One Latin Cross in the Desert, Protected by the Extraordinary Efforts of Congress

Salazar v. Buono [PDF] has been released — and the Sunrise Cross gets to stay.

A Kennedy-Alito-Roberts plurality found that the lower courts were in error when they found that the Government’s transfer of the land to a private party was not permissible. I’ve only been able to read over the plurality and concurrences, and Breyers’ dissent, but here’s my initial take on it.

Kennedy, writing for the three, is almost convincing. I’m not even sure I disagree with the legal analysis. But the factual findings that form the underpinnings of Kennedy’s argument — that no act of religious endorsement has occurred here — are not credible. Kennedy spends a great deal of ink arguing that legislation passed by Congress to protect an unconstitutional establishment of the Christian religion was not in fact religiously motivated. Instead, he insists, this was all a secular misunderstanding — Christianity is not even implicated here, it’s just a war monument! The message conveyed by the cross, and Congress’ decision to save the cross, “assessed in the context of all relevant factors,” signifies only respect for veterans, not respect for Christian sentiment. “One Latin cross in the desert,” Kennedy concludes, “evokes far more than religion.”

I’m not buying it.

Anyone who believes that that the extraordinary lengths undertaken by Congress to preserve the Sunrise Cross were motivated by anything other than a desire to protect Christian symbolism is being deliberately myopic. Would Congress have ever gone to similar lengths to protect a Wiccan alter on Federal land? No. Never. And if anyone else out there thinks otherwise, well, I’ve got some CDOs backed by subprime mortgages I’d like to sell you.

But, to be fair to Kennedy, it’s true that Congress’ decision to transfer the cross to private land, taken by itself out of context, does not pose much of a threat to the Firth Amendment. But it is less the transfer itself, and more the institutional bias towards the protection of Christianity, that is the true problem here. That is where the government endorsement of religion comes from; that is what the harm under the Establishment Clause lies. As a legal matter, I have a hard time finding too much fault with Kennedy’s opinion — but I also believe there is a violation of the spirit of the Constitution here, even if not the letter. The single disputed act at issue in Buono might not mean much, but set into the cultural and institutional history of the United States, it is part of a widespread pattern and practice of religious establishment. Although Kennedy’s opinion focuses extensively on taking the Sunrise Cross “in context” of the surrounding circumstances to find that it is not really a religious symbol, Kennedy completely ignores that taking Congress’ efforts to preserve a cross “in context” with Congress’ wider history of religious protection shows a government whose religious preferences are at the heart of its decision.

The abstract and non-concrete nature of the harm caused by the cross under the Establishment Clause, Chief Justice Roberts, in his one page concurrence. Roberts thinks that there is no dispute here that is worth the Court’s consideration, as it is all a dispute over symbolism and vague feelings of hurt, and not a dispute over any concrete, non-symbolic injury. As the Constitution “deals with substance, not shadows,” there is no First Amendment problem to speak of. And to a certain extent, I actually agree with Roberts'; the shadow-problems in Buono are not so much about a specific substantial and obviously unconstitutional violation of the First Amendment, but rather about pervasive governmental effort to protect shadows of Christianity over the shadows of all other religious beliefs.

Alito’s opinion irks me the most. It is full of sentimental claptrap and light on legal reasoning. He uses heartwarming anecdotes to suggest that, because America is so wonderful and tolerant of diverse religious practices, there is no harm in giving the Government a little slack when it comes to showing a tiny bit of bias for Christianity. To do otherwise, he argues, would be “interpreted by some as an attesting symbol of a Government that is not neutral but hostile on matters of religion.”

No, Justice Alito. It would have been interpreted by the voters of many Congressional districts to show a government hostile not to religion in general, but a government hostile to Christianity in particular. And hostility to Christianity is not an electorally popular platform.

The First Amendment, however, does not permit the Government to engage in protection of religious symbolism that happens to be favorable to a Representative’s chances of reelection, while simultaneously declining to protect those religious symbols for which protection would be politically harmful or neutral.

But Alito seems to think the fact that protecting crosses is so popular means it cannot be religious favoritism. “It is noteworthy,” he writes, “that Congress, in which our country’s religious diversity is well represented, passed this law by overwhelming majorities: 95-0 in the Senate and 407-15 in the House.”

The whole point about having a Constitution, though, is that the popularity of a given legislative act is entirely divorced from whether or not it is constitutionally permissible. Not to mention, the idea that “religious diversity is well represented in Congress” is so laughable, I won’t even bother to debunk it here; there are plenty of other sites that have already taken care of that.

In the end, it is the concurrence of the Scaliomas that comes closest to winning me over. While regretfully noting it would be a shame for the litigants to come all this way only for the Court to be unable to hear the dispute on the merits, their opinion would resolve the case on standing grounds alone. The harm to the plaintiff, they argue, is the presence of the cross on Federal land. The cross is no longer on Federal land. Ergo, no Article III case or controversy and no Supreme Court jurisdiction.

Scalia argues that the real harm being argued in this case, the harm that the parties and the other Justices are focusing on, is the harm in having Congress selectively protect Christianity. However, Scalia points out, that harm is not the harm the original injunction addressed, and the injunction cannot expand. Because Buono initially claimed injury as a result of the cross’s presence on federal land, he cannot now argue before the Supreme Court that he is injured instead by Congress’ religious favoritism in passing the Sunrise Cross act.

But in counterpoint to that argument, Breyers, too, limits his analysis to whether or not the injunction had been properly interpreted by the District Court. Unlike the Scaliomas, however, Breyers finds that the District Court was well within its rights to find that the Government’s actions violated the injunction that had been in place. Although I’d want to spend more time with it to make up my mind, right now I am definitely leaning towards Breyers on this one. True, my knowledge of injunction jurisprudence is pretty limited, so this based mostly on the premise that “parties should not be allowed to engage in creative subterfuge and sketchy dealings to avoid injunctions.” But as made-up legal doctrines go, that’s a pretty sound one to follow.

-Susan

First President Steals Copy of Vattel’s Law of Nations, Uses It To Break Treaty With France

On Oct. 5, 1789, President Washington checked out Vattel’s Law of Nations from the Manhattan library, and failed to return it. He has now wracked up a $300K late fee on that and another volume, although the odds of collecting on the debt are, as the library acknowledges, remote.

I’m not so disappointed in GW’s failure to return the book as I am in the fact he had to borrow a copy of Law of Nations at all. Surely the man should have possessed his own copy of the book. After all, Vattel was a significant influence on the U.S. Constitution — but then again, maybe GW only got around to reading it until after the Constitution had been finished up, and suddenly George found himself in charge of faithfully executing what was in it.

Even before George Washington was president, however, he would have dealt with people quoting Vattel at him. John Jay, the future first Chief Justice, wrote to GW, who was presiding over the Constitutional Convention, and made a recommendation to him regarding the requirements of holding office under the new Constitution. Jay’s letter borrows the phrasing of “natural born citizen” from Vattel’s Law of Nations:

“Permit me to hint, whether it would be wise and reasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

Still, perhaps George Washington made good use of his stolen copy of the Law of Nations. Less than four years after he checked it out, in 1793, Vattel played an important role in an early United States’ foreign affairs crisis, when the actions of the French ambassador, Edmond-Charles Genêt, threaten America’s neutrality to European conflicts. Hamilton and Jefferson wrote to Genêt, in which they defended the right of the United States to suspend the treaties in place between itself and France. Vattel, they conceded, had written that there was a “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” However, Hamilton argued that, although France may have had a right to changes its government, France did not have any right to force the United States to become involved in that civil conflict. If international law allowed for such a situation, “[t]his would be to give to a nation or society, not only a power over its own happiness, but a power over the happiness of other Nations or Societies. It would be to extend the operations of the maxim, much beyond the reason of it—which is simply, that every Nation ought to have a right to provide for its own happiness.”

This was (and is) a pretty subtle question of international law, really. In the case of a nation torn by civil war, to which faction is a duty arising to that country under international law owed? To the established government? To the belligerents? At what point do the belligerents become the establishment, and are therefore the inheritors of the rights and duties under treaties incurred by previous administrations?

Young America, following a policy of neutrality set by President Washington, simply did not want to become involved. Ambassador Genêt was less than impressed with the Washington Administration’s reliance on the subtleties of international law, however. He wrote back, angrily, accusing the federal government of “bring[ing] forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”

This all sounds pretty familiar, really. For as long as the U.S. has been a nation, it has been using complicated interpretations of international law in order to avoid duties incurred under treaties. And for all the haters out there who think America shouldn’t bother itself with international law, I say that if it was good enough for George Washington to steal, it’s good enough for us to pay attention to today.

-Susan

Gay Rights Are Human Rights

Earlier this week, President Obama issued a memorandum on “Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies.” The memo requires all hospitals that participate in Medicaid and Medicare to (1) Allow patients to designate who is able to visit them, and (2) Follow the advance medical directives of their patients, such as durable powers of attorney and health care proxies.

Yesterday, a Circuit Court Judge in Arkansas issued an order striking down an Arkansas law that prohibits any unmarried person who has a non-platonic relationship with someone they live with from either adopting or fostering a child.

These two decisions are being trumpeted as victories for gay rights, as they should be. But the gay rights promoted by these decisions are only a component of the much broader category of human rights that are being recognized here — the associational rights of all persons. In other words, the decisions recognize peoples’ right to establish interpersonal relationships in the manner that best serves their individual needs, and not in the manner dictated by social tradition. In a free society, we should be free to choose which relationships we want to have with which people, and the degree of importance to be attributed to each of those relationships. The government has no business in deciding on everyone’s behalf which sorts of relationships “count” — i.e., only those between kin and those between opposite sex spouses.

The Executive Memorandum issued by Obama was a no-brainer that should have been done decades ago. Hospitals do not operate on the free market — people just don’t get to pick and choose hospitals based upon the associational rights they recognize. In the case of sudden injury, people can be transported to a hospital not of their choice. Or, in the case of rare conditions that require a specialist facility only found in a handful of hospitals across the country, a patient will have no effective ability to choose a hospital based on whether or not they will allow a partner to visit.

In a case like that, I have no problem with the government ordering hospitals to respect patient’s wishes. Hospitals that mandate only kin are allowed to visit are substituting a patient’s actual preferences (or even contractual specifications!) with an idealized, moralistic vision of who a patient should prefer to visit them.

The issues raised by the Arkansas Act — which is “An Act Providing That An Individual Who is Cohabitating Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less than Eighteen Years Old” — are not quite so cut and dry. Although the state has no legitimate interest in dictating people’s personal relationships, the state very much does have a legitimate interest in protecting the best interests of the children placed in its care. The trick, then, is to prevent the government from using its interest in children’s welfare as a means of infringing upon rights they have no business messing with.

In Cole v. Department of Human Services, the judge decided that the U.S. Constitution was not implicated, but that the statute violated the Arkansas state constitution’s protection of privacy rights.

Under the U.S. Constitution, the right to adopt or foster a child is not fundamental, and that cohabitating people are not a not a suspect class. Therefore, rational basis review was to be applied. Therefore, the Arkansas Act could only be examined under rational basis review, which means the ban on adoption by a cohabitating person is constitutional so long as it is ‘rationally related to a legitimate government purpose.’ This is a very easy test to pass — under rational basis review, even if it’s very obvious that the legislature was talking out of it’s ass when it made up a piece of legislation, so long as a judge can squint at it and conceive of some sort of logical purpose that the legislature could have had, the statute will be allowed.

The state’s theory was that “cohabitating environments, on average, facilitate poorer child performance outcomes and expose children to higher risks of abuse.” Although this is an overbroad and less than scientific assumption, under a rational basis review, it’s sufficient. I’m a little skeptical, however, of the judge’s blithe assumption that rational basis review applies here.

First, the idea that no “fundamental right” is at stake doesn’t square with the judge’s analysis under the Arkansas constitution. The Arkansas Adoption Act was invalidated for violating the “fundamental privacy right to private, consensual, non-commercial sexual activity” under Arkansas’ constitution. This sounds awfully similar to the same fundamental privacy right protected by the Federal Constitution that the Supreme Court has recognized in sodomy and contraception cases.

Second, I’m not completely buying the idea that “cohabitating couples” are not a suspect class. Under the Equal Protection clause, federal laws addressing “illegitimates” are reviewed under an intermediate level of scrutiny. I wonder if perhaps this precedent could be turned around and used to advance the argument that the parents of out of wedlock kids are themselves semi-suspect class. After all, at its heart, the court’s illegitimacy jurisprudence truly is truly one about associational rights — i.e., whether or not the government can decide, ex ante, for all people, that relationships with out of wedlock children are not as significant as relationships with children from wedlock.

So given all that, I’m not really convinced that the judge had to decide this case based upon the Arkansas Constitution and not the U.S. Constitution. Then again, this would be a pretty effective way of possibly insulating the case from review by SCOTUS…

Constitutional law aside, the Judge’s invalidation of the Arkansas Adoption Act was not specifically about gay rights, but about the private association rights of all persons. For instance, in the following scenario, a straight person is just as adversely effected by the law: Say that both of a child’s parents die. The child’s aunt then wants to adopt her niece or nephew, but she is living with her long term boyfriend, whom she has been a stable relationship with for ten years. Under the Arkansas Adoption Act, she is prohibited from doing so.

It is not the state’s place to mandate the interpersonal relationships people must have in order to enjoy equal protection under the law. Gay or straight, the government has no legitimate interest in who we decide to invite to our holiday dinners or who we choose to make a home with. Although I’m happy to see ever greater protections afforded to gay Americans, that is only the beginning, not the end, of the fight against governmental coercion in peoples’ personal relationships.

-Susan

How Free Were American Women in the Gilded [C]age?

Bryan Caplan apparently missed the memo that nostalgia for the 18th and 19th centuries is, at best, an emotional appeal that connects with only a very narrow segment of the population. He’s taken it to a new low, however, by defending tooth and nail his theory that women possessed more freedom in 1880 than they do today, in 2010.

I was very relieved to see, however, that Caplan’s dive into the deep end of the libertarian crazy pool was a solo performance. Most libertarian-esque bloggers — in fact all the ones I’ve seen so far — have strongly pointed out that the idea women in the 1880’s lived in a libertarian utopia is nonsensical, ahistorical, and a really horrible argument for libertarianism. Because if libertarianism truly believes that women would be better off if they traded in the freedoms they enjoy now in favor of the “freedoms” they enjoyed in 1880, then libertarianism is too gruesome of an ideology to ever be worth defending.

I was struck by how deeply paternalistic Caplan’s argument was, and how much it echoes the same arguments that have been made against women’s rights for centuries. For instance, Caplan believes that the fact women were denied the vote is not indicative that women were any less free then they are today:

Yet the fact that women were unable to vote in defense of their “basic liberty rights” doesn’t show that American political system denied them these rights.

This is the same argument that was made against women’s suffrage for much of history. Why should women possibly need the right to vote? Their interests were adequately represented in politics already — after all, women have husbands and fathers looking out for their best interests, and to vote on their behalf. Their husbands and fathers love them, so of course they would not vote for politicians or legislation contrary to women’s interests.

Under Caplan’s theory, life in the gilded cage was a life of liberty — after all, so long as you don’t mind giving up your autonomy, and you are willing to accept legal and social restrictions that drastically narrowed the choices available to you, life in the 1880’s wasn’t so bad, now was it?

Sure, in 1880, personal opportunities were severely restricted — but that’s not a problem, says Caplan, because only a portion of it was directly mandated by legislation. And moreover, the tax rate was hardly objectionable at all — there wasn’t even a 16th Amendment. It’s utopia!

Of course, if I’m living in the 1880s, whether or not there is an income tax probably isn’t my foremost concern, as the odds are overwhelming that I won’t be working for pay, anyway. If I am, it will probably only be for a few years out of my life. In 1890, only 18 percent of women worked for pay. [PDF] So while there may not be a federal income tax, it’s not really that material to me, as I probably don’t have an income in the first place. And, once I get married, my odds of working go down to a meager 4.6%. Not to mention, once I’m married (and the odds are overwhelming that I will be), I also give up my right to own property, enter contracts, possess an independent legal existence, or not be raped by my spouse. Married or unmarried, I still can’t vote, can’t hold office, and I am forbidden from working in most occupations (and essentially all high paying ones). Technically, there’s still a chance I could’ve been a lawyer — thanks to good old Belva Ann Lockwood (GW Law Alum, ’73), one year previously, in 1879, I would have been allowed to practice in federal court. But given that there are about three female lawyers in all of America at this time, it’s a safe bet I won’t be one of them.

More likely, I would have been earning poverty-level wages as a seamstress, working 12 hour days — or more likely still, working in someone else’s house. In 1870, of the women who did work, 60% of the non-farm laborers were household servants. Although generally unmarried and not living with their families, they lived with their employer, and they did not have autonomous existences — being a household servant was deemed a way to provide a semi-respectable means for a woman to work, and yet still provide them with extensive supervision. I could possibly have been a nurse or teacher — in terms of “careers,” that was pretty much the extent of it — but even in 1890, only 2,500 women in all of the United States earned a bachelors degree.

So to recap, in the 1880s, the odds are better than 4 to 1 that I don’t work. If I do work, I have very few career options available to me, and the ones that I do have pay 1/3 to 1/5 of what men are paid for comparable work. I am probably working 12 hour days, and likely have to live with my employer. If I get married in a state with coverture, my effective tax rate becomes 100%, as I cannot own property, and any money I earn belongs to a male caretaker — a husband, or if I am younger, a father — who is in charge of my financial and legal affairs. On the up side, he probably does have my well-being in interest at heart. On the down side, he holds the absolute power to define what exactly my “well-being” is. If I disagree with his assessment of what is best for me, I have few legal options available to contradict it, and even fewer social options. Oh, and did I mention I don’t even have the right to vote?

Now, let’s fast forward to 2010. Suddenly, I possess the full set of legal rights that U.S. citizens currently enjoy. It’s not perfect, but the basics are mostly there. Oh, yeah, and women can vote, too. The income tax rate is high, that’s no fun, but on the other hand, I can actually make an income now, in just about any profession I want. Okay, true, I can’t make an income selling recreational drugs. But I can be a doctor, or an engineer, or a politician. And, sure, there are lots of petty and ill-considered economic regulations that interfere with any business plans I may have… But owning a business encumbered by federal legislation is still a lot better than not being able to own a business at all.

There shouldn’t be a question here about which is the better option. No rational actor would voluntarily choose the freedom available to women in 1880 over the freedom available to women in 2010. And for the majority of people, 2010 is still the far preferable choice, whether the average tax rate is 30% or 50% — or even higher still.

-Susan

Economics + History = … Science? A Brief Introduction to Cliometrics

I’m not sure if it says more about my lack of education or about cliometrics’ obscurity, but I first heard about the field of cliometrics from Eifelheim — a science fiction novel set in mid-14th century Germany, and based in part upon the unexpectedly entertaining synthesis of quantum physics and quantitative economic history. Or, rather, “cliogy,” as it’s called in Eifelheim. While I was reading the book, I took cliology to be a fictional branch of academia, something more or less a present-day version of Asimov’s psychohistory. After some snooping on wiki, however, I learned that the branch of history called cliometrics really does exist.

Cliometrics is “is the application of economic theory and quantitative techniques to describe and explain historical events.” The name is derived not from some scientificky sounding Latin terminology, but rather from Clio, the Greek muse of history. As a non-historian and non-economist, probably the most fascinating parts of it for me is largely the random historical-economic factoids — such as that in 1700 in Maryland, for a female indentured servant, one lash was worth about 38 cents, or about two days of labor.

Sadly, despite having snagged a Nobel in 1993, cliometrics is something of a has-been among academic disciplines. Too many articles on cliometrics are of the “What Has Cliometrics Achieved?” and “Reflections on the Cliometric Revolution” variety — it’s never a good sign for an academic field when the meta-commentary plays more prominent role than the regular kind does. The idea of making some sort of falsifiable, scientific study of history does seem appealing, but as cliometrics’ critics are quick to point out, the whole point about it being “history” means there’s too often not a complete set of data to work from, leaving researchers no choice to theorize in the gaps. The mere presence of numbers does not actually turn subjective analysis into an objective one.

Still — how can you not love a discipline that results in articles like “The Suitability of Domesday Book for Cliometric Analysis” and “An Economic History of Bastardy”?

-Susan

A Movement That Equates “Freedom From Slavery” with “Freedom to Possess Marijuana” Needs A New Marketing Strategy

Over at Reason, David Boaz has a sensible and thought-provoking article up that is worth checking out. The article is a reminder to libertarians that at the time of the Founding Fathers, all of humanity — save for the (partial) exception of white males — existed under conditions of tyranny, servitude, and deprivation of rights. ‘Freedom’ is not a word that could be used to describe the state of most of the people who lived then.

In light of this fact, Boaz makes the obvious point that the Libertarianesque message of “1776 was great! Let’s try and recreate those conditions today!” makes for a less than persuasive political slogan. Unfortunately, the commenters on the article react to this rather reasonable message with a mixture of disgust and outrage, going so far as to call Boaz a “communist” and a traitor to the libertarian cause.

The commenters as whole provide a rather excellent demonstration of why the libertarian party, more so than any other political group, is composed of young white guys who don’t like to go to church all that often.

I wonder when organized libertarian groups will realize there’s a reason that particular demographic is so grossly overrepresented among them. Maybe it’s because white men love freedom more than everyone else does. Yeah, that’s it. Libertarians are mostly white dudes because only white dudes truly desire liberty and freedom from oppressive governments. There couldn’t possibly be a more obvious explanation for the discrepancy, could there?

-Susan