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March 29, 2005

A self-referential poll?

Paul F. Velleman: March 29, 2005


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constitutional rights: four

Don Herzog, Herzog: Constitutional Rights: March 29, 2005

Lib, ready to help me work through the establishment clause?  Don't cringe; you've been helpful so far.

Lib [sullenly]:  Don, everyone knows what you liberals think.  Your Bible, the ACLU's mission statement, calls for "the strict separation of church and state."

Lib, I already told you I won't be held accountable for the lunacies and confusions of the ACLU.  If everyone "knows" that, everyone will have to be at least mildly surprised.  I'm going to say that "separation of church and state" is equivocal.  And on the ACLU's interpretation it's a crummy idea.  It's all a matter of whether a law happens to benefit religion, or whether that's its justification.

Let's begin with the modern case that made "separation" (in)famous. New Jersey had a statute enabling school boards to pick up the bus fares for children going to public or nonprofit private schools.  One board picked up fares for children going to public or Catholic parochial schools.  Justice Black, writing for the majority, upheld the measure.  His stirring conclusion, echoing one of Jefferson's letters:

The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.  We could not approve the slightest breach.  New Jersey has not breached it here.

Black danced around a crucial point, but Justice Rutledge, dissenting, hauled out the language of the board's resolution:

The school board of Ewing Township has provided by resolution for "the transportation of pupils of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public carrier...."

Lib:  Ouch.  I'd think the state may not do that.  It singles out Catholic schools by name for support.

I'd agree.  But maybe Catholic parochial schools were the only nonprofit private schools in the district; the opinion doesn't say, and I've been unable to find out.

Lib [baffled]:  Suppose they were.  You mean it would be okay for the board to support them as nonprofit private schools, but not as Catholic schools?

Sure — unless it could be shown that their support for nonprofit private schools was a pretextual way of shoveling money to church schools or Catholic families.  Now let's take another case.  The University of Virginia had a Student Activities Fund that defrayed costs for various campus publications.  One such publication was Wide Awake:  A Christian Perspective at the University of Virginia.  The magazine was frankly proselytizing, with plenty of language like this:

When you get to the final gate, the Lord will be handing out boarding passes, and He will examine your ticket.  If, in your lifetime, you did not request a seat on His Friendly Skies Flyer by trusting Him and asking Him to be your pilot, then you will not be on His list of reserved seats (and the Lord will know you not).  You will not be able to buy a ticket then; no amount of money or desire will do the trick.  You will be met by your chosen pilot and flown straight to Hell on an express jet (without air conditioning or toilets, of course).

Lib [derisively]:  Perdition on these student writers.  So let me get this straight.  A public university funds a religious publication.  That's got to violate the establishment clause, right?

Too fast, Lib.  The University denied the magazine funding, on the grounds that giving them the money would violate the establishment clause.  But that was wrong.  Or so said a majority of the Court, and I agree.  They noticed that the check wouldn't have gone straight to the religious group; it would have gone to their printer.  The law does get tied in knots sometimes over who-gets-the-check rules, but that's silly.  If the magazine gets the money not because it's Christian, but because it's a student publication, I see no reason to worry about the establishment clause.

Lib:  Fee, fi, fo, fum:  I smell the whiff of faith-based groups getting public funding.

Yup:  after this case came down, both Gore and Bush embraced including such groups.  Not because they were religious, but because they too provide social services the law has an interest in promoting.

Lib:  Methinks the old schnoz doth detect school vouchers, too.

The Court upheld Cleveland's voucher program, which included religious schools.  The majority opinion was by Justice Rehnquist, and you'll forgive me for saying that it wasn't lucidly reasoned.  But it did emphasize that the religious schools were funded as schools, not as religious groups, and there's no reason to doubt that Cleveland sought to remedy the drastically bad educational plight of their students.  The dissenters complained that the voucher's amount made it most suitable for Catholic parochial schools, but I think only the paranoid would spy a plot to prop up Catholicism.

Should legislatures have discretion over whether to extend vouchers to parochial schools?  To my considerable surprise, in another blurry majority opinion by Justice Rehnquist, the Court permitted Washington state to lop the study of devotional theology out of the coverage of a postsecondary education scholarship.  But the University of Virginia had no discretion to exclude Wide Awake.

There are knotty issues here.  But they don't threaten the general point:  if the state has a generally applicable funding program justified with secular reasons and money happens to go to religion, that doesn't implicate the establishment clause.  James Madison, more temperate than his buddy Jefferson but every bit as fiercely opposed to establishment, demanded,

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

But everything depends on how and why the taxpayer's three pence winds its way to religion.  If "separation of church and state" means a blanket ban on public funds going to religious groups, count me a vigorous opponent of "separation."

Lib:  Don, I hope you're not a card-carrying member of the ACLU.

No, I'm not.  I'm very high on civil liberties, but I disdain their picture of what that means.  Anyway, the fire department should put out fires at churches, too:  imagine if they pulled up and the chief said, "men, let this building burn to the ground; we can't put public funds to work here."  The church gets fire protection as a building, not as a church.  But if "separation" means the state can't support religious groups because they're religious, I quite agree.

Once again, left and right tailor and twist their approaches to constitutional rights to secure the policy outcomes they like.  The religious right thinks free exercise protects against burdens as such, but doesn't think establishment bars benefits as such.  The secular left doesn't think free exercise protects against burdens as such, but does think establishment bars benefits as such.  I can't see any good reason to take such competing approaches to the two religion clauses of the first amendment.

The establishment clause raises plenty of other issues besides public funding.  These days the doctrine is centrally concerned with state actions that express endorsement of religion.  But Lib, we'd better close up shop now.  There's a church group assembling by city hall.  They want you banned from the park:  they've heard you're an atheist who supports vending-machine heroin.

Lib:  They can't get away with that, can they, Don?

Nope.  But they're certainly allowed to make their case in public, and no one should think we can shut them down because they're religious.  I'll support their right to promote their views as vigorously as I support yours.

Lib [dourly]:  Some friend you are.

Well, Lib, you and I both champion individual liberty.  But if you think that means courts should interpret free speech, equal protection, free exercise, and establishment to be specially sensitive whenever the state happens to burden that liberty, you've got a view no better than the more familiar left and right views I'm assailing.

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March 27, 2005

Social Security Basics

Neil Buchanan: March 27, 2005

When people learn that I am an economist, they are usually quick to confess that they know nothing about economics. Frequently, they apologize while telling me how much they hated their college econ class, or they confess that they majored in econ but can’t remember anything that they learned. Mostly, though, people seem keenly aware that they know nothing about economics, with some people feeling somewhat guilty about it while others simply find their lack of knowledge amusing.

People who learn that I specialize in government budgeting issues, though, offer a rather different reaction—especially if they find out that my scholarly interests include Social Security. In those instances, they are quick to tell me that they know exactly what is wrong with Social Security. Usually, this turns out to mean that they learned one clever insight about Social Security, and they have decided that that one piece of special knowledge is all they ever need to know. More often than not, that special piece of knowledge is that the Social Security Trust Fund “doesn’t have anything real in it.” This half-truth is the source of more nonsensical assertions about Social Security than many outright falsehoods. It is the best example I know of the old adage that a little bit of knowledge is a very dangerous thing—even for the few people who approach these subjects without the usual ideological agendas.

By way of comparison, some students arrive in college (or even law school) not having heard that the Gold Standard has been abandoned and that the U.S. dollar is no longer backed by any precious metal. Thus, the dollar isn’t backed by anything “real,” either. I’ve yet to see a student respond to this revelation, however, by tearing up her greenbacks. People know that even fiat currency—that is, currency backed by nothing more than a government’s full faith and credit—has value. Promises mean something, and the economy would stagger to a halt if we stopped believing in the value of dollars.

Social Security’s Trust Fund is also backed by the full faith and credit of the U.S. government. Ah, but I hear people say, the Trust Fund is just a bunch of accounting entries. The Trust Fund’s assets are Treasury bonds, the familiar IOU’s by which the federal government promises to repay its lenders. The partially-informed then argue that there is nothing backing those Treasury bonds in the Trust Fund, because the Treasury is going to have to borrow the money, anyway. If by “nothing” one means nothing more than the government’s commitment not to default on the most trusted financial instrument in human history, then it’s true: There’s “nothing” backing the Trust Fund’s assets.

Treasury bonds (and bills and notes) are a uniquely powerful promise. While politicians often lie, the U.S. government has always been committed to honoring its IOU’s. Default is unthinkable. And putting one’s trust in Treasury bonds is hardly a sign of financial naiveté: Financial managers (even those who cannot say the name Franklin Delano Roosevelt without spitting) and economics professors (even those with signed portraits of Milton Friedman on their desks) treat Treasury bonds as risk-free. Indeed, Treasuries are the definition of risk-free assets against which all other financial assets are compared. Treasury bonds are, if you will, the Gold Standard of financial securities.

This is why Professor Elizabeth Anderson’s post on this weblog last week (March 25) was so important. As she notes, the one thing that the United States government has always stood behind is its debt instruments. Politicians might lie about whether they had sex with “that woman,” or whether they will unite rather than divide, but there are some promises that we always stand behind. For any politician to suggest that we might someday choose to default on those obligations is the height of irresponsibility. When that politician is the President—and particularly a President whose fiscal policy depends completely on the ability to borrow trillions of dollars over the next decade or more—then there is really something askew.

But, some argue, the government cannot help but default on those bonds in the future, because the rest of the government is running a deficit and will not be able to finance the Social Security system when the Baby Boomers have retired. So Bush, according to this argument, is merely being honest, not issuing threats. Again, this argument is based on a half-truth that is more damaging than pure ignorance.

Begin at the beginning of the Trust Funds: In 1983, a divided Congress and a very conservative President adopted a plan proposed by a bipartisan panel (led by Alan Greenspan and Daniel Patrick Moynihan) to “smooth” the financing of the Baby Boomers’ retirements. At precisely the time when the youngest of the boomers were entering their earning years—and therefore when it would have been possible to cut Social Security taxes significantly without reducing the benefits for a very small cohort of current retirees—President Reagan and Congress raised Social Security taxes significantly. The idea was to set a tax rate that would not need to be changed for decades to come, one that would guarantee surpluses in the Social Security system for the first several decades, offset by deficits in the system for several decades thereafter. During the fat years, an accounting system would keep track of the number of dollars that had been collected by Social Security in excess of its annual needs, plus interest. Those accounting entries would be secured by Treasury bonds, with the Trust Fund balance representing the total of such IOU’s issued by the Treasury. During the lean years, Social Security would then receive money from the Treasury in repayment of the excess funds that it had shoveled to the Treasury starting in 1983.

The 1983 law, therefore, was a promise made across time. The government said something like this: “Listen up, Baby Boomers. We’re going to collect much more in Social Security taxes than is necessary to finance the system while you’re working. When you retire, your benefits will be partly financed by funds from the Treasury that are, in the aggregate, just about equal to the excess contributions you made while you were working, plus interest.”

That was the promise; but as we know, many promises are broken. Therefore, the promise needed to be guaranteed in some way—sort of a government equivalent of “cross my heart and hope to die.” Consider the different ways that the government in 1983 might have tried to guarantee such a promise. It could have passed a law with a super-majority requirement, to allow future legislative minorities to block changes in the law. At the toothless extreme, it could have simply included a passage in the statute to the effect that “future Congresses should take note of the promises made here.” The method that Congress and President Reagan chose was, in some ways, the most powerful guarantee available: It put the promises in the form of Treasury bonds. Promises can be broken, but the promises embodied by Treasury bonds never have been. The Trust Funds represent an automatic appropriation of funds for Social Security benefits during the years when—entirely by design—the system will collect less annually in taxes than it pays out in benefits.

The promise in 1983 also, therefore, included the following guarantee: “And if, when the time comes to pay out benefits, the rest of the government is running a deficit, we guarantee that we will do what is necessary to honor this promise, by allowing the Social Security system to ‘cash in’ these Treasury bonds in exactly the same way that private citizens can.” This is precisely what Professor Anderson was describing: The Trust Funds, like all accounting systems, are ultimately just accounting entries that represent obligations from one entity to another. But the form of those obligations is what really matters. The form of the Social Security Trust Fund is as iron-clad as you can get, and it should remain that way.

Again, though, even promises made in good faith—and backed by solemn guarantees—can sometimes not be honored. How is it that the government can honor future Social Security obligations under the various forecasts of future government deficits? The answer, it turns out, is in the original design of the Trust Funds. Notwithstanding the rhetoric from the Administration, there are no dates at which a crisis will occur.

Go back to the basic plan from 1983: If the rest of the federal government were to run a deficit during the build-up of the Trust Funds, then the total amount of money that the government would need to borrow on the financial markets would be reduced by the diverted Social Security tax revenues. If the annual Social Security surplus was big enough (such as in the late 1990’s), there would be enough money not only to eliminate the need for the Treasury to borrow from the public but also for Social Security taxes to be used to pay off existing Treasury bonds held by the public.

In that sense, to repeat, it is absolutely true that the Trust Funds—and the Social Security system as a whole—are accounting fictions. We happen to collect a tax called the Social Security tax, which allows us to pretend that the Social Security system is separate from the rest of the federal budget and has its own deficit or surplus. In fact, the federal government is either a net borrower or a net lender on the financial markets on an annual basis. (Lately, of course, we have again become a rather significant net borrower.) But this particular accounting fiction was enacted in a very non-fictional form.

What happens when the years of Social Security surpluses (measured, again, by artificially separating Social Security’s taxes and expenditures onto separate balance sheets) inevitably turn to the planned years of deficits? Nothing dramatic. If the Congressional Budget Office’s forecasts turn out to be accurate, Social Security taxes will fall short of scheduled benefits for the first time in about 2020. (If this year’s Social Security Trustees’ report is accurate, this will happen in 2017. If last year’s report is accurate, it’s 2018.) If, as expected, the rest of the federal government is running a deficit around that time, is that not a crisis? Certainly not. In 2019, Social Security’s annual balance will be positive but near zero. In 2021, the system’s balance will be negative but near zero. The contribution in any of those years of the Social Security system to the overall federal deficit, either way, is trivial. From that date and for several decades onward, the Social Security program will pay the difference between full benefits and its annual dedicated tax revenues by presenting IOU’s from its Trust Fund to the Treasury and saying, in essence, “Remember all that money we gave you in the 80’s, 90’s, etc.? Well, it’s time to pay it back.” During this time, Social Security’s net annual shortfall will become nontrivial gradually, and then it will shrink again. If the overall federal deficit becomes larger, lenders to the federal government will require higher interest rates, and policymakers will have to decide whether to cut spending or raise revenues. We can decide to do that now, too, but that needn’t have anything to do with whether the Social Security system is going to become a net borrower in some particular year.

But again, some people say, there will be no money to pay back the IOU’s. If the government is running an overall deficit, Social Security will be left holding an empty handful of IOU’s. If that were true, though, people who are currently holding Treasury securities that are due to mature this year will not get their money, either. If I present the Treasury with a $100,000 face value bond that matures in 2005, I am absolutely sure that I will receive my money. The money will come either from increased taxes or by “rolling over” the debt, i.e., by the Treasury’s borrowing again from other willing lenders. Given that the average maturity of Treasury debt is less than 10 years, this is a common occurrence. Old debt is paid off by issuing new debt on a regular basis.

Is this bad? Not necessarily. The Treasury can issue new debt each year, so long as there are people willing to lend to the federal government. As above, if the Treasury’s overall borrowing needs (including any deficit or surplus from Social Security) become too large, then willing lenders will become harder to find. So the issue is not whether the balances in the Trust Funds are “real,” but rather whether the federal government will, at some point, run out of lenders.

Clearly, that question is completely separate from the calculation that led to the Bush Administration’s oft-repeated crisis date of 2017/2018/2020. If the overall budget is far enough out of whack, the financial markets will become more and more leery about lending to the Treasury. We can and should think about the consequences of such a circumstance, as well as the logically prior question of whether things will really ever get that bad.

I will post future entries on this weblog about future scenarios and the overall budget picture. For the time being, though, I’ll end this post with one further observation. The Bush Administration claims that it can finance private accounts by borrowing several trillion dollars on the financial markets over the next decade or so. They claim that this is not really an increase in net long-term debt, because it merely replaces an unfunded liability (benefits in excess of Social Security taxes, mostly in the decades after the Trust Fund is no longer relevant) with the present value of that liability. Again, though, the nature of different types of promises is the key: The Administration’s plan would give current lenders iron-clad guarantees in the form of Treasury bonds, to be offset later by the possibility that future benefits will be lower. The future cuts, though, really are nothing more than politicians’ promises. Bush would have us trade a possible very-long-term benefit for a guaranteed immediate liability. That does not fit most people’s definition of prudent fiscal stewardship.

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March 25, 2005

Keeping abortion and prenatal injury distinct

Jeff McMahan: March 25, 2005

One point on which conservatives and liberals ought to be able to achieve consensus is the wrongfulness of inflicting prenatal injury.  Prenatal injury raises issues quite different from those raised by abortion because nothing about the morality of inflicting prenatal injury hinges on the controversial matter of the moral status of the fetus.  This is because the real victim of prenatal injury is not the fetus but the person into whom the fetus, if it survives, will develop.  Prenatal injury typically inflicts lasting damage that may affect an individual’s entire life for the worse.  For this reason, to injure a fetus in a certain way is little different morally from painlessly inflicting the same injury on a small child.

It is, of course, difficult to formulate legislation that will help deter pregnant women from injuring their own fetuses.  Liberals will resist such legislation because it would  impose substantial burdens on women not shared by men and would be difficult to enforce without violating women’s rights to privacy.  Conservatives who are averse to governmental intrusions into people’s private lives ought to share many of these same reservations.  And conservatives who oppose abortion have a further reason to object to legislation that would penalize women for giving birth to infants with defects traceable to maternal recklessness or negligence – namely, that in a society in which abortion is legal, such legislation would give a pregnant woman who fears that she may have injured her fetus an incentive to have an abortion rather than to bring the pregnancy to term.

Despite these obstacles, liberals and conservatives ought to be able to unite on this issue; but they will succeed in doing so only if they keep it separate from the issue of abortion.  And it is a very different issue, for the reason suggested in the first paragraph.  Suppose it’s true, as many liberals believe, that the moral status of a fetus is lower than that of a person and, as virtually everyone believes, that death isn’t tragic for a fetus in the way it is for an older child or adult.  In that case one may believe that a pregnant woman’s interests can sometimes, or even often, make it permissible for her to have an abortion.  For abortion would affect only the weak interests of a being of comparatively low moral status.  But the woman’s interests may not be sufficient to justify her doing what would inflict a nonlethal prenatal injury, for that would affect the interests of a person throughout the whole of his or her life.  In short, prenatal injury may be substantially more objectionable morally than abortion is.

There is, however, a serious pragmatic problem, which is to formulate any legislation that would criminalize prenatal injury in such a way as to distinguish between lethal and nonlethal injuries. Legislation that was passed not too long ago in both the House and the Senate that makes it possible to treat an assault on a pregnant woman as having two victims doesn’t recognize this important distinction. It seems to me that an assault that injures a pregnant woman and inflicts a nonlethal but lasting injury on her fetus does indeed have two victims. But an assault that injures or kills the pregnant woman and also kills her fetus does not have two victims – or at least not two victims of equivalent status. If a fetus has a lower moral status than that of a person and is not harmed by death in the way an older child or adult is, then the killing of the fetus may be a crime only, or primarily, because of its effects on the woman and any other persons who cared about the fetus. The woman in such a case is of course doubly victimized: she suffers not only the physical assault but also the loss of her future child.

Yet, as I noted, it would be very difficult to design legislation that would criminalize certain instances of prenatal injury for reasons independent of the effects on the pregnant woman, but only if the injury is nonlethal rather than lethal. Among other things, such legislation would give third party injurers an incentive to ensure that their assault would prove fatal to the fetus. If, for example, a man has assaulted a pregnant woman in anger, such legislation might make it in his interest later to assault her again to make sure he kills rather than merely injures her fetus. It would be crazy for the law to offer such an incentive. Yet a law, such as that which the House and Senate recently approved, that collapses the distinction between killing a fetus and injuring it in a way that causes lasting harm to a person is both morally untenable and inconsistent with constitutional protections of abortion.

If conservatives and liberals are to cooperate to try to overcome these obstacles to protecting fetuses from prenatal injury, liberals mustn’t allow their justifiable concern for the rights of pregnant women to prevent them from recognizing that the infliction of prenatal injury is just as grave a matter as the infliction of a comparable injury on a child. And conservatives must resist the temptation – which was clearly among the motivations behind the legislation to which I’ve referred – to use the issue of prenatal injury as a means of advancing an anti-abortion agenda.

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constitutional rights: three

Don Herzog, Herzog: Constitutional Rights: March 25, 2005

Lib, kindly bring our occasional readers up to speed, will you?

Lib:  Don't trust a word this guy says!  He's crazy!  He hires me, he gets me arrested for defacing public property, he refuses to bail me out, he — [suddenly sedate] Um, Don, I see you brandishing my contract.  It's like magic.  Every bone in my staunchly libertarian body shudders in religious dread when I see a contract.

Yes, Lib, you and I have contracts with Central Casting and you're in violation.  Please review what we've learned so far about constitutional rights.

Lib [sullenly, dutifully, but obligingly warming to his task]:  Well, let's take your right of free speech.  Your first amendment right doesn't protect you against any and all ways the state burdens your speech.  The income tax doesn't raise first amendment issues, and it doesn't even if you can show that if you had thousands more dollars you'd start a political magazine.  But if the state shuts you up because they think your ideas are dangerous or repugnant, they've violated the first amendment.

Why thank you, Lib.  And then

Lib:  And then you said that left and right both twist their approaches to constitutional rights to get their favorite policy outcomes.  And you just about knocked me off my chair when you said that you agreed with the right about equal protection.  You said that the government doesn't violate equal protection if it uses an employment test that four times as many blacks as whites fail.

Not unless there was evidence they adopted the test in order to get that racially disparate outcome.  And Lib, you weren't sitting down.

But yes, the left wants more from equal protection than protection against state measures aimed at forbidden racial outcomes.  The left often wants courts to reach in and overrule laws that happen to disadvantage blacks, even if the laws don't do that on their face (as, say, "no blacks may work for the police" would), and even if there's no evidence the state adopted the "facially neutral" measure that turns out to disadvantage blacks for bad, pretextual reasons.  And I think that's wrong.

Lib:  Why Don you are the very paragon of independent thought.  Careful about toeing the party line, or David V. will ban you from this blog.

Sorry, Lib, you have no clue about David.  Or the blog.  So let's turn to free exercise.  Lib, since 1796 Tennessee's constitution has said this (Art. 9, sec. 1):

Whereas ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.

And a statute extended the same provision to bar ministers from sitting in state constitutional conventions.  Think they can do that?

Lib:  No way.  The law is aimed at religion on its face and so violates the first amendment protection of free exercise of religion.  The law doesn't quite tell them they can't be ministers, but it singles out ministers to be deprived of political rights.  And I bet if we take seriously the language that it's to make sure ministers properly serve religion, the state can't do that either.  It's just as bad as religious tests for public office.

Quite right:  the Supreme Court thought this was an easy case.  Take another case.  Hialeah adopts a complicated series of provisions regulating the "slaughter" and "sacrifice" of animals.  They define "sacrifice" as "to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption."  And they say they're concerned about cruelty to animals.  May they do that?

Lib:  Ooh, that's trickier.  The language of "sacrifice" and "ritual" sounds like it's aimed at religion.  But maybe not.  What do we know?

The locals were horrified by the Church of Lukumi Babalu Aye and its observance of Santeria.  Most of the regulations looked tailor-made to prohibit the Church's practices of animal sacrifice.

Lib:  The jig is up.  (Dontcha love it when I say quaint stuff like that?)  Even if we grant that the ordinances weren't aimed at religion on their face, there's an illicit motivation here.  Strike that law down!

Relax, Lib, the Supreme Court already did.  One last case.  Oregon has a controlled substances act, which

Lib [eyes bulging, a blood vessel on his forehead pulsing]:  I hate controlled substances acts!

Thanks for sharing, Lib.  But their controlled substances act, merrily trampling on the chemical liberties of the good citizens of Oregon, includes peyote as a forbidden substance.

Lib:  Ooh, nasty stuff.  Ever try peyote, Don?  Hideously bitter.  Makes you nauseated.  Makes you puke, actually.  Makes me puke, anyway.

Thanks for sharing, Lib.  And Oregon also provides that if you're fired for misconduct, you don't get unemployment benefits.  So two Native Americans who used peyote in religious ceremonies got fired from their jobs working for a drug rehabilitation outfit, and then they got denied unemployment benefits.  Are they constitutionally entitled to the benefits?

Lib:  Well, it does sound kind of like the state has burdened their religious practice, though the private outfit fired them, not the state.  But the state thinks it has interests in controlling drug use and interests in not giving financial support to people fired for good cause.  The generality of those interests makes it hard to think they're aiming at religion.  But I do wonder why they put peyote on the list of controlled substances.  Maybe they're trying to bash Native American religious practices?

Nice question.  But suppose it doesn't look like it.

Lib:  Well if free exercise works the way free speech and equal protection do, Oregon may do this without violating any constitutional rights.

That's what Justice Scalia argued in his excellent majority opinion for the Court in this case, Employment Division v. Smith.  His general rule was that burdens, standing alone, don't implicate free exercise — and I don't suppose anyone will accuse Justice Scalia of not caring about religion.  He added some curious wrinkles about unemployment benefits and hybrid rights, but my guess is that he had to do that to get five votes.

Many on the right have reviled Justice Scalia's opinion.  It did roll back an earlier jurisprudence that purported to pay attention to burdens as such.  And it inspired Congress to pass the Restoration of Freedom of Religion Act under its sec. 5 powers under the fourteenth amendment; the Court then struck down that act.  That debate continues to rage but isn't centrally at issue here.

Lib:  But Don, couldn't the Oregon state legislature permit the religious use of peyote if it wanted to?

Absolutely, and Justice Scalia emphasized that, too.  Legislatures have lots of discretion to carve out exemptions for people with religious interests.  In fact, Oregon has since amended their criminal statute to grant an affirmative defense to those using peyote in religious practices:  see ORS § 475.992.  So too Congress, in a limited and undoubtedly constitutional response to Smith, granted the same exemption from federal drug laws:  see 42 USCS § 1996a.  But our question is, what may or must courts do once the legislature has made its call?  And Oregon's call was to forbid peyote for everyone, not just Native Americans.

Lib:  Well, if a court's not willing to say that peyote is on the list of forbidden substances because the legislature wants to bash Native American religions, then this isn't a free exercise problem.  At least not if free exercise works the same way free speech and equal protection do.

I think they all work the same way.  But left and right pick and choose.  The left worries about laws that happen to burden racial minorities, and tends not to worry about laws that happen to burden religious practice.  The right doesn't worry about laws that happen to burden racial minorities, but does worry about laws that happen to burden religious practices.  It's hard to resist the sneaking suspicion that left and right are cooking their legal approaches to get the kinds of policy outcomes they favor.  And I think that's cheating.

Next up:  establishment clause worries, further ideological gyrations, and some arguments on why the law should take this general approach.  Lib, thanks, you're a saint.

Lib:  Actually, Don, I'm a raving atheist.

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Issue a Threat, Pretend It's a Warning

Elizabeth Anderson: March 25, 2005

Suppose you are on a small boat and there is a big ship moving nearby.  "Get out of the way or the ship will ram you!," someone shouts.  If that someone is not steering the ship, or under the command of its captain, he's giving you a warning.  If he's the captain of the ship, he's issuing you a threat.

President Bush is going around the country saying:

Some in our country think that Social Security is a trust fund. In other words, there's a pile of money being accumulated.  That's just simply not true . . . . There is no trust.

What's being accumulated in the Social Security trust fund is trillions of dollars worth of U.S. Treasury Bonds, universally considered the safest investment in the world.  Bush is contrasting the trust to be placed in these bonds with the trust one should place in cold, hard cash -- which is to say, trillions of dollars of U.S. Federal Reserve Notes.  Since both of these are obligations of the U.S. Government, backed by nothing but trust in the U.S. Government, the contrast is slight.

Of course, theoretically, the U.S. Government could choose to default on these obligations.  When someone not in control of government says this, he's issuing a warning.  But Bush is running the ship of state.  He's issuing a threat.

Supporters of Bush will protest that he'll be out of office in 2018, when the Social Security system is projected to start having to redeem the bonds in the Trust Fund.  So, Bush is not in a position to bind the U.S. government of the future.  Hence, he's issuing a warning, not a threat.

But it is a myth that the government cannot do things today to bind itself tomorrow.  The government today can drastically raise the cost to the government of the future of not fulfilling the present government's promises.  The original idea of the Social Security Trust Fund was a mechanism to bind the future government, by drastically raising the costs of going back on the promise to fully fund Social Security.  It's one thing to change the Social Security benefits formula, quite another to default on U.S. Treasury bonds.  If that's not enough, Bush can do more.  He can give speeches around the country, staking the honor and reputation of the U.S. Government on a sacred promise to do whatever it takes to honor that obligation.  He can proclaim that any future U.S. officeholder who dares to advocate default or vote for it deserves to be driven out of office by the voters.  He can announce that any political party in control of government in 2018 who defaulted deserves to lose the trust of the American people, and suffer the ignominy of total, permanent destruction.  He can draw up a Contract with America, including a pledge to redeem those bonds, and bully every  Republican leader to sign it.

What, you say, these are only words?  But words can come back to haunt a party, and a government, whose leader says them.  That's why politicians go around making promises that future party leaders, and future governments, will have to fulfill.  It's a way of raising the costs to the future of not doing the will of the present.

What, you say, Bush only has power over his own party members, not the Democrats?  Please.  It is not remotely plausible that the Democrats would be foolish enough to betray senior citizens, their largest, most powerful, and most quickly growing constituency, by defaulting on the trust fund if they are in control in 2018.  We would have to imagine that the Democrats would refuse to raise taxes if that's what it takes to pay off those bonds.  If Bush thinks the Democrats have become so allergic to taxes that they would refuse to raise taxes even to pay off the Government's primary obligations, he should say so, loud and clear.

So what is Bush doing, in proclaiming "There is no trust"?  He's trying to lower the cost to future governments of default, by proclaiming that there never was anything to the government's promises to begin with.

He's also telling you: "government can't be trusted."  When an outsider to government says this, it's a warning.  When a government officeholder says this, it's a threat.  The Republicans are in control of government.  He's telling you, by implication, that his own party can't be trusted.  And you know what?  For once, I believe him.

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March 22, 2005

constitutional rights: two

Don Herzog, Herzog: Constitutional Rights: March 22, 2005

Boy, do I owe Lib an apology.  I thought my grungy libertarian pal had gone slinking off to get high.  In fact, that damned cop busted him while I wasn't looking.  Why?  Because he was in the public park, touting the merits of vending-machine heroin.  I called the station house, and they said he's been released Lib!  You okay?

Lib [growling]:  Sure.  Just great.  I take a routine job at a blog run by some nerdy professors, and next thing I know the cops are threatening to throw me in jail.

Sorry, Lib.  But I need you to get back to work.  You're going to help me demonstrate that left and right both twist their approach to constitutional rights to get the policy outcomes they like.

Lib [sneering]:  Say it ain't so, Joe.

I'd like to, Lib.  In fact I'd like to see if you libertarians have a consistent view, too.

Lib [proudly]:  You bet we do!  We're consistent in our devotion to individual liberty!

We'll see.  But shall we begin?  Lib, do you remember what you learned last time?

Lib:  You bet.  Tussling with the cops is great for learning:  you ought to make your students do it.  Anyway, the state can silence me and blatantly violate my right to free speech.  Or they can silence me without even implicating that right.  Everything depends on how and why they silence me:  on what rule they use and what justifies their action.  I love temp work!  To hell with health insurance:  I am now an expert on the first amendment!

Don't hang out your shingle just yet, Lib.  But you're right about the basic contrast.  The state may not aim at your speech.  So the cop may not tell you to clear out because he doesn't like what you say.  But the state may shut you up if it's not aiming at your speech.  So the cop may clear everyone out for insecticide spraying.  (The curious can compare these two approaches the law takes to deciding when the state is aiming at speech.)

I'll repeat an older formulation from the Supreme Court:  the state may not adopt measures "frankly aimed at the suppression of dangerous ideas."  But now I'll add that it's not as though measures covertly aiming at suppression are okay, either.  As Justice Marshall declared long ago, the courts must not let the government get away with "pretext."

Lib:  So my right of free speech blocks state action justified in some ways, but is powerless and irrelevant against other state action.


Lib:  You think this picture of the constitutional right generalizes to other constitutional rights?

Yes, I do.  Usually settled legal doctrine does, too.  Now let's move to equal protection of the laws, guaranteed by the fourteenth amendment — and, thanks to the miracle of reverse incorporation, by the fifth amendment, too.  Lib, what happens if the law says blacks can't work as policemen?

Lib:  That's got to be unconstitutional.  Whether you think equal protection is about color-blindness or antisubordination, here the state is picking out a racial minority and disadvantaging them.  And it's hard to imagine any nonracist justification for doing that.

Good call.  We wouldn't even let the state say, "hey, we're not racist; we're just trying to provide effective policing to our racist white communities."  That's just like the heckler's veto we examined last time:  the state can't evict you from the park because other private parties condemn your speech.  But now suppose the law requires applicants for government jobs to take a written test, and four times as many black applicants to the police force as white applicants fail the test.  What then?

Lib:  Hmm, that sounds tougher.  Any evidence that the law's purpose is to keep blacks out?


Lib:  Well, then it looks okay to me.  I guess the legislature could change it, if they didn't like the result.  But I don't see how a court could find any violation of equal protection.

Me neither.  That's the rule (and the factual setting) of Washington v. Davis.  The law's "disparate impact" on blacks triggers an enquiry into illegitimate state purposes.  But if the state isn't acting pretextually, the disparate impact or burden on blacks, standing alone, gets nowhere in court.

Lots of people on the left hate this view.  They think it guts equal protection or turns it into mindless formalism.  Lots of people on the right adore this view.  The prospect of courts meddling with legitimate laws to adjust the outcomes makes them shudder.  As long as the rules are fair, they say, let the chips fall where they may.  On this one, I'm with the right.

Lib:  So free speech and equal protection work the same way.  They don't protect against burdens as such; they only stop the state from acting for illegitimate reasons.

Yup.  But now let's see what happens when we turn to free exercise and establishment.

Lib:  Forget it, Don.  Central Casting says I'm entitled to a work break just about now.  And your posts are too damned long anyway.

All too true.  Okay, Lib, try not to get arrested this time, 'kay?

Cop [belligerently, from stage right]:  Like hell.  Lib, back in the patrol car.  Looks like you're the guy who used his car key to scrape the paint off the door.

Lib [plaintively]:  Well, sure, but it was political speech!  I wrote, VENDING MACHINE HEROIN NOW!  VOTE LIBERTARIAN!

Cop [proudly]:  Save it for the judge, Lib.  I'm not busting you for what you said.  I'm busting you for defacing public property.

Lib [appealing to me]:  Can he do that?

Sigh.  Yes, Lib, he sure can.

Lib [frantically, fearing conviction]:  Herzog, you know nothing about the constitution and free speech!  I'm going to the ACLU!  They'll know a first amendment violation when they see one!

The ACLU might think this latest prosecution invades a constitutional right.  Judge Dimwit, sitting in trial court at Sleepy Backwater, just might join them, too.  But they'd be wrong.  I won't be held accountable for the lunacies and confusions of the ACLU, either.

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March 18, 2005

more on bait and switch

Don Herzog: March 18, 2005

A while ago, I complained about the blatant dishonesty of the principal supporters of Proposal 2.  That proposal enshrined this cryptic language as art. 1, § 25 of Michigan's constitution:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

The weirdly clunky wording, I suspected, was preparing the ground for an attack on publicly provided domestic partnership benefits for gays and lesbians.  No, no, the supporters insisted, this was all about gay marriage.

My sordid little tale now deepens.  A city commissioner in Kalamazoo poked a state representative.  That representative poked the state attorney general.  Now the attorney general has issued an advisory opinion on the matter.

The attorney general reports that as a matter of state law on constitutional provisions,

the primary rule of construction is to give effect to the intent of the people of the State of Michigan who ratified the Constitution by applying the rule of "common understanding."

You might think that settles the matter:  the voters thought they were banning gay marriage, period, right?  Well, no.  The attorney general continues, and he's right on the legal merits,

But if the constitution employs technical or legal terms of art, those terms must be construed according to their technical or legal sense because, "in ratifying a constitution, the people may understand that certain terms used in that document have a technical meaning within the law."

This isn't a straightforwardly factual claim about what the people did or didn't think about the language.  Here intent takes a back seat to text, as it often and properly does in law, and the attorney general underlines the point:

the Supreme Court has made clear that words in a constitutional provision must be given their plain meaning if they are obvious on their face.

Can the voters complain that their will is being flouted?  No, says the attorney general.

the issue of domestic partner benefits based on a union similar to marriage was at the forefront of the public debate as voters prepared to go to the polls.  Regardless of whether there was agreement regarding the effect the proposal might have on domestic partner benefits, one thing that would clearly have been evident to voters was that benefits provided based on the recognition of a "similar union" were at issue and might be eliminated if the measure passed.

I don't think this is factually right.  The public debate was about gay marriage, gay marriage, gay marriage, oh, and also gay marriage.  As I explained in my prior post, supporters of the amendment pooh-poohed the thought that it would undercut domestic partnership benefits.  Still, I think the attorney general is right on the legal merits.  The people knew or should have known that the legal force of this language might prevent units of state government from according domestic partnership benefits.

But is that the best rendition of the language?  It's hard to say with a straight face that the amendment's words obviously have a plain meaning.  Here I fear the attorney general's opinion is sadly peremptory:

The City's Policy accords same-sex "domestic partnerships" a "marriage-like" status.  The clear design of the City of Kalamazoo's policy is to establish a special status for "domestic partners" of the same sex, who share a common residence and financial arrangements, and to use this as a basis on which to confer benefits on the "partner" of the city employee.  In the words of art. 1, § 25, the City's Policy recognizes same-sex domestic partnerships as a "similar union" to marriage.  Given the broad language of the amendment, there can be little doubt that conferring these benefits constitutes recognition or the acknowledgement of the validity of these same-sex relationships.  Conferring these health- and retirement-related benefits also falls within the all-encompassing "for any purpose" language.

When lawyers appeal to "clear design" and "little doubt," beware:  it means they're not going to offer a careful justification.  I doubt the attorney general made the right call on this one, but I'm the last person to think that he should try to bend the language to accommodate a policy outcome I'd approve of.  And he is commendably lawyerly in handling the retroactivity question.  The best reading of the new constitutional language, he says, is that it is forward-looking:  Kalamazoo may no longer extend these benefits in new contracts, but there is no clear language in the amendment to overcome the law's usual presumption against retroactivity.  So they can't revoke the existing contracts for the seven city employees now enjoying partnership benefits.

Oh, and the reaction from the measure's supporters, the ones who assured us voters that the proposal was all about gay marriage?  Gary Glenn of the American Family Association is one happy camper:

"I don't think there's any question the majority of Michigan taxpayers will be strongly supportive of the attorney general's opinion," he said.

And a member of Citizens for the Protection of Marriage embraced the advisory opinion, too, making explicit the links between marriage, religion, and traditional gender norms.

Mary Hann said restricting benefits to only heterosexual marriages is important in keeping marriage sacred, which is what Michigan residents voted for.

"Traditionally, the benefits were won because a man would provide income for the family so women could stay home and take care of children," Hann said.  "To try to arrange a new term of marriage to further people getting better and better benefits doesn't make sense."

Meanwhile, the state representative who sought the opinion hailed "a victory for traditional marriage."  And the city commissioner who prompted his request?

"It ends a discriminatory practice," a pleased Kalamazoo City Commissioner Mary Balkema said of the opinion, assuming it is enforced. "I think it's unfair to single out homosexuals for special treatment."

Huh?  Special treatment?  Let's see, that would be, um, getting the same benefits married couples get.  Somehow I just can't see any invidious special rights there.  I can see only equality.  Right, unmarried straight couples don't get these city benefits.  But gays and lesbians can't marry.  So it's ridiculous to compare them to unmarried couples.  Kalamazoo is caught in a double bind.  To qualify for domestic partnership benefits, couples have to show they're more than casually living together.  The city does that precisely to avoid accusations of "special rights," I suppose also to protect the budget.  But those required showings make the attorney general think that a marriage-like status is being enshrined in law.

Plenty of Michigan voters were eager to distinguish their support for proposal 2 from any kind of gay-bashing.  Over and over, I heard those supporters say that they had nothing against gay and lesbian households, nothing against letting those people live their lives on the same terms as straights.  All they wanted to do, they explained, was emphasize that marriage was special.

So now I'm waiting to hear from those voters — and the public figures who took the same line.  If they're horrified to see the amendment turn into a weapon against health care and other such benefits, I'd like them to say so loud and clear.  I'd like them to champion measures to save gays and lesbians from this further assault, even if it means a new constitutional amendment.  Even though I myself vigorously support gay marriage, I've taken those voters and public figures at their word.  Contemptible deception won their votes for a constitutional amendment.  The attorney general has now explained that that amendment has precisely the legal force they distanced themselves from.

As I say, I'm waiting to hear from them.

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constitutional rights: one

Don Herzog, Herzog: Constitutional Rights: March 18, 2005

Ah, the logistical nightmares of blogging.  I faxed a request over to Central Casting for a scruffy radical.  I needed him to help me dramatize some unhappily abstract but crucial points about constitutional rights.

I figured they'd send a Marxist, maybe with Gulag experience or some expertise with Semtex, surely needing a shave.  Imagine my baffled consternation when a tofu-eating, Birkenstock-wearing guy in tattered blue jeans and a tie-dyed t-shirt showed up.  "Hey!" he said jovially.  Hey, I responded rather more lackadaisically.  "Oh, I know," he said.  "Sorry, Marxists are in short supply these days.  They all get enlisted to masquerade as liberals on right-wing blogs.  It's hilarious, the nearsighted readers always fall for the pathetic disguise.  But I'm for real.  I'm a libertarian.  Yeah, sure, free markets are great.  Whatever.  But mostly I'm into legalizing drugs."  He flashed his NORML button and hinted that he didn't draw the line at soft drugs.

I brightened:  we were in business.  Readers, say hello to Lib.  Lib, say hi to our friendly readers.  Now, everyone, we're going to troop off to the public park and watch Lib scream about legalizing heroin.  There some state official is going to try to shut him up.  And your diligently pedantic blogger will stand by and explain to you what the law makes of the drama.

Skit the first:

Lib:  You ought to be able to buy heroin at the corner store!  Your kid, too!  The state tramples on your chemical liberties!
Cop:  Hey buddy, you can't say that here.  I don't like it.  Clear out.

The cop has just violated the first amendment.  The state may not shut Lib up because it disapproves of what he has to say.  He has not come close to what would count as criminal solicitation or advocacy; he is merely preaching an abstract doctrine.

Skit the second, in which Lib, who really can spout more diverse and entertaining slogans when he needs to, sticks to the tried and true:

Cop:  Hey buddy, you can't say that here.  I don't care myself, but [pointing to horrified social conservative parents and their kiddies by the play structure] those nice folks over there don't like it.

Our intrepid cop has once again violated the first amendment.  The state also may not shut Lib up because others disapprove of what he has to say.  The law calls this a heckler's veto and rejects it.  That's interesting, given our general commitments to having the state respond to what most of its citizens want.  But it's well (and properly) entrenched in the law.  Nothing will change, either, if the families take off in a huff.  That is the state can't justify shutting Lib up by saying he's making the park unusable — at least not if the reason they leave is that they dislike what he has to say.

Skit the third, Lib as before, but with megaphone:

Cop:  Hey buddy, clear out — you're too loud.  Township ordinance says no noises over 68 decibels in the park.  I don't care if it's you yammering about heroin or a boom-box playing music or a jackhammer.  Not in the park.

There could be a first amendment problem here.  If the state rammed through the ordinance in order to shut Lib up, they can't do it.  The law will be interested in sniffing out the possibility that the ordinance is a pretext masking that illegitimate motive.  But given how sensible the ordinance is, it will be hard to show that.  Similarly, there could be a problem if the state selectively enforced the no-noise ordinance:

Lib:  Judge, it isn't fair.  Every Thursday there's a rock concert in the park.  There's a guy who likes to do his metal working outside, and believe me some of that equipment is incredibly loud.  They don't get evicted; I do.  Come on!

In principle, Lib's appeal should win — if he could show that the reason he's treated differently is what he's saying.  But it is very hard to prevail on a showing of selective enforcement, because courts credit the other branches of government with acting in good faith, and accident or sensible discretion, not only opposition to his views, could explain the outcome Lib complains about.  In the usual case, though, the noise ordinance presents no first amendment problems at all.  In a clumsy category I could live without, the law blesses the ordinance as "content-neutral," which just means it isn't worried that the ordinance is "frankly aimed at the suppression of dangerous ideas," as the Court put it in 1950.

Skit the fourth, Lib developing repetition compulsion but still delivering his ardent plea for vending-machine heroin with gusto:

Cop:  Lib, moms, dads, kids, everyone:  out of the park!  Time for the monthly insecticide spraying.

No constitutional problem, unless the park department brought out the spray equipment to make Lib clear out, and the cop cleared everyone else out just to cover up the park department's pretext.  But if it's a regularly scheduled spraying, say, the law effortlessly approves it.  Sometimes the law in these settings worries about whether Lib has a reasonable alternative for getting out his message, but let that complication go.

Notice that Lib is silenced just as effectively in the third and fourth dialogues as he is in the first and second.  So — this is crucial — the first amendment isn't implicated by silencing as such.  Everything here depends on why the speaker is silenced.

Ladies and gentleman, a round of applause for my obliging assistant, Lib.  Lib, don't blush, it's okay.  Now let's join Lib as
yikes!  Nothing politically interesting has happened yet.  This is all preface.  And damned Lib has wandered off to get high — what does my contract with Central Casting provide?  Anyway, he's in no shape for any further dialogues.  When he's lucid again, I'll march him back onstage to do some more work.  Keep your fingers crossed that he doesn't get busted, will you?

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March 15, 2005

Justice Scalia's blooper

Don Herzog, Herzog: "A Christian Nation?": March 15, 2005

I finally got around to reading the oral argument in Van Orden v. Perry.  That's the challenge to the Texas legislature's display of the ten commandments on the grounds of the State Capitol.  (The display in question is a 6' by 3' slab of pink granite, which you can glimpse here.)  Spare a moment, please, for unabashed celebration of equality under the law in this country:  whatever you make of the merits, Van Orden is homeless and his license to practice law has been suspended, but there he and his cause are, before the high court of the land.  The Supreme Court heard the case on March 2.  From an exchange between Justice Scalia and the lawyer arguing that the display violates the establishment clause:

JUSTICE SCALIA:  You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are.

The joke doesn't surprise me:  Justice Scalia is frequently witty.  But what followed is startling.

But first, let's back up.  (These professors! always fussing over context.)  Where does government get its legitimacy?  Medieval Christian writers argued that the authority of the state descends from God.  Modern theorists replaced that view with the claim that political authority ascends from the people.  Thus the consent of the governed and social contract theory.  You can see the transition in John Locke's Two Treatises of Government.  Locke explains that when the government is oppressive,

the sufferers ... having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.

Before democracy, ordinary men and women were humble subjects, not proud citizens.  Medieval theorists had asked what subjects could do if they were ruled by a harsh tyrant.  They couldn't vote the scoundrel out of office.  The theorists' answer was the appeal to heaven:  they should pray and repent for their sins, and God would mercifully lift the scourge.  Locke subverts their language, because he clearly means that the people should take to the battlefield.  Yes, you can say he imagines that providence will award the victory to the deserving.  But Locke's predecessors would have been appalled to see their language used to license civil war.

This wasn't just the nattering on of spacey theorists, either.  It was real politics.  In 1609, James I instructed his first parliament that

The state of monarchy is the supremest thing upon earth:  For Kings are not only God's lieutenants upon earth, and sit upon God's throne, but even by God himself they are called Gods.

In 1624, James referred in passing to "Christ, in whose throne I sit in this part of the earth."  His son, Charles I, ran into increasing conflict with Parliament over taxation and, later, control of the militia.  So he turned to the glorious old tradition to build public support.  Archbishop Laud's canons of 1640 directed English ministers to instruct the faithful, four times a year, that

The most high and sacred order of kings is of divine right, being the ordinance of God himself, founded in the prime laws of nature, and clearly established by express texts both of the Old and New Testaments.

Civil war broke out in 1642, and in 1649 Charles I was put on trial for his life.  The Puritan radicals insisted he had violated his contract with the people.  An imperious Charles bluntly rejected any such contract, refused to plead, and sniffed disdainfully that he was accountable only to God.  They killed him anyway.  Locke wrote the Treatises in part to urge a similar insurrection against James II, even though they weren't published until after the Glorious Revolution.

News flash, or, dubious blast from the past:  like the medieval theorists, like the Stuart monarchs, Justice Scalia doesn't believe that political authority ascends from the people.  Here's what follows his joke.

JUSTICE SCALIA:  And when somebody goes by that monument, I don't think they're studying each one of the commandments.  It's a symbol of the fact that government comes derives its authority from God.  And that is, it seems to me, an appropriate symbol to be on State grounds.
MR. CHEMERINSKY:  I disagree, Your Honor.  For the State to put that symbol between its State Capitol and the State Supreme Court is to convey a profound religious message....
JUSTICE SCALIA:  It is a profound religious message, but it's a profound religious message believed in by the vast majority of the American people, just as belief in monotheism is shared by a vast majority of the American people.  And our traditions show that there is nothing wrong with the government reflecting that.  I mean, we're a tolerant society religiously, but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about.

There are different claims here.  Justice Scalia appeals to "our traditions."  He urges that the "vast majority" may "express its belief that government comes from God."  (This blatantly implausible claim about what the vast majority believes reminds us why the law is reluctant to let judges take judicial notice of facts not on the record.)  But — it bears repetition — he asserts in his own voice "that government comes — derives its authority from God."  That, he tells us, is a "fact."

It may be a fact, though it won't astonish you to learn that I rather doubt it.  But it is emphatically not the premise of our Constitution, which of course opens:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Yes, yes, the Declaration of Independence opens differently:

When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Not even that language, though, means that government comes from God.  At most, it means a morality underwritten by God permits the colonies to split away from the British empire and declare independence.  But they will then be establishing their own government.  Then too, Justice Scalia might have remembered Justice Marshall's imperative:

we must never forget that it is a constitution we are expounding.

There's a lot to say about what's right and wrong with the Court's current establishment clause jurisprudence, on which everything hangs on whether the government is endorsing religion.  But there's no room in constitutional law for Justice Scalia's claim that political authority descends from God.  He may believe it off the bench, and you may believe it too if you like.  But our constitution and our constitutional law do not proceed on those terms.  Sorry, but you win no points by observing that it's long been conventional for the preamble to have no legal force.  Unless, that is, you can show me that the Declaration's opening does have legal force, and unless you can wring out of it some drips and drops of the descending theory of legitimacy.  (Good luck.)  And unless you can explain why the constitution vigorously rejects religious tests for holding public office.

And sorry, I'm not feeling paranoid or hysterical about this.  I am not cowering under my chair waiting for the theocrats to whip me along to church, burn me at the stake, or put me in the pillory.  Nor am I forecasting that after a few appointments from President Bush, the Court will rule democratic decision-making a blasphemous mistake and replace it with the will of God even if the president has already volunteered his view that you need a "relationship with the Lord" to serve in the White House.

But I also think that the language we use in politics and law is crucial.  It would be good if all of us — left and right, secular and religious — could agree that Justice Scalia, whose work on and off the bench I much admire, pulled a blooper.

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