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January 11, 2005

a Christian nation? the case of the remarkable Mr. Bartlett

Don Herzog, Herzog: "A Christian Nation?", The Bartlett Files: January 11, 2005

Valiantly continuing my quixotic quest to figure out what's at stake in talk of ours being a Christian nation, I stumbled on the House debate on the constitutional amendment to prohibit gay marriage, 9/30/'04.  Here's a morsel:

Mr. BARTLETT of Maryland.  Mr. Speaker, there seems to be some confusion as to what constitutes marriage.  In the Christian community, and we are a Christian Nation, you can affirm that by going back to our Founding Fathers and their belief in how we started, among Christians, marriage is generally recognized as having started in the Garden of Eden.  You may go back to Genesis to find that and you will note there that God created Adam and Eve.  He did not create Adam and Steve.  A union between other than a man and a woman may be something legally, but it just cannot be a marriage, because marriage through 5,000 years of recorded history has always been a relationship between a man and a woman.

Roscoe G. Bartlett styles himself a "citizen-legislator," but he's now in his sixth term in the House of Representatives, and some might think he's just another professional pol.  (If you have access to Nexis, you can read a 10/10/'04 profile of the representative and his district in the Washington Post.)  Regardless, he is forthright in his declarations that this is a Christian nation -- and his belief that you can justify controversial public policies on that basis.  (He was one of the congressmen embarrassed to learn that he had participated in a ceremony in which the Rev. Sun Myung Moon crowned himself the Messiah, but I don't doubt his claim that he'd no idea that that was going on.)  From a House debate on whether to prohibit faith-based institutions receiving funds from community service block grants from discriminating on religious grounds in employment, 9/5/'03:

Mr. BARTLETT of Maryland.  Mr. Chairman ... our Founding Fathers would be amazed that we were even discussing this.  This Congress, for the first 100 years of our existence, voted money every year to send missionaries to the American Indians.  The Continental Congress bought 20,000 volumes of the Bible, copies of the Bible to distribute to their new citizens.  For the first 200 years the New England Primer taught the alphabet to our students by using Bible text.  In the McGuffrey Reader, the author of that says that he borrowed more from scripture than any other source, and he made no apologies for that.  Our Founding Fathers were devoutly Christian.  They would be amazed that we are even discussing this.  President Adams said that this Constitution was prepared for a Christian Nation which served the purposes of no other.  Mr. Chairman, they would be amazed that we are even discussing this today.

Addressing the House in 1/7/'03 to denounce the efforts of Michael Newdow to have the words "under God" removed from the pledge of allegiance, Rep. Bartlett strung together another parade of great American public figures saluting God and Christianity.  I won't vouch for every one of his historical examples; in fact one of them is clearly wrong.  Bartlett revealed to his colleagues,

In 1811, there was a case the People v. Ruggles.  This was a person who had publicly slandered the Bible.  This case got to the Supreme Court and this is what they said:  "You have attacked the Bible. In attacking the Bible, you have attacked Jesus Christ. In attacking Jesus Christ, you have attacked the roots of our Nation.  Whatever strikes at the root of Christianity manifests itself in the dissolving of our civil government."

Well, no, though the same story surfaces on the internet and I suppose elsewhere.  The 1811 case of The People v. Ruggles, 8 Johns. 290, is from the Supreme Court -- of New York.  It affirms a conviction and 3-month prison term for Ruggles's uttering an entirely nasty bit of blasphemy typical of contemporary freethinkers.  It does not say anything like what Bartlett reports.

But it does say this:  "The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right.  Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters.  Besides, the offense is crimen malitiae, and the imputation of malice could not be inferred from any invectives upon superstitions equally false and unknown."

"Almost the whole community"?  There's the rub.  It's not clear why the numbers should be decisive here.  Even a scant handful of Muslims, Jews, atheists, agnostics, &c. &c. are entitled to be equal citizens, not second-class citizens tolerated by the first-class members of the community.  Courts and other government bodies should not be decreeing that other religions are false superstitions:  that grotesquely exceeds their competence.  Then too, the numbers today aren't what they were in 1811.  Sensing this, I think, Rep. Bartlett made a curious and crucial concession:

By the way, I would like to note that it might be appropriate in today's environment to use the words Judeo-Christian.  Those words were apparently not used by our Founding Fathers, but I am sure recognizing the origin of all of these beliefs from the Bible, which is clearly Judeo-Christian, that Judeo-Christian might be a better way.  But I am reading the actual words of our Founding Fathers.  Please read Judeo-Christian when they say Christian.

The historian in me wants to point out that the founders might well have balked at Bartlett's easy and now familiar hyphenation.  (Here's Jefferson in the Notes on Virginia:  "Those who labour in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue."  Meaning, in part, that the Jews aren't the chosen people.)  History aside, expanding from "a Christian nation" to "a Judaeo-Christian nation" isn't good enough.  It excludes Muslims.  It excludes atheists and agnostics.  It excludes Buddhists, Hindus, and on and on.

A nation as religiously diverse as ours (quite happily!) is can't afford to define its identity in religious ways.  Domestically, because it threatens to inflame religious conflict, and you don't need to study the civil wars of early modern Europe to realize how threatening that is.  And internationally, because our cause is ill served by identifying ourselves as a (Judaeo-)Christian nation.  That's why it was an awful slip when President Bush referred to the war on terrorism as a "crusade."  That's why it was worse than embarrassing to learn about General Boykin's statements that our enemy is Satan, fighting us because we are, you guessed it, a "Christian nation," and that our God is "real" but Allah is "an idol."  You can be sure that all that inflammatory language still circulates on the Arab street.  You can be sure that the retractions and apologies don't.

So consider another bit of founding fathers' wisdom.  The Tripoli treaty of 1796, a response to piracy committed by Muslims of the Barbary coast, included this assurance:  "As the government of the United States of America is not in any sense founded on the Christian Religion,--as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,--and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."  (This article was spectacularly botched in the Arabic version and modified in the renegotiated treaty of 1805.  But it was still a first-rate idea.)

Representative Bartlett means well.  But he's playing with dynamite.

January 28, 2005

two bills from Rep. Bartlett

Don Herzog, The Bartlett Files: January 28, 2005

Suffering a lazily pleasurable case of Bartlett-on-the-brain ever since stumbling into the representative's stumbling comments on our being a Christian nation, I found myself wondering if he's been sponsoring any legislation.  Here are two measures, each referred to committee.

First is the soberly named First Amendment Restoration Act.  It would make three changes in campaign finance law.  One:  it would relieve people of any obligation to divulge contributions to "electioneering communications," roughly speaking campaign ads for federal candidates run within 60 days of an election or 30 days of a campaign.  Two:  it would repeal the current rule that corporations and labor unions may not spend their funds on electioneering communications.  Three (and it looks like at least the dot-gov version I linked to has a typo; it must mean 441a(a)(7)):  under McCain-Feingold, if you contribute to an electioneering communication and your contribution is coordinated with the candidate's campaign, it counts as a contribution to the candidate; the act would repeal that rule.

These changes look technical, and I'm the last person around to think that abstract principles readily decide concrete cases.  But I think Bartlett's proposed changes are crummy — yes, that's a legal term of art and I want to back up to explain why.

If you think of democratic politics as a kind of a market, with votes as dollars and candidates as salesmen hawking themselves and their agendas and hoping to close a sale, you're suffering what I diagnose as market fundamentalism.  (And no, you may not defend against the diagnosis by pointing out that the analogy illuminates some matters.)  We assign each citizen the inalienable right to cast one vote.  An economist might worry about deadweight loss.  Why not have the state mail each citizen a coupon that says, "bearer may cast one vote"?  Then you could "consume" yours by voting yourself, or you could donate it to Greenpeace or the Liberty Fund, or you could sell it to Ross Perot.  Nor do we auction off the right to sit as Representative or Senator or President.  Instead of conjuring up market failure, be sweetly obliging I'm kind of cranky today and agree that democratic politics isn't a market.

That means we have reasons to worry about the role of money in politics.  Campaign finance reform raises many vexing issues no surprise that the Supreme Court pronouncements on that legislation are sprawling, confusing, and confused but the impulse to limit the role of money in our politics is an attempt to draw the line between markets and politics.  Or, if you like, it's an attempt to insist that as citizens we properly meet as equals, regardless of how rich or poor we happen to be.  So too for the impulse to keep corporations and unions out of our political debates.  They aren't citizens.  They have no standing.

Incidentally, we rightly know the great liberal (and feminist and socialist, that latter of the democratic or anti-statist or market-friendly kind, thank you very much) John Stuart Mill as a passionate defender of free speech.  But in thinking about elections, Mill vigorously endorsed severe limits on what wealthy candidates could spend.  A while after asking sadly, "Of what avail is the most broadly popular representative system if the electors do not care to choose the best member of parliament, but choose him who will spend most money to be elected?" he insisted, "If the friends of the candidate choose to go to expense for committees and canvassing there are no means of preventing them; but such expenses out of the candidate's own pocket, or any expenses whatever beyond the deposit [for declaring candidacy] of £50 (or £100), should be illegal and punishable."  The usually decorous Mill followed that up with a snarling attack on parliamentarians "of both parties" for being eager to ensure that workers not become MPs.

So we have reasons to worry about the sway of money in our politics.  We have reasons not to enfranchise corporations and unions.  And finally we have reasons to insist on sunshine or transparency for the role money does play.  Every one of Representative Bartlett's proposed changes would cut the opposite way.  He would let people make secret donations, let corporations and unions run campaign ads, and effectively raise spending limits.  Bad ideas one and all, say I.

I can be briefer with his other proposal, though the Citizens' Self-Defense Act is getting far more frenzied, gleeful attention on the internet.  I don't really grasp the passionate enthusiasm for guns and access to guns this has to be a characteristic tone-deafness of the left but anyway the Act would guarantee our rights to obtain and use firearms

  1. in defense of self or family against a reasonably perceived threat of imminent and unlawful infliction of serious bodily injury;
  2. in defense of self or family in the course of the commission by another person of a violent felony against the person or a member of the person's family; and
  3. in defense of the person's home in the course of the commission of a felony by another person.

1 and 2 are traditional common-law conceptions of the privilege of self-defense, or would be if they sharpened the language about the proportionality of response to the threat you're facing.  3 is way too rough for the same reason.

But here's what's really disturbing.  It's hard to see how Congress conceivably could have the constitutional authority to pass this legislation.  The best theory I can muster would run this way.  State actors say courts issuing tort awards are violating people's 2nd amendment rights, and so Congress has the right under section 5 of the 14th amendment to act this way.  But as far as I know the 2nd amendment has never been incorporated against the states.  And on the Court's post-Boerne scrutiny of Congress's section 5 powers, this act, without a careful legislative record documenting extensive state abuses and without an argument that the federal rule is proportionate and congruent to the state violation, would be clearly unconstitutional even if we assume the amendment is incorporated.

People should be principled about their commitments to federalism.  If you invoke states' rights when you don't like federal policy, it's embarrassing to neglect them the moment you get excited about some other policy.  And I'd hate to think that much of the right has only been opportunistic about federalism all along.

February 04, 2005

the revolt against taxes

Don Herzog, The Bartlett Files: February 4, 2005

Here's President Bush, from the third debate with John Kerry:

It's your money.  The way my opponent talks, he said, "We're going to spend the government's money."  No, we're spending your money.  And when you have more money in your pocket, you're able to better afford things you want.

I doubt the president was deliberately winking to anti-tax zealots, as he surely was winking to anti-abortion activists in assuring us that Dred Scott was wrongly decided.  There's a sense in which the president's comment on taxes is wholly unremarkable, though, as Elizabeth Anderson has argued in her four wonderful posts on taxation, that "it's your money" is compatible with others having rightful claims on it.  Even if the president wasn't winking, though, his language connects up with frantic and wrongheaded views.  There's plenty of room for reasonable disagreement on tax policy:  what causes are worth taxing for, whether we tax fairly, and so on.  And I still think that complaints about "tax and spend" liberals should be met with ripostes about "don't tax and spend anyway" conservatives.  But we should count the idea that taxation is fundamentally illegitimate, no better than theft, as beyond the pale in responsible politics, though it's fun and useful to discuss it in classrooms and other "academic," that is irrelevant, settings.  After all, it's tantamount to the claim that the government is illegitimate.

Other politicians have tiptoed closer to those adamantly rejecting taxes than the president has.  And wouldn't you know it?  The remarkable Mr. Bartlett is one of them.

Rep. Bartlett gets stellar ratings from most anti-tax groups.  (According to TRIM, a group established by the same Robert Welch who started the John Birch Society, he blew it on only one key vote in 2003:  he supported better fuel economy for SUVs.  "Unconstitutional meddling," snorted the group.)  He's voted to make Bush's damn-the-deficit-full-speed-ahead tax cuts permanent, which makes me worry about plundering our children and grandchildren; to eliminate the estate tax, which makes me worry about equality of opportunity; and much more along those lines.  He was one of the sponsors of the Fair Tax Act of 2003, which would repeal the federal income tax, estate and gift taxes, and employment tax, and replace them with a national sales tax starting at 23%.  That makes me worry about regressive taxation:  yes, everyone would pay at the same rate, but the poor spend a larger proportion of their income buying stuff than do the rich.

All this is well within the boundaries of reasonable policy disputes.  Let's cut now to the folks at the We the People Foundation, who will be happy to explain to you why the 16th amendment wasn't validly ratified (theirs is "irrefutable proof," according to the Idaho Observer), why even existing tax laws and IRS regulations make most wages and salaries untaxable, how you can "legally" avoid paying withholding, and so on.  Or to Irwin Schiff, valiantly battling the "federal mafia" over millions they say he owes in back taxes and penalties.

In July 2001, Bob Schulz of the We the People Foundation launched a hunger strike, which he promised to continue until he died or until he could put the government on trial for what he saw as its patently illegal tax schemes.  He wanted the IRS to send officials to one of his meetings to publicly rebut his arguments for the illegality of income taxation.  The IRS had been entirely uninterested in doing anything on the record until Rep. Bartlett helped broker a deal.   "Quite simply, the government of a free people should not tax the labor of its citizens, and it is imperative that the federal tax system not be repugnant to the Constitution and its laws," Bartlett wrote to Schulz.  "Most of Congress now agrees."  (Sorry, I don't know what pollster Bartlett employs.)

But when Bartlett found out that Schulz's group was capitalizing on the scheduled meeting to urge Americans to "wait to file until the trial," he bailed out.  The meeting went forward in 2002, without Bartlett or any other federal officials attending.  (I should add that on 8/13/01, tax notes reported that the IRS denied they'd committed to anything — and that Schulz wanted to replace the federal income tax with, well, nothing.  "There is no need to replace the income tax with anything.  The people should not be needlessly cajoled into accepting a replacement tax such as the 'fair tax' or a national sales tax.")  Schulz then pledged to stop paying his own taxes and to urge other Americans to join him.  And he seized on a new and unlikely legal argument:   now he's defending his first amendment rights to petition the government, allegedly threatened by the government's failure to give him an official response.  Whatever you think of the government's dodging the forum, that legal argument is harebrained.

Schulz has also defended people like Dick Simkanin, who pleaded guilty to tax evasion after grandstanding on his website reported by The New York Times on 10/2/03:  "Public officials can and often do make the fatal mistake of attempting to harm the servants of God (Exodus 14:9) and inasmuch as the servants of God are required by Ezekiel 3:18-19 to warn the wicked, I, a Christian, do hereby issue this proclamation."  Simkanin's warning?  That any government officials who moved against him would be consumed by fire.  Lunatic?  Scoundrel?  Patriot?  Last year, Reason ran an affectionately dismissive portrait of the "tax honesty" or anti-tax cause:  "Mostly, though, [Schiff's] shtick is based on various sorts of word magic."

I don't blame Rep. Bartlett for distancing himself from this crowd.  But I do wonder how much political capital he and others like him including the president gain by flirting with sentiments they can neither publicly avow nor act on.

March 08, 2005

Washington's birthday, r.i.p.

Don Herzog, The Bartlett Files: March 8, 2005

I want to take note of a cultural change.  I think it's politically significant, and I think there is little or nothing the government can do about it.  No, I do not think it is earth-shatteringly important.  But our politics has rhythms besides the daily news, the year's legislative agenda, and the decade's wars, too.  Not to sound portentous, but the quiet cultural change I'll note may well be a sign of a bigger seismic shift.

Americans started celebrating Washington's birthday while the great man was still in office.  Parson Weems published his first book on Washington in 1800.  That's the one with the immortal story of six-year-old George's noble honesty:

"George," said his father, " do you know who killed that beautiful little cherry tree yonder in the garden?"  This was a tough question; and George staggered under it for a moment; but quickly recovered himself:  and looking at his father, with the sweet face of youth brightened with the inexpressible charm of all-conquering truth, he bravely cried out, "I can't tell a lie, Pa; you know I can't tell a lie.  I did cut it with my hatchet.""Run to my arms, you dearest boy," cried his father in transports, "run to my arms; glad am I, George, that you killed my tree; for you have paid me for it a thousand fold.  Such an act of heroism in my son is more worth than a thousand trees, though blossomed with silver, and their fruits of purest gold."

Weems invented that story, or at least no one has ever surfaced any independent evidence of its truth.  But other striking stories were true.  Though it drove John Adams batty, Washington refused a salary for his service as commander in chief.  A latter-day Cincinnatus, he astonished the world by quietly returning to his farm after the war.  (It remains a stunning accomplishment of American politics that when he's not re-elected, the commander-in-chief does not promptly arrest his rival and send out the armed forces to maintain control.  Instead he politely packs his bags and vacates the White House.  Plenty of other countries only wish they could expect half as much from their generals.)  Only reluctantly did Washington agree to attend the constitutional convention — he presided over itand to serve as president.  And then he insisted on the anti-monarchical "Mr. President" as a mode of address.  Washington was the model of selfless republican citizenship and devotion to the common good.  And for many decades Washington's birthday was a public event, marked with parades, speeches, cherry pie, and the like.  It still is a public event in some places, but often as a tourist attraction.

Michael Walzer once distinguished between holidays and vacations.  Holidays are public events, celebrated by the citizens together.  Vacations are private, leaving individuals to go about their own business as they see fit.  And Washington's birthday had started drifting from holiday to vacation before Congress acknowledged the change with the Monday Holiday Act of 1968.  To secure a three-day weekend, that Act moved the great day to the third Monday of February, which ironically never can fall on Washington's actual birthday of February 22.  When President Nixon proclaimed the holiday, he turned it into Presidents' Day, glomming it together with Lincoln's birthday.  Either way, the event is now a three-day weekend marked by immersion in the serene and tawdry pleasures of private life.  Parades, speeches, and cherry pie now seem quaint, even hokey.

My favorite representative, surely yours too if you're a faithful reader of this blog — I mean of course the remarkable Mr. Bartlett disapproves.  This year, Roll Call (2/22) quoted him:

We're losing our history and how we got here.  I can't remember the last time anyone mentioned to me on Presidents Day that we were honoring Lincoln or Washington or anyone else.  It's become an opportunity for sales and a day off of school and it's no longer a recognition of these two very key people in our history.

So Rep. Bartlett has repeatedly introduced the Washington-Lincoln Recognition Act.  It would require the federal government to refer to Presidents' Day by its still official statutory name, Washington's Birthday.  And it requests that the president annually proclaim Lincoln's Birthday on 2/12 and call on the people "to observe such anniversary with appropriate ceremonies and activities."  (Ah, legislation-speak.)  Rep. Bartlett might feel differently if he knew that contemporaries wondered about Washington's religious commitments.  Jefferson delighted in a story that on leaving office and responding to an address from the clergy, Washington dodged a point-blank question on whether he was a Christian.

No matter:  the Act wouldn't require much.  And still it goes nowhere fast on the Hill.  I don't think the federal government can get us to celebrate Washington's Birthday in public, with parades and the like:  that feels like the creepy totalitarianism you'd expect in North Korea or Albania in the glory days of Enver Hoxha.  "Public holidays require coercion," noted Walzer.  I doubt that's right as a general matter, but it sounds right about trying to turn vacations back into holidays.  The feds might ask us to publicly celebrate Washington's or Lincoln's Birthday.  They might even make block grants available for interested communities.  (Right, that would invite scam artists to cash in with the hypocritical appearance of virtue.  Not to mention groans about the absurd use of taxes.)  But actually getting the citizens to show up with due public spirit?  Forget it.

Me, I don't like parades or shopping malls.  I don't like decline-and-fall stories about American history any better than I like onward-and-upward stories of inevitable progress.  I am agnostic on whether the death of Washington's birthday qualifies as good news or bad.  But I'm sure it's news.  And I know plenty of people on the left and right who think it represents an impoverishing immersion in private life.  How, they ask, shall we teach our children — and remind ourselves — of the virtues of republican citizenship?

It's a good question, but I want to press another thought.  If the only handle you have on the public/private distinction is that it's standing in for the state/market distinction, then you're in the clutches of market fundamentalism — and you won't be able to think or talk intelligently about the death of a once proud American holiday.

April 12, 2005

and now, the case of the conscientious taxpayer

Don Herzog, The Bartlett Files: April 12, 2005

Wanting to write more about conscientious objection, I turned to my faithful old buddy, the remarkable Mr. Bartlett.  In February, he co-sponsored the Taxpayers' Freedom of Conscience Act of 2005.  Here's its sole operative language:

No Federal official may expend any Federal funds for any population control or population planning program or any family planning activity (including any abortion procedure), irrespective of whether such program or activity is foreign or domestic.

I don't doubt that some taxpayers object when their money is forcibly taken from them to support family planning and abortion.  I don't doubt that some of them, like our conscientious pharmacist, Neil Noesen — indeed perhaps including Mr. Noesen, who might double as a conscientious taxpayer — "have trouble sleeping" and suffer "the worst kind of pain, spiritual pain."  What follows?

The Hyde Amendment and ensuing legislation have gotten the feds out of the business of funding abortions.  (Here's what's up in the states.)  So Mr. Bartlett's legislation is really aimed at contraception.  I don't doubt that many Americans believe that funding abortion or contraception is sin.  But they have evil twins leering at them from the political mirror:  I mean the many Americans who think the war in Iraq savagely unjust.  If some think abortion and contraception a matter of life and death, so do some think the war.  (They're the ones who flinch at such euphemisms as "collateral damage.")  If some think being forced to fund population control drenches your hands in blood, so too do some think of funding the war.  Hawks circling in the blogosphere, then, will find it devilishly difficult to approve the conscientious objections of opponents of abortion and contraception without approving the conscientious objections of opponents of war.  Does Mr. Bartlett want to prohibit the feds from fighting the war?

Nor does it take a matter of life and death to trigger conscientious objection.  Comb through the federal budget, your state and municipal budgets too while you're at it.  I'd say call me in the morning with the results, but, um, call me sometime next year.  Every time you find a spending provision, think about what kinds of Americans will have sincere moral or religious objections to having their money spent that way.  Picture principled objections to posting an embassy in the Vatican, drilling for oil in the Alaska wilderness, and funding the National Endowment for the Arts.  ("Remember Mapplethorpe!" and "Remember Serrano's Piss Christ!" won't have quite the shelf life of "Remember the Alamo!", but we'll remember them for some time yet.)  Or picture principled objections to more humdrum spending:  Get It Straight!, a book for kids published by the Drug Enforcement Administration; free workshops on the Americans with Disabilities Act for small business; and NASA's launch this Friday of DART, a computer-piloted rocket that will attempt a rendezvous with a satellite.

You'll object to all of these if you think any more than the minimal state is unjustified.  And if you're an anarchist, you'll object to taxes across the board.  Those of us with less austere views may object for more local reasons to particular government spending.  Conscientious objection to government spending can't automatically trigger shutting it down.  That's got to be too draconian a response; anyway, it's a principle that dictates anarchism.  What else might we do?

Should conscientious objectors be entitled to subtract their share of objectionable spending from their taxes?  Should they worry that that won't change overall spending at all, that the government will just take the money from elsewhere in the budget? or, should I say, the deficit?

Mr. Bartlett seems happy to while away his hours drafting legislation going nowhere fast.  (Yes, for Capitol Hill the speed with which his bills are referred to committee, never to resurface, is genuinely impressive.)  Maybe he could draft a bill setting up procedures to decide when Americans qualify for conscientious tax exemptions.  I wonder what agency would administer these claims, and what would happen when people had conscientious objections to its jurisdiction.  I wonder on what basis courts would review challenges.  I wonder how we'd figure out who had serious objections and who was just trying to cheat on taxes.

Are you inclined to shrug off the prospect as mad?  Why?  Not because spending money is any less "direct" or "material" support than, say, filling a prescription for a contraceptive is.  Lysander Spooner thought a ballot "a mere substitute for a bullet," because the ballot directs others' coercion.  Similarly, thoughtful people may well balk at any distinction between killing Iraqis themselves and paying the government to pay soldiers to kill Iraqis.  I just filed my tax return.  I know where some of that money is going.

Forget the practical worries about how to administer a scheme of conscientious objection for taxes.  I think the apparent absurdity of conscientious objection in taxpaying is a reminder that we're all in this political business together.  All of us have dirty hands.

And no, whittling down the government to a bare minimum wouldn't solve the problem.  Plenty of us would have conscientious objections to that, too.  Are you tempted to say, with Mr. Ridgely, "The fact is, a majority never has the moral right to impose its will unless all have first agreed to the majority process"?  Not to pry into Mr. Ridgely's domestic arrangements, but just try running a family on that model.  "Listen, Dad, I didn't choose you, I didn't choose Mom, I didn't choose my genetic inheritance, I didn't choose my place of birth, and I didn't choose what language I'd grow up speaking.  To add insult to injury, now you think we should go for pizza just because everyone else wants to.  Well, I want Thai food.  And I don't recall agreeing to be bound by what the rest of you decide."

No, government and society aren't one big happy family.  Not one big unhappy family, either.  But in all these cases, marriage and immigration aside, we don't choose our attachments.  Liberal democracy is an attractive arrangement for hashing out decisions on our collective fate.  We may decide, together, that we ought to get government out of spheres in which there are reasonable conscientious objections and the payoffs aren't worth incurring those costs.  But there's no room here for a general right of individual opt-outs, nor for a presumption that government shouldn't tax to support causes that trigger conscientious objections.

Or, if you like:  hail fellow citizens; welcome aboard.  Nope, sorry, it's not a luxury liner.  Lots won't be to your liking.  Lots isn't to mine, either.  No whining, please:  let's pitch in and get to work.

May 13, 2005

could you please repeat that number?

Don Herzog, The Bartlett Files: May 13, 2005

Hats off to the remarkable Mr. Bartlett for a constitutional invention.  Faithful readers, some of them groaning, will recall my unholy delight in tracking the good representative's antics.  (And no, it is not true that he has obtained a temporary restraining order against me.  Nor that I have bugged his office.  His office, however, has not denied bugging mine.)  In the past I have been interested mostly in his views on our being a Christian nation.  Not this time.

Roscoe Bartlett (R-MD) took the floor of the House on May 3rd to give a special order speech on oil and nuclear power.  That means it was late at night and virtually no one was in the chamber.  He was really addressing C-SPAN's television camera, the stalwart presence that never blinks, never yawns, and never giggles, even if he did say stuff like this:

Mr. Speaker, I am sure that my colleagues can remember all of the hullabaloo about the enormous finds of oil in the Gulf of Mexico.

The Speaker was really Speaker pro tempore, Rep. Charles Dent (R-PA).  And "my colleagues" were absent in droves.  But the camera maintained its unwavering focus on Rep. Bartlett, so those not in the know could imagine he was addressing a rapt chamber.  Right, no invention yet.  This is a tired old wheeze.

No, Rep. Bartlett earns my undying admiration for bringing campaign fundraising right onto the floor of the House of Representatives.  He didn't just insert language into the Congressional Record that he wanted to send to his constituents, using his franking privilege.  Nothing so coy for Mr. Bartlett!

As the Washington Post put it,

The House floor briefly became the venue for a telethon Tuesday night when Rep. Roscoe Bartlett (R-Md.) attempted to sell videos of his speech.  Just seconds before midnight, he was giving a special order speech talking about the potential of nuclear power when he directed viewers (the proceedings were carried by C-SPAN) to a poster he had erected at the lectern:  "To order a video/DVD of this Special Order contact C-SPAN at 202-737-3220."

(The Congressional Record has his speech closing with these words:  "If you would like to order a video or DVD, this is the telephone number you call at C-SPAN.")  The Post sneered that the ad generated zero sales.  I shake my head sadly at the coarse complacency of the mainstream media.  All in time, my dear sirs.  The representative may be responsible for the political breakthrough of our day.  Who knows?  Perhaps he is plotting an end run around our byzantine campaign finance laws, and hoping to rely on an ambitious reading of Art. I, sec. 6, cl. 1 of the Constitution, guaranteeing that

Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Join me, if you would be so kind, in saluting the seed of entrepreneurial innovation planted in that most unpromising soil, the floor of the House of Representatives.  Join me in committing the number 202-737-3220 to memory:  you may wish to tell your wide-eyed grandchildren that you were one of the first to call it.  And you may wish to think about the future collector's value of the DVD.)  Join me in saluting the self-styled "citizen-legislator" with a "lifelong love of farming" who had the presence of mind to plant the seed.   Join me in marveling at his deference to the Founding Fathers' intentions:

I am a conservative who wants to help restore the limited federal government envisioned and established in the Constitution by our nation's founders.

True, I missed the bit in James Madison's papers about fundraising on the floor of Congress, but I must have been reading hastily.  If salutes feel too stiff and formal for this moving occasion, if you want more impulsively to blow a kiss to the remarkable Mr. Bartlett, well, I won't stop you.  And yes I can too tell the difference between a kiss, even a wet, sloppy kiss, and a Bronx cheer.

June 10, 2005

13166 & LEP

Don Herzog, The Bartlett Files: June 10, 2005

13166 is the number of the Executive Order promulgated by President Clinton on 8/16/00.  It requires federal agencies and those receiving federal funding to take reasonable steps to accommodate persons with LEP, or limited English proficiency.  And it casts the failure to take such steps as a violation of Title VI of the Civil Rights Act of 1964.  The relevant statutory language, § 2000d, provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

So Clinton's thought was that failure to provide language assistance is tantamount to discrimination on the basis of national origin.  The order has been controversial from the start.  Congressmen routinely introduce legislation to overturn it, most recently here.  But the Bush administration has staunchly supported the order.  Testifying before the House Judiciary Committee on 3/16/05, assistant attorney general R. Alexander Acosta declared,

This administration is committed to improving the accessibility of these programs and activities to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English.  As part of President Bush's Firstgov En Espanol initiative, the Civil Rights Division has established a Spanish language site.  During a two week period, nearly 5 percent of visits to our website homepage were to our Spanish language homepage a very significant percentage.  As we go forward, our focus in this area has turned to training federal grant recipients so they will be able to provide language assistance for individuals who need access services.

www.lep.gov puns on LEP to produce, Let Everyone Participate.  (Better than producing LEPers.)  Other federal units have fallen in line:  see for instance this EEOC site.

Executive Order 13166 doesn't single out Spanish for special treatment.  But its requiring "reasonable steps" to be taken "without unduly burdening" an agency's or funding recipient's work hooks up on the ground with the numbers.  The 2000 Census reports that 47 million Americans, or 18% of the population, spoke some language other than English at home.  (That figure is up from 14% in 1990, 11% in 1980.)  28 million of them spoke Spanish:  about half said they could also speak English "very well."  Obviously things will vary with the kind of government program or the geographic location.  But often the order requires having a Spanish interpreter on hand, making printed forms available in Spanish, and the like.

The politics of 13166 are of course wrapped up in calculations of winning votes.  Since those calculations always turn my eyelids into a mysterious lead alloy, I'll leave them to you.  Then there are issues of cost:  here are OMB's calculations.  But I don't think we can dispose of the matter by fretting about dollars, not least because the language of reasonable steps and undue burdens allows consideration of costs.  Before bickering about whether the costs are too high, we should figure out whether 13166 is a good thing.  I should note that a recent legal challenge by ProEnglish was tossed out:  the judge ruled they and the doctors they assembled had no standing to challenge HHS regulations adopted pursuant to the order (Colwell v. HHS, 2005 US Dist. Lexis 6556).

Here are two kinds of reasons Americans should speak English.  One:  they'll be better off in the job market.  (Here's a study on the convergence of low-wage jobs, food processing, rural Minnesota, and immigrants with little or no ability in English.)  On 2/13/01, pressing for a constitutional amendment to declare English our official language and require that all government records be kept in English, Rep. John Doolittle (R-CA) quoted "Ernesto Ortiz, a South Texas ranch hand":

"My children learn in Spanish in school so they can grow up to be busboys and waiters.  I teach them in English at home so they can grow up to be doctors and lawyers."

That goes directly to questions about teaching English as a second language, what language math or science should be taught in, and the like, but not directly to the merits of 13166.  Market-minded conservatives would ordinarily be happy to assure us that we can count on rational self-interest to sort out these matters.  After all, it's not as though 13166 requires people not to learn English.  If government agencies besides schools make it easier to get along without good English, are they complicit in making many persons with LEP an economic underclass?

Two:  English-speakers will be able to participate in a broader range of democratic debate.  Yes, the public sphere is already segmented in lots of ways:  by race, by ideology, and so on.  But if you speak English you can eavesdrop pretty easily on what's going on elsewhere, as indeed some are eavesdropping on this blog.  The language barrier is harder to get across.  (Google's translation function remains mostly good for laughs.)  And here there is a common good or public interest that goes beyond whatever incentives particular individuals have.

Plenty of persons with LEP will improve their English; if the usual sociological dynamics surrounding immigration kick in, even more of their children will.  But surely some won't:  they will remain in linguistic enclaves.  13166 requires federal agencies and those funded by them to take reasonable steps to accommodate them.  In health care, a translator can be the difference between life and death.  An economist might notice that at the margin, 13166 will encourage some persons with LEP not to improve their English.  But it takes time to learn English, too.  Barring dramatic changes in immigration policies,  there will be a steady supply of new immigrants who may need to deal with government agencies and programs while they're learning.  Given the steady stream of new immigrants, 13166 is, if you see what I mean, a permanent transition policy.  Still, a perverse effect of helping out those making the transition to English is making it easier for others to stay in their linguistic enclaves.

I take that perverse effect seriously, but my inclination — no more than that; as I said before, I'm still puzzling over these issues is that 13166 is the right policy.  Yes, the questions of cost and implementation are real.  Rep. Doolittle also protested that

The Maine Medical Center is now required to post a "Interpreter Availability Sign" to be "printed at least in English, Farsi, Khmer, Russian, Serbo-Croatian (Cyrillic and Roman alphabets), Somali, Spanish and Vietnamese."

And that requirement, following a settlement with HHS, may well be overkill:  I don't know.  Most obviously, I'd want to know some of the linguistic demographics of Maine.  But on the question of principle, I think Clinton got this one right.  (And believe me, I've never been a Clinton fan.)  Government bureaucracies and programs are difficult enough to navigate without overcoming language issues, and a proud nation of immigrants shouldn't be pretending that only English-speakers are genuinely welcome.

Yes, we could leave it to private, voluntary actors to supply translation help.  That's a reasonable view:  I think it would be wrong to say that people have some strong legal entitlement to the existence of 13166, a view that alas is summoned up by the link to Title VI and discrimination on the basis of national origin.  The link to the statute gives the executive the right to do something here, and I'd think cheerfully about rolling over and playing dead to the objection that 13166 is properly a call for the legislature, not the executive.  But I'd add that as an interpretation and enforcement of what a statute requires, 13166 is not at all out of line with plenty of other executive orders.  (Here is a quick primer on the constitutional and jurisdictional questions.)  My view, anyway, is that 13166 is on balance a good policy, but not at all that it's obligatory.

By the way, the constitutional amendment to declare English our official language was introduced again this year.  I somberly report that the remarkable Mr. Bartlett is one of three co-sponsors.  But I learned that very late in the day, and you're wrong if you imagine it has any bearing on my views on the merits.

One more thought, about which I am pretty damned confident.  If you think 13166 a mistake, if you think that government affairs should all be conducted in English, or that it's wrong to require hospitals receiving federal funding to take reasonable steps to provide interpreters, you need an instrumental reason why.  That is, you need to explain what good consequences follow from your preferred regime, or what bad consequences follow from 13166.  If you think instead that regardless of the consequences, Americans should speak English or America is for English-speakers, then I think you have a picture of American identity that's drastically illiberal.  It's as bad an idea as requiring all of us to share a communion.  I don't think moral or political judgments are always consequentialist.  But I think here they properly are.  And that leads to one last, gentle, diagnostic suggestion.  If you're not just opposed to 13166, but indignant or passionately exercised by it, ask yourself why.

June 21, 2005

flags, markets, and the commerce clause: a small, true fable

Don Herzog, The Bartlett Files: June 21, 2005

Rummaging around for new materials for my first amendment course, I stumbled upon the Freedom to Display the American Flag Act of 2005.  The remarkable Mr. Bartlett introduced it in January.  Here's its operative language:

A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

No, the fate of the republic doesn't ride on this one:  as I say, mine is a small, true fable.  The bill languished several months in the Committee on Financial Affairs, at which point they lurched awake and referred it to the Subcommittee on Housing and Community Opportunity.  There, I confidently predict, it will rot.  So I suppose all it will do is provide the representative some nice campaign fodder.  (Not that he needs it.  He enjoys the considerable advantages of incumbency, and he's the richest of Maryland's representatives.)  Still, the bill invites a few points.

One:  I think everyone should be free to display the flag.  And I don't myself have much of a taste for those condos and planned communities which tightly govern paint color, shrubbery height, and the like.  They look like upscale versions of those dreary endless blocks of dismal concrete apartments from East Germany or the Soviet Union.

Two:  But of course I'm free not to buy such a condo.  (So I don't.)  There's a housing market, after all, and if some people want to sign sales agreements that waive their control over the external appearance of their own units, what's it to Congress?

Three:  And constitutionally, what could it be to Congress?  You could argue that this is a valid exercise of the commerce clause.  But that's absurd after Lopez.  I'll spare you the soporific lecture, but no, Raich doesn't change that.  Briefly, the Gun-Free Schools Act was a pretextual use of the commerce clause:  it narrowly reached areas around schools.  Mr. Bartlett's bill is pretextual and narrow in just that way.  The feds' Controlled Substances Act, though, is fully general, and just happened to fall on medical marijuana users.  So Raich is properly controlled by this old chestnut.  (That means I'm with Orin Kerr over at Volokh on this one; you can read much more about the issues there.)  Somber warning:  people who hijack this thread to denounce Raich will promptly be flogged with a wet noodle.  Recidivists will find their hard drives melting.

Those of us who really do care about federalism — that includes me can't jump up and down indignantly about federalism when we disapprove of some Congressional act on policy grounds, but then look the other way when we approve.  (For the record, I think medical marijuana use just fine, and would rather the feds not run around regulating marijuana anyway.  But that doesn't bear on the constitutional question.)  So conservatives shouldn't have to figure out whether they care more for flag display or voluntary agreements in markets.  They should instead say to Rep. Bartlett, "please, sir, Congress has no right to do anything about this matter."

And all of us, left and right, should wish that our representatives would stop introducing grandstanding legislation that they know perfectly well is constitutionally hopeless.