no more freedom fries

TNR reports that the Raleigh N&O reports that Representative Walter B. Jones Jr., the coin-er of "Freedom Fries," now regrets his rhetoric, and concludes we went to war with no justification.

Rosen

Interesting TNR piece; O'Connor represents the will of American people more so than Congress.

But far more significant than these political flip-flops is the fact that the House and Senate are no longer reliable representatives of most Americans' constitutional views. This is a dramatic and important shift. For most of U.S. history, all of the great constitutional issues--from the meaning of free speech to the meaning of equality--were debated in the House and Senate, which reflected the views of democratic majorities more precisely than the president or the courts. But, as political scientists Jacob Hacker and Paul Pierson argue in their forthcoming book, Off Center: George W. Bush, Tax Cuts, and the Erosion of Democracy, recent changes have made Congress an unreliable representative of majority will. Now that incumbents, thanks to partisan gerrymandering, are virtually assured reelection, politicians have a strong incentive to pander to their most reliable supporters--including partisan activists and high-stakes donors--in order to avoid the primary challenges that now decide elections. This means that representatives and senators can increasingly ignore the preferences of the moderate majority without suffering electoral consequences.

newsyears

As far as the Newsweek Koran story goes, I am amazed at the vacuum vision of some folks. Read this.

And I agree with David Brooks today (Thursday).

Late update..Frank Rich weighs in on Sunday.

e-wine

I'm so happy Ken Lay won! yeah, i said it. But, here, Mr. Lay argued the right side of the argument before the Supreme Court: state laws that bar internet ordering and shipments from wineries in other states violates the commerce clause. read here.

The case affects states that allow intra-shipping directly from winery to consumer, but that disallow such direct ordering out of state. Such a scheme unconstitutionally protects in-state commerce.

amar and brownstein

Part II of Professors Amar and Brownstein's comments on Charitable Choice is up at FindLaw. It is a fairly straightforward post, and I agree with their main argument; to wit, the Amos case is not much help to the recent House bill allowing religious discrimination in hiring.

mlk

MLK Blvd.

I opposed the changing of Airport Rd. into MLK Blvd. for one major reason, we could have done much better; to wit, we could focus on a more local celebration of the Civil Rights Movement in Chapel Hill, NC. Instead, we have changed one bland name for another. Certainly, the first MLK Blvd was not a bland name, because Rev. Martin Luther King is, quite simply, one of the most powerful and wonderful forces in American history. Any celebration of his life deserves thoughtful consideration. And so, it was with some hesitation that I came to oppose the renaming of Airport Road with MLK Blvd.

Context, though, corrodes what would have been an admirable monument to this figure's achievements. Here, that context is utter un-originality. In that so many so-named streets exist, the man's life is belittled by the ordinary-ness of "MLK Blvd." If we really want to celebrate him, do something that portrays some meaning, some thought, something worked-at. Renaming a street to MLK Blvd. is the epitome of replicating what was once good idea to the point of meaninglessness. A monument of some greater creativity would have done much more, in my thinking, to celebrate this man.

Further, we should have localized the important Movement, and celebrated Chapel Hill's unique involvement. Frankly, it is insulting that we chose conformity with every other city in America over initiative. What does this say about our commitment to an amazingly non-conformist movement to simply ride long the (sorry for the pun) boulevard of the status quo? We had leaders in Chapel Hill. We had NC's first black mayor. We have so much to celebrate, and to connect ourselves to.

Doubtless, there is no harm in this renamed road. I don't chaff at the attempt. Again, though, we could have done much much better.

Update:
Rev. Martin Luther King Jr. did appear in Chapel Hill on May 8th and 9th of 1960. I do not suppose it changes the above criticisms of honor-via-road-names. Still, it is a pleasant thing to read of his visit. See Sally Greene's site for a description, here.

Discrimination in Religious Hiring: Lily, Response 1

Discrimination in Religious Hiring: Lily, Response 1

Andrew makes some important and interesting points about whether it is appropriate to allow groups receiving government funds to discriminate in hiring on the basis of religion. Thanks for starting up this discussion!

One thing I always used to wonder about with this debate, is why, from a pragmatic standpoint, faith-based organizations would be willing to accept government money at all, as they have been doing for several years under the current administration. Given the current state of Supreme Court jurisprudence, it always seemed like they'd be taking an awful risk in doing so. The worst case scenario, from their perspective, is for them to go ahead and accept some government funding, refuse to hire someone because s/he doesn't practice X religion, and then get slapped with a huge lawsuit in federal court. Even if the plaintiff ultimately doesn't prevail, the faith-based institution could nonetheless be catapulted into the media spotlight (not necessarily something it'd want) and also be forced to rack up enormous legal fees, which could easily outstrip the original amount of the government funding. Seems like these faith-based institutions would be better advised to forego the government funding, eliminate the risk factor, and proceed with their hiring as they please.

The bill that Andrew refers to, purports to eliminate this risk: and Andrew, it sounds like you think it would survive a Supreme Court challenge. I'm not sure about this point. I'm intrigued by Messrs. Amar and Brownstein's list of ways Justice O'Connor has phrased the prohibition against funding that will advance "religious purposes." Specifically, it's interesting that, of all these phrases, the debate in Andrew's post centers around the phrase "indoctrination" (i.e. the disagreement over whether discriminatory hiring practices are a form of indoctrination). This seems a little odd to me, because I would think that many religious institutions would characterize "indoctrination" as a subset of their mission, rather than a synonym for it. Religious institutions have a lot of purposes besides the evangelical mission of converting other people to their persuasion. The importance of indoctrination and evangelism in an institution's mission varies widely from group to group.

So, as to whether discriminatory hiring furthers the purpose of indoctrination, I agree completely with Andrew that it's absurd to argue that mass numbers of people would actually convert to a particular religion for the sole purpose of procuring employment with an institution espousing that religion. However, using religious belief as a hiring criterion serves other religious purposes, besides indoctrination of the person being hired: it helps to create and perpetuate an environment that is supportive of students'/clients' own spiritual growth and exploration of that particular faith; it allows faculty or staff to address problems or challenges from a common standpoint; and/or it simply contributes to the institution's identity as a religious institution.

So, because I would posit that any of these purposes would come within Justice O'Connor's concept of "furthering religious purposes/missions/activities," I am not sure that the Job Training Improvement Act will, in fact, survive Constitutional scrutiny. Then religious institutions would be back to asking themselves the same old question: should we accept government funding and risk a lawsuit?

marbury

Folks, it seems to me to always come back to this, when we talk about the judiciary, the role of the judiciary, and the power of the...etc.

I think fondly of the day or two we discussed Marbury v Madison in con law - and I wish it could have been an entire course. Is the below linked article describes, it is this case that we continually debate...despite out not really acknowledging such. Chernow has an article in the Times today with a pretty good, quick history of the events leading to Marbury, and thus the increased role of the Courts to interpret the Constitution.

Give a read. The history is right, so far as I can tell. But I don't agree with all Chernow writes. He ignores the fact that both parties wax and wane in their support of the judiciary in general. It depends on the case and the outcome. For a time, progressives loved a strong Court, then they feared it with the Rehnquist Court, and now they just hold their breath, wondering if perhaps they'll be made happy by decisions such as Lawrence. The same goes, with different case examples, for non-progressives. In any event, Chernow narrows in, oddly, on a small group of Evangelicals that have been fairly outspoken recently.

Somehow, also, Chernow refutes his own column with his confusion. The well written history primer shows us that the Judiciary was, according to the Constitution as framed, the weakest branch, and quite up to the control of Congress. Circuit Courts did not exist. Hamilton, in the Federalist Papers, worried about the Court rulings' effect. And Marbury v. Madison changed this - lifting the court to, more or less, what it is today; ie, the final word on questions Constitutional.

Thus, it is strange that Chernow ends his column with:

So, before they starve the lower courts of funds, Republicans in Congress and the conservative evangelicals who support them would be wise to ponder these events of the early 1800's. For all the talk today of tyrannical judges, the judiciary still relies on Congress for its financing and on the executive branch to enforce its decisions. It could easily, once again, end up at the mercy of the other two branches, upsetting the delicate balance the framers intended.

That "the framers intended?" Chernow retreats to what I think is sloppy and wrongheaded rhetoric. And does so right after illuminating that the framers did not intend the post- Marbury judiciary. Namely, though, it is that Chernow ends with this aloof answer rather than challenging the reader to do what we should do now: decide if we agree with Marbury.

I do. And I think Chernow's achievement is to point out that, when we debate judicial power, we should start with this old case. That is the crucial question: should the Court be the final word on Constitutional issues? Instead, to many commenters reinvent the wheel, or more precisely, simply ignore the wheel, when debating this important topic. If you don't agree with Marbury, say so.

religious discrimination in hiring

Charitable Choice, Religious discrimination in hiring

The Job Training Improvement Act, H.R. 27, passed recently in the House. The bill allows religious organizations that receive federal funding to provide social services to the needy to discriminate on the basis of religion in hiring employees to staff these federally-funded programs. Usually, entities receiving federal money to carry out federal initiatives must adhere to government standards in their hiring and actions. Professors Amar and Brownstein write about the bill in a recent FindLaw column, and decide that it is a clear violation of the Establishment Clause. I'm not sure I agree. And normatively, I don't know that the religious discrimination exempted is so bad. Constitutionally, I am not convinced that, here, government funds would be given for the purpose of religious indoctrinazation; nor do I think that religious considerations for inner-entity hiring is so much a threat to the autonomy of thought protected by the structure of our Constitution (other religious factors, though, are: ie, government funded groups that, with the appearance of government, indoctrinate).

Amar and Brownstein base, correctly, the Constitutional test on O'Connor's opinion for the plurality in Mitchell v. Helms:

That concurrence made clear that, notwithstanding the neutrality of a particular funding program, grants of direct aid simply cannot be used for religious purposes. Indeed, Justice O'Connor says this so many different times, in so many different ways, that her position here cannot seriously be debated; she states that government funds may not be diverted to "religious indoctrination" or "to the advancement of religion," that government resources should not be used to assist "a sectarian school's religious mission" or to "advance the religious missions of the recipient schools," and that government support must not be employed by recipients "to finance religious activities" or "to support their religious objectives."

According to Justice O'Connor, allowing direct aid to be used to finance a religious institution's religious mission -- as distinguished from its secular functions - violates two related but distinct Establishment Clause prohibitions. The first is that government may not, in fact, impermissibly "advance" an organization's religious mission.

The second is that government may not improperly "endorse" religion. As Justice O'Connor pointed out: "[I]f the religious school uses the aid to inculcate religion in its students, it is reasonable to say that the government has communicated a message of endorsement."

Amar and Brownstein find the exeption allowing religion to factor in when hiring staff to support religious objectives:

After all, the purpose of religious indoctrination is to inculcate beliefs. Surely one obvious way for a religious organization to advance that goal is to reward the adoption of approved religious beliefs by providing a job, or to penalize any expressed commitment to other faiths -- or no faith -- by withholding one. Indeed, making employment eligibility dependent on an applicant's religious practices and beliefs may be a more effective (and more coercive) way for an institution to advance its religious mission than simply teaching, or proselytizing to, people about the organization's religion.

It is there I disagree. Their imagined scenario, of countless people adopting religious belief in order to get a job with a religious charity, is, quite simply, improbable. It overestimates the market power of charities and seems to vastly underestimate the real functioning of religious belief. While we might imagine some disingenuous cloaking of religious belief, it would be 1) rare, and 2) unrelated to the appearance of government action.

The appearance of government action with which we need to be concerned is the religous group's behavious while acting as a charity. If the group indoctrinates, the government, by providing it money, violates the first amendment. If the group accepts government funds and behaves, because of the appearance of government action, under the dictates of the Constitution, then no Constitutional problem is raised.

The difference is between inner and outer actions. My view here is very much informed by O'Connor's endorsement and Kennedy's coercion tests. Until I see evidence that charities' religious characteristics affect religious motivation, is is difficult to accept what Amar and Browstein take as a given.

All of this, anyway, is to relay some of my acceptance of religious groups receiving government funding. There is not much good reason to exclude these groups, and a great deal of sense in embracing them, to the extent they want to work under the restrictions of government action.

Where I am less certain is the use and evocation of their religious beliefs within that work. I am not ready to totally deny it; but am of course not ever going to fully allow actions that approach government-paid missions.

church/state one

Andrew on Civil Religion

This is the first of two posts. Here, I will address civil religion and some objections thereto. In the next, I will defend certain government-religion bondings; more specifically, government funding for those that make hiring selections using religious beliefs factors.

As Mike pointed out in comment sections below, our world views affect our different approaches to church/state issues to such an extent that it is nearly impossible to structure a reasonable debate; this, because we cannot share assumptions about costs and benefits. I cannot really know Mike's sense of loss if we remove "God" from certain ceremonial exercises; just as Mike cannot really know my affront at the same use, or my willingness to assert a national conscience without god. With that basic, post-modern informed point duly made, I think we can move on to identifying the crux of this issue.

In offline discussion, Mike and I discussed whether the word "God" is needed, ever so rarely, in government/civic language. This, somewhat in light of a point Lily made: whether God exists and plays a certain force in the life of our Nation is undetermined by the extent to which we evoke and acknowledge God.

Mike believes that the word is, in fact, needed. I think such use is almost always wrong (Constitutionally and morally). Which of us is right?

While, again, our respective assumptions make difficult a rational (should I say, mutually understood) debate on the cost/benefit of "God" use, we can work to understand what the word means when used. We can work to some objective meaning: what the use of "God" means before it enters the matrixes of our respective world views.

Mike has offered several comments in response to my earlier questions about the nature of God in civil religion. Now we turn to the use of the word. Remembering Lily's aforementioned point, it seems clear that the use of "God" is not aligned to any metaphysical aim. Rather, it is about us. God is or is not. The use of the word must have the purpose of directing our behavior, and affecting our government and National structure. The use of "God" is a societal tool with some affect as its aim.

Thus, I need to learn from Mike, or some others that embrace civil religion, the social goal "God" use. Further, I want to know the extent of use needed to achieve that goal. Obviously, we dance a careful dance with the use as it is. If we were to up the use, as Mike advocates, what parameters do we use? As Mike has acknowledged, the civil religion god is not an amebic god shifting in design and conforming to endless interpretations. Mike's civil religion God is the source of love and good in America, or more simply, a source. What else? So far, we can ascribe "source" and use that word with the civil religion God. What other words can we descriptively use? Where does it go too far? These uncertainties make up the fear that brings about my rejection of civil religion.

And then there is my belief that "God," in the civic sphere, is inappropriate for the uniting word for our source of Good, and for the source of our unique Democratic Nation. A civil religion, or a national conscience, that outcasts a portion of our population is wrong. And it is wrong to demand those people to accept the existence of god in order to belong to the moral fabric of our Nation. The use of "God" patently directs the conscious of the utterer. This is likely why Mike wants such use, and it is the gut of my rejection.

This is not an issue of a heckler's veto. If we talk about the undergirding, metaphysical power of our country, we are obliged to go all the way. We have to find what is true to ALL humans and what is true and unique about America. Needleman writes that this is the dual nature in humans- that we are both spiritual/moral beings (with a conscience) and we are grounded in our bodies as animals. Unique to America is our founders' attempt to create a place where we can experience, actively and thoughtfully, that struggle. It is a wrestling match, and America is the proud Rink.

terror

How effective are we in the war on terror?
I've been out of the mainstream media (msm) for some time. Any readers able to report on the play these numbers got? After taking in the supposed tripling increase on terorist attacks, I suppose question two is, what does that mean? I'll stay away from letting this report serve alone as a condemnation on our efforts thus far; but, it can't be good, can it?

Match increased use of terrorism tactics to worries on nuclear proliferation, and you get unpleasant results.