Death of a Giant; Start of a Quagmire

Saturday, Supreme Court Justice Antonin Scalia unexpectedly died.  With his death, the Court lost what one observer said was the most important jurist of the second half of the 20th-century.  His death should be an occasion for great tribute and reflection on an amazing career.  The focus should be on the career of an unparalleled judge that was an intellectual giant with with a colorful personality.  However, the political world has pivoted with breakneck speed towards the reality in which it dwells - who will be the replacement for Justice Scalia and who should do the nominating.

Antonin Scalia was born to Sicilian immigrants and grew up in Queens.  The devout Catholic received a Jesuit education at Georgetown before entering Harvard Law School.  He worked as a lawyer in Cleveland before entering academia in Virginia.  He was nominated to the Court in 1986 by President Ronald Reagan and unanimously confirmed by the Senate.  Prior to, he had worked within the Nixon and Ford administrations.  His impact was felt immediately.  Less than a decade on the bench, Sen. Joe Biden of Delaware said that of all of his 15,000 votes he had cast, his biggest regret was in confirming Justice Scalia because "he was so effective."  

Justice Scalia declared himself an originalist, a textualist when deciding cases.  He considered it his goal in life to reinforce the Constitution as it was originally designed and written.  A judge should do no more or less.  He was bombastic, sarcastic, biting and had the ability to reduce the arguments of lawyers before the bench into a jumbled mess.  His rapier wit was seen most often in his interactions with the aforementioned lawyers as well as in his decisions - particular when he wrote for the dissent.  His writings on the Affordable Care Act in dissent should be required reading for those who feel the law is dull or not relevant.

Some people loved him, others feared and hated him - mainly because they could not out think or out maneuver his points.  He was seen by many who did not know him as only a conservative judge who saw things through that prism.  However, he called himself neither a conservative or liberal - simply constitutional.  He was also not afraid of others who held differing opinions.  His long-lasting friendship with colleague Justice Ruth Bader Ginsburg, a noted activist judge, was testimony to his love of debate.  One law clerk, who Justice Scalia often referred to as his token liberal, said the judge insisted that he needed minds like the clerk to debate his positions - he needed the intellectual challenge to make sure his points were on target.

Now that this historical figure has passed, the political reality does not allow for proper mourning or honoring.  The Senate Republicans have said that nothing will be done in the way of confirming or hearing a new appointee until the next president is in place.  The Democrats, led by Harry Reid of Nevada, have insisted that President Obama should nominate a replacement for Justice Scalia and that the Senate has a Constitutional duty to honestly and in full-faith consider such a candidate. While I would never side with Harry Reid on purpose, it does seem a bit childish for the Republicans to refuse to hear a candidate from the president.

However, the Democrats are being disingenuous.  Their shameful behavior when President Reagan appointed Robert Bork is a great example.  So, I'm more than a little cynical and suspicious by the "outrage" of the Democrats.  The Republicans, on the other hand, are at a precipice.  Several senators, led by Marco Rubio of Florida, have stated that there is no way that the upper house will consider a nomination.  What happens if the president proposes a moderate?  The Republicans stand to lose - not just in the precipitous fall in public opinion of the Senate but also in the general election in November.  The party needs to tread carefully.

Justice Scalia was a giant of a man - intellectually, influentially, judicially.  Justice Ginsberg said that his critiques made her a better judge.  The two, diametrically opposed to one another, were nevertheless close colleagues and friends.  They typified what is possible even though political differences are sharp.  The last thing the Republicans need is to act petulant.  Mimicking the poor behavior of politicians past is not a recipe for any kind of success.  They should do their jobs, do it with honor and the public will follow.

The Reign of the Heckler's Veto

Some years ago, historian Richard Pells wrote a book entitled Not Like Us: How Europeans Have Loved, Hated and Transformed American Culture Since World War II.  In it, Mr. Pells suggested that while many say, certainly in Europe, that the United States has had a disproportionate influence on the Old World, the facts suggest the opposite.  Over the last couple of decades, European jurists have protected the angry responders to provocative speech or action.  In American legal jargon, it is known as the Heckler’s Veto.  Instead of affirming the right to speech or thought, we side with those that are offended, sometimes to ridiculous lengths.  The examples from Europe have been headshaking but Americans have always felt they could smugly believe that it is not the way here.  According to the 9^th U.S. Circuit Court of Appeals this past week, that has changed.   

A couple of years ago, in a California high school, a group of Mexican-American students decided to make a public display over Cinco de Mayo.  In doing so, they hoisted a flag onto a tree in front of the school and celebrated underneath.  In a childish tit for tat, a couple of non-Hispanic students decided this would be a good day to wear shirts with American flags on it – in response to the festivities in front of the school.  Then, the Cinco de Mayo celebrants had an issue with this and threats were levied against the non-Hispanic students – in this case it was physical violence threatened.  The administration, fearing that a disturbance could quickly ensue and escalate, told the non-Hispanic students they had to take the shirts off or turn them inside-out.  Otherwise, they would be forced to leave the school.  Thus was struck the first blow on behalf of the Heckler’s Veto – the restriction of one person’s speech because of the potential disturbances caused by others. 

The parents of the American-flag wearing students sued and the case went before the 9^th Circuit Court of Appeals.  Typically, the 9^th Court is known for a rather liberal take on the Constitution.  Being based in California and covering territory that includes the Pacific Northwest, its ideological foundations are certainly in line with a segment of that region.  However, it seems their most recent ruling is more illogical than most.  The 9^th Court ruled that, in accordance to precedent set by the Supreme Court and other lower courts, schools have the right to do what is necessary to preserve order and the learning environment.   

Typically, this type of latitude by school administrators have been directed towards mandatory drug tests as seen in Board of Education v. Earls (2002) as well as searching student property (lockers) as seen in New Jersey v. T.L.O. (1985).  In 1988, the Court did decide in Hazelwood v. Kuhlmeier that newspaper stories about pregnant teens within the school (as well as sexual content) and students complaining about their parents were within the school’s purview to restrict.  However, one would have to surmise that the wearing of American flag emblazoned clothing hardly falls within the category of traditionally offensive or inappropriate material. 

Still, the jurists of the 9^th District have put a very strange twist on the traditional protection of speech, even in a traditionally restricted area like schools.  There is no Constitutional provision that says that speech can only be free if it does not offend.  Indeed, that is the most important speech to defend.  Presumably, this could go before the Supreme Court and hopefully, cooler and more measured judicial heads will prevail.  It clearly has not in California.  Europe has its own issues with this topic has they have, in some sectors, given up the fight and the importance of free speech and expression.  Should we give up ground on this issue, we will spend our last years on earth, in the words of Ronald Reagan, “telling our children and our children’s children what it was once like in the United States where men were free.”

The Making of a Judicial Giant

It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the courts must decide on the operation of each….This is of the very essence of judicial duty.
                Chief Justice John Marshall, Marbury v. Madison, 1803

From time to time, the Supreme Court has been the subject of one of my articles.  I love the Supreme Court and am endlessly fascinated with the issues they discuss.  Within the story of the Supreme Court, I’m most intrigued with the career of John Marshall.  He was the third chief justice of the Court and widely considered the most important judicial figure in the history of the United States.  He is responsible for the creation of the modern court and its powers.  However, like most things dealing with the law, one’s career is often centered on a single case.  For John Marshall, that case was Marbury v. Madison in 1803.

In the waning days of the Adams administration, having been defeated by the Democratic-Republican Thomas Jefferson, the Federalist president hurriedly worked to fill a slew of vacant federal judicial positions.  President Adams had been negligent to do so earlier but worked overnight to complete them before leaving the White House for good.  He stacked his pile of “midnight judges” appointees on his desk and assumed that the incoming president of a different party would finish the process.  Upon entering the White House, President Jefferson and his Secretary of State, James Madison, saw the appointees and pondered.  Are they required to fulfill these Federalist positions?  They answered no and likely threw them away. 

One of the judges in question, William Marbury, wanted his post – justice of the peace of Washington, D.C.  At the time, the capital was a sleepy agricultural community with little for a justice of the peace to worry about.  He sued the government and Secretary Madison for his job on the basis of the Judiciary Act of 1789.  In particular, he called for a writ of mandamus – an order for the government to do its job.  For Chief Justice Marshall, the strident Federalist who wants and needs a stronger government for the good of the Court, his sympathies are towards Marbury but he has a problem.  With the little respect or prestige of the Court, if he ruled in favor of Marbury and ordered the president to appoint him, President Jefferson would simply ignore him.  However, in reviewing the law, he sees a chance to gain some much needed credibility for the Supreme Court. 

As John Marshall laid out his ruling, he began by saying that Marbury was appropriately appointed and should be given his position.  Nothing in the Constitution limits when a president can make judicial appointments and therefore, the post should go to Marbury.  As the audience begins to think that the Federalist judge has ruled in favor of the Federalist plaintiff, Marshall shocks by attacking the Judiciary Act of 1789.  In short, Marshall ruled that the portion of the law used by the plaintiff was unconstitutional and therefore, Marbury’s case and basis was invalid and his petition denied.  Jefferson was now in a bind.  If he did not accept Marshall’s opinion, he would be compelled to give Marbury his position, with many other midnight judges likely to follow the same path.  By accepting the Court’s opinion, he bestows upon the Court the ability to review the actions of government and determine its constitutionality.  In short, John Marshall took one step back to take two steps forward at a later date.  It worked and the Court was given an important power over the other branches – judicial review.   

The Supreme Court has the authority to review not only the actions of the government but those of the lower courts, both federal and state.  Over the course of his career, Marshall’s decisions would establish a strong federal government in the areas of interstate commerce, international contracts and on the question of federal law superseding state law.  Given the impact that he had, it is surprising that he is not more well-known.  Hopefully, I’ve changed that to some degree with this little story.  His life and his work is worthy of attention and study.    

The Troubles of the Boy Scouts

This past week, the Boy Scouts of America (BSA) met to vote on an issue of particular interest.  Since the 1990s, various activist groups have sought to reverse the youth organization’s stance on homosexuality.  The BSA has a stance against gay troop leaders, particularly those who speak out on behalf of their beliefs.  This stance and the reaction against it culminated in the 2000 Supreme Court case of The Boy Scouts of America v. Dale.  In it, the Supreme Court said that a private organization cannot be forced accept and thereby publicly present a tolerance for that which goes against their values and beliefs.  Since this case, the pressure has mounted against the BSA from many fronts as well as the move by the Girl Scouts to depart philosophically from their former partners.  The decision this past week stands as a victory and a defeat to many people when it agreed to allow openly gay youths into the organization but maintained the ban on troop leaders. 

As I’m sure it has been clear over the course of this blog’s existence, I have conservative streaks that run deep and fairly strong.  My stances on education and the reform required within strike others as fairly liberal, if not radical.  Still other positions I liken to more a libertarian attitude and here is where my thoughts on the BSA fall.  Whether or not the organization, which began as a boys’ organization in England, emphasizing the importance of scouting and naturalist skills, accepts gay boys or troop leaders is of no concern to me.  I was never a Boy Scout and do not have, as they say in Texas, a dog in the hunt.  However, I grow concern when people feel compelled to do something against their wishes or institutional values.  I’m afraid the organization has done just that.  There is a great deal of prognostications from both sides of the argument on the impact of this decision. 

The pro-gay side of things suggests that this will open possibilities for more young men to consider it ok to join the BSA.  Former Boy Scouts who are gay speak of the life lessons and cherished memories of their time in the group and feel more people will now have access to it.  As the Boy Scouts begin at such an early age, when sexuality is not of primary concern or given much thought, I imagine that boys, gay or straight, have not had many roadblocks placed in their path.  Therefore, I wonder just how many more young men will actually join the group as a result of the decision last week. 

Those who are against the approved measure have predicted a mass exodus of families who allowed their sons to join the Scouts on the auspices of its values and traditions.  I wonder, however, just what kind of exodus this will be.  I’m not sure it will be as horrible as it is thought – in some circles, as much as 300 to 400,000 members.  I think most people know that gay youths have been a part of the organization for some time and the idea that they are “allowed” in the Scouts will not strike many as much of a departure.    

All these things said, the conversation has turned to the stance on youth leaders who are gay.  My first awareness of this type of issue was in the aftermath of the Supreme Court case United States v. Virginia (1996).  In it, the Court ruled that the Virginia Military Institute, a previous all-male institution, did not make the argument that maintaining a single-gender school was beneficial to the students.  Therefore, the state could not make the argument that the male-only academy was not a violation of the equal protection clause of the 14^th Amendment.  Yet, I could not help feel that something was not right.  I get the same feeling now with the BSA. 

In our society, we have accepted the idea of freedom of speech as sacrosanct.  Yet, what good is this right if it is reserved only for what is currently popular and acceptable.  Gay-right activists have done a tremendous job in getting their message out that no one should be treated less for being gay.  I personally disagree with the practice, an idea that is a component of my faith, but I also do not believe my faith would condone mistreating anyone for any reason.  Still, every American has the right to their opinion and to be able to live on the basis of their convictions.  The Boy Scouts of America should not feel pressured to accept anyone.  Doing so would promote an institutional and member-specific acceptance.  In a country based on concepts like freedom of speech, this cannot be tolerated.    

For Whom Shall the Gavel Strike?

Last week, the Supreme Court heard opening oral arguments on overturning portions of the Voting Rights Act of 1965, an act that was designed to protect black voters in the face of seemingly insurmountable obstacles to voting.  Over the course of the arguments and in the immediate aftermath, a great deal of hyperbole and dramatics were dished out, making it nearly impossible to rationally consider the case and its merits.  As usual, the Supreme Court is in the position to consider the law through the disinterested lens of jurisprudence but it certainly will not end there. 

The law was written and passed in horrible circumstances.  Blacks trying to vote in the southern states met with unprecedented travails to exercise their rights guaranteed in the U.S. Constitution as U.S. citizens and particularly due to the Fifteenth Amendment, granting black men the right to vote, and the Nineteenth Amendment which granted women the right to vote.  Poll taxes were placed to force out those considered “unworthy” while literacy tests were yet another hurdle to overcome.  This is not to mention the various threats and acts of violence that often characterized the nights leading up to the vote.  At the time, Sen. Theodore Bilbo (D-MS) said, “If there is a single man or woman serving (as a registrar) would cannot think up questions enough to disqualify undesirables, then write Bilbo….But you know…the best way to keep a nigger from voting.  You do it the night before the election.  I don’t have to tell you more than that.  Red-blooded men know what I mean.”   

When considering the backdrop of the law, it is understandable that so many, scarred by the memories of those days, might be reluctant to see it go but eventually, go it must.  First of all, we must recognize a level of racial equality that would have been unthinkable to those suffering in the Jim Crow South.  That is not to say that we have racial equality but we are closer to it than any time in our history.  As part of the law, southern states are required to get “pre-clearance” of any change to their voting statues.  However, in the last decade, only one law was struck down, making up .03% of all suggested changes to relevant laws of southern states. It would suggest that the sins of the father have not passed down and southern states should hold equal status with other states. 

Furthermore, during oral arguments, Chief Justice John Roberts challenged the Solicitor General Donald Verrilli that the continuation of the law maintains the idea that the South is still more racist than the rest of the country.  While Mr. Verrilli stated that was not the government’s position, it is hard to figure out, then, the rationality of continuing the pre-clearance portion of the law.  Yet, Chief Justice Roberts was not done when he asked Mr. Verrilli if he knew which state has the greatest disparity of blacks and whites voting.  When the Solicitor General said he didn’t, Chief Justice Roberts said it was Massachusetts, which is not covered by the law.  The state with the greatest amount of blacks voting compared to whites was Mississippi, which is covered by the law.   

Again, it needs to be reaffirmed that racism is still alive and well but there are so many political avenues for victims to redress wrongs, the unfettered methods of racist policies are simply not possible today.  During oral arguments, Justice Scalia said that the formation of race-based entitlements, so needed in 1965, is nearly impossible to do away with once the situation has improved by politicians and the political process.  “Even the name of it is wonderful, the Voting Rights Act.  Who’s going to vote against that?”  Throughout world history, foes have had to learn to let go of the past in order to work and build together.  At some point, and perhaps it will not happen until the next generation is in charge, blacks and whites must learn to move beyond the crimes of the past (without forgetting) in order to build and work together.  That cooperation must begin with the elimination of laws such as elements of the Voting Rights Act of 1965. 

A Constitutional Viewpoint

Now the Senate is looking for “moderate” judges, “mainstream” judges.  What in the world is a moderate interpretation of a constitutional text?  Halfway between what is says and what we’d like it to say?
            Supreme Court Justice Antonin Scalia, address to Chapman University, 2005

Much talk has been given to the appointment of judges upon the Supreme Court of the United States.  For those not familiar, such judges are appointed by the president and confirmed by the U.S. Senate.  They have life-time tenure.  The thought was that such a tenure would allow judges to exist and to issue verdicts above and removed from political pressures.  For many Americans, legal studies and the inner workings of our court system might come across as rather esoteric but within the wranglings and debates, arguments and dissenting opinions lies a committed guarding of the U.S. Constitution.  The justices who seem to have the right answer are called originalists.

There is an older judicial term called strict or loose constructionism.  It was designed to interpret the extent to which one stays connected to the U.S. Constitution.  Today, a more proper term is originalism.  Originalism or textualism is the concept of judges making a decision on the basis of the exact words of the Founders and the context in which they wrote.  Justice Antonin Scalia, one of the Court’s most brilliant and controversial judges, has often used the death penalty to explain.  Some activists suggest that the Eighth Amendment to the Constitution and its warning against “cruel and unusual” punishment, in essence, invalidates the authority behind capital punishment.  Justice Scalia said that the Eighth Amendment obviously does not suggest that since all the states had capital punishment as a possible consequence to criminal behavior.  How could the Founding Fathers ban something on one hand and allow for it on the other unless they considered the death penalty neither cruel nor unusual?

If we as a society purport to hold valuable the words and intent of the Founding Fathers, why do we try so hard to perform logical gymnastics in order to justify various unfounded political opinions?  The whole purpose of the Constitution is to provide a guideline that brings us through temporary controversies and debates – a calming voice that strongly rejects legal contradiction and moves us away from our worst vices.  To further highlight the importance of an originalist’s point of view, let us take a view at another social dilemma.  Anti-gun advocates suggest that the Second Amendment’s wording suggest the Founding Fathers wanted only those in a militia to have weapons.  However, that was not the context within which they were writing.  In their days, many families, many of them not in a militia, had weapons.  If it was acceptable in 1789, why would the Founding Fathers suggest, reaching through time, that it is not acceptable? 

Behind the power of the point of view of the originalist is a belief in the power of the words of the U.S. Constitution.  If, indeed, these words serve only as a guideline and not irrefutable demands from those who constructed the country, then what is the purpose of the document?  Justice Scalia once said, “Robert F. Kennedy used to say, ‘Some men see things as they are and ask why.  Others dream things that never were and ask why not?’  That outlook has become a far too common and destructive approach to interpreting the law.”  If the United States, its citizens, its lawmakers and its judges cannot agree in the inviolable character of the U.S. Constitution, we could cease to exist as what we were once envisioned. 

 

Revisiting the First Amendment

The First Amendment is often inconvenient.  But that is beside the point.  Inconvenience does not absolve the government of its obligation to tolerate speech.
            Supreme Court Justice Anthony Kennedy

Have you ever read the Bill of Rights?  These are the first ten amendments to the Constitution that were intended to mollify the Anti-Federalists who opposed a government with a stronger federal authority.  It is an amazing experience to read what our Founding Fathers considered important and a necessity to include in our founding document.  Almost as amazing as what is said is what is not enumerated within the Constitution.  I’ve written on the topic of free speech in the past but never have the times called for an explanation of what was not said in the First Amendment. 

Recently, in the National Review, editorialist Jim Geraghty reminded readers of the first time some folks around the world threw their hands up in outrage over “blasphemous” language in the form of Salman Rushdie’s The Satanic Verses.  He posted within his article a video of a Saturday Night Live skit where Phil Hartman and Glenn Close play Barnes and Noble employees fighting off an angry mob with machine guns and evasive maneuvers to continue selling books.  A “dying” Hartman declared that perhaps they should only sale Muslim literature or have “Ayatollah birthday sales.”  Among the laughs and the wincing, it occurs to the viewer that there was a time where we answered this kind of outrage with a reaffirmation of our belief in freedom of speech or expression. 

However, the intended limitation to freedom of speech is not limited to a handful of extremists.  Some Americans have wondered about the protection of speech when it comes to a group of horrid people, members of a “church” out of Topeka, Kansas who protest the funerals of soldiers with the most despicable slogans aimed at the military and homosexuals.  In 1969, the Supreme Court ruled that the racist rant of a KKK leader was protected because it was not designed to call for immediate violence.  In 1995, the Court ruled that the South Boston Allied War Veterans Council were not required to allow the Irish American Gay Group of Boston to march with them in a private parade because doing so would violated the veterans’ freedom of speech by forcing them to espouse something with which they disagreed.  In 1989, the Court ruled that a Texan named Gregory Johnson was within his constitutional rights to burn the American flag.  Two decades earlier, the Court protected students protesting the Viet Nam War with a black arm band in school. 

Throughout our history, we’ve struggled with the consequences of our national convictions and we’ve struggled to live up to the best intentions of our forefathers.  We’ve been tasked with, as Americans, to accept the notion that freedom of speech must apply to those things we don’t like more than anything else.  Indeed, we have no such freedom if it only applies to that speech we find acceptable.  When we stand against someone like the Phelps family in Topeka, we worry about the soldiers, their families and gay men and women who serve as a foil for twisted minds and blackened hearts.  Therefore, we say to ourselves, there must be something that we can do to prevent such speech.  We see violence throughout the world over movies or cartoons and we worry about the American families who have lost loved ones or the Muslim families who huddle in the dark, hoping for the light of tolerance and rationality – for themselves and the ignorance of others who seek to besmirch them.

Roman senator and historian Tacitus said, “The more corrupt the state, the more it legislates.”  From the past, comes a warning.  We, as a nation, must have the security in our own beliefs and our own ideas to not only tolerate the repugnant but to explain our ideas in the spirit it was intended and not shrink from them.  When some might say, “this should not be allowed,” we must make the case that a freedom for our friends only is no freedom at all.  The more conditions we place on such an inalienable right, the more the government legislates and decides for us what is and is not acceptable.  We will continue to surrender our rights until one day, no one may speak and the tyranny that Americans have feared since the days of Thomas Jefferson and Alexander Hamilton will ultimately destroy us. 

 

There is Still a Pulse for the Opposition

Yesterday, the Supreme Court, in a convoluted 5 to 4 decision, upheld the president’s landmark domestic initiative – the Affordable Care Act.  In doing so, the chief justice, John Roberts, stated that the core part of the act, the individual mandate, was constitutional – not as a mandate but as a tax.  In doing so, the president won the battle over the measure but might have lost the war.  In the Supreme Court’s decision, it might have fired up the forces against the health legislation in the lead up to the general election on 6 November 2012.   

Since the passage of the Affordable Care Act, forces have marshaled against the law.  The first and most prominent of these forces were the Democrats whose party unilaterally pushed the bill through.  Very few Democrats have mentioned the historic health law since its passage and many who were its most ardent supporters went down in defeat in the 2010 mid-term elections.  As we near the general election, more Democrats have distanced from the president and his policies as a growing number have denounced the health law.  The governor of Missouri, Jay Nixon, a Democrat, has openly challenged the president’s health law in the face of a state vote rejecting the individual mandate and a populace, who 70% of, disapproves the law.  

Prior to yesterday morning when the president acknowledged the victory he earned from the Supreme Court, it was difficult to find an instance where he championed the health care law to a national audience.  He will often speak on the measure at controlled events but seldom nationally.  It is here that the Republicans and Democrats who oppose the health law could find an opening.  First, the president and his supporters spent much of the lead up to the bill’s passage rejecting the notion that the mandate was a tax.  When the Court ruled the individual mandate constitutional as a tax, it invalidated the administration’s arguments over the last three years.  Even the chief justice’s rational, that it was not the Court’s job to rescue the population from their political decisions, hint at the problematic nature of the law and its mandate – its funding.  As a tax, it is the largest tax increase devised.  It is hard not to make political hay out of this.   

There are large problems with the Court's declaration of the mandate as a tax.  In dissent, Justice Anthony Kennedy suggested the Court did not interpret but rewrote the law with the switch in language.  Furthermore, beyond the difficulties it places upon the administration, it represents a problem as a tax.  Is a tax a tax if it did not originate within the House of Representatives, the only political body the Constitution says can create tax legislation?  At best, it represents a multifarious constitutional labyrinth to navigate before the law can be fully vetted.  This does not include the many other issues that are bound to emerge as the law, which many Democratic leaders confessed they had not read in full, comes into effect.

The biggest silver lining could be the injection of energy and purpose it gives conservatives.  The justices themselves encouraged the reaction by saying, 7 to 2, that the federal government could not punish or threaten states to participate in the program.  As states and activists digest this bit of information, the decision will drive some Democrats, if not to Mr. Romney, then away from President Obama.  The health care law, which Rep. Nancy Pelosi (D-CA) said would have to go into effect to understand it completely, is so unpopular that had the Supreme Court struck it down, it would have lessen the urgency to vote.  Now, conservatives that have been a bit lukewarm towards Mr. Romney have a renewed motivation to vote this November.

As I’ve said before, Americans often define their freedom and liberties by the amount of choices they have.  The Affordable Care Act takes away many of those choices and puts them in the hands of the government.  Governments in general have difficulties in effectively and efficiently running industries.  Former presidential candidate Barry Goldwater, the senator from Arizona, once said that a government big enough to give you everything you want is big enough to take it all away.  When deciding on 6 November, it would behoove Americans to remember that.

The Court Takes on the Arizona Immigration Law

Last week, the Court heard arguments regarding the controversial Arizona immigration law that required people in Arizona, upon police instructions, to show proof of residency.  The case has political implications as well.  If the Court rules in favor of the law, it could be the second major defeat of an Obama administration measure (assuming the health care measure also loses in the Court).  If the Court rules against the law, it could force Mitt Romney to be more vocal about the need for comprehensive and federal-dedicated measures to stop the flow of illegal immigrants at a time when he is trying to tone down the rhetoric to win over more Hispanic votes.  However, as usual, these conversations have deeper complexities that I would like to discuss. 

I’m not too far removed from the old country myself and as a historian, I’m intensely interested in immigration history.  Therefore, I think I’m speaking from a certain level of sympathy and understanding.  Additionally, our struggles with immigration (illegal or otherwise) are also being experienced throughout Europe as well.  If anything, the difficulties in countries like Germany shadow the U.S. struggles.  However, states like Arizona are taking a harder line, themselves hardened by years of problems stemming from the large presence of Latin American immigrants.

I have a bit of a different take on the issue.  I spent seven years teaching in a predominantly Mexican-American school.  From time to time, we discussed immigration.  My students were torn – those whose family entered the country legally were miffed at having waited the time required, paid the money ordered, dotted the I’s and crossed the T’s and arrived here legitimately.  They were irritated that illegal aliens had foregone all of that and broke the law in their first step into their new country. 

 

However, all that said, it might be a moot point and that too might affect the election.  The Pew Institute (www.pewresearch.org) released some startling information about the flow of Mexican and Latin American immigrants into the United States.  The Institute said that Mexicans are leaving more than entering into the United States due to a variety of reasons; among these are the recent economic issues and stricter anti-illegal immigration measures.  However, things are transpiring in Mexico that is also affecting the number.  First, the Mexican economy is doing quite well, certainly growing at a larger rate over the last five years than what is seen in the U.S.  From 1980 to 2010, the Mexican per capita gross domestic product has risen 22%.  A sign of a growing prosperity (in any country, let alone Mexico) is that the fertility rate has dropped dramatically.  In 1970, the rate was 7.3 per woman – compared to 2.4 in 2009.   

The Pew Institute went further in suggesting we will never see the numbers of Mexicans coming across the southern border like we have in the past.  Yet, it still leaves a perplexing question.  What should we do with future and current illegal immigrants?  During President Bush’s first term, he suggested the concept of an amnesty program and while he was torched by Republicans, the Democrats said nothing in support of a plan they have suggested since.  Others have suggested the punitive measure of hunting down and deporting illegal immigrations as President Dwight D. Eisenhower did in the aftermath of the bracero program after World War II.  That plans sounds like it would cause more problems than it would fix.   

However, what can be done, in the course of official business, is to ask people to show their identification.  I’ve traveled a bit and in every country I’ve been to, I’ve understand that I must show identification upon request by officials, including police.  To suggest that such a program would be inherently racist and lead to profiling, is assuming that America’s police and government officials are inherently corrupt and ambivalent to their obligations and duties.  It must be a hard way to go through life. 

The Court Takes Center Stage

As a government teacher, among other subjects, there is nothing like discussing and analyzing Supreme Court decisions. For my students, it is a no brainer because the Court and its cases represent the most controversial issues of its day. How can that not grab their attention and bring them in? Last week, the Court heard The Department of Health and Human Services v. Florida, et. al. and in doing so, stepped into one of the most contentious issues of the last decade. My students have opinions but they are their parents’ opinions. However, they are beginning to learn that they are not just watching a court case but a battle over the meaning and intent of our Constitution and our Founding Fathers.

As I’ve mentioned before, I give no hint to my political persuasion in front of my classroom but on this blog, I can flex my ideological muscles a bit. A few years ago, my school hosted some German students as part of a two week home exchange. This was around the time of the initial debate over what would be the Affordable Care Act, passed in the waning hours of 2009. These German students were sharp and very politically aware and since I was the history/government teacher, their teacher asked me to visit with the group to discuss the matter and explain the various sides of the issue. In particular, the teacher, who knew me and knew my attitudes, wanted her students to understand the opposition to the then-bill. Since they came from a country that accepts the notion of nationalized health care as a matter of course, they were confused about the objections.

When the Court heard arguments from the Solicitor General over the idea of the individual mandate, the justices were rather rapid-fire in their questions. The reason for so much attention to the idea that all Americans would be mandated to buy insurance is that it infringes upon a basic notion Americans have had since its inception. I told the German students that Americans have often defined freedom by the amount of choices they have. Throughout our history, we have balked at mandates, economic and otherwise. It dates back to the British mandating taxes, adherence to commerce restrictions and fealty to the Crown. I further explained that any time the government proposes taking choices from Americans, it has, as Justice Anthony Kennedy said last week, a heavy burden of justification. It is here where the law could meet its Waterloo.

When the Germans asked about those that cannot afford health care or insurance, I re-emphasized the point that programs exist for those individuals but these programs need a greater responsiveness by the government and more financial commitment. It was important that they understood that objection to the president’s plan did not equate to a heartlessness towards those who cannot afford health insurance, no matter the attempts, then and now, of the program’s supporters to propagate.

The president recently questioned the Court’s right to rule his plan unconstitutional and it does nothing to serve his cause. It also furthers the perception that he considers himself a bit above the process and the Constitution. The Constitution was not written to empower the federal government. It was written to limit the federal government. It is my assessment that the Affordable Care Act is, at least partially, unconstitutional. The Court will render its opinion by early June.

Hosanna-Tabor Church v. EEOC

When is the melding of church and state ok? It could be decided soon by the Supreme Court. The Court, recently reconvening, is considering the case of Cheryl Perich, a former teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan. She began her “official” capacity in the church as a lay person and later, as a faculty member of both secular and religious instruction. She even conducted chapel for the students from time to time. She fell ill in 2004 and was diagnosed as having narcolepsy, a condition that impacts sleep patterns and can caused involuntary sleeping during the day or at normal times of alertness. When she returned to the church, they had hired another to take her place. When she threatened to sue, the church stated that the potential litigation violated church beliefs that issues should be settled within, not from without, the church. If she pursued such action, she would be fired. She did and she was. Ms. Perich is declaring she was fired for threatening to “blow the whistle” by suing and she is being supported by the Equal Employment Opportunity Commission (EEOC).

Most forceful in his initial impression of the case was the most senior member of the Court, Justice Antonin Scalia, who declared that the government had no business in determining the interest of the church. There is quite a bit of evidence to support this. Many court decisions have stated that the 14th Amendment’s Equal Protection Clause and an exemption in the EEOC regulations does not apply to church matters. For instance, the Catholic Church’s position of not allowing women as priests has never been challenged, a point that Justice Samuel Alito brought out in opening arguments.

As recently as 1993, the Court has ruled on the nature of government interference in church practices. In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Santeria church in Hialeah, Florida was conducting animal sacrifices. The city, in an attempt to convince the newcomers they were not welcomed, passed several ordinances limiting to practice of animal sacrifice. The Court ruled in favor of the church, 9:0 with Justice Anthony Kennedy writing for the majority. In his decision, Justice Kennedy said the ordinances were unconstitutional because they singled out the Church of Lukumi Babalu Aye. Justice Kennedy weighed in also on Ms. Perich’s case, saying he doubted the success of the claim. The argument could be made that, absent of other instances of government involvement of church affairs, the Lutheran church is also being singled out.

There is also judicial precedent on the idea that religious ideas can conflict with civil law. In Boy Scouts of America v. Dale (2000), the Court ruled 5:4 that a former scout leader, who was dismissed because he was gay, could not sue the Boy Scouts. As a private organization, if it were forced to accept James Dale as a leader, its first amendment rights would be violated. The organization would be forced to send a message to its members of acceptance that goes against its core beliefs and values. For the Court to recognize Ms. Perich’s lawsuit would be to violate the core beliefs of the Lutheran Church.

This case is not about wrongful firing but whether the state can dictate who serves in a religious capacity. What is the proper course of action? As much as it is not the purview of the church to interject itself in the business of governance, so it should not be the purview of the government to interpret, rule on or interfere with the business of the church. The dictates of the faith are paramount and must be protected in a country that purports freedom of religion.