14th Amendment vs. the Commerce Clause

More Perfect, a podcast about SCotUS from the Radiolab folks, has a recent episode that really got me thinking. (I highly recommend this podcast, by the way.) The short of it is that progressives have had a lot more success invoking the Commerce Clause than the Equal Protection Clause. In case you've forgotten your high school civics, here are the two excerpts of the Constitution:

Commerce Clause (Article I, Section 8, Clause 3)
The Congress shall have power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....

Equal Protection Clause (Section 1 of the Fourteenth Amendment)
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It occurs to me that only under Capitalism would we find more success arguing for social justice using a call to economic harms rather than calling on basic human rights and dignity directly. Capitalism alienates humans from those very things that make us human, including from the products of our work but also our humanity itself. Moreover, there is a great, though understandable, risk in relying on capitalistic strategies instead of human strategies. Justice delayed, after all, is justice denied. Our dreams should not be deferred. However, a moral demand for dignity is not easily overcome. Once you have convinced others that people should be treated justly because they are humans, the only way to remove that justice would be to argue that some people are not, in fact, humans or that humans have no right to justice. Tortured arguments based on economics are vulnerable to the changing fashions of textual interpretation. In short, our use of the Commerce Clause is risky, even if expedient.

What Happens When We Really Do Come for Their Guns?

The notion that "They're coming for our guns!" seems sadly destined to end up being a self-fulfilling prophecy. Let me explain. It is inevitable that at some point in the foreseeable future the disproportionate reality of gun violence in the United States will move voters to force our lawmakers to restrict gun ownership. The tides have long been in that direction (see here and here). There have been decades worth of chances for the NRA, other lobbying groups, and individual gun owners themselves to engage in meaningful debate and compromise; instead, there has been entrenchment, absolutist grandstanding, and polarization. In addition, the US has lots of guns out there. In fact, we have nearly twice as many guns per capita as the closest ranking Western industrialized country (i.e. Switzerland, though there are peculiar restrictions there). (Oh, and the US has nearly 17 times the gun homicide rate as Germany, the closest ranking Western industrialized country.) (Oh, so even though there are almost nine guns in the US for every ten people, those guns are owned by only one in every three people in the US; in other words, a shit ton of guns are owned by a minority of Americans.) Given the state of discourse and the fact that there are so many guns already out there in the US, any meaningful reform will almost certainly mean recalling guns; otherwise, "many" guns will circulate, both legally and illegally, for decades. Of course, even the thought of the government recalling firearms will inevitably be met with hyperbolic diatribes. Just compare to the status quo, under which no reasonably powerful person has ever actually called for anything more than hypothetical restrictions on future gun sales. Even that has sparked battle-cries along the lines of "from my cold, dead hands!" Imagine the reaction when people do actually come for their guns. There will most certainly be a temporary and reactionary increase in violence, which will be used by the pro-gun lobby to argue that the recall had been counterproductive and that we need to return to when there were many "good guys with guns" and even to increase beyond the historic high of guns in circulation. Both the short and long term are fraught, and it didn't have to be that way.

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See here additionally for a good breakdown of the stats.

UPDATE (12/4/2015): To clarify, by "recall," I did not mean a wholesale recall of all firearms, only a recall of excess firearms.

Surprises among the Corn in Indiana

This post is a little less critical than usual, but I'd like to ruminate a bit. I've got to say that I'm quite surprised by (and proud of) the rapid and vociferous response to the so called Religious Freedom Restoration Act in my previously-adopted home state, Indiana. It's also heartening that the backlash seems to have affected similar legislation in Arkansa and my current home state, Georgia. Like much surrounding the public opinions regarding LGBT* issues, the surprising thing is not that attitudes are changing but that they are changing so quickly and, moreover, that the changing beliefs seems to be motivating political behaviors in a day of Facebook likes, Tinder swipes, and Instagram hearts. Given these rapid changes, it will be interesting to see where things head from here--especially if SCotUS rules stupidly.

It's All Greek to Meme

The Supreme Court heard arguments last week about the opening prayer of the Town Board in Greece, New York. SCotUS seems to be focusing on two questions. First, is sectarian prayer in a state setting coercive? Second, does the First Amendment prohibit the state from adjudicating the sectarian nature of the language invoked in public prayer? In other words, should that government be in the business of saying prayer A is too divisive and, thus, censored while prayer B is relatively inclusive and, thus, permissible.

First, on coercion, the most sociological of the two questions. The framing here as "coercive" is oddly limiting in that it sets a bar that is inexplicably high. The hegemonic influence of many religions (but especially of Evangelical Christianity) can be quite deleterious without reaching the heights of overt force or threat typically required of coercion. I've written before on Christian privilege, though, so I won't rehash those arguments here. In addition, prayer has been framed in the arguments as being inherently "offensive" as one can never please all the people all the time. The idea that sectarian prayer is offensive, however, is a straw-man framing. I've written (here and here) about "offensiveness" previously as well.

Finally, on government censorship, a decidedly legal question but one with quite practical implications. The answer that many commentators seem to be giving is that the government should not be in the business of regulating prayer and that this means that the Court should rule that, essentially, anything goes. This seems absurd to me. The obvious alternative is this: if some prayer is sectarian, and thus inappropriate in public meetings, and if the state can't regulate the content of the prayer, prayer does not belong in public meetings. The presence of prayer in government forums is problematic; its absence is not.

A Real Post in Celebration

OK, so yesterday, I thought the sky was falling. While all of the awful things that I listed then are still happening and the overall situation is still dire, we do have reason to celebrate today. SCotUS has forced the federal government to recognize homogamous marriages (which means extending more than a thousand federal benefits to all married couples) and essentially revived legal homogamy in California. Some are arguing that it looks as if the Justices have set the stage for a future decision in which they could require all states to recognize homogamous marriages. I speculate that they felt that doing so in this ruling would have gone "too far, too fast," as Ginsburg recently lamented regarding Roe v. Wade. I disagree that a more sweeping ruling in this case would have been overreaching; however, this was a major step in the right direction.

New Controversy with Religious License Plates

I've posted before about religion on license plates. A new license plate in Oklahoma has prompted a Methodist pastor to sue the state for violating his religious liberty. The image on the plate is a reference to a regionally-well-known Chiricahua myth about a warrior who shoots an arrow into the sky that had been blessed by a medicine man to end a drought. The plaintiff claims that he is being forced to promote a "pagan" religion.

There is a great irony in this suit, which makes it both a great test case and illuminating of the issue. If the case succeeds and the courts decide that this is an unreasonable infringement on an individual's religious expression, it will undoubtedly mean that people will challenge the other religious plates, including the "In God We Trust" plates. And here is what makes it illuminating. Theologically conservative religionists who are not Chiricahua have a point here; this is not their religion, and the state should not endorse it in this official capacity; however, it is theologically conservative Christians who support the Christian-themed plates and fail to see why it is offensive to those who do not share their religion. The separation of church and state is a compromise in which I promise not to ask the state to endorse my religion as long as you don't ask the state to endorse your religion. It's very pragmatic and, ultimately, self-interested. (See here for a previous post on that topic.)

I imagine that some will argue--including, likely, Oklahoma in this suit--that the image is primarily historic and not religious in nature in the same way that an image of the Pilgrims on a Massachusetts license plate would be primarily about early-American history and not an endorsement of Calvinist Congregationalism. However, the Chiricahua are an active tribe with many members who still practice the ancient animist religion. Ironically, to argue that the plate is a way to honor the history of Native Americans is to erase their present existence and to denigrate them today.

The Story of England Is Not the Story of America

I was recently watching the Story of England, a documentary on PBS. It's quite good and worth the watch, but one thing that the host, historian Michael Wood, mentioned caught my attention. He talked repeatedly not just of the "rights" of English citizens but also their "duties." In the United States with our libertarian leanings, we are obsessed with our rights as individuals and often enumerate them: religion, speech, press, assembly, petition, gun-ownership, etc.; however, we almost never worry ourselves over our duties as part of a collective. No wonder one nation has single-payer, universal healthcare and the other has something less-than.

Passing Processions

I learned something interesting a few weeks ago. I was heading back into town on my daily bike ride when I was approaching one of the several funeral homes we have here. A police office had her squad car blocking one lane of traffic while she stood in the other, directing a procession into the street. I, in the midst of a workout and not wanting to leave my target heart rate zone, was readying to pass the squad car when the police office stopped me. I immediately asked her if that was legal. As I have written about before, I worked for a summer in a cemetery in my hometown of Saint Joseph, Michigan, and learned that, while never enforced, it was technically illegal for cars to stop for a passing funeral procession. She informed me that in Baldwin County, Georgia, it is in fact punishable with a $150 fine! She also felt the need to add that since Baldwin Co. was such a "small, close-knit community," it was that much more important. (We were counted at about 44,000 people in the most recent Census.) We exchanged pleasantries, she thanking me for complying, and I thanking her for the information, and I waited for the procession to pass. (I got stopped again by the same procession a few blocks later as it meandered its way through town.)

It occurred to me that these are some pretty big differences in cultural practice. Laws are symbolic and tell us a lot about the values of a given people. How to account for these differences? Is it urban/rural? Midwest/South? contemporary/traditional?

It reminded me of this analysis of tweets about beer vs. tweets about church. People in the Northeast and Midwest love their beer. People in the Southeast (i.e. Southern Baptists) and in Salt Lake City (i.e. Mormons) love their church.

Supreme Speculation

So, what's going to happen with SCotUS and healthcare? From what I understand, there are three likely outcomes. 1) The Justices will uphold Obamacare, a win for PotUS and Democrats (and the nation). 2) The Justices will strike down the so-called individual mandate and also take an axe to the related items, like requiring coverage of preexisting conditions, a win for Tea Party Republicans but only a comparatively mild defeat for PotUS and the Dems (although a major loss for the nation.) 3) The Justices will strike down the individual mandate but allow the related items to stand, a major defeat for PotUS and the Dems (and the nation).

Why, exactly, would the third option be so horrible? The Affordable Care Act does indeed increase government spending over the medium term; however, it increases spending at a much slower rate than the status quo, in effect lowering the nation debt. It does this by giving the government more bargaining power and cost control and by spreading out the costs among the ill and the healthy. Without the individual mandate and as has been the case in states with this situation, the cost of insurance will skyrocket. This turns a major political/moral victory into a liability. Why a liability? A system that must accept all comers but that cannot compel participation puts Congress in a dilemma. They can either A) allow the provisions to stand, knowing that it will cause insurance rates to balloon, or B) gut the Act, returning those with preexisting conditions to the draconian realities of the status quo.

That decision will be bad enough, but throw the politics of Republicans vs. Democrats into the mix, and my fear is that it gets even uglier. One or both parties could decide to make this decision a weapon. The Republican controlled House could either gut the law as they have always desired or refuse to gut it as to be able to (for the first time accurately) claim that the Affordable Care Act increases the national debt. The Democratic controlled Senate could allow the remaining provisions to stand and blame the added debt on the most conservative SCotUS in modern history or gut the law and use the legal and political fallout as campaign fodder. All of these options are deplorable on several levels.

If I were a betting man, I'm not exactly sure where I'd put my money. Immediately after hearing and reading about the three-day marathon arguments, it seemed to me and many others like option 2 was most likely. After hearing more analysis from lawyers and scholars, I'm cautiously optimistic that option 1 is plausible. In part, I feel this way because of what it is to argue in front of the Supreme Court. It is theater. It is posturing. Justice Thomas doesn't really play along, but everyone else asks questions and challenges the attorneys who make their arguments. It could be that Kennedy, and possibly others, were grilling the Solicitor General to signal a seriousness and a thoroughness and to avoid any claims of impropriety after a decision is rendered. Perhaps I delude myself.

I am terrified that option 3 is equally likely, though.


Here are a few other pieces that you should read:

• Reinhardt at Economix on the "logic" of the potential SCotUS decisions and the irrationality of the anti-mandate argument
• Krugman's NYTimes column on the widespread misunderstanding of the mandate narrowly and Obamacare broadly
• Reich's blog post on a political alternative available to congressional Democrats

The Values and Language of 1790

Last week, I attended a talk on campus by Gary. J. Simson, dean of Mercer University School of Law. It was the keynote address for Constitution Week here at Georgia College. One of my colleagues, a political scientist, was surprised to see me there. "I didn't know sociologists cared about the Constitution," she said. "We do," I responded, "when we're tearing it apart." In that spirit, I had a couple thoughts.

It occurred to me that, essentially, we have crystallized the values and the language of a handful of white men who lived in 1790. Forgetting for a second about the "how," why do we feel compelled to defend this?

I fear what will happen as the rise of spirtualism vis-à-vis religion (i.e. individualism over communalism) confronts Constitutional law regarding "religious" practice. Does the Constitution protect "Sheilaism?" Is an individual's spirituality an "establishment of religion?"

Who Is Responsible for the 14th Amendment?

There's been a lot of discussion lately about how the president should deal with the possible failure of Congress to act on the too-low debt limit. Some have suggested that the 14th Amendment grants the president the authority to simply up the debt limit himself. Here is the actual text of the amendment:

The validity of the public debt of the United States...shall not be questioned.

President Obama has made it clear that he does not agree that the Constitution grants him this authority, and as a former professor of Constitutional Law, I would have to bow to his judgment on that one. One thing that I haven't heard anyone mention, though, is that if the nation does default (fully, partially, or technically) who bears the fault? If the president isn't responsible, then the Congress would clearly be in breech of the Constitution. Wouldn't that set the entire Congress up for impeachment or even punishment?

The Dictionary Sucks

I chastise my students when they cite dictionary definitions in their papers. Mostly, I do this because it gives them a false sense of security and blinds them to the processes of how meaning is created and how power is reproduced. (It also often signals that they haven't been doing the assigned reading and/or listening in class.) Turns out, they're in good company, though. The Justices of the SCotUS have been relying more and more on dictionaries over the past two decades. That just seems lazy to me.

"On the Death Sentence" (wonkish)

Kudos to Justice Stevens for his review of David Garland's Peculiar Institution: America’s Death Penalty in an Age of Abolition in which he writes:

The fourth category [of persons in whose benefits legislative imposition of death eligibility must be rooted to be reasonable] consists of the general public. If Garland’s comprehensive analysis is accurate—that the primary public benefits of the death penalty are "political exchange and cultural consumption"—and as long as the remedy of life imprisonment without the possibility of parole is available, those partisan and cultural considerations provide woefully inadequate justifications for putting anyone to death.

However, true to his legal roots, he does make a sociological error in his conclusion, that the social function of capitalism is an "inadequate justification." Political exchange and cultural consumption are, in fact, solidarity generating forms that exist and function completely divorced from the morality of their substance. Ex opere operato. In other words, the ritual of the dialogue is unifying even if the message is divisive. This is a fairly basic sociological principle that is too often ignored in contentious debates like this.

That said, I certainly agree with Stevens substantively, even if not formally. Capital punishment--at least as it is practiced in this country--is unjust.