Rob Astorino's debatable demand

In New York, Republican gubernatorial candidate Rob Astorino says that he's only willing to participate in debates if he can debate incumbent governor Andrew Cuomo in a one-on-one format. He believes that independent parties should be excluded because they have no chance of winning the election. "The only way, realistically, we're going to have an honest debate is with the two major-party candidates," Astorino says. But that depends on your definition of an honest debate. Astorino thinks only a Republican-vs.-Democrat debate is honest because only they can win. But is a debate honest if not all viewpoints are represented? Astorino's prejudice ignores the possibility that a strong debate performance might give an independent his or her best chance to win against the odds. In a way, he concedes that debates are irrelevant, if he assumes that most people will never vote independent no matter how well a candidate debates, but at the same time he sees the debate as crucial to his own success, since he wants to maximize the time he'll get to interrogate Cuomo. He complains that in the multi-party debate of 2010 the Democrat was able to "hide" behind the fringe candidates, as if only a Republican challenge is relevant. So concerned is Astorino with getting Cuomo alone in a room that he fails to see the potential advantage in exposing the governor to challengers from his left, from the certain opposition of the Green party to the possible (if unlikely) opposition of the Working Families party. No matter how highly Astorino estimates his own ability to sway the undecided, his best chance of winning a gubernatorial election in New York is is Cuomo has a credible challenge to his left, and there'd be no better way to make that challenge credible than by having a leftist candidate tackle Cuomo on statewide TV. But perhaps Astorino fears the inclusion of a Libertarian or even a Constitution party candidate to challenge him from his right, though those, too, could help him by making him look moderate by comparison. Most likely Astorino simply exemplifies a sense of entitlement typical of Bipolarchy. Republicans and Democrats act as if they are as much constituent elements of American government as are the states or the people. Each party considers itself the official and only "real" opposition to the other, all others being frivolous or fringe elements. The perceived polarization of public opinion only encourages that self-serving viewpoint. That polarization can be overcome only by thinking outside the two-party box, and that requires the inclusion of independent voices in all our political debates. But polarization will only be overcome if people actually think it's a problem, and it's clear that Rob Astorino, at least, doesn't. That only makes him part of it.

To suppress an American political party

In effect, that's the proposal of Susan Lerner, a Common Cause activist and op-ed contributor to the Albany Times Union. Her target is the Independence Party, the largest small-i "independent" party in New York State. Like many so-called independents here, Independence often offers an echo, not a choice. It adopts the policy of cross-endorsement, usually nominating a major-party candidate for governor (though it ran its own from 1994 to 2002) in the hope that enough people will vote for that candidate on the Independence line to earn the part a guaranteed spot on the next state ballot. Lerner argues, for all intents and purposes, that the party is corrupt, offering its nominations to the highest bidder. Lerner claims that those who bid are suckers, deceived by the party's large enrollment. She cites a New York Daily News article claiming that most people who've registered with the Independence party don't know either what the party stands for or that they're actually enrolled in it. Apparently most people register with Independence on the mistaken assumption that they're designating themselves as small-i independent voters. This gives the actual party leaders disproportionate, unfair influence with major candidates. Lerner's remedy is for New York to emulate Louisiana, where a law was passed forbidding any party from calling itself "Independent" ( or "Independence?") in order to prevent confusion during the registration process. Whatever the sins of the Independence Party of New York, I don't care much for this idea. A more legitimate political party should be able to call itself what it pleases, no matter how it may confuse people. For a long time you'd see both a "Socialist" and "Socialist Worker" candidate on ballots, if you cared to look hard enough, so I see no reason why there shouldn't be a "Conservative Republican Party" or a "Progressive Democratic Party," to give two examples off the top of my head. The real problem with the Independence Party, it seems, is that its only real purpose is to hold on to that ballot line. Coveting a ballot line is a problem with many parties in New York, as I've already noted. The real remedy wouldn't be to restrict what parties can call themselves -- you may question their sincerity but who would you trust to actually judge it? -- but to institute a non-partisan ballot that has no such lines. Do that, and we'd soon see which parties really have something unique to offer voters.

Amoklaufs and entitlement

The young man who last weekend murdered three men in his Isla Vista CA apartment building, attempted to shoot up a sorority house and then shot three women standing outside, two fatally, before going on a final murderous joyride in his BMW, killing one more and wounding others before killing himself, is certain to go down as one of the most despised of the sad crew of rampage murderers, if only because he was so upfront about his motivation. As everyone now knows, in YouTube videos and a written manifesto this wretch made clear that people deserved to die because he could not get sex. All women shared in the sins of those who spurned him, while men deserved to suffer for showing him up. He reportedly contemplated killing his younger brother because he couldn't bear the thought of the boy growing up to score when he couldn't. The sense of entitlement expressed here is sickening. We supposedly live in an "entitlement culture" but I'm sure that, across the political spectrum, no one would endorse the idea that individuals have a right to sex, denial of which would justify a personal insurrection like that waged last weekend. Since this story inevitably bleeds into the gun-control debate -- a point emphasized vehemently by the father of one of the Isla Vista victims -- we should note that concepts of entitlement are embedded inextricably in the debate. On the simplest level, many Americans believe they are literally entitled to carry firearms and use them in self-defense by the Second Amendment to the Constitution, though they arguably read into the document an assumption of natural entitlement. That ambiguity matters. How do we know what we're entitled to? Positive law is one answer, but what if law hasn't spoken on a specific subject? Just about everyone will agree that the Isla Vista amoklaufer was not entitled to sex -- but on what basis do we agree? There are at least two grounds for rejecting such a sweeping entitlement claim. The conservative argument against entitlement is that certain goods can only be had when they are earned, and that it's wrong to appeal to politics above a law of nature. This seems applicable to the present case: if this relatively privileged and not superficially repulsive looking creep can't persuade a woman to go out with him and consent to sex, he's SOL. But you don't need to appeal to nature to refute his sense of entitlement. In a democratic polity, it should suffice that we the people have not conferred upon him or anyone a right to sex, even if he should claim a natural right to it. When the subject is sex the solution looks easy. But there are times when the will of the people clashes with a sense of natural right and the Constitution is vague. That's an undercurrent of the gun-rights debate. It should be obvious that people on the left fear that people on the right (militias, etc.) will start shooting someday from a sense of violated entitlement -- a belief that otherwise legitimate legislation violates their rights as they are inferred from the Constitution on an assumption of natural rights. On a perhaps cruder level, people on the right fear that poor people are already shooting from a false sense of entitlement (e.g. "I got to survive"). Their remedy is their own entitlement to self-defense -- and their remedy when democracy disputes that entitlement is to reassert it, in the worst case by an appeal to force. There isn't necessarily a consensus in the U.S. against a personal right to lethal self-defense, but in light of a widespread refusal to recognize such a right in the language of the Second Amendment, or to defer to those jurists whose reading of the language seems biased by natural-rights assumptions, have those people convinced of their entitlement a right to appeal to force should that entitlement be denied? What would make them any better than the Isla Vista amoklaufer other than their disputed claim that the Constitution vindicates them? Who is the ultimate judge of entitlement claims? We have judged one murderer easily enough. Perhaps that'll inspire us to assert our authority more often.

A nation and its army

Irreverent thoughts for Memorial Day: I've been following the news from Thailand and watching footage of the coup d'etat announcement by the new military junta. I couldn't help thinking: who are they kidding? It's the same old playbook that juntas have been using for generations: reduce TV programming to martial music and patriotic tunes to put the sheep in the mood. Then you have that sad bunch of generals on TV, as if citizens are supposed to be automatically impressed if not awed by their collective presence. Does anyone anywhere fall for it anymore? Can a nation's military expect to be recognized as an impartial, nonpartisan arbiter of its political future acting out of disinterested benevolence and a truly objective sense of national interest? I suppose there are people -- civilians as well as military -- who would like to think so, who would like to have something, in the absence of monarchy or, in Thailand's case, as a supplement to it, that embodies the continuity of the state if not the spirit of the nation, or shows that the nation's essence isn't subject to a vote. But some would say that to imagine a military playing this role is an ideology in its own right. Others might question whether, in a country so apparently and irreconcilably divided on partisan (or class) lines as Thailand, the military is really neutral, preferring none of the major factions. Whatever the true motives of the Thai junta, their country is only the latest case in which extralegal solutions are sought for partisan impasses. The previous example was Ukraine, where the solution seems to be federalism or separation, the divide being as much geographic and cultural as it was partisan. Any multiparty democracy theoretically faces the danger of partisan gridlock, depending on the rights its constitution grants political minorities. Can such systems provide an authority above partisanship for the nation to fall back on, and will people in such systems accept the necessity sometimes of an assertion of authority that isn't elected? If not the military, what can this authority be? The people themselves, you might say, but Ukraine proves that people power in one place doesn't necessarily represent all a nation's people. A mob is as likely to be partisan as a junta. The real problem, in our age of mutual distrust, is that we don't know when it's safe to submit. There's always a fear that an election won by the other side will be the last election, while is some cultures ideologies embolden people to refuse governments even the minimal degree of submission (call it deference if you prefer) necessary for stable administration. We assume our eternal right to say no; will we ever acknowledge an obligation, at any time, to say yes, whether because a majority expects it or a survival imperative requires it? Military juntas appeal to the idea that the nation has an existence independent of elections and parties, though a soldier's idea of the nation's essence may differ from a true democrat's. They are distrusted by those who believe that a nation's direction can only be defined democratically, by voting and perhaps inevitably through the instrumentality of parties. If politics were more simple -- if it were only a matter of how we survive -- perhaps neither parties nor juntas would be necessary. But politics is rarely that simple, and the complications sometimes seem to make the simplest functions doubtful. Neither Thais nor Ukrainians nor Americans agree much on the direction of their countries, their mutual responsibilities as citizens, and so on. Despite what liberals think, none of them can keep disagreeing forever if disagreement means perpetual gridlock. Either elections must confer upon one party decisive power to govern without obstruction, or some unelected force must be able to act decisively when parties cannot, at least when the needs of the nation objectively demand it. Perhaps some Thais trust their army to play the latter role. Does any American trust his army the same way? If not, maybe the military needs reform so that it can be trusted in a crisis, or else some trustworthy alternate force must come into being. If someone has a practical solution to these puzzles, his or her memory would be worth honoring every year.

Questioning democracy

David Brooks worries that "democracy" is in decline around the world, challenged by a "charismatic rival" he dubs the "Guardian State." The models here are the more advanced Asian states, which Brooks describes as more technocratic and innovative, if also sometimes more corrupt, than western democracies. He summarizes the weaknesses of democracies, though these may vary depending on particular constitutions: "Democracies tend to have a tough time with long-range planning. Voters tend to want more government services than they are willing to pay for. The system of checks and balances can slide into paralysis, as more interest groups acquire veto power over legislation." The U.S. in particular has become "neurotically democratic," a victim of the perpetual election cycle and the "disproportionate power" of "unrepresentative groups." Brooks's vague solution is to make the U.S. "less democratic at the national level in order to become more democratic at the local level." He seems to mean that technocrats should set policy in an "unapologetically elitist" manner, yet delegate as much authority as possible to responsive local management. For Brooks this combines the best of both worlds: the "speed at the top" characteristic of the "Guardian State" and the "speed at the bottom" that, for him, characterizes democracy at its best. That last part confuses me. He writes that "democracy's great advantage over autocratic states [apparently a separate category from Guardian States] is that information and change flow more freely from the bottom up." In practical terms he means that democracies are more responsive to feedback from the bottom, but depending on the subject at hand one person's feedback could look like another's obstruction. Brooks seems to assume that "information and change" will take objective, practical forms. Recent history suggests otherwise. Tweaking the settings as Brooks suggests misses what may be a more fundamental problem with democracy. Is it a means or an end? Democrats (in the ideological rather than partisan sense) act as if it's both at once, but the distinction is important. If democracy is a means to an end -- the survival of a people, the good life, the Good, etc. -- then democracy can be held accountable to a standard that could justify deviations from democracy. Are we a people -- as a nation, a culture, a species -- with innate obligations to one another prior to our forming a body politic? If so, then democracy is a means to an end. But democracy may also be seen as an end unto itself, on the assumption that we have no prior obligations to each other before we form a body politic and therefore can't be compelled without democratic consent. In that case there may be no standard for judging democracy that democracy feels bound to recognize. This distinction matters because we may want (or need) to argue that individuals or interest groups have no veto on imperative measures for species or planetary survival, and that while this may look like tyranny that doesn't necessarily make it wrong.  Democracy itself can be a kind of tyranny if it leads people to believe that there is no good other than democracy, and especially if democracy becomes understood as the unconditional defense of vested interests against any other idea of the good. In simpler terms, if we understand democracy simply as our right to say no to everything, we will most likely accomplish nothing in the long run, despite how good democracy may look in the short run. I don't offer these observations as final answers, but I hope they raise the sort of questions more of us should ask.

The VA Scandal

It looks like a housecleaning is needed in the Department of Veterans Affairs, but the big question seems to be whether to entrust the housecleaning to Eric Shinseki, the current secretary, or to clean him out as well. Based on news stories, there's a lot of incompetence, if not corruption in VA hospitals and veterans are suffering, and in some cases dying from lack of service. Partisanship really should have nothing to do with the government's investigation of the problem, but who am I kidding? That there should be congressional investigations should seem obvious, but I suspect that both major parties are too concerned about how such hearings can be spun for political gain, or to avoid political damage. Democrats most likely worry that the scandal will somehow further taint their brand before the midterm elections -- that the President, and by extension his party, will be held responsible if Secretary Shinseki is found responsible for poor conditions or corrupt practices in the VA. It's also most likely that at least some of the Republicans demanding Shinseki's resignation before any hearings take place desire just such an effect. That shouldn't matter. It shouldn't provoke Democrats into stonewalling or cover-ups. The best thing they can do now is put the interests of veterans ahead of the interests of their party while avoiding any "let's not go too far" rhetoric that hints at their hiding something. The public will be able to tell much more easily if Republicans are politicizing the issue if Democrats won't.

More Putinology

Americans have three models to choose from when trying to figure out what Vladimir Putin is all about. The Russian president can be seen as a nationalist convinced of his country's historic right to bully its neighbors; this is the Russophobic interpretation that sees Putin as a product of a historically vicious culture. He can be seen as an ideologue, either a secret Bolshevik, given his KGB history, or the purveyor of some new authoritarian doctrine, but in any event an active advocate for tyranny. Putin can also be seen as a simple thug or crook -- and this seems to be the approach of Ben Judah, who has written the latest book about him, and of David Frum, the Atlantic contributing editor who has reviewed Judah's book. The thesis of the review, if not the book, is that whatever ideology Putin appears to expound is simply raw meat for the rabble, the assumption being that Putin is only out to enrich himself and his cronies. In Frum's words, Putin is "a combination of Tony Soprano and one of the backup dancers for the Village People, posing as a Siberian tough guy to compensate for the aching weakness of his country and his position in it." Frum appears to share Judah's concern that Putin's cynicism may end up clearing the way for "a real Putin" -- someone who really believes what Putin supposedly believes. Even figures hailed in the west as brave critics of Putin, and thus as liberals by default, have disturbingly populist tendencies and violent rhetoric that makes them sound hardly better than what we have now. Meanwhile, the Russian masses are "nostalgic for the welfare state" of the USSR, if not for its Cold War empire. Their anger makes their embrace of western-style liberalism unlikely, and Putin has allegedly made things worse by egging on hatred of ethnic minorities within Russia and foreigners outside.

Americans may disagree on the exact nature of Putin's dysfunction, but there seems to be a national consensus that he can't simply be a typical statesman, albeit with a less magnanimous attitude toward opponents than some countries credit themselves with. On that point, Frum notes that Putin's dreaded censoriousness is restricted to the realm of television, while Internet critics can get away with more. That aside, our analysts' determination to see Putin as an abnormal ruler implies a standard of normal politics and government that most likely conforms quite closely to American models. I bring this up not to argue that American politics is abnormal, but to question whether our inevitably subjective observers have any business deciding who is normal or abnormal -- or who is legitimate or illegitimate.  Americans in particular have a problem dealing with governments and rulers who don't conform to our standards of political conduct; witness our persistent resentment at having to accept equal standing with all those miserable little tyrannies in the U.N. General Assembly or other international bodies where we lack veto power. We deem other countries "cynical" when they do business without questioning the moral legitimacy of the governments they treat with. We tend to blame international problems on the dysfunctions of governments and leaders, e.g. the problem with Ukraine is Putin. Hence Judah also, and Frum implicitly, repeat the cliche that Putin perceives liberal democracy in Ukraine as a threat to his authority in Russia. This obsession with the power of leaders continues to muddy our perceptions of national and ethnic conflicts that predate one man's rise to power. Americans seem enthralled by a Great (or Bad) Man theory of history that misses the point of the Ukraine conflict. And if our policy is to undermine the Great Bad Man, our approach will most likely miss its target and only hurt the little people. 

The stakes in campaign-finance policy

Here's Cass R. Sunstein again, this time reviewing the new book by former Supreme Court Justice Stevens in The New York Review of Books. Speaking for himself if not for Stevens, Sunstein articulates what might be called the objective argument for campaign finance regulation.

In the defining First Amendment cases, a political majority is attempting to entrench itself by censoring speech that it deems to be dangerous. The free speech principle forbids this kind of self-entrenchment. It ensures political liberty, and with respect to ideas, a kind of political equality. With campaign finance regulation, the goal is not to entrench the power or opinions of the majority, but to ensure that economic inequalities are not turned into political ones. In a society that tolerates disparities in wealth, that is not merely a worthy goal; it is essential.

In short, for Sunstein there's nothing repressive about limits on campaign spending, but defenders of unlimited spending will disagree. They have often argued that the object of regulation and limitation is to entrench the power (if not the opinions) of a temporary political majority. What they see, and what Sunstein presumably doesn't, is the emergence of a self-interested political class that wishes to exclude others, and in particular the wealthy, from power or influence. This political class, as you've heard before, consists mainly of Democrats but includes some arrogant Republicans, most notably Senator McCain. This political class, the Democrats presumably more than the Republicans, maintains an adversarial relationship toward the wealthy or certain segments of the upper class. The political class is thus a demagogic bureaucracy that seeks to hold power by stirring up envy of the rich. Such a class has an obvious interest, from this perspective, in controlling the narrative and not allowing anyone to challenge it. While the First Amendment forbids the political class from forbidding absolutely any challenge from the wealthy, that class uses campaign-finance to minimize if not marginalize a legitimate challenge. While advocates of stricter regulations like Sunstein and Justice Stevens are vigilant against the wealthy acquiring too much voice in elections, opponents of all regulations see a tendency to deny the wealthy any voice, or any voice sufficient to overcome the alleged benefits of incumbency.

Sunstein answers that, "to be sure, some campaign finance restrictions could turn out to be measures that protect incumbents. But the best way to combat that risk is through democratic debate, not through judicially imposed constraints on campaign finance laws as such." But the other side will argue that that "democratic debate" itself is compromised if the political class sets terms for it favorable to itself.  Here's the sticking point. One group of people will resist any regulation of campaign donations so long as they assume an adversarial relationship between public and private sectors, seeing restrictions on spending as the repression of the latter by the former. While this particular debate has heated up in recent years, it's really an old story. At its heart is a concept of class conflict as old as classical political theory. It sees "wealth" or "property" as a constituent element of the political order that must be balanced with but not overwhelmed by the interests of the many. States throughout history have been torn by conflicting imperatives: to protect what people have and/or to provide what people need. If the political balance tips toward the latter, society's haves feel threatened and demand that their concerns be heard by all. To deny them the ability to use the resources at their disposal to get their message out, from their own perspective, would be like limiting how long the silver-tongued orator can speak so that he can barely get started, or how many people can show up on the streets to protest anything, so that all demonstrations look pathetically small. The Koch brothers could say that limiting what they can spend is like putting them in one of those Orwellian "free speech zones" far from the people you want to confront. But I doubt whether the analogy occurs to them, since they seem concerned primarily with the rights of wealth rather than with the rights of people. Wealth, they mean, has a right to our attention that the political class can't deny, since it has a right to protection from the greed of the state and the masses. That's what the debate is about, at bottom -- not simply the right to say that your government is wrong. What may really be at stake is anyone's right to say that wealth, or its self-appointed representatives, are wrong.

'Square' people in a round world

Thomas L. Friedman thinks he's discovered a global trend by traveling to Ukraine and Vietnam. It isn't the sometimes violent resentment by small countries of giant superpower neighbors -- witness recent anti-Chinese riots in the latter country on top of the familiar news from Eastern Europe -- but the emergence of what Friedman inelegantly calls the "square people." You might be excused for thinking he coined such a label just so editors could put a "Hip to Be Square" headline over his article, but the name is presumably meant to evoke Tahrir Square in Egypt, the Maidan (which can be translated as "square" in the sense of urban park) in Kiev, and probably Tienanmen Square in China as well, since the 25th anniversary of that suppressed protest movement is fast approaching. Paradoxically -- and Friedman, author of The World is Flat, loves paradoxes -- the "squares" are young people embedded in up-to-date social networks, wielding the latest information technology, or the latest that their governments allow. He imagines their credo:

“We now have the tools to see how everyone is living, including opportunities abroad and corrupt leaders at home, and we will not tolerate indefinitely living in a context where we can’t realize our full potential. And also we now have the tools to collaborate to do something about it.”

Friedman compares the "squares" favorably with the so-called "Davos man," the class best suited by wealth or privilege to benefit, regardless of nationality, from globalization, and with the authoritarian governments against which squares typically protest. Square people are democratic and idealistic, but while Friedman endorses the claim that square people "are demanding a new social contract," I wonder whether he describes it accurately or fully. What does Friedman mean, or what does he assume that square people mean, when they protest that "we can't realize our full potential?" It occurred to me that Tea Partiers in the U.S. could say exactly the same thing. They'd be arguing that an intrusive (if not authoritarian) government is holding back the entrepreneurial innovation necessary to revive our economy ... and realize our full potential. My point isn't to equate the often courageous protesters around the world with Tea Partiers, but to ask the question Friedman's quote begs: our full potential for what? Americans have plenty of answers when Tea Partiers or libertarians protest that our own government keeps us from realizing our full potential. Could it be that the people in the squares in other countries also make unreasonable demands sometimes? It's one thing to argue for transparency and rule of law, as Friedman notes approvingly, where these things seem not to exist, and another altogether if realizing our full potential means nothing more than each person getting as rich as he or she can. I'd like to think the people who sometimes risk their lives protesting want more than that. It comes down to what "our full potential" means to people in each square, in each country -- whether "our" means "each of us" or "all of us."

The originalist illusion

Cass Sunstein reviews a new libertarian interpretation of the Constitution in the current New Republic. His critique of Richard A. Epstein's The Classical Liberal Constitution appears to expose a contradiction in the typically conservative "originalist" approach to the Constitution -- the idea that we should interpret that document according to the Framers' understanding of what their words meant in 1787. According to Sunstein, Epstein is not an originalist. Even though Epstein stresses the need for "detailed textual analysis" of the Constitution, he has said elsewhere that "in no legal system at any time could the question of construction be reduced to a search for original public meaning of terms that are found in the constitutional text." In that case, what's the guiding principle of "detailed textual analysis." Sunstein cites Epstein's opinion that "only through the use of a general theory" can the tough questions be answered. Literal originalism "ignores the relationships between text, structure, and basic normative theory," Epstein says. The "basic normative theory" appears to be crucial, but this must be found outside the Constitution itself. According to Sunstein, Epstein "acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation." Epstein writes that "our basic conception of the proper scope of government action will, and should, influence the resolution of key interpretive disputes." The "basic conception of the proper scope" is presumably synonymous with the "basic normative theory" or "general theory." For Epstein, all of these boil down to "classical liberalism" as it evolved from the English common law tradition. While he can show that classical liberalism was popular and influential in the Framers' time, Sunstein suggests that Epstein can't  or doesn't bother trying to prove that the actual text of the Constitution expresses that ideology.

Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one," Sunstein writes of Epstein, "Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires." This matters, Sunstein claims, because "Epstein's readings of the theorists and the Founders is not at all obvious or uncontroversial. There are other ways to read them. Many students of the liberal political tradition ... have raised serious questions about the supposedly libertarian nature of classical liberal theory." Under such circumstances, Epstein's interpretation of the Constitution reflects nothing more than his own moral preference for limited government and the maximum protection for property and contract. While Sunstein stops short of identifying Epstein as a Tea Partier, he notes that some TPs look to him as a guiding theorist -- they like his notion that many laws violate the Fifth Amendment -- and remarks that "the risk with anything like Tea Party constitutionalism is that it speaks not for the eighteenth-century Constitution, but for the contemporary moral and political views of those who endorse it."

Sunstein implies that TP theory, if not Epstein's libertarianism, is actually alien to the Founding, if not to the eighteenth century. But whether that matters depends either on whether Cass Sunstein himself is an originalist or whether there's as meaningful a difference as Sunstein thinks between Epstein's thinking and originalism. It seems to me that any originalist interpretation depends on assumptions about the Framers' beliefs that can only be verified, if they can be verified, with reference to documents other than the Constitution. Right-wing originalists like Justice Scalia (who often disagrees with Epstein, Sunstein writes) aren't simply playing word games. You can read ideology into a text but you can't infer ideology from a text unless the text itself is the foundation of the ideology, in which case outside influences lose much of their relevance since there's no prior ideology. The whole point of originalism, it seems, is to identify a prior ideology -- usually something to do with English common law or natural-rights philosophy -- that preemptively explains the Constitution for all time. I recall the opinion in a key gun-rights case, for instance, invoking a pre-existing natural right to self-defense to justify a broad construction of the Second Amendment. To argue that originalism is something significantly different from Epstein's approach may make sense to a specialized observer like Sunstein, but Epstein may simply have pulled aside the curtain of originalism to reveal modern-day ideologues, or simply radio blowhards, in place of the Framers. The real question that follows from Epstein's argument, or what Sunstein describes of them, is whether any "basic conception of the proper scope of government action" is incompatible with the Constitution." A line may well be drawn despite Sunstein's own presumed hopes for a flexible Constitution, but if the "basic conception" decides what the Constitution means to us, it may also oblige us to amend or replace the Constitution as our conceptions and theories evolve.

Fox News: Let the Church pay tax

John Moody is irked that the Supreme Pontiff of the Roman Catholic Church dared endorse "the legitimate redistribution of economic benefits by the state" during a meeting last week with a United Nations delegation. Never mind that the adjective "legitimate" would seem to allow right-wing Catholics a lot of wiggle room to put ideological limits on what the state can do. As far as Moody, an executive editor and vice president at Fox News, is concerned, Mr. Bergoglio has declared his support for "forced redistribution" and by "grievously exceed[ing] his authority" has become "what amounts to a robe-wearing politician." Francis I also exposes the entire Catholic Church to charges of hypocrisy, Moody warns. The logic here is a little confusing. In his rage at the Pope, Moody suggests that the Church start paying tax voluntarily to the IRS despite their religious exemption from taxation. This is, to say the least, one of the last suggestions you'd expect to see on a Fox News website. Noting that the Vatican pays Italian taxes, Moody suggests that the Church could make a notable dent in the national budget deficit.

There is no doubt that the addition of tax revenue from the Church would be considerable, if hard to estimate. The 17,000-plus parishes may not all measure up to architectural wonders like St. Patrick’s in New York or the newer Our Lady of the Angels in Los Angeles. But few Catholic churches have absolutely no value. What would 39.5% of all that be? How could Francis, or his subordinates in the United States object to voluntarily turning over part of their vast revenue?

Moody goes on to suggest that, if Catholics care so much for the poor, the Vatican should sell all their art treasures and give the proceeds to charity. He even proposes selling some icons or sculptures to al-Qaeda, presuming that those notorious iconoclasts would pay richly for the privilege of smashing them. As you could tell from that, this opinion piece is more moody than humorous. I still don't get the hypocrisy thing. If Francis is a hypocrite, he became one whenever he exhorted anyone else to voluntarily give up some of their wealth to the poor. Now, however, Moody is calling Francis a hypocrite for not giving up wealth voluntarily (despite his own widely-reported spartan lifestyle compared to his predecessor) because he advocates (according to Moody) a "forced redistribution" of wealth. But in that case the Pope would be a hypocrite only (and then only by extension) if American Catholics actively resisted taxation. Taken on his own, Bergoglio is not a hypocrite on Moody's own evidence, so long as the Vatican pays taxes to Italy. Moody, however, is most likely a Republican  ideologue first and a Catholic second at best. He most likely views anyone as a hypocrite who tells anyone else to give to the poor without having bankrupted himself first. Moody, in typical Republican fashion, extols voluntary charity but assumes that its virtue resides not in its benefit but in its voluntary nature. Compulsory charity (i.e. taxes) is less virtuous, it would seem, not because there's less benefit to the poor -- that depends on how the money is spent, not on how it's acquired -- but because the man of wealth earns no spiritual brownie points through voluntary action. Odd that it's the Pope, not the Republican, who seems to realize that spiritual brownie points aren't the only things that matter in this discussion. Francis might still be called a hypocrite, however, but he could dodge the charge by saying what Moody wouldn't dare have him say: that the tax-exemption of all churches in the U.S. should end.

In Ukraine: no solidarity among fascists?

Writing in The New Republic, historian Timothy Snyder echoes Slavoj Zizek's talking point that, despite Russian accusations against Ukrainian fascism, most European fascists and far-rightists support Russia. Snyder goes further by claiming that President Putin "now presents himself as the leader of the far right in Europe." This begs the question of what the European far right is in 2014. Snyder insinuates that it is essentially fascist because it is virulently nationalistic. The core of fact in this is that far-right parties in Europe share a hatred for the European Union, Putin's perceived enemy, though the right is not alone in this. Snyder himself assumes an essential enmity between Putin's Russia and the EU that explains Putin's Ukraine policy and predicts what might follow:

Putin's goal was and remains eminently simple. His regime depends upon the sale of hydrocarbons that are piped to Europe. A united Europe could generate an actual policy of energy independence, under the pressures of Russian unpredictability or global warming -- or both. But a disintegrated Europe would remain dependent on Russian hydrocarbons.

To the extent that far-right parties undermine European union, Snyder sees Putin as their natural patron, but while he provides evidence of the rightists' affection for Putin, he apparently doesn't consider this article the place to prove Putin's patronage of the Euroskeptic right. Snyder may simply assume from perceived affinities. He sees Russia as the nearest thing to a fascist state in Europe, or at least as more fascist than the Maidan in Ukraine. As a historian, Snyder can't ignore the sordid history of Ukrainian nationalists' alliance with Nazi Germany and their mass murders of Poles, Jews, etc. But he argues for context, emphasizing that Ukrainian nationalists fought against the Soviet Union, an entity that no longer exists, while Russian propaganda argues that the nationalists fought out of hatred of Russia. Snyder is disgusted that Putin's Russia can pretend to be the world's great enemy of fascism, but for Russia, one can infer from Snyder, the essence of "fascism" is Russophobia, which is definitely a real force in the world but not necessarily the primary impetus behind Operation Barbarossa. According to Snyder, a kind of Ukrainophobia has been present in Russia at least since the Soviet 1930s, when Stalin supposedly blamed Ukrainians for starving themselves. Maybe Russians feel about Ukraine the way Americans feel about Mexico, with a belief in their rightful dominance compounded by the fact that Russians have often ruled Ukraine literally. But for Snyder Ukraine is just part of Putin's "Eurasian" plan to dominate the supercontinent and keep it a captive market for Russia's natural resources. Convinced that Putin is an ideologue committed to encouraging if not spreading authoritarian government, Snyder sees not just justice but the future of Europe (The magazine titles his article, "This Battle Means Everything") at stake in Ukraine, where Russia must lose.

Like Zizek, Snyder is at pains to prove that the Maidan isn't the fascistic junta of the Russian imagination but a phenomenon of the left, a movement for "pluralism" that rose spontaneously when President Yanukovich "tried to end all pluralism." By now it's clear that everyone sees what they want to see in the Maidan: fascism or liberalism, an authentic uprising or USA/EU astroturfing, depending on the observer. One would probably have to go to Kiev, and know the language, and maintain a strong commitment to objectivity to get a really clear picture of the actual situation. You wonder why no one wants to consider the most outrageous possibility: that all sides in Ukraine are "fascist" in some way, to the extent that all are motivated by nationalism defined by hatred of a neighbor and a willingness to get their way by bullying tactics. I don't doubt that there are both classical and progressive liberals in the Maidan and throughout Ukraine, but I wonder whether they have much control of events in either the Russophone east or the nationalist west. Once one side is labeled as "fascist," however, people have to resist an impulse to label the opposition the good guys, when the 21st century should have taught us already that there aren't automatically good guys wherever there are "bad guys." Snyder implies that as the self-appointed nemesis of fascism, Russia may become what it beheld -- but wouldn't this be true for anyone itching to wage a crusade against "fascism" wherever they choose to see it? "Fascist" may simply be this decade's homonym for "evil." It sounds more sophisticated because it has a historical meaning, but its usage is arguably the same as George W. Bush's usage of "evil" to denote those with whom we don't have to negotiate. Meanwhile, why don't the so-called fascists of western Europe support the so-called fascists of Ukraine? Is it because, as writers as ideologically disparate as Snyder and Zizek imply, they're all in on the big lie? Or is it because there's no more obligatory affinity among fascists than there has been among communists? There's bound to be less because each fascist movement is linked to specific national or ethnic chauvinism. But in that case the support of fascists tells us nothing more about whom they support than their opposition tells us about whom they oppose. It may be that the only thing you can say for certain is that nationalism is a hell of a drug.

Slavoj Zizek on Ukraine

While Russian propaganda portrays the Maidan revolution in Ukraine as a neo-fascist conspiracy, Slavoj Zizek observes in the London Review of Books that actual neo-fascist parties (as described by Zizek) throughout Europe take Russia's side in the dispute between Moscow and Kiev. Zizek seems sadly amused by the fact that the international "anti-imperialist left" and the European far-right are on the same side on this subject. They're united by hostility toward the European Union, the right seeing it as a threat to their traditional national cultures, the left seeing it as the enforcer of neoliberal austerity at the expense of the working class. Zizek takes what may be an exceptional position by urging the left to support Ukraine on the Maidan, so long as they understand what they're supporting and why. He sees Ukraine as a battleground between the legacy of Lenin and the legacy of Stalin. Lenin, in Zizek's view, was the champion of national autonomy, Stalin the champion, ironically as an ethnic Georgian, of Russian imperialism in the guise of rational centralization. Zizek finds it telling that Stalin is more popular with Russians now than Lenin; that tips him off that the Russians are the bad guys, more interested in national greatness at other people's expense than in any vision of equality or emancipation. Ukrainians, meanwhile, have no naive illusions about the unconditional benefits of the EU. "They are fully aware of its troubles and disparities," Zizek writes, "their message is simply that their own situation is much worse. Europe may have problems, but they are a rich man’s problems." He doesn't believe that Putin or Russia can solve a poor man's problems, but neither, arguably, can the EU. The point for him, however, isn't what Ukraine sees in Europe but what Europe sees in Ukraine. He hopes that the Maidan's protest against oligarchic corruption, tainted though it may be by neo-fascist or Ukrainian chauvinist elements, can revive the ideal of Europe that should motivate the left:

What, exactly, does the ‘Europe’ the Ukrainian protesters are referring to stand for? It can’t be reduced to a single idea: it spans nationalist and even fascist elements but extends also to the idea of what Etienne Balibar calls égaliberté, freedom-in-equality, the unique contribution of Europe to the global political imaginary, even if it is in practice today mostly betrayed by European institutions and citizens themselves. Between these two poles, there is also a naive trust in the value of European liberal-democratic capitalism. Europe can see in the Ukrainian protests its own best and worst sides, its emancipatory universalism as well as its dark xenophobia.

Zizek calls on the European left, as well as the leftist opposition to Putin in Russia, to engage with the Maidan and give the Ukrainian revolution "a truly emancipatory dimension." In short, instead of treating Ukrainians like suckers falling for an EU con job, the left should take inspiration from the Maidan to the extent that its expresses a vision of an ideal Europe -- presumably including Russia -- that Europe should be made to live up to. Zizek acknowledges that this would be hard work, and that may be why European leftists have kept their distance from the Maidan. There may be irony at work here. The western liberal media constantly claims that Putin wants to crush the Maidan because he is afraid of some example it might set for dissidents in his own country. It would be ironic, then, if the international left, whom Zizek considers the Maidan's rightful allies, should let it die because they're afraid of the example it sets.

Fighting the Koch Brothers with money

Bernie Sanders sent me a letter over the weekend. He's a U.S. Senator from Vermont but wants me, a New Yorker, and others across the country to donate to his campaign fund so he can "bring our message to middle-class and working-class voters in Vermont and throughout the country." Sanders is using the Koch Bros. to scare or enrage people into giving him money. He even has a "Taking on the Koch Brothers" logo on the envelope and on the coupon you fill out if you're going to donate. A rare avowed independent in the Senate, although he caucuses with the Democrats, Sanders claims that the Kochs are also independents -- leaders of a "Billionaire Party" that has become "the major political force in the country." This party wants "to repeal or eviscerate every major piece of legislation passed in the last 80 years [i.e. since the New Deal] which protects the interests of working families, the elderly, the children, the sick and the poor." That's only its short-term goal. "Long term, their economic goal is to create a right-wing extremist 'free' economy in which working people have virtually no rights or protections" and "an electoral system in which the super-rich buy elections while, at the same time, fewer low-income and working people are able to vote." Sanders, usually described as a sort of "democratic socialist," hopes to rally Americans "around a progressive agenda which represents the needs of the vast majority of our people." He needs my help, he claims, to "build a strong grass-roots movement." I can do this by giving him money.

Why does that sound wrong to me? I suppose we must acknowledge that someone like Sanders can't enact the major reforms he lists in his letter -- including a campaign-finance reform package including a constitutional amendment to overturn the Citizens United decision and a system of public financing for elections -- until he wins more elections. He can't change the rules until he first plays by the rules and wins. But if he plays by the rules and wins -- if he can win elections despite the money raised by the Kochs and their Kronies, and with the help of other people's money -- where exactly is the need for reform? That question can be answered, but Sanders doesn't really give the answer. If there was at least an expression of regret at having to ask people for money himself, he might get closer to the answer. But if the case against unlimited campaign donations is that under such a system the Kochs and the people they prefer are bound to win, then any success Sanders has refutes his own case. Would-be populists like Sanders act as if people like the Kochs invented this system, when in fact they're only exploiting it. The real problem that has created this opportunity for the Kochs and their ilk, and for organizations like "Friends of Bernie Sanders" as well, is that television has succeeded to an unprecedented degree at transforming political speech into a commodity. TV commercial time is a seller's market, and that's what gives the deeper pockets their advantage. That's where reform needs to happen. Costs must be controlled and, yes, "speech" must be "rationed" to level the marketplace of ideas. Controlling costs will seem more fair to more people than any public financing idea, which will inevitably be portrayed as compelling taxpayers to subsidize speech they disagree with. The media, "liberal" and "conservative" alike, will protest, but it's not the media but the state that decides how elections are conducted. If the media take a loss, that'll just be too bad; profits aren't guaranteed by the First Amendment. Of course, someone will still need to win elections to make any of this agenda happen. Does that put all aspiring reformers in the same boat as Sanders? Not necessarily, so long as they tell the whole story about why campaign financing is a problem. It would definitely help, too, if they could set a better example than Sanders of declaring independence from money right from the start.

Homophobiaphobia

Religious conservatives have new reason to argue that a 21st century blacklist prevails, or may soon prevail, in the American mass media. HGTV, a home-and-garden cable channel, has cancelled a series scheduled to debut this fall, Flip It Forward, about a pair of brother realtors who would rehab homes to create affordable dream houses for poor families. The channel's decision to abort the show followed a posting on People For the American Way's Right Wing Watch website -- a modern-day counterpart to Red Channels, perhaps? -- identifying David and Jason Benham as activists opposed to abortion and gay rights. Two days later, HGTV dropped Flip It Forward.

The volume of outrage may depend on how thoroughly the story is reported. I learned about it from the USAToday website. which reports minimally that one brother picketed an abortion clinic while another warned a radio interviewer about a homosexual agenda "attacking the nation." Right Wing Watch goes into more detail. David Benham is an Islamophobe and once described a local Islamic center as a "den of iniquity." Right Wing Watch holds the sons accountable for the sins of their father, Flip Benham, who leads a "militant" anti-abortion organization, has asserted that "Jesus hates Muslims," and described the September 11 terrorist attacks as divine retribution for Americans allowing abortions.

It's been noted that homosexuals form a large part of HGTV's viewing audience. While that helps explain the channel's action, I still feel uncomfortable about cancelling a program that most likely wouldn't air the Benhams' obnoxious views. However, the ironic answer to all objections about censorship and blacklisting is, "It's a free country." As in most things, real freedom belongs to those with the power to spend, hire and fire. The First Amendment does not prohibit HGTV, nor did it prohibit the blacklisters of the 1950s, from denying work to politically incorrect people. The government can't punish the Benhams for merely stating opinions, but the private sector can -- and if private citizens feel angry enough about this they can boycott HGTV as A&E was boycotted to protest the suspension of one of the Duck Dynasty family. Beyond that, the Benhams' own attempted apologies won't wash. Accused of homophobia, they deny "hating" homosexuals. They insist on Christianity's love-the-sinner-hate-the-sin distinction, but they can't compel anyone to respect it. The problem for the Benhams is that many people interpret the assertion that homosexuality is a sin as hate. From that perspective, to say you don't hate homosexuals while calling homosexuality a sin is like saying you don't hate black people while insisting that they're genetically inferior to whites. There are times when to criticize is not to hate, but critics should tread lightly when they criticize things tied to people's identity. This is a revolutionary moment, as I've written before. The gay rights movement is pushing aggressively to drive out any suggestion, on whatever basis, that homosexuality is wrong. For the movement, this isn't subject to debate. For that reason, their tactics may trouble those liberals for whom little or nothing is closed to debate. Revolutions are not liberal, however; violent or non-violent, on some level they involve coercion. So let's agree at least not to blame this latest programming debacle on the "liberal media."

Is the National Popular Vote unconstitutional?

Without much fanfare, New York State this spring joined the movement to have presidential elections decided by a "National Popular Vote."  For latecomers, the NPV is a scheme to democratize presidential elections by taking advantage of the states' constitutional rite to decide how electoral votes are awarded. Currently, all but two states award electoral votes on a winner-take-all basis, based on the popular vote in each state. The other two states allow the popular vote in each congressional district determine which candidate gets that district's electoral vote. Under the NPV plan, states adopting NPV agree to award all their electoral votes to the candidate who wins the popular vote nationwide. NPV goes into effect only when states sufficient to form an electoral-vote majority adopt it. With New York's commitment NPV is a little over halfway home, but Professor Ian J. Drake of Montclair State University warns that the plan probably wouldn't survive a constitutional challenge. Drake's objection to NPV is twofold. He argues that the plan is unconstitutional because it "seeks to overturn the Electoral College without a constitutional amendment." This objection looks flimsy because the NPV is all about how states choose their electors. It abolishes neither electors nor the Electoral College. The constitution doesn't oblige states to award electors on a winner-take-all basis, or on a district-by-district basis. It doesn't oblige states to award electors on any basis tied to the popular vote in any given state. In the early days, some state legislatures appointed electors without reference to any popular vote for President. However, Drake has a potentially more substantial objection. His fallback position is that the NPV violates the Constitution's Compact Clause, i.e. "No state shall, without the Consent of Congress ... enter into any Agreement or Compact with another state." Current jurisprudence has clarified that Congressional approval is necessary if a compact among states "penalizes" states that aren't parties to it. In Drake's view the NPV falls into this category because "low-population states will be disadvantaged" by the loss of their current disproportionate yet constitutional electoral voice in presidential elections. But if this requires NPV to be submitted to Congress, then NPV is checkmated, because Congressional approval would amount to Congress making an unconstitutional law affecting the states' appointment of electors. Drake's defense against the NPV depends on it being recognized as a "compact," but he claims that NPV proponents "concede that [the several] state laws form an interstate compact." He gives no evidence of this, but what really matters is what the courts consider a compact, and it's unclear to me, as a constitutional layman, whether any state's provisional adoption of NPV amounts to joining a compact. I have no real dog in this fight, since the NPV would only further reduce the potential of independent parties to have a significant impact on presidential elections by forcing one to the House of Representatives. While the fight over NPV may be fought over typical partisan lines, only the two major parties really benefit, as things now stand, from the ultimate activation of the NPV plan. Nevertheless, at first glance the legal arguments against NPV advanced by Drake look relatively weak. Meanwhile, the political opposition to NPV seems to have not yet begun to fight. When it begins to look as if one or two states could tip the balance nationally in favor of NPV, then the real debate, and the expensive ad campaigns, will start.

Global responsibilities

Defense Secretary Hagel acknowledges that Americans have grown tired of foreign entanglements, having done his own part as a Senator to question them a decade ago, but warns today that it's a "mistake to view our global responsibilities as a burden or charity, " since "Turning inward, history teaches us, does not insulate us from the world's troubles."

No country should shirk its global responsibilities. All countries have them. They are the same for every country. If this is all Hagel means, that's fine. If he means, as we must suspect, that the United States has a special responsibility -- and thus special privileges -- then he's wrong. Any nation's claim of special international responsibilities is an assertion of cultural chauvinism (e.g. Russia's expectations of influence over its near abroad) or ideological dominance (e.g. American insistence on influence everywhere). If there's a responsibility to protect small nations against big, or poor nations against rich, it isn't the responsibility of any nation or group of nations. It's literally global responsibility -- the responsibility of all the people of the world, regardless of where they live. But it should be up to all the people of the world to decide what their responsibilities are, rather than accepting one country's or one ideology's or one religion's definition. Only when those responsibilities are defined and ratified can the accountability of individual nations be determined. The rights of Ukraine vis-a-vis Russia, and the rights of Russian speakers in Ukraine, can't be based on what Russia or the U.S. thinks right. It's either for Ukraine to decide for itself without aid from anyone, or it's for a global majority to decide. The U.S. would be acting responsibly on a global scale if it helped bring such conditions about, but whether countries rather than people can accomplish this is open to question. Whether people can do it peacefully, and whether it's worth doing otherwise, are open questions as well. It might be worth "turning inward" a little while to figure out the answers.

Is 'Islamism' a dirty word?

If anyone on earth is evil, it would be Abubakr Shekau. He's reportedly the leader of the Boko Haram militia in Nigeria, whose latest outrage is the kidnapping of more than 200 schoolgirls on the militia's founding premise, embedded in its name, that "western education is sin." In a new video Shekau allegedly vows to sell the girls into slavery, claiming that God obliges him to do so. Shekau and his gang are the sort of people for whom the word "Islamist" was coined. The word signifies their rejection of any separation of mosque and state; theirs is politicized Islam as distinct from the spiritual or customary Islam practiced peacefully by many Muslims around the world. I'd thought the distinction between Islam and Islamism was clear by now, but here comes Faheem Younus, a Baltimore academic, to say that the National September 11 Memorial Museum should not use the words "Islamism" or "Islamist" in its new documentary about al-Qaeda. To him there's no distinction at all. The problem is that, in theory, "Islamist" could be used to describe someone who admires "the values of an Islamic system of governance." Such a person is not necessarily a terrorist or dedicated to imposing an Islamic system of governance by force, but so long as "Islamist" is the primary adjective used to describe groups like al-Qaeda and Boko Haram, anyone described (or self-described) as an Islamist will be unfairly assumed to be a terrorist. So do we fall back on "jihadist?" No, Younus insists, since many Muslims still understand jihad as an "inner struggle" that doesn't involve violence against others. For Younus, for instance, it's a jihad to get out of bed at night to take his toddler to the bathroom. Such Muslims presumably wish to see themselves as "jihadists" without any pejorative or incriminating connotations. Basically, Younus argues that it's wrong to use any word that has any reference to Islam as a common description for the various groups that have perpetrated atrocities in alleged defense of Islam. Call them by their proper names, he insists, and then use any nasty modifier you please. "Taliban lunatics" is OK, for instance; "Islamists" is not.

Younus still resists the idea that Islam is fundamental to the ideologies and bigotries that drive these various groups. To call them all "Islamist," he contends, is like calling the Ku Klux Klan "Christianist," and equally unfair. The KKK is but one case of a criminal gang "draw[ing] inspiration from twisting Christian texts," Younus writes, implying that "Islamist" groups must be understood the same way relative to their religion. Ultimately it's up to Muslims to judge how much any "Islamist" group has twisted their scripture and tradition, but I can't quite buy Younus's analogy. While the Klan has historically espoused a particular Protestant form of bigotry, aimed often at Catholics as well as blacks, Jews, etc., the KKK, to my knowledge, has never promoted what is known -- it has a label, after all, -- as Christian reconstructionism. I'm not aware of it being high on the Klan agenda to impose Old Testament governance on the United States. That makes the KKK qualitatively different from any Islamist group, though otherwise they are just as odious. Meanwhile, the reconstructionists are "Christianists," for the sake of analogy, and anyone who appreciates the use of the suffix "ism" in western political discourse should also appreciate the difference the "ism" establishes between religion, or other forms of cultural identity, and ideology. People who want to use the term do have an obligation to maintain the distinction between Islamism and Islam, but they also have an obligation to defend the relevance of such distinctions against those who claim to be too sensitive to notice.

Town of Greece v. Galloway: 'Offense ... does not equate to coercion'

Dividing on familiar lines, the Supreme Court has ruled that the town of Greece, New York's policy of opening legislative meetings with prayer does not violate the First Amendment. I mentioned this case when it was being argued last year: a Jew and an atheist contended that, while the town had an open invitation to ministers of all faiths to open meetings with their prayers, the ritual was overwhelmingly and oppressively sectarian in nature. To forbid prayer entirely was a hopeless proposition since, as Justice Kennedy notes in his opinion, Congress hired a chaplain for opening prayers pretty much simultaneously with the adoption of the First Amendment, and obviously there could be no contradiction there! Instead, the original plaintiffs insisted that a nonsectarian standard be set for the prayers that would have been violated, for instance, by invocations of Jesus. Kennedy writes that the Supreme Court should not assume the power to define what is or isn't nonsectarian -- but if not the court, then who? In his view, the courts should not be concerned with the content of opening prayers unless they are shown to be derogatory toward other faiths or non-believers, or if a "pattern and practice of ceremonial legislative prayer is alleged to be a means to coerce or intimidate others." In the case of Greece, the majority finds no evidence of coercion or intimidation. Kennedy takes less seriously yet the claim of Galloway et al that "the prayers gave them offense and made them feel excluded and disrespected." He answers:

Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions. See Elk Grove Unified School Dist.v.Newdow, 542 U. S. 1, 44 (2004) (O’Connor, J., concurring) (“The compulsion of which Justice Jackson was concerned . . . was of the direct sort—the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree”). 

Justice Kennedy thus rejects the idea that the First Amendment confers "freedom from religion," at least in the public sphere. As long as prayers don't "denigrate nonbelievers or religious minorities, threaten damnation or preach conversion," the Supreme Court advises Americans to lighten up.

The gist of Justice Kagan's dissent is that the First Amendment obliged Greece to be more aggressively inclusive. In her view, it wasn't enough for the town to issue its invitation; officials should have sought out and actively recruited representatives of diverse faiths to deliver opening prayers in order to live up to their avowed pluralism. Governments have a positive obligation to cultivate pluralism that Greece, in Kagan's view, has not fulfilled. Kagan also accepts, as Kennedy doesn't, that a preponderance of Christian prayer in a public forum has a tendency to stigmatize non-Christians who refrain from bowing their heads and so on, although Kennedy points out that any such tendency was not acted upon in Greece. Kagan and Justice Alito, who wrote a concurrence to Kennedy's opinion chiefly to dispute points in Kagan's dissent, see the power of prayer very differently. Kagan seems to see sectarian prayer as inherently divisive in a way remedied only by programmed diversity. Alito recalls a Founding moment when the Continental Congress squabbled over opening prayers but finally recognized that prayer could be unifying regardless of which denomination's representative gave the prayer. To him it's a big deal that puritanical Sam Adams proposed that an Anglican open the first session. The moral, it seems, is that Sam wasn't offended or subject to coercion by hearing an Anglican prayer. But Sam also knew that the Anglican wouldn't be the only divine praying over Congress, so how was he different, apart from his initial concession, from the religious minorities in Greece? For Alito, the difference boils down Greece's "clerical employees [doing] a bad job in compiling the list of potential guest chaplains." That doesn't rise to the level of a constitutional case in his view: "[A] unit of local government should not be held to have violated the First Amendment simply because its procedure for lining up guest chaplains does not comply in all respects with what might be termed a “best practices” standard." Kagan suspects that this was not a mere "bad job," while Alito (and Kennedy) presume good faith, so to speak, on the part of the Greeks. That's where we're stuck, it seems, until a critical mass of Americans rises to demand a new constitutional understanding of the necessary limits on religious expression in the halls of government in a time of greater and more irreconcilable religious diversity than most Founders could have imagined or desired.

Ukrainian fantasy

In the end, we may decide that Viktor Yanukovich's flight from Ukraine was a stroke of genius by his Russian puppet masters, or one of those random, stupid moments that change the course of history. The embattled president's departure effectively forced the opposition to take power before they were ready, and now we hear them admitting that they've lost control over the eastern, Russophone part of their country. They lack the means or the will, given threats from Russia, to suppress the eastern separatists. It seems inevitable now that the current Ukraine leadership will submit to constitutional reform rendering the country a weak federal system effectively subject to Russia. Earlier this week I read Anne Applebaum's piece in The New Republic, in which she says that Ukrainians need more nationalist consciousness, effectively conceding that despite the notorious or overrated gestures by Russophobic right-wingers nationalist consciousness in Ukraine is insufficient for the task of preserving effective independence from Russia. It's not that a majority still identifies with Russia, but that generations of indoctrination, followed by a most recent disillusioning generation of corrupt independence, has left most Ukrainians passive if not indifferent to the tug of war between Maidan and Moscow. It makes you wonder again why the U.S. has turned Ukraine into such a high-stakes game, when it seems like the odds were against "our" side all along. I don't exactly have new answers. Russophobia compounded by a neocon obsession with Vladimir Putin accounts for much of it. I still see writers propagating the myth that this crisis has something to do with Putin fearing the supposed example Ukraine presents of "people power" toppling a corrupt, repressive government, or the more enduring example of an effective liberal democracy on Russia's border. If Ukraine succumbs, Putin will be blamed for doing all in his power to sabotage the Maidan experiment, but if you resist taking a Putin-centric view of things, it really looks as if Putin himself could use the Ukraine example to defend his own style of government. Doesn't Ukraine prove that people power alone can't govern a country, or that western-style liberalism in Eastern Europe is hopelessly weak? Despite American fantasies, Putin never had anything to fear from Ukrainian liberalism. Meanwhile, American insistence that Putin is some sort of ideologue with a global agenda to promote tyranny suggests that leaders here fear Putin's example, however they might define it. They decry Russia's supposed unreasonable insistence on having compliant buffer states between it and western Europe, but it certainly looks like Ukraine was meant by us to be a buffer between Russia and the civilized world. That was just another American dream, I guess. Better luck next time.