Author Archives: weeklysift

Doug Muder is a former mathematician who now writes about politics and religion. He is a frequent contributor to UU World.

Foreigners in Egypt

Do not mistreat or oppress a foreigner, for you were foreigners in Egypt.

Exodus 22:21

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

– “The New Colossus” by Emma Lazarus

This week’s featured posts are “Gaza as seen from a distance” and “There’s Something About Todd“.

This week everybody was talking about yet another Malaysian Air flight

This one was shot down over the disputed eastern region of the Ukraine. Apparently, missiles sophisticated enough to take down an airliner at cruising altitude require months of training to operate. That fact doesn’t align with the official Russian story: that pro-Russian rebels in eastern Ukraine are a spontaneous uprising it supports but is not aiding with its own forces.

Vox has a good account of the situation. Presumably the Malaysian Air flight was mistaken for a military transport plane. Pro-Russian rebels have been shooting at Ukrainian planes for a while now, but the early shoot-downs had been planes low enough to be targeted by shoulder-fired rockets requiring relatively little training. More recently, two Ukrainian planes have been shot down from higher altitudes, suggesting a more complicated system. Three possibilities: Russia is shooting down the planes from its own territory (the U.S. doesn’t think so), or Russian military advisers are operating the missiles from the rebel-controlled territories, or Russia started training Ukrainian rebels before the current uprising began.

The wreckage fell onto territory controlled by the rebels, who are not cooperating with outside investigators. Or maybe they are: a rebel leader has promised to turn over the plane’s black box.

Lost in all this is the story of the time we shot down an airliner: Iran Air 655 in 1988.

and Israel invading Gaza

Last week I said I hadn’t made enough sense out of the Gaza conflict to comment, so I felt a responsibility to provide more insight this week in “Gaza as seen from a distance“.

and those refugee kids

Ukraine and Gaza have driven the kids-at-the-border problem off the front pages, but the story is still percolating. At first it appeared the issue was getting so much attention that even this Congress would have to do something. But that is getting less and less likely.

Back on July 9, Kevin Drum predicted that the Republican House would refuse to act on President Obama’s proposal to deal with the child refugee crisis.

Well, of course it won’t happen. The crisis along the border is tailor made for Republicans. It makes their base hopping mad, it juices their campaign fundraising, and anytime the government is unable to address a problem it makes Obama look bad. Why on earth would Republicans want to do anything to change any of this?

As long as Obama is president, chaos is good for Republicans. After all, most voters don’t really know who’s at fault when things go wrong, they just know there’s a crisis and Obama doesn’t seem to be doing anything about it. Exploiting that may be cynical and revolting, but hey, politics ain’t beanbag. And in case you haven’t heard, there’s an election coming up.

Friday, Steve Benen came around:

I was skeptical when Kevin wrote this, but his assessment is looking quite prescient now.

Keep in mind, this isn’t a situation in which the Republican-led House wants one solution, the Democratic-led Senate wants another, and a compromise is elusive. Rather, we’re looking at a dynamic in which the GOP House majority simply can’t pass anything … So there is no bill and the Speaker’s office doesn’t seem to think there will be a bill. Once again, met with a real challenge in need of a responsible remedy from lawmakers, Republicans aren’t prepared.

Today’s closing links to Weird Al’s new video “Word Crimes”. Here’s a word crime: Describing Obama’s itemized $3.7 billion proposal as a “blank check”, which seems to be the Republican talking point. The phrase must rile up focus groups or something, but there’s nothing “blank” about $3.7 billion.

Several article have brought some historical perspective: “Child Migrants Have Been Coming to America Alone Since Ellis Island” in Mother Jones and “America’s Long History of Immigrant Scaremongering” in Slate, which recounts all the bogus scares about immigrants and disease through the centuries.

but I couldn’t stop myself from writing about Todd Akin

who is not worth your time or mine. I advise you not to read “There’s Something About Todd“. You have better things to do.

and you also might be interested in …

How long before the Supreme Court has to rule on this? President Obama’s executive order protecting LGBT folks from discrimination by corporations holding government contracts has no religious exemption, something religious leaders had been asking for. In the Hobby Lobby case, Justice Alito denied that his ruling would “provide a shield for employers who might cloak illegal discrimination as a religious practice.” We may find out whether that’s true.

Alito’s statement has some weasel words in it. It may apply only to insincere religious beliefs adopted to “cloak” discrimination. But Alito also said: “It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.” It will be interesting to see if in the future he will claim the ability to look into people’s souls to see if their beliefs are sincere or motivated by bigotry. And what about people whose bigotry is sincere?

Why don’t these visionary efforts happen in America any more? Helsinki has a plan to integrate all forms of transit — including some that don’t exist yet, like driverless cars — into a single smartphone app. The goal is to make private automobiles pointless in ten years. You’ll just tell your phone where you want to go and it will give you a list of itineraries and prices, then make the arrangements.

Jonathan Chait charts the story of ObamaCare’s success via the retreating claims of disaster from arch-critic Peter Suderman at Reason.

The message of every individual dispatch is a confident prediction of the hated enemy’s demise, yet the terms described in each, taken together, tell the story of retreat. The enemy’s invasion fleet has been destroyed; its huge losses on the field of battle have left it on the brink of surrender; the enemy soldiers will be slaughtered by our brave civilian defenders as they attempt to enter the capital; the resistance will triumph!

The folks at Politifact have started releasing statistics by network. No surprise: Fox News is the least trustworthy, with 60% of tested claims rated Mostly False, False, or Pants on Fire.

Researchers are deciding that the “beauty-status exchange” — beautiful women marrying rich men — is less common than they expected. More typically, similarity rules: beautiful people marry beautiful people and rich people marry rich people.

I don’t know who I’m rooting for at the Emmys. Cosmos and Years of Living Dangerously are both nominated in the Outstanding Documentary or Nonfiction Series category. At first I thought “Of course it’s Cosmos“, but this week I started watching YoLD. (Episode 1 and some shorter clips are on YouTube, but to watch the Episodes 2-9 you have to find a friend who subscribes to Showtime.) YoLD is the most comprehensive look at climate change I’ve ever seen, and it pulls off the remarkable trick of having big-name hosts without turning them into attractive-but-phony mouthpieces.

Each of the hosts is pursuing some question s/he had a prior connection to. Arnold Schwarzenegger, for example, has long wondered why California wildfires got so much worse during his term as governor. Conservation International board member Harrison Ford seems completely engaged in tracking down the connection between deforestation and corruption in the Indonesian government. (His celebrity status works for us rather than on us; it gets him interviews with officials who would probably dodge a journalist. At least one got pissed when the interview turned serious.) Middle-East-focused Thomas Friedman sneaks across the Turkish/Syrian border to interview farmers driven into the revolution by drought. New Yorker Chris Hayes traces the effect of Hurricane Sandy on a climate-change-denying Staten Island congressman. And so on.

The effect is to get completely outside the standard arguments about hockey-stick graphs and Al Gore. You start to see just how ecological climate change is. It affects everything and is affected by everything.

I think there’s something important to learn here about fighting science denialism in general. Remember that John Oliver sketch where he brings out 97 climate scientists to debate three deniers? It’s funny because it can’t possibly work on TV. But it does illustrate the strategy of denial: Like the Greeks against the Persians at Themopylae and Salamis, the smaller force needs to choose a narrow battlefield (like televised debate) where the larger force can’t deploy.

So if climate-change deniers can reduce the argument to something narrow, like the details behind temperature graphs, their position can seem competitive. But climate-change denial isn’t competitive, because to do it consistently you have to deny everything; all fields of Earth science are implicated. Ditto for other forms of denial, like young-Earth creationism: It isn’t just about the fossil record or carbon-14 dating; it’s about everything.

I’d love to hear the backstory of YoLD. I’m sure it’s easy to get people to buy in after you can say that Matt Damon and Jessica Alba are involved, but who did they get first and who convinced who later?

and let’s close with something fun

Weird Al claims every one of his albums is a comeback album. Well, he’s come back with this parody of Robin Thicke’s “Blurred Lines”.

Gaza, as seen from a distance

Last week I punted on the Israel/Gaza situation, because what I was reading contained more noise and spin than information and insight, and I didn’t want to make that situation worse. This week I can do a little better.

Immediate causes. ThinkProgress provides a timeline tracing the back-and-forth escalation that began with the disappearance (on June 12) of three Israeli teens who later (June 30) were found dead. Israel blamed Hamas, whose leaders didn’t claim responsibility (as they usually do; Hamas’ leadership constantly battles the perception that it’s toothless against Israel), and began arresting Hamas leaders and their associates in the West Bank, including some released in a previous deal. Hamas saw the kidnapping as a pretext for Israel to renege on that deal, and fired (mostly ineffective) rockets from Gaza in protest.

From there things escalated as they so often do. Israeli troops entered Gaza Thursday night.

A different angle on the immediate causes of the conflict comes from Nathan Thrall’s op-ed in the NYT. Since 2007, the limited autonomy that Israel allows Palestinians has been split between Hamas in Gaza and Fatah in the West Bank. But Hamas has fallen on hard times recently because of the rapidly diminishing value of its alliances. You can think of Hamas as the Palestinian franchise of the Muslim Brotherhood. The Egyptian franchise controlled that country for about a year between the fall of the Mubarak government in 2011 and the subsequent military coup, but is now struggling to survive a major crackdown. The Assad regime in Syria was another Hamas ally, but it is now focused on its own problems. Iran’s aid has also diminished.

So in June Hamas was driven to reconcile with Fatah, more or less turning Gaza over to the Palestinian Authority in the West Bank, but leaving its 43,000 civil servants in place. Currently, none of those people is being paid, mostly for reasons having to do with Israel and the United States. (Qatar is willing to pay them until something else can be worked out, but that solution is being blocked.) The other thing Hamas hoped to accomplish by getting itself out of the governance business was that Egypt might re-open its border with Gaza, which would be a big deal in the Gazan economy. That’s not happening either.

So Hamas wants:

  • Israeli troops out of Gaza.
  • End the recent Israeli crackdown on Hamas’ people and release the ones who had nothing to do with the kidnapping.
  • Get the Gaza civil servants paid somehow.
  • Open Gaza’s Egyptian border.

Israel wants Hamas to stop firing rockets into Israel and to stop kidnapping/murder operations in Israel. (The rockets don’t seem to be doing a whole lot of harm, but it’s the principle of the thing.) I’m not sure what Egypt’s military government wants.

This is where the topsy-turvy logic of the situation comes into play: A ceasefire doesn’t get Hamas most of what it wants — which is why it rejected an Egyptian proposal — but all Hamas has to threaten Israel with at the moment (beyond those pinprick rockets) is bad publicity. The more Gazan civilians die, the more support builds for boycotts of Israel and divestment from companies that do business with Israel. It’s like: “If you don’t give us what we want, you’ll have to kill more of us, and then you’ll be sorry.”

In the long run, how does this end? Whenever the Israel/Palestine conflict flares up, it’s easy to get lost in arguments about the most recent actions of each side; whether what one side just did justifies what the other just did, and so forth. I think it’s important to keep pulling back to the big question: How does this conflict end? I can only see four outcomes:

  1. Two states. Some border line is agreed upon between Israel and Palestine, and they become two independent countries with full sovereignty.
  2. One state with democracy. The Palestinians are made full citizens of a unified state. Given demographic trends, they are eventually the majority.
  3. It never ends. The Palestinians remain a subject population ruled or otherwise dominated by Israel. Israelis continue to be targets of terrorist resistance.
  4. Ethnic cleansing. Israel kills or expels large numbers of Palestinians (or otherwise induces them to emigrate), leaving behind a Greater Israel with a clear and sustainable Jewish majority.

It’s important to realize that anyone who finds both (1) and (2) unacceptable is de facto advocating (3) or (4), because those are the only choices.

Some Israelis seem to believe in an outcome (3A), in which the Israeli occupation continues, but the Palestinians are so beaten down that they submit peacefully. I’m pretty sure that’s a fantasy. I don’t know what level of oppression would be necessary to make (3A) happen (if it’s possible at all), but everything that the Russians have been willing to unleash on the Chechens has been insufficient. Israelis need to take that example seriously: They’d need a strongman stronger than Putin to make (3A) work.

Another version of (3A) is: Palestinians end all resistance for a long enough time that Israelis feel safe, and then Israel will consider what rights the Palestinians should have. That’s another fantasy. Nothing in the history of Israel’s dealings with the Palestinians entitles them to that level of trust. In fact, I don’t trust the Israelis that far, and I’ve got no skin in the game at all. I believe that once the terrorist threat subsided, Israel would forget about the Palestinians until the violence restarted, and then claim all over again that no deal can be reached until the violence stops.

So I repeat: The four outcomes listed above are the only ones.

With that in mind, it’s discouraging to read the recent remarks by Prime Minister Netanyahu.

I think the Israeli people understand now what I always say: that there cannot be a situation, under any agreement, in which we relinquish security control of the territory west of the River Jordan.

That eliminates (1). (2) is obviously unthinkable to anyone who values Israel’s identity as a Jewish state. So this goes on forever or there’s ethnic cleansing.

Moral calculus. A lot of the media back-and-forth concerns the morality of the two sides. The argument comes down to: Hamas targets civilians while Israel takes steps to avoid killing civilians, but Israel’s weapons are so much more effective that they end up killing far more civilians than Hamas does, on the order of hundreds to one.

Another reason for the disparity is that Israel prioritizes civil defense, while Hamas puts military targets in civilian areas and doesn’t even build bomb shelters. As Netanyahu put it on Fox News:

Here’s the difference between us. We are using missile defense to protect our civilians, and they’re using their civilians to protect their missiles.

Charles Krauthammer quoted that line in a WaPo column called “Moral Clarity in Gaza“.

Personally, I see this less as a moral difference between the two sides than a difference in their tactical situations. Gaza has no way to stop the Israeli attack by force. Israel will stop when the number of dead civilians creates enough international pressure. So Gazan civil defense would just enable the Israeli attacks to go on longer, with the same eventual body count. What’s Hamas’ motivation to go that route?

And that brings me to a moral principle that I think deserves more attention: Asymmetric warfare is morally asymmetric. In other words: If you are so much more powerful than your adversaries that your decisions create the gameboard and dictate the moves available to the players, then your actions have to be judged differently. You bear responsibility for the shape of the game itself, and not just for the moves you make.

Friendly frustration. Even pro-Israel commentators at some level realize the tactical and strategic realities. Krauthammer writes:

[Hamas rocket fire] makes no sense. Unless you understand, as Tuesday’s Post editorial explained, that the whole point is to draw Israeli counterfire.

Taken for granted here is that the Israelis are helpless in the face of this masterful strategy: They must fire back, even if that’s what Hamas wants. Perversely, Krauthammer presents Hamas as the player powerful enough to have choices, while Israel is driven by necessity.

Friends of Israel more in touch with reality are frustrated by the Netanyahu government’s lack of vision. Fred Kaplan describes the short-term logic of invading Gaza, but then laments:

The Israeli government seems to have forgotten how to think strategically; at the very least, they have a self-destructive tendency to overplay their hands. … Until this conflict with Gaza, Israel had been enjoying a level of security it hadn’t seen in many years. Terrorist attacks from the West Bank are all but nonexistent. Its enemies to the north—Syria, Hezbollah, and a gaggle of Islamist terrorist movements—are embroiled in their own wars with one another. Egypt is once again in the firm grip of a military government committed to putting down the Muslim Brotherhood and its allies (including Hamas). Iran has—at least for now—frozen its nuclear program, as a result of negotiations led by the Obama administration. … Instead of capitalizing on Israel’s unusually strong strategic position, Netanyahu risks squandering it—destroying what little support he has in the West and making it hard for Arab governments that share his interests (Egypt, Jordan, and, even now, the Palestinian Authority) to sustain their tacit alliances.

At The Jewish Daily Forward, J. J. Goldberg marked yesterday as the moment when the tide turned against Israel. After initially receiving a certain amount of international support — or at least seeing Hamas condemned in equal-or-worse terms

What happened next was something that’s happened over and over in Israel’s military operations in recent years: The government overestimated the depth of its international support and decided to broaden the scope of the operation. … The sympathy Israel won because of the kidnapping and shelling is melting before our eyes. Until the weekend, protests of Israel’s actions were limited to street demonstrations by leftists and Muslims in various cities around the world, with almost no governmental backing. Now governments are starting to switch sides. … Many Israelis will argue in the next few days that the mounting international criticism is hypocritical, that Israel has a right to defend itself and that the fast growing civilian toll is entirely Hamas’ fault. Whatever the merits of the arguments, they have lost their audience.

Meta-discussion. In some ways as interesting as the discussion itself is the meta-discussion about how to discuss such a divisive topic, where the sides are dug in so deeply and so many of the arguments rehearsed and ready to pull off the shelf. Also at The Jewish Daily Forward, Jay Michelson posts “5 Ways To Turn Down the Social Media Flame“. He’s basically rediscovering the three principles of Quaker discussions: Is it true? Is it kind? Is it necessary? And he asks:

If a bunch of privileged Americans with so little at personal stake can’t internalize the importance of multiple narratives, how do we expect Israelis and Palestinians — both of whom are living under threat of imminent death, while I sit behind a screen in Brooklyn — to do better?

And the blog This is Not Jewish gives instructions on “How to Criticize Israel Without Being Anti-Semitic“. Knowing how off-base the line “Democrats think anybody who criticizes Obama is racist” is, I was ready to be skeptical of “Jews think anybody who criticizes Israel is anti-Semitic.” In each case, it’s easy to be a lot more racially or ethnically offensive than you realize, and so get hit with criticism that you deserve, but think you don’t deserve. (“What I meant …” is not a defense. And anything that includes the phrase “if I offended anybody” is not an apology.)

Many of the tips are common sense, if you stop to think about it (i.e., don’t appeal to stereotypes). But I had never made the connection between labeling Israel-supporting Jews as “bloodthirsty” and the pogrom-causing blood libel, in which Jews are accused of literally drinking the blood of sacrificed Christian children. I don’t believe I’ve ever violated that rule, but duh, why didn’t I see that? Also be careful about equating Jews, Israelis, and Zionists, who are three different groups of people.

And finally, it’s crazy to hold your local Jewish community responsible for whatever Israel might be doing. (Just like it was crazy to hold your local Muslims responsible for 9-11.) As John Lloyd points out:

There’s a very large, and often very rich, Russian community in London – and there are no attacks on Russians or their mansions, restaurants or churches because of the Russian seizure of Crimea and sponsorship of uprisings in eastern Ukraine.

All four of my grandparents were German-Americans during the World Wars. None of that was our fault, and I’m willing to let Americans of all other ethnicities make similar claims.

There’s Something About Todd

I strongly advise you not to read this post. Your browser has a Back button. Use it.

I don’t know what it is about Todd Akin.

The whole point of the Weekly Sift is to filter the junk and hype out of the news so that you only read stuff that is worth your attention. But success in that venture depends on my ability to leave something alone once I’ve determined that it’s not worth either your time or mine.

Todd Akin is not worth your time or mine. So you shouldn’t read this post and I certainly shouldn’t be writing it. And yet, I can’t seem to ignore him. I suppose it’s that infuriating combination of ignorance, self-righteousness, and self-assurance. So many intelligent, thoughtful people could be interviewed on TV, but aren’t. And yet, there’s Todd Akin, displayed in my living room! And why am I writing about him? I’m just making it worse.

But I can’t stop myself, so let’s get this over with: In interviews promoting his new book — which I refuse to link to; I still have that much control — he says he knows what he did wrong in his “legitimate rape” interview: It was just a bad choice of words. He should have said “legitimate case of rape” instead, because then the liberal media couldn’t have slandered him by making it sound like he thought a rape could be legitimate.

Let’s plug that into the transcript and see how it plays:

CHARLES JACO: So if an abortion can be considered in the case of, say, a tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?

REP. TODD AKIN: Well, you know, people always want to try and make that as one of those things: “Well, how do you—how do you slice this particularly tough sort of ethical question?” It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate [case of] rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. You know, I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.

Well, the insensitivity is unchanged: Raped women aren’t real people who deserve our compassion, they’re just a “tough sort of ethical question” that tricky interviewers use to try to trip Akin up — like “Can God make a rock so big He can’t lift it?” or something. And after this tough question gets sorted out by the higher mind, it really just comes down to who to punish — the rapist or the fetus. The woman is a bystander.

The junk science about female physiology is still there; two years later, and he still hasn’t educated himself. And he’s still implying that only violent rape really counts. (What about roofies? Even in Akin’s alternate universe, would an unconscious woman’s body “shut that whole thing down”?)

Most importantly, he’s still saying that women who claim they got pregnant from a rape are probably lying, because “that’s really rare” in “a legitimate [case of] rape”.

So no, I don’t think he fixed anything.

Here’s what’s reprehensible about Todd Akin, and it’s got nothing to do with his choice of words: Even given two years to think about it, he still believes in a legal system in which rape is a viable male reproductive strategy. (They’ll put you in jail if they catch you — and if the woman can prove she didn’t consent — but the law will force your victims to bear your children, so your genes will live on.) He believes in that system so strongly that he’s willing to seek out junk science to justify it.

I’m going to stop writing now. To everyone who made it this far: I’m sorry. I really am. Try to do something more worthwhile with the rest of your day.

The Monday Morning Teaser

This week’s featured article focuses on the Gaza conflict, which I punted last week because I was reading a lot more noise than insight and didn’t want to make that situation worse. I originally thought I would have space for a review of Douglas Egerton’s new book The Wars of Reconstruction — I have come to believe that the blind spot Americans have about the period following the Civil War is a major stumbling block in the discussion of current problems  — but that will have to wait until next Monday.

I haven’t titled the Gaza article yet, which is an indication of how much work is still to be done, so I make no promises about when it will post. Later today, the weekly summary will discuss the shot-down airliner, the continuing kids-at-the-border problem, my inability to ignore Todd Akin (who doesn’t deserve my attention or yours), what Years of Living Dangerously can teach us about combating science denial in general, and a few other things, concluding with Weird Al’s new video “Word Crimes”. (Finally, something good comes from “Blurred Lines”.)


The Other Guys

I’m the guy doing my job. You must be the other guy.

President Obama, referencing a line in The Departed

This week’s featured article is Boehner’s Lawsuit and Palin’s “25 Impeachable Offenses”.

This week everybody was talking about the House suing/impeaching President Obama

Speaker Boehner hopes his lawsuit will mollify the base enough to keep them from demanding impeachment before the fall elections. But Sarah Palin isn’t cooperating, as I describe in Boehner’s Lawsuit and Palin’s “25 Impeachable Offenses”.

and the refugee kids at our southern border

It’s a real problem, so naturally the extreme Right has created a conspiracy theory to explain it: President Obama has deliberately induced Central American families to send their unaccompanied kids on a dangerous journey to America, so that he can pressure Congress to pass immigration reform. It’s just like his Fast & Furious plot to flood the border with guns to promote gun control. And just like Benghazi, Obama gave a stand-down order.

In some universe, maybe, but not this one.

Vox does its usual good job describing the reality of the situation: Tens of thousands of unaccompanied minors are fleeing drug and gang violence in Central America and being caught at the U.S. border. (Somehow, these captures prove to Republicans that Obama isn’t securing the border.) The Border Patrol has been overwhelmed trying to provide detention facilities, because of the unexpected consequences of a Bush-administration law.

U.S. policy allows Mexican child migrants to be sent back quickly across the border. However, under a [law] meant to combat child trafficking, the Trafficking Victims Protection Reauthorization Act, children from Central America must be given a court hearing before they are deported (or allowed to stay). Given the huge backlog of cases, they may have to wait years for a hearing.

Homeland Security has been trying to relieve the overcrowding by spreading the children out to facilities in other parts of the country, provoking some ugly scenes, like the one in Murrieta, California. Protesters have focused their rhetoric on wildly exaggerated concerns about disease. “We don’t even know what all diseases they have,” Texas Congressman Louis Gohmert said. But Friday, Chris Hayes interviewed Rachel Pearson, who pointed out that Guatemalan kids are more likely to get key vaccinations than Texas kids. (Texas had a measles outbreak last year, while Guatemala and Honduras haven’t had a single case since 1990.) To the extent that the detained kids are unhealthy, the problem is most likely due to the overcrowded conditions DHS is trying to eliminate. So why the disease hysteria? Pearson explains:

What we see historically is that when diseases or conditions occur in people who are social outsiders — immigrants, people of color, women — those diseases are seen by the wider society as markers … that people are impure or lacking in virtue. So whereas lice has one meaning for American kids in a summer camp in Pennsylvania, the meaning becomes totally different if it’s a group of kids that we think of as outsiders.

In other words, irrational fear of disease is one of the screens people use to hide their bigotry.

President Obama has asked Congress for $3.7 billion to deal with the problem. But given the conservative base’s state of outrage over anything having to do with Hispanic immigrants, it’s questionable whether any money can get through the House without something horrible attached to it.

Here’s the weirdest thing about the claims that the Constitution requires securing the border or the no borders, no country talking point: The Founders didn’t secure the border. The hyperbolic charge “anyone can waltz right in to America” is a pretty accurate summary of how things were from the Founding until after the Civil War.

and Israel/Palestine

I’m having trouble finding an article that explains what the current Gaza conflict is about. I mean, Hamas is firing rockets into Israel and Israel is attacking what they believe to be the sources of those rockets, but that’s same-old-same-old. I have no idea why this is happening now. So I’ll punt this issue to next week.

and you also might be interested in …

Follow-up on the Hobby Lobby decision: In a piece in The Immanent Frame that got picked up by Salon, Winnifred Fallers Sullivan (a professor of religious studies at Indiana University) challenged the whole notion of laws that protect religious freedom. The problem: You can’t protect what you can’t define. When the First Amendment was written, religion meant a handful of churches and doctrines; but now things are much fuzzier.

The notion that religion exists and can be regulated without being defined is a fiction at the heart of religious freedom protection.

Justice Alito’s majority opinion holds that Hobby Lobby’s refusal to participate in the Affordable Care Act’s contraception mandate is a legally protected exercise of religion, and Justice Ginsberg’s dissent denies it. But neither defines what an “exercise of religion” is or gives a test for recognizing it. Both keep repeating the adjective religious, because that word is a veil they can’t see behind.

Is it really possible to distinguish the religious from the non-religious in these cases? Do we have a shared theory of religion that permits such distinctions to be made? Isn’t the religious always mixed with the political and the cultural and the economic? The constant repetition of the adjective seems necessary only in order to reify a notion about which everyone is, in fact, very uncertain.

The law can’t just protect churches, because

[M]uch—perhaps most—American religion today does not happen in churches. Many American Christians have, for a long time, engaged in a kind of DIY religion free from the regulations of church authorities. Their religion is radically disestablished free religion, defined not by bishops and church councils, but by themselves—ordinary Americans reading their Bibles, picking and choosing from among a wide array of religious practices. Indeed, Americans have always been incredibly varied, creative, and entrepreneurial in living out what they take to be their religious obligations—religious obligations that range far beyond the prescriptions of the mainline churches, which seem staid, contained, and tamed to the many who consider their own religious practices, unapproved by traditional religious authorities, to be alive with the spirit. They find their religious community and their religious fields of action in places other than churches—including the marketplace.

Lacking a definition, and recognizing the impracticality protecting everything people might do from whatever motives they might claim as religious, each side tries to stretch the word to cover the kind of religion they like, but not the kind they don’t like.

There is no neutral place from which to distinguish the religious from the non-religious. … Judges cannot do this work.

Sullivan leaves us not with an answer, but with a challenge: “We need fictions to live,” she writes, meaning social/cultural/legal fictions like corporations and churches and rights — all things that will never be detected in a laboratory. And if the old fictions can no longer work together without becoming lies, we need to get on with “creating new fictions together, political, legal, and religious”.

Has anybody ever seen Glenn Greenwald and Chris McDaniel in the same room? Just asking.

Remember Todd Akin? The guy who blew Missouri Republicans’ excellent chance to unseat Claire McCaskell in 2012 by denying the need for a rape exception to abortion bans, because women almost never get pregnant from a “legitimate rape“? He’s back.

His new book Firing Back: Taking on the Party Bosses and Media Elite to Protect Our Faith (foreword by Mike Huckabee) will come out Tuesday. From pre-publication accounts in the media, it appears Akin is un-apologizing for his rape remarks and blaming the Republican establishment, including Mitt Romney, for not going down the drain with him. He claims he was right: “stress infertility” is a real thing, so “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”

The only thing he admits to doing wrong is apologizing. And he shouldn’t be held morally accountable for that lie, because it was coerced out of him by the Republican establishment. But Joan Walsh thinks he might be making up that coercion story:

Poor Todd. He doesn’t want to take responsibility for a decision made in the heat of lust – lust for a Senate seat, in his case – so he’s claiming he was cruelly assaulted by party bosses and coerced into apologizing. It’s too bad his conscience didn’t have a way to shut that whole thing down.

Two thoughts: Akin should have to explain how that stress-infertility thing works when you’ve been drugged unconscious. And if Mike Huckabee runs for president and gets nominated, Democrats should make Todd Akin his unofficial running mate.

Liberals (like Paul Krugman and me) have been noting for a while the increasing evidence that ObamaCare is working as designed. Now that realization is starting to appear in the “centrist” media. Politico hedges as much as it can, but acknowledges:

The evidence is piling up now: Obamacare really does seem to be helping the uninsured.

In the quotes that are supposed to provide “balance”, ObamaCare critics deny they ever said the number of uninsured Americans would go up, but of course they did. False prophesies about ObamaCare vanish down the memory hole as soon as they’re disproved, and the false prophets move on to predict new calamities.

And you have to go to the second page of Politico‘s article to find any mention of the millions of people who would have coverage under ObamaCare if the red states would participate in the law’s Medicaid expansion. It’s in a quote from an “Obama administration official” — as if this were some partisan talking point rather than an objective fact.

One of the stories that never dies is the “welfare queen“: Somebody is getting rich off welfare, driving a Cadillac, and so on. Everybody thinks they’ve seen somebody who was cheating — wearing nice clothes or talking on an iPhone while cashing Food Stamps, etc.

Tuesday, the WaPo published an article looking at such a case from the other side: Darlena Cunha described the fast series of reverses that took her and her husband from being prosperous homeowners with a Mercedes to unemployed parents of medically-needy infants who own an underwater-mortgage house … and a Mercedes. “This is what happened when I drove my Mercedes to pick up food stamps” is a fascinating human-interest story that exposes a lot of the assumptions we make about people who (temporarily or permanently) need help.

and let’s end with something creative

In general, I love the Worth 1000 site, devoted to imaginative photoshopping. A recent challenge was Celebrity Time Travel, putting today’s celebrities into classic photos. The winner is called “Morgan Freedman“, though I’m also fond of the Obama/Louis Armstrong combo at #12.


Boehner’s Lawsuit and Palin’s “25 Impeachable Offenses”

I could almost feel sorry for John Boehner, if he hadn’t played such a big role in creating his own problems. As Speaker of the House, he is simultaneously

  • one of the most powerful figures in the United States government, answerable to History and to Peter Parker’s uncle: “With great power comes great responsibility.”
  • leader of a majority caucus that wants the United States to become ungovernable, believing that the American people will blame the ensuing chaos on a president the caucus hates.
  • responsible for keeping that caucus in the majority, while knowing that they are delusional and the American people will blame them if they cause disasters too obviously.

To succeed, he needs his caucus to stay in the majority, continue as leader of that caucus, and not sink the country. It’s an impossible job, and it can’t end well for him. But for some reason he loves it and wants to hang on to it. So he is constantly running out in front of the mob so that he can claim to be leading it, hoping that he can divert it from its most destructive (and self-destructive) goals.

That’s why he has to pretend to believe in hare-brained schemes like the government shutdown, so that he’ll be in a position raise the debt ceiling at the last minute and avoid an international economic disaster. He has to tolerate obstruction of government programs the country wants – the Highway Trust Fund is about to run out of money, a threat that combines job destruction with potholes and unsafe bridges; tens of thousands of refugee kids are piling up at the border unprocessed, the Senate worked out a bipartisan immigration compromise Boehner can’t even bring to a vote; and couldn’t the minimum wage go up just a little? — so that he can maybe save a few of them eventually.

The lawsuit. And now he has to sue the President, because otherwise the lunatics he leads will start an impeachment process that will probably be even less popular and less grounded in reality than their last presidential impeachment. They’ll do it right before an election, focusing the public’s attention on what a bad idea it was to give the Republican Party any role in governing the country.

He has to sue the President, even though Obama is begging him to do it. Obama is going all over the country, cracking jokes at Boehner’s expense. He just went to Texas, and said:

You hear some of them … “Sue him! Impeach him!” Really? Really? For what? You’re going to sue me for doing my job?”

Obama loved it. The crowd loved it. It looked great on TV. Every presidential action the House Republicans want to sue or impeach Obama for points to an issue where the real problem is inaction by the Republican House. And Obama’s not up for re-election; they are. No wonder he loves to talk about it.

Now, I don’t know which things they find most offensive — me helping to create jobs, or me raising wages, or me easing the student loan burdens, or me making sure women can find out whether they’re getting paid the same as men for doing the same job. I don’t know which of these actions really bug them.

But Boehner has to do it, because this is where the rhetoric that bounces around in the right-wing echo chamber leads. For five years, Republicans have been telling their base that Obama is “lawless” and his rule is “tyranny“. He “ignores the Constitution” and “makes up his own laws“.

The importance of vagueness. Like most extreme rhetoric, this talk works best when it’s vague, a lesson Republicans keep learning (and forgetting) when it comes to spending: Railing about “government waste” and promising to cut “trillions” from the budget are great applause lines. But when you have to make those cuts specific, hungry people don’t eat, old people pay more for medical care, construction workers lose their jobs, contaminated food gets past the inspectors … and it all becomes a lot less popular. That’s because the notion that we spend trillions building bridges to nowhere, feeding able-bodied people who could easily get jobs, and dishing out foreign aid to countries that hate us is a delusion. If you take big whacks at the federal budget, you’re going to end up making life considerably harder for people a lot like yourself.

But Boehner can’t stay vague forever. When Republican leaders encourage delusional rhetoric about the horrible things Obama and his government have done, eventually the people who believe them are going to ask what they’re doing about it. And the true answer, “I’m raising a bunch of money from suckers like you” is not going to cut it. Sadly, though, actually doing something will force Obama’s critics to be embarrassingly specific. They can’t just sue or impeach Obama for “Benghazi” or “making a mockery of the Constitution”; they’ll have to point to actual events that break actual laws. And then there will be a public hearing where they’ll be expected to offer evidence that these events happened somewhere other than in their fevered imaginations.

What’s worse, everybody will be watching, not just the Republican base. It has all the makings of an embarrassing disaster.

Boehner, naturally, wants to put that off as long as possible. That’s why he floated the lawsuit idea and let it hang in the air for two weeks before saying what it would be about. It’s like walking into a lawyer’s office and announcing, “I’m going to sue that guy!” and when the lawyer asks “For what?” you answer “Give me two weeks and I’ll think of something.”

Eventually he had to announce something, so Thursday he did (though there’s still no text of the proposed complaint). The draft resolution authorizing the suit says

[T]he Speaker may initiate or intervene in one or more civil actions on behalf of the House of Representatives … with respect to implementation of (including a failure to implement) any provision of the Patient Protection and Affordable Care Act

That’s still pretty vague, but in a statement Boehner fleshed it out a little:

In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it.

So that’s the President’s foremost tyrannical act: He delayed implementation of the employer mandate, one of the provisions of the ACA Republicans hate most. The New Republic‘s Brian Beutler described Boehner’s announcement as “a faceplant”:

Today’s story is that the GOP has spent weeks and weeks accusing Obama of unbridled lawlessness, when they didn’t really have the goods.

MaddowBlog‘s Steve Benen goes into more detail: Almost certainly, a federal judge will rule that the House doesn’t have standing to sue. (They’re not the ones being hurt, if anybody is. And if they’re serious, they have the impeachment power and don’t need the courts.) If the merits of the suit are heard and Boehner would happen to win, “the result might very well be the implementation of a policy Republicans don’t like”, unless the case lasted long enough that it had been implemented by then anyway. And implementation would be good for House Republicans because …

Remember, for GOP lawmakers, effective public policy wasn’t part of the equation. The GOP’s priority was failure – they wanted the system not to work. If the employer mandate would have made life difficult for the private sector, then Republicans desperately wanted it to happen so that it would hurt the economy, anger the public, and make the ACA more unpopular, causing a political nightmare for the president.

It’s part of that break-the-country-so-the-president-gets-blamed strategy, which worked so well during the government shutdown. And it makes such a good talking point: I’m suing to force the President to do something I think is bad for the country, because the way that he did what I think is good for the country was tyrannical. Voters love inside-the-Beltway process arguments like that.

Impeachment. But at least Boehner is heading off talk about impeachment. Or is he? Tuesday, Sarah Palin went to the heart of the echo chamber,, and wrote “It’s time to impeach President Obama“. Impeach him because “Opening our borders to a flood of illegal immigrants is deliberate.” (Picture turning that conspiracy theory into an Article of Impeachment and offering evidence to support it on national TV.) But that’s not all Palin has:

President Obama’s rewarding of lawlessness, including his own, is the foundational problem here. It’s not going to get better, and in fact irreparable harm can be done in this lame-duck term as he continues to make up his own laws as he goes along, and, mark my words, will next meddle in the U.S. Court System with appointments that will forever change the basic interpretation of our Constitution’s role in protecting our rights.

Unless impeached immediately, Obama will “meddle in the U. S. Court System” by doing his job under Article II, Section 2 of the Constitution to “appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for”. No wonder she concludes:

The many impeachable offenses of Barack Obama can no longer be ignored. If after all this he’s not impeachable, then no one is.

Thursday, she elaborated on Sean Hannity’s show and wrote a second column for Fox.

A little less talk, a lot more action. When we see even GOP lawmakers who are recognizing and proclaiming Obama’s violation of the Constitution and then ignoring that Constitution and the power they have to impeach — it gets kind of frustrating for the American people.

Or at least for the segment of the American people who aren’t in on the scam and take yakkers like Palin seriously. But let’s talk more about impeachable offenses:

He has allowed his subordinates and he himself to fraud the American people on these programs, these policies, that he has promised will work or not impact debt or deficit. These have been lies by our president. Yes, those are impeachable offenses.

Remember, the Constitution defines impeachable offenses as “treason, bribery, or other high crimes and misdemeanors”, not “being too optimistic about your proposals”. But don’t worry, Palin has consulted “experts”.

Experts, attorneys, they have a list of at least 25 impeachable offenses.

Now we’re getting somewhere. Surely, every web site that mentions Palin’s call for impeachment (especially her own web site or her Fox or Breitbart columns) will link to that list so we can examine it. Because nobody would just throw a number out there to make herself sound smart, or to create the vague idea that there are specifics somewhere, even though I don’t have time to go into them right now. Otherwise, the 25 impeachable offenses would be like Senator Joe McCarthy’s famous list of Communists in the State Department, which started out at 205 and at various other times was 57 or 81 or ten names long. As reports: “In fact, McCarthy never produced any solid evidence that there was even one communist in the State Department.”

25 “impeachable” offenses. It wasn’t on or or any other obvious place, but eventually I found the list. It seems to come from a report by the Committee for Justice, which in turn relies on a memo written by nine Republican state attorneys general in 2010. The CFJ was originally an astroturf organization created to support President Bush’s most conservative judicial nominees, though apparently it has found new justifications for its existence over the last five years.

I can see why nobody links to the list: It’s rhetoric, not law, and many of its points depend on “facts” that only exist in the conservative echo chamber.* Like #1:

Obama Administration uses IRS to target conservative, Christian and pro-Israel organizations, donors, and citizens.

Darrell Issa has been investigating this to death for more than a year and so far has come up with exactly nothing: no conservative groups were harmed, no IRS political motives have been found, and no communication channel with the White House has been identified. #5 is about Obama’s

21 separate Executive Orders that attack and undermine your Second Amendment right to keep and bear arms.

You can contemplate these nefarious orders in all their bureaucratic horror here. In #7:

Obama forced ObamaCare on an unwilling public through bribery and lying about its cost.

and also by passing it through the independently elected Congress, which did its own cost estimates. And apparently no one has ever before added a special provision to a bill to get a key senator’s vote. (The allegedly suspect provision didn’t survive into the final bill.)

#8 goes all the way back to Operation Fast & Furious.

Investigators suspect that Fast & Furious was an effort by the Obama Administration to discredit lawful gun ownership in America by purposefully creating gun crimes, thus inducing public outcry for gun control.

“Investigators” like Rush Limbaugh and the NRA, but nobody remotely knowledgeable or reputable. And notice, they don’t even claim to have evidence, they just “suspect”. Congress should impeach Obama because the NRA suspects he did something wrong.

It goes on like that. These are the “expert” specifics behind Palin’s vague impeachment rhetoric. No wonder the Republican chair of the Judiciary Committee said this Sunday:

The Constitution is very clear as to what constitutes grounds for impeachment of the president of the United States. He has not committed the kind of criminal acts that call for that.

Other lists of offenses. South Dakota’s GOP convention passed an impeachment resolution that listed other things, like Obama trading Guantanamo detainees to get Sergeant Bergdahl back from the Taliban or allowing the EPA regulating carbon emissions as the Supreme Court has ruled that the Clean Air Act instructs it to do.

Ted Cruz has put out his own list. He doesn’t mention impeachment, but simply points to “abuses of power”. Cruz’ list has more than 40 entries of similar quality to other lists. For example, President Obama has

Extended federal marriage benefits by recognizing, under federal law, same-sex marriages created in a state that allows same-sex marriage even if the couple is living in a state that doesn’t recognize same-sex marriage.

In other words, Obama is obeying the Constitution’s requirement to give full faith and credit to the”public acts, records, and judicial proceedings” of the states, even ones that allow same-sex marriage. He

Ordered Boeing to fire 1,000 employees in South Carolina and shut down a new factory because it was non-union.

Actually the NLRB did that — because Boeing was breaking the labor laws the NLRB is supposed to enforce — as Cruz’ own reference says. Obama appoints members to the Board, but doesn’t control it.

There’s a lot of stuff like that. It will stir your blood if you’re a Fox-News-watching conservative. But the two-thirds of the country that doesn’t identify as conservative is going to wonder what the fuss is about and why Congress is doing this rather than raising the minimum wage or creating jobs or passing immigration reform or doing something about those refugee kids on our doorstep.

President Obama would love to see those baseless impeachment hearings happen before the fall election. John Boehner would hate it.

* I sympathize with one point: #21, the “kill list” of American citizens who can be targeted by drones or military raids. It actually exists and violates those citizens’ due process rights. But impeachment is a premature remedy, because Congress has done absolutely nothing to protest — and it probably can’t, given that the kill list is one of those War on Terror programs many Republicans like. Impeachment shouldn’t be Congress’ first option; first they could try a joint resolution denouncing the kill list, or a law specifically making it illegal. If they can’t pass that much, they’ve got no business proceeding to impeachment.



The Monday Morning Teaser

It’s a Democratic president’s second term and there’s a Republican House, so of course it’s time to talk about impeachment. But first there will be a warm-up, the House’s lawsuit against the President for not enforcing the Affordable Care Act fast enough, which John Boehner hopes will keep the Republican base satisfied until after the fall elections. Sarah Palin, though, has other ideas.

I’ll examine all that — along with the importance of sounding specific but staying vague in right-wing rhetoric — in this week’s featured article, “Boehner’s Lawsuit and Palin’s 25 Impeachable Offenses”. Beyond that, a lot has been going on: the refugee-kids-at-the-border crisis, new skirmishing between Israel and Gaza, a religion professor’s fascinating response to the Hobby Lobby decision, and the dramatic return of Todd (Legitimate Rape) Akin, who now says the only thing he did wrong was apologize. (We missed you, Todd. Please make as many public appearances as possible between now and the election. If possible, could you concentrate on states where Democratic women have close Senate races?)

I’m aiming to have the lawsuit/impeachment article out by ten (EDT), and the weekly summary, “The Other Guys”, by noon.


Belief and Reality

Thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.

Sonia Sotomayor

This week’s featured article: “How Threatening Is the Hobby Lobby Decision?

This week everybody was talking about the Hobby Lobby decision

The majority opinion claimed to be narrow; the dissent said it was sweeping. I’m coming to look at it as a narrow gate into a vast new realm of judge-bestowed rights for some people and burdens for others.

I tried to cover the legal landscape in “How Threatening Is the Hobby Lobby Decision?“. That already ran so long that I didn’t want to extend it with the many satires of the decision. Here are a few: “Supreme Court Rules JCPenney Allowed to Sacrifice Employees to Appease Cthulhu“, “My Breakup Letter to Hobby Lobby“, and “Supreme Court Upholds Little Caesar’s Right to Feed Christian Employees to Lions“.

A point I didn’t get around to making there is that not everything you don’t want to do is a violation of your religious rights, even if you share your distaste with the members of your church. Compare a conservative-Christian baker who doesn’t want to make a same-sex-wedding cake to a black waitress who doesn’t want to serve a table of guys wearing Confederate-flag t-shirts. One has a religious justification for his distaste and the other doesn’t, but I contend the two situations are more similar than different, and the feelings affronted are more tribal than spiritual. Each feels his/her identity threatened by being required to serve members of an opposing tribe.

and the Fourth of July

If you’ve ever wondered what it would be like to fly through a fireworks display, this drone did it for you.

If flag-waving and fireworks isn’t your style of patriotism, consider re-affirming your commitment to democracy. Lawrence Lessig has started the Mayday PAC, a SuperPAC to end all SuperPACs. It supports candidates for Congress who are committed to reforming the way we finance political campaigns.

and the 50th anniversary of Freedom Summer

In the summer of 1964, about a thousand college students from all over the country descended on Mississippi to help black citizens register to vote, to educate black children about subjects their Jim Crow schools wouldn’t touch, and to challenge the right of an all-white delegation to represent Mississippi at the Democratic National Convention.

It’s worthwhile to be reminded that, back in the day, freedom was a liberal word. It pointed to the desire of traditionally oppressed peoples to be listened to, to vote, to have the equal protection of the laws. Today, by contrast, freedom typically means the right of corporations and wealthy individuals to exercise their power without government restraint or consideration of the public interest.

If you want to educate yourself about that summer, a lot of good stuff is out there.

It’s easy to forget the sheer terrorism that dominated Mississippi in those days. The whole point of sending white students down there wasn’t that they had some special voter-registration magic, it was that if they were beaten or killed, the country would notice; white supremacists had been killing uppity blacks for a long time and Northern whites didn’t care. But as the Neshoba murders showed, the whites weren’t safe either. Not everyone had a headline-grabbing experience, but a lot came home with stories like this:

I was walking along a road. We were told never to leave the place we were staying, by ourselves. They jumped out of the car. They started calling me “Hey, nigger lover! We got you. We finally got you. We ain’t killed ourselves a-a white girl yet. You’re going to be the first.” They get this lynch rope. It really was a noose like you see like I had seen in the pictures of the hangings, right? They put this noose over my head. And this is attached to a long rope. They jump back into the car, and I just saw myself being dragged to death. I’m walking like this. And they’re laughing and calling me all kinds of names. And then they moved along, slowly, a little bit faster. I’m walking faster. And it was like, “Okay, this is it.” And then they dropped the rope. And I just stood there. Because we had to wear skirts. We weren’t allowed to wear pants in those days, so we all had our little shifts on and everything. I peed all over myself. Just stood on the [road], and just peed.

and you also might be interested in …

One thing we’ve learned from the seemingly endless series of mass shootings is that a shooter is most vulnerable while reloading. So if gun magazines hold fewer bullets, maybe fewer people will be killed before shooters are stopped. It seems worth a try.

The New Jersey legislature tried it, and Wednesday Governor Christie vetoed it. I can’t see this pander to the NRA winning him many votes in New Jersey, so I think it means he still sees himself as a presidential contender.

I’ve been ignoring BridgeGate for the last several months. The legislature’s investigation continues, but hasn’t yet turned up a smoking gun with Christie’s fingerprints on it. The U.S. attorney’s investigation seems to be the important one, but it’s also the hardest to keep tabs on. We won’t really know what they have until they start issuing indictments, and no one knows when that might be.

If Christie isn’t indicted, and if none of the people who are indicted hang their defense on blaming him, then he’s probably a viable candidate again. What he lost in bad publicity he can regain by appealing to the far Right’s delusions of persecution.

Interesting article in the NYT Magazine: “Can the G.O.P. Be the Party of Ideas?” In other words, can the Republican Party stop saying “no” to everything and instead come up with localist and free-market plans to help solve the problems ordinary people face? And if they could, would the base of the party go for it?

Salon published an amazing conversation between Thomas Frank (What’s the Matter With Kansas?) and Barry Lynn (Cornered) about the hidden monopolization of our economy, what it has to do with inequality, how it happened, and what can be done about it. Something they agree on is that completely unfettered markets are unstable; they lead to private monopolies that then make the markets unfree.

When the open-carry folks show up in the same shops and restaurants you frequent, what should you do? PQED advises that you just walk out with your food on the table and your bill unpaid. Carte Blanchfield disagrees, arguing that the armed crazies might then shoot you. Both are discussing what philosophers call the problem of other minds: You know that you have good intentions and aren’t threatening anyone else, but they don’t know that. The problem of judging other people’s intentions becomes very important when deadly weapons are involved. Tom the Dancing Bug also addresses that issue:

and let’s end with something cute

Here’s how you know you’ve been letting your dog and turtle watch too much of the World Cup.

How Threatening is the Hobby Lobby Decision?

The Court’s five male Catholic justices outvoted its three Jews and lone female Catholic. Is that a problem?

It is easy to be confused by the commentary on the Supreme Court’s 5-4 ruling that Hobby Lobby and Conestoga are exempt from the contraception mandate of the Affordable Care Act. The ruling, say some, is narrow; it will affect only a handful of business-owners in a more-or-less identical situation, and their female workers’ coverage will not suffer. No, say others, the consequences of the ruling are sweeping; it puts all workers’ health coverage at the mercy of whatever religions their employers’ corporations decide to adopt, and could have further consequences unrelated to healthcare.

Each of those views is right in its way. Justice Alito’s majority opinion emphasizes its limitations; cases that seem analogous cases, he says several times, may turn out differently. An important point in Alito’s argument is that the government might easily achieve its purpose — covering contraceptive care for women whose employers have religious objections — by pushing the small expense of the coverage back on the insurance companies, as it already does for some religious organizations like churches, hospitals, and colleges. Such a simple fix is probably unavailable if companies object to covering vaccines or blood transfusions, much less seeking exemptions from civil rights laws.

But Justice Ginsberg was not comforted by Alito’s assurances of what may or might happen. Analogous cases may turn out differently, but they might not. Countless numbers of them will work their way through the system for years to come, creating unnecessary chaos as lower courts explore the consequences of Alito’s new interpretations of religious liberty and corporate law.

And who knows? The Court has committed itself to nothing, so maybe those cases will lead to new sweeping rulings by the Court’s increasingly activist conservative (and male Catholic) majority. The government’s “easy” fix to the contraception mandate is itself challenged in a case that the Court will probably hear next year; immediately after the Hobby Lobby ruling, the Court issued an emergency order demonstrating that it takes that case seriously.

What does the ruling say? Here’s the full opinion of the Court — Alito’s 49-page ruling and Ginsberg’s 35-page dissent, plus a few paragraphs from other justices. Law professor Eugene Volokh summarized Alito’s ruling in 900 words, and Ezra Klein got it down to three sentences:

  1. A federal law called the Religious Freedom Restoration Act was written to protect individuals’ religious freedoms — and on Thursday, the Supreme Court ruled that, under RFRA, corporations count as people: their religious freedoms also get protection.

  2. The requirement to cover contraception violated RFRA because it mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”

  3. If the federal government wanted to increase access to birth control — which they argued was the point of this requirement — the Court thinks it could do it in ways that didn’t violate religious freedom, like taking on the task of distributing contraceptives itself.

Alito clearly thinks (or wants us to think) that his ruling is narrowly targeted:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

But Ginsberg’s dissent begins:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

And later she explains:

Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.

Ginsberg sees four dangerous new principles in Alito’s ruling:

  • Originally, the Religious Freedom Restoration Act of 1993 was meant to restore an interpretation of the First Amendment’s free-exercise clause that the Supreme Court backed away from in 1990. Alito has cut the RFRA loose from history of First Amendment interpretation, giving future Courts broad license to expand the notion of religious liberty.
  • Alito has granted RFRA rights to for-profit corporations, extending the legal fiction of corporate personhood into a previously unexplored realm, and blowing away the long-observed distinction between for-profit corporations and specifically religious organizations (like churches) created to serve their members.
  • The meaning of a “substantial burden” on religious liberty has been significantly weakened and made subjective.
  • The “corporate veil” — the legal separation between corporations and their shareholders — has been turned into a one-way gate. The rights of the shareholders now flow through to the corporation, but the debts, crimes, and responsibilities of the corporation still don’t flow back to the shareholders.

Let’s take those one by one.

The RFRA goes beyond any previous history of First Amendment interpretation.

For decades, the Court applied what it called the Sherbert test to First Amendment, religious-liberty-infringement cases: A law could require a person to violate his/her religion — say, by working on the Sabbath — only if the law was the least restrictive way to achieve a compelling government interest. But in 1990 it backed away from that principle in the Smith decision: If a law had a larger purpose and didn’t specifically target a religion, it didn’t have to be quite so accommodating.

Congress then passed the Religious Freedom Restoration Act to reinstate the Sherbert Test by statute. That’s what the law says and that’s how it has been interpreted. But you can’t justify the Hobby Lobby decision from the pre-Smith precedents, because you run into the 1982 Lee decision, concerning whether an Amish employer had to pay Social Security taxes:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.

Alito doesn’t answer Lee, he just blows it away:

By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.

In other words, in spite of its name the RFRA doesn’t “restore” anything; it’s a revolutionary assertion of new religious rights unrelated to the First Amendment. How far do those new rights go? Alito doesn’t say. A more detailed analysis of this issue is in Slate. Daily Kos’ Armando has an interesting response: If the RFRA really does mean what Alito claims, then the RFRA itself is an unconstitutional establishment of religion.

The RFRA extends to for-profit corporations.

The RFRA uses the word person and doesn’t define it, so Alito argues that the definition must come from the Dictionary Act of 1871, which says

the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Worship of Mammon

(If the Dictionary Act rings a bell in your head, here’s where you’ve heard of it before: The way the Defense of Marriage Act affected thousands of laws in one swoop was by amending the Dictionary Act’s definition of marriage.) But Ginsberg points out that the Dictionary Act “controls only where context does not indicate otherwise.” Since “the exercise of religion is characteristic of natural persons, not artificial legal entities” the context of a law concerning the exercise of religion already excludes corporations.

Alito wants to claim his ruling only applies to “closely-held corporations”, but that’s not what the Dictionary Act says. If Bank of America wants to admit that it worships Mammon — a religion at least as old and popular as Christianity — it can claim free-exercise rights.

Alito’s reasoning has already had one very unintended consequence: A Guantanamo detainee was previously denied protection of the RFRA, because a court decided that the meaning of “person” in his case was not the Dictionary Act definition. Now that the Supreme Court has gone on record saying the “person” in the RFRA has the Dictionary Act meaning, he is claiming his case should be re-considered.

The meaning of “substantial burden” was weakened.

ObamaCare didn’t require the owners of Hobby Lobby to use, manufacture, distribute, or even necessarily buy contraceptives. They were merely required to provide health insurance that would cover contraceptives if the employees decided to use them. If Hobby Lobby employees agreed with the owners’ scruples, no violation of those scruples would take place.

Ginsberg did not find this burden “substantial”.

It is doubtful that Congress, when it specified that burdens must be “substantial,” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.

But Alito did:

The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.

But surely any clever person can find a link of some sort between whatever they don’t want to do and the commission of some act they consider immoral by someone else. Alito is encouraging Christians to develop hyper-sensitive consciences that will then allow them to control or mistreat others in the name of religious liberty, a pattern I described last summer in “Religious ‘Freedom’ Means Christian Passive-Aggressive Domination“.

I focus on Christians here for a very good reason: Given that this principle will produce complete anarchy if generally applied, it won’t be generally applied. Contrary to Alito’s assertion, judges will have to decide whether the chains of moral logic people assert are reasonable or not. For example, elsewhere in his opinion he brushes off the objection that corporations will claim religious benefits to increase their profits:

To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.

But how would it fail, if “it is not for the Court to say” whether asserted religious beliefs are unreasonable? If Randism is repackaged as a free-market-worshipping religion, won’t any regulation infringe on it? Who could claim that Koch Industries is “insincere” in its Randism?

In practice, a belief will seem reasonable if a judge agrees with it. That’s what happened in this case: Five male Catholic judges ruled that Catholic moral principles trump women’s rights. Three Jews and a female Catholic disagreed.

The nature of corporations was re-imagined.


By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.

Alito brushes away this separateness:

A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

Alito waves his hand at employees, but his ruling only applies to owners, i.e., rich people. So in Alito’s reading of corporate law, corporations protect rich people’s rights while shielding them from responsibilities. It is a way to write inequality into the law.

friend-of-the-court brief written by “forty-four law professors whose research and teaching focus primarily on corporate and securities law and criminal law as applied to corporations” says Alito’s “established body of law” doesn’t work the way he says, and that making it work that way will open “a Pandora’s box”.

The first principle of corporate law is that for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders. … [T]he most compelling reasons for a small business to incorporate is so that its shareholders can acquire the protection of the corporate veil. … Allowing a corporation, through either shareholder vote or board resolution, to take on and assert the religious beliefs of its shareholders in order to avoid having to comply with a generally-applicable law with a secular purpose is fundamentally at odds with the entire concept of incorporation. Creating such an unprecedented and idiosyncratic tear in the corporate veil would also carry with it unintended consequences, many of which are not easily foreseen.

The brief spells out some of the foreseeable consequences: battles between shareholders (perhaps spilling into court) about a corporation’s religious identity, weakening of the shareholders’ shielding against the debts and/or crimes of the corporation, corporations whose religious identities exempt them from certain laws might obtain advantages over their competitors, minority shareholders might sue a management that refused to take on an advantageous religious identity (because it failed to maximize profit), and many more. They conclude:

Rather than open up such a Pandora’s box, the Court should simply follow well-established principles of corporate law and hold that a corporation cannot, through the expedient of a shareholder vote or a board resolution, take on the religious identity of its shareholders.

Conclusion: The Box is Open.

More cases are already in the pipeline, cases that object to all forms of contraception, not just the four Hobby Lobby’s owners view as abortion-causing. One objects to paying for “related education and counseling”, so even seeing your doctor to discuss contraceptive options might be out. Religious employers are already asking to be exempt from rules about hiring gays and lesbians. Photographers and bakers want to be free to reject same-sex marriage clients. Beyond that, who can say what plans are being hatched in religious-right think tanks or corporate law offices?

The Court did not endorse these claims in advance, but it laid out sweeping new principles and did not provide any tests to limit them.


The Monday Morning Teaser

The Supreme Court’s Hobby Lobby decision came out at about the same time I was pushing the Post button on last week’s Sift. In my neighborhood of the blogosphere, it’s all anybody’s been talking about ever since. Every time I thought I had seen all the important angles in the decision, some new article pointed out something I hadn’t noticed.

In my view, it’s kind of a sneaky decision. It appears limited to the particular facts of this case, but its logic has vast unexplored consequences that will play out — and already are playing out — in cases still to be decided. So the most extreme criticisms of the decision can easily be denied: Hobby Lobby doesn’t really do those horrible things, it just lays the groundwork for future decisions to do those horrible things. And the Court’s conservative majority will also be in a position to deny that those decisions are radical; they’ll just apply the precedents set in Hobby Lobby.

Explaining all that will take some time, both time this morning to finish the article and time as measured in words.


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