The Separation of Church and State

The First Amendment to the Constitution of the United States states that:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

“The Supreme Court on Tuesday struck down a Maine tuition program that does not allow public funds to go to religious schools,…

“The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing for the majority and the court’s three liberals in dissent.”

“’There is nothing neutral about Maine’s program,” he wrote. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.’

“Justice Sonia Sotomayor, one of the dissenters, answered, ‘This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.’”  “Supreme court-Maine-religious schools”

Where public funds are provided to support the education of our children, they should not discriminate on the basis of religious beliefs. That is what the separation of church and state means to me. I don’t understand Justice Sotomayor’s position. Public funding of all schools except religious one is religious discrimination pure and simple. It is the State interfering in religious choices.

In my opinion, the relevant government authority choosing to support the education of children should provide the parents of each child with a tuition voucher that can be used at any certified school (including home schooling). As an aside, while I defend the right of parents to school their own children at home, I think it is a mistake to do so as the school experience is more than what is in the text books. Quite clearly, banning the use of such vouchers at Catholic, Hebrew or other religious schools would be discriminatory and should not be allowed (as the Court ruled).

I also support a Universal Basic Income. “Our social safety net” Disallowing its use to send your kids to a religious school would violate fundamental principles of equal treatment and religious freedom that we hopefully all believe in.

Roe v. Wade Part II

My previous blog on Roe v. Wade argued that the laws on abortion should reflect the democratic will of the public. “Roe vs Wade” I have personally always been pro-choice but also believed that that case needed to be made democratically. Before joining the Supreme Court judge Ginsburg stated that: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” “Scholarship Law, UNC.edu” She added, “Roe v. Wade, in contrast, invited no dialogue with legislators. “Ruth Bader Ginsburg-Roe vs Wade”

Conservative columnist George F. Will wrote that rather than end the debate about abortion with Roe: “Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy . . . .   Before the court suddenly discovered in the Constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.” “George Will on Roe”

I also argued, quoting Justice Alito, that revoking Roe would not endanger the Obergefell v. Hodges decision, which legalized same-sex marriages, the Loving v. Virginia decision, which legalized interracial marriages, the Griswold v. Connecticut decision, which ban restrictions on contraception, and several other cases. These decisions were also based (in part) on the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution.  I argued that my right to marry a man was protected by the Equal Protection Clause of the Fourteenth Amendment. A lawyer friend, Jack Nadler, has raised some interesting challenges to this assertion and clarified for us non-lawyers the fuller meaning of applying the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.

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Jack Nadler is a Retired Partner in the Washington DC office of Squire Patton Boggs.  While at Squire, Jack served as outside counsel for SAGE (formerly Services and Advocacy for Gay Elders), which represents the interest of LGBT older adults.  Jack led the team that drafted the extensive friend of the court (amicus) brief that SAGE filed in Obergefell v. Hodges, the case in which the Supreme Court struck down State restrictions on same-sex marriage.  Jack previously taught law at American University’s Washington College of Law in Washington, DC and the China University of Political Science and Law in Beijing, and served as a Law Clerk to the Hon. Joel M. Flaum on the United State Court of Appeals for the Seventh Circuit in Chicago.  He is a graduate of Columbia Law School, the Columbia University School of International and Public Affairs, and Vassar College. 

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A Response:  Why Overruling Roe v. Wade Threatens Marriage Equality

Jack Nadler  

I disagree with my friend Warren’s contention that a decision to overrule Roe v. Wade, based on the rationale in Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, would not threaten the right of same-sex couples to marry.  In particular, I do not agree that, even if the Court adopts the reasoning in the draft opinion, the courts would be likely to continue to uphold marriage equality under the Fourteenth Amendment’s Equal Protection Clause.

The rights of same-sex couples to marry, recognized by the Supreme Court in Obergefell, just like the right to abortion recognized in Roe, is grounded on the Due Process Clause, which provides that no State may “deprive any person of life, liberty, or property, without due process of law.”  Specifically, the right of same-sex couples to marry is based on the doctrine of substantive Due Process, which provides that the Due Process Clause’s protection of “liberty” precludes a State from infringing on certain “fundamental rights” that individuals possess, regardless of what procedures the State uses.

Justice Alito’s draft opinion in Dobbs is a direct repudiation of the doctrine of substantive Due Process.  The express rationale for overruling Roe is that the Constitution only protects rights that are expressly granted in its text or that are “deeply rooted in our nation’s history and tradition.” Because the Constitution does not expressly grant women the right to have an abortion, and because, prior to Roe, the United States did not have a long “history and tradition” of permitting abortion, the draft opinion concludes that the Constitution does not provide this right.

The same rationale is fully applicable to Obergefell, which held that the Due Process Clause precludes the States from depriving same-sex couples of their fundamental right to marry.  Indeed, in his dissenting opinion in Obergefell, Justice Alito applied the exact same standard and concluded that, because “[t]he Constitution says nothing about a right to same-sex marriage,” and because “it is beyond dispute that the right to same-sex marriage is not among those rights . . . deeply rooted in this Nation’s history and traditions,” the Court erred when it found that the Due Process Clause grants same-sex couples the right to marry. 

Warren’s reliance of Justice Alito’s assertion that the Court’s decision to over-rule Roe does not affect “any other right that this Court has held fall within the Fourteenth Amendment’s protection of ‘liberty’” – including the right of same-sex couples to marry – is misplaced.  The binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The reality is that Obergefell rests on the same substantive Due Process foundation as Roe.  The Court cannot demolish that foundation in the abortion context while simultaneously preserving it in all other contexts.  The Constitution either does – or does not – allow the Court to identify judicially enforceable rights beyond those expressly enumerated in the text or “deeply rooted in our nation’s history and tradition.”

I also disagree with Warren’s contention that overruling Roe and thereby “return[ing] the determination of the rules of abortion to the elected representatives in each state” is desirable because “policy in a democracy should be determined by voters and their representatives.”  This is precisely the argument that the marriage equality opponents made in Obergefell.  Indeed, in his dissenting opinion, Justice Alito contended that “[a]ny change on a question so fundamental [as the definition of marriage] should be made by the people through their elected officials.”  The Court rejected this argument, observing  that, “[w]hile the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”  Had the Court left the question of whether same-sex couples should be allowed to marry to the States, then even now the right of same-sex couples to marry likely would still be denied in many States.

The impact on marriage equality of the Court’s decision to overrule Roe must be seen in the larger judicial context.  At the same time the Court is contracting the scope of the Fourteenth Amendment’s restriction on governmental infringement on personal liberty, it is also expanding the scope of the First Amendment protections for the free exercise of religion.  A clash is inevitable.  Indeed, in a 2020 concurring opinion, Justice Alito joined Justice Thomas in declaring that Obergefell has had “ruinous consequences for religious liberty.” 

In order to address the perceived threat to freedom of religion, several of the Justices appear to believe that in any conflict between a religious person’s right to free exercise of religion and a same-sex couple’s right to marry, the “express” free exercise right must trump any “judge made” liberty right.  This could have significant adverse consequences for same-sex couples.  For example, a business owner could refuse to provide the same spousal health insurance coverage to a gay employee’s spouse that the company provides to its straight employees’ spouses on the ground that covering the gay employee’s spouse would violate the owner’s religious conviction that marriage is between one man and one woman.  If the Court adopts this “hierarchy of rights” approach, then the State in which the company is located would be constitutionally powerless to apply its non-discrimination law to make the employer provide coverage.

I agree with Warren that same-sex marriage supporters should not be “hysterical” about the Court’s decision to overrule Roe.  But I do think we should be very concerned about the potential of this decision, over time, to erode the LGBT community’s hard-won victories that have secured judicial protection of our fundamental rights, including the right to marry.

Discussion

The Equal Protection Clause

Warren:  As a legal layman, I always thought that my right to marriage equality rested on the Equal Protection Clause of the Fourteenth Amendment.   Didn’t Obergefell hold that the restrictions on same-sex marriage violated both the Due Process and the Equal Protection Clause?

Jack:  Ever since the Court struck down State prohibitions of private consensual same-sex sexual relations in Lawrence v. Texas, it has relied on substantive Due Process, rather than the Equal Protection Clause.  To be sure, there is a brief section in the Obergefell opinion that essentially says that there is a “synergy” between the Equal Protection and Due Process Clauses because the denial of marriage equality is a denial of the “fundamental right to marry” protected by the Due Process Clause and a denial of a fundamental right to a specific group also violates the Equal Protection Clause.  As the Court somewhat delphicly explained:

“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other.  In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”

However, as I noted earlier, the binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The dissenters in Obergefell correctly observed that the Court had utterly failed to conduct an Equal Protection analysis, and, in any case, this finding was not necessary to resolve the case.  Indeed, Chief Justice Roberts stated that the Court’s opinion had “fail[ed] to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.”  Justice Thomas similarly observed that the Court had “clearly use[d] equal protection only to shore up its substantive due process analysis.” 

The bottom line is that, if you take the substantive Due Process analysis out of Obergefell, the Equal Protection Clause analysis does not provide an adequate independent basis on which to strike down State restrictions on marriage equality.  Consequently, if the Court eliminates substantive Due Process, the passing reference to Equal Protection in Obergefell would not be enough to support the result in that case.

Warren: Even if the Court in Obergefell did not adequately rely on the Equal Protection Clause as the basis for striking down restrictions on same-sex marriage, could the Court rely on that Clause in any subsequent challenge to marriage equality?   Do you think it is worth doing so?

Jack: Unfortunately, if the Court demolishes substantive Due Process, the Equal Protection Clause is unlikely to be able to fill the gap.  Under modern constitutional jurisprudence, when presented with the claim that a statute violates the Equal Protection Clause by impermissibly treating two groups differently, the Court conducts its analysis in different ways depending on which group is being treated differently.

Historically, the Court was very reluctant to find that a distinction between groups made by the legislature violated the Equal Protection Clause.  So, the Court applied what came to be known as “rational basis” scrutiny.  Under this highly deferential standard, regardless of the legislature’s actual intent, the Court upheld a statute if there was any possible basis on which the legislature rationally could have made the distinction.  Not surprisingly, applying this standard, the Court virtually never found a legislative distinction between groups violated the Equal Protection Clause.

The civil rights movement changed things.  Instead of analyzing race-based statutory distinctions under the rational basis standard, the Court ruled that such distinctions were subject to “strict scrutiny.”  This meant that a race-based statutory distinction would be found to violate the Equal Protection Clause unless the legislature actually intended for the distinction to serve a “compelling purpose” and the means it chose were “narrowly tailored” to achieve the stated purpose.  Very few race-based distinctions can be found constitutional under this standard.

Things got still more complicated with the rise of the women’s movement, when the Court had to decide whether to use rational basis or strict scrutiny to assess whether gender-based statutory distinctions violated the Equal Protection Clause.  The Court decided that challenges to such distinctions should receive “intermediate” scrutiny.  Basically, such distinctions need to serve an “important” purpose and the means used must be “substantially related” to achieving the stated purpose. 

The Court has never determined what level of scrutiny to apply in cases involving statutes that make distinctions based on sexual orientation.  In his dissenting opinion in Obergefell, however, Justice Alito briefly considered the Equal Protection argument, effectively applying the rational basis standard.  He concluded that the States had provided a sufficient justification for distinguishing between same-sex and opposite-sex couples because marriage is “inextricably linked to the one thing that only an opposite-sex couple can do:  procreate. . . . States formalize and promote marriage    . . . to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”  Therefore, in his view, because same-sex couples cannot procreate, excluding them from marriage does not violate the Equal Protection Clause.

In order to use the Equal Protection Clause as a basis on which to uphold marriage equality, it would be necessary to convince the Court that distinctions based on sexual orientation should receive some degree of heightened scrutiny.  In light of the history of legal discrimination against gays and lesbians, heightened scrutiny clearly is appropriate.  But given that there are some objective differences between homosexuals and heterosexuals – especially the fact that our sexual unions cannot lead to procreation – some statutory distinctions conceivably could be legitimate, so strict scrutiny may not be warranted.   Moreover, the level of de jure discrimination suffered by gays and lesbians, while significant, is probably closer to the level suffered by women than by African Americans, making it hard to justify strict scrutiny.  Therefore, the most appropriate solution would be for the Court to apply intermediate scrutiny to sexual-orientation-based distinctions.  That said, as a practical matter, given its current make-up, there is no chance that the Supreme Court would add statutory distinctions based on sexual orientation to the short list of categories that receive heightened scrutiny.  A court that is prepared to shrink the reach of the Due Process Clause, is highly unlikely to expand the scope of the Equal Protection Clause.

Interstate recognition of same-sex marriage

Warren:  If marriage equality is overturned and returns to a state-by-state determination, the question arises what would happen if a same-sex couple legally married in Maryland and then moved to a state in which such marriages were not allowed? 

Jack:  We most likely would return to the situation that existed before Obergefell, when a lawful Maryland same-sex marriage would not have been recognized in the vast majority of States where same-sex marriage was not legal. This would lead to some horrific situations.  Here, based on actual experiences before Obergefell, are a couple of examples.

First, the ability of married  same-sex couples to travel would be limited.  Imagine that our lawfully married couple decided to go on vacation in Florida, which did not allow same-sex marriage.  During the vacation, one of the spouses is hospitalized with a life-threatening injury or illness and is unable to make medical decisions for himself.   If the hospitalized spouse had been married to a woman, the wife – as next of kin – would have the legal right to visit her spouse in the hospital and, if necessary, make life or death medical decisions for him.  However, because the hospitalized spouse is married to another man, Florida would not consider his husband to be next of kin.  As a result, he would not have the right to visit his critically ill spouse in the hospital.  Even worse, the right to make life-or-death medical decision for the incapacitated spouse would go to the person that Florida recognized as next-of-kin – who may be a parent, sibling, nephew, or child from a prior heterosexual marriage, even if that person disapproves of the spouses’ relationship.  That person could even requested the hospital to bar the spouse from visiting.

Second, getting a divorce would be a nightmare.  Let’s say that our married friends decide to retire to Florida.  However, after a few years of fun in the sun, the couple agrees to get divorced.  But, because Florida doesn’t recognize their marriage, Florida won’t grant them a divorce; the State cannot dissolve a union that it does not recognize exists.  Unfortunately, the couple can’t make a quick trip back to Maryland to get a divorce decree because they are no longer residents.  So, unless they are prepared to take up residence in a State that recognizes same-sex marriage, they’re stuck with each other.

Warren:  How could this be possible?  Wouldn’t the Constitution’s Full Faith and Credit Clause require Florida to recognize a marriage lawfully performed out of state?

Jack:  The answer, regrettably, is no.   The Constitution’s Full Faith and Credit Clause, Art IV Sec 1, provides that every State must give “full faith and credit . . . to the public acts, records, and judicial proceedings of every other State.” The Clause also gives Congress power to “prescribe    . . . the effects” of such State acts.  However, notwithstanding this Clause, the courts have long held that a State need not recognize an out-of-state marriage, lawful where entered into, that contravenes the State’s public policy – such as a polygamous marriage or a marriage involving a child or first cousins. 

Prior to Obergefell, a few States that did not yet have marriage equality recognized lawful out-of-state same-sex marriages.  However,  the vast majority did not.  Indeed, a large number of States adopted constitutional amendments expressly barring recognition of such marriages.  Moreover, when it enacted the infamous Defense of Marriage Act (DOMA), Congress, purporting to use its power under the second sentence in the Full Faith and Credit Clause, expressly provided that States did not need to recognize same-sex marriages lawfully entered into in other States. 

DOMA’s non-recognition provision was not challenged in the Supreme Court’s Windsor case and survived the Court’s decision to strike down the portion of the law that provided that the Federal Government would not recognize same-sex marriages even if they were lawfully entered into in a State that had marriage equality. One of the two questions that the Supreme Court subsequently agreed to consider in Obergefell was whether the Full Faith and Credit Clause required States that did not permit same-sex marriage to recognize lawful out-of-state same-sex marriages.  Because the Obergefell Court ruled that State had to allow same-sex couples to marry, it did not resolve the out-of-state-recognition question.  Thus, if Obergefell is reversed, a State could again decline to recognize same-sex marriages lawfully entered into in another State.

Conclusion

Warren:  It seems to me that if Obergefell is challenged on the basis that no explicit right to same-sex marriage can be found in the Constitution to which the Due Process Clause could be applied, a stronger case for applying the Equal Protection Clause could be made. If that failed, we would have to live with state-by-state determination of marriage equality and Congress could stipulate that the Full Faith and Credit provisions of the Constitution would obligate states that do not permit same-sex marriage to recognize such marriages legally obtained in other states. Public understanding of and sentiment toward LGBT people has evolved and progressed considerably from the earlier times in which restrictive and discriminatory legislation such as DOMA were first adopted. Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Jack:  Warren believes that times have changed and that, even if Obergefell were overruled, many States would choose to retain marriage equality.  He also believes that, pursuant to its express authority under the Full Faith and Credit Clause, Congress would adopt legislation requiring that every State recognize same-sex marriages lawfully performed in another State.  I am far less sanguine. 

Despite all the progress made, 27 States have not yet enacted statutes that expressly bar discrimination in employment, housing, and access to public accommodations on the basis of sexual orientation.  I do not want to count on these States to take affirmative action to preserve the right of same-sex couples to marry.  I am particularly concerned about the many States that, prior to Obergefell, had amended their constitutions to limit marriage to “one man and one woman.”  If Obergefell is overruled, these State constitutional prohibitions on same-sex marriage presumably would immediately come back into in effect.  In that case, same-sex marriage would be barred in those States until such time, if ever, as the State completed the often-arduous process of amending its constitution to remove the restriction. 

As for Congress, the prospect that 60 Senators would support legislation to restrict the historic right of a State to decline to recognize out-of-state marriages that contravene its public policy seems remote.

Warren:  As of the middle of last year 83% of Americans supported marriage equality. Support among Republicans has risen from 40% in 2016 to 55% in June 2021. “Support for same-sex marriage in the United States by political party” Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Even with regard to abortion, the most recent Pew survey finds that 61% of Americans support the legalization of abortion in all or most cases. “Majority favor legal abortion”  While support is stronger among Democrats, 38% of Republicans support it and almost half of Republicans under thirty do. “Senate Majority Leader Charles Schumer (D-N.Y.) late last week teed up a vote on the Women’s Health Protection Act, which would essentially codify Roe into law. The vote is expected to take place midweek. There is little drama surrounding the vote, as it will fail….” “The Hill”  Why it seems destined to fail is a mystery to me, but then life is full of mysteries.

The good and evil in us all

Listening to political dialog in the U.S. has become very painful and disheartening because there is no dialog. The Republicans and Democrats simply hurdle nasty insults at each other. They are enemies rather than fellow citizens with different views. Serious policy issues and challenges do not receive the serious debate they need. The atmosphere is ugly.

Russia’s unjustified and increasingly barbaric attacks on Ukraine is another example of the worst in mankind.  Following four weeks of Russian attacks on Mariupol, Bucha, and other cities the destruction of lives and property is clearly visible. While it may take a while to sort out the truth of who did what, “President Biden on Monday joined the chorus of world leaders who have said reports of mass killings in the Kyiv suburb of Bucha constituted a ‘war crime,’ vowing to hold Russian President Vladimir Putin ‘accountable’ for the apparent atrocities in Ukraine.” “Bucha Biden sanctions Russia Ukraine”  However, it is natural, and appropriate, that we honor the bravery of Ukrainians defending their homeland and despise the savagery of the Russians invading it.

These understandable reactions do not excuse our damaging loss of our ability to differentiate among people, judging each other individually. Removing Russian performers from western stages may seem a childish reaction–OK it is a childish reaction–but it reveals a dangerous predisposition of caveman behavior. What are we to make of the removal of compositions of Pyotr Ilyich Tchaikovsky from current orchestral programs? He has been dead for more than a hundred years. Or as tweeted by Edward Luttwak: “The U of Milano cancels Dostoevsky course; Poland cancels Mussorgsky, Shostakovich & Stravinsky…. Actual thought is needed.”

Not all Russians living in Russia disapprove of their country’s war in Ukraine (hearing only official Russian propaganda) but many do according to those now leaving Russia in fear or disgust. We are told that many of the young Russian soldiers sent into Ukraine didn’t know why they were there and are not happy fighting their Ukrainian cousins.

Seeing such behavior has been very disheartening.

But man left the caves with admirable instincts as well. Helping their fellow man in need contributed to their own survival as well. The incredible welcome of 4 million Ukrainians in Europe in one month is breathtakingly heartwarming. Though I am embarrassed that the admission of Afghan and other war refugees has not been as easy or welcoming. My friend Tom Palmer continues to help fleeing Ukrainians relocate to Poland as do many others. A recent J Street webinar interview of Naomi Steinberg from the Hebrew Immigrant Aid Society about their work assisting Ukrainian immigrants was equally heartwarming. She noted that in earlier days HIAS helped Jews flying from persecution. Today, she said: “We are helping refugees, not because theyare Jewish but because we are Jewish.”

The fear and loathing of “others” and the desire to help those in need are both impulses that helped cavemen survive. But we no longer live in caves and our survival and flourishing requires that we tame the first instinct and encourage the second one.

What to do with Social Media?

Social media is changing how we get news and debate public issues. How should its contents be regulated and by whom? The answer should reflect the fundamental importance of free and open speech for forming broadly supported public policies and social attitudes.

The quality of public discussion in the United States today has deteriorated. There are even some who wish to end debate on some issues altogether (the cancel culture). Take two recent examples:

In reaction to Georgia’s new Voting Rights Act President Biden said: “Parts of our country are backsliding into the days of Jim Crow, passing laws that harken back to the era of poll taxes — when Black people were made to guess how many beans, how many jelly beans, in a jar or count the number of bubbles in a bar of soap before they could cast their ballot.” “Biden US backsliding-Jim Crow”

Representative Maxine Waters traveled to Brooklyn Center, Minnesota, to join crowds protesting the police shooting of Duante Wright. On that occasion, “A reporter then asked, if Chauvin isn’t convicted on all charges, “What should protesters do?”

“Well, we gotta stay on the street,” Waters said. “And we’ve got to get more active. We’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.”

For her complete comments see: “In her own words-Maxine Waters”

In response to Water’s words Representative Marjorie Taylor Greene tweeted:

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@RepMaxineWaters you don’t live in Minnesota.

You crossed state lines and incited riots, violence against police, shootings at the MN NG, and threatened a jury as a sitting US Congresswoman.@SpeakerPelosi surely you will expel this criminal from Congress and uphold the law! pic.twitter.com/twH52VwFTP

— Marjorie Taylor Greene 🇺🇸 (@mtgreenee) April 19, 2021

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“Marjorie Taylor Greene says Maxine Waters incited riots calls for her expulsion from congress”

‘Maxine Waters-Kevin McCarthy Minnesota police”

President Biden’s and Representative Greene’s comments both earn four Pinocchios. Senator Ted Cruz’s comments about Waters’ statement were just as bad. But then we are used to politicians lying to us, especially in the heat of campaigns. However, they do not contribute to the constructive dialog needed over these and other pressing public issues.  

With regard to Georgia’s new Voting Law, assessments are mixed. For example: “Rather than allowing voters to request ballots six months from Election Day, the new law says voters can start requesting ballots 78 days out; counties can begin sending ballots to voters just 29 days before Election Day, rather than the previous 49 days.” “Georgia voting law explained”

This hardly strikes me as voter suppression. I grew up in Bakersfield California and our voting precinct voted in our garage. As a kid I was fascinated by it all (though not thrilled with having to clean the garage for the occasion). There was no such thing as early voting except for absentee ballets by military service men and women. No drop boxes or any of that stuff. You came to our garage on election day or you didn’t vote. But there is surely a place for serious pros and cons of each provision of the law. As the press has been overwhelmingly (almost hysterically) negative (despite Georgia’s Governor and Secretary of State’s refusal to yield to Trump’s pressure to overturn his election defeat in Georgia) here is a more measured defense of the new law: “Exclusive 21 black leaders defend Georgia voting law as proper honest reform”

The real question is why were changes in Georgia’s voting law needed in the first place? What weaknesses were being addressed? Even with this new law, Georgia’s law is more permissive than those of Biden’s Delaware. In a negative, but more balanced assessment, Derek Thompson stated that:  “Georgia’s voting rights have long been more accommodating than those of deep-blue states including not only Delaware, but also Connecticut, Massachusetts, New Hampshire, and New York.” “Georgia voting rights fiasco”

Maxine Waters didn’t, and often doesn’t, use the best judgement in where, when and what she said, but she didn’t say anything that she should not be allowed to say whether you agree with her or not.  Referring to Reps. Waters and Rashida Tlaib, D-Mich, Newt Gingrich wrote that:

“House Democrats have produced two radical demagogues whose policies would endanger the lives of innocent Americans, lead to the breakdown of society, and undermine the U.S. Constitution.”  “Repudiate Tlaib and Waters promote mob rule Newt Gingrich” This is precisely the sort of name calling that impedes the serious dialogue over concrete issues and proposals that we so badly need. Demonizing opponents–turning opponents into enemies–is a tactic of the weak (think Vladimir Putin).

Rep Waters’ charge that protesters should get more confrontational did not strike me as an incitement to violence anymore (and rather less) than former President Trump’s call for his assembled supporters on January 6 to march to the Capital and “fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” The brief submitted by Trump’s lawyers for his impeachment trail stated the “his call for the crowd to ‘fight like hell,’ was not meant to be taken literally.” OK, then perhaps he should keep it to himself. This reminds me of my favorite “apology” for lying about voter fraud that kept Trump from remaining in the White House. In response to a liable suit by the voting software company Dominion Voting Systems,  Sidney Powell stated in court that “’no reasonable person would conclude’ that her accusations of Dominion being part of an election-rigging scheme with ties to Venezuela ‘were truly statements of fact.’” “Sidney Powell-Dominion-No reasonable person”  Sadly I know some very fine people who did (or do) believe her nonsense.

But what if Biden’s, Trump’s, Waters’ and Greene’s comments were suppressed–erased–rather than challenged? These were opinions, however off the mark, rather than statements of fact. What if someone (named Trump) claims that Barack Obama was not born in the U.S. and thus not eligible to run for President (despite irrefutable evidence to the contrary)? I will spare you the very long list of such lies. And, to finally get to my real topic, what should social media do about it?  

Unlike newspapers and magazines, which are responsible for the accuracy of their content, Facebook and Twitter and Tiktok (I am too old to be current with all of the other newer platforms) “merely” provide the vehicle by which its users (you and me) distribute our content. The government does have laws that limit speech.  “Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats….and defamation that causes harm to reputation….”  “United States free speech exceptions”. What is not legally allowed generally, should not be allowed on social media. But in my opinion, those are the only restrictions that should be allowed in the law.  The last thing we want is Nancy Pelosi or Ten Cruz deciding what is allowed and not allowed on Twitter.

In short, beyond speech that is already restricted by law, the government should leave social media free to set their own policies for what they permit on their platforms.  But what should those policies be? In my opinion, all opinions should be allowed, even those, and especially those, that the platform operators consider wrong or repugnant. Bad policy prescriptions should best be countered by counter arguments not by censorship. It is not possible to over emphasize the benefit to America of free and open debate. Bad ideas are best countered and refuted by good ideas.  You are not likely to find a better statement of these views and a better defense of free speech than in Jonathan Rauch’s Kindly Inquisitors: The New Attacks on Free Thought.

But what about clearly fake news? Unfortunately, the distinction between fact and opinion is not always 100 percent clear. Tweeter should not have removed Donald Trump’s pages, though full of lies. Facebook should not have removed QAnon’s totally ridiculous conspiracy claims to take another extreme example. Many far less controversial posts have been removed as well for very unclear reasons. Facebook and other social media are working diligently to strike the right balance but are not there yet in my opinion. When Facebook or other social media platforms have good reason to doubt facts posted on their platforms, rather than remove (censure) them it would be better for Facebook to attach its warning and perhaps a link to more reliable information.

If Facebook (or any other platform) chooses to forbid hate speech, it would be better to rely on user complaints than its AI algorithm to determine what is hate speech. In an amusing, but not so amusing, example of the pitfalls of reliance on programmatic detection of disallowed speech, Facebook removed a post of a section of the Declaration of Independence because of its “nasty” reference to American Indians.  “Facebook censored a post for hate speech-it was the Declaration of Independence”

It is often argued that given the realities of network externalities (everyone wants to be where everyone else is), Facebook and Twitter are virtual monopolies and that this justifies more intrusive government regulation.  But the competition has expanded to include at the top of the list: YouTube, Instagram, Snapchat, Tumblr, Twitter, and Pinterest. Even Trump plans to launch his own platform. Facebook and the other popular platforms must ultimately please their users or they will be replaced even if network externalities are hard to overcome. It has happened before and can happen again. Government intervention to regulate platform content beyond the restrictions already in the law would be contrary to our traditional freedom of speech and potentially dangerous.

There are measures that the government might take to make competition easier. When phone companies were required to give ownership of phone numbers to the subscriber, making them easily portable from one phone company to another, competition received an important boost. Something similar might be done with social media data of users (e.g., username, friends, pictures and posts).

A much more challenging area concerns social media algorithms for directing users to others with similar interests (or beliefs) in order to better target the advertising that pays for it all. If users only see or hear the views of the likeminded, unhealthy ego chambers can be created and promulgated. Agreeing on constructive approaches to dealing with this danger will require more public discussion.

Summary: Demonizing political opponents is bad for democracy. Opponents are not enemies. There needs to be enough common ground for most of us to stand on if we are to remain a viable country. Free speech has been a very important feature of America and its flourishing. It is best to protect free speech and counter misinformation and bad ideas with rebuttal and better ideas. No opinion should be censured. Social media should flag questionable information rather than remove.

A liberal dad complained about the one-sided liberal (in the American rather than classical sense) education his children had received in college because, he said, “they are completely unable to defend what they believe.”

Hate Crimes

“The shooting deaths of eight people at Asian-run spas in Georgia this week triggered a vigorous national debate Thursday over whether the mass killing amounted to a hate crime.” “Georgia hate crime law-Atlanta shooting”  These deaths (and recent attacks on Asians more generally) raise several issues that I would like to explore. 1. What is the point of hate crime laws?  The poor ladies killed in this attack could care less what motivated Robert Aaron Long, the 21 year old shooter. 2. Whose fault is it? Let’s start with the shooter (and other attackers), please. 3. What should we do about it (beyond locking the shooter, and other attackers, up)?

What is the point of hate crime laws?

“Georgia State Rep. Chuck Efstration, a Republican who helped shepherd [Georgia’s Hate Crime] bill into law, said it was intended to allow for especially stiff penalties for crimes in which “the perpetrator’s prejudices and biases are attacks not only on the victims but on all of society.  Thank goodness law enforcement will have the ability to charge this as a hate crime if the facts support that,”   [op cit]

Georgia State University law professor Jessica Gabel Cino noted that: “The majority of the victims are women, and they are Asian. Those are two protected statuses.” And what if they hadn’t been?

Traditional laws do differentiate between first, second, and third degree murders, but if you plan to and succeed in killing someone, it didn’t traditionally matter whether you loved or hated the victim. I can understand why such information might be useful in exploring approaches to mitigating the risk of such future murders, but I don’t see its relevant to the guilt and punishment of the murderer. I do not support capital punishment, but Mr. Long should surely be put away for the rest of his pathetic life whatever motivated his killing spree.

According to Mr. Long, “he was on a mission… to stem his addiction to sex. The spas were ‘a temptation for him that he wanted to eliminate.’”  “What happened-Atlanta shooting”

In determining the length of a sentence, courts do pay some attention to the motive for a crime as well as the crime itself but a special category of “hate crimes” has always seemed troubling and unnecessary to me.

Whose fault is it?

In a free society of responsible citizens, we must never forget that in the first instance the fault for a crime rests with the criminal. But it is fair to ask what motivated the criminal. While Mr. Long’s horrible crimes do not appear to be motived by the hatred of Asian’s, there has definitely been an increase in verbal and physical attacks on Asians over the past year. Much of the press has been quite eager to point to the hate filled and divisive statements against China by former President Trump. While he is certainly guilty of poisoning public discourse on China, immigration, Muslims and related topics, it is an odd place to look first.

Animosity toward Asians, and Chinese in particular, arises in the first instance from the behavior of China (shorthand for the government of China — synonymous with the Communist Party of China). In fact, unfavorable attitudes toward China have skyrocketed around the globe over the last three to four years. “For our enemies we have shotguns explaining Chinas new assertiveness” Public attitudes toward China are lower in Australia and the U.K., for example, than in the U.S. and fell sharply well before the Covid-19 pandemic.  “China global reputation coronavirus”  Attitudes toward China began to deteriorate in the face of Chinese assertiveness in the South China Sea, violations of the one country, two systems agreement for Hong Kong, theft of intellectual property from the West, and treatment of the Uighurs in the Xinjiang region, to name a few. China’s suppression of information on the virus producing covid-19 pales in comparison to its bad behavior in other areas.

What should we do about it?

The world that objects to China’s behavior needs to stand together in pointing it out. Former President Trump’s stand-alone, bilateral approach was a failure. But it is very important when the U.S. and other governments criticize China to clearly differentiate the government of China from the Chinese people, whether citizens of China or the U.S. or elsewhere. It is the Chinese government–the Communist Party of China–that is misbehaving.

The distinction between a government and its people is important more generally. For example, those who criticize the misbehavior of the Israeli government toward the Palestinians in the West Bank and Gaza, are sometimes mistakenly accused of anti-Semitism–i.e., of being against the Jewish people. It is likely that many are reluctant to criticize the Israeli government for fear of being accused of anti-Semitism. As the Biden administration joins with other countries to criticize the misbehavior of the Chinese government, it must, and it is, clearly distinguishing the Chinese government from the Chinese people. And we, each one of us, must speak out at the sight of rude or inappropriate behavior toward Asians, or anyone else. ALL LIVES MATTER.

Shifting Gears: The Way Forward

The Trump administration accomplished many good things and many bad things (especially in the trade and foreign policy areas). Trump himself belongs in jail in my opinion. Hopefully, with the new Biden administration we can turn our attention to policy issues and stop calling our policy opponents nasty names. We must state the positive case for why our policy views are more appropriate–why they are better for our country. These are the sorts of public debates that we have been missing for a while and to which we should return.

One of our most fundamental principles is America’s commitment to equal treatment under the law for everyone regardless of race, religion, sexual orientation, or preferred hair style. Equal treatment is extended to everyone whether they or their ancestors came from Asia, Europe, Africa or Ireland (yes, even Ireland). We have never fully measured up to this principle, but it remains, and should remain, the objective to which we continually strive. It means that our accomplishments and “place” in society largely reflect our own talents and efforts. We are a nation of individual liberty. We are free (to a large extent) to make our own decisions. Our policy disputes often concern where to draw the line between what we decide for ourselves and what the government decides for us. My blog last week on our response to Covid-19 provides an example: https://wcoats.blog/2021/03/06/the-unnecessary-fight-over-covid-19/

Equity (equal outcomes) was the fundamental principle of the Soviet Union, though its outcomes fell far short of the principle. Between these extremes of equity (communism/socialism) and equality (equal treatment under the law) is our actual world of governments with more intrusive or less intrusive rules and dictates on our behalf, with broader or narrower social safety nets, etc.  America continues to debate where and how to set these boundary’s, but one of our great strengths, and a source of our broadly shared affluence, is undertaking the debate from the side of (and with the presumption of) self-reliance (with family and friends) and equality under the law.

The distinction between equity and equality is sharply contrasted in the following WSJ oped.

THE  WALL  STREET  JOURNAL.

Friday,  March  5,  2021.

Section A, Page 17, Column 1

‘Equity’ Is a Mandate to Discriminate

The new buzzword tries to hide the aim of throwing out the American principle of equality under the law.

By Charles Lipson


On his first day as president, Joe Biden issued an “Executive Order on Advancing Racial Equity and Support for Underserved Communities.” Mr. Biden’s cabinet nominees must now explain whether this commitment to “equity” means they intend to abolish “equal treatment under law.” Their answers are a confused mess.

Arkansas Sen. Tom Cotton raised the question explicitly in confirmation hearings. Attorney General-designate Merrick Garland responded: “I think discrimination is morally wrong. Absolutely.” Marcia Fudge, slated to run Housing and Urban Development, gave a much different answer. “Just to be clear,” Mr. Cotton asked, “it sounds like racial equity means treating people differently based on their race. Is that correct?”

Ms. Fudge’s responded: “Not based on race, but it could be based on economics, it could be based on the history of discrimination that has existed for a long time.” Ms. Fudge’s candid response tracks that of Kamala Harris’s tweet and video, posted before the election and viewed 6.4 million times: “There’s a big difference between equality and equity.”

Ms. Harris and Ms. Fudge are right. There is a big difference. It’s the difference between equal treatment and equal outcomes. Equality means equal treatment, unbiased competition and impartially judged outcomes. Equity means equal outcomes, achieved if necessary by unequal treatment, biased competition and preferential judging.

Those who push for equity have hidden these crucial differences for a reason. They aren’t merely unpopular; they challenge America’s bedrock principle that people should be treated equally and judged as individuals, not as members of groups.

The demand for equal outcomes contradicts a millennium of Anglo-Saxon law and political evolution. It undermines the Enlightenment principle of equal treatment for individuals of different social rank and religion. America’s Founders drew on those roots when they declared independence, saying it was “self-evident” that “all men are created equal.”

That heritage, along with the lack of a hereditary aristocracy, is why claims for equal treatment are so deeply rooted in U.S. history. It is why radical claims for unequal treatment must be carefully buried in word salads praising equity and social justice.

Hidden, too, are the extensive measures that would be needed to achieve equal outcomes. Only a powerful central government could impose the intensive—and expensive—programs of social intervention, ideological re-education and economic redistribution. Only an intrusive bureaucracy could specify the rules for every business, public institution and civic organization. Those unhappy implications are why advocates of equity are so determined to hide what the term really means.

Americans have demanded that all levels of government stop giving special treatment to the rich and powerful. That is simply a demand for equality. Likewise, they recognize that equal treatment should begin early, such as with adequate funding for K-12 students.

Since the New Deal, most Americans have supported some form of social safety net for the poor and disadvantaged. But this safety net doesn’t demand that out-of-work coal miners receive the same income as those who are working. The debate has always been about how extensive the safety net should be and how long it should last for each recipient. There is broad agreement that no worker should be laid off because of his race, gender or religion. Again, that is a demand for equal treatment.

What we are seeing now is different. It is the claim that the unfair treatment of previous generations or perhaps a disadvantaged childhood entitles one to special consideration today as an adult or young adult. Most Americans, who are both generous and pragmatic, have been willing to extend some of these benefits, at the margins and for limited periods. They don’t want to turn these concessions into large, permanent entitlement programs, giving substantially different treatment to different groups, even if those groups have suffered historical wrongs.

One measure of how unpopular these unequal programs are is how often their proponents need to rename them. “Quotas” were restyled as “affirmative action.” The goal was still to give special benefits to some groups to achieve desired outcomes. Now “affirmative action” has also become toxic, rejected most recently by voters in deep-blue California. Hence, the new name, “equity.”

Instead of making their case openly and honestly, advocates of equity twist and turn to avoid revealing their radical goal of re-engineering society through coercion. If the results fall short, as they inevitably would, the remedy is obvious: more money, more rules and more indoctrination. Why not tell us who will receive these special benefits and for how long? At whose expense? Who will administer these programs? Who will judge whether the outcomes are fair enough? When will it all end?

Since the ultimate goal is achieving equal outcomes, these evasions raise the hardest question of all. Isn’t equity just a new brand name for the oldest program of achieving equal outcomes? Its name is socialism.

Mr. Lipson is a professor emeritus of political science at the University of Chicago, where he founded the Program on International Politics, Economics, and Security.

Are Venture Capitalists racists?

Shifting sovereignty from Kings to the people, was the beginning of human flourishing. In the United States, in its constitution the people returned only those powers to their government necessary to protect their wellbeing. The right to and protection of ones honestly acquired property is an essential aspect of this arrangement. This includes, of course, the right to invest our property anyway we choose.

Venture capitalists are those wealthy people who choose to take great risks in the prospect of large gains by investing in “startups” that have not yet established their profitability.  Put differently venture capitalists are prepared to finance an unproven idea/product/service that might gain public approval, i.e. might become profitable, though most of them fail.  As consumers we have benefited enormously from goods and services my parents never would have even imagined that a few wealthy investors took a chance on.

So the idea that the government might need to enact laws to insure that a venture capitalist’s investments do not reflect racial bias is shocking at several levels. “In the clubby world of venture capitalists, who spent $130 billion in the United States last year and helped anoint the world’s four most valuable companies and countless other successful start-ups, there is effectively no legal backstop that ensures people of color have an equal opportunity to share in its wealth creation.”   “Black-entrepreneurs-venture-capital”

First of all is the right of these investors to their property. They can give it all to their daughters if they want to.  Marxists and other egalitarians reject such a right but that would throw away the whole basis of the wealth our capitalist system has created that Marxists would like to redistribute.  But I want to focus on why capitalism minimizes the role of bias in our economic decisions.  This was explored long ago by Nobel Lauriat Gary Becker in his famous 1976 book on the Economics of Discrimination.

Becker’s basic point is that if your economic decision is influenced by racial or sexual or any other non-economic bias it will cost you money, i.e. you will make less than you otherwise would have.  If you hire a man when a woman was better qualified, he will contribute less to your company’s income than would have the woman, thus you pay a financial price for your bias. The same is true if you hire a white person when a black one was better qualified, etc.

The purpose of venture capitalist investments is to make a bundle by funding the next great idea. Most will fail but one or two turn into Facebook, or Amazon.  It may well be that a venture capitalist systematically under rates the potential of black entrepreneurs, i.e. that he suffers racial bias.  But in that case he will be less successful in his investments.  Capitalism will punish him for his prejudices and diminish his importance as a venture capitalist because it will diminish his wealth. None the less, an Irish venture capitalist may well bias her investments toward fellow Irishmen and a black venture capitalist may risk an extra break for a fellow black. But the profit motive of capitalism will discourage departures from objective evaluations of investment prospects.

The idea that a law should forbid or discourage racial or sexual bias when venture capitalists decide in what to invest is without merit.  Moreover, it is hard to imagine what such a law would look like and/or on what basis a government bureaucrat would overrule and direct the placement of a private investor’s chose of investments.

To peak briefly at the other–entrepreneurial–side of the equation, the unbiased opportunity provided by capitalism has attracted many foreigner entrepreneurs to our shores.  Steve Jobs (Apple, NeXT, Pixar), who was adopted at birth, was the son of Joanne Schieble who was Swiss-American and Abdulfattah “John” Jandali who was Syrian.  Steve Wozniak, Apple cofounder, was the son of Polish and Swiss-German parents.  Sergey Brin cofounder of Google/Alphabet escaped from the Soviet Union.  The famous architect, I.M. Pei, immigrated from China.  “How-12-immigrant-entrepreneurs-have-made-america-great”

George Floyd, RIP

How should we respond to the horrifying murder of George Floyd by Derek Chauvin, a bad cop with “18 complaints on his official record?” “A Minneapolis-police-chief-promised-change-george-floyd’s-death-shows-hurdles”  Finding a constructive answer is not easy.  While it is difficult to watch the horrible death of George Floyd at the hands of a bad cop as three fellow policemen looked on without becoming enraged, those setting fires, smashing windows, and looting are not looking for constructive answers (or if we are to be extremely generous are not being thoughtful about what measures would actually be constructive) and should be locked up.

For starters, in looking for answers we should acknowledge that the problem (racism–unequal treatment of black Americans as well as other ethnic minorities in the law, then by law enforcement and by many people) has existed in America since its founding. But we should also acknowledge that enormous progress has been made over time, especially in recent years. Slavery has been abolished. Racial minorities are no longer discriminated against in the law (as opposed to law enforcement).  Even policing has improved considerably, though being arrested for “driving while black or DWB” remains too prevalent. And then there remain too many Michael Brown, Jrs, an 18-year-old black man, who was killed by Darren Wilson, a 28-year-old white police officer in Ferguson, Missouri in 2014 and too many George Floyds. Any would be too many.

A great deal has been done since Michael Brown’s murder to improve police training. The details are impressive. Medaria Arrandondo, Minneapolis’s police Chief, is black and is committed to furthering the work of his predecessor, Janeé Harteau, to expunge racism from the force and to rebuild trust between the police and the communities they exist to keep safe. While considerable progress has been made, why does it remain so difficult to provide black Americans with the equal treatment under the law to which every American is constitutionally entitled?

Evolution has genetically predisposed us to trust family and distrust if not fear others. Civilization, in part, has required that we overcome or at least tame this primitive impulse with moral teachings and laws (“do unto others and you would have them do unto you”) that facilitate our ability to live together and build trading economies to our enormous benefit. We learn what is “right” from our families, schools, churches, and the varied people we hang out with. We learn from the words and behavior of community leaders that we respect (some have made more positive contributions than others!). Institutional structures are also very important. They should provide incentives for behavior to conform to our moral and legal principles. Police Chief Arrandondo, for example, has increased the transparency of the police force (complaint records, webcams, etc.) in efforts to hold officers more accountable for their behavior.

In the area of policing there are two interrelated institutional impediments to good policing that we should address. Policing can be difficult and can be dangerous. “In a series of decisions beginning in 1967, the Supreme Court gutted [the Civil Rights Act of 1871] by permitting police and other government agents to claim they acted in “good faith” when violating citizens’ rights…. The Supreme Court decided government officials deserved ‘qualified immunity.’”  “Cops-kill-because-we-gave-them-the-legal-framework-to-do-it”  This must end.

“‘Sen. Amy Klobuchar, a top contender for Vice President candidacy for Joe Biden, was the chief prosecutor for Hennepin County (including Minneapolis) from 1998 to 2006. Klobuchar, who was nicknamed “KloboCop” by detractors,  “declined to bring charges in more than two dozen cases in which people were killed in encounters with police” while she “aggressively prosecuted smaller offenses” by private citizens, the Washington Post noted. Her record was aptly summarized by a headline early this year from the Twin Cities Pioneer Press: “Klobuchar ramped up prosecutions, except in cases against police.” [see previous link] This must end.

“Since 2012 there have been more than 2,600 complaints filed against Minneapolis police officers by civilians, according to data provided by Dave Bicking, who was part of the city’s Office of Police Conduct Review. Of those, the data showed just 12 resulted in an officer being disciplined. Among those, eight received written warnings. The most severe penalty was a 40-hour suspension.” [see previous link and “My-fellow-brothers-sisters-blue-what-earth-are-you-doing/?”] This must end.

The other institutional impediment to good policing is the understandable but pernicious self interest of police unions in defending their members from charges of misconduct. “Lt. Robert Kroll, [has been] president of the Police Officers Federation of Minneapolis since 2015. Like his union counterparts across the country, Lt. Kroll has been a fierce advocate for greater autonomy for officers…  Lt. Kroll has criticized the Black Lives Matter movement as a terrorist organization.” “Minneapolis-police-chief-promised-change-george-floyds-death-shows-hurdles”

I am reminded of my mother’s complaint (she was a grammar school teacher) that the teachers’ union was the biggest impediment to improving the quality of education in California. Any monopoly (government, unions, monopoly firms) ultimately sacrifices the public interest for their own if allowed to. This must end.

Black Marks in our History

On October 16, I attended a meeting of the Committee for the Republic at which “Defender of Liberty Awards” where presented to Fred Korematsu, Gordon Hirabayahsi, Minoru Yasui, and Mitsuye Endo for their bravery and perseverance in defending freedom in America. These Americans of Japanese ancestry had undertaken to legally challenge their internment in concentration camps during World War II ordered by Franklin D Roosevelt four months after the Japanese attack on Pearl Harbor. They generally lost their legal challenges, which went all the way to the Supreme Court.  If you are not familiar with this shocking atrocity (or even if you are), I urge you to watch these short videos and weep at the depths to which racism has driven some of us in the past: https://www.youtube.com/watch?v=0z8EHjVoN-o  https://www.youtube.com/watch?v=4MXF2302fr8

These atrocities were not the first, nor unfortunately the last, abandonment of our principles in the name of security in times of heightened fear (think of the so called “Patriot Act” following 9/11 and President Trump’s failed efforts to ban travelers from six Muslim countries more recently). While these reactions are manifestations of racism and cowardice, it is to our credit that we (generally) ultimately acknowledge our periodic abandonments of our love of freedom and justice under the law for barbaric acts that we think will make us safer. https://wcoats.blog/2016/10/20/terrorism-security-vs-privacy/ 

The Defender of Liberty Awards to Fred Korematsu, Gordon Hirabayahsi, Minoru Yasui, and Mitsuye Endo were accepted on their behalf by their surviving children who shared with us their experiences. Several of them learned what their parents had done in school as they never mentioned or discussed the shame and hardship of their three years of internment in despicable facilities.  Growing up in California I had one Japanese classmate in grammar school. When I learned that FDR had put him and his family in a concentration camp for several years, I overcame my shock and shame to ask him about it, but he would not discuss it. It reminds me a bit of the typical reaction of rape victims.

While a cowardly public silently acquiesced to the rounding up and the imprisonment of their Japanese American neighbors, an underlying motive was the desire of some farmers to eliminate the competition of Japanese American farmers. From Wikipedia: “The deportation and incarceration were popular among many white farmers who resented the Japanese American farmers. ‘White American farmers admitted that their self-interest required removal of the Japanese.’ These individuals saw internment as a convenient means of uprooting their Japanese-American competitors. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, told the Saturday Evening Post in 1942:

‘We’re charged with wanting to get rid of the Japs for selfish reasons. We do. It’s a question of whether the White man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over… If all the Japs were removed tomorrow, we’d never miss them in two weeks because the White farmers can take over and produce everything the Jap grows. And we do not want them back when the war ends, either.’”   https://en.wikipedia.org/wiki/Internment_of_Japanese_Americans

Quoting again from Wikipedia: “In 1980, under mounting pressure from the Japanese American Citizens League and redress organizations, President Jimmy Carter opened an investigation to determine whether the decision to put Japanese Americans into concentration camps had been justified by the government. He appointed the Commission on Wartime Relocation and Internment of Civilians (CWRIC) to investigate the camps. The Commission’s report, titled Personal Justice Denied, found little evidence of Japanese disloyalty at the time and concluded that the incarceration had been the product of racism. It recommended that the government pay reparations to the internees. In 1988, President Ronald Reagan signed into law the Civil Liberties Act of 1988 which apologized for the internment on behalf of the U.S. government and authorized a payment of $20,000 (equivalent to $42,000 in 2018) to each camp survivor. The legislation admitted that government actions were based on “race prejudice, war hysteria, and a failure of political leadership.” The U.S. government eventually disbursed more than $1.6 billion (equivalent to $3,390,000,000 in 2018) in reparations to 82,219 Japanese Americans who had been interned and their heirs.”

At the Committee for the Republic ceremony the amazingly talented Bruce Fein recited from memory the following:

Athens had Socrates.

King Henry VIII had Sir Thomas More.

And we have the Mount Rushmore of moral courage to honor this evening:  Fred Korematsu, Gordon Hirabayahsi, Minoru Yasui, And Mitsuye Endo.  They are largely unknown American heroes and heroines of World War II.  It can be said without exaggeration, seldom in the annals of liberty have so many owed so much to so few.

What is more American than fidelity to Thomas Jefferson’s injunction that resistance to tyranny is obedience to god?  Our defender of liberty award recipients resisted the racist tyranny of president Franklin Roosevelt’s executive order 9066 issued unilaterally without congress on February 19, 1942, a date that should live in infamy.  Provoked by racism in the west coast battleground states, EO 9066 summarily dispatched 120,000 innocent Japanese Americans because of their ancestry alone into internment camps.  Remember their names.  For they are first cousins of Bergen-Belsen, Buchenwald, Dachau, and Sachsenhausen, Nazi concentration camps, not extermination camps like Auschwitz.  Roosevelt’s camps were ten:  Manzanar (CA), Poston (AZ), Gila River (AZ), Topaz (UT), Granada (CO), Heart Mountain (WY), Minidoka (ID), Tule Lake (CA), Jerome, (AR), and Rohwer (AR).

Risking ostracism or worse, our four award winners challenged the constitutionality of president Roosevelt’s racism.  The president and his mandarin class colleagues echoed the Orwellian bugle of general John Dewitt 80 days after pearl harbor: “the very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”  I am reminded of Mark Anthony’s mocking funeral oration in Julius Caesar:  but president Roosevelt was an honorable man, so were his assistants all honorable men.

Korematsu, Hirabayashi, Yasui, and Endo took their cases to the United States Supreme Court with mixed success.  The high court sustained FDR’s executive order based on knowing lies about military necessity made by the Department of Justice.  Dissenting justice Robert Jackson presciently warned that the court’s decision in Korematsu v. United states would lie around like a loaded weapon ready for use by a future Caligula, Claudius, or Nero in the White House who claimed an urgent need.

But the four did not surrender.  They continued to fight over long decades for vindication and defense of the constitution both for the living and those yet to be born.  In triumph, our defender of liberty award honorees brandished the lofty principles of the greatest generation—the constitution’s architects—against its traitors. Korematsu and Hirayabahsi had their convictions overturned in coram nobis proceedings.  The civil liberties act of 1988 denounced the racism and unconstitutionality of EO 9066.  And the United States Supreme Court overruled Korematsu in Trump v. Hawaii.

Defending liberty is always unfinished work.  Tyranny knows only offense—like a football team with Tom Brady playing all positions.  We cannot escape our moral responsibility as American citizens to equal or better the instruction of American patriots Korematsu, Hirabayashi, Yausi, and Endo.  It is for us, the living, to ensure that their courage was not in vain.  It is unthinkable that we fail to try.  Gordon Hirabayashi was right at the young age of 24: “it is our obligation to show forth our light in times of darkness, nay, our privilege.”

When you awaken each morning, be haunted by Edward Gibbons’ epitaph on Athens:

“in the end, more than freedom, they wanted security.  They wanted a comfortable life, and they lost it all—security, comfort, and freedom. When the Athenians finally wanted not to give to society but for society to give to them, when the freedom they wished for most was freedom from responsibility then Athens ceased to be free and was never free again.”

It is altogether fitting that my closing lines will be delivered at this time and place [the Metropolitan Club] within shouting distance of the white house to thunder like a hammer on an anvil.  In  the eyes of the United States constitution, there is only one race, it is American; there is only one religion, it is American; there is only one ancestry, it is American; there is only one gender, it is American; there is only one sexual orientation, it is American.

E pluribus unum Out of many, one.

______________________________

Walking out of the Constitutional Convention in Philadelphia, Benjamin Franklin was asked what kind of government we got: “A Republic,” he replied, “if you can keep it.”  I am worried.

 

Where does the desire to explore come from?

Long ago I had the pleasure of introducing a young friend to types of food he hadn’t tasted before.  He was quite comfortable with his American style hot dog and hamburger meals and wasn’t certain he wanted to try new and strange dishes.  People differ in this regard.  Some are eager to try new cuisine, see new places, and encounter new people and cultures. Some are not.  And some are even rather intimidated and reluctant to leave their familiar comfort zone. There is a lot to be said for the predictability of the familiar, perhaps similar to well-worn shoes.

After some gentle persuasion, my friend agreed to sample a few dishes.  I reassured him that nothing would be forced on him and that he might even discover some exciting new tastes.  If he found that he didn’t like a dish he would not have to finish it.  But he would never know what he might be missing if he didn’t explore a bit.  Once he started, however, it was hard to stop him.  He was pleasantly surprised at how interesting and tasty some dishes were.  He was particularly reluctant to try foie gras knowing it was goose liver, though he fell in love with it by the second bite.

As I noted earlier, people differ in their tastes for adventure.  We might just leave it at that but for two reasons.  The first is that being rich is more interesting and exciting than being poor.  I am speaking here of experience rather than money.  Seeing and engaging new and different places, meeting new and different people of different cultures, listening to new and different music can make life richer.  The core of a liberal arts education (as opposed to acquiring professional skills) is the introduction to and broadening of our understanding and appreciation of ours and other cultures. It makes our lives richer.

The second is that openness to change is a necessary aspect of economic progress.  Technical progress disrupts the established order but increases our productivity and standards of living.  Global trade not only significantly increases our material standard of living but confronts us with other people and cultures as well.  Both–technical progress and global trade often impose changes on us (such as the job skills demanded in the market) that we might otherwise not choose or want.  If people can choose to live where their opportunities are greatest and if firms are able to employ people with the skills that best fit the firms needs, economies will be more efficient and will raise the standard of living for everyone.  By allowing the disruption of innovation and trade we will have the opportunity to, or be forced to, confront and deal with strangers more often.

This can have a negative side for those who do not easily embrace adventure—those who prefer the familiar (hot dogs and hamburgers). If new neighbors come from different backgrounds and cultures, adventure lovers can enjoy the excitement of learning more about other places and people.  But those uncomfortable with strangers can be – well – uncomfortable.  Economic advances can also have negative impacts on those whose skills are no longer needed and we would be wise to develop and support government measures to soften and facilitate the needed adjustments.

A predisposition to seek and embrace adventures or to shun them is given to us by nature. However, civilization and its advance builds on nurturing more social skills and openness. Failure to teach/convince our fellow citizens of the rewards of adventure (or merely accepting and adjusting to change) can lead to disastrous results.  In extreme cases unease can turn to fear/hate as in the recent white nationalist terrorist attack in El Paso by Patrick Crusius.  As-his-environment-changed-suspect-in-el-paso-shooting-learned-to-hate.  The nature of public debate on race relations, religious freedom, globalization, etc., and the words of role models can have a profound impact on how those confronting change formulate their views on these subjects.

The world is a better, richer place when all of its people respect one another and live peaceably together. We and our education systems (school, churches, clubs, jobs) should do our best to encourage those reluctant to welcome strangers of the positive experiences it can open to them.  By learning to understand different ways of thinking and doing, we not only enrich our lives but can strengthen our own ways of doing things (our own cultures). Such interactions can show us what we like and value about our own ways and what we might adjust in light of the interesting practices of others. This is what the American melting pot is all about. It has produced a vibrant, dynamic and economically flourishing country. However, it is more friendly to the adventuresome types than to those resistant to change. We would do ourselves and our country a favor to kindly encourage those “left behind” to open up more to the wonders of our changing world.  With regard to a difference subject of misinformation Anne Applebaum explores multiple approaches to this task: Italians-decided-to-fight-a-conspiracy-theory-heres-what-happened-next?