Geoffrey R. Stone's Blog, page 13
June 21, 2012
What the F***?
The Supreme Court today decided Federal Communications Commission v. Fox Television Stations. The issue was the constitutionality of an FCC rule prohibiting the use of "indecent" language over the airwaves. In 1978, in a case involving a broadcast of George Carlin's famous "Filthy Words" monologue, which mocked the FCC for banning precisely those words, the Court, in a sharply-divided decision, held that the FCC's rule was constitutional.
Much has happened since 1978, however, and although the use of such words is still forbidden on radio and on broadcast television, they are now used pretty much everywhere else, including cable television, movies, pop music, and the internet. The question is whether what once seemed a credible policy designed to protect children and hyper-sensitive adults from hearing naughty words is now nothing more than a quaint relic of a bygone era and, more dangerously, an open invitation to discriminatory enforcement by the FCC.
The case decided yesterday involved several "fleeting" expletives. In one incident, Cher exclaimed during an unscripted acceptance speech at the 2002 Billboard Music Awards, "I've had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." The following year, at the same event, Nicole Richie made the following unscripted remark while presenting an award: "Have you ever tried to get cow s*** our of a Prada purse? It's not so f***ing simple." A third incident occurred at the 2003 Golden Globe Awards, when Bono, upon winning the award for Best Original Song, exclaimed, "This is really, really, f***ing brilliant. Really, really, great." For these and similar incidents, the FCC levied fines on broadcasters totalling some $8 million.
In 2008, the United States Court of Appeals ruled that the FCC lacked statutory authority to apply its rule to such fleeting (rather than scripted) expletives. In 2009, the Supreme Court, in a 5-4 decision, held that the FCC did have statutory authority for its rule, but sent the case back to the Court of Appeals to decide if the rule was consistent with the First Amendment. In 2010, the Court of Appeals unanimously held that the rule was unconstitutionally vague because broadcasters could not reasonably know when the FCC would or would not apply the rule. The Supreme Court again agreed to hear the case and in today's unanimous decision it avoided the central question and held instead that the FCC could not constitutionally apply its fleeting expletive rule to these broadcasters because it hadn't given them sufficient notice in 2002 that it would do so. I'll bet you never thought f*** and s*** could be so boring.
So, what's the real significance of the case? It is this: Throughout its opinion, written by Justice Anthony Kennedy, the Court repeatedly wrote f*** and s***. It declined to acknowledge the actual words at stake in the controversy. This is depressing. In 1971, when the Court held in Cohen v. California that a state could not constitutionally make it a crime to use the word fuck in public, it used the word fuck. In 1978, when the Court upheld the FCC's rule banning the use of "indecent" words over the airwaves, it quoted in full George Carlin's monologue, including the words shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those words, according to Carlin, were the "ones that will curve your spine [and] grow hair on your hands." When the Court of Appeals decided this very case (twice), it had no qualms about using the actual words that were at issue in the case. But Justice Kennedy had to use ***s to avoid saying fuck.
This is not what lawyers and judges do. Lawyers and judges deal with the real world. They deal with murder and greed and rape; they deal with enhanced interrogation and brutality and gruesome wounds; they even deal vaginas (unlike some legislators these days). It is their responsibility as professionals to deal in a mature and straightforward manner with all sorts of unpleasantness. A lawyer representing a person accused of child sexual assault cannot refuse to confront the allegations because they make him squeamish. Like a doctor treating a mutilated child, they have to deal with the world as it is. Especially in a First Amendment case, lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable. To do otherwise is to deny the realities of the case before them. It is to put their own sensitivities above their obligations to their clients and to the law. It is, in short, unprofessional.
When Melville Nimmer represented Paul Cohen in the Supreme Court in Cohen v. California, he knew he had to say the word fuck in the Supreme Court for the first time in its history. He also knew that Chief Justice Burger did not want this to happen. Sure enough, when Nimmer approached the lectern to make his argument, Burger leaned over the bench and instructed Nimmer, "Counsel, we are familiar with the facts of this case. You can dispense with them and move directly to your legal argument." To which Nimmer replied, "Of course, Your Honor. Suffice it to say that my client was convicted of disturbing the peace for wearing a jacket in public bearing the words "Fuck the Draft." It was at that moment that he won his case, because lo and behold the walls of the Court did not crumble.
In the context of the ongoing debate about the Catholic Church and the rights of women, I recently heard a nun quoted to the effect, "Christianity is not for sissies." Neither, I might add, is freedom.
Much has happened since 1978, however, and although the use of such words is still forbidden on radio and on broadcast television, they are now used pretty much everywhere else, including cable television, movies, pop music, and the internet. The question is whether what once seemed a credible policy designed to protect children and hyper-sensitive adults from hearing naughty words is now nothing more than a quaint relic of a bygone era and, more dangerously, an open invitation to discriminatory enforcement by the FCC.
The case decided yesterday involved several "fleeting" expletives. In one incident, Cher exclaimed during an unscripted acceptance speech at the 2002 Billboard Music Awards, "I've had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." The following year, at the same event, Nicole Richie made the following unscripted remark while presenting an award: "Have you ever tried to get cow s*** our of a Prada purse? It's not so f***ing simple." A third incident occurred at the 2003 Golden Globe Awards, when Bono, upon winning the award for Best Original Song, exclaimed, "This is really, really, f***ing brilliant. Really, really, great." For these and similar incidents, the FCC levied fines on broadcasters totalling some $8 million.
In 2008, the United States Court of Appeals ruled that the FCC lacked statutory authority to apply its rule to such fleeting (rather than scripted) expletives. In 2009, the Supreme Court, in a 5-4 decision, held that the FCC did have statutory authority for its rule, but sent the case back to the Court of Appeals to decide if the rule was consistent with the First Amendment. In 2010, the Court of Appeals unanimously held that the rule was unconstitutionally vague because broadcasters could not reasonably know when the FCC would or would not apply the rule. The Supreme Court again agreed to hear the case and in today's unanimous decision it avoided the central question and held instead that the FCC could not constitutionally apply its fleeting expletive rule to these broadcasters because it hadn't given them sufficient notice in 2002 that it would do so. I'll bet you never thought f*** and s*** could be so boring.
So, what's the real significance of the case? It is this: Throughout its opinion, written by Justice Anthony Kennedy, the Court repeatedly wrote f*** and s***. It declined to acknowledge the actual words at stake in the controversy. This is depressing. In 1971, when the Court held in Cohen v. California that a state could not constitutionally make it a crime to use the word fuck in public, it used the word fuck. In 1978, when the Court upheld the FCC's rule banning the use of "indecent" words over the airwaves, it quoted in full George Carlin's monologue, including the words shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those words, according to Carlin, were the "ones that will curve your spine [and] grow hair on your hands." When the Court of Appeals decided this very case (twice), it had no qualms about using the actual words that were at issue in the case. But Justice Kennedy had to use ***s to avoid saying fuck.
This is not what lawyers and judges do. Lawyers and judges deal with the real world. They deal with murder and greed and rape; they deal with enhanced interrogation and brutality and gruesome wounds; they even deal vaginas (unlike some legislators these days). It is their responsibility as professionals to deal in a mature and straightforward manner with all sorts of unpleasantness. A lawyer representing a person accused of child sexual assault cannot refuse to confront the allegations because they make him squeamish. Like a doctor treating a mutilated child, they have to deal with the world as it is. Especially in a First Amendment case, lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable. To do otherwise is to deny the realities of the case before them. It is to put their own sensitivities above their obligations to their clients and to the law. It is, in short, unprofessional.
When Melville Nimmer represented Paul Cohen in the Supreme Court in Cohen v. California, he knew he had to say the word fuck in the Supreme Court for the first time in its history. He also knew that Chief Justice Burger did not want this to happen. Sure enough, when Nimmer approached the lectern to make his argument, Burger leaned over the bench and instructed Nimmer, "Counsel, we are familiar with the facts of this case. You can dispense with them and move directly to your legal argument." To which Nimmer replied, "Of course, Your Honor. Suffice it to say that my client was convicted of disturbing the peace for wearing a jacket in public bearing the words "Fuck the Draft." It was at that moment that he won his case, because lo and behold the walls of the Court did not crumble.
In the context of the ongoing debate about the Catholic Church and the rights of women, I recently heard a nun quoted to the effect, "Christianity is not for sissies." Neither, I might add, is freedom.
June 12, 2012
Fixing Citizens United
Any intelligent person following American politics these days should be deeply distressed by the ever-growing role of big money in our electoral process. The extraordinary concentration of wealth in the hands of relatively few Americans has completely distorted the nature of political discourse. As multi-millionaires, billionaires and powerful corporations are now free to spend unlimited amounts in order to dominate public debate, we have moved from a political system founded on the aspiration of one person/one vote to one increasingly founded on money/money/money.
Of course, there are those who say that money doesn't really matter. What matters, they say, is the quality of the candidates and the strength of their ideas. Unfortunately, in a world of high-stakes and high-cost media, this is nonsense. Speech matters. It shapes people's perceptions, knowledge and attitudes. Why else would businesses spend billions of dollars each year on commercial advertising? Corporations and billionaires are not stupid. They would not waste millions of dollars to fund an endless flood of political ads if those ads didn't pay off. They do. Money may not guarantee victory, but it definitely helps.
Imagine a presidential debate in which the candidates were invited to buy debate time. Instead of the debate time being allocated equally, each candidate would bid for minutes, so the candidate with the most money would buy the most minutes in the debate. What would we think of that? That is effectively what has happened to our political system. This is a disaster for our nation. It alienates voters, enables a coterie of highly-self-interested millionaires and corporations to distort our national political discourse, and causes elected officials desperately to curry favor with wealthy supporters, often at the expense of the public interest.
The current state of affairs is due largely to two decisions of the United States Supreme Court -- Buckley v. Valeo (1976) and Citizens United (2010) -- in which the Court held that government cannot constitutionally limit the amount of money that individuals (Buckley) or corporations (Citizens United) can spend in the "marketplace of ideas" to bring about the election of their favored political candidates. As a consequence of the doctrines set forth in those two decisions, the Court has invalidated a host of federal and state laws enacted by American citizens across the nation in the hope of stemming the tide of political dollars.
Ironically, by attempting in these decisions to protect the freedom of speech from undue government interference, the Court has inflicted grave damage on the very political system that the freedom of speech is designed to promote. Although the dire consequences of these decisions may not have been evident in 1976, and may not even have been fully evident in 2010, we can now see clearly what the Court has wrought.
The question is: What is to be done now? One response might be for Congress to try to contain the damage by enacting regulations of the political process that might not be foreclosed by the Court's decisions. But even if a divided and highly polarized Congress would enact such laws, such as a law requiring public disclosure of the names of those who fund political ads, and even if the Court were willing to uphold them, such reforms would have only a second-order effect on the problem. Justice Brandeis may have been right when he observed that "sunlight is the best disinfectant," but sometimes something stronger than a disinfectant is necessary.
A second response might be to hope that the Supreme Court itself overrules Buckley and Citizens United. After all, Citizens United overruled a relatively recent decision that had reached precisely the opposite result (after Justice Alito replaced Justice O'Connor on the Court). Because it seems unlikely in the extreme that any of the five conservative justices in the majority in Citizens United (Roberts, Scalia, Kennedy, Thomas and Alito) will change his mind on this issue, this scenario depends on a president who disagrees with Citizens United having the opportunity to nominate a justice with a similar view to replace one of the five conservatives.
There are obvious impediments to this scenario. First, a justice in the majority in Citizens United is unlikely to step down voluntarily during the term of office of a president who would be inclined to nominate a justice who disagrees with Citizens United. Second, even if a president had the opportunity to nominate such a justice, it would be extremely difficult, given the extreme polarization in the Senate and the rising obstructionism on judicial nominations, for such a nominee to get confirmed. Third, even if such a justice were nominated and confirmed, the Supreme Court is generally quite reluctant to overrule major recent decisions (Citizens United to the contrary notwithstanding). Thus, even if a majority of the justices at some point in the future were persuaded that Buckley and Citizens United were "bad" law, they still might not vote to overrule them.
A third response might be to amend the Constitution. Buckley and Citizens United interpreted the First Amendment as prohibiting government from limiting the amount individuals and corporations can spend in the political process. In theory, an amendment to the Constitution (more precisely, an amendment to the First Amendment) could overrule those decisions. This would not be unprecedented. On four prior occasions in American history we have amended the Constitution to overturn what came to be seen as a misguided judicial interpretation of the Constitution.
This is no small challenge, however. Efforts to amend the Constitution have almost invariably failed. The United States Constitution is one of the most difficult in the world to amend. Attempts to amend the Constitution to reverse Supreme Court decisions on such issues as racial segregation, busing, flag burning, school prayer and abortion have all ended up in the dust bin of history. A constitutional amendment requires the support of two-thirds of both the House of Representatives and the Senate and then ratification by three-fourths of the state legislatures. Even if a substantial majority of the people support a particular position, getting it enacted in a constitutional amendment is a monumental task, especially if there is significant opposition.
On the other hand, public opinion polls suggest that 80 percent of the American people oppose Citizens United, including 65 percent who "strongly" oppose it. If that holds true, and if citizens are prepared to make this a "make or break" issue for politicians of both political parties, then adoption of a constitutional amendment seems at least plausible.
But what should such a constitutional amendment say? Superficial slogans like "money is not speech" or "corporations are not people" will not suffice. Can the government forbid you from using money to buy books? Can it prohibit the New York Times (a corporation) from publishing? Slogans may be good rallying cries, but they do not make good law.
If I were to propose a constitutional amendment, here's what I would suggest:
"In order to ensure a fair and well-functioning electoral process,
Congress and the States shall have the authority reasonably to regulate political
expenditures and contributions."
What do you think?
Of course, there are those who say that money doesn't really matter. What matters, they say, is the quality of the candidates and the strength of their ideas. Unfortunately, in a world of high-stakes and high-cost media, this is nonsense. Speech matters. It shapes people's perceptions, knowledge and attitudes. Why else would businesses spend billions of dollars each year on commercial advertising? Corporations and billionaires are not stupid. They would not waste millions of dollars to fund an endless flood of political ads if those ads didn't pay off. They do. Money may not guarantee victory, but it definitely helps.
Imagine a presidential debate in which the candidates were invited to buy debate time. Instead of the debate time being allocated equally, each candidate would bid for minutes, so the candidate with the most money would buy the most minutes in the debate. What would we think of that? That is effectively what has happened to our political system. This is a disaster for our nation. It alienates voters, enables a coterie of highly-self-interested millionaires and corporations to distort our national political discourse, and causes elected officials desperately to curry favor with wealthy supporters, often at the expense of the public interest.
The current state of affairs is due largely to two decisions of the United States Supreme Court -- Buckley v. Valeo (1976) and Citizens United (2010) -- in which the Court held that government cannot constitutionally limit the amount of money that individuals (Buckley) or corporations (Citizens United) can spend in the "marketplace of ideas" to bring about the election of their favored political candidates. As a consequence of the doctrines set forth in those two decisions, the Court has invalidated a host of federal and state laws enacted by American citizens across the nation in the hope of stemming the tide of political dollars.
Ironically, by attempting in these decisions to protect the freedom of speech from undue government interference, the Court has inflicted grave damage on the very political system that the freedom of speech is designed to promote. Although the dire consequences of these decisions may not have been evident in 1976, and may not even have been fully evident in 2010, we can now see clearly what the Court has wrought.
The question is: What is to be done now? One response might be for Congress to try to contain the damage by enacting regulations of the political process that might not be foreclosed by the Court's decisions. But even if a divided and highly polarized Congress would enact such laws, such as a law requiring public disclosure of the names of those who fund political ads, and even if the Court were willing to uphold them, such reforms would have only a second-order effect on the problem. Justice Brandeis may have been right when he observed that "sunlight is the best disinfectant," but sometimes something stronger than a disinfectant is necessary.
A second response might be to hope that the Supreme Court itself overrules Buckley and Citizens United. After all, Citizens United overruled a relatively recent decision that had reached precisely the opposite result (after Justice Alito replaced Justice O'Connor on the Court). Because it seems unlikely in the extreme that any of the five conservative justices in the majority in Citizens United (Roberts, Scalia, Kennedy, Thomas and Alito) will change his mind on this issue, this scenario depends on a president who disagrees with Citizens United having the opportunity to nominate a justice with a similar view to replace one of the five conservatives.
There are obvious impediments to this scenario. First, a justice in the majority in Citizens United is unlikely to step down voluntarily during the term of office of a president who would be inclined to nominate a justice who disagrees with Citizens United. Second, even if a president had the opportunity to nominate such a justice, it would be extremely difficult, given the extreme polarization in the Senate and the rising obstructionism on judicial nominations, for such a nominee to get confirmed. Third, even if such a justice were nominated and confirmed, the Supreme Court is generally quite reluctant to overrule major recent decisions (Citizens United to the contrary notwithstanding). Thus, even if a majority of the justices at some point in the future were persuaded that Buckley and Citizens United were "bad" law, they still might not vote to overrule them.
A third response might be to amend the Constitution. Buckley and Citizens United interpreted the First Amendment as prohibiting government from limiting the amount individuals and corporations can spend in the political process. In theory, an amendment to the Constitution (more precisely, an amendment to the First Amendment) could overrule those decisions. This would not be unprecedented. On four prior occasions in American history we have amended the Constitution to overturn what came to be seen as a misguided judicial interpretation of the Constitution.
This is no small challenge, however. Efforts to amend the Constitution have almost invariably failed. The United States Constitution is one of the most difficult in the world to amend. Attempts to amend the Constitution to reverse Supreme Court decisions on such issues as racial segregation, busing, flag burning, school prayer and abortion have all ended up in the dust bin of history. A constitutional amendment requires the support of two-thirds of both the House of Representatives and the Senate and then ratification by three-fourths of the state legislatures. Even if a substantial majority of the people support a particular position, getting it enacted in a constitutional amendment is a monumental task, especially if there is significant opposition.
On the other hand, public opinion polls suggest that 80 percent of the American people oppose Citizens United, including 65 percent who "strongly" oppose it. If that holds true, and if citizens are prepared to make this a "make or break" issue for politicians of both political parties, then adoption of a constitutional amendment seems at least plausible.
But what should such a constitutional amendment say? Superficial slogans like "money is not speech" or "corporations are not people" will not suffice. Can the government forbid you from using money to buy books? Can it prohibit the New York Times (a corporation) from publishing? Slogans may be good rallying cries, but they do not make good law.
If I were to propose a constitutional amendment, here's what I would suggest:
"In order to ensure a fair and well-functioning electoral process,
Congress and the States shall have the authority reasonably to regulate political
expenditures and contributions."
What do you think?
May 30, 2012
Same-Sex Marriage and Judicial Responsibility
Earlier this week, Lambda Legal and the ACLU of Illinois filed separate lawsuits challenging the constitutionality of the Illinois law that denies gay men and women the right to marry. There is little doubt among constitutional experts that the challenged law is unconstitutional. The central question is whether our Illinois judges will have the courage to say so.
More than most Americans today realize, throughout much of our history gay men and women have been branded as criminals, sexual psychopaths and perverts. They have been imprisoned, beaten, sterilized, ostracized, castrated, psychoanalyzed, and publicly humiliated. They have been compelled to hide an essential facet of their nature, to deny who they are, and to pretend to be what they are not. They have been shadowed by fear, fired from jobs, shunned by family members and friends, and forced to live lives of shame. The history of our nation's treatment of gay men and women is a national tragedy.
Over the past forty years, however, we have made remarkable progress. As gays and lesbians have tentatively but courageously revealed themselves to friends and family, the views of most Americans have gradually changed. Most Americans have come to realize that gay men and women are not creepy degenerates, but people "just like us." We have discovered, often to our surprise, that they are our sons and daughters, our brothers and sisters, our neighbors and friends. With that knowledge has come greater tolerance and understanding. For most Americans, it has been an extraordinary journey of enlightened thinking and moral progress.
But we still have a way to go. The most important remaining remnant of an era now largely behind us is the continuing denial to gay men and women of the freedom to marry. This is not a mere technicality, as some would have us believe, but a grievous insult to the dignity of good and decent people and to the inherent worth of their loving commitments to one another. Indeed, from a moral and legal perspective, the refusal to recognize gay and lesbian marriage today is no more defensible than the refusal to recognize interracial marriage fifty years ago.
In an editorial on May 14, the Chicago Tribune applauded both the shift in American public opinion on this issue and President Obama's public declaration that he supports same-sex marriage. The Tribune went even further and endorsed legislation in Illinois that would recognize the right of gay men and women to marry. At the same time, though, the Tribune cautioned that courts should stay out of this matter and should "defer to the voters and their elected representatives." This is flat-out wrong.
Courts have a fundamental responsibility to enforce the Constitution. It is not their job to make political judgments about whether it would be good or bad policy for them to hold an unconstitutional law unconstitutional. If they conclude that a law is unconstitutional, then it is their duty to say so and to declare the law null and void. They have no legal authority to deprive individual citizens of their fundamental constitutional rights until "the voters" decide to grant those rights on their own. Such an approach is incompatible with the very idea of constitutional freedoms.
Before any state legislature voted to enact same-sex marriage, five state supreme courts (Hawaii, Massachusetts, Connecticut, California, and Iowa) first had to hold the denial of marriage equality unconstitutional. As in so many areas of individual liberty, it took courts to lead the way. Without the constitutional foundation and legal momentum generated by those judicial decisions, it is doubtful that any state legislature would have had the courage to take on this issue. It is the very independence of courts from the electoral process that gives them the authority and responsibility to protect rights otherwise denied by "the voters."
To wait on the outcome of the electoral process to protect the constitutional rights of a group that has for so long been demonized in our society would be especially problematic. Although opinion polls show that a majority of Americans now support same-sex marriage, that is no guarantee that reform will come through the electoral process. As we have seen repeatedly in state-wide referenda on this issue, single-issue, single-minded voters, well-funded by religious organizations and driven by religious fervor, can effectively block the will of the majority. In our constitutional system, this is precisely when courts must intervene.
This situation is not dissimilar to that facing the United States Supreme Court in 1967 when it held in Loving v. Virginia that marriage is a fundamental right and that state anti-miscegenation laws prohibiting marriage across the color line violate the constitutional guarantee of "equal protection of the laws." The justices unanimously understood that they could not legitimately "defer to the voters" and hold off reaching the correct constitutional decision while the nation waited for those who feared and despised interracial marriage to catch up with the Constitution. The same is true here and now.
In addressing the fundamental constitutional issues posed by these lawsuits, our Illinois judges - like the judges in Hawaii, Massachusetts, Connecticut, Iowa and California - must not "defer" to the vagaries of the political process. If they conclude that it is unconstitutional for the state of Illinois to deny its gay and lesbian citizens the freedom to marry, then it is their constitutional responsibility to so rule. I predict that they will. It will be a proud day for Illinois.
This appeared in the Chicago Tribune on May 31, 2012.
More than most Americans today realize, throughout much of our history gay men and women have been branded as criminals, sexual psychopaths and perverts. They have been imprisoned, beaten, sterilized, ostracized, castrated, psychoanalyzed, and publicly humiliated. They have been compelled to hide an essential facet of their nature, to deny who they are, and to pretend to be what they are not. They have been shadowed by fear, fired from jobs, shunned by family members and friends, and forced to live lives of shame. The history of our nation's treatment of gay men and women is a national tragedy.
Over the past forty years, however, we have made remarkable progress. As gays and lesbians have tentatively but courageously revealed themselves to friends and family, the views of most Americans have gradually changed. Most Americans have come to realize that gay men and women are not creepy degenerates, but people "just like us." We have discovered, often to our surprise, that they are our sons and daughters, our brothers and sisters, our neighbors and friends. With that knowledge has come greater tolerance and understanding. For most Americans, it has been an extraordinary journey of enlightened thinking and moral progress.
But we still have a way to go. The most important remaining remnant of an era now largely behind us is the continuing denial to gay men and women of the freedom to marry. This is not a mere technicality, as some would have us believe, but a grievous insult to the dignity of good and decent people and to the inherent worth of their loving commitments to one another. Indeed, from a moral and legal perspective, the refusal to recognize gay and lesbian marriage today is no more defensible than the refusal to recognize interracial marriage fifty years ago.
In an editorial on May 14, the Chicago Tribune applauded both the shift in American public opinion on this issue and President Obama's public declaration that he supports same-sex marriage. The Tribune went even further and endorsed legislation in Illinois that would recognize the right of gay men and women to marry. At the same time, though, the Tribune cautioned that courts should stay out of this matter and should "defer to the voters and their elected representatives." This is flat-out wrong.
Courts have a fundamental responsibility to enforce the Constitution. It is not their job to make political judgments about whether it would be good or bad policy for them to hold an unconstitutional law unconstitutional. If they conclude that a law is unconstitutional, then it is their duty to say so and to declare the law null and void. They have no legal authority to deprive individual citizens of their fundamental constitutional rights until "the voters" decide to grant those rights on their own. Such an approach is incompatible with the very idea of constitutional freedoms.
Before any state legislature voted to enact same-sex marriage, five state supreme courts (Hawaii, Massachusetts, Connecticut, California, and Iowa) first had to hold the denial of marriage equality unconstitutional. As in so many areas of individual liberty, it took courts to lead the way. Without the constitutional foundation and legal momentum generated by those judicial decisions, it is doubtful that any state legislature would have had the courage to take on this issue. It is the very independence of courts from the electoral process that gives them the authority and responsibility to protect rights otherwise denied by "the voters."
To wait on the outcome of the electoral process to protect the constitutional rights of a group that has for so long been demonized in our society would be especially problematic. Although opinion polls show that a majority of Americans now support same-sex marriage, that is no guarantee that reform will come through the electoral process. As we have seen repeatedly in state-wide referenda on this issue, single-issue, single-minded voters, well-funded by religious organizations and driven by religious fervor, can effectively block the will of the majority. In our constitutional system, this is precisely when courts must intervene.
This situation is not dissimilar to that facing the United States Supreme Court in 1967 when it held in Loving v. Virginia that marriage is a fundamental right and that state anti-miscegenation laws prohibiting marriage across the color line violate the constitutional guarantee of "equal protection of the laws." The justices unanimously understood that they could not legitimately "defer to the voters" and hold off reaching the correct constitutional decision while the nation waited for those who feared and despised interracial marriage to catch up with the Constitution. The same is true here and now.
In addressing the fundamental constitutional issues posed by these lawsuits, our Illinois judges - like the judges in Hawaii, Massachusetts, Connecticut, Iowa and California - must not "defer" to the vagaries of the political process. If they conclude that it is unconstitutional for the state of Illinois to deny its gay and lesbian citizens the freedom to marry, then it is their constitutional responsibility to so rule. I predict that they will. It will be a proud day for Illinois.
This appeared in the Chicago Tribune on May 31, 2012.
April 13, 2012
When Is Judicial Activism Appropriate?
The Supreme Court's consideration of the constitutionality of the Patient Protection and Affordable Care Act has renewed debate about judicial activism versus judicial restraint. Liberals have warned that a decision invalidating this act would represent unwarranted judicial activism. In response, conservatives have accused liberals of hypocrisy. After all, if liberals celebrated the judicial activism of the Warren court, why should they decry the judicial activism of the Roberts court?
This accusation is unfounded, but it carries considerable weight in public discourse. I want to set the record straight.
At the outset, it is necessary to explain the difference between judicial activism and judicial restraint. When a court exercises restraint, it generally defers to the judgment of the elected branches. Even in the face of a claim that a particular law violates the Constitution, the court gives the elected branches the benefit of the doubt and upholds the challenged law as long as it is reasonable. When a court engages in judicial activism, it second-guesses the judgment of the elected branches and invalidates the law unless the government can prove to the court that the law is clearly constitutional.
A decision to invalidate the Affordable Care Act would clearly be an example of judicial activism, because the court would be second-guessing the elected branches rather than deferring to their judgment about the impact of millions of individual decisions about health insurance on interstate commerce.
The central question in constitutional law is: When is judicial activism appropriate? The best answer, which is grounded in the vision of the framers and has been a central part of constitutional law for more than 70 years, is that judicial activism is appropriate when there is good reason not to trust the judgment or fairness of the majority. It is in that situation when it is most important for judges to intervene to enforce the guarantees of the Constitution.
As Alexander Hamilton observed in the Federalist Papers, we must rely upon judges who have life tenure and are thus insulated from political pressure to protect "the rights of individuals from the effects of those ill humours which ... sometimes disseminate among the people." In other words, judicial deference is inappropriate when there is good reason to believe that prejudice, intolerance or bigotry has tainted the fairness of the political process.
Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of decisions that have faithfully interpreted and applied the Constitution in circumstances in which judicial activism was necessary to guard against such majoritarian dysfunction. These decisions ended racial segregation, recognized the principle of "one person, one vote," forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women and upheld the right of "enemy combatants" to due process of law, to cite just a few examples. What these decisions have in common is that they protect the rights of the disadvantaged and the oppressed. Such decisions animate the most fundamental aspirations of our Constitution and are necessary and proper examples of judicial activism.
By contrast, we have now entered a troubling era of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, persons accused of crime, and racial, ethnic and religious minorities, but at the same time aggressively strike down restrictions on corporate political expenditures, gun control laws, affirmative action programs and the laws of the state of Florida in the 2000 presidential election, have effectively hijacked the power of judicial review.
Conservative justices today exercise that power in a highly selective and politicized manner that cannot credibly be explained by any principled theory of constitutional interpretation. Indeed, this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
It is fundamentally misleading to equate activist decisions that protect the interests of corporations, the National Rifle Association and the wealthy with activist decisions that safeguard the rights of African-Americans, women, gays, political dissenters and persons accused of crime. The courts are needed to vindicate the rights of the latter. They are not needed to protect the interests of the former, who can protect themselves quite well in the give-and-take of the democratic process.
The Affordable Care Act case is a perfect case for judicial restraint. If the states that brought the suit want to change the law, they can do it through the political process. That is the point of democracy. They do not need the justices of the Supreme Court to do the job for them.
This appeared in the Chicago Tribune on April 13, 2012.
This accusation is unfounded, but it carries considerable weight in public discourse. I want to set the record straight.
At the outset, it is necessary to explain the difference between judicial activism and judicial restraint. When a court exercises restraint, it generally defers to the judgment of the elected branches. Even in the face of a claim that a particular law violates the Constitution, the court gives the elected branches the benefit of the doubt and upholds the challenged law as long as it is reasonable. When a court engages in judicial activism, it second-guesses the judgment of the elected branches and invalidates the law unless the government can prove to the court that the law is clearly constitutional.
A decision to invalidate the Affordable Care Act would clearly be an example of judicial activism, because the court would be second-guessing the elected branches rather than deferring to their judgment about the impact of millions of individual decisions about health insurance on interstate commerce.
The central question in constitutional law is: When is judicial activism appropriate? The best answer, which is grounded in the vision of the framers and has been a central part of constitutional law for more than 70 years, is that judicial activism is appropriate when there is good reason not to trust the judgment or fairness of the majority. It is in that situation when it is most important for judges to intervene to enforce the guarantees of the Constitution.
As Alexander Hamilton observed in the Federalist Papers, we must rely upon judges who have life tenure and are thus insulated from political pressure to protect "the rights of individuals from the effects of those ill humours which ... sometimes disseminate among the people." In other words, judicial deference is inappropriate when there is good reason to believe that prejudice, intolerance or bigotry has tainted the fairness of the political process.
Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of decisions that have faithfully interpreted and applied the Constitution in circumstances in which judicial activism was necessary to guard against such majoritarian dysfunction. These decisions ended racial segregation, recognized the principle of "one person, one vote," forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women and upheld the right of "enemy combatants" to due process of law, to cite just a few examples. What these decisions have in common is that they protect the rights of the disadvantaged and the oppressed. Such decisions animate the most fundamental aspirations of our Constitution and are necessary and proper examples of judicial activism.
By contrast, we have now entered a troubling era of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, persons accused of crime, and racial, ethnic and religious minorities, but at the same time aggressively strike down restrictions on corporate political expenditures, gun control laws, affirmative action programs and the laws of the state of Florida in the 2000 presidential election, have effectively hijacked the power of judicial review.
Conservative justices today exercise that power in a highly selective and politicized manner that cannot credibly be explained by any principled theory of constitutional interpretation. Indeed, this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
It is fundamentally misleading to equate activist decisions that protect the interests of corporations, the National Rifle Association and the wealthy with activist decisions that safeguard the rights of African-Americans, women, gays, political dissenters and persons accused of crime. The courts are needed to vindicate the rights of the latter. They are not needed to protect the interests of the former, who can protect themselves quite well in the give-and-take of the democratic process.
The Affordable Care Act case is a perfect case for judicial restraint. If the states that brought the suit want to change the law, they can do it through the political process. That is the point of democracy. They do not need the justices of the Supreme Court to do the job for them.
This appeared in the Chicago Tribune on April 13, 2012.
March 28, 2012
The Supreme Court, the Affordable Care Act, and the Slippery Slope
There is no doubt that a state can constitutionally require citizens to have health insurance. Why, then, is the Supreme Court fussing over the constitutionality of the individual mandate provision of the Affordable Care Act?
The answer is simple. States have plenary authority to legislate on matters of public policy. The national government, however, is a government of limited powers. It cannot constitutionally act unless the Constitution authorizes it to do so. The central question in the case now pending before the Supreme Court is whether the Constitution grants Congress the authority to require individuals to have health insurance. Opponents of the law argue that it exceeds the legitimate authority of the national government.
The government defends the constitutionality of the individual mandate on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power "to regulate Commerce ... among the several States."
Over time, the Supreme Court has held that under this provision Congress can constitutionally regulate activity if, in the aggregate, it has "a substantial economic effect on interstate commerce." Moreover, as Justice Rehnquist explained in 1995, the Court's role in determining the constitutionality of federal legislation under the Commerce Clause is limited to deciding whether Congress "had a rational basis ... for concluding that a regulated activity sufficiently affected interstate commerce" to merit federal action.
It is the Commerce Clause that authorized Congress to enact such legislation as the Sherman Antitrust Act of 1890, the Fair Labor Standards Act of 1938, the Civil Rights Act of 1964, the Environmental Policy Act of 1969, the Controlled Substances Act of 1970, and the Americans with Disabilities Act of 1990, to cite just a few examples.
In light of past decisions of the Supreme Court, arguments against the constitutionality of the Affordable Care Act initially seemed completely spurious. There can be no doubt that the economic effects of the health care industry on interstate commerce are huge, comprising more than 17 percent of the entire national economy. Thus, whatever the merits of the individual mandate in terms of public policy, there seemed no serious question about its constitutionality.
But here we are, the day after the Supreme Court heard arguments on the constitutionality of the individual mandate, and commentators reading the tea leaves of the justices' questions think that there is now a realistic possibility that Justices Roberts, Scalia, Kennedy, Thomas and Alito might actually vote to hold the Act unconstitutional. This is surprising even to many conservatives, who might not like the Act, but who nonetheless think it is clearly constitutional.
What, then, is the argument against the constitutionality of the individual mandate? The argument, quite simply, is that unlike other federal regulations of economic activity, the individual mandate requires individuals to do something (buy health insurance) even though they have not affirmatively done anything themselves to affect commerce.
Unlike the businessman who enters into an agreement with a competitor to restrain competition in violation of the Sherman Act or the employer who refuses to hire an African American in violation of the Civil Rights Act, the individual who simply doesn't buy health insurance hasn't done anything to merit federal attention.
It should be pretty obvious that this is a distinction without a difference. Why is the employer who refuses to hire an African American any different from the individual who refuses to buy health insurance? Of course, one can say that the employer is in fact doing something -- he is refusing to hire an African American. But that is no different than refusing to buy health insurance. The line between action and inaction in these situations is pointless.
One might also argue, however, that the person who refuses to buy health insurance is not doing anything that affects interstate commerce. He is simply making a decision not to buy something. That might be true if the individual never called upon the rest of us to pick up the tab when it later turns out that he needs health care. Because we are not a heartless community, we do not turn people away when they need medical attention, even if they can't afford it.
The problem, then, is that the decisions of individuals in the aggregate not to buy health insurance wind up having a dramatic effect on the cost of health care for everyone else and therefore have a substantial effect on interstate commerce. The healthy young Texan who chooses not to purchase health insurance raises the cost of insurance for the older Arkansan who does. And this is true millions of times over. It therefore makes perfect sense for Congress to attempt to deal with this problem by requiring people to have health insurance, just as states require people who own cars to have auto insurance.
What seems to bother the conservative justices, though, is the slippery slope. If the federal government can require individuals to purchase health insurance, then there is no stopping point. The federal government can require us all to eat broccoli if that would help the broccoli industry or make us healthier (Scalia) and to buy burial insurance to avoid the risk that when we die the government will have to dispose of our bodies at public expense (Alito).
Lawyers love slippery slope arguments. They are a useful way of testing the wisdom of a particular principle or decision. If we do X, then what else will be have to do if we act consistently? Will we also have to do Y and Z? And if Y and Z are not good, then perhaps we shouldn't do X.
But the slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope. The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.
If the decisions of individuals not to eat broccoli and not to buy burial insurance had similar effects on interstate commerce, then it might also be appropriate for the national government to intervene. But the hypotheticals are, quite frankly, ridiculous. They are bad arguments to which any first-year law student knows the answer. If the conservative justices, who are, after all, very good lawyers, rely on such arguments to defend a decision to invalidate the Affordable Care Act, then we know something else is going on.
How justices who purport to celebrate their commitment to judicial restraint and judicial modesty could even imagine striking down this law on such transparently weak grounds is beyond comprehension. For that reason, I don't believe they will do so. If they do, it will be (another) dark day for the Supreme Court, which already labors under a cloud of public disillusionment after its decisions in Bush v. Gore and Citizens United.
The answer is simple. States have plenary authority to legislate on matters of public policy. The national government, however, is a government of limited powers. It cannot constitutionally act unless the Constitution authorizes it to do so. The central question in the case now pending before the Supreme Court is whether the Constitution grants Congress the authority to require individuals to have health insurance. Opponents of the law argue that it exceeds the legitimate authority of the national government.
The government defends the constitutionality of the individual mandate on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power "to regulate Commerce ... among the several States."
Over time, the Supreme Court has held that under this provision Congress can constitutionally regulate activity if, in the aggregate, it has "a substantial economic effect on interstate commerce." Moreover, as Justice Rehnquist explained in 1995, the Court's role in determining the constitutionality of federal legislation under the Commerce Clause is limited to deciding whether Congress "had a rational basis ... for concluding that a regulated activity sufficiently affected interstate commerce" to merit federal action.
It is the Commerce Clause that authorized Congress to enact such legislation as the Sherman Antitrust Act of 1890, the Fair Labor Standards Act of 1938, the Civil Rights Act of 1964, the Environmental Policy Act of 1969, the Controlled Substances Act of 1970, and the Americans with Disabilities Act of 1990, to cite just a few examples.
In light of past decisions of the Supreme Court, arguments against the constitutionality of the Affordable Care Act initially seemed completely spurious. There can be no doubt that the economic effects of the health care industry on interstate commerce are huge, comprising more than 17 percent of the entire national economy. Thus, whatever the merits of the individual mandate in terms of public policy, there seemed no serious question about its constitutionality.
But here we are, the day after the Supreme Court heard arguments on the constitutionality of the individual mandate, and commentators reading the tea leaves of the justices' questions think that there is now a realistic possibility that Justices Roberts, Scalia, Kennedy, Thomas and Alito might actually vote to hold the Act unconstitutional. This is surprising even to many conservatives, who might not like the Act, but who nonetheless think it is clearly constitutional.
What, then, is the argument against the constitutionality of the individual mandate? The argument, quite simply, is that unlike other federal regulations of economic activity, the individual mandate requires individuals to do something (buy health insurance) even though they have not affirmatively done anything themselves to affect commerce.
Unlike the businessman who enters into an agreement with a competitor to restrain competition in violation of the Sherman Act or the employer who refuses to hire an African American in violation of the Civil Rights Act, the individual who simply doesn't buy health insurance hasn't done anything to merit federal attention.
It should be pretty obvious that this is a distinction without a difference. Why is the employer who refuses to hire an African American any different from the individual who refuses to buy health insurance? Of course, one can say that the employer is in fact doing something -- he is refusing to hire an African American. But that is no different than refusing to buy health insurance. The line between action and inaction in these situations is pointless.
One might also argue, however, that the person who refuses to buy health insurance is not doing anything that affects interstate commerce. He is simply making a decision not to buy something. That might be true if the individual never called upon the rest of us to pick up the tab when it later turns out that he needs health care. Because we are not a heartless community, we do not turn people away when they need medical attention, even if they can't afford it.
The problem, then, is that the decisions of individuals in the aggregate not to buy health insurance wind up having a dramatic effect on the cost of health care for everyone else and therefore have a substantial effect on interstate commerce. The healthy young Texan who chooses not to purchase health insurance raises the cost of insurance for the older Arkansan who does. And this is true millions of times over. It therefore makes perfect sense for Congress to attempt to deal with this problem by requiring people to have health insurance, just as states require people who own cars to have auto insurance.
What seems to bother the conservative justices, though, is the slippery slope. If the federal government can require individuals to purchase health insurance, then there is no stopping point. The federal government can require us all to eat broccoli if that would help the broccoli industry or make us healthier (Scalia) and to buy burial insurance to avoid the risk that when we die the government will have to dispose of our bodies at public expense (Alito).
Lawyers love slippery slope arguments. They are a useful way of testing the wisdom of a particular principle or decision. If we do X, then what else will be have to do if we act consistently? Will we also have to do Y and Z? And if Y and Z are not good, then perhaps we shouldn't do X.
But the slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope. The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.
If the decisions of individuals not to eat broccoli and not to buy burial insurance had similar effects on interstate commerce, then it might also be appropriate for the national government to intervene. But the hypotheticals are, quite frankly, ridiculous. They are bad arguments to which any first-year law student knows the answer. If the conservative justices, who are, after all, very good lawyers, rely on such arguments to defend a decision to invalidate the Affordable Care Act, then we know something else is going on.
How justices who purport to celebrate their commitment to judicial restraint and judicial modesty could even imagine striking down this law on such transparently weak grounds is beyond comprehension. For that reason, I don't believe they will do so. If they do, it will be (another) dark day for the Supreme Court, which already labors under a cloud of public disillusionment after its decisions in Bush v. Gore and Citizens United.
March 13, 2012
Guantanamo: "Whatever the Government Says..."
Nations at war have always had the legal authority to detain captured enemy soldiers ("prisoners of war") to prevent them from returning to the battlefield. Similarly, the U.S. has the legal authority to detain captured "enemy combatants" in the War on Terror in order to ensure the safety of the nation.
Central to the legality (and morality) of this authority, though, is the determination that the person detained is, in fact, an enemy soldier or combatant. In conventional warfare, this is usually easy, because soldiers wear uniforms. In the War on Terror, however, enemy combatants do not wear uniforms. This is a problem, because it requires us to determine in some fair and reasonable manner whether particular individuals are in fact affiliated with the enemy. It would be unjust and counter-productive for us to detain people who are not actually a threat to us but were innocently swept up in the inevitable chaos of war.
In part for this reason, the Supreme Court has held that individuals detained at Guantanamo have the right to habeas corpus -- that is, they have the right to ask a federal court to determine whether they are being lawfully held. Put simply, the military cannot legally detain an individual at Guantanamo unless it can show by a "preponderance of the evidence" that he is in fact an enemy combatant.
This is, of course, a much more lenient standard than the "beyond a reasonable doubt" requirement we apply in criminal cases, but it is designed to ensure that there is at least a reasonable factual basis for holding an individual indefinitely in a military prison thousands of miles from his home.
In most of these situations, there are no eyewitnesses available to testify to what the accused enemy combatant is thought to have done. Instead, the government's proof usually consists entirely of documents created by members of the military who record what they were told by others. Such documents are frequently prepared in highly stressful situations, based on reports from unknown sources, filtered through interpreters, and subject to transcription errors.
A critical question in these habeas corpus proceedings is therefore whether such documents are sufficiently reliable to meet the preponderance of the evidence standard. The obvious solution is to require the government to present evidence that the documents at issue in any given proceeding are reliable. But a federal appeals court recently held in Latif v. Barack Obama that judges ruling on the legality of these detentions must treat these documents as presumptively reliable. That is, instead of requiring the government to prove that they are reliable, the judge must presume the documents to be trustworthy unless the detainee's lawyer can prove by "clear evidence" that they are in fact unreliable.
This stands any sense of fairness on its head. Indeed, in a powerful dissenting opinion, Judge David Tatel argued that such a presumption of reliability makes no sense when documents are hastily prepared in a highly secretive process in "the fog of war." Judge Tatel is clearly right. The United States has no business holding a possibly innocent individual in indefinite detention in Guantanmo based entirely on information contained in a document that might well be unreliable. As Judge Tatel concluded, the majority's position "comes perilously close to suggesting that whatever the government says must be treated as true."
It is easy to understand the desire to be risk averse about releasing a possibly dangerous individual. But we must also consider the consequences of imprisoning indefinitely an innocent person. Indeed, that concern is supposed to be central to our most basic American values.
Central to the legality (and morality) of this authority, though, is the determination that the person detained is, in fact, an enemy soldier or combatant. In conventional warfare, this is usually easy, because soldiers wear uniforms. In the War on Terror, however, enemy combatants do not wear uniforms. This is a problem, because it requires us to determine in some fair and reasonable manner whether particular individuals are in fact affiliated with the enemy. It would be unjust and counter-productive for us to detain people who are not actually a threat to us but were innocently swept up in the inevitable chaos of war.
In part for this reason, the Supreme Court has held that individuals detained at Guantanamo have the right to habeas corpus -- that is, they have the right to ask a federal court to determine whether they are being lawfully held. Put simply, the military cannot legally detain an individual at Guantanamo unless it can show by a "preponderance of the evidence" that he is in fact an enemy combatant.
This is, of course, a much more lenient standard than the "beyond a reasonable doubt" requirement we apply in criminal cases, but it is designed to ensure that there is at least a reasonable factual basis for holding an individual indefinitely in a military prison thousands of miles from his home.
In most of these situations, there are no eyewitnesses available to testify to what the accused enemy combatant is thought to have done. Instead, the government's proof usually consists entirely of documents created by members of the military who record what they were told by others. Such documents are frequently prepared in highly stressful situations, based on reports from unknown sources, filtered through interpreters, and subject to transcription errors.
A critical question in these habeas corpus proceedings is therefore whether such documents are sufficiently reliable to meet the preponderance of the evidence standard. The obvious solution is to require the government to present evidence that the documents at issue in any given proceeding are reliable. But a federal appeals court recently held in Latif v. Barack Obama that judges ruling on the legality of these detentions must treat these documents as presumptively reliable. That is, instead of requiring the government to prove that they are reliable, the judge must presume the documents to be trustworthy unless the detainee's lawyer can prove by "clear evidence" that they are in fact unreliable.
This stands any sense of fairness on its head. Indeed, in a powerful dissenting opinion, Judge David Tatel argued that such a presumption of reliability makes no sense when documents are hastily prepared in a highly secretive process in "the fog of war." Judge Tatel is clearly right. The United States has no business holding a possibly innocent individual in indefinite detention in Guantanmo based entirely on information contained in a document that might well be unreliable. As Judge Tatel concluded, the majority's position "comes perilously close to suggesting that whatever the government says must be treated as true."
It is easy to understand the desire to be risk averse about releasing a possibly dangerous individual. But we must also consider the consequences of imprisoning indefinitely an innocent person. Indeed, that concern is supposed to be central to our most basic American values.
February 12, 2012
Of Contraceptives and Same-Sex Marriage
This was an interesting week for religion in America. First, the Council of Catholic Bishops demanded that the president of the United States exempt Catholic hospitals and universities from a general requirement that all employers receiving federal funds must provide health insurance for their employees that includes coverage for contraceptives. On reflection, the president acceded to their demand, explaining that such institutions should not be required to do something that is fundamentally incompatible with their religious beliefs.
While all this was going on, a federal court of appeals ruled that California's Proposition 8, which attempted to strip gays and lesbians of the previously recognized state law right to marry, violated the federal Constitution. The court explained that Proposition 8, which had been aggressively promoted by the Catholic Church, the Mormon Church and evangelicals, was unconstitutional because it served "no purpose... other than to lessen the status and human dignity of gays and lesbians in California."
The juxtaposition of these two events sheds important light on the relationship between religion and government in the United States today.
Our nation's founders sought to shape the basic nature of that relationship in the First Amendment, which contains two distinct but intertwined clauses concerning religion. The Free Exercise Clause forbids government to make any law prohibiting "the free exercise of religion." The Establishment Clause forbids government to make any law "respecting an establishment of religion."
In non-legal terms, the goal of men like James Madison, George Washington and John Adams was to keep government out of religion and religion out of government. It was, in the words of Thomas Jefferson, to erect a "wall of separation" between church and state.
The founders were well aware that religion had proved bitterly divisive throughout human history. Whenever government and religion had become enmeshed, the consequence had almost invariably been intolerance and persecution. To protect both religion and government, and to establish a unified, cohesive nation committed to promoting "the general welfare" rather than religious supremacy, the founders aspired to keep the worlds of government and religion apart.
Aspiration, of course, does not always translate into reality, and throughout American history we have seen instances of both religious intolerance and undue religious interference with government. On the Free Exercise side, it is now well settled that the government cannot constitutionally discriminate against people because of their religious beliefs. For example, unlike the days of yore, the government cannot constitutionally prohibit Jews from holding public office.
The most common type of Free Exercise issue today involves not express government discrimination against the adherents of a particular religion, but questions similar to the one posed by the Catholic bishops: When should government exempt the members of a particular religious faith from a law of general application? For example, if certain Native American religions use peyote as an essential part of their religious practice, should they be exempt from laws generally prohibiting the possession of peyote? Or, if contraception is fundamentally at odds with Catholic doctrine, should Catholic hospitals and universities be exempt from laws requiring all employers to provide health insurance for their employees, including coverage for contraception? These can be vexing issues because they raise the specter of special privileges for religion.
On the Establishment Clause side of the ledger, it is now well settled that the government cannot prosecute blasphemy or promote prayer in the public schools or enact laws for the express purpose of incorporating religious precepts into law. For example, a predominately Muslim community cannot constitutionally prohibit residents to consume pork because Islam forbids such behavior, and a predominantly Catholic community cannot constitutionally forbid residents to use contraceptives because Catholic doctrine regards contraception as a sin.
This brings me back to the court of appeals' decision holding Proposition 8 unconstitutional. In invalidating Proposition 8, the court ruled that there was no constitutionally legitimate justification for California to strip same-sex couples of the previously-recognized right "to have their lifelong relationships dignified by the official status of 'marriage.'"
This conclusion makes sense because the real reason why religious groups spent millions of dollars to enact Proposition 8 and why those who attend church weekly supported Proposition 8 by a vote of 84% to 16% is religion. Proposition 8 was a straightforward (pardon the pun) effort to conscript the authority of government to impose a particular religious belief about homosexuality and marriage on American citizens who do not share that belief. As the court concluded, this is not a constitutionally legitimate basis for government action. Indeed, that is why even the proponents of Proposition 8 never dared speak the truth about it -- that its real purpose was to effectuate a particular religious doctrine.
My own view about these issues, which I think reflects the spirit of what the founders of our nation hoped to achieve, is that in the realm of religion we should generally follow the rule of live and let live. We as citizens should be respectful of the sincerely-held religious beliefs of our fellow citizens and we should therefore bend over backwards not to compel them to act in ways that are fundamentally incompatible with their religious faith. Catholic hospitals should not be required to provide contraceptives, Evangelical churches should not be expected to perform same-sex marriages, and Jews should not be compelled to work on their Sabbath.
But the flip side of the wall of separation is equally important. As American citizens, we must be respectful of the right of individuals not to be compelled by government to lead their lives according to the dictates of someone else's religion. However passionately we may believe in the rightness of our religious beliefs, we must respect not only of the right of others to disagree, but also their right to lead their lives according to a different set of beliefs.
Both President Obama's decision to exempt Catholic institutions from the general policy on contraceptives and the court of appeals' decision to invalidate Proposition 8 reflect our most fundamental aspirations as a nation. What they illustrate is what the founders understood -- religion is a two-way street. Just as we must have the freedom to follow our own religious beliefs, we must also have the freedom not to be controlled by the religious beliefs of others.
While all this was going on, a federal court of appeals ruled that California's Proposition 8, which attempted to strip gays and lesbians of the previously recognized state law right to marry, violated the federal Constitution. The court explained that Proposition 8, which had been aggressively promoted by the Catholic Church, the Mormon Church and evangelicals, was unconstitutional because it served "no purpose... other than to lessen the status and human dignity of gays and lesbians in California."
The juxtaposition of these two events sheds important light on the relationship between religion and government in the United States today.
Our nation's founders sought to shape the basic nature of that relationship in the First Amendment, which contains two distinct but intertwined clauses concerning religion. The Free Exercise Clause forbids government to make any law prohibiting "the free exercise of religion." The Establishment Clause forbids government to make any law "respecting an establishment of religion."
In non-legal terms, the goal of men like James Madison, George Washington and John Adams was to keep government out of religion and religion out of government. It was, in the words of Thomas Jefferson, to erect a "wall of separation" between church and state.
The founders were well aware that religion had proved bitterly divisive throughout human history. Whenever government and religion had become enmeshed, the consequence had almost invariably been intolerance and persecution. To protect both religion and government, and to establish a unified, cohesive nation committed to promoting "the general welfare" rather than religious supremacy, the founders aspired to keep the worlds of government and religion apart.
Aspiration, of course, does not always translate into reality, and throughout American history we have seen instances of both religious intolerance and undue religious interference with government. On the Free Exercise side, it is now well settled that the government cannot constitutionally discriminate against people because of their religious beliefs. For example, unlike the days of yore, the government cannot constitutionally prohibit Jews from holding public office.
The most common type of Free Exercise issue today involves not express government discrimination against the adherents of a particular religion, but questions similar to the one posed by the Catholic bishops: When should government exempt the members of a particular religious faith from a law of general application? For example, if certain Native American religions use peyote as an essential part of their religious practice, should they be exempt from laws generally prohibiting the possession of peyote? Or, if contraception is fundamentally at odds with Catholic doctrine, should Catholic hospitals and universities be exempt from laws requiring all employers to provide health insurance for their employees, including coverage for contraception? These can be vexing issues because they raise the specter of special privileges for religion.
On the Establishment Clause side of the ledger, it is now well settled that the government cannot prosecute blasphemy or promote prayer in the public schools or enact laws for the express purpose of incorporating religious precepts into law. For example, a predominately Muslim community cannot constitutionally prohibit residents to consume pork because Islam forbids such behavior, and a predominantly Catholic community cannot constitutionally forbid residents to use contraceptives because Catholic doctrine regards contraception as a sin.
This brings me back to the court of appeals' decision holding Proposition 8 unconstitutional. In invalidating Proposition 8, the court ruled that there was no constitutionally legitimate justification for California to strip same-sex couples of the previously-recognized right "to have their lifelong relationships dignified by the official status of 'marriage.'"
This conclusion makes sense because the real reason why religious groups spent millions of dollars to enact Proposition 8 and why those who attend church weekly supported Proposition 8 by a vote of 84% to 16% is religion. Proposition 8 was a straightforward (pardon the pun) effort to conscript the authority of government to impose a particular religious belief about homosexuality and marriage on American citizens who do not share that belief. As the court concluded, this is not a constitutionally legitimate basis for government action. Indeed, that is why even the proponents of Proposition 8 never dared speak the truth about it -- that its real purpose was to effectuate a particular religious doctrine.
My own view about these issues, which I think reflects the spirit of what the founders of our nation hoped to achieve, is that in the realm of religion we should generally follow the rule of live and let live. We as citizens should be respectful of the sincerely-held religious beliefs of our fellow citizens and we should therefore bend over backwards not to compel them to act in ways that are fundamentally incompatible with their religious faith. Catholic hospitals should not be required to provide contraceptives, Evangelical churches should not be expected to perform same-sex marriages, and Jews should not be compelled to work on their Sabbath.
But the flip side of the wall of separation is equally important. As American citizens, we must be respectful of the right of individuals not to be compelled by government to lead their lives according to the dictates of someone else's religion. However passionately we may believe in the rightness of our religious beliefs, we must respect not only of the right of others to disagree, but also their right to lead their lives according to a different set of beliefs.
Both President Obama's decision to exempt Catholic institutions from the general policy on contraceptives and the court of appeals' decision to invalidate Proposition 8 reflect our most fundamental aspirations as a nation. What they illustrate is what the founders understood -- religion is a two-way street. Just as we must have the freedom to follow our own religious beliefs, we must also have the freedom not to be controlled by the religious beliefs of others.
February 5, 2012
Is Money Speech?
There are many reasons to be concerned about both the impact of money on our political process and the Supreme Court's decision in Citizens United. But critics of Citizens United, including those calling for a constitutional amendment to overrule it, have too often made the mistake of grounding their argument on the claim that "money is not speech."
Organizations like Move to Amend, ballot measures in Boulder, Colorado and Madison Wisconsin, city council resolutions in Los Angeles and Portland, Oregon, and thousands of individuals protesting at the Supreme Court on the second anniversary of Citizens United have all embraced this slogan. Although the critics of Citizens United might well be right to condemn it and to call for a constitutional amendment to overrule it, they are misguided in their reliance on the refrain that "money is not speech."
Of course, money is not "speech." Money is money, a car is a car, and a ribbon is a ribbon. These are objects, not speech. But all of these objects, and many more besides, can be used to facilitate free speech. Consider a car. The government can lawfully impose all sorts of restrictions on how, when and where we can drive a car, and no one would argue that those restrictions implicate the First Amendment.
But suppose a city enacts a law prohibiting any person to drive a car in order to get to a political demonstration. Such a law would clearly implicate the First Amendment, not because a car is speech, but because the law restricts the use of a car for speech purposes.
Similarly, a ribbon is a ribbon. A ribbon is not speech. But a law that prohibits anyone to wear a pink ribbon for expressive purposes would clearly implicate the First Amendment, because it restricts the use of a ribbon for speech purposes.
Like a car or a ribbon, money is not speech. But when government regulates the use of money for speech purposes, it implicates the First Amendment. Suppose, for example, an individual at an Occupy protest burns a dollar bill to convey her disdain for corporate America. A dollar bill is not speech, fire is not speech, but a government law prohbiting any person to burn money as a symbolic expression of opposition to corporate America would surely implicate the First Amendment.
The point is simple. Even though an object may not itself be speech, if the government regulates it because it is being used to enable free speech it necessarily raises a First Amendment issue. Thus, a law that prohibits political candidates to spend money to pay for the cost of printing leaflets, or that forbids individuals to contribute to their favorite political candidates to enable them to buy airtime to communicate their messages, directly implicates the First Amendment. Such laws raise First Amendment questions, not because money is speech, but because the purpose of the expenditure or contribution is to facilitate expression.
Indeed, not a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech. It is simply not a persuasive or even coherent way to frame the issue. If it were, then the government could make it a crime for any person to use money to buy a book.
More to the point, if the Constitution were amended to say that "money is not speech," then the government could constitutionally prohibit anyone to spend or contribute even a single dollar in the political process. In a world in which speech costs money, this would give a huge advantage to incumbents and effectively destroy our democracy. It simply will not do to insist that "money is not speech."
This is not to say, however, that the government cannot constitutionally regulate the use of money in politics. The fact that an object is used to facilitate speech does not mean that it is immune from regulation. The use of a loudspeaker is speech, but the government can regulate the decibel level. Burning a dollar bill for expressive purposes is speech, but the government can prohibit anyone from doing so near an open gas line. And the same is true for campaign contributions and expenditures. When the government attempts to regulate the use of money for expressive purposes it implicates the First Amendment, but it does not necessarily violate it.
If the critics of Citizens United and the advocates of a constitutional amendment to overrule it want to be taken seriously, they must move beyond superficial slogans and focus on the real issue at stake: When should the government be allowed to regulate political contributions and expenditures -- even if they are speech?
Organizations like Move to Amend, ballot measures in Boulder, Colorado and Madison Wisconsin, city council resolutions in Los Angeles and Portland, Oregon, and thousands of individuals protesting at the Supreme Court on the second anniversary of Citizens United have all embraced this slogan. Although the critics of Citizens United might well be right to condemn it and to call for a constitutional amendment to overrule it, they are misguided in their reliance on the refrain that "money is not speech."
Of course, money is not "speech." Money is money, a car is a car, and a ribbon is a ribbon. These are objects, not speech. But all of these objects, and many more besides, can be used to facilitate free speech. Consider a car. The government can lawfully impose all sorts of restrictions on how, when and where we can drive a car, and no one would argue that those restrictions implicate the First Amendment.
But suppose a city enacts a law prohibiting any person to drive a car in order to get to a political demonstration. Such a law would clearly implicate the First Amendment, not because a car is speech, but because the law restricts the use of a car for speech purposes.
Similarly, a ribbon is a ribbon. A ribbon is not speech. But a law that prohibits anyone to wear a pink ribbon for expressive purposes would clearly implicate the First Amendment, because it restricts the use of a ribbon for speech purposes.
Like a car or a ribbon, money is not speech. But when government regulates the use of money for speech purposes, it implicates the First Amendment. Suppose, for example, an individual at an Occupy protest burns a dollar bill to convey her disdain for corporate America. A dollar bill is not speech, fire is not speech, but a government law prohbiting any person to burn money as a symbolic expression of opposition to corporate America would surely implicate the First Amendment.
The point is simple. Even though an object may not itself be speech, if the government regulates it because it is being used to enable free speech it necessarily raises a First Amendment issue. Thus, a law that prohibits political candidates to spend money to pay for the cost of printing leaflets, or that forbids individuals to contribute to their favorite political candidates to enable them to buy airtime to communicate their messages, directly implicates the First Amendment. Such laws raise First Amendment questions, not because money is speech, but because the purpose of the expenditure or contribution is to facilitate expression.
Indeed, not a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech. It is simply not a persuasive or even coherent way to frame the issue. If it were, then the government could make it a crime for any person to use money to buy a book.
More to the point, if the Constitution were amended to say that "money is not speech," then the government could constitutionally prohibit anyone to spend or contribute even a single dollar in the political process. In a world in which speech costs money, this would give a huge advantage to incumbents and effectively destroy our democracy. It simply will not do to insist that "money is not speech."
This is not to say, however, that the government cannot constitutionally regulate the use of money in politics. The fact that an object is used to facilitate speech does not mean that it is immune from regulation. The use of a loudspeaker is speech, but the government can regulate the decibel level. Burning a dollar bill for expressive purposes is speech, but the government can prohibit anyone from doing so near an open gas line. And the same is true for campaign contributions and expenditures. When the government attempts to regulate the use of money for expressive purposes it implicates the First Amendment, but it does not necessarily violate it.
If the critics of Citizens United and the advocates of a constitutional amendment to overrule it want to be taken seriously, they must move beyond superficial slogans and focus on the real issue at stake: When should the government be allowed to regulate political contributions and expenditures -- even if they are speech?
December 29, 2011
Political Vitriol and Its Consequences for Democracy
Barack Obama is a Socialist who consorts with domestic terrorists. He is a Muslim who was born in Kenya and is therefore not constitutionally eligible to be president. He wants to import homosexuals, destroy the Second Amendment, and encourage abortions. According to Sean Hannity, he has thrown Israel under a "bus full of suicide bombers." According to Glenn Beck, he has "a deep-seated hatred for white people." According to Rush Limbaugh, he has "nothing but contempt for this country."
And on and on and on.
The tenor and tone of the right-wing assault on the President of the United States should disturb all Americans. It is, to say the least, unseemly. Of course, we cherish the right to free speech. But having the right to do something does not mean one should actually do it. The Nazis had a First Amendment right to march in Skokie and the Klan has a First Amendment right to burn a cross, but that doesn't mean we should join or applaud them. With rights come, or should come, maturity and personal responsibility.
Although the ugliness of our current political discourse is distressing, it is not unprecedented. In 1798, a critic of President John Adams fumed that under Adams' leadership, "every consideration of the public welfare" was being "swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." During the Civil War, Abraham Lincoln was variously attacked even in the North by those who opposed the war, the draft and the Emancipation Proclamation as a "despot," a "liar," a "monster," a "perjurer," an "ignoramus," and a "tyrant." And during the McCarthy era, the columnists Joseph and Stewart Alsop observed that "something has gone wrong, very wrong, in the capital of the United States," noting that a "miasma" of political accusation "is seeping in over the nation's capital, like some noxious effluvium from the marshy Potomac."
False, misleading and vitriolic attacks on our nation's leaders do not serve our democracy. But do they really have an effect? I was struck this morning by a recent report from the Gallup organization about how self-described Democrats, Independents and Republicans perceive the ideology of President Obama and the seven remaining candidates for the 2012 Republican presidential nomination.
In this poll, Gallup evaluated ideology on a scale from 1 to 5, with 1 being the most liberal and 5 being the most conservative. Not surprisingly, Republicans incline toward the higher number, Democrats toward the lower number, and Independents fall in-between. What was striking to me about the results of this poll was that for each of the Republican candidates, Democrats, Independents and Republicans all assessed the candidates' ideology very similarly. But as the following chart reveals, there is a dramatic gap in their respective assessments of President Obama's ideology.
Although Democrats and Independents come to fairly similar conclusions in their evaluation of the President's political ideology, the Republicans are simply off-the-charts. If we assume, as seems sensible, that Independents have a reasonably neutral understanding of each candidate's ideology, then the data suggest that Republicans have a wildly distorted perception of the president's views.
This, I fear, may be one very troubling consequence of the aggressive and often nasty assault on truth and reason in our contemporary political discourse. The attacks, exaggerations and lies do, indeed, seem to have a significant impact on public opinion, especially among those who are already inclined to believe them.
And on and on and on.
The tenor and tone of the right-wing assault on the President of the United States should disturb all Americans. It is, to say the least, unseemly. Of course, we cherish the right to free speech. But having the right to do something does not mean one should actually do it. The Nazis had a First Amendment right to march in Skokie and the Klan has a First Amendment right to burn a cross, but that doesn't mean we should join or applaud them. With rights come, or should come, maturity and personal responsibility.
Although the ugliness of our current political discourse is distressing, it is not unprecedented. In 1798, a critic of President John Adams fumed that under Adams' leadership, "every consideration of the public welfare" was being "swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." During the Civil War, Abraham Lincoln was variously attacked even in the North by those who opposed the war, the draft and the Emancipation Proclamation as a "despot," a "liar," a "monster," a "perjurer," an "ignoramus," and a "tyrant." And during the McCarthy era, the columnists Joseph and Stewart Alsop observed that "something has gone wrong, very wrong, in the capital of the United States," noting that a "miasma" of political accusation "is seeping in over the nation's capital, like some noxious effluvium from the marshy Potomac."
False, misleading and vitriolic attacks on our nation's leaders do not serve our democracy. But do they really have an effect? I was struck this morning by a recent report from the Gallup organization about how self-described Democrats, Independents and Republicans perceive the ideology of President Obama and the seven remaining candidates for the 2012 Republican presidential nomination.
In this poll, Gallup evaluated ideology on a scale from 1 to 5, with 1 being the most liberal and 5 being the most conservative. Not surprisingly, Republicans incline toward the higher number, Democrats toward the lower number, and Independents fall in-between. What was striking to me about the results of this poll was that for each of the Republican candidates, Democrats, Independents and Republicans all assessed the candidates' ideology very similarly. But as the following chart reveals, there is a dramatic gap in their respective assessments of President Obama's ideology.
Although Democrats and Independents come to fairly similar conclusions in their evaluation of the President's political ideology, the Republicans are simply off-the-charts. If we assume, as seems sensible, that Independents have a reasonably neutral understanding of each candidate's ideology, then the data suggest that Republicans have a wildly distorted perception of the president's views.
This, I fear, may be one very troubling consequence of the aggressive and often nasty assault on truth and reason in our contemporary political discourse. The attacks, exaggerations and lies do, indeed, seem to have a significant impact on public opinion, especially among those who are already inclined to believe them.
December 15, 2011
Obama on Republican Economic Policy: "It Doesn't Work"
In his speech in Osawatomie, Kansas, last week, President Obama proclaimed that Republican economic policy -- trickle-down, supply-side, tax-cutting economics -- "doesn't work." It has been tried, he said, and it "has never worked." Is he right? Or is this just more political blather? To see, we need to go back to basics, back to Reaganomics.
Ronald Reagan swept into Washington touting the theory of "trickle-down" economics. The idea was simple: by reducing federal tax rates, government would leave more money in the market, which would bolster the economy, which would generate jobs and goods, which would increase total income, which would ultimately produce enough tax revenue to make up for the initial reduction in taxes. In a speech in February 1981, Reagan declared that his plan, labeled "voodoo economics" a year earlier by his eventual running mate, George H. W. Bush, would eliminate the nation's budget deficit and produce a surplus by 1984.
The Economic Recovery Tax Act of 1981 (known as the Kemp-Roth Act) cut $750 billion in federal tax revenue over five years. Individual income taxes were reduced across the board by 5% the first year and 10% the following two years. The top tax rate was lowered from 70% to 50%. The government also cut taxes on capital gains and inheritance. Five years later, Reagan's Tax Reform Act of 1986 reduced rates even further, lowering the maximum tax on the highest-earning individuals to only 28%, the lowest in more than half-a-century.
Although Kemp-Roth lowered nearly everyone's federal income tax burden, its chief beneficiaries were wealthy Americans and businesses. Thanks in great measure to reduced taxes on capital gains, the top 1% of American earners saw their incomes grow by 23% between 1980 and 1983. Real income for the poorest 20% of Americans, however, declined by almost 3%. Moreover, the bottom half of the population paid a higher share of total taxes in 1983 than it had pre-Reagan.
The tax reform plan that was designed to stimulate business and produce a substantial budget surplus instead drove the United States deeper into debt and triggered a recession. By mid-1982 unemployment stood at 9.7%. Businesses failed right and left, and Reagan's approval rating plunged to 35%. Instead of reducing the federal deficit, Reagan managed to do the impossible: he tripled the cumulative national debt of the United States in only eight years. Reaganomics did not work.
But that was only Reagan. The following chart shows the average annual increase in the deficit from 1977 to 2009 -- during the administrations of Carter, Reagan, Bush I, Clinton and Bush II. This chart enables a comparison of average annual increases in the deficit during the administrations of those presidents who embraced conservative economic theory (Reagan, Bush I and Bush II) and those who did not (Carter and Clinton).
The three presidents who embraced conservative economic theory all increased the deficit more than the two presidents who did not. Indeed, under Reagan, Bush I and Bush II, the deficit increased at an average annual rate of 16.8%, whereas under Carter and Clinton it increased at an average annual rate of only 6.5%.
Another useful calculation is national debt as a percentage of gross domestic product (GDP). If the economy is growing, then a larger national debt isn't such a big deal. An investment banker, after all, can afford to carry a lot more debt than, say, a school teacher. So, what happened to the national debt/GDP percentage under Carter, Reagan, Bush I, Clinton and Bush II? The following chart shows how each of these five presidents fared on this measure. A negative number means that during his term the president reduced the debt/GDP percentage (which is good) and a positive number means that the president increased the debt/GDP percentage (which is bad).
Rather dramatically, it turns out that from 1977 to 2009 the three presidents who endorsed conservative economic theory all substantially increased the national debt to GDP percentage, whereas the two presidents who did not endorse that approach actually reduced the debt/GDP percentage. Indeed, on average, Reagan, Bush I and Bush together increased the percentage from 42% to 79% during their terms, whereas Carter and Clinton together reduced the national debt/GDP percentage from 53% to 48%.
Republicans today claim that we should trust them to cut government spending. But how well have the devotees of conservative economic policies done in this regard? Consider the following chart, which shows the average annual increase in spending, adjusted for inflation, by each of the five presidents between 1977 and 2009:
Once again, conservative economic policy doesn't look so good. Reagan, Bush I and Bush II increased government spending (adjusted for inflation) during their terms by an average of 3.13% annually, whereas Carter and Clinton increased government spending (adjusted for inflation) during their terms by an average of only 1.28% annually.
One final calculation is important: average annual increase in GDP. An important component of conservative economic policy is the claim that by cutting taxes the government can energize the economy. How well does this work? The following chart compares average annual increases in GDP (adjusted for inflation) from 1977 to 2009:
Reagan, Bush I and Bush II increased GDP (adjusted for inflation) by an annual average of 2.4%, whereas Carter and Clinton increased GDP (adjusted for inflation) by an annual average of 3.6%.
For all these reasons, President Obama was right: conservative economic theory "doesn't work." Let's not be fooled again.
This piece was co-authored with Jane Dailey, Associate Professor in the Department of History and the Law School at The University of Chicago.
Ronald Reagan swept into Washington touting the theory of "trickle-down" economics. The idea was simple: by reducing federal tax rates, government would leave more money in the market, which would bolster the economy, which would generate jobs and goods, which would increase total income, which would ultimately produce enough tax revenue to make up for the initial reduction in taxes. In a speech in February 1981, Reagan declared that his plan, labeled "voodoo economics" a year earlier by his eventual running mate, George H. W. Bush, would eliminate the nation's budget deficit and produce a surplus by 1984.
The Economic Recovery Tax Act of 1981 (known as the Kemp-Roth Act) cut $750 billion in federal tax revenue over five years. Individual income taxes were reduced across the board by 5% the first year and 10% the following two years. The top tax rate was lowered from 70% to 50%. The government also cut taxes on capital gains and inheritance. Five years later, Reagan's Tax Reform Act of 1986 reduced rates even further, lowering the maximum tax on the highest-earning individuals to only 28%, the lowest in more than half-a-century.
Although Kemp-Roth lowered nearly everyone's federal income tax burden, its chief beneficiaries were wealthy Americans and businesses. Thanks in great measure to reduced taxes on capital gains, the top 1% of American earners saw their incomes grow by 23% between 1980 and 1983. Real income for the poorest 20% of Americans, however, declined by almost 3%. Moreover, the bottom half of the population paid a higher share of total taxes in 1983 than it had pre-Reagan.
The tax reform plan that was designed to stimulate business and produce a substantial budget surplus instead drove the United States deeper into debt and triggered a recession. By mid-1982 unemployment stood at 9.7%. Businesses failed right and left, and Reagan's approval rating plunged to 35%. Instead of reducing the federal deficit, Reagan managed to do the impossible: he tripled the cumulative national debt of the United States in only eight years. Reaganomics did not work.
But that was only Reagan. The following chart shows the average annual increase in the deficit from 1977 to 2009 -- during the administrations of Carter, Reagan, Bush I, Clinton and Bush II. This chart enables a comparison of average annual increases in the deficit during the administrations of those presidents who embraced conservative economic theory (Reagan, Bush I and Bush II) and those who did not (Carter and Clinton).
The three presidents who embraced conservative economic theory all increased the deficit more than the two presidents who did not. Indeed, under Reagan, Bush I and Bush II, the deficit increased at an average annual rate of 16.8%, whereas under Carter and Clinton it increased at an average annual rate of only 6.5%.
Another useful calculation is national debt as a percentage of gross domestic product (GDP). If the economy is growing, then a larger national debt isn't such a big deal. An investment banker, after all, can afford to carry a lot more debt than, say, a school teacher. So, what happened to the national debt/GDP percentage under Carter, Reagan, Bush I, Clinton and Bush II? The following chart shows how each of these five presidents fared on this measure. A negative number means that during his term the president reduced the debt/GDP percentage (which is good) and a positive number means that the president increased the debt/GDP percentage (which is bad).
Rather dramatically, it turns out that from 1977 to 2009 the three presidents who endorsed conservative economic theory all substantially increased the national debt to GDP percentage, whereas the two presidents who did not endorse that approach actually reduced the debt/GDP percentage. Indeed, on average, Reagan, Bush I and Bush together increased the percentage from 42% to 79% during their terms, whereas Carter and Clinton together reduced the national debt/GDP percentage from 53% to 48%.
Republicans today claim that we should trust them to cut government spending. But how well have the devotees of conservative economic policies done in this regard? Consider the following chart, which shows the average annual increase in spending, adjusted for inflation, by each of the five presidents between 1977 and 2009:
Once again, conservative economic policy doesn't look so good. Reagan, Bush I and Bush II increased government spending (adjusted for inflation) during their terms by an average of 3.13% annually, whereas Carter and Clinton increased government spending (adjusted for inflation) during their terms by an average of only 1.28% annually.
One final calculation is important: average annual increase in GDP. An important component of conservative economic policy is the claim that by cutting taxes the government can energize the economy. How well does this work? The following chart compares average annual increases in GDP (adjusted for inflation) from 1977 to 2009:
Reagan, Bush I and Bush II increased GDP (adjusted for inflation) by an annual average of 2.4%, whereas Carter and Clinton increased GDP (adjusted for inflation) by an annual average of 3.6%.
For all these reasons, President Obama was right: conservative economic theory "doesn't work." Let's not be fooled again.
This piece was co-authored with Jane Dailey, Associate Professor in the Department of History and the Law School at The University of Chicago.
Geoffrey R. Stone's Blog
- Geoffrey R. Stone's profile
- 45 followers
Geoffrey R. Stone isn't a Goodreads Author
(yet),
but they
do have a blog,
so here are some recent posts imported from
their feed.
