THE WAR ON RELIGIOUS PLURALISM

A few days ago, I watched Bill O’Reilly assure viewers of his TV show that Christians had won the War on Christmas (TM). “Christians have the right to defend their traditions,” he said triumphantly.

It’s easy to laugh at the excesses of the War on Christmas crusaders (Dan chronicled them well here). But it’s a campaign that’s worth paying attention to. It serves as a sobering reminder of how many of the standard-bearers of the right believe themselves to be spokesmen for a righteous majority besieged by hostile religious, sexual, and racial minorities.

Behind the rhetoric about religious freedom, the demand of the War on Christmas crusaders, as articulated by their most earnest advocates, is that both public and private employees greet people of all religions as if they were Christians. They want schools encouraging teachers to say “Merry Christmas” to their students and department stores encouraging check-out clerks to say it to customers. Having them say the “Happy Holidays” instead, which merely acknowledges the possibility of a multiplicity of religious observances, is to be seen as religious persecution of Christians.

Bill O’Reilly showed a Wal-Mart commercial in which “Merry Christmas” appeared on screen, but declared it only to be a step in the right direction from Wal-Mart because it appeared with the hated “Happy Holidays” and neither was mentioned in the voice-over. This is a few weeks after he showed a (year-old) clip of Samantha Bee on the Daily Show joking about separation of church and state and then sneered “Merry Christmas, Jon Stewart.”

So what we’re facing is self-appointed spokespeople for a majority insisting that everyone, be they members of the majority or not, speak as if that majority encompassed everyone in the country.

As for the real desecration of the values of Christ this holiday season, not a creature on the “religious right” is stirring, not even a mouse.

A generation ago, my Dad got kicked out of his first grade classroom for refusing to write a letter to Santa Claus. Unfortunately, that’s still what some people have in mind when they say “family values.”

Happy holidays to all our readers.

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STOP MY PARENTS BEFORE THEY VITIATE PRINCETON’S ALUMNI BODY AGAIN

If you didn’t know better, you might be concerned to learn that Samuel Alito touts his membership in a group which, based on its literature, seems to see the entrance of women and minority students into the academy as a threat to the university – at least if the university is Princeton:

“Currently alumni children comprise 14 percent of each entering class, compared with an 11 percent quota for blacks and Hispanics,” [Concerned Alumni of Princeton] wrote in a 1985 fund-raising letter sent to all Princeton graduates…”Is the issue the percentage of alumni children admitted or the percentage of minorities?” Jonathan Morgan, a conservative undergraduate working with the group, asked its board members that fall in an internal memorandum. “I don’t see the relevance in comparing the two, except in a racist context (i.e. why do we let in so many minorities and not alumni children?),” he continued.

…the group announced in an early fund-raising pamphlet that its goals included a less-liberal faculty and “a more traditional undergraduate population.” A pamphlet for parents suggested that “racial tensions” and loose oversight of campus social life were contributing to a spike in campus crime. A brochure for Princeton alumni warned, “The unannounced goal of the administration, now achieved, of a student population of approximately 40 percent women and minorities will largely vitiate the alumni body of the future.”…When the administration proposed a new system of residential colleges with their own dining halls, Prospect denounced the idea as a potential threat to the system of eating clubs. The magazine charged that, like affirmative action, the plan was “intended to create racial harmony.”

One might be taken aback that in applying for a promotion in the Reagan Administration, Alito offered as a conservative credential his membership in a group which see students from group traditionally excluded from Princeton (like my parents) as “vitiating” the “alumni body.” But lucky for Sam Alito, former Concerned Alumni of Princeton starlet turned conservative superstar Laura Ingraham is on hand to reassure us that any good conservative would see an influx of Blacks, Jews, and women as a threat to higher learning:

“Stop the presses!” she said. “Sam Alito, a conservative, was once a member of a conservative Princeton alumni group.”

Feel better yet?

THE WEEK IN RESTORING HONESTY AND INTEGRITY TO GOVERNMENT

If Roberts’ nomination was supposed to push perjury and the outing of an undercover agent off the front pages, it hasn’t been entirely successful. We now know that Ari Fleischer (don’t you miss him?) had the memo identifying Plame, that it was marked as secret information, and that he told the Grand Jury he never saw it. And we now know that Karl Rove and Scooter Libby are both under investigation for perjury over their own Grand Jury testimony. And now Time is casting further doubt on claims that Rove heard about Plame from media contacts and reporting one official’s account of “general discussion with the National Security Council and the White House and State Department and others” about Plame.” But they’re not the only ones failing to tell the truth under oath on an issue of urgent public concern. Turns out John Bolton falsely disclaimed having been interviewed about the original Niger forgeries which inspired Rove and company to smear Joe Wilson in the first place. Bolton’s truth problem, unsurprisingly, seems not to have given any pause to President Bush in his plan to bypass the Senate with a recess appointment.

As for Roberts himself, looks like he’s been less than upfront about his role in litigating Black Floridians’ votes out of existence in the name of equal protection. Same goes for his Federalist Society membership, which makes you wonder what other groups he doesn’t remember joining. And most troublingly, he may have told Dick Durbin that he would recuse himself from casting votes to uphold laws or rulings in accordance with the constitution and opposition to his faith, an especially eerie argument in light of his callous, anti-pluralistic advice that students who don’t feel comfortable with sectarian religious observance at their graduations just stay home.

FISH IN A BARREL

Matt Yglesias offers some deserved criticism of Stanley Fish’s peculiar Times op-ed. Fish basically argues that the authors’ “original intent” is the only accepted or justifiable grounds for constitutional interpretation, because words have no meaning apart from the ones willfully imbued in them by writers. For those of you keeping track at home, that’s two false conclusions (everyone believes in original intent, and only people who believe in it are right) based on a false premise (all that’s in my writing is what I intend to put there). As Matt writes:

I write, “I went to the store and bought sex toys.” What I meant to say was that I bought six toys. Nevertheless, I wrote “sex toys” which means something else. There are two kinds of meaning here — the meaning I had in my head, and the meaning of the sentence. We certainly wouldn’t conclude that the sentence as written was meaningless simply because it was the result of a mistake. Indeed, the whole idea that typos, malapropisms, and other mistakes are possible depends on the idea that written and spoken words have objective (or at least intersubjective), public meanings that are distinct from the intentions of the writer/speaker. If the world were the way Fish thinks it is, it would never make sense to say somebody “misspoke” because the meaning of what they, in fact, said would, by definition, be what they meant to say.

While Matt effectively shoots down Fish’s premise, he doesn’t mention what seems to me the most fundamental problem with original intent (as distinguished from the practical, logical, and historical ones): it’s inherently and irretrievably undemocratic.

In a democratic society, the role of a constitution which often exerts a counter-majoritarian check on democratic initiatives is safeguarded by the recognition that that constitution has a democratic legitimacy of its own. Looking ahead, we have democratic means to change the nature of that constitution, though through processes made more difficult by the requirements of that constitution itself. And looking back, the short-term restrictions on our democratic options reflect the long-term democratic choice made by our predecessors to accept that constitution and those constraints. In other words, we accept that the constitution stops us from democratically passing a law granting titles of nobility not only because with a supermajority we could democratically ammend that limitation but also because Americans (the white male ones, that is) democratically chose a constitution with that limitation in the first place.

And what did our forebears ratify? The words of the constitution. Not the original (make that contemporary) intent of its authors. As Frederick Douglass argued 145 years ago, to hold the voters who ratified the constitution – and ourselves – to the “secret motives” of its authors, rather than to the text they ratified, is “the wildest of absurdities.” Even if we could determine what exactly the framers had in mind, we would do well to remember that what the framers had in mind never came up for a vote. And that they had many different things in mind, out of which they compromised on a particular text, likely each hoping it would be understood in a somewhat differently shaded way.

If there’s any original intent that should bear on our reading of the constitution, it’s the original intent of the voters. Here too, though, it bears keeping in mind that a constitution is by nature a democratic compromise among people of differing beliefs to set bounds on future majoritarianism. So while there’s no Rawlsian veil of ignorance in play, there’s at least some haze. In ratifying a constitution, we provisionally inhibit our chances of legislating certain of our majority views in exchange for provisional protection against legislation contradicting certain of our minority views. A, B, and C, for example, may all see fit to paly it safe and ratify a constitution forbidding discrimination against a particular letter, each seeing it mainly as a protection for itself and not for others. To point out afterwards that protecting C may not have been the original intent of 2/3 of voters would miss the point.

We should also remember, sadly, that many of the Americans who for several decades were systematically read out of the constitution were left out of the process of drafting and ratifying it in the first place.

ROBERTS’ RULES

Good news: Edith Brown Clement is not, for the moment, a nominee for the Supreme Court.

Bad news: I’m starting to miss her already.

John G. Roberts’ America is not one which does the best traditions of this country proud.

People for the American Way has compiled some of the reasons why. Among the more troubling of his arguments:

School-sponsored prayer at public school graduations poses no church-state problems because students swho don’t like it can just stay home from their graduations.

Congress can ban flag-burning without a free expression problem because bans don’t prohibit the “expressive conduct” of burning the flag – they just remove the flag as a prop with which to do it.

Arresting minors for crimes for which adults are given citations poses no equal protection challenge because minors are more likely to lie.

On choice, Roberts authored a government brief in Rust v. Sullivan that Roe “was wrongly decided and should be overturned.” As for the Lochner litmus test, he dissented from a D.C. Circuit Court case upholding the constitutionality of the Endangered Species Act. And at least in Law School, he apparently took a very broad view of the “takings” clause, opening the door to dangerous judicious activism targeting popular economic regulations which protect the economic security of the American people.

THE LOCHNER LITMUS TEST

Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.