Sunday, June 30, 2013

In Defense of our Crazy Uncles

This week the Supreme Court issued four big decisions, capping a term that decided 73 cases in all.
  • Shelby County v. Holder:  The voting rights case.  The court held 5-4 that Section 4 of the Voting Rights act of 1965 was unconstitutional.  Section 4 of the VRA established federal oversight of local voting requirements in jurisdictions where the Attorney General determined that there was less than 50 percent voter registration or turnout  as of 1964, 1968 or 1972.  When originally passed, the preclearance provisions were intended to expire after five years, but they were reauthorized by Congress four times, most recently in 2006 for twenty-five years.  Nine states fit the formula of less than 50% registration in 1964, 1968, or 1972,  and continued to be subject to federal oversight, even though each of these states would not fit the formula in 2013.  Roberts majority opinion held that the extension of VRA based on 40 year old facts,  that admittedly have changed, was unconstitutional.  The court invited Congress to update the formula, although it's clear that this is not going to happen in today's Congress.  
  • Windsor v. United States:  The DOMA case.  The court held 5-4 that DOMA's definition of "marriage" or "spouse" as excluding same sex partners for purposes of all federal laws--over 1,000 of them used the terms--was unconstitutional.  Edie Windsor and Thea Spyer had a long term relationship.  In 2007 they were married in Canada and in 2009 Thea died, leaving all of her estate to Edie.  Because of DOMA Edie Windsor had to pay $363,053 in estate taxes which she would not have had to pay if her marriage were recognized by federal law.  
  • Fisher v. University of Texas:  The Affirmative Action Case.  Abigail Fisher was denied entry to the U of T and sued to challenge the decision on the grounds that she was kept out by the school's preference for less impressive minority applicants.  The court held 7-1 to uphold affirmative action programs, but to tighten the standard of review for such programs. The use of race as a classification in affirmative action programs must meet the "strict scrutiny" test; the program must be narrowly tailored to achieve its end; and courts must determine that the the program is necessary and that there is no other realistic alternative.  The justices sent the case back to the District Court to make its determination whether the U of T program meets the standard.
  • Hollingsworth v. Perry:  The CA Proposition 8 case.  Back in May 2008 the California Supreme Court held that California statutes and initiatives which precluded same sex couples from marrying were unconstitutional under California law.  Eighteen thousand same sex couples were married in California, but in November 2008 the voters approved Proposition 8, which said that only a marriage between a man and a woman would be valid or recognized in California.  Proposition 8 was challenged as unconsitutional in Federal District Court and Judge Vaughn Walker found that it violated the equal protection clause of the 14th Amendment of the U.S. Constitution.  He found that "strict scrutiny" was the appropriate standard of review, but that Prop 8 would be unconstitutional even under "rational basis" review.  The state, both under the Schwarzenegger and Brown administrations, elected not to defend the Proposition.  However, the proponents of Proposition 8 were allowed to intervene in the case, as permitted by California law.  This week the Supreme Court held 5-4 that petitioners in the case did not have standing to appeal the case; therefore, Judge Walker's decision is the last word in the case.  
The upshot of these cases is that the nine states and handful of counties that were affected by the voting rights act are no longer subject to special federal scrutiny.  The nine states are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.  These states will still be subject to the constitution, and if they misbehave too badly, Congress may revise the formula in the VRA.  Affirmative action is left in place, but scrutiny of affirmative action programs has been tightened.  DOMA is gone, and good riddance.  And marriage between same sex couples is legal in California and is heading towards being legal throughout the land.  

The outcome of these four cases does not seem radical.  In the political sphere, the left is generally pleased with the outcome of Windsor and Hollingsworth, the right is generally pleased with Shelby, and  Fisher is a draw.  Of course, since these cases are all political at heart, there is much heated discussion.  Looked at through partisan political lenses, Windsor and Shelby are five judges grabbing power to impose their nefarious agenda and overruling the considered judgment of our elected representatives;  Hollingsworth is five justices willfully failing to vindicate the demonstrated will of the people for partisan purposes.  

The matter is complicated by the fact that the alignment of judges fluctuates and the reasoning does not yield readily discernible principles that consistently carry across individual holdings.  Consequently individual judges are accused of political partisanship and intellectual dishonesty.  Their motives are questioned.  

And of course the judges do have political leanings.  

We'd like court decisions to be consistent, principled, and, above all, intellectually honest.  The mere appearance of intellectual dishonesty should be avoided.   We don't want Supreme Court justices behaving like crazy uncles.   Yet, it's hard for them to escape that role.  Forming and holding Supreme Court coalitions together necessarily involves compromise.  And compromise is political in nature.  

As my partner, Bob Goodman has noted, many of the right decisions of the Supreme Court over the last two plus centuries are easy to pick apart.  This would include the grand daddy of cases that first established judicial review: Marbury v. Madison;  it includes cases like Brown v. Bd of Education, and Roe v. Wade.  The right decision is not always the best reasoned decision.  We can't always have our cake and eat it too.  Sometimes it's better to have the right result with a majority than the right reasoning with the minority.

Since one of our four cases comes from the University of Texas,  I leave you with the following kind and illuminating thought experiment by Sandy Levinson, professor at the University of Texas Law School commenting on the court's opinion in Windsor (not the U of T case).  
No doubt it was irresistible for Anthony Kennedy, the senior justice in the majority, to give himself Windsor, given his earlier opinions in Romer and Lawrence.  One consequence, of course, is that he had to keep the support of his four distinctly more liberal colleagues.  No doubt this contributed to the intellectual awkwardness of his opinion.  "Opinions of the Court" often have the characteristic of a camel (i.e., a horse designed by a committee). 
Already there is some of the same kind of nit-picking about the doctrinal problems with Windsor as there most certainly were with Romer.  I.e., Kennedy wants to avoid a straight-forward equality argument that would inevitably mean that state prohibitions of same sex marriage are unconstitutional (or, at the very least, that Section 2 is just as invalid as Section 3 inasmuch there can be no constitutionally legitimate reason for Texas, say, to refuse to recognize the validity of a marriage entered into in New York by people who then move to the Lone Star State).  At the same time he no doubt realized that he couldn’t get a single additional vote if he predicated the opinion on a “reserved powers of the state to define marriage” argument, though he certainly included some blather about traditional state sovereignty and marriage.  So we get the combo that leaves many people who take legal doctrine overly seriously confused (though I presume we all predict that some time in the future  the Court will go after then now-outlier states that are sticking to heterosexual marriage as the exclusive norm). 
But what if he had given the opinion to one of the moderate four?  Surely, she (or Breyer) would have emphasized equality and downplayed the federalism argument  (assuming it was even mentioned it at all).  So would we have had a 4-4-1 outcome, with Kennedy playing Powell’s role in Bakke, providing the crucial 5th vote on a theory rejected by all the rest of his colleagues?  This is, of course, basically what happened inParents Involved.  So the (altogether serious) question is whether we are better off with the “Opinion of the Court,” however intellectually problematic in some ways, than with an undoubtedly more intellectually satisfying and coherent opinion written by any of the other four members of the majority that would not, however, received the label "Opinion of the Court."
It's a tricky business this crafting of Supreme Court majorities in a divided country and on a divided court.   We should not be too quick to impugn the motives of the justices in these cases based on their expressed reasoning.  These are political cases in nature as well as legal.  It's okay to have competing political backgrounds and views.  We should, above all, keep our eyes on the bottom line.  I can live with the bottom line of these four cases.  
 


Saturday, June 29, 2013

From Waves of Plutocratic Feminism to Universal Day Care and other Transfer Payments

Stephen Marche, in The Atlantic magazine reacts to the current "plutocratic wave of feminism" illustrated by Facebook CEO Sheryl Sandberg's book "Lean In: Women, Work, and the Will to Lead."  Marche is one of those stay-at-home dads who gave up a tenure track professorship (Shakespeare studies) in New York so his wife could take a job as a high flying magazine editor in Toronto.  He tagged along and became a freelancing house husband.  He's not entirely okay with that.

Successful families, notes Marche, are families where both couples work and successful countries are where women work too.  He is backed up by a 2006 data base assembled by the Organization for Economic Cooperation and Development.  I believe it, and I'm all for career and hard work and not holding anybody back.  But his article, "Home Economics:  The Link Between Work-Life Balance and Income Equality" is misnamed.  Thinking about how both adult members of a family unit can have successful careers is not thinking about how to have work life balance, it's thinking about how to outsource child rearing.

Indeed, he suggests that the solution to his dilemma is universal, high quality state subsidized day care.  I think he's onto something, but not for the reason he states.

His personal choice to become a house husband, says Marche, had nothing to do with power relationships between men and women;  it's about opportunities and the fact that his wife's job happened to pay twice as much.   He was saved, says he, by subsidized day care available in Toronto.
The key fact of our story, the overwhelmingly most important factor in our personal gender  politics, is that in Canada, we have access to high-quality, modestly state-supported (though far from free) day care. Of all the privileges my wife and I gained, our boy being in a safe place we could afford between nine and five was by far the greatest. It’s why this story has a happy ending; it is the thing that enabled me to build a new career for myself. Day care is not theoretical liberation. It is the real deal, for women and men alike.
But that part of us that is still uncomfortable with the concept of house husbands would suggest that having both husband and wife "lean into" careers with gusto while we outsource the kids to day-care does not particularly advance life-work balance for a family.

For most this isn't about careerism.  Professors, doctors, lawyers, muckety-muck editors, and successful business persons who don't want to sacrifice their careers for family aside, there is the underlying reality that for the vast majority of the work force in 2013 a single income just doesn't cover a family's needs.  The median hourly wage for all occupations in the U.S. is $16.71/hour.  This means for those who are able to find full time work, more than half the working population earns less than $31,000 per year.  With health care costs for a family of four approaching $19,000/year  that leaves $12,000 for food and rent.  Marche speaks of how the 50's husband coming home after work to a drink and rounds of golf at the country club on weekends is gone.  Did that ever exist but as a stereotype?  The point is that for the vast majority of the population a single working household is a non-option.  It's not about fulfillment, it's about survival.

So Marche is right about day care.   If the economy cannot produce enough high paying jobs to allow traditional family units with one breadearner, whether it be man or woman, then we had better provide high quality and universally available day care for children.  This, of course, is a transfer payment from the rich to the majority of workers.  But if the economy cannot produce enough good paying jobs, then we must start looking for more ways to effect such transfer payments.

Marche has an interesting observation about how to sell this politically:

As long as family issues are miscast as women’s issues, they will be dismissed as the pleadings of one interest group among many. And truly, it’s hard to see, at least in terms of political theatrics, why the complaints of the richest and most successful women in the world should bother anybody too much. Fighting for the American family is another matter. When gay-rights activists shifted their focus from the struggle for their rights as an oppressed minority to the struggle to create and support families, their movement experienced nearly unprecedented political triumph. It is easy to have a career as an anti-feminist. Force the opponents of day-care support and family leave to come out instead against working families. Let them try to sell that.
Fighting for the American family, therefore, is the right place to focus; the American family needs transfer payments from the wealthy to have any realistic shot at work-life balance.  Universal quality day care, affordable medical insurance, inexpensive (i.e. subsidized) transportation, and universal free quality education that doesn't leave our kids with mountains of debt are things that the American family needs.  If after all that, the economy can cough up nothing but minimum wage jobs for most and super-compensated positions for the few at the top, so be it.  We can make it work.  But the rich will have to pay.

I am currently reading Peter Brown's Through the Eye of  a Needle  which studies the habits of giving by the wealthy in the Roman empire, and how these habits were instrumental in building up the Christian Church in 350-500 AD.   Rome had tremendous wealth, and most of it was concentrated at the top.  The empire made this work, in part, through a strong tradition of giving for the public good.  None cared about the manner in which wealth was acquired.  Surely then as now much of wealth accumulation was not pretty; but everyone cared about how wealth was used.  The citizens were sustained by that wealth with annual doles of grain, the construction of the vast aqueduct structures, public baths, and spectacular games.

The Roman citizens accepted this dole not as beggars but as proud citizens.  The wealthy did not give in order to transfer to the poor, but they gave because that was their role.  In this vision there was no place for the concept of "welfare queen."   In this world there was no place for the concept of "soak the rich."  Transfer payments is just what successful Romans did.  It's how they celebrated their wealth.  From patrician senators to waves of plutocratic feminism, to universal day care.  The world continues to turn in circles.
 

Saturday, June 15, 2013

On June 13, 2013,  British Parliament backbenchers held a hearing to reflect on the 10th anniversary of the Iraq Invasion. The hearing included a great speech given by Rory Stewart, Tory MP for Penrith and The Border, in the county of Cumbria, North West England. He spoke to how the British foreign party apparatus (and the U.S.) got the war on Iraq wrong ("worst decision since the Boer War") and what should be done by way of reform. It's not just Bush and Blair, he says.  What do we need to make better foreign policy decisions?

Stewart is well qualified in his observations. He served as a senior coalition official in a province of occupied Iraq in 2003-2004. He wrote a book about that experience, The Prince of the Marshes (also published under the title Occupational Hazards). In 2002 he walked across Afghanistan, and wrote The Places in Between about that experience. He served as Executive Chairman of the Turquoise Mountain Foundation, a British charity that is active in Afghanistan and focuses on cultural development in Afghanistan. His observations are, of course, equally applicable to the U.S. If you have any interest in our foreign decision making capacity, it's well worth listening to.

His speech starts at 1h31mins of the video below.


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Saturday, June 1, 2013

When the Boys are on Parade


A Distant Mirror: The Calamitous 14th Century” (1978)
by Barbara W. Tuchman
Knopf, 678 pp.

After forty years with an all-volunteer army, not many of us know sons and daughters who have fought and died in Iraq or Afghanistan.   The 6,518 killed during a decade of a war on Terror do not dent our consciousness.   The number slightly exceeds those who died on 9/11, but it’s only .004 of the $1.3 million who have died serving the United States Armed Forces since 1776.  The heavy tolls came in the Civil War, the First and Second World Wars, in Korea and Vietnam.

Each year, we celebrate, honor, and remember those fallen soldiers on Memorial Day, on the last Monday in May.  There are parades, political speeches, drum and fife bands, food, and festivals.  This year friends posted the Gettysburg address on Facebook.  A very few read the names of the fallen who served with their sons in Helmand Province, signaling honor and respect.  

Alan Jabbour, a great fiddler, was a folk archivist at the Library of Congress.  His wife is a photographer.  After retirement, the Jabbours have conducted field research on what used to be called “Decoration Day.”  They have noted that the tradition of Decoration Day, which is still observed in the Southern Appalachian mountains, contains a profound religious element. Decoration Day is a day for landscaping cemeteries, placing flowers at grave sites, giving speeches, listening to music, having a picnic, and prayer.

But beyond description and tradition, what is this holiday?  In no small part, Memorial Day is a cult of the soldier.  It celebrates the deceased as heroes, brave patriots, and our honorable representatives.  We project our ideals, our hopes, and our fantasies onto these dead souls we did not know.

Tuchman’s book “A Distant Mirror,” like Memorial Day, is a celebration of dead souls we did not know but that somehow speak to us.  What do they say?

The 14th century, as depicted by Tuchman, was the final disillusionment with the Age of Chivalry that dominated the middle ages.  It’s when it all came apart.  The level of dissonance between the teachings of the Church, the ideals of feudal society, and the reality of life reached a breaking point.  Historian Lawrence Stone, in his 1978 review in the New York Review of Books, put it this way:

“Rarely has the gap between the ideal and the real been so large. Knights talked about chivalry, but regularly practiced treachery, murder, rape, and rapine. The pope walked up and down reading his breviary to the background accompaniment of the screams of cardinals being tortured to extract confessions about a suspected plot against him. The Church preached poverty and chastity, but the high clergy openly wallowed in opulent luxury and endowed their bastards with the spoils of fat clerical livings, while the poor friars enjoyed an apparently deserved reputation as habitual seducers of married women. Kings talked loftily about just wars, but took care to hire and browbeat lawyers and theologians to invent a case for them. 
Once war began, it was very far from a chivalric affair.  … War consisted of the rape and massacre of the defenseless civilian population, the pillage of all movables, the destruction of villages, crops, and cattle, the killing of prisoners, the sack of towns. War was designed to win booty and to force the enemy to pay huge sums in return for cessation of the destruction: it was a system of calculated blackmail by threat of genocide.”

This drama of hypocrisy played out against a backdrop of the hundred years war between the English and French kings for the French crown, the installation of French popes in Avignon, the resulting schism in the Church, the Black Death, which killed perhaps a third of humanity from India to Iceland in the second half of the 14th century, and the final, lackluster but still deadly, crusades. 

What message do these dead souls hold for us? The image that is reflected on this distant mirror comes into focus in Tuchman’s book: “This is folly!”  The human failings, the lack of legitimacy in the power structure, the self-serving nature of the wars, the oppression and devastation that all this warfare imposed on society, but above all, the emptiness of the idealism that sustained it, are plain for all to see from this vantage point.  We can do ever so much better.  

We can do better, yet the year of 1978, when Distant Mirror was published, is not so far removed from the carnage of World War I, World War II, the Russian Gulags, the Chinese cultural revolution, Korea, and Vietnam.  In Cambodia, the killing fields were in full bloom.   The book was published at the height of a cold war between the United States and Russia that featured a nuclear arms race.   There was anxiety over a potential nuclear Armageddon.  Three Mile Island, Helen Caldecott, and the Beyond War movement were just around the corner.  In other words, we were in the thick of it. 

And in the thick of it, when we celebrate Memorial Day, we are apt to lose sight of folly. On March 8, 1983 President Reagan delivered his “Evil Empire” speech before an assembly of the National Association of Evangelical Christians.  The wide-ranging speech included the usual recitation of American exceptionalism, that America is the world’s last and best hope, and included a homey variation on “better dead than red.”



 “Let us be aware,” said Reagan, “that while they preach the supremacy of the State, declare its omnipotence over individual man, and predict its eventual domination of all peoples on the earth, they are the focus of evil in the modern world.” 

We fight for God and country.  We are the salvation of the world.  The state, which would declare its supremacy over man, is evil.   Today, in the wake of communism’s collapse, we have replaced Islam as the new evil power that would declare its supremacy over man and aims for the eventual domination of all peoples on earth, but it amounts to the same thing.  When we honor those fallen sons and daughters in Helmand province, is it our ideal of fighting this evil that we honor? 

When we celebrate Memorial Day and look in the mirror to see what ideals, hopes, and fantasies are reflected there, do we see a palimpsest of the calamitous 14th century shimmering there?  As the Marcus Turner song has it:

Some may wonder what’s to fear and
Say there is no danger here
But there has never been a time
When soldiers have not been at war;
And you may well prefer abstention,
But I feel compelled to mention,
You had better pay attention
When the boys are on parade.




"You bet I'm goin' to be a soldier, too, like my uncle David when I grow up"