With Republicans once again blocking presidential appointments, it is understandable that Senate Democrats wanted to eliminate the filibuster for most presidential nominees. However, they have wrongly tampered with an important protection for minority rights with their filibuster "reform."
Of course, the majority ordinarily should prevail in a democracy. However, over a series of many decisions, majority rule can be unfair. As I learned when a member of a legislative minority that had no ability to filibuster, majorities can routinely and persistently shut minorities out of the political process. A 51 percent majority can translate into 100 percent of the power. U.S. Supreme Court Justice Byron White was correct when he wrote that the Constitution is violated when “a particular group has been . . . denied its chance to effectively influence the political process.”
In the past, the Senate’s filibuster rule prevented the majority party from running roughshod over the minority party in Washington. When Republicans have been ascendant, the filibuster protected the interests of Democratic voters; more recently, the filibuster protected the interests of Republican voters.
Undoubtedly, it has been very frustrating for Democrats to watch Republicans stymie President Obama and the Senate majority. Elections have consequences. But the loss of an election should not mean the loss of one’s political voice. It is important that all Americans have a say in the policies that emerge from their government.
Wayne State University School of Law Interim Dean Jocelyn Benson is considering a run for the House seat in Michigan's 11th Congressional District. Benson, a Democrat who joined the Wayne State faculty in 2005, is founder and executive director of the Michigan Center for Election Law. She ran unsuccessfully for Michigan Secretary of State in 2010, the same year she published her book State Secretaries of State: Guardians of the Democratic Process.
Penn law professor Ted Ruger had this to say about his Harvard Law classmate, Senator Ted Cruz:
"He never really had an off switch with his debater’s demeanor,” said Ted Ruger, who was president of the Harvard Law Review during Cruz’s third year. “We just realized that was the way a discussion with Ted was going to go. If you expected something different, you came away shaking your head.”
Follow the link above to learn more about the Ted Cruz Harvard Law Experience.
The op-ed, which will appear in tomorrow’s print edition, is online here. It’s co-authored with Christopher Chabris (who happens to be my husband). Here—where I’m writing only for myself—I thought I’d say a bit about what motivated us and elaborate on a few points whose force may have been blunted by the process of condensing our thougts into our allottted 1,000 words.
The news hook for the article was an August memo leaked to Fox News in which the Obama administration announced that it is looking to hire behavioral scientists to help shape policy. Notwithstanding that the explicit model for this initiative is the U.K.’s “Behavioral Insights Team,” formed in 2010 by Conservative Prime Minister David Cameron, in the U.S., some on the right went completely off the rails about the Obama announcement.
A typical reaction was from Fox News’s Monica Crowley, who described the initiative as “really frightening,” “insane,” “outrageous,” “unconstitutional,” “an Orwellian horror show”—and all of the aforementioned mostly because, so far as I can tell, she believes that nudges constitute a form of “psychological warfare” akin to “what our military does to our enemies.” There are certainly legitimate criticisms of nudges to be made by both the right and the left, but that they are a form of Communist mind control is not among them. (For starters, even if nudges did rely on something like subliminal messages, those messages have been shown to have no effect on consumer behavior, much to the chagrin of marketers.)
The impetus for our piece, then, was to disabuse the Crowleys of the world (or at least that portion of them who are open to persuasion on this matter) of that notion, and then to offer some affirmative reasons why conservatives and libertarians should embrace the nudge (its preservation of all options in the choice set; its ability to incentivize personal responsibility; its efficiency), especially relative to its often perfectly viable alternative: the shove. (To that end, the piece was originally intended for a periodical with a right-of-center audience but wound up in the L.A. Times, where some of it may admittedly amount to preaching to the choir.)
In making our case...
Perhaps you were thinking: Maryland has suprisingly few law schools and Bowie State University doesn't have one. That's a problem with an easy solution! If so, you'll want to back Maryland AG Douglas Gansler in his effort to become the new governor of Maryland. He supports a new law school at Bowie State, an HBCU which is part of the University System of Maryland.
Can't imagine this is his way of managing the recent controversy around him telling supporters in a closed-door meeting that his primary opponent Anthony Brown is running a campaign of "vote for me, I want to be the first African-American governor of Maryland."
That's the claim of this article, which notes James M. Buchanan (he, too, a future Nobel Prize winner) as a second victim. Both were faculty in what was then called UVa's Thomas Jefferson Center for Studies in Political Economy, and according to the article, their offense (and, the article suggests, the offense of the Center more broadly) was exploring the use of "markets to achieve efficient and beneficent goals."
Besides the dispiriting possibility that Coase and Buchanan were edged out for conducting unpopular research, the other (intertwined) thing of note here is the apparent assumption that was made about Coase's personal politics on the basis of his scholarly methodology. Coase reportedly said, of the "secret dossier compiled by then Dean of the Faculty Robert Harris in which Harris outlined a plan to change the economics faculty," that it
was very damning because it makes quite clear what their attitude was and there was actually a policy to get rid of us. . . . My wife once heard someone at a cocktail party describe me as someone to the right of the John Birch society. It wasn't true. You know, I'm English and have a completely different history from most of the other people and am not really much involved at all in American politics.
Would that scholars' work and the arguments contained therein were evaluated on their own terms.
I just returned from a week-long trip to Washington D.C., the highlight of which was a day on the Mall listening to speeches commemorating the 1963 March on Washington and MLK's "I have a Dream" speech from 50 years ago. I was reminded that a week ago, I suggested to our entering 1L students that one aspect of being a law student is that they will never read (or listen) to the news again in the same way. As I listened to speakers who reflected on the changes in American law and policy over the past 50 years, it was an opportunity to reflect on my role as a legal educator.
If I had been a law professor in 1963 (I was only 8 years-old at the time), would I have marched? Would I have been a freedom rider? Would I have used the law school classroom to encourage students to find their voice in the civil rights debate?
. . . and as I considered these questions, I realized that they are as pertinent today as they were 50 years ago. We may not know which issues of our time will be remembered 50 years from now as a crossroad of social change . . . but we certainly have no shortage of issues facing our country . . . immigration, gun control, campaign finance reform, civilian use of drones, NSA surveillance, fair wages, health care, "stand your ground laws", abortion restrictions . . . and the pending question this week . . . possible US military action in Syria.
As law professors, what is our role in these current debates? Will we march? Will we ride? Will we incite civil debate in our classrooms and in our communities?
If you haven't taken the opportunity to listen to the speeches from Wednesday, August 28th (all easily available on YouTube by searching for "50th Anniversary of the March on Washington"), I highly recommend doing so. Most are 2-10 minutes long and are quite though provoking.
I would be interested in your reactions . . .
Via Adam Kotsko, translater of Giorgio Agamben's more recent work, and author of a new piece in the LA Review of Books on reading that work-
The law firm Harris and Greenwell has a library of law and humanities texts on their web site that is definitely worth checking out, including this gem from Kafka:
It is a virtual commonplace of legal theory and the history of legal and political thought today that Jefferson is not to be counted among its great subjects. With the notable exception of Sanford Levinson, constitutional theorists and historians of legal thought today generally pass by Jefferson’s comment to Madison that “the earth belongs in usufruct to the living” as at best an overly idealistic road wisely not taken. David Strauss and Jed Rubenfeld treat Jefferson as a fundamentally unrealistic and anti-historical thinker (by Rubenfeld’s lights, akin to Nietzsche, which is telling), while Stephen Holmes dismisses Jefferson as simply an “anti-constitutionalist.” David Konig, the leading historian of Jefferson’s legal career and the editor (along with Michael Zuckert) of his legal commonplace book, argues that Jefferson’s stance is that of a speculative philosopher which had to be subsequently reigned in by his more judicious friend and collaborator. Hannah Arendt noted Jefferson’s ward republic idea as a precious gem forgotten by both American politics and the revolutionary tradition, and Jennifer Nedelsky and Richard Matthews (among others) have noted Jefferson’s radical theory of property rights in his extended dialogue with Madison, but those are the apparent limits of Jefferson’s identity as a legal thinker. Paul Finkelman writes about he impact of Jefferson on American constitutional law, but that impact is felt through his subsequent political career.
What many of Jefferson’s critics on this front have in common is a feeling that Jefferson’s idea was simply ahistorical- an example of what Michael Oakeshott calls political rationalism at its worst. Robert Tsai has an appraisal of Jefferson’s idea and the project of legal revolution, but he suggests Jefferson is ultimately inadequate here because it requires us to imagine ourselves stepping out of our context and the assemblage of law and history that brought us to it. Similarly, Kunal Parker views Jefferson and Paine as exhibiting a revolutionary theory of the timelessness of consent. I just don’t see it that way at all. What is Jefferson doing hunting down manuscript copies of the colonial laws of Virginia and the records of the Virginia Company if he thinks he is conveniently stepping out of the thickness (or the need for) historical representation? What about his concern for the writing and rewriting of legal text so apparent in his plans for councils to go over proposed amendments to the state constitution, or his wish, again, expressed to Madison, for a plebiscite to make suggestions before approving the US Constitution? And what flippant anti-historical idealist composes the Manual for Parliamentary Practice?
I see Jefferson as first and foremost a practically engaged theorist of the politics of historical representation, and he distilled that theorizing into an understanding of the ideal citizen as essentially a user of inherited materials- land, yes, property, yes, but also of law and of language. In that sense, Jeb Rubenfeld’s linking of Jefferson and Nietzsche is apt, but precisely because Jefferson, at his best, thought basically historically, or genealogically and counter-genealogically, or even archaeologically, about law and politics.
Somewhat (and I emphasize the somewhat) in the spirit of Corey Robin’s recent separate posts on Jefferson as a racial thinker and Nietzsche as the closeted inspiration for neoliberal economic theory, we could, anachronistically, say that Jefferson’s thinking about the use and disadvantages of history for life and his vision of a transformative human subject was capable of both radically democratic and reactionary, violent implications. Unlike Nietzsche the philologist and philosopher, Jefferson the man of action, slaveowner, and proponent of continental empire had a direct hand in realizing some of those implications himself. In the final analysis (if there is such a thing), Jefferson’s career is incomprehensible without understanding it as a project of constituting and protecting the racial, gendered, and geographic boundaries of a potent ideological vision of the true and ideal citizen.
But problematizing and forgetting are two very different things. In our current moment, it might just be that the memory of Jefferson’s conjoined concepts of law as use and of the citizen as a particular kind of reader can appear in a new light. The historical practice appropriate here is one not just of recovery but of active recollection. If Jefferson if of any use, it is to teach us that that is where our political thinking can begin again.
I want to thank Al Brophy and Dan Filler for letting me chime in here at the Lounge for the past month or so- I have been and always shall be a regular reader of this great blog.
Karen Tani at the Legal History Blog has drawn attention to Allan Beever's new book, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (OUP, 2013). The argument fron the publisher:
Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state.
In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard.
A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.
Strictly speaking of the historical argument- that sounds rather pursuasvie to me. We have a very difficult time thinking about the relationship between political philosophy and public law (or "public philosophy") on the one hand and private law on the other. The most striking example of this difficulty that comes to mind, at least for me, is the concept of equity. We have strong, broad historical and theoretical treatments of the subject (think of Peter Hoffer's Law's Concience, David Lieberman's The Province of Legislation Determined (a personal favorite of mine), or the work of Drucilla Cornell, or along those lines Derrida's famous essay in Deconstruction and the Possibility of Justice. That being said, the relationship between the concept of equity and the jurisdiction of equity is understudied. Good places to look right now, I have found, are in law and literature- Daniela Carpi's own work and edited volumes, including The Concept of Equity and Practiging Equity, Addressing Law, and Bradin Cormack's A Power to do Justice, and in legal history- Ian Williams of University College, London on the practical creation of maxims in late medieval and early modern legal theory.
Chancery courts at all levels of various constitional orders were controversial in the early modern British Atlantic world precisely because they were local sites for configuring jurisdictional and judical power (think of the political situation behind the Zenger case, or Jefferson's pet project of instituting a High Court of Chancery in Virginia, to say nothing of his equity commonplace book). Chancery, in other words, was shot through with larger, open-ended questions at play in English, British, and British American constitutionalism about who judges and where (and for whom and for where) they get to do it. Contests over conciliar courts (from the Star Chamber on down) were fundamental fights about sovereignty itself.
Now in terms of political theory, one of the many reasons I remain skeptical of the perpetually asserted importance of Carl Schmitt is that his notions of the state of excpetion and political theology would not have struck anyone in the early modern world thinking about equity as particularly insightful or original. It has long been understood that there is a point at which positive if not all of customary law breaks down, loses coherence, or becomes suspended, and a good deal of the history of legal and political thought has been concerned to identify just what that point is and when or where it should be or simply is reached, and what should happen when it is reached. Are we standing then in the presence of natural law, a transcendent justice, and how do human institutions, or human beings themselves, acknowledge that point and deliver that justice without becoming, or at least appearing to become, either the object or instrument of sheer force of sovereign will? These are questions broached by More and Hobbes among others in their days and in our own age of "governmentality" and the security state these questions are hardly irrelevant. But, so the argument might go, we ask and answer such questions not only in political philosophy or high constitutional (or unconstitutional) politics, but in our relationships with one another, in everyday practices and in private law. Bonnie Honig of the American Bar Foundation makes something of a similar point in her book, Emergency Politics: Paradox, Law, Democracy.
One could speak here of a need for ordinary legal philosophy.
Anyway, I will discuss Jefferson's place in all this in another post before signing off. Beever's book sounds quite interesting, and it seems to be part of a trend to refocus legal scholarship on big questions that involve the long history of thought- it is worth noting that scholars are getting over our ingrained (and I would want to say in many cases still justified) concerns about metanarratives.
Fellow UCLA History PhD and current JD student at Yale Law School, Twitter enthusiast Josh Stein, has recently posted a note over at the Legal History Blog, and the piece definitely merits attention here. Josh welcomed me to the department at UCLA when I got started as a student of Ruth Bloch and later Michael Meranze, so he will always have my personal gratitude and professional admiration, and that is despite the fact that we would spend the next few years arguing from very different intellectual backgrounds and concerns.
In his article, Historians Before the Bench: Friends of the Court, Foes of Originalism, Josh critiques a tendency of historians writing amicus briefs in recent US Supreme Court Cases to accept the originalist and conservative premise of the normative weight of the past. As an alternative to the understandable desire to offer historical critique in the face of what many historians take to be dangerously reactionary judicial philosophy and politics, Josh outlines three interrelated approaches legal historians might take: destabilization, fidelity (something very close to constitutional redemption as outlined by Jack Balkin), and what historian Peter Hoffer calls a “special master approach,” or narrowly focused expert testimony on specific historical questions as opposed to broad, ideological advocacy.
Josh takes the historical profession to speak with one voice and to share a consensus that its special expertise, or “mastery,” is in the art of historicizing, or destabilizing the only-apparently authoritative narratives in which scholars of other disciplines and the public continue to constitute themselves as jurists, philosophers, theorists, or citizens. If this is true, I think it is unfortunate. It seems to me that if Josh is right that we are in an “opportune” moment to rethink how historians interact with the court, it is equally an opportune moment to think what it means to be doing history in the first place. This project, it seems to me, would fruitfully start by extending the historical awareness of context, complexity, and plurality to the conditions of our own intellectual practice. Historians take it for granted that destabilization is an unmitigated good and that the authority of the discipline rests on precisely their special mastery and license to render the past complex and therefore only understandable and relatable with the help of professional historians.
This mode of practice has come under tough (and indeed, historical) criticism recently from Christopher Tomlins and Kunal Parker. Despite these criticisms, I continue to identify with (among other things) a contextualist approach to legal and political thought, and I take the work of Pocock on Gibbon and history, of Tully and Brett on empire, and of Geuss on politics and philosophy to be evidence of the continued efficacy of that kind of work. But the promises of contextualism, broadly defined, rest on the willingness of historians to extend such awareness to themselves, and to accept the fact that there are multiple roads to the past and a plurality of ways of responding to the presence of the past in the present. The failure to attend to the conditions of intellectual practice on the part of historians is ironic, perhaps, but it is also deeply problematic. Historical practice that is defined by its practitioners as the sole domain of constituted professional expertise is one that is by definition and with increasing intensity not even remotely civic.
Against the bureaucratic faith in the special knowledge-production of the expert and their office, I want to rescue a Jeffersonian and radical common-law awareness of use and transformation. A substantively democratic constitutionalism would require a faith not in the ultimate redemption of the text of the US Constitution itself so much as an appreciation for the potentially redemptive work of people and peoples working on the material of their civic inheritance. To participate in history is to make transformative use of the stuff of historical representation, and from this perspective, the task of the historian might be less to destabilize authoritative narratives than to render their constituent components open to thought and action, to consideration and to use. I take this to be roughly in the spirit of S. Levinson’s work and to be looking for a protestant reformation in jurisprudence and history both- one particularly oriented around recovering the priesthood of all believers, or the responsibility for legal and political judgment of all citizens. This is also basically, even if softly, Marxist- it is to insist that we attend to the at once subjective and objective quality of the sensuous, material, and revolutionary domain of practice.
“Facts are but the Play-things of lawyers,- Tops and Hoops, forever a-spin… Alas, the Historian may indulge no such idle Rotating, History is not Chronology, for that is left to lawyers- nor is it Remembrance, for Remembrance belongs to the People. History can as little pretend to the Veracity of the one, as claim the Power of the other, - her Practitioners, to survive, must soon learn the arts of the quidnunc, spy, and Taproom Wit,- that there may ever continue more than one life-line back into a Past we risk, each Day, losing our forebears in forever,- not a Chain of single Links, for one broken Link could lose us All,- rather, a great disorderly Tangle of Lines, long and short, weak and strong, vanishing into a the Mnemonick Deep, with only their Destination in common.”
- Thomas Pynchon, Mason and Dixon, p. 349
A great post over at The Situationist blog about a new book from Mahzarin Banaji and Anthony Greenwald called Blind Spot: The Hidden Biases of Good People which is an attempt to bring some of their work on the Implicit Associations Test (IAT) to a broader, general audience. This work is interesting and provocative and, as noted in the blog, often controversial. But I suspect the book will be very interesting to those legal academics who have either written about the IAT or issues of implicit bias or cognitive limitations generally, as well as to practitioners who may be coming up against this sort of evidence in court or who, conversely, would like to use it in court.
Update: TFL blogger Michelle Meyer adds this review of the book from the WSJ blog, Book Review: Blind Spot. After looking at the review I think I'd have to say it goes beyond simply offering a caution about importing the insights (if any) of the IAT, but is fairly hostile to this research. It offers several of what seem like valid criticisms and a few that don't seem so valid to me.
The observations about the linguistic limitations, the crudeness of some of the measures and cautions about the associations which the authors make, are examples of some of the valid critiques, although they do not necessarily lead to the conclusion that this work does not help to some degree in trying to tease out the difference between lying and lying to ourselves - or, in the context of discrimination, between what we consciously tell ourselves and what what we may actually do, or what may be unconciously informing some of the decisions we make. I think some of the critics may be asking that this research conclusively prove discrimination rather than that it show evidence which is suggestive of it or supports an inference in that direction. Of course conclusive proof of most connections in the social sciences is unlikely to be forthcoming, moreover, that is not the test for admissibility for expert evidence in court. Observing that a particular approach does not answer every question you might have with respect to the problem it attempts to study does not mean the test is invalid any more than the fact that an MRI and a CAT scan offer different information means that either is invalid. Finally, terms like "disrimination" "bias," etc. are all themselves extremely loaded in that they might suggest more to some readers than the authors intend.
On the other hand, Daubert, the case that provides the framework for the admissibility of expert testimony, does provide that expert testimony needs to meet some basic standards of reliability, etc. that if all these criticisms are well-founded, would probably lead to exclusion. So, facts like the authors' own meta-analysis failing to account for the vast majority of the data is, if true, a significant omission from the book and one that it would be interesting to follow up on. Indeed, if you were planning to use such evidence in court it would be remiss of you not to follow up on it.
I think other observations in the review are less valid. Take this one: "But if a test gives results that are so far-fetched, it's time to start questioning the validity of the test." First, "far-fetched" is an assessment that assumes the very thing that the authors are trying to discover, whether it is indeed "far-fetched" that someone might harbor unconsious racial stereotypes, no matter what their ethnic background. The comment assumes that racial heritage or background is some sort of invariable predictor of attitudes. A casual glance around at the diversity of political opinions within various minority groups should dispell that idea. So the ethnicity of Malcolm Gladwell's parents, while surely not irrelevant to the question of his attitudes towards race, is probably not dispositive of them.
Second, that some data diverges from what you expect to find is not necessarily a reason to question the test. Sometimes it is. That is always one possibility. But it also is possible that it is a reason to question your assumptions about what is or is not "far-fetched." There are a great many things which are true even though they are counter-intuitive, for instance that certainty is strongly correlated with accuracy.
Moreover, in this, as in so many areas of research that are highly politically charged, there are some hints that there may be ideological divsions presented as metholodgical ones driving some of the critiques. There does seem to be a way in which normative disputes about the legitimacy of underlying assumptions sometimes morph into arguments that purport to be about rigor or metholodgy, with one side claiming that the other is not really rigorous, when they may be working from radically different foundational assumptions. Whether this is going on here is a question that can only be resolved by further reading of the works on which the book is based and those critiques which the WSJ article references. I do not know the answer to that question. Interested parties should definitely read it all and decide for themselves.
At the end of the day, this book is, as advertised, a presentation of the authors' research for a general audience, with all the limitations that go along with such attempts. That said, you need not endorse immediate adoption, by the courts or legislatures, of any of the implications of the authors' research here to conclude that it is interesting and worth further exploration. And, for better or worse, as the National Research Council's report from 2009 on forensic science illustrates, the validity of a practice has rarely been an insurmountable barrier to its acceptance in the courts. So this research is likely to migrate there. (I think it may have done so already and look to more knowledgable readers to alert me to those cases.) Whether you want to use it or defend against it, may pay to give it a look. This book looks like one entryway to that exploration.
That the old saying that a corporation has "no body to kick, no soul to damn" may have to be revised. While it still has no body to kick (or, for that matter, to send to jail - BP pleads guilty to manslaughter), recent lawsuits filed on behalf of corporations challenge the ACA on the grounds that its mandatory coverage for contraception and some other post-intercourse medications intended to prevent pregnancy, violates the plaintiffs' rights to free exercise of their religion under the First Amendment and is in conflict with RFRA (The Religious Freedom Restoration Act, 42 U.S.C. sec. 2000bb et seq.) So perhaps a corporation has a "soul" after all, or at least a religion it wants to exercise. Hobby Lobby is only one of several of these cases. Hobby Lobby complaint.
To quote the Hobby Lobby complaint, while neither Hobby Lobby nor Mardel (another plaintiff in the case) are religious orders, churches, or other exempt organizations but instead are "privately held, "for-profit" corporations organized under Oklahoma law, the owners aver they (the owners) are "Christian and, from the beginning, ...sought to run Hobby Lobby in harmnoy with God's laws and in a manner which brings glory to God." Complaint at para 18- 24. (As a pleading aside, imagine how, if you are the defendant, you respond to this allegation: "admit"? "deny" "insufficient information"? And if you are the plaintiff, how do you prove that it is true? ). The ACA, the suit alleges, makes this impossible in that the company must pay for insurance coverage which includes medications and devices which, in their view, their religion forbids.
The Hobby Lobby case is actually one of many cases brought on behalf of many companies and individuals seeking to undermine the Health Care Act on religious grounds. The ones brought on behalf of corporations open up a new front - the free exercise clause - on what I have described in my book Brandishing the First Amendment, as an agressive use of the First Amendment to repel legislation aimed at regulating business. However, with this new free exercise claim, proponents may have have exceeded the bounds of what the public thinks is reasonable when it comes to anthropomorphizing the corporate "person."
The issue is complicated further because these various lawsuits often have slightly different facts, some of which may make a difference. Hobby Lobby is a closely held private company and so the notion that there is some sort of greater identity between the owners and the company has, at least at first glance, some appeal. But then consider Martha Stewart: if suits like this are successful, how should publicly traded companies be treated? And what of the views of the shareholders? Should the corporation be able to claim it is exercising their religious beliefs as well?
Another complication is that not all these suits raise precisely the same objection. Rejection of coverage for contraception is probably what gets the most press and which would be the most widespread public pushback since contraception generally is very popular. However, despite some claims in the press to the contrary, the Hobby Lobby suit does not raise an objection to what the plaintiffs call "non-abortion-causing contraception drugs and devices" (complaint at para. 57), but rather only to those drugs or devices which constitute (in their view, and this is contested by some in the medical community) "abortifacients."
Other law suits, such as the one filed by Annex Medical, Inc. in the 8th Circuit, do object to providing contraception coverage. And the ferocity of the objection is fairly intense because in the Annex case, Annex Medical has fewer than 50 employees, so it is exempt from the mandate in any event. Yet, according to the plaintiff in that case, the owner's religion requires him to pay for medical coverage for his employees, and because there are no options which do not include coverage for contraception the exemption is not sufficient. Annex Medical - Order issuing preliminary injunction. Positions like these suggest that the Administration's recent announcement that it would provide a further exemption Exemption will not satisfy many because it will not extend to fully for-profit businesses like Hobby Lobby.
The circuits are split on these suits, (the 10th Circuit denied Hobby Lobby's request for an injunction, a denial which was upheld by Justice Sotomayor acting in her capacity as the Circuit Justice for the 10th Circuit). Hobby Lobby - Supreme Court Order Although their different facts may suffice to reconcile apparently contradictory results, these various claims seem destined to make their way to the Supreme Court.
Whatever one thinks about the sincerity of the objections raised in these law suits, one thing that is notable is that they seek to elevate the free exercise claim of the corporate entity over constitutional and statutory rights of employees, many, if not most of whom may not share their employers' interpretation of what their faith requires of them.
Indeed, it is clear that not even all those who identify themselves as a part of the same faith community as Hobby Lobby's founders agree that their faith precludes accepting the insurance mandate. For example, one commenter quoted in the Christian Post noted: "I'm still not seeing a cause for alarm here. The majority of the U.S. thinks women's healthcare needs should be included in insurance plans […] I'm a Christian, and if I start a business then I expect I'll have to comply with all the government regulations that come with incorporation. I wouldn't expect special treatment for my personal religious beliefs. " (emphasis added) Christians Question Hobby Lobby's Defense, Biblical Stance Against Obamacare
Posted by Tamara Piety at 02:43 PM in Business Organizations, Constitutional Law, Culture of Commerce, Current Affairs, Gender, Health, Politics, Religion, Religion and Faith | Permalink | Comments (2) | TrackBack (0)
The comments that immediately follow below are from sundry experts and pundits on the Muslim Brotherhood (Jam`iyyat al-Ikhwan al-Muslimun) collected during what is often termed the Arab Spring in Egypt beginning in January of last year. I’d like them to serve, together with with the subsequent material by yours truly on “Islam and democracy,” as a propaedeutic of sorts—or simply a backdrop—to a forthcoming post on Hamas. Of course Hamas emerged out of the Ikhwan, in particular, the Muslim Brotherhood in Egypt and later from the Palestinian Muslim Brotherhood, but is today a wholly independent social movement and political organization. I assume throughout, with Nader Hashemi in Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies (2009), that
“Normatively, secularism should not be imposed by the state on society [as in, say, Kemalist ideology or in some measure with French secularism (laïcité)] but should emerge bottom-up, from within civil society, based on democratic negotiation and bargaining over the proper role of religion in politics. In other words, in developing societies where religion is a key marker of identity, in order for religious groups to reconcile themselves with secularism, a religious-based theory of secularism is required.”
We might better appreciate this model of secularism if we recall that, historically, as Hashemi also points out, such “[d]emocractic negotiation and bargaining…was an inherent part of the transition to, and consolidation of, liberal democracy.”
(Please note: some of this material appeared previously in a slightly different version at the Ratio Juris blog, and if my stint here at the Lounge finishes before I get to the post on Hamas, it will eventually show up at Ratio Juris. I then hope to have a post or two on the role of nonviolence in the Palestinian struggle for collective self-detemination and full recognition of their rights under international law.)
The Muslim Brotherhood in Egypt:
“Yet it has been the very iron fist of the Mubarak regime that has helped make the Muslim Brotherhood the dominant opposition party in Egypt today. Like it or not, at this point in history Islamist parties do well all over the Muslim world; they have become the default opposition. Get used to it. They vary tremendously across a wide spectrum, from moderates to radicals, and include a small sliver of violent killers. These movements are constantly evolving. We must learn to work with the more moderate ones; that includes the Muslim Brotherhood in Egypt. They are not prone to love America, especially in view of our past policies, but the Brotherhood has eschewed violence for half a century and moves cautiously. If they occupy a major place in any new Egyptian government, they could well do with our help. And they will have to meet the political, economic and social demands of the people once in power: Anti-Americanism doesn’t feed bellies or reform the social order.”—Graham E. Fuller
“A final note to some American, and maybe Israeli, politicians: The Egyptian rallies are not about you. There has been no burning of American, Israeli or effigies of US Presidents because the Egyptians in the streets are not interested in politics per se. They do not fear that the Muslim Brotherhood will create an Islamic republic either. The Egyptians want change. Washington and other world capitals want ‘measured change’ that can fit their interests, something that Egyptians are not thinking of right now.”—Hussain Abdul Hussain
“Longtime scholars of the Brotherhood have cast doubts on exaggerated claims that the movement will be swept into power in a post-Mubarak/post-authoritarian Egypt. In fact, many doubt that the movement has the power to take over the entire country even if it wanted to. The Brotherhood, though the oldest and arguably best organized opposition group in the country, currently suffers from a number of ills. First, it is beset with a generation gap between the older generation of leaders, such as the current general guide Muhammad Badi‘a, and a younger generation that has sought to change the movement’s policies on a host of issues including the role of women in leadership positions and Coptic Christians. The Brotherhood is in fact no longer the dominant force that it was in the past. As a movement it has lost a lot of credibility in recent years after allowing itself to be co-opted by the Mubarak government says Khalid Medani, a professor of political science and Islamic studies at McGill University who has conducted extensive field work in Egypt including interviews with the movement’s members representing various veins of thought within it. Despite remaining the country’s largest formally organized opposition group the Brotherhood is failing to attract many new members, he says.
Although it eventually decided to participate in the January 25 demonstrations in Egypt the Brotherhood only announced its decision two days before. Its endorsement was also far from enthusiastic. Following the unprecedented size and staying power of the mass popular demonstrations against the Mubarak’s authoritarian government, the Brotherhood took a much more proactive approach in supporting the demonstrators. To date it has released eight official statements, including three signed by Badi‘a. In them the movement has been careful to not claim leadership of the demonstrations and instead says that it is simply one party among many that make up the opposition. Observers on the ground have noted that the Brotherhood is not the most visible or powerful voice represented among the hundreds of thousands to millions of demonstrators who have defied government curfews and violence to continue calling for their civil and human rights.
The Brotherhood has joined other opposition groups and demonstrators in calling for the resignation of Mubarak, the abolition of the ‘emergency law’ that has been in place since 1981 when Mubarak came to power, the holding of new elections that are actually free and fair, the release of all political prisoners, substantial amendment of the constitution, and the prosecution of government officials who have ordered the use of violence against the demonstrators. The movement has also been careful to explain its decision to enter into cautious talks with the government, which is increasingly under the public direction of Vice President Suleiman. Thus far, the Brotherhood remains unconvinced by the government’s claims that it is trying to address the popular will of the Egyptian people.
Although it is far from being a force for social or political liberalism, certainly of the kind that is desired by progressives in the U.S. and Europe, the Brotherhood is also not the all-powerful Islamist bogeyman and twin sister of al-Qaeda that it is often portrayed as. Facing its own internal divisions and problems of legitimacy among the Egyptian public, the Brotherhood is unlikely to be able to ‘seize control’ of the country even if it wanted to. Its internal problems are recognized by no one more clearly than by the Brotherhood itself, which has been careful not to further alienate the Egyptian people who have collectively led the popular uprising against authoritarianism that continues to defy an aging autocrat’s decrees even in the face of extreme state violence.”—Christopher Anzalone
For about an year, I’ve been thinking, in spite of myself, about irony and its relationship to political authority. And it seemed to me that authoritarian governments obsess over regulating its traffic. These governments might look the other way, at least sometimes, with regard to other perceived vices—drugs, porn, illegal booze, gambling. But it’s irony—that spiky variety of humor—that keeps them up at nights in their totalitarian beds.
Makes sense, I suppose; the logic (or momentum) of irony won’t broke sacred cows but authoritarian leaders justify their rule as unquestionable and worthy of deference; divine bovines, such leaders keenly cry out for ironic taunting.
It is in democracies where rambunctious irony is embraced, and the case can be made (or, has been sought to be made, anyway) that biting satire breeds the sort of impiety and insolence that helps to underwrite constitutional democracy.
But that’s just me; ask a better (if you'll pardon the dumb pun) authority. The People’s Republic of China. Ask, oh I don't know, the Party Leaders who they think is the Sexiest Man Alive.
Los Angeles Times, November 25, 2012
Reading “Hamlet” Behind Bars
By David Schalkwyk
It doesn’t look like much — just a tattered, 1970 edition of The Complete Works of William Shakespeare. But inside, the book bears testament to an era.
Currently on display at the British Museum as part of an exhibition called “Shakespeare: Staging the World,” the book belongs to Sonny Venkatrathnam, who was incarcerated during the 1970s in South Africa’s apartheid-era political prison, Robben Island. Having convinced a warden that the volume was a Hindu religious text, Venkatrathnam was allowed to keep it with him in prison, where it was passed from prisoner to prisoner. At Venkatrathnam’s request, his comrades signed their names beside their favorite passages.
On Dec. 16, 1977, Nelson Mandela signed next to these lines: ‘Cowards die many times before their deaths; / The valiant never taste of death but once.’
Walter Sisulu, another African National Congress leader and close confidant of Mandela, put his name beside a passage in ‘The Merchant of Venice,’ in which Shylock talks about the abuse he has taken as a Jewish money-lender: ‘Still have I borne it with a patient shrug / For sufferance is the badge of all our tribe.’
And Billy Nair, who went on to become a member of Parliament in the new South Africa, chose Caliban’s challenge to Prospero from ‘The Tempest:’ ‘This island’s mine, by Sycorax my mother / Which thou tak’st from me.’
The Robben Island Shakespeare is the only book from the prison that records an act of personal literary appreciation by the major figures incarcerated at the time, many of whom went on to play major roles in post-apartheid South Africa. It is a kind of ‘guest book,’ bearing the signatures of 34 of the Robben Island prisoners. But is also more than that.
When they signed their names against Shakespeare’s text, each prisoner recognized something of himself and his relation to others in the words of a stranger. The Robben Island Shakespeare records that community of character and signature as an example of Shakespeare’s global reach and as a historically specific witness to a common human identity and shared experience.
It’s not at all clear how big a role the book played in the lives of prisoners other than Venkatrathnam. Not one of the memoirs written by inmates at Robben Island mentions the volume. And when the ANC was asked to comment on the significance of the book this year, its spokesman asked, ‘What is this “Robben Island Bible”?’ He denied that it had played any special role in the struggle against oppression.
Nevertheless, all the accounts of political imprisonment in South Africa during the apartheid era suggest that the humanities were central to the lives and needs of the prisoners. In an environment of extreme sensory deprivation, designed to deny people their affinity with others and to strip away humanity, the soul staked its claims with striking insistence. Music, some prisoners declared, was more important to them than food; many were prepared to suffer physical punishment for the sake of a book or a newspaper; and the cold of concrete and steel was turned into the warmth of community through common reading and shared education. Jacob Zuma, the current president of South Africa, has said he received his basic education at the ‘University of Robben Island.’ [….]
The rest of the article is here.
(David Schalkwyk is director of research at the Folger Shakespeare Library in Washington and editor of the Shakespeare Quarterly. He is the author of Hamlet’s Dreams: The Robben Island Shakespeare. He will be lecturing at the Huntington Library in San Marino on Monday evening.)
Here’s an inspirational story of an inmate “sentenced to 16 years for felony assault, a period extended by three years after an altercation with a guard in prison,” whose prison reading contributed to his becoming something of an expert on hieroglyphs: “Hieroglyphics Turn Prisoner Away from a Life of Crime.”
Duly inspired, here’s a link to the Prison Book Program.
And this may be a propitious occasion for the few of us dispositionally inclined to read the likes of Aristotle, John Rawls, Robert Nozick, Michael Sandel, Iris Marion Young, G.A. Cohen, Thomas Pogge, and Amartya Sen on justice (distributive and otherwise), to be reminded of the relevance of Shakespeare, who also speaks to us about such things: A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice (2011).
This compilation is marked by two conspicuous constraints: largely (i.e., with a few important exceptions) books only, in English. The first constraint is owing to the desire to keep the list manageable, the second because I’m not well acquainted with the bulk of the literature in other languages. I welcome suggestions for further titles.