Monday, May 30, 2016

Anti-Zionism or Anti-Semitism?

5/30/2016—The really good newspaper, Pittsburgh’s Jewish Chronicle, covers issues of interest to the Jewish community with amazing journalistic integrity. It is not unusual to find Arab and Palestinian voices in the newspaper criticizing the policies of the current government of Israel. And it is common to hear liberal voices within the Jewish community challenging unthinking support for Israel and defending American politicians who want America to play a more balanced role in the Middle East. The debate over the Iranian nuclear accord played out in the pages of that newspaper. I read it every week.

But one area where the magazine either is less even handed, or, perhaps, I don’t know what is going on, is the issue of where the line is drawn between a genuinely anti-Zionist stance and antisemitism. By genuinely anti-Zionist, I don’t even mean people who feel that the State of Israel should never have existed. The newspaper would undoubtedly call such people anti-Semitic. No, by anti-Zionist, I mean people who believe that the State of Israel has become racist in recent years and is so now. That its treatment of the Palestinian people is shameful—a violent occupation of a civilian population that would like to live in peace. That most Israelis no longer even want a Palestinian State to exist in the West Bank. That Arab Israeli citizens are second class citizens. In other words, that Israel is now a nationalist, dangerous apartheid State.

When this line, which I have never been able to make my mind up about—the Israelis I know are not representative, but they have come reluctantly to the conclusion that there cannot be peace with the Palestinians because Palestinians don’t want peace and these Israelis oppose the policies that disadvantage Arab Israeli citizens; that would not be racist in any way—is presented on college campuses, the Jewish Chronicle sometimes characterizes it as anti-Semitic. And many Jews do the same.

One thing is clear. The current government of Israel does not want an independent Palestinian State—for religious reasons (it would be on land some believe was promised by God to the Jewish people) or security reasons (inevitably, such a State would be taken over by fanatics staging attacks on Israel). After all, the current random attacks on Israelis are the reason the consensus in Israel changed against peace.

But is such criticism anti-Semitic? I don’t think it starts out that way. There are Jews, after all, who share this view of Israel. But we have to remember the insight of Carl Schmidt, the German/Nazi theorist. He wrote that once you have the friend/enemy distinction, all other oppositions follow. If a people occupy your land or oppose your policies, you eventually come to hate that people and not just what they do.

All this, of course, is miles away from the amazing anti-Semitic ranting that Jewish journalists are beginning to absorb from Trump supporters, which Jonathan Weisman wrote about in the New York Times a few days ago (here). That stuff is purely nativist. But it is comical. Impossible for me to take seriously as a threat to Jews. Donald Trump himself is a product of New York values. No one ever thought of him as anti-Semitic. The notion is ridiculous.

Well, why doesn’t he call out his supporters? For the same reason Lincoln accepted support from anti-immigrant groups. In politics you take all the votes you can get.

Monday, May 23, 2016

The Shining Hour of Conservative Columnists

5/23/2016--This will ever be known as the shining hour of conservative columnists. I have four in mind: George F. Will, Ross Douthat, David Brooks and Charles Krauthammer. I don't read these four every day, so it's possible I have missed something. But as far as I have seen, these four have bucked the trend inside the Republican Party to come to terms, and support in some form, Donald Trump as the Party nominee for President.

Now, you may say that this is hardly a test--that anyone smart enough to be a columnist would understand how dangerous Trump is. But that attitude misunderstands how politics works. William Safire, a great conservative columnist, once wrote that he supported Republican Party positions even when he had doubts about them because in American politics, to have any influence, you have to be on one side of the two party system. That is basically true. If Trump wins in November, opponents in the Democratic Party will continue to work and will have a home. These four men, conversely, would be marginalized in such an event. Eventually, one way or another, they would cease to have the position they have now. And they know it.

Furthermore, at least Will loathes Hillary Clinton and the others have really grave doubts about her fitness to be President. Yet, none of them is criticizing Republicans who are planning to vote for her.

The reason they are acting in this way is that they believe what they have been saying for a year--that Trump is not another politician. Not only is his word worth nothing--this is actually not true of politicians in general because they need to be loyal to their Party's coalition--but he has no democratic instincts. Trump really does not understand the restraints of the constitutional system in a way that most politicians take for granted. Think of an even less principled Richard Nixon. Think of putting the IRS in Trump's hands. Well, think of putting any power into his hands, really.

Yet, the crawl toward Trump of Republican Party officials is what you would expect of the Party establishment. They know how bad Trump is, but they have nowhere else to go. Right now, they are just hoping he is defeated and they can get back to normal politics.

Nor do I believe a Paul Krugman or other liberal columnists would do the same thing if the situation were reversed. These four columnists are loyal to a political tradition independent of Party that I am not sure liberals have. Liberals agree with each other on some policy points, but when they disagree with each other--as on free trade, for example--liberals don't have an abiding ideology to fall back on.

So three cheers for the big four: Will, Douthat, Brooks and Krauthammer. Their country owes them a debt.

Tuesday, May 17, 2016

How Can There Be a Compromise?

5/17/2016—I’m going out on a limb here and saying the Becket Fund for Religious Liberty is an ideological opponent of the Obama Administration. The Becket Fund provides the lead attorneys (maybe there are others, I don’t know) in Zubik v. Burwell, the challenge to contraception coverage under Obamacare that the US Supreme Court yesterday sent back to the lower courts to try to work out a compromise. But any compromise that is possible would be a win for the Administration, so how could the Becket Fund agree to any such compromise?

Why would any compromise be a win for the Administration? Because any agreement would ensure reproductive services for women employees of religious employers (again, I’m not following the details, but according to the media the services involved are only for women. I guess vasectomies are not provided by Obamacare, which is too bad). And, politically, any compromise would show that the Administration is not an enemy of religious liberty, which is a key ideological plank of conservative opposition to President Obama in particular and Democrats in general. The Becket Fund cannot afford to be part of that.

I am assuming two really serious and related points. First, the Becket Fund is ideological first and does not want to work with liberals to find common ground. Maybe I am wrong about that. If so, I will be happy to apologize. If I am right, the Becket Fund is not alone. Plenty of groups on the left are like that.

Second, and both related and defamatory, I am assuming that the Becket Fund puts its ideology ahead of the interests and desires of its clients. That is a serious charge because it would ordinarily get a lawyer disbarred. And, again, I don’t know this to be true. It just looks that way from afar. It is possible that the clients here are just as political and ideological as is the Becket Fund—could that be possible for the Little Sisters of the Poor?

I never understood this case from either a legal or a theological point of view. All the government ever asked of the religious institutions is that they fill out a form claiming they wanted to be exempt from certain coverages. At that point, their insurance companies provided the coverages for free. Economically this made no sense, of course, but no one ever showed that the plaintiffs were charged for anything. How could the plaintiffs have objected to this in the first place? Weren’t they really objecting to employees practicing birth control and did not want to say so? Why did they not just fire people who used these coverages? They could, you know.

So, I always thought the plaintiffs were picking a fight on purpose. The fact that the Supreme Court thinks there might possibly be room for compromise suggests to me that the Justices also cannot quite figure out what the problem is for the plaintiffs. But, months from now, when the election has been held, I predict that the cases will be back with no compromise.

Tuesday, May 10, 2016

The Beginning of the End of Religion as a Political Force

5/10/2016—The decline of religion in America as a potent social force can be documented in different ways. For one, all those surveys showing a growing group of “nones”—their response to the question, what is your religion? This is so especially among the young. And there is the parallel drop in attendance at formal religious institutions, especially the mainstream Protestant, Catholic and liberal Jewish denominations.

But you can also look at the matter of the decline of religion socially, legally and politically.

Socially, the fracturing of social structure that lies behind the rise in mortality rates among Whites involves the decline of religion and other forces of hope. David Brooks wrote about that today in the New York Times.

Legally, you see the decline in the movement from Establishment Clause type cases, in which religious symbols are used by government, to Free Exercise type cases, in which religious believers are the plaintiffs complaining that government is infringing on their freedom to practice religion. These cases are now brought under statutes.

But the most startling aspect of the decline is political. This year’s candidates are the least religious I can remember—although Ronald Reagan did not seem particularly religious. On the Democratic side, Bernie Sanders has not practiced his Jewish faith—although he is much more respectful of religion than some of his secular supporters. Hillary Clinton has tried to convince the voters of her deep Methodist roots, but I doubt most people associate her with Christianity.

Then there is Trump, who receives votes from people who identify with religion, but who seems almost totally devoid of basic Biblical knowledge—he called one of Paul’s letters “two” rather second, for example.

This year, there really is no religious vote that someone could cast even if she wanted to do so. And the next President will be even less religious, publicly, than President Obama, who was himself not particularly religious.

This is an important trend, not likely to reverse any time soon.

Monday, May 2, 2016

The Response by Professor Freeman

5/2/2016—I posted on this blog a letter to the editor that I wrote to the New York Review criticizing Professor Samuel Freeman’s defense of the commitment of several thinkers of the left to forms of moral realism. I claimed that the figures he was defending, most notably John Rawls and Ronald Dworkin, are in fact guilty of this charge of relativism.

Professor Freeman wrote back to me a short, elegant response. I would post it, but I have learned that it is unfair unless one has specific permission to post someone’s email online. So, let me just say that Professor Freeman makes three points: first, that Dworkin and Dworkin relied on the Kantian idealist tradition specifically to derive objective moral truths; second that my own intuitionist approach presupposes the existence of God and is hardly convincing; and third that I am mistaken that liberalism can only be justified by relativist principles. Finally, as an aside, my assertion that moral realism can only be based on the derivation of an ought from an is false. There is God’s will and there is also the account that claims that there are fundamental moral laws or principles that are constitutive of practical reasoning.

My response is not going to be as well organized as his criticism. As for Rawls, speaking only for that aspect of A Theory of Justice that relies on the hypothetical social contract of the original position, it does not produce theories of justice that are objectively true. It is not possible to be certain what principles of justice the participants in the original position would consent to. It might be justice as fairness or it might not. What Rawls is actually relying on is a different moral principle—that people are properly bound by what they consent to or would consent to under certain stated circumstances. But I am not willing to grant that this principle is objectively true.

As to the matter of the justification of liberalism, I don’t mean to suggest that principles of liberalism can only be justified on relativist grounds. I am making a kind of political/rhetorical point that the left in law only does justify liberal principles—in certain matters, such as gay rights—on relativist grounds. If there is some other account, and I believe there must be, Freeman should criticize the reasoning in the Lawrence case. I would like to see that.

Finally, as to the ought and the is. Dworkin is making the point that the existence of God is irrelevant to the moral truths of religion. This is on pages 26-27 of Religion without God. That is probably so. But let us consider Dworkin’s example. When I see someone threatened with danger, I have a moral responsibility to help if I can. But it is not the fact of the danger, but the background moral truth that people have a general duty to prevent suffering, not the mere fact of the threat that created the ought—that I ought to intervene.

But now ask, what is that background duty based on? To extend Dworkin’s analysis, that ought is based on the is that a person is objectively worthy. And thus worthy of saving. A rock is not, but a person is.

I can put this more simply. The principle that Dworkin is supporting is intrinsically both an ought and an is—it is morally wrong to let someone suffer unnecessarily. Or, later, cruelty is wrong.

Dworkin tries to wriggle out of this self-contradiction by changing Hume’s categories. An ought cannot be justified by “some scientific fact”. (27). But the point of Dworkin’s book is that something like cruelty is a fact. And the moral wrong of letting someone suffer is also a fact.

So, moral obligations do derive from the state of the world.

Saturday, April 30, 2016

The Redemption of American Public Life

4/30/2016--Classes ended last night. I will have more to say about my class in Philosophy of Law, which ended with a meeting at my home. It was a marvelous experience, but now the work sparked by that class begins. I told my students on Constitutional Law that it is their task to repair public life in America. The question is whether law school is giving them the tools to do that. Likely the answer to that is no, for now. Or, yes only in part. Or yes, in potential.

One place to start this repair is the acknowledgment of the damage that popular nihilism has done and continues to do. By popular nihilism I refer to the lack of commitment to lasting and powerful truth. (Calling this objective truth raises philosophical issues I am not equipped to deal with at this point. "Lasting" will do to distinguish it from opinion.)

Let's start with the nihilism in political/philosophical discourse. Samuel Freeman responded to this charge against the left in a review in the New York Review a couple of weeks ago. Here is a proposed letter to the editor that I sent in, but which will evidently not be published.
To the Editors:

While there are no factual errors in his review of Roger Scruton’s recent book, there are omissions and a lack of nuance that permit Samuel Freeman to doubt that the American left is subject to the "bleak relativism" and opposition to values objectivity of which Scruton accuses it. (The Enemies of Roger Scruton, NYR, April 21) Clearly some of the figures that Professor Freeman mentions are in fact relativists. Certainly this is so, and famously so, of Richard Rorty. It is even true of John Rawls, who had to place the source of justice in the hypothesized human consent of his “original position” because there was for him no source for objective values.

But a lack of commitment to values objectivity is even true, strangely, of one seemingly great exception to the charge: Ronald Dworkin. Yes, Dworkin always insisted that values were real—that cruelty is really wrong, as he wrote in his last work, Religion Without God and in the pages of this magazine. But, in that last work, Dworkin also repeated his long-standing fealty to David Hume's position that one cannot deduce an ought from an is. Unfortunately for Dworkin, just such a deduction from fact to value is necessary for the moral realism that Dworkin defended. We will now never know how Dworkin might have resolved this tension, since it was never pressed on him during his lifetime. (For some reason, Professor Freeman omitted the American philosopher most committed to moral realism—Hilary Putnam. But Putnam grappled with the left's nihilism for much of his life and even mentioning his name would have reminded readers of just how correct Scruton is on this matter).

The context of the left’s value relativism is both philosophical and strategically political. Philosophically, it reflects the death of God and the collapse of religion. Strategically, it reflects a cheap advantage in the culture wars, where traditional morality can be easily attacked as mere opinion.

One sees this strategy of undermining traditional values in the left's support for Justice Kennedy’s deeply nihilistic majority opinion in Lawrence v. Texas, the 2003 case that set aside criminal penalties for gay sexual relations. Kennedy concluded that condemning conduct a majority considers immoral is not a legitimate government interest. How does Justice Kennedy and the left then imagine that progressive taxation or the protection of wilderness are to be justified? These policies can only be defended properly as morally right. And the same is true of gay rights. The only proper ground to set aside bigotry against gays is for the Supreme Court to call it bigotry. Justice, not tolerance, is what’s needed.

This is not just a problem for the left, however. Scruton and the right are also subject to the death of values. Thus, Scruton’s commitment to traditional institutions as a source of values is just another form of Rawls’ grounding of values in human consensus. Indeed, as I show in a recent article in the Akron Law Review, The Five Days in June When Values Died in American Law, the jurisprudence of the right and the jurisprudence of the left are both deeply compromised by the collapse of values. This is a serious matter that cannot be engaged until it is acknowledged. Professor Freeman’s misguided defense of the value objectivity of the left just postpones that needed reckoning.

Saturday, April 23, 2016

The Democrats Are Wrong About Money

4/23/2016—Democrats and people on the left generally are wrong about the power of money in public life and it is affecting their analysis of the current problem.

Harpers magazine contained a telling statistic this week. When asked the percentage of Republicans who earn $250,000 a year, Democrats estimate 44%. Of course, given the skewed distribution of wealth in America, this figure could not be accurate. The actual number is 2%.

This is important, because it suggests that the power of money to capture the Republican Party is not direct self-interest. No. People are actually persuaded by the Koch Brothers. The problem is political, not structural.

But, isn’t it dark money? Isn’t it hidden? There is certainly some of that. But not much. Mostly, people have been persuaded by arguments, or at least by certain phrases. Low taxes. Small government. The left has been unable to persuade.

But can’t money just get its way? Does the success of Donald Trump and Bernie Sanders suggest that it can? At least money need not get its way directly in politics. The voters vote—-not lobbyists. You can get elected if you can convince the voters.

Money has real power. But campaign finance is the least of the problem. Lobbying is a greater potential influence, but even there the main use of the money is persuasion. Powerful economic interests argue that their policies are good for people and they can hire lawyers and economists to make the case. Conservative macroeconomics has always held a certain sway in America. We are not socialists.

Ironically, if you want to see the brute power of money, look at how corporations are ganging up on North Carolina because of the anti-gay-and-others law. But, notice that the left has no problem with that. Just wait until the NFL says no Super Bowl in New York until the income tax goes down. Then we will hear about the power of corporations.

Monday, April 18, 2016

Ted Cruz on the Second or Third Ballot

4/18/2016—Ross Douthat saw this coming awhile ago. There is really nothing to stop Ted Cruz except Donald Trump on the first ballot. And that probably won’t happen because not many Republicans fear a Cruz nomination more than a Trump nomination.

And they are right. Cruz is a different kind of candidate. He could win. Calling him a wacko bird, as John McCain did, won’t mean much to a lot of voters. The Republicans who don’t like him will happily support him compared to Hillary Clinton, whom they really dislike, or Bernie Sanders, should he win the nomination.

Well, I guess I should be happy that it will not be Trump, who is a dangerous man in a way Ted Cruz is not. But think about Cruz running the country. He calls for a return to the gold standard. Obviously he denies global warming. Fortunately, he is bad on immigration, which is the only issue that will really hurt him. (I know he is extreme on abortion, but any Republican candidate will have a similar position, or that person could not win the nomination).

Cruz also means that the Republican Party will not necessarily have a bad election. After all, Hillary has already shown that she is not a great candidate. Against Trump, Sanders supporters would happily vote for her—would see the necessity of doing so. Not so against Cruz.

I am leaving out how Trump supporters will feel about Trump’s losing the nomination in a process they may feel is tainted. But how deep was their attachment to Trump? Will they translate Trump’s desire to defend social programs into an understanding that Cruz is against their interests? Well, if Hillary understands that dynamic, she could get somewhere. But Hillary is fundamentally a free trader and Trump is not. That will probably foreclose an appeal like that.

Wednesday, April 13, 2016

The Future of Law School

4/13/2016--The ABA has been asking law schools to engage in what they call outcomes assessment. The idea is to operationalize what law schools think they are teaching and then to measure educational success.

Except this is a juvenile task--at least the way it has been presented so far. The bar exam is already a test of whether students learn the substantive law and can communicate analysis in written form. The exam is not everything, but it will do. And students can tell whether they are getting their money's worth on their own.

But, after hearing about this from some experts, I wondered whether the question of outcome might be more deeply posed. Here is what I came up with for Duquesne Law School.
I don’t know whether what the ABA is going to be asking of us is trivial or unnecessary or both, but it has provoked a question in me that perhaps justifies last Friday’s exercise: what is our goal in educating students at Duquesne Law School? It has always been true that Duquesne educates competent, responsible attorneys whose record of public service is unequaled, certainly unequaled by any law school remotely similar to Duquesne in size and resources.

Now, in a genuinely dark time in American public life, perhaps this tradition should be noted and emphasized in a more determinate way as an intentional institutional outcome, thus giving substance to the ABA’s exercise.

To suggest this as part of the long-range response to the ABA, I propose the following remarks.
Outcome: Students will graduate from Duquesne Law School with values, knowledge and skills to help solve the crisis in American public life.

That there is a crisis in American public life is hard to dispute. This crisis is characterized by hyper partisanship, political gridlock and a toxic and trivialized public square. The constitutional tradition has always placed the legal profession at the center of American public life, with a self-recognized responsibility for the health of self-government. In a sense, the client of the American Law School is government of the people, by the people, and for the people. This form of service is consistent with Duquesne Law School’s own mission and the school’s professional obligations. To serve this client, Duquese Law School must itself be a community of faculty and staff that is open and intelligent. Only in that way will our graduates become open and intelligent.
Values: Students will exhibit civility, commitment to the rule of law, a greater commitment to the welfare of the people, responsibility for self-directed, open inquiry, respect for rational analysis and dedication to a life of service to the public good at the different levels of client, legal system, nation and humanity.

I chose civility rather than tolerance because, while civility of discourse is necessary if each member of the community is to be free to engage in open inquiry, there should not be tolerance of bad ideas. Rather, the Law School’s aim should be to foster sound judgment. The rule of law is an important professional commitment, but the Law School motto is a reminder that even the rule of law must not become an ideology on which lives are sacrificed. Open inquiry is hard to maintain in a world brimming with forms of political correctness on all sides and the Law School has not always lived up to this value. Nevertheless, it must remain a realistic goal to be fostered by faculty recruitment as well as by faculty conduct. At this professional level, student self-direction is required, which is to be encouraged by faculty as model as well as instructor.
Knowledge: Students will gain familiarity with the vocabulary, substance, processes and methods of American law, the principles of institution building, mediation and conflict resolution and, most important, the science of human flourishing, including the spiritual life of humanity and the role of humanity in the natural world.

All law students must graduate from law school with a working knowledge of the American legal system in all of its phases. Duquesne Law School graduates must also become expert in sustainable institution-building and conflict resolution that promotes justice. Nevertheless, very little knowledge is generated in law school. Most of the knowledge that is needed for legal education will come from the natural and social sciences. But this knowledge must include respect for spiritual life and the natural world.
Skills: Students will be competent in both the adversarial system and forms of mediation and will develop the capacity to judge when and to what extent each is needed to promote the public good in all of its levels. Students will be able to craft transactional devices needed to operationalize legal rights and duties. Students will have simulated or actual experience in navigating the legal system, structures of government and private economic and social organizations.

Not every student will gain equal levels of skill in all of these areas. But all of these skills are necessary for the graduating student and the curriculum must foster the acquiring of these skills to the extent possible.

Thursday, April 7, 2016

The Religious Liberty-Gay Rights Problem

4/7/2016--First, let me acknowledge that my very heavy semester has been taking a toll on my blogging. Too bad, because so much is going on.

On the religious liberty front, America keeps descending into an unworkable model of division. On the one hand, there is the push for protection of gay Americans against discrimination. On the other, there is a push directly for just such discrimination in the name of religious liberty.

We see this playing out in several States right now, adding in the transgender thing that I have not understood yet.

The first question is, why should any religious believer want to discriminate against gays? I'm not talking about religious institutions themselves and whom they employ. But why would a Christian not sell or rent to a gay person or couple? Landlords don't typically enforce morality in the lives of their tenants. Certainly, any landlord who rents to unmarried couples, which they all do, has no legitimate claim to refuse to rent to a gay couple. The Catholic Church has never supported economic discrimination against gays in the market, for example.

And that kind of inconsistency is also why these religious liberty laws are not helpful. Religious believers and their supporters in law now argue that there can be no judgments by courts about the burden being imposed on their religious beliefs. So, even if the discrimination they want to practice makes no sense theologically, they get to discriminate. I don't think America can accept that kind of economic discrimination.

I grant that there are two situations in which religious discrimination might be justified. First, religious organizations surely get to decide who should work there. And if they don't want people working for them who publicly flout their principles, that makes sense to me. Second, a wedding is for many people not just a commercial event, but a religious one. So, if a believer does not want to participate in a gay wedding, that seems a different situation. But even here, I expect these matters to sort themselves out eventually.

These are pretty dark days in American public life. Part of the problem is the lack of desire for compromise and common ground. Well, sometimes you shouldn't compromise, I know. But usually you should.

Thursday, March 31, 2016

Well, If It is a Crime, Why Shouldn’t Women Be Punished?

3/31/2016—It took Donald Trump to expose the disconnect between the pro-life movement’s rhetoric and its policy prescriptions. Trump said yesterday that the mother should be punished if she has an abortion. Then he backed down. Presumably that is finally the end of him.

But, if the unborn child is a human being and her mother kills her, it is murder. After birth no one says a mother should not be punished for killing her child. No doctor forces a woman to have an abortion, or even encourages her. Why should the doctor go to jail and not the woman?

How about the father who encourages her and pays for the abortion? Does he go to jail?

The reason for this disconnect is that Roe v. Wade has protected the pro-life movement from having to legislate much of anything besides putting abortion providers out of business.

So, how should the doctor be punished? Logically, it should be the death penalty—intentionally taking the life of a child is a capital crime aggravating circumstance in many states.

Well, we are not going to do that. So, let’s finally admit that while the unborn child is human, abortion is not murder.

I call myself pro-life, but that is certainly my position. Maybe the way to handle abortion is with an emergency pill shortly after an unwanted conception, when the ball of cells is not recognizably human. After that, at some point—when is the issue, since most people don’t know they are pregnant for awhile—abortion is banned except when the life or health of the mother is at stake. And health would be broadly defined. This would accomplish what I have always wanted—a legal regime in which abortion is discouraged, but is not usually illegal.

Even this would not be the actual state of affairs, since some states will have abortion on demand and the right to travel to those states is constitutionally protected.

Anyway, we can thank Trump for exposing the false debate we have been having until now.

Friday, March 25, 2016

Religious Exemptions

3/25/2016--In a little noted change, Douglas Laycock of the University of Virginia School of Law, and the country's leading expert on church and state, submitted a brief on behalf of a Baptist group supporting the government's position in the contraception exemption case that was argued in the US Supreme Court on Thursday. Laycock has said that he had never supported the government in such a case before.

In this case, a group of religious organizations claim that the exemption they enjoy from covering birth control under Obamacare is not enough. The exemption still renders them complicit in the procurement of birth control by their employees.

The details of what they have to do under the exemption are contested. But for me they don't matter. It is clear that the organization does not pay for any medical procedures that they oppose on religious grounds.

The problem is the way that the religious organizations say these kinds of cases should be resolved. The cases are being litigated under a statute--the Religious Freedom Restoration Act (RFRA)--that generally prohibits the federal government from placing a substantial burden on the practice of someone's religion unless the Government has an extraordinary justification. The religious organizations seem to be saying that only they can judge whether a government practice is a substantial burden on their religious practice.

This is exactly the sort of claim that the late Justice Scalia feared would be made when he wrote in the Smith case in 1990 that religious believers have no constitutional protection against a generally applicable law. It would court anarchy to allow every religious believer to decide the validity of his own claim.

Well, here we are. The burden on religious practice, whatever it is under the facts, is exceedingly modest. But the plaintiffs in this case say that such a judgment cannot be made by a Court. Maybe they are right, but if they are right, RFRA will have to repealed. And eventually it will be. That is why Professor Laycock is siding, this one time, with the government.

Sunday, March 20, 2016

Maybe Finally a Debate on Trade

3/20/2016—Maybe now, finally, America will have its debate on free trade. Since Bernie and Donald sound very similar on the issue, and since so much of the working class anger seems to focus on free trade, and since the trade issue has seriously hurt Hillary, the debate now seems inescapable.

Readers of this blog know that I have been writing about the dodges of the free traders for awhile. My favorite foil is Paul Krugman, who, as an economist knows the value of trade, but as a columnist cannot bring himself to challenge the progressive wing of his Party.

It is a fair question and now has to be answered. Would America be better off economically if we avoided trade? The answer seems to me so obviously no that I have a hard time treating it as a real question. The problem with the debate is to estimate fairly the alternatives. Those alternatives have to be pretty open trade versus pretty closed trade. You don’t get to choose only the favorable aspects of trade because your trading partners would then be doing the same thing.

So, if you don’t send some manufacturing jobs abroad, you have to ban a lot of imported products. To keep manufacturing air conditioners, you have to ban the import of foreign air conditioners. But then you have to live with expensive air conditioners in all businesses. Eventually, everybody is worse off, including the workers in those more expensive industries.

Plus, a lot of lost manufacturing jobs are being lost to innovation, not trade. Robots are costing a lot of jobs and are doing the same thing that trade is blamed for-—helping the better educated, better off workers at the expense of workers at the lower end of manufacturing. This exacerbates inequality. But I have not heard any candidate criticizing robots.

It is an important debate and the anger of workers, especially the white working class, shows how democracy has failed to promote actual discussion. We can thank Bernie and Donald for making our elites talk about the reality of trade. But Bernie and Donald are still wrong.

Wednesday, March 16, 2016

Three Conservative Commentators Breaking Out of Conventional Wisdom

3/16/2016—What America needs is candor from its political class. It’s getting that and more from Charles Krauthammer, Ross Douthat and David Brooks. It’s more candor than you hear from anyone on the left.

David Brooks is the least surprising. He has always been a little unusual. He wrote a column last week in which he insisted that the Republican Party not turn to Ted Cruz in order to stop Donald Trump. It’s Not Too Late on March 8, 2016. The point of this column was a real effort to reorient the Republican Party: “If the G.O.P. is going to survive as a decent and viable national party, it can’t cling to the fading orthodoxy Cruz represents. But it can’t shift to ugly Trumpian nationalism, either. It has to find a third alternative: limited but energetic use of government to expand mobility and widen openness and opportunity. That is what Kasich, Rubio, Paul Ryan and others are stumbling toward.” The strategy he recommended foundered in Florida.

Douthat also pointed to a brokered convention, but one with a much clearer notion of how that happens. He called on the Party elite to reject Trump at the Convention and live with the consequences. The Party Still Decides on March 12, 2016: “Denying [Trump] the nomination would indeed be an ugly exercise, one that would weaken or crush the party’s general election chances, and leave the G.O.P. with a long hard climb back up to unity and health.

But if that exercise is painful, it’s also the correct path to choose. A man so transparently unfit for office should not be placed before the American people as a candidate for president under any kind of imprimatur save his own. And there is no point in even having a party apparatus, no point in all those chairmen and state conventions and delegate rosters, if they cannot be mobilized to prevent 35 percent of the Republican primary electorate from imposing a Trump nomination on the party.”

Then there is Krauthammer, who characterized Bernie Sanders’ description of his Judaism as an indictment of American Judaism. Bernie Sanders, on March 11. Sanders responded to a question about his Jewish identity by referring to the importance to him of the holocaust. Krauthammer was not criticizing him—“I credit him with sincerity and authenticity.” But he felt that victimhood could not be a proper basis for Judaism. For Krauthammer, rabbinic practice, which is the orthodox approach, and tikkun olam, prophetic repair of the world, are both valid as authentic Judaism. But not just the holocaust.

A very honest, very difficult column to write.

The political right had a much better week than you thought.

Saturday, March 12, 2016

Not Trade but Wages

3/12/2016—Notice how Bernie Sanders and Donald Trump sound the same on free trade? What in the world has happened to the Democratic Party? Where has all this protectionism come from?

I blame the economic leadership of the Party in large part. Finally, today in the PG, Paul Krugman had a modest defense of free trade. It basically came down to this—that America should not renege on prior deals. That is not much of a defense.

The point should not be jobs per se but wages—though the two are related. At a 4.9% unemployment rate—practically full employment, it is hard to argue that the problem right now is too few jobs. The problem is wage stagnation. People who attribute wage stagnation to free trade are overlooking how small a portion of GDP trade makes up. Wages have not stagnated because free trade gives employers leverage to move abroad.

What has happened is that business is keeping a higher percentage of earnings for itself and shareholders than it used to. Wages are not getting the same percentage of the pie as was true in the past. This, not trade, is what needs to be remedied.

The remedy is to push up wages. The simplest way to do this is to raise the federal minimum wage. The slogan should be, America, you deserve a raise. The target should be any candidate for the House who opposes increasing the minimum wage. Once implemented, wages will go up.

Beyond that, the only way I know to put upward pressure on wages is to make it easier to unionize. That effort will face the strong pro-business bias of the US Supreme Court. It is unbelievable that some Justices—Alito, for example—equate union bargaining with associational rights under the First Amendment. That is bizarre. For wxample, there are people who oppose the minimum wage. That does not make the minimum was a free speech issue. Once the political activity of unions is removed, as the Court did years ago, there is no free speech issue in requiring fees for matters of economic representation.

In any event, the point is that it is not trade that is the issue. The issue is wages. Here, I bet Bernie agrees with Hillary and not Donald.

Monday, March 7, 2016

Bill McKibben Proves Me Right on Campaign Finance, Though He Probably Doesn’t Agree

3/7/2016—I have been involved in a mostly ineffectual campaign finance debate with Larry Lessig and many others about the problem of money in American politics. A book review by Bill McKibben of Jane Mayer’s new book, Dark Money, reaffirms me in the belief that I am right and that the mainstream left is mistaken about the fundamental questions of money in politics.

Just to review, and there is a law review article from Cleveland State Law Review coming out shortly on these issues, my main proposals are the following. First, that the problem of the domination of American political life by the right is primarily a political, rather than a financial issue. Second, that campaign-finance is only a small part of the ways in which money influences policy in America. Third, that the problem of money in political campaigns is about independent spending, rather than about the totals of spending.

Now, I don’t mean that either Bill McKibben or Jane Mayer agrees with me in these issues. But between them, they illustrate the soundness of my beliefs. Take the matter of the political, rather than the financial analysis of the political influence of conservative thought. Jane Mayer begins her book in 1980. It is only from that point on that she examines the rise of big spending on the right. But, it should occur to people that Ronald Reagan was elected overwhelmingly in 1980 basically on the very platform that Jane Mayer attributes to the Koch brothers and others. The success of Ronald Reagan in 1980 strongly suggests that the basic message of low taxes and small government is popular with the American people, who have always, left and right, distrusted government.

In terms of the second point—where and how the power of money manifests— McKibben describes how Mayer shows the Koch Brothers’ network at work on the issue of climate change. Basically, “they poured tens of millions of dollars ‘into dozens of different organizations fighting climate reform.’” They hid the sources of the money and, if Mayer and McKibben are to be believed, which I do, they basically paid people to lie about climate change and to raise false charges against honest researchers. Obviously, I’m not defending any of this, but it has nothing to do with campaign-finance. Similarly, these right wing networks don’t just spend money in political campaigns, they spend a lot of money in lobbying and in providing jobs to out of work former officeholders. All of these activities are obviously protected by the First Amendment. The whole story does, I admit, suggest that perhaps democracy and capitalism cannot coexist, which Karl Marx would certainly have anticipated, but it does not suggest in the slightest that campaign-finance reform is relevant to the power of money in American life.

In terms of the third point—how right-wing money works in American elections—McKibben explains that the $200 million spent in 2010 by this right-wing network was primarily “Republican–aligned independent groups” running “absurd attack ads.” These absurd attack ads are unfair, but the main point is that they only can be run, and only would be run, by independent groups. Candidates by and large don’t run these ads.

Remember, my proposal is to eliminate campaign contribution limits. If all of this right-wing money went to candidates, it would be spent giving those candidates an advantage, it is true, but that advantage would only lie in the ability to make policy arguments. It would not be used to tear down political opponents.

We see the power of attack ads run by independent groups right now in the growing movement to try to stop Donald Trump. I don’t hear any liberals complaining. These ads, run by independent groups, will be just as unfair to Trump as they have been unfair in the past to Democrats. This is what we need to rein in. We do not need to overturn Citizens United or SpeechNow to end independent spending. All we need to do is eliminate contribution limits.

Saturday, March 5, 2016

Will Negative Ads and so forth Hurt Trump?

3/5/2016—Well, I would have thought so. Is Trump immune? We’ll see today, I guess. The question is, is Trump actually increasing his support or is he still at the 35% level and wins because he has so many opponents? (Trump is at 35% in Kansas in the latest poll, but might win because the rest of the vote is split). But in Louisiana and Mississippi, polls show him at over 40%--that is a real lead.

The question I’m asking is how much Trump has changed everything? Or is it just that his opponents will not cooperate? What would happen if Cruz and Rubio skipped Ohio? If only Rubio faced Trump in Florida? Trump would lose.

So, is it Trump or is it the lack of discipline and integrity among the remaining candidates that is leading Trump to the nomination? If Trump is so bad, why can’t they put their ambitions aside? And in the case of John Kasich, is it not clear that he will not be the nominee no matter what? So, why would he not tell his supporters to support Cruz or Rubio—whoever in a State has the best chance to beat Trump?

Former Utah Governor Leavitt was right that Trump could be beaten piecemeal, but only if the remaining candidates cooperated.

Would Trump win a convention in which he lacked 1237 delegates going in? On the one hand, Trump is no one’s second choice, so you would think he would not gain delegates on a second ballot.

But, Trump is slick and reckless. He has the money and connections to offer jobs to a few delegates who would put him over the top. He might be willing to risk skirting bribery laws.

Wednesday, March 2, 2016

Is Trump Going to be the GOP Nominee?

2/3/2016—It is still hard for me to accept that Trump is going to be the GOP nominee. Nor is it absolutely guaranteed. Trump will win some of the winner-take-all contests, but not necessarily enough to get to the 1237 necessary. So, as I heard from former Utah Governor Mike Leavitt on NPR yesterday, maybe candidates dropping out is not the best way to stop Trump.

Democrats are somewhat happy with what is going on in the Republican Party. But I don’t know. If Trump is nominated, he could win—I mean something could happen that would make Hillary unelectable. She could still be indicted.

But the most likely outcome of a Trump nomination is that Hillary would pretty easily win the Presidency and that Democrats would benefit in congressional elections as well. Hillary might be a more popular President than President Obama has been.

This scenario would repeat what happened in 2008. What would have been a hard race for Obama turned notably easier as the catastrophe with the economy became clear. Obama might well have lost otherwise. Well, Trump might ensure Hillary’s election when her negatives would have otherwise rendered her candidacy problematic. Fate favors the Democrats.

Saturday, February 27, 2016

Democratic Experimentalism and and the Other Beginning

2/27/2016—There is a similarity between Martin Heidegger and Roberto Unger. For both of these thinkers the greatest problem for change is the inability to imagine an alternative way of life. Such is the power of Western thought.

So both of these men use phrases that suggests new possibilities. Unger writes in his 1996 book, What Should Legal Analysis Become?, of Democratic experimentalism. Democratic experimentalism is the phrase that Unger uses to confront what he calls institutional fetishism, which is “the belief that abstract constitutional conception, like political democracy, the market economy, and a free civil society, and a single natural and necessary institutional expression.” Institutional fetishism prevents even imagining alternative arrangements.

For Heidegger, the intention to provoke thinking toward new possibility is expressed as preparation for the other beginning. Traditional metaphysics as expressed by Hegel and Nietzsche has become exhausted. Its accomplishments have faded. Its words – – all of its great words –- are dead.

We see the fatalism that has infected our public life in America by the response to Bernie Sanders. And I include myself in this fatalism. I have become convinced that nothing really can change, except, ironically, for the worse. I do not believe that anything can really be done that will improve the inequality in society and create genuinely flourishing community.

In part, of course, this is a function of age. I will be 64 on Tuesday. This is not generally a time of life for innovation. In other part, it is a function of class. I am well off. Every day, I see on the bus people whose lives are so hard that I find their irrepressible optimism almost unbearable. Yet still I cannot really believe that things will be that different.

The fundamental dishonesty in my pessimism is twofold. First, I have no reason to believe that things cannot change. I have no evidence. Yes, there is the failed experiment of Communism, a horrible and violent experiment. But why should I think that one failed experiment precludes all other experimentation? Second, all the while that I say to myself that nothing can change, social arrangements are changing radically and wildly in favor of the super wealthy. Social arrangements are different in 2016 than they were in 1970. From my perspective, in many important ways, things are better. That is true in matters of social equality.

But, of course, in matters of economic inequality and opportunity things are genuinely far worse.

So, as Lincoln said, we must think anew. Heidegger and Unger are right. Fatalism is sinful. And we must fight this tendency in ourselves before we can do anything about society in general.

Sunday, February 21, 2016

So How Come Trump is Still Around?

2/21/2016--Am I now prepared to say I was wrong to count Trump out a couple of weeks ago on this blog? Not at all. I was a little worried when he began to go into the high 30% range in New Hampshire. But in winning the South Carolina Primary with a little over 32% of the vote, it seems clear that this is his ceiling. So, Trump is still a function of a fractured Republican field. Assuming it shakes out to be Cruz, Rubio and Trump for awhile, Rubio picks up most of the close to 25% of the votes held by the rest of the candidates. So, I still think it is Rubio and that he could win the general election, unfortunately.

One more thing. The President should have gone to Scalia'a funeral. He is after all a constitutional law professor as well as a politician. He knows what a towering figure Scalia was. Sure, Biden was an ok choice. But why not both go? I think he did not want to be lectured, in effect. Which he would have been. But he did that once to the Justices over Citizens United at a State of the Union Address.

This funeral episode is an example of one of the failings of the man whom history will call a great President. Obama does not have the Reagan knack of making himself personally attractive to the people who disagree with him. He lacks the public warm people thing. And it's not just racism. It's him.

Tuesday, February 16, 2016

Does the Constitution Protect the Right to Have More than One Child?

2/16/2016—The answer to that question is yes and that answer shows that Justice Scalia was not a textualist and that the Constitution is a living Constitution.

First, is this question worth asking? Of course. Not only has China adopted this policy, there are many people who believe human population is the heart of the threat to the planet. It is easy to imagine limiting children as a legislative response.

Second, since many people who want more children are religious, wouldn’t the Free Exercise of Religion Clause in the First Amendment already protect them? The answer is no. Justice Scalia saw to that in the Smith case in 1990, which held that the Constitution does not protect religious people against generally applicable laws.

Now, to answer the question. According to Justice Scalia, there could be no right to abortion, because there is nothing about abortion in the Constitution. But, there is nothing about childbirth either. I think it is fair to say that there is nothing in the text of the Constitution or its amendments that would have been understood when enacted to bar legislative limits on having children. (Someone is free to argue otherwise, but it won’t be easy).

When confronted with this question in the Casey case, Justice Scalia relied on “tradition” to establish that such a law would be unconstitutional:

There is, of course, no comparable tradition barring recognition of a “liberty interest” in carrying one's child to term free from state efforts to kill it. For that reason, it does not follow that the Constitution does not protect childbirth simply because it does not protect abortion. The Court's contention, ante, at 2811, that the only way to protect childbirth is to protect abortion shows the utter bankruptcy of constitutional analysis deprived of tradition as a validating factor. It drives one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.

But who gave judges the authority to enforce tradition? Where is that in the Constitution? Nor was it the understanding of the framers of the Constitution.

More to the point, since traditions change, the Constitution must change. That is, live. If we started slowly—-charging a fee for the extra cost more than 5 children impose on the government, for example, or limiting food stamp and welfare payments if you have too many children—-we do some of that now—-eventually, the right to have many children would erode if it were based on tradition.

For me, it is clear that the reason Justice Scalia understood the Constitution to prevent childbirth restrictions is that such restrictions are morally wrong. And there is a widespread convention against them. So, he would feel it was not just his opinion. But don’t tell me about textualism in any sense. And don’t tell me the Constitution does not live.

When pressed like this, Justice Scalia would respond to the effect that no method of interpretation is perfect. But a method of interpretation that is meant to limit the discretion of judges, as his was said to be, must always be applied or it does not limit the discretion of judges. Essentially, Justice Scalia was saying, I do what I want but I usually want to follow some kind of historical analysis.

Justice Scalia also meant something else in opposing a living Constitution. He did not want to see Constitutional values erode over time. To that end, he was much more consistently attached. And that seems to me a more defensible position.

But even here, context matters. In interpreting the Second Amendment, Justice Scalia seemed to accept that. His right to bear arms turned out to protect just the sort of right he himself could live with—-no right to enter the Supreme Court chamber with a gun.

Sunday, February 14, 2016

Was Scalia a Great Justice?

2/14/2016—Such is the poverty of foundation in American Law that I don’t have any standard—-standard of the craft, I mean—-to judge whether Justice Scalia should be regarded as a great Justice.

Obviously, he was a great intellect and writer, whose opinions on textualism were persuasive to many. He gave coherence to a school of legal interpretation.

But that approach—-textualism-—is silly-—maybe I should say radically incomplete-—and Justice Scalia did not consistently follow it. On at least one occasion, he admitted that he would not render a textualist opinion if the result were really unconscionable. On some occasions, Scalia ignored textual arguments. On many more occasions, textual arguments that could have been made, never even came up. The world in which campaign contributions and advertising are given first amendment protection and it is unconstitutional to pay a fee to a union, is not in any sense a textualist world. [nor is one in which women are given equal protection]. These were all positions he supported.

It is probably fairer to say that Justice Scalia was the usual result driven Justice, who could act out of constitutional principle on certain occasions—-as in the flag burning cases when he stood up for the first amendment. But even that decision was not in the least textual.

Indeed, it is just as hard to say today how text and history should be used to interpret the Constitution as it was when Justice Scalia first joined the Court. All you can say in his behalf is that upon his death, I would think to ask that question, whereas before, no one would have asked.

So, let’s celebrate Justice Scalia as a great writer in law, who raised the issues of text and history to be a question in legal interpretation, even if he himself did not embody any consistent approach to text and history.

Wednesday, February 10, 2016

Is Trump Back? No. But What About Clinton?

2/10/2016—The results of the New Hampshire Primary are in. When the dust settles, I still reject the idea that Trump is for real. But we’ll see. The problem is that Rubio did so badly. So, Trump still gets to lead a fractured field. Trump only got 35% of the vote and he is no one’s second choice. Eventually, the field contracts and he loses.

But what about Clinton? Her showing was so bad that another person would drop out. Is there time for someone else to enter? Probably not. We’re not going to nominate Sanders. So I guess it will still be Clinton. But a large part of the Party does not want her. That's obvious.

I am not demeaning Sanders, but he is a well known neighbor and it is a very good state for him--white and a liberal Democratic Party. This victory does not translate. The problem is Clinton. Her weakness does translate. Even into November.

Sunday, February 7, 2016

Don’t Fight Mistrust; Deepen It

2/7/2016—Jeff Greenfield, described as “a seasoned political journalist and author”, delivered a short video essay Friday night on the PBS Newshour highlighting “the end of trust by Americans in this country’s institutions.” He titled the essay “In Nothing We Trust.”

Here is the website description: “Only 19 percent of American trust the government to do the right thing most of the time, according to a recent Pew Research poll, down from 77 percent in 1964. This lack of trust isn’t limited to the government -- Americans today distrust everything from churches to public schools. Journalist Jeff Greenfield offers an essay on how we became a nation of doubters.”

You can see the video essay here. I’m showing it to my students in a couple of weeks.

There are two questions to ask here. First, is such mistrust a bad thing? As Greenfield admits, Americans have always been skeptical about major institutions. Indeed, the slogan that he plays off of—In God We Trust—suggests that Americans have never trusted human institutions.

The framers of the Constitution, if asked whether they trusted government to do the right thing most of the time, might well have also answered no. So, aside from whether American institutions are actually more corrupt in some sense or whether Americans themselves are more suspicious, you would not necessarily be unable to function politically because of such mistrust.

Greenfield suggests that mistrust is a deep political problem. Maybe it is not.

This leads me to my second question. Why don’t the pollsters ask the obvious follow-up question: do you trust yourself to do the right thing most of the time?

The reason that Americans are so angry is that they feel betrayed. Greenfield may be right that we feel our institutions are failing us.

But the reason the framers were able to view corrupting forces without this feeling of betrayal is precisely that they did not exempt themselves the way we do today. This is a theological perspective founded on a Protestant view of a fallen world. Americans act as if we are innocent and are betrayed by others. Actually, as Protestant thinkers have always pointed out—most recently perhaps Reinhold Niebuhr--we are not innocent at all. We are easily just as corrupt as a President Clinton or a Volkswagen or any other example you would like. And that would be a much healthier starting point for political life. That starting point might help assuage the anger and self-righteousness that characterizes American political life today.

So, don’t fight mistrust. Deepen it.

Thursday, February 4, 2016

Is This Weimar?

2/4/2016—Last night my wife and I went to see the revival of Cabaret playing here in Pittsburgh. Since I teach today, I could not stay to see the second act. But I saw enough.

For those of us raised on the movie, this production is raw. What is in the movie a hint of corruption is here transformed into full, bleak nihilism. The line in the play about it seeming that Berlin is little children playing ever more wildly, waiting for parents to put an end to it, must have been in the original production. So, this overdone decadence is not imposed on the musical. But the scene is bleak. Sex and money define everything in life and only the Nazis have any real force. Even the landlady who wishes to marry sings “So What” in the first act.

But now think about our musicals and how many of them highlight corruption. Chicago, of course, comes to mind. And there is some of the same theme in La Cage aux Folles (in fact you could think of Cabaret as La Cage meets the Sound of Music). Then there is The Angry Inch.

Not all or even many musicals are like this. There is the huge Disney contribution to Broadway. But those musicals are meant to be fluff. They tell us nothing of life. Literally, they are suitable for children.

What is missing is the serious musical that considers life and affirms it. For example, South Pacific. Would that be possible today? People still love that musical.

It’s amazing that Cabaret premiered in the confident 1960’s—-in 1966. But maybe then it was Germany that was the issue. Clearly now, at least, we are meant to feel the impending doom all around us.

Is this Weimar? Well, if it is, it is not nearly as much fun. It is not riotous disorder. It is a slow ebbing. After the show, my wife and I watched numerous instances of what looked to us like decline outside the theater.

But what is missing in the two contexts is quite similar—-hope. Where is hope for the future today?

Saturday, January 30, 2016

Journalism Under Attach—Again

1/30/2016—See if this sounds familiar. Investigators with an ax to grind against an industry lie about their identities to expose practices that will embarrass the industry before the public. The industry fights back, claiming the reports are selectively edited and seeking criminal prosecution of the investigators.

You may be thinking of the indictments in Texas of the two individuals who were involved in making secret recordings of Planned Parenthood that were released to publicly discredit the group. David Daleiden and Sandra Merritt were indicted for tampering with a governmental record, a second-degree felony, and Daleiden was also indicted on the count of prohibition of the purchase and sale of human organs, a class A misdemeanor, according to the Harris County district attorney.

But I’m thinking of the efforts by Agribusiness to get undercover employees indicted for taking videos of what goes on inside factory farms. See Agribusiness Wants Cruelty Investigators “Prosecuted to the Fullest Extent of the Law”.

Daleiden and Merritt insist the actions they took, including the creation of false identities, were part of a legitimate journalistic investigation of the “abortion industry.” The charges against them are flimsy. A felony charge for altering a driver’s license? And how can anyone be charged with procuring human organs when they had no intent to actually procure them? They were pretending.

The same people ready to cheer the indictments of the Planned Parenthood investigators presumably understand the threat of the agribusiness campaign to get investigators prosecuted. But these are basically the same cases. Criminal law is no way to treat people who are trying to inform the American people about abuses in government, business or any other important sector of American life.

Businesses that have nothing to hide—have nothing to hide, including Planned Parenthood.

Wednesday, January 27, 2016

The End of Trump

1/27/2016—There are more important things going on, but I must comment on the demise of Donald Trump. Now, Trump was never going to be President. He is a creature of television and celebrity culture. There was always going to be a time when people got serious. That time seems to have arrived with Trump’s walking away from the next Republican debate over the presence of a moderator with whom he has feuded.

We can assume that Trump is not as out of control as to actually be walking over this. He probably has decided that he does not need or cannot control the debate format. But the action looks bad in every sense. I don’t think ordinary people will like it and that will begin his unravelling. He won’t win Iowa. He won’t win New Hampshire. Suddenly everyone will wonder why he was an issue.

For me, that won’t improve matters much. Ruth Ann Dailey wrote in the Post-Gazette that there is a good reason why the Republican establishment is more worried about Senator Cruz than Trump. Cruz is a perversion of the conservative position—I think she called him brutal. Trump is irrelevant to conservatism.

So, if the demise of Trump leads to Cruz, it is perhaps not much improvement. But Trump had to go away eventually and now that he is going away, maybe others can emerge.

Sunday, January 24, 2016

Secular Rites

1/24/2016 – – I attended a memorial service yesterday. It was billed as a kind of wake. But it turned out to be a small religious service in a VFW Hall.

The event was presided over by an Episcopal priest who was a cousin of the wife of the deceased. It was surprising how orthodox the small service was. The liturgy was taken directly from regular Episcopal rites. It was particularly surprising given that, as far as I know, the deceased was not a churchgoer.

The memorial service reminded me of the three things I have noticed in death related matters along more or less secular people. First, no one knows how to do these things except the clergy. And this was shown again yesterday. The presence of the priest lent a real solemnity to the event. He handled it very well and was very satisfying to everyone. So, the clergy do not impose themselves on non-churchgoers. Instead, they are sought out. This is one of the great failures of secular civilization.

Second, once they are installed, the clergy go into their usual liturgy. I don’t know why I would think otherwise, but how many of the people in the room believe in or understand anything about the resurrection of the dead? About a third of the room knew the responses that the service requires. A VFW Hall is just not a church. However, as my wife says, this bothered no one but me. No one else was listening.

Finally, I am struck by how the Christian clergy move immediately to life eternal. It is as if the whole purpose of life is to inherit eternal life, which from a certain point of view you might say is the case. But it is such a peculiar theology. Here you expect something about living. And all you get is this proposal that death is not what it seems. The deceased is now with God and the Saints.

To me, this theology of the afterlife is the best reason of all to be secular. If there is a memorial service for me I hope someone says, well, Bruce is dead. You soon will be too. Better get moving.

Sunday, January 17, 2016

The Push Back Against Ending Campaign Contribution Limits

1/17/2016—I now understand better why there is such a reaction against my proposal to end campaign contribution limits. The pushback I am describing is continuing exclusion of my ideas from books on campaign finance reform and symposia on the same topic. I thought my presentation at Cleveland State last spring was the end of that problem but I now see that that is not the case.

My goal is to end independent political spending. I consider independent spending, rather than contributions to political parties and candidates, to be the real problem of money in the United States. Once contribution limits are ended, candidates and voters can demand that independent money go to candidate campaigns instead.

Now, many people would agree that, given the current context of unlimited contributions to Super PACs, politics in the US would improve if all this money went to candidates instead. So, my plan would be better than the current situation. But promoters of campaign finance reform absolutely refuse to consider my plan as even a temporary move. Why?

I now realize that many people who share my view of the domination of public debate by the interests of the 1% expect to return to a legal regime of general contribution limits and maybe even spending limits (although we have never really had that). So, David Cole, Georgetown Law Professor who now seems to have the old Ronald Dworkin gig at the New York Review of Books, writes in a letter exchange with Burt Neuborne in the December 17, 2015 issue, “When the Supreme Court revises First Amendment doctrine to permit greater regulation of campaign finance—and I do mean when, not if… .” And the Brennen Center has just released a report entitled “5 to 4” that shows how different the law of campaign finance would be if only one vote had changed on the Supreme Court.

People in this mind frame are like Christians expecting the second coming. They cannot be convinced to do anything that would detract from utopia. Ending contribution limits would therefore amount to “surrender”—another term that has been used in excluding my work.

There is a lot going on here and it is hard for me to describe it simply. For one thing, partisans in the finance wars have never specified just what the end game actually is. Forgetting free speech protections for the moment, just what would be the ultimate system of campaign regulation? It is easy for me to see that no structural innovation can end the power of wealth—-what David Cole calls in his review of Neuborne’s Madison’s Music book, “big money.” The only hope for doing that is a political response. Revitalizing politics by making the candidates the focus is a first step in that direction. Any structural change will just turn independent ads into “issue ads.” The same people who now run independent campaign ads would be running independent issue ads against Obamacare and the Iranian deal. There needs to be a place for this money to go where it participates in the political process rather than replaces it.

And that is why ending contribution limits is a better way forward than any other innovation. The fact that it is the one step that is consistent with current law just means it is also the easiest step to take. But I doubt I can convince campaign finance reform proponents of that.

Friday, January 15, 2016

Fix Our Politics

1/15/2016—Last Tuesday, in the State of the Union Address, President Obama plaintively said, “Fix Our Politics,” (Or so I read. I don’t watch these things).

I talked about this last night with my students in Philosophy of Law. We probably mostly agree about what’s wrong with our politics now. A long-time Republican wrote in the New York Times this week that he could not vote for his Party’s leading candidate for President and that the leading Democratic candidate was an ethical train wreck. The problem has to do with the kind of people who are running, the spirit that supports them no matter what, and the distrust, even hatred, that prefers paralysis to cooperating with “the other side.” Something along these lines.

Of particular concern to me is the inability to act on global warming, which threatens our children and grandchildren in particular and obvious ways. Once upon a time, we would have been able to act. We did rearm during the 1930’s, after all despite deep divisions over isolationism, for example. (though we helped kill the League of Nations).

But if we could reach some agreement about what is wrong, we cannot agree about what to do about it—how to fix it. President Obama did not offer to be less activist in using executive power where Congress is supposed to lead, for example. Nor did his supporters criticize his gun control initiative on that ground. That would have been a first step.

Instead, the Parties blamed each other. Or, they spoke in generalities—how there is much blame to go around without suggestion.

The call to fix our politics has already disappeared.

What if our problem does not have a fix? I told my students that according to Martin Heidegger, these matters proceed at a deeper level. At the level of stimmung—the German word often translated “mood”, but which better means overall orientation. What I am open to. Fix that. That is not any easier, but it is in a better direction.

Robert Taylor used to ask his students, in what mood do you have to be to study law? I would now answer, a mood of anger and distrust. We need, instead, the kind of openness that once would have been called piety, but which you could call serious, hopeful expectation.

In some ways my least favorite columnist, David Brooks, wrote today that we “accidently” abandoned beauty in our current way of life. But there was nothing accidental about it. We paid a lot of money to abandon beauty. We watched a lot of advertising. Capitalism is not beautiful. Nor is it pious. If you want a better comment about beauty, look at John Rago's comment on this blog from two days ago.

Saturday, January 9, 2016

Lessons from New York

1/9/2016 – – Greetings from the annual meeting of the American Association of Law Schools. I have been here a few days, which has limited my blogging.

The annual meeting of a powerful and influential organization can teach lessons about the state of American political life, as well as about the morale of the law profession. In terms of law schools, this meeting illustrates the small recovery going on among law schools. The sense of panic from a couple of years ago is absent. A few more frills have returned to the meeting. On the other hand, the experience of the economic downturn in law schools has sharped class divisions within legal academia. There is an undercurrent that perhaps some law school should close and perhaps other law schools should be teaching students for lesser legal activity. The opening session, for example, expressly dealt with the role of “leading” law schools.

Another lesson from within legal academia is the bourgeois and conventional aspect of American law professors. So, for example, in a session entitled On Resistance and Recognition, which was the session title for the important constitutional law section, I expected to hear about illegal activity undertaken to promote a constitutional and/or political vision of some kind. I expected to hear about Occupy Wall Street and the current armed occupation in Oregon of federal property. I expected to hear about classic examples of civil disobedience.

But I heard about nothing of the kind. The closest one got to resistance was something like the celebrated dissent by the late Chief Judge of the New York Court of Appeals, Judith Kaye, in New York’s gay marriage case a few years ago.

The political lessons from the annual meeting are two: the recognition of the decline of American public life into political polarization and paralysis and the growing economic inequality in society.

The best example of the recognition of the decline of American public life came in that same constitutional law session. Josh Blackman, a professor of law at South Texas College of Law, even joked about recent surveys that show the decline of Americans’ opposition to interracial marriage by their children. Years ago, there was overwhelming opposition but now just 5% or so. In contrast however, years ago only around 5% of Americans objected to the marriage of a child to a member of a political party other than that of the child’s parents. But today, around 43% of Americans object to such a marriage.

But no one wants to think about why this is has happened.

The best example of the growing concern about income inequality is a topic yesterday at the parallel meeting of The Federalist Society, which takes place every year at the meeting of the AALS. One session aimed to consider “to what extent the disproportionate increase in income among the very wealthy is due not to market forces but to rent seeking and government policies that are the product of rent seeking. It will also discuss possible solutions.”

So conservatives – – The Federalist Society is very much the embodiment of a certain form of conservatism – – are worried. And I would judge that this worry is not just concern about a political problem of spin. I would judge that it represents a genuine concern with the phenomenon of inequality itself and its implications for democracy and the fear, conscious or not, that capitalism and democracy might not be so compatible after all. How very reassuring then to conclude that active government, rather than the market, is the source of the problem.

Sunday, January 3, 2016

Is Life Inherently Tragic?

1/3/2016—The most important questions are sometimes easy to pose. One such question concerns the meaning of a human life. Rather, I guess you could say that the question is whether there is any such meaning or could be?

Apparently alone among animals, humans know that we die. As I age, the slow breakdown of the functions of my body in my 60’s heralds that coming end. I will never be as energetic and flexible as when I was younger. As I get older, there will be more functions that break down and daily pains will grow. Eventually I will weaken and then die. As I do, my loves and friends will die along with me. If I live long enough, I will die without contemporaries.

And this is if I am lucky. Life can be, and often is, a lot worse than that at the end.

Is knowledge of this reality tragic? It can feel tragic. Many people feel that it is tragic and don’t want to think about it. If they thought about it, they could not answer the question, "What then is the point of living?"

Traditional Christian thinking saw human existence differently. As I wrote on this blog at Christmas, the Christian view is one of comedy—-the term used essentially for happy endings. We reunite on the day of resurrection of the body or in heaven before that. Many religions find ways around death as final—-as in reincarnation in Hinduism and Buddhism.

For those who view death as the end of consciousness—the end of me—is there anything but bleak despair?

This is an important question for secularists, who view human life as at least premised on natural, material existence. When the brain dies, we die, and nothing of us could survive.

But not all natural religion shares a tragic outlook. One surprising example is early Judaism. This is Judaism before the notion of a Messiah and the end of history took hold. In Genesis, Abraham is told that the meaning of his existence is to produce blessing for all the world through his descendants, who will introduce the world to the one true God and will live in accordance to God’s will. He can die secure in the knowledge that his life is the beginning of that chain. He dies knowing that he lived in accord with the truth.

You don’t have to be religious to see things this way. In an essay on the whig history of science in the December 17 issue of the New York Review of Books, Steven Weinberg, whom I judge to be among the hardest of atheists, shows that he is dedicated to “the slow and difficult progress that has been made over the centuries in learning how to learn about the world… .” Weinberg is part of that chain in just the way that Abraham is part of the chain of blessing. Indeed, both consider their ways to be blessings for future generations. Marxists used to see things this way--history was the unfolding of the utopia of communism.

On the other hand, the same NYR issue, in a review of Selected Poems by John Updike, shows Updike as increasingly bitter as his life is ending. Updike writes, “Is there anything to write about but human sadness?” He writes this even though, as the reviewer, Jonathan Galassi, points out, Updike had earlier urged us all to excel to perfection in our lives.

The difference between an Updike and a Weinberg or Abraham is an understanding of, and commitment to, truth—-enduring truth. For Updike, his writing had not been in the service of any form of truth, but instead, had been his “own brand of magic.” He called his life in all its parts “The whole act.” And now that beautiful act, that amazing performance, simply ends.

Updike could not even commit to believing that his act was worth imitating. He could not rest in the assurance that he had taught truths to future generations. He could not even believe that he had performed as a human being should. Naturally he died in despair.

The deeper problem for Weinberg is his disdain for purpose. For him, the mistake of early thinkers in trying to learn about the world was the search for purpose. Aristotle and Plato thought “that it is only possible to understand things when one knows their purpose. These ideas stood in the way of learning how to learn about the world.”

But Weinberg himself acts like a man who knows the purpose of human life. The purpose of human life is to learn about the world. Not everyone becomes a scientist, but everyone participates somehow in this endeavor. And knowing the world is not just something to do. Knowing the world is valuable in itself. His version of human life is true in just the traditional religious sense. Knowing the world is not just a hobby. Maybe it is not the truest thing a human being can do, but it is one of the true things a human being can do.

We experience our own lives in just such purpose laden ways. In retrospect, our lives feel preordained. Joan Friedberg uses the Yiddish term "bashert" today in the Post-Gazette to describe her chance meeting with her future husband in 1949: something that was meant to be. She knows it did not have to happen. But this life she has known is part of her purpose.

Weinberg’s problem is that he also believes that reality has no purpose. Reality is just blind forces. But if that is the case, then his belief that his life has purpose is an illusion. Humans just try to impose purpose on meaningless matter. We fool ourselves in order to live without despair.

But this view that we are just fooling ourselves, which Weinberg ought to share but cannot quite accept (I am guessing here), just masks a deeper mystery. Why did humans evolve this way? If the universe is without purpose, why are we purpose seeking in the way we are? How could such a universe produce us?

It is comforting, but I believe also reasonable, to reject this view and to conclude instead that the universe is fit for us. That our searching for meaning can produce worthwhile and lasting results. That the universe is not cold and indifferent but warm and welcoming to us. No, there is no invisible being arranging all this—-no God in that sense. But there is some larger whole into which humans and all nature are meant to fit. And if one spends a lifetime searching and studying that whole, one has lived properly. One can even then die with satisfaction. That life is not tragic.

Wednesday, December 30, 2015

Ross Douthat’s Critique of Modernity

12/30/2015—Last Sunday, New York Times columnist, Ross Douthat, published an op-ed entitled Cracks in the Liberal Order. The column was widely republished, including appearing in the Pittsburgh Post-Gazette. The point of the column was that in the twenty five years since the fall of the Berlin Wall in November, 1989, there has been a liberal consensus about capitalism, the rule of law and democracy. (Douthat does not actually describe the prevailing consensus). But now, all that is under pressure and even if it survives, it will not look impregnable.

In Europe especially, the elites of modernity have pushed continental integration, which is now under pressure from violent Islamic extremism, on the one hand, and massive immigration, on the other. No longer can these elites keep political movements of the right and left at bay.

Another part of the crack up is the decline of the Pax Americana, which has never looked so weak.

In America, Trump on the right and the new New Left of Black Lives Matter and the socialism of Bernie Sanders, shows that also in America, extremism is on the rise. Illiberal politics is growing.

Now, quite aside from the slipperiness of all Douthat’s terms—modernity goes back a long way and all but Islamic extremists are quite modern—this is a very irresponsible column. I don’t mean it is inaccurate. I don’t mean that Douthat should have kept such bad news under wraps. And I don’t mean that Douthat had a responsibility to come up with some alternatives.

No. By irresponsibility, Douthat should have acknowledged his own guilt. How has he contributed to all this? That is the responsibility all of us have. For example, the real source of the crack up in America is not Black protest and flirtations with socialism, but the inability of capitalism to deliver benefits to most people. It’s the growth of the 1% that Douthat is not particularly bothered about. And in Europe too, the deal was wealth to the rich as well as security to everyone else. The deal has broken down.

Now, how do I practice what I preach? How do I contribute to the crack up? Well, part of the crack up is the weakening of organized religion and I left Judaism. Part of the crack up is the inability of secularity to imagine flourishing social structures for people or to develop even understandings of hope and transcendence that would make sense in a secular world. I certainly have not solved that problem.

Yes, undoubtedly a crack up. Much more needs to be said that Douthat is willing to say.

Friday, December 25, 2015

Merry Christmas 2015

12/25/2015—Readers of this blog know that hallowed secularism will have close connections to traditional, organized religion—especially what might be called the mythic life of our religions. Thus, hallowed secularism in India will be strongly influenced by Hinduism, in the Islamic world, by Islam.

The Christian West bears already the strong marks of religion in its secularism. The whole idea of “good without God,” for example, is Christian to its core.

At the heart of the mythic life of Christianity, its rhythm, is the movement from Advent/Christmas to Good Friday/Easter. From promise to event, from tragedy to resurrection. It is this rhythm that hallowed secularism in the West must learn from.

The major thrust of the Christian myth is its inherent meaningfulness. And that meaningfulness is not negative but positive. The ultimate optimism of Dante’s Divine Comedy or Milton’s Paradise Lost and Paradise Regained is absolutely true to Christian life and thought. The creative power of the Christian West historically can be placed here—at the point of meaning and optimism.

It is at this point that the struggle of hallowed secularism with nihilism occurs. It is not clear how that struggle will go. Even Heidegger, the thinker of western post-Christianity, is not clear to me on this crucial point. On meaning, yes. But I have seen him read as a tragic thinker.

I believe not. When Heidegger holds out for the West an other beginning, he seems to me to be doing just what hallowed secularism must do—adapting to the myths of its religious origins. Christmas is always an other beginning. The Christ child is always coming. Advent is Heidegger’s emphasis on preparation.

That is enough for today. For Christmas Day. How Easter will go is another issue for another day.

Thursday, December 17, 2015

Underlying Consensus?

12/17/2015—Perhaps a consensus is growing underneath the partisan breakdown in American public life.

I had a talk with a conservative friend about matters yesterday and I noted real change in both our positions. On global warming, I was told that movement on this issue is irreversible, Republican Party rhetoric to the contrary notwithstanding. Now, I have my doubts about this, but this is a sea change. I don’t know whether this is about Pope Francis on global warming or the overwhelming planetary consensus in Paris on warming, but it seems the debate about whether there is global warming, whether human contribute and whether it is serious, is about over. (What to do is another matter).

I was even more surprised about terrorism. We agreed that once individuals begin shooting people at random in the name of religion, you no longer really have a police or military issue. You cannot station police everywhere. Nor, as France shows, can you keep such people from obtaining guns. You no longer really have a gun control issue. (France has strict controls and this did not stop the Paris attack).

At this point, matters proceed on two fronts. First, there is a theological issue for Islam. Is violent Jihadism genuine Islam or not? Second, Muslims must cooperate in the ending of violent attacks by Muslims. (We disagreed somewhat over whether Republican Party rhetoric was making this more difficult and whether President Obama’s policies in the Middle East were to blame for some of the attacks.)

As readers of this blog know, I consider the present to be a watershed for Islam. The world is not going to tolerate a religion that foments vicious and random violence. And by world, I include Muslims. Muslims will either take their religion back or leave it, in the long run. Remember, in similar circumstances in the 1700’s, Christians in Europe ended the wars of religion by creating the secular state and limiting the public role of religion. Unless the theology of war is defeated theologically and sociologically, Muslims will eventually do the same thing.

And my friend and I also agreed that it is dangerous to give the government power to investigate too closely the spouse an American citizen chooses. Yes, occasionally this means a radicalized American will choose a dangerous spouse. But sometimes you have to tolerate shootings in the name of liberty.

Wednesday, December 9, 2015

The Spirit of Doom

12/9/2015—The underlying theme of the 2015 movie Tomorrowland is that we are succumbing to a mood of despair versus an earlier mood of hopefulness and that this change is itself making things worse. People in despair do not improve their situations.

This theme plays out both expressly and implicitly in the movie. In one exchange, the hero, Casey Newton, repeats to her father a story he has often told her:

Casey Newton: There are two wolves who are always fighting. One is darkness and despair. The other is light and hope. The question is... which wolf wins?
Eddie Newton: The one you feed.

In another scene, Casey is in high school. Three teachers, in a row, drone on. One is describing mutually assured destruction and the danger of nuclear weapons. Another is describing the dire effects of global warming. A third, dystopia in literature.

But, despite the dangers described, the students are bored stiff. They are tuned out. Why not? They are not being challenged to do anything. This is all just happening.

Meanwhile, Casey has her arm in the air, trying to ask a question. The first two teachers ignore her. The third finally calls on her. Casey asks, what are we doing to fix it? I mean, I know things are bad. But what can we do?

The third teacher is just flummoxed by the question. Now the audience sees that the teachers are as bored as the students. For they also do not believe in the possibilities of the future.

Now think about America’s broken politics. How we hate each other. And call each other un-American. And say the other side ignores science—(by the way, liberals ignore science all the time. See genetically altered food.)

Wouldn’t it be crazy to believe that our politics could improve? What could possibly do that? So, we are infected by the spirit the movie is protesting.

Science fiction is often a harbinger of the future—as is art in general when it’s healthy. Science fiction gave us the Terminator movies and the Matrix movies, warning us against technology destroying the human quality of humanity.

Well, in the October 18, 2015 issue, Charles Yu reviewed six science fiction novels in the New York Times Book Review—my barometer of the elite—and this is what he wrote about them in general:

And although it is admittedly a small sample, after having visited this particular cross section of the fictional galaxy, it’s hard not to notice a prevailing atmospheric quality common to many of the stories: So much of this work feels as if it is post-something, pervaded by a sense of living and writing in an era that comes after, of fiction being produced by novelists who can’t help feeling that it’s getting late or, in some cases, that it’s too late. The emphasis here being on the post-, and less on the something, which is variable from writer to writer and from story to story. Sometimes the something is big and vague, and sometimes it’s more specifically defined.

It’s too late. It’s getting late. Like Tomorrowland, we are in deep trouble that we cannot get out of.

They always said that we would run out of resources one day. I never quite imagined that the major resource we would run out of, would be hope.

Saturday, December 5, 2015

Islamic Terrorism, Christian Terrorism and Jewish Terrorism

12/5/2015—The last few months have given us examples of terrorism—the killing of innocent civilians—by representatives of the three Abrahamic faiths. What do these examples tell us?

For the first category, many recent attacks sponsored or associated with the Islamic State: the Russian plane on October 31, the attacks in Beirut on November 12, the Paris attack on November 13 and the shootings in San Bernardino on December 2.

For the second, the November 27 attack on Planned Parenthood by Robert Dear that killed three.

For the third, the July firebombing of a Palestinian home in Duma that killed three.

Now obviously the three religions are not provoking terrorism in the same ways. For Islam, there is a worldwide network and some kind of religious message that inspires these acts. In contrast, Robert Dear was apparently a lone wolf. The two shooters in San Bernardino acted alone, apparently, but at least one clearly saw herself as acting in concert with the Islamic State.

Islam has a serious theological problem. Somehow, thousands of people believe Islam teaches the propriety of the slaughter of civilians. Christianity as a world-wide movement does not have this problem.

What about Judaism? At its heart, the Israeli-Palestinian struggle is religious. Both religions believe the land and its political structures must be dominated by one religion. This makes it difficult to see a proper role for members of other religions in the region. I am not leaving out secular nationalism, which plays a role as well. But there is this religious aspect.

We are not used to thinking of Judaism in these terms. But Judaism has never come to terms with the place of the non-Jew. Famously, Rashi, the medieval authority with the greatest influence on rabbinic Judaism, taught that the reason the Old Testament begins with creation is to show that God created the land of Israel and can give it to the Jewish people if he chooses—not to show that all humans are brothers in the eyes of God. There are universal voices in Judaism’s classic sources, but they are not as dominant as the ideology of the chosen people.

Until we admit that religious violence is a religious problem that must have a religious solution, the violence will continue.