Deal.
In short, there is no need for a simple debt ceiling act — and there probably never was.
Of course, there is a fly in the ointment. The 5th section of the 14th Amendment can be used to justify and support the constitutionality of the debt ceiling acts. It gives Congress the “power to enforce, by appropriate legislation, the provisions of the article.” In a sense, debt ceiling acts can be regarded as constitutional under this section, but the devil would be in the details.
If a debt ceiling act is to be seen as meaningful as an enforcement mechanism under Section 5, it is really as an act of indirect congressional appropriation that supports a plenary power already authorized by the Constitution. Unless the act includes specific provisions that de-authorize programs or explicitly cut appropriations already authorized by Congress (which is what the current debate is over), the Treasury remains obligated to pay the debts of the US — even it is lacks the blessing of a debt ceiling act.
So, where does that leave us?
The current debate in Washington is not over raising the debt ceiling per se — but rather over attaching provisions to it that would in fact alter the obligations of the US Treasury to pay the bills it has been authorized to pay. But if no debt ceiling act is passed as a result of stalemate over these hotly debated provisions, there is nothing stopping Treasury from fulfilling its Constitutional obligations and to incur further debt in pursuit of maintaining the “validity” of American obligations .
The bottom line is that, in its usual form, the debt ceiling act is mere symbolism and nothing more. In fact, one can imagine that the constitutionality of the gesture itself can be challenged as unconstitutional since, by its very nature, it raises “questions” about the “validity of the public debt of the United States”….
July 23rd, 2011
Posted by
mjd |
accountabilitybloke, debt ceiling act, Obama, US Constitution, US politics |
no comments
Re the recent release of the Financial Crisis Inquiry Commission report:
Like other investigations into disasters and crises, inquiries into our recent financial system collapse are intended to uncover causes and culprits. The problem is that there is rarely (as in this instance) either a “smoking gun” to be found or a particular shooter. With so many factors and players coming into play in shaping and determining the crisis, it is no surprise that the report emerges without a consensus among members of the investigation panel.
One consequence of this situation is the temptation to declare the crisis as “systemic” and thereby declare a universal “no fault” that permits all those who played central roles (through decisions or actions) to escape any blame or responsibility. By doing so, however, these “best and brightest” of the financial world admit to being either dupes or dopes. Furthermore, they inadvertently give support to those who critics of the financial services industry would radically alter the arrangements that proved to be so “systemically” vulnerable.
Alternatively, one can blame the lack of accountability. For most commentators, this shifts the blame to failures in the regulatory system, which in turn is generalized as a failure of government rather than a failure of the financial services market. The “system” would have worked just fine, thank you, had only the government monitors and overseers been more attentive to what was taking place right under their noses. Adopting this view not only shifts attention aways from the banking community, but also implies that any changes or reforms should be limited to relatively minor adjustments in the regulatory system rather than in the financial market itself. This is the approach that has won the day among advocates for change. Unfortunately, it does little more than kick the can down the road. Regulatory accountability has proven to be easily circumvented or undermined over time, and minor tweaks in the regulatory system are not likely to be more than a temporary fix.
I have been arguing in some recent writing that the likely long term “solution” lies elsewhere. Underlying both the “systemic” and “regulatory” approaches ignore a primary factor at work in the financial services market: the absence of a sense of moral responsibility. Neither radical changes in the market nor reform of the regulatory system will work unless there are some fundamental changes in how key actors assume that they have a “moral” (one can also use the term “professional” or “social”) responsibility to the communities they serve. The calls for greater accountability make for fine rhetoric, but unless steps are taken to change the moral culture of the financial services community, no change to either the structure or oversight of that industry will suffice for very long.
January 28th, 2011
Posted by
mjd |
accountabilitybloke |
no comments
Now that I am between semesters, time for some thoughts related to readings I have encountered over the past several months.
First, some comments on the state of K-12 education reflecting a reading of Diane Ravitch’s The Death and Life of the Great American School System: How Testing and Choice Are Undermining Education
— as well as some of her speeches and twitter posts over the few weeks that take aim at the movement for reform highlighted in Waiting for Superman….
There is much to be said for performance evaluation as a management tool — but not much to support its use as a tool of public policy.
People often forget that policy and management are not the same, and in a world where there is an obsession with the idea that any problem or issue can be “managed” (at least to the point of containment, if not solution) the confusion is magnified.
Take the current “policies” being pursued to improve or enhance American education. Here we find near perfect examples of how policy goals or objectives — in this case, dedicated to the education of our children — gets lost in translation as the means to achieve that objective develop into — and displace — the ends. This would not be a terrible thing if we knew that there existed a clear and positive association between the general goal and the means, but in the case of education that has never been the case.
The history of education policy in the US is filled with cases of means-transformed-into-ends. Pedagogical approaches emerging from the innovative efforts of classroom-level educators have often been elevated to the level of curriculum policy and effectively overwhelm or push aside questions of content. Once teaching methods become “policy” ends in themselves, the question of what is to be taught is answered by shaping curriculum to fit the pedagogical scheme. With rare exceptions, the Dickensian classroom of Mr. Gridgrind is hardly conducive to teaching creative arts or fostering critical thinking in other subject areas. (Although I must say that I can still recall my multiplication tables — to a point — indicating that it was an effective means to bit of education…)
The latest version of this is found in the adoption of high-stakes performance measures (i.e., student performance) as a policy standard in the education field. Measures of student performance on standardized exams are (in and of themselves) quite useful as a means for assessing educational instruction, including the curriculum, different pedagogical approaches, the learning environment (among other factors) and the teacher. But what has happened is that this means has been extended to a policy that (1) not only eliminates consideration of all other assessment standards, but also (2) places the entire burden for performance outcomes on the “teacher” factor alone. Curriculum is standardized to those things which can be measured; pedagogy is dictated to assure the reliability of the assessment (via a logic of ceteris paribus); and environmental and other extraneous factors that can impact on student performance are discounted, assumed away and/or completely ignored. We then establish high-stakes performance assessment policies based on this formalized creation of an artificial (and unsubstantiated) causal relationship. The end results involved not only an injustice to the teaching profession, but a tragic distortion of the educational process.
Ravitch is on a crusade to point out the destructive nature of this development, and she does so with considerable energy based on a moral purpose that is uncompromising. I am very sympathetic, but I tend to see what is happening in the education policy area as merely the most visible manifestation of a broader development that pervades almost every sector of our society. I have written elsewhere about the obsession with accountability and the false promise of performance (see here and here; contact me for password if required), and I am convinced that defeating the pernicious effects of this obsession is a worthy goal in general. That said, I am please that someone of Ravitch’s intellect and stature is tackling the problem in one very significant sector where the consequences of high-stakes performance assessment poses a threat to our future as we turn-off great teachers and create generations of test-taking intellectual zombies….
December 24th, 2010
Posted by
mjd |
accountabilitybloke, education, education reform, pedagogy |
no comments
Reflecting on yesterday’s very surprising decision in Virgina regarding health care….
One of the more enjoyable (for me at least) lectures I give in my basic American government course focuses on the “necessary and proper clause” — also known as the “elastic clause” for reasons that are central to my talk. Specifically, we are talking about Article I, Section 8, paragraph 18 of the US Constitution, and how its interpretation has shaped the power of the federal government, especially in relation to the states (i.e., federalism).
The stage for the clause is set in the previous 17 paragraphs, each articulating a power of Congress. A laundry list of sorts, those powers seem to run the range from the narrow and mundane (“to fix the Standard of Weights and Measures”) to the most general of authorizations (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”). While we do not know much of the details of the give-and-take at Philadelphia in the summer of 1787, the arrangement of those 17 paragraphs gives the impression that the Framers were at some point engaged in a discussion of all the shortcomings of the Articles of Confederation that they wished to correct by empowering this newly formed congressional body. And one can imagine that, at some point, they realized that the list could go on and on if they were to bother elaborating all those powers that would be needed to fulfill those already listed. It is therefore possible to imagine that the “necessary and proper” clause was the result: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.”
Great debates over the bill of rights and constitutional treatises notwithstanding, I regard paragraph 18 as THE key provision of the US Constitution — and I spend a great deal of time and effort in my introductory courses (and textbook chapter) making that quite clear, not only for its expansive impact on the powers of Congress (and thus of the national government as a whole), but also because it provides the primary example of a constitutional provision that cried out interpretation.
The words are quite clear — to a point. It is how they are read or spoken that makes the difference. Consider, if you will, how the words of the clause can be approached, especially the key phrase “necessary and proper”. On one reading, the clause can be read as restrictive — that is, the Congress “shall” be limited to pass laws that are needed and appropriate to carry out those enumerated powers — and nothing more. It is not “do whatever is necessary and proper,” but rather “do only what is necessary and proper”. The alternative reading — “do whatever” — is obviously more expansive.
A great deal of political life in the first years of the republic centered on the difference in those phrasings, typically personified in the contentious and heated relations between Jefferson and Hamilton and their respective allies. For those of us who teach and write about American government, the watershed and decisive historical moment for settling the dispute was the Supreme Court’s 1819 decision in McCulloch v. Maryland — a case cited in almost every textbook along with Marbury v Madison as the foundational decisions of the country’s early years. My argument is that without that particular decision and its expansive interpretation (by John Marshall) standing as a core precedent, the US constitutional system would have developed quite differently.
This is not to say that the decision in McCulloch and the expansive view has not been challenged. In fact, a case can be made that US constitutional history is one extended narrative involving constant efforts to both restrict and expand the use of the necessary and proper clause. The McCulloch decision, for example, did not settle the substantive issues of the national bank which took on even greater political importance during the 1820s. Nor can one ignore the role that the expansive interpretation played in the debate over slavery and the national government’s power to abolish (or severely limit it) legislatively. The last great debate along this lines took place in the 1930s as part of the battles FDR fought with a Supreme Court that would not buy into the argument that some delegations of authority by Congress went beyond what was “necessary and proper”. But after 190 years, the McCulloch precedent is generally accepted as the central standard, to the point that our attention often focuses elsewhere when constitutional challenges are raised.
Which leads me to my reaction to Judge Henry Hudson’s decision in ruling that the requirement (mandate) for individuals to purchase health insurance (or be penalized, in the form of a tax) was unconstitutional. While the New York Times has opined that is “was no great surprise” that a Bush appointee would render such a decision, the fact is that it is quite a surprise given his use of the necessary and proper clause to rationalize his decision. Let’s put aside, for the moment, the substantive details of the case and that it involved a very controversial provision of a hotly contested law. What is surprising — even shocking — is that a sitting federal judge has returned to a restrictive view of the necessary and proper clause that runs directly counter to settled historical precedent.
The implications of the reasoning in this decision — should it be upheld on appeal –would involve a radical alteration of the the basic constitutional principles under which we have been operating for nearly two centuries (if not longer, if you consider the actions of Hamilton in establishing the national bank, etc.).
That said, given the current turmoil in judicial thinking (and the growing influence of The Federalist Society), it is not out of the question that this narrower view of the clause might have a chance of gaining the support of a Supreme Court majority, thus returning us at least to the more restrictive views of national power held by the courts in the first half of the 1930s. We have seen some movement back to state-centered views of federalism in recent SCOTUS decisions, and the restrictive view of the necessary and proper clause would fit into that trend. Such a move to limiting national authority would not be illegitimate, but it would be transformative given the history of the past eight decades.
December 14th, 2010
Posted by
mjd |
accountabilitybloke |
no comments
The biggest news to come out of the midterm elections actually took place on Wednesday when the Fed effectively took over macroeconomic policy just as it did under Paul Volcker three decades ago. The Fed had been signaling its intent for awhile, and it is now clear that this scenario and plan was put on the table when the election outcome became clear weeks ago.
The bottom line logic is simple: if we cannot count on government stimulus through the political-based fiscal system, let’s do it through the monetary route. A Fed that factors in the lack of political will into it decisions is the best offset to a constitutional system that lacks the capacity to take action. Volcker’s Fed did the same by tightening the supply of money and forcing an end to the inflationary dynamics that hit the US under Carter/Reagan. The Fed’s power and legitimacy at the time was high enough to sustain incredible rises in interest rates that played major role in a recovery for which Reagan-worshippers still take credit. That could be in the cards for Obama as the Fed effectively shifted the stimulus spending dynamic into the private sector. Yes, risky stuff — but brilliantly staged. It was a coup of quiet but monumental importance….
The risks are not merely economic. Politically, Bernanke and friends are likely to become targets in a Congress where Ron Paul (and his few friends) are now in position to make waves of their own in both his own chamber and the Senate. Staying the course in the face of an increasingly hostile attack on the Fed’s legitimacy from the anti-Fed right — and populist left — will be tough, and they will need White House’s VERY QUIET support to do so. For Obama, this can mean a 2012 election similar to Reagan’s 1984 “morning in America” victory.
Wonder if Reagan ever thanked Paul Volcker for performing that coup…..
November 4th, 2010
Posted by
mjd |
accountabilitybloke |
no comments
Both sides of the current “separation of church and state” debate are relying on revisionist histories of why the First Amendment is phrased as it is. The O’Donnell’s of the world are not as stupid as they might seem; but their framing of the historical meaning of the establishment clause is just as distorted as those who assume it is clearly a manifestation of some Enlightenment principle.
One must recall that the Constitution – including the first Amendments which emerged from promises made during the ratification process – was the product of political compromises crafted in the heat of a major transformation of government. Whatever philosophical or principled rationales have been used to justify the ratification of the Constitution (e.g., the Federalist Papers) or the formulation of the Bill of Rights, the reality is that they emerged out of political necessity given the manifold arguments against the Constitution.
Despite scholarly efforts to create the image of an “Antifederalist” (anti-Constitution) movement at the time of ratification, there was no effective unified opposition to the Constitution; rather, there was a state-by-state opposition in which each jurisdiction (assembled as ratifying conventions) had to be satisfied that its sovereignty and interest was being addressed. In some instances this could be done through persuasion with little or no substantive change to the document put on the table (e.g., Delaware). In other cases, some promises of formal adjustments were made, or a contingency was added to a state’s official ratification (e.g., the inclusion of a Bill of Rights). At the other extreme, of course, was Rhode Island which (quite frankly) was eventually threatened with military action by its neighbors (Massachusetts and Connecticut) unless it ratified. The bottom line is that there was no consensus on many provisions of the Constitution and much of what was included at Philadelphia and through ratification amounted to political bargains struck in order to get the new constitutional regime in place.
Seen in that light, the establishment clause was a political solution to the bothersome problem that certain states did in fact have an official (and constitutional) tie with certain churches. While many state charters or laws contained provisions for the “toleration” of religious choice (often restricted to Christians, however), established churches existed before and after the passage of the First Amendment. In fact, it was not until 1811 that Connecticut gave up its official church, and Massachusetts got around to it in 1832. In light of these facts, the establishment clause was in fact a protection of state religions from action by Congress that might challenge the official state religions of the states. In that sense, the establishment clause was designed to support state religion (at the state and local levels) rather than prohibit it.
In short, the establishment clause was not related to some Enlightenment principle of separation of church and state. Rather, it was part of the “federalism” compromise that facilitated the adoption of the Constitution itself.
Over the years, however, the provision has taken more substantive meanings related to the separation of church and state. One can trace the often cited positions of Jefferson and Madison, for example, not to debates over establishment of a national church, but rather to the heated rhetoric surrounding how their State of Virginia would handle the church-state issue within its jurisdiction. This was not a new issue for the framers’ generation, but rather something colonists had wrestled with for at least 150 years prior. (The history of Maryland’s efforts to create and sustain Catholicism as the state religion during the 1600s is instructive, not only for that colony, but also for its influence on the British approach to colonial governance.) The First Amendment was not designed to end those state-level debates, but rather to take the national government factor out of the equation.
The state-level debates were over options that ran the range from retaining a state religion (again, the Massachusetts example is instructive), to having a strong “religious toleration” provision in law as a supplement to the adoption of a state religion, to an outright and explicit prohibition against the establishment of a state religion (e.g., the debate in Virginia). The First Amendment was relevant only in that it left such decisions up to the states (and some ended up leaving it up to local jurisdictions).
Through interpretations and constitutional constructions overtime, the establishment clause eventually took on a meaning associated with the “wall of separation” doctrine, and when the 14th Amendment extended (over time)) the provisions of the Bill of Rights from Congress to the states, the wall of separation doctrine came along with it. That interpretive and constructed “meaning” of the establishment clause as creating a “wall of separation” may be – as Rehnquist once argued – based on “bad history” in the narrow sense of distorted facts; but the salient fact is that it is the working and operational view of the establishment clause. To see it through purely “originalist” eyes (as many on the political Right would like to) is to ignore the reality of 225 years of historical record.
October 20th, 2010
Posted by
mjd |
accountabilitybloke |
no comments
[...Continued from last post....]
The second assumption in the Perry decision that concerns me relates to the idea of marriage as a fundamental right, and the complementary idea that such a right cannot be taken away by popular vote.
Popular beliefs to the contrary, there are no such things as absolute rights. Even the plaintiffs against Proposition 8 qualify their claim by noting that the right to marry a person of one’s choice “is sheltered by the 14th amendment from the states unwarranted usurpation of that choice…” Whether we are talking about basic liberties such as freedom of speech, rights to privacy or property, etc., it is well-established legal and constitutional doctrine that limitations can be imposed where “warranted”.
This is the defining narrative, in fact, which the District Court judge follows throughout, noting that it is conceivable to impose “burdens” on the exercise of a fundamental right if the government is able to provide “state interest” rationales that can withstand “strict scrutiny”…
So far so good, and the decision does provide substantial support for the claim that marriage is a fundamental right. As such, there has to be a pretty substantial reason for burdening — let along eliminating — such a right, whether legislatively or by popular initiative.
Nevertheless, it should be noted that this “fundamental right” stands on a foundation of substantive due process assumptions. This blog post is no place to get into the implications of that status, but it amounts to the assertion that there are certain rights not explicitly mentioned in the Constitution (e.g., privacy, property, etc) that cannot be qualified without appropriate governmental justification. The Court has deemed these as “substantial” and fundamental as those which are explicitly mentioned (e.g., speech, assembly, press). Constitutional originalists (such as Scalia) and literalists (such as former Justice Hugo Black) have in the past applied much narrower perspectives on what constitutes a fundamental or substantive right, and in that sense the claimed right to marry might prove as controversial and vulnerable as the right to privacy. And, of course, one can never really tell which case will prove to be the tipping point that puts a good many widely accepted constitutional protections in jeopardy. As appeals go forward, I don’t think the victors in the Perry decision should ignore the possibility that this case might prove to be the precedent breaker.
Another aspect of this decision is explicitly related to the status versus conduct distinction recently highlighted in a New York Times analysis and referred to in an earlier post. Gender and sexual orientation are not regarded as behaviors or acts, but rather as status or classification. The prohibition against marriage for those claiming such status is not associated with any harmful act or public safety issue that would warrant singling them out as a class. This section of the decision–in which the judge reviews each of the “purported interests” that proponents of Proposition 8 claim–is perhaps the most entertaining part since he carefully and effectively undermines each with skill. The bottom line is that he finds no “rational basis” for the Proposition other than moral beliefs which are ruled out of order in this case with classic quotes taken from earlier SCOTUS decisions:
- California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.”
- “[T]he Constitution cannot control [private biases] but neither can it tolerate them.”
- “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation.
All this bodes well for the decision’s survival on appeal, except for the fact that the crucial “status/conduct” distinction is based on a very tenuous 5-4 majority on the current SCOTUS. The slippage of one-vote–particularly that of Justice Kennedy–can make this decision into legal mincemeat….
So celebrate we should and shall — but beware the potential flaws in the decision.
August 5th, 2010
Posted by
mjd |
accountabilitybloke |
no comments
A blog focused on things related to accountability, governance and all sorts of other ideas that I might want to share.