Can We Have Some Intelligence, Please?

(By Andrew MacKie-Mason)

I'm all for pointing out that conservatives run up the debt too. But can we all just agree that this graphic, which breaks debt increases down with no adjusting for the number of years in office is one of the most ridiculously uninformative things ever? Really, it's just embarrassing.

Teachers' Online Speech Rights

(By Andrew MacKie-Mason)

Earlier this month, a New Jersey special ed teacher named Viki Knox posted an online rant about homosexuality, apparently calling it "a perverted spirit that has existed from the beginning of creation" and a "sin" that "breeds like cancer." In response, many people are calling for the school to fire Knox. Her views are despicable, but firing her is completely the wrong response. Just like students have a clear First Amendment right to mock their teachers online, teachers have the right to voice disgusting opinions on Facebook.

Schools should have significant power to control the speech that actually occurs in a classroom, especially speech by its employees directed at students compelled to attend class. I would have no problem supporting Knox's firing if she said something similar to a student during class. But Knox's posting, even though it was publicly available, was made in a quasi-private forum. Those who saw it chose to go looking for it, and it was in no way connected with her work as a teacher.

I should note that the ACLU has spoken out in defense of Knox's rights, which should surprise no one. As I've pointed out many times before, the ACLU regularly defends the free speech rights of conservatives, even though many conservatives seem to think it's an organization that exists solely to push liberal causes.

Thoughts on the Nevada Debate

(By Andrew MacKie-Mason)

I just finished watching last Tuesday's Republican debate in Nevada on YouTube. I've sorted some of my sporadic thoughts to try to give an evaluation of each candidate, but first a question: are there always this many debates during primary season?

Rick Santorum


Maybe it's because CNN framed him as the candidate "trying to beat the odds," but Santorum definitely came across as the guy trying desperately to make himself heard. He did have a few particularly bad moments, though, including saying that we should focus on health care cost rather than health care access (after all, who cares about those who can't access the care in the first place), seeming to simultaneously support religious freedom and a ban on gay marriage, and responding to Ron Paul's point about Iran-Contra by positing some contentless distinction between negotiating with terrorists and negotiating with hostile forces. All in all, a weak performance by a weak candidate. The networks would do better to invite some of the other minor candidates who at least would bring some conflict and different views to the debates (although, of course, CNN pretended that the people on the stage were the only contenders for the nomination.)

Rick Perry


The only Rick Perry story coming out of the debate is his attack on the Romney family's employment of a subcontractor who hired illegal immigrants. But two other points really stuck out for me. He responded to a question about the unacceptable number of uninsured children in Texas by making two 'points': Texan health care if really, really good for those who can afford it, and really we only don't insure all of our children because there are so many illegal immigrants. And those illegal children don't deserve access to our spectacular health care. For me, this is on par with his statement in a previous debate that he loses no sleep whatsoever over the astounding number of people murdered by the state of Texas every year. It may even be worse. Perry also proposed defunding the UN, a colossally stupid idea for our foreign policy.

Michele Bachmann


Optics aren't everything in Presidential campaigns, but they're a legitimate part of consideration. American Presidents are heads of state as well as heads of government, and electing buffoons is bad for our global status as well as American trust in government. Bachmann's performance at the debate did nothing to change my perception of her as a ridiculous individual undeserving of elected office. Multiple times (here's one example) you'd hear her objecting to not getting to answer a question. "Anderson! Anderson! Anderson! Wait, Anderson! Anderson!". She, a candidate for the presidency at a time when we have strategic commitments in Libya, seemed not to realize that Libya is in Africa. She actually suggested that Iraq, a country that never asked for our help and where we arguably did more harm than good, should reimburse us for the privilege of being invaded. (Is that a woman you want in charge of our international diplomacy?) And then there's this misogynistic gem:

Every day I'm out somewhere in the United States of America and most of the time I'm talking to moms across this country. When you talk about housing, when you talk about foreclosures, you're talking about women who are at the end of their rope because they're losing their nest for their children and for their family, and there are women right now all across this country and moms across this country whose husbands, through no fault of their own, are losing their job and they can't keep that house, and there are women who are losing that house. I'm a mom, I talk to these moms.

Ron Paul

Paul also pretty much lived up to expectations. He's the candidate willing to say some bold things (he's consistent about cutting off foreign aid, even when that means opposing aid to Israel in a room full of Republicans), and he's the only Republican candidate I can imagine pointing out that prisoners at Guantanamo are suspects, not terrorists: nothing has been proven regarding any of them. I applaud him for wanting to put more resources into investigating and punishing fraud and abuse that led to the financial collapse, but my overall impression of him as a person who lets bold, out-of-the-box ideas substitute for nuanced consideration remains. Besides, he opposes mandated free education for all children.

Newt Gingrich


The most worrying thing out of Gingrich during the debate was his views on faith and politics.

But I think all of us would also agree that there's a very central part of your faith in how you approach public life. And I frankly would be really worried if someone assured me that nothing in their faith would affect their judgment, because then I would wonder, how can you have judgment if you have no faith, and how can I trust you with power if you don't pray? Who you pray to, how you pray, how you come close to God, is between you and God. But the notion that you're endowed by your creator puts a certain boundary on what we mean by America.

In other words, there's no room for atheism or aspirituality among politicians, and atheism is outside of the 'boundary' of what's legitimate in America. That's not a man I want in office.

Just as a final note, I want to express my condolences to Anderson Cooper. He had to wrangle candidates who were behaving like children, and he did as well as I think can be expected in such a ridiculous environment.

University of Chicago and Occupy Chicago

(By Andrew MacKie-Mason)

People at the University of Chicago may be interested in signing this petition in support of the right to peaceably assemble in Chicago's public areas, and condemning the City's actions in suppressing dissent. A taste:

On Saturday, October 15, our elected leaders used the Grant Park curfew as a pretext for suppressing the free speech rights of ordinary American citizens.  Over 175 people were arrested, including numerous members of our university community.  As members of the academy, we take free and open discourse, along with critical inquiry, to be fundamental to any healthy democratic society.  Yet, the actions taken by the City of Chicago achieved exactly the opposite.  As such, we write to condemn the actions taken by the city of Chicago.

Al Awlaki, Due Process, and the Power to Kill

(By Andrew MacKie-Mason)

The drone-enabled assassination of Anwar Al Awlaki raises some difficult questions about the scope of US authority to target alleged terrorists, complicated by the fact that Al Awlaki was an American citizen. Mark Bennett thinks that it was a violation of Al Awlaki's right to due process. Bruce Ackerman thinks that the process used — whatever it actually was — is unconstitutional.

A few things, I think, are clear:

• The fact that Al Awlaki was outside the country is irrelevant. If the government could send a Predator missile after him in Yemen, it can send one after him in New York.

• There is a point at which the government can use deadly force to take down an alleged criminal who refuses to submit to the judicial process.

• Anyone who can be targeted by the government for death must have notice and an opportunity to challenge the classification if they submit to judicial authority.

How exactly to judge what happened in the Al Awlaki case, though, is beyond what I know, which is why it's important for the Obama Administration to make the details of the process public.

Overturning Roe Without An Amendment?

(By Andrew MacKie-Mason)

I'm a bit late to the party on this one, but it's an important issue and one that I think bears talking about.

In early September, there was a Republican Presidential "forum" (I wouldn't call it a debate) featuring a dialogue between some of the candidates and a few questioners: Senator Jim DeMint, Congressman Steve King, and Professor Robert George.

George's main question was this:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

In other words,  George was asking the candidates if they would endorse a legislative usurpation of power by asserting that a simple law could overturn a judicial decision on the Constitution. As George tells it, Bachmann, Cain, and Newt Gingrich all said that they would endorse that usurpation, whereas Romney gave a qualified rejection of the idea.

I'm normally a fan of off the wall constitutional ideas, but George's claims are a bit too crazy for my taste. But let's take his argument as it comes.

Nothing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation...

Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to the other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.

The problem with George's argument is twofold. First of all, Article III does clearly invest the supreme "judicial Power" in the Supreme Court, and clarifies that that power "shall extend to all Cases...arising under this Constitution."

What does that mean? Not, of course, that the Supreme Court has some sort of nebulous authority to say what the Constitution "really says." But it does mean that if a case or controversy arises under the Constitution, the Supreme Court has the supreme power to decide it.

What would happen if, as George, Bachmann, Gingrich and Cain wish, Congress passed a law banning abortion throughout the nation? They could do so, but it would be unenforceable, since any attempt to enforce it, through criminal or civil means, would involve bringing people to court, which creates a judicial question over which the Court has supreme authority.

Does Section Four of the Fourteenth Amendment, which gives Congress the "power to enforce, by appropriate legislation, the provisions of this article," change this analysis? Not at all. Congress can claim to do something under Section Four...but whether the legislation it passes is ultimately enforceable and "appropriate" (read: constitutional) will be a judicial question.

Does this mean, as George laments again and again, that we live under a system of "judicial supremacy?" Not at all. As he should understand, the judiciary remains one of the weakest branches of government. If it seems more powerful, it is not because it has usurped authority, but because the legislative branch has become markedly inadequate at doing anything.

George seems to be suggesting that if Congress cannot override the Court by a simple majority vote, then we are now living under the tyranny of the Supreme Court — but that's just silly. Congress cannot override a Presidential veto with a simple majority vote, but that doesn't mean we live under the tyranny of the President, because there are ways that Congress can override a veto. It simply needs more than a simple majority to override one of its coequal branches. Congress, together with the states, can override the Supreme Court by changing the Constitution, as is explicitly provided for in Article V. Or, if they think that the Supreme Court has usurped power that does not belong to it, or failed to follow the Constitution, they can indict Supreme Court Justices and remove them from office. Or, Congress and the President can join together and increase the size of the Court, filling it with members who share their constitutional vision.

At the end of the day, George's constitutional arguments have no grounding in the text or reality, and his fears of "judicial supremacy" constitute nothing more than empty rhetoric.

The Ministerial Exemption

(By Andrew MacKie-Mason)

The case involving the ministerial exemption, Hosanna-Tabor, was recently argued at the Supreme Court, so the issue is alive again in blog-land. For those who don't know what the debate is over, I have a collection of old links that do a pretty good job of explaining it here.

Without getting into all the details, there are two major problems with the proposed exemption, as I see it. I'll illustrate these by reference to specific hypothetical situations: after all, if supporters of the exemption want to embed it in American law, they have to accept all of its implications or else revise the theory.

The first concerns the reach of law, an issue which Paul Horwitz has addressed in some depth here. With regards to this I'm less concerned about the facts as they are in Hosanna-Tabor, and more interested in how the theory would be applied to cases similar to those that Leslie Griffin cites here.

Imagine a situation, not at all far-fetched, where a priest at a religious elementary school routinely molests pupils, until the molestation is discovered by one of the teachers working at the school. When she threatens to report him to the authorities, he replies by saying that if she does so, he'll fire her and do his best to blacklist her for future employment.

In a secular setting, the teacher would be protected by anti-retaliation law so that all of her incentives go to doing the (completely uncontroversial -- I hope) right thing: reporting the abuse. But if the religious advocates get their way in Hosanna-Tabor, the priest's threat would carry significant weight; if he fired her, she would have no recourse to sue for wrongful termination, since she (according to the religious litigants in Hosanna-Tabor) plays a ministerial role at the school and any employment suit would be foreclosed.

The teacher, even if she were virtuous and had little concern for her own well-being, may rationally make what would be a non-optimal choice in the context of a secular school. She may believe she can do more good by remaining quiet so as to stay at the school and protect other students, or she may attempt to resolve the issue through internal processes, making a cover-up that much easier. And if we make a more realistic, though not uncharitable, assumption about her character, it's not hard to believe that the threat of unemployment may lead her to reconsider what she thinks she knows, to rationalize away the evidence, or just convince herself that what happened really wasn't all that bad.

What important principle of religious freedom would the ministerial exemption be protecting in this case? None, so far as I can see. It's not protecting the right of a religious organization to choose who leads it -- it's protecting the 'right' of a religious organization to cover up crimes that occur within its walls. That may not be such a huge problem when religious consist entirely of voluntarily associated people, but it is unacceptable when the religious organization holds sway over involuntary participants who are at direct risk of harm.


The second concerns our understanding of religion. How do we delineate between legitimate religions and organizations who adopt the banner of religion as a tactical move to evade the reach of antidiscrimination law?


This is a typical line-drawing problem, and it's obvious that the difficulty of drawing a line doesn't prove the inappropriateness of a standard. However, I think it is important for advocates of the ministerial exception to propose at least an approximate standard here, and that's not something I've seen.


Personally, I resolve the defining-religion problem in what I would call a Millian way: I look to the realm of behavior involved and see whether it's primarily a realm of individual conscience or of group responsibility. How exactly that plays out in the ministerial exemption context is a complicated issue for another day, but I think it's important to acknowledge that we do not live in a time when the boundaries of "religion" are clear, and that a proper respect for the freedoms embodied in the First Amendment demands that we shy away from standards that require us to put limiting definitions on what counts as legitimate religion.


ADDENDUM: While I was writing this, Paul Horwitz put up a post on PrawfsBlawg asking if the sexual-abuse concern that I raised above was primarily consequentialist (as in, we don't trust internal church processes to reach a good result) or more directly normative (as in, access to the courts is good in and of itself.) I would say it's a bit of both: I generally trust judicial systems that arise from heterogenous communities more than ones designed and implemented by homogenous religious organizations, and I think there's also a normative value to recognizing that sexual abuse -- and other things -- is a harm to the community that extends beyond the walls of the church. Restricting the remedy to the internal processes tends, I think, to minimize the harm and suggest that it's importance is only an internal matter.


Horwitz also points out that just as defenders have to accept the potential costs of the ministerial exemption in terms of unrighted wrongs, opponents have to accept the harm to religious freedom that would arise from not having a robust ministerial exemption. I agree, and that's part of why my thinking on this is more nuanced than simply, 'There should be no ministerial exemption.' I actually think that the exemption (as proposed) is under-protective of religious freedom in some important ways. I hope (though this is a promise that I've broken before) that I'll get around to addressing that nuance in more detail, but this is it for now.