Sheridan: Con-Law

AMERICAN TALIBAN

"Taliban" means "authority," religious authority imposed on an unwilling population. We're fighting Taliban insurgents in Afghanistan. We don't like them. Taliban is a word for a bad thing.

Over there, it means the imposition of sharia, Islamic law, cut off your hand for stealing, stoning lovers, keeping women veiled and in their place. We have people here, Christian people, allegedly, who want to impose their Christian morality on the rest of us.

We thus have our own taliban, Christian style. What happens if you are a Christian in name only, or plenty Christian but not that brand where they want to tell the rest of the world how to live, whether they like it or not? Or not Christian at all? Jewish, say.

Do we have to fall line? What if we don't?

Do we get stoned?

That's what Markos Moulitsas is concerned about.

He writes a popular blog, the Daily Kos.

The item below appeared in today's S.F. Chronicle, sfgate.com:

Article:'American Taliban' wrapped in the flag:/c/a/2010/09/26/EDUJ1FIVOP.DTL

Article:'American Taliban' wrapped in the flag:/c/a/2010/09/26/EDUJ1FIVOP.DTL

Article:'American Taliban' wrapped in the flag:/c/a/2010/09/26/EDUJ1FIVOP.DTL

Article:'American Taliban' wrapped in the flag:/c/a/2010/09/26/EDUJ1FIVOP.DTL

'American Taliban' wrapped in the flag Markos Moulitsas San Francisco Chronicle September 27, 2010 04:00 AM Copyright San Francisco Chronicle. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. Monday, September 27, 2010 Conservatives are fond of saying that "liberals want the terrorists to win." In fact, that has been a staple attack line since 9/11. But that has always been a ludicrous notion. I oppose regressive Islamic fundamentalists for the same reason I oppose regressive conservatives - because whether it's their violent tendencies, views on women and gays, hostility to science and knowledge, or fear of pop culture, they're cut from the same ideological cloth. Like their reactionary counterparts in the Middle East, the American Taliban fetishize guns and weaponry. In fact, President Obama's election has fueled an ammunition shortage that persists to this day. As myriad ideologically motivated violent incidents attest (such as the assassination of Dr. George Tiller, or the plane flown into the side of an IRS building in Dallas), they aren't afraid to cross that line. Heck, you have a top-tier Republican Senate candidate - Sharron Angle in Nevada - declaring that if Republicans don't take control of Congress, then "Second Amendment remedies" will be necessary. She's talking about revolution. Why the anger and violence? Because the American Taliban seek to impose their rigid mores on a country that is generally uninterested. Most Americans value a woman's equal role in society. They value the freedoms enshrined in our Constitution, including freedom of (and from) religion. They value open discussion and honest debate and our freedom to dissent. They value tolerance. And even where they fall short, such as marriage equality, they are more squeamish than hateful, and public sentiment is quickly moving the right way. So when the American Taliban demonize efforts to build a Muslim community center at an old Burlington Coat Factory two blocks from ground zero, that is un-American and speaks to bigotry and intolerance. When they pass around Psalm 109 ("Let his days be few, and let another take his office. May his children be fatherless and his wife a widow") amid much chuckling, that speaks to a violent outlook that is un-American. When a top cleric in the American Taliban, the late Jerry Falwell, says that feminists "just need a man in the house. That's all they need. Most of the feminists need a man to tell them what time of day it is and to lead them home," well, that is un-American. When they create an entire alternate reality chock full of conspiracy theories like "Acorn stole the 2008 elections" and "Obama is a socialist Kenyan communist who wants to throw conservatives into Fema-run concentration camps," well, that disregard for truth and knowledge is un-American. And when you have the Republican candidate for Senate in Delaware, Christine O'Donnell, saying people shouldn't masturbate and that if she had the power, she would stop people from having sex, well, that kind of meddling in people's private lives is very, very un-American. As unappetizing as the comparison might be to some, fact is, the reason I do not want the terrorists to win is the same reason I do not want American conservatives to win. Markos Moulitsas, founder of Daily Kos and author of "American Taliban" (PoliPoint), will appear at the Commonwealth Club 6:30 tonight. For more information, go to commonwealthclub.org. This article appeared on page A - 12 of the San Francisco Chronicle

FEDERALISM

After the thirteen British colonies staged a successful revolution under Gen. George Washington in order to break away from the mother country, they called themselves states and were bankrupt.  Alexander Hamilton, an aide to Washington during the war and captain who led the charge against Cornwallis's troops at Yorktown to end the war, realized something needed to be done.  Representing the new state of New York, he called for a conference among the thirteen states.  Only five sent representatives to the meeting at Annapolis, Maryland.  Things were getting desperate, so he kept working at getting the states to cooperate.  

The next year, 1787, all thirteen sent delegates to a convention in Philadelphia to revise the Articles of Confederation.  That's what they started out doing, anyway.  As it happened, Hamilton and others realized that the Articles were no way to run a country.  In fact, they didn't actually have a country.  What they had was a loose collection of more-or-less cooperating weak former colonies now calling themselves a nation.  This was a delusion.  It had no army, no navy, no treasury, and was broke.  It hadn't paid off the debts accumulated from the very expensive war.  It couldn't borrow.  

The states were taxing each other's goods as they were exported and imported to each other.  They were destroying one another.  As a "compact" each one could veto the proposals of any and all others when they met to do business.  Thus the group needed to save itself while trying to act as a unit.  They needed to agree on an arrangement whereby if enough of them agreed, they all had to go along in a majority rules (or super-majority in some instances) fashion.

At Philadelphia in 1787, the thirteen fledgling states went beyond their brief, meaning they did more than they were asked, or allowed.  Locking the doors and covering the windows to conceal their activity, they set about, that hot summer, to toss out the Articles and come up with an entirely new governing arrangement under a new plan, called the U.S. Constitution.

"What have you given us, Dr. Franklin?" a woman famously asked the wealthy printer, writer, publisher, scientist, statesman, and "first American," Benjamin Franklin.  The man was truly amazing.

"A republic, if you can keep it," he even more famously answered. 

A republic is a government not ruled by a monarch, i.e. a king or queen, as was Britain.

Ours was to be ruled by a Congress consisting of elected representatives, and senators, from each state.

We still have it, over two hundred years later.  Can you imagine writing rules today that will be effective over two hundred years into the future?  The accomplishment of the Framers was astonishing.  We give their basic ideas great respect.  Yet we have to keep tinkering with the specifics of the general principles such as "due process" and the later added (after the Civil War) "equal protection of law" ideas in order to keep them current with circumstances as they change over time.

While the states wanted to establish a union to represent themselves abroad, to provide for the common defense, and to organize their own cooperation with each other, they didn't want to give up their own power to any great extend.  Each wanted to be able to continue to write its own laws, for instance.  Some supported their own religions to the exclusion of others.  This meant that your tax dollars could be spent to support the minister of a religion that wasn't yours.  That's the way it was then.  Did this change?  That's part of the story of America, a discussion for another day.

In order to keep their own power, the states, at what became known as the Constitutional Convention at Philadelphia, 1787, drew up a plan listing which specific powers would be given to the new government, called the "United States of America."  The list appears in Article I, Section 8, Clauses 1-18 as the powers granted to Congress. Clause Eighteen gives Congress the power to enact laws "necessary and proper" to carry out the powers granted in the previous seventeen delegations of power as well as any other powers granted in other parts of the Constitution.  That "necessary and proper" clause, also known as the "elastic clause" because of the ability to stretch it to cover new situations, has turned out to be very important.

One of the major powers not granted to the new central government was the so-called "police power," understood to mean the power to write laws regulating public health, safety, welfare and morals, four big categories.  These would be controlled by the state capitols, not Washington, D.C. (after that was established, which came later).

Any powers not anticipated and thus not written down as included in the Constitution were deemed, in a later set of amendments called the Bill of Rights (ratified 1791, as part of a deal to ratify the 1787 Constitution), to be retained by the states or the people in Amendments Nine and Ten.  These folks were trying to cover all the bases, as the terminology of the later game of baseball, the former national pastime, might describe it.

Once we set up this system of government in which the central government was empowered to establish policy and regulate it certain areas while the states retained the power to do the same in all else, problems inevitably arose when the two conflicted.  To this area of conflict we have given the name "federalism" on the theory that a federation of states that has cooperated to establish an umbrella group to cover them all in certain fields is called a federal republic.

Federalism is studied in schools wherever government is taught, and particularly in law schools where issues of federalism often arise.  The place where such issues are decided is the federal courts system headed by the Supreme Court as the ultimate authority.

If you want to study the subject of federalism, you might want to consult this list of cases and materials compiled by Prof. Marci Hamilton of Yeshiva University Law School for use as a course outline and posted to the Conlawprof Internet list out of UCLA:

Any standard Constitutional Law textbook

Jenna Bednar, The Robust Federation: Principles of Design

Malcolm M. Feeley & Edward Rubin,

Federalism: Political Identity & Tragic Compromise

Michael S. Greve,

Real Federalism: Why It Matters: How It Could Happen

Robert F. Williams,

The Law of American State Constitutions

 

 

        Major Supreme Court cases

National League of Cities v. Usery, 426 U.S. 833 (1976)

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)

United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995

Boerne v. Flores, 521 U.S. 507 (1997)

Printz v. United States, 521 U.S. 898 (1997)

 

Also for the first class, please bring at least one recent media story on a conflict between the federal government and the states.

 

         The Law of American State Constitutions

Chaps. 1-4, 8-11

 

         Feeley & Rubin, Chaps. 1-2 

 

         Feeley & Rubin, Chaps. 3-5

 

        Attend (or watch tape): Employment Div. v. Smith Conference

             Panel on RLUIPA [See Boerne v. Flores, supra.]

INCOME GAP, WEALTH GAP

During a trip to the Philippines (where my wife was born) I was told that the economy was shaped like a small knob at the top, representing the four hundred families, mainly white or descended from the Spanish colonial ascendency, a skinny middle stem representing the nearly non-existent middle class, and a very wide, deep bottom, representing the poor.  These desperate people fried bananas in coconut oil in the gutter in tin cans outside the Supreme Court building in Manila.  I saw a woman trying to make a living repairing the runs in nylong stockings, by hand.  And people cultivating vegetable plants in the median divider in the highway.  And selling cigarettes to motorist, one cigarette at a time, when motorists stopped for a light.  Keep your hands inside the car, we were advised, to avoid losing your wristwatch.

That was the Philippines.

In the U.S, we had an upper class who owned 'capital, ' meaning stock in railroads, shipping lines, banks, insurance companies, Wall Street brokerages, real estate, and the like.  This was the preserve, according to popular legend, of White, Anglo-Saxon, Protestants, WASPS, in other words.  No others need apply.

Greater equality has now set in, with non-Wasps now attending Ivy League universities such as Harvard, Yale, Princeton, Brown, etc.

But the portion of the population that owns the greater portion of the wealth of the country remains the people who have always owned it, the wealthy.

Meanwhile the middle-class is getting squeezed out while the lower class, blacks and other disfavored minorities (Mexican, Puerto Rican, etc.) has trouble making a living during the current Great Recession.

Does this have implications for the structure of our country, sometimes called Constitutional Law?  I think it certainly does.

Here's a discussion of the question as to what it means to have a steadily growing class of the rich and a steadily diminishing population of the middle, and a growing population of the poor who cannot afford to buy, or sometimes rent, a home near where they work, or hope to find work.

ORIGINALISM DEBUNKED. AGAIN.

Originalism is the idea that you can tell what something means by asking the people who made it, such as the text of a document, like the Ten Commandments or the U.S. Constitution.  Unfortunately, Moses is no longer around to guide us, giving rise to a cottage industry of preachers and commentators, all having an axe to grind one way or the other.  Likewise for the Framers of the Constitution. 

Rather than do the hard work of figuring out how their ambiguous writings should govern us according to today's values and circumstances, there is among us a mindset that gives greater legitimacy to what the more or less good folks of 1787 and 1791 thought. 

The problem is that they were no better able to agree on how they should live,much less us over two-hundred years later, than we are. 

Are you willing to write hard and fast rules for the people two-hundred years down the road? 

Won't you seem quaint.

Originalism has become politicized.  The Tea Party Movement, which seems to long for a day that from the distance of two-hundred years may seem a lot simpler, puts its faith in originalism.

Originalism is a disease, a mental disorder of Constitutional interpretation.  Yes, we respect what the Framers wrought, but they made room for inevitable change through the amendment process.  Another conservative, John Marshall, Chief Justice, ruled in Marbury v. Madison (1803) that the U.S. Supreme Court had the power to declare government acts, such as laws and regulations, null and void as being inconsistent with the Constitution, i.e. "unconstitutional." 

That is how we change our constitution on an ongoing basis without the need for constitutional conventions to answer all questions as they arise.  We have the Court, a slow process, but faster than having conventions of three-quarters of the states all the time.

Despite Justice Scalia, the leading Originalist on the Court today, along with Justice Clarence Thomas, originalism can only take one so far.  After that you're on your own, as the Framers never scratched their heads over some problems.  Like the telephone and Internet, perhaps.  But they did write about protecting personal papers and effects from unreasonable government intrusion, quartering of government troops in your house, freedom of conscience and expression, and protection against self-incrimination.  We call these privacy rights.  Justice William O. Douglas wrote, in Griswold v. Connecticut (1964) that this right of privacy protect the right of a married woman to buy, possess and use contraceptive devices for birth control, just in time for the Pill and the so-called sexual revolution, a war in which I tried to enlist but was turned down, more times than I'd like to admit.  That's recruiting for you.

Here's an article by author Ron Chernow from the NYT of 9/24/2010.

***

LIKE many popular insurgencies in American history, the Tea Party movement has attempted to enlist the founding fathers as fervent adherents to its cause. The very name invokes those disguised patriots who clambered aboard ships in Boston Harbor in December 1773 and dumped chests of tea into the water rather than submit to the hated tea tax. At Tea Party rallies, marchers brandish flags emblazoned with the Revolutionary slogan “Don’t Tread on Me” while George Washington impersonators and other folks in colonial garb mingle with the crowds.

Many Tea Party candidates and activists have tried to seize the moral high ground by explicitly identifying with the founders. Sharron Angle, who is mounting a spirited run against Harry Reid for a Senate seat from Nevada with Tea Party support, bristled at Mr. Reid’s contention that she is overly conservative. “I’m sure that they probably said that about Thomas Jefferson and George Washington and Benjamin Franklin,” she protested. “And, truly, when you look at the Constitution and our founding fathers and their writings ... you might draw those conclusions: That they were conservative. They were fiscally conservative and socially conservative.”

The Tea Party movement has further sought to spruce up its historical bona fides by laying claim to the United States Constitution. Many Tea Party members subscribe to a literal reading of the national charter as a way of bolstering their opposition to deficit spending, bank bailouts and President Obama’s health care plan. A Tea Party manifesto, called the Contract From America, even contains a rigid provision stipulating that all legislation passed by Congress should specify the precise clause in the Constitution giving Congress the power to pass such a law — an idea touted Thursday by the House Republican leadership.

But any movement that regularly summons the ghosts of the founders as a like-minded group of theorists ends up promoting an uncomfortably one-sided reading of history.

The truth is that the disputatious founders — who were revolutionaries, not choir boys — seldom agreed about anything. Never has the country produced a more brilliantly argumentative, individualistic or opinionated group of politicians. Far from being a soft-spoken epoch of genteel sages, the founding period was noisy and clamorous, rife with vitriolic polemics and partisan backbiting. Instead of bequeathing to posterity a set of universally shared opinions, engraved in marble, the founders shaped a series of fiercely fought debates that reverberate down to the present day. Right along with the rest of America, the Tea Party has inherited these open-ended feuds, which are profoundly embedded in our political culture.

As a general rule, the founders favored limited government, reserving a special wariness for executive power, but they clashed sharply over those limits.

The Constitution’s framers dedicated Article I to the legislature in the hope that, as the branch nearest the people, it would prove pre-eminent. But Washington, as our first president, quickly despaired of a large, diffuse Congress ever exercising coherent leadership. The first time he visited the Senate to heed its “advice and consent,” about a treaty with the Creek Indians, he was appalled by the disorder. “This defeats every purpose of my coming here,” he grumbled, then departed with what one senator branded an air of “sullen dignity.” Washington went back one more time before dispensing with the Senate’s advice altogether, henceforth seeking only its consent.

President Washington’s Treasury secretary, Alexander Hamilton, wasted no time in testing constitutional limits as he launched a burst of government activism. In December 1790, he issued a state paper calling for the first central bank in the country’s history, the forerunner of the Federal Reserve System.

Because the Constitution didn’t include a syllable about such an institution, Hamilton, with his agile legal mind, pounced on Article I, Section 8, which endowed Congress with all powers “necessary and proper” to perform tasks assigned to it in the national charter. Because the Constitution empowered the government to collect taxes and borrow money, Hamilton argued, a central bank might usefully discharge such functions. In this way, he devised a legal doctrine of powers “implied” as well as enumerated in the Constitution.

Aghast at the bank bill, James Madison, then a congressman from Virginia, pored over the Constitution and could not “discover in it the power to incorporate a bank.” Secretary of State Thomas Jefferson was no less horrified by Hamilton’s legal legerdemain. He thought that only measures indispensable to the discharge of enumerated powers should be allowed, not merely those that might prove convenient. He spied how many programs the assertive Hamilton was prepared to drive through the glaring loophole of the “necessary and proper” clause. And he prophesied that for the federal government “to take a single step beyond the boundaries thus specifically drawn ... is to take possession of a boundless field of power.”

After reviewing cogent legal arguments presented by Hamilton and Jefferson, President Washington came down squarely on Hamilton’s side, approving the first central bank.

John Marshall, the famed chief justice, traced the rise of the two-party system to that blistering episode, and American politics soon took on a nastily partisan tone. That the outstanding figures of the two main factions, Hamilton and Jefferson, both belonged to Washington’s cabinet attests to the fundamental disagreements within the country. Hamilton and his Federalist Party espoused a strong federal government, led by a powerful executive branch, and endorsed a liberal reading of the Constitution; although he resisted the label at first, Washington clearly belonged to this camp.

Jefferson and his Republicans (not related to today’s Republicans) advocated states’ rights, a weak federal government and strict construction of the Constitution. The Tea Party can claim legitimate descent from Jefferson and Madison, even though they founded what became the Democratic Party. On the other hand, Washington and Hamilton — founders of no mean stature — embraced an expansive view of the Constitution. That would scarcely sit well with Tea Party advocates, many of whom adhere to the judicial doctrine of originalism — i.e., that any interpretation of the Constitution must abide by the intent of those founders who crafted it.

Of course, had it really been the case that those who wrote the charter could best fathom its true meaning, one would have expected considerable agreement about constitutional matters among those former delegates in Philadelphia who participated in the first federal government. But Hamilton and Madison, the principal co-authors of “The Federalist,” sparred savagely over the Constitution’s provisions for years. Much in the manner of Republicans and Democrats today, Jeffersonians and Hamiltonians battled over exorbitant government debt, customs duties and excise taxes, and the federal aid to business recommended by Hamilton.

No single group should ever presume to claim special ownership of the founding fathers or the Constitution they wrought with such skill and ingenuity. Those lofty figures, along with the seminal document they brought forth, form a sacred part of our common heritage as Americans. They should be used for the richness and diversity of their arguments, not tampered with for partisan purposes. The Dutch historian Pieter Geyl once famously asserted that history was an argument without an end. Our contentious founders, who could agree on little else, would certainly have agreed on that.

Ron Chernow is the author of “Alexander Hamilton” and the forthcoming “Washington: A Life.”

SKIPPING OVER THE MIDDLE PART

Conlaw discussion is inherently political as much as it is legal.  It's also philosophical, logical, illogical, repetitious, sometimes obscure, and a lot of other things.  Presumably this is because it's a big complicated body of data dealing with many different situations and contexts over centuries of time.

Just because we take for granted, today, that some things are evil, slavery for instance, doesn't mean that at one time it was quite controversial with many people taking the position that it was not only good but ordained by God, because of uncritical biblical references.

We often see people arguing, in reference to the problems of today, that the Framers (i.e. the draftsmen of the Constitution in Philadelphia, in 1787, and Madison (who was assigned the task of drafting the Bill of Rights, ratified in 1791, with two left out, leaving ten amendments) understood their text to mean such-and-such, therefore the answer to today's problem should be thus-and-such.

This overlooks the intervening years since, 1787 or 1791, depending on which text we're referring to, the main body or the amendments.  For what has happened in the meantime has been that there have been any number of Supreme Court decisions, starting say, with Marbury v. Madison in 1803, by which the Court has added to or otherwise changed the meaning of various terms of the text of the combined document called the Constitution.

In Gibbon v. Ogden, the famous Steamboat Case, the court in around 1824 defined, or more to the point, redefined 'commerce,' as used in the Commerce Clause (Art. I, Sec. 8, Cl. 3) such that the grant of power to Congress to regulate interstate commerce was held to include running passenger ferries on the Hudson River, a navigable waterway subject to federal regulation, which ran between two states, New Jersey and New York.  Previously, 'commerce' was generally understood to mean trading or selling goods as articles of commerce.  Ferrying passengers was something different.

Although the Civil War may have begun because President Abraham Lincoln refused to see the union dismembered on his watch by the declared secession of the South, and was thus a fight to preserve the union, with the issuance of the Emancipation Proclamation the war turned into something of a moral crusade against slavery and in favor of human rights.  The character of the war had changed.  This was reflected in the so-called Civil War Amendments: 13, prohibiting slavery, 14, providing for equal protection, due process, and citizenship for former slaves and 15, voting rights for freed slaves.  Lincoln's Gettysburg Address declaring that America was about freedom of, for, and by the people represented a new day in America's understanding of itself.  This new understanding was embodied into law in the form of those amendments as the war ended.  T

The Civil War thus represents a new start for America, a pressing of the reset button.  600,000 lives had been lost, a heavy price.

Many subsequent eras had to be lived through before we arrive at where we are today: 

• the post-Civil War era of laissez-faire, robber-baron capitalism (see T.J. Stiles' excellent biography of Commodore Cornelius Vanderbilt portraying how this attitude towards commerce was initially thought radical and liberal, while today we regard it as antiquated and ultra-conservative);
• The rise of the labor movement;
• The reforms against oppressive child and women labor;
• The struggle between capitalism and socialism a la Karl Marx;
• WWI and the development of free speech law;
• WWII and the development of Civil Rights movement and resulting law, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965;
• The incorporation, item by item, of the guarantees of the Bill of Rights, through the Due Process power of the 14th Amendment, to apply against the states;
• The development of the Equal Rights and Due Process guarantees of the 14th Amendment;
• Women's lib and women's rights;
• Family rights;
• Children's rights;
• Gay rights; and more.

So for someone to argue that today's problem can be decided simply by reference to the intent of the Framers (called Orginalism, or Original Intent, of which Justice Scalia is among the leading proponents), skipping over all that has come in between, strikes me as cavalier and willfully blind to intervening, incremental developments.

NO LOST CONSTITUTION

There is no lost Constitution.  If you couldn't find it, I've located it for you.  It's pretty easy to find, in fact.  Try googling "U.S. Constitution."  Or try any bookstore; they sell them for a couple of bucks.  I order them in packs of a hundred and give them to friends.

So much for the document.

Then there are the cases which interpret the provisions of the text and its amendments.  This requires more effort to learn but there are those who go to the trouble.  I've taught the subject at San Francisco Law School (2002-2006) and not only that, have continued the effort along with reading a great deal of history.  It's the only way I know to become acquainted with how we've come from way-back-when to here-and-now.

The true Constitution, it is said, lies deep in men's hearts, men including women, of course.  The language grew before there was an equal rights amendment, ratified in 1868, the Fourteenth.

It seems to me that we're all entitled to wish that our country was morally better, politically better, socially better, economically better, militarily better, etc.  One way to wish for such improvement is to advocate for legal changes toward that end.  But what one is not legitimately entitled to do is to advocate for a wholesale change in the way we govern ourselves as a way of overturning previous decisions of the Supreme Court, the ones we don't like, that is.

Those decisions were hard fought battles that grew slowly over many years.  We shouldn't threaten to overturn those lightly.  Some were the product of the great civil war that cost some 600,000 lives.  The Fourteenth Amendment, again.  The great civil rights movement of the 20th Century grew legally out of the notion in men's hearts that it was fundamentally unfair, or "unAmerican," as we like to say, to deprive men and women of jobs, homes, and the ability to travel using hotel, motel, and restaurant facilities, and beaches and parks, because of the color of their skin, or "race," as we call that.

It's taken great time and effort to make such changes in attitude and practice as we have.  I would oppose any effort that purports to make it easier to deprive individuals of liberty that was hard won.

So the Constitution has not been lost.  It is present for all to see who make the study.

The Constitution is not a bumper sticker upon which you can glance and forget.  The Constitution is a body of ideas that required great study and experience to compose and master.  It remains a work in progress.  It is a process will never end as long as people live and circumstances change.

We need to consider very carefully even small changes, much less big changes such as the proposal to permit states to overrule federal law with which they disagree outside the normal amendment process, which is what the newly proposed Repeal Amendment would allow if adopted.

The "Lost Constitution" idea must stem from a nostalgic longing for a past that never was.  It seems to be the idea that if only some Supreme Court decisions hadn't been decided as they were.  If only the dissenters had prevailed.  But not all dissenters.  Only the conservative dissenters who, by definition were on the losing side, otherwise they wouldn't be in dissent.

So, of one were to compile all of the so-called "liberal" decisions that recognized that certain people had the same freedom as the rest of God's children, despite skin color, that women had the freedom to use their body as they wished, and not as the neighbors preferred, that gays were people, too, and had the same rights under the Constitution as the rest of us, we'd have a portrait of how things are.

Not all conservatives like the way things are.  Some would've preferred to take all the dissents of these great cases such as Brown (race, public school desegretation, integration), Griswold (contraceptives for married couples, liberty, extended to the following landmark cases), Roe (women's right to choose, abortion), and Lawrence (liberty for all, including gays)  and turn the dissents into a new constitution.  That's not a new constitution; that's a rejected constitution, for good reason.  It was tried in the court of public opinion and found wanting.  The nation has moved past its old, unreconstructed, prejudiced ways.  It's too late to go back and revisit old controversies.  The country has become comfortable with the new reality where different backgrounds get along much better than they did, recognizing that difficulties still arise and must be dealt with.  The country will never be perfect, but it can be a lot better than it was.

The proposed Repealer Amendment, allowing 2/3 of the "states" (not 2/3 of the people) to overrule the federal government would bring uncertainty and instability into national affairs, making it even more difficult to enact needed reforms.

Why do I favor a strong national government?  Because the United States of America is my face to the world.  It is seen as strong.  It is strong.  It taxes and spends on military might in a hostile world.  Yes, we don't always use our might as wisely as we could, but this is no argument for weakening the face we show to the world.  Allowing the states the power to overrule decisions or acts of the federal government would represent a major dilution of national power in favor of fractured states.  I don't see how this enhances our stature in the world, do you?

Under such a regime, treaties would be harder to negotiate and ratify and take even longer, as counter-parties wondered whether the national word was any good, considering that not only was Senate ratification required, but the resulting treaty might be overruled by 2/3 of the states. 

Would such an amendment enhance the power of my nation or hobble it? 

Why cripple ourselves in service to the notion that existing decisions would have been better decided according to conservative nostalgia for a world that never was, and to the extent it did, was rejected for unfairness to too many individuals who didn't fit the conservative mold?

NULLIFICATION ANEW

Prof. Randy Barnett, a conservative scholar, together with a co-author from Virginia, has called for a constitutional amendment that would empower 2/3 of the fifty states to nullify ("repeal") any federal law that they dislike. 

He cites the need for this as being, in part, the result of the two "progressive" amendments of 1913, the 16th which created the power to tax income (and thus spend it, just in time for our entry into WWI after the Lusitania was torpedoed by German U-boats) and the direct election of U.S. senators by the voters instead of the suspect state legislators. 

To allow the states to coordinate to permit 2/3 of them to veto federal law is a very bad idea.  The more powerful states could barrage the less powerful states with a media blitz and outright political bribery to encourage them to sign onto the two-thirds bandwagon.  The idea of a federal government would be torn to tatters.  Any existing constitutional law could be overturned simply by the process of working the governors of two-thirds of the states. 

How hard would it have been to obtain the votes of 2/3 of the states to oppose civil rights legislation in the years leading up to the important protections of the 1960s, the Civil Rights Act of 1964 providing for equality in public accommodations (restaurants, buses, parks, beaches, hotels, motels, etc.) and the Voting Rights Act of 1965 which empowered blacks as a political force for the first time?

I see Barnett's proposal as an invitation to mischief amounting to the setting up of a rival power within our existing governing arrangement to make it all but impossible to enact meaningful reform over the long term.  Nullification was a cause of the Civil War.  The South wanted to ensure the continuation of the "peculiar institution" that enslaved four million people.  We get along with their descendants a lot better than we did while enslaving their ancestors.  A great wrong was righted, or started to be righted.  We have a ways to go.

It's taken us over 200 years to achieve what we have, and that has included a bloody civil war that cost 600,000 lives.

The proposed Barnett amendment doesn't do what he implicitly promises, to give power to the citizens.  The states aren't people and they aren't citizens.  They are political entities controlled by voting blocs, not all of which are admirable.  What do you know of voting blocs in smaller states such as Delaware, Maryland, and Rhode Island?  South and North Dakota?  Wyoming?  To name a few of the smaller population states..  I doubt that all of these states together would equal the population of Southern California or New York City.  Yet Barnett wishes to empower these states to repeal federal law that they find inconvenient.  What do the people of N.Y.C. or L.A. have to say about this?  They'll be emasculated by the Barnett Amendment.  

Note that Barnett, and his co-sponsor, do not advocate in favor of empowering voters, only states, a very big distinction.  Given the unequal allocation of federal power to the smaller states, the Barnett Amendment disenfranchises even more individual voters than the current two-senators-per-state provision.  If Barnett wants so much to empower individual voters, why doesn't he come out and call for a reallocation of state lines so that we're divided into equal voting blocs, instead of 50 unequal voting units?  The Repeal Amendment doesn't do anything of the kind.  It's a false remedy for a falsely represented problem.

I want a powerful federal government.  I don't trust states that I have no influence over.  I don't like the current unfair allocation of political power where a state such as South Dakota has a much federal power as California and New York (by having the same number of senators, two) despite the much larger populations of the latter.  I don't want federal power undermined by smaller states that have their own, sometimes backward looking agendas.  Federal power as currently constituted protects far more individuals, minority group members particularly, than smaller states may be willing to entertain.  I see the Barnett proposal as a way to return modern America to its earlier "Know Nothing" roots.  That was the party in the 1840s that opposed immigrants, Catholics, Irish, and anyone else who wasn't white, Anglo-Saxon, and Protestant.  It's taken us much time, trouble and effort to get past that sort of prejudice, and we're still not out of the woods; see the anti-Muslim prejudice which reminds me of the anti-Japanese prejudice here after the Pearl Harbor attack by Japan.

President Andrew Jackson, circa 1832, forced the South, led by Calhoun, to back down over its threat to nullify a much hated tariff.

President Abraham Lincoln fought a civil war (1860 to 1865) to block the principle that some number of states could nullify federal law by seceding from the Union.

Barnett's bill would provide a means for undoing the principle that federal law may not be nullified except by proper amendment to the Constitution.  It may be modified by the Supreme Court, under the power called "judicial review" assumed by the Court as the result of the decision written by Chief Justice John Marshall in Marbury v. Madison (1803).  This, with subsequent decisions, gives the Court the power, as a court, to review acts of the Executive and the Legislature, and the States, to see that they are in agreement with the major guarantees of our liberty as contained in the document which is our Constitution, as amended so far, and as interpreted, so far.

Barnett's amendment simply gives disgruntled litigants and states a new avenue to attack decisions that went against them during the normal litigation process.

I say that we should kill this proposed amendment in the cradle, if possible.

-rs

Barnett's article, appearing in the Wall Street Journal, is here:

• Thursday, September 16, 2010

SEPTEMBER 16, 2010

The Case for a 'Repeal Amendment'

Virginia will consider proposing a constitutional amendment that would allow two thirds of the states to repeal a federal law.

By RANDY E. BARNETT AND WILLIAM J. HOWELL

On Sept. 17, 1787, the U.S. Constitution was signed. The celebration of Constitution Day this year takes on renewed significance as millions of Americans are objecting to a federal government that has bailed out or taken over banks, car companies and student loans while it prepares to take charge of the practice of medicine. Unfortunately, because there is no single cause for this growth of federal power, there is no single solution.

One cause is political, with elected officials promising solutions to social problems that are beyond their power to deliver. Another is judicial, with federal judges who have allowed the Congress to exceed its enumerated powers for so long that they no longer entertain even the possibility of enforcing the text of the Constitution.

Also responsible are two "progressive" constitutional amendments adopted in 1913. Both dramatically increased the power of the federal government at the expense of the states, creating a constitutional imbalance that needs to be corrected.

The 16th Amendment gave Congress the power to impose an income tax, allowing it to tax and spend to a degree previously unimaginable. This amendment enabled Congress to evade the constitutional limits placed on its own power by effectively bribing states. Once states are "hooked" on receiving federal funds, they can be coerced to obey federal dictates or lose the revenue.

The 17th Amendment provided for the direct election of U.S. senators by the voters of each state. Under the original Constitution they were selected by state legislatures and could be expected to restrain federal power. Whatever that amendment's democratic benefits, the loss of this check on the federal government has been costly.

In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional "Repeal Amendment." The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment should not be confused with the power to "nullify" unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president's veto power.

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.

Americans revere their Constitution but have also acted politically to improve it. The 13th and 14th Amendments limited the original power of states to violate the fundamental rights of their own citizens, while the 15th and 19th Amendments extended the right to vote to blacks and women. The 21st Amendment repealed another "progressive" reform: the 18th Amendment that empowered Congress to prohibit alcohol.

The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.

Perhaps its most important effect will be deterring even further expansions of federal power. Suppose, for example, that Congress decides to nationalize private pension investments. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states will react.

The Repeal Amendment would help restore the ability of states to protect the powers "reserved to the states" noted in the 10th Amendment. And it would provide citizens another political avenue to protect the "rights . . . retained by the people" to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.

Mr. Barnett is a professor at the Georgetown University Law Center and author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton 2005). Mr. Howell is the Speaker of the Virginia House of Delegates.

Copyright 2009 Dow Jones & Company, Inc. All Rights Reserved

CONFESSING TO A CRIME, BUT INNOCENT

http://tinyurl.com/27uqjpy

The accused, innocent (and later hanged), neighbor women of Salem, 1692, confessed to being witches, that is, a person "in league with" the Devil, Satan, the Evil One; God's evil twin.

The problem is that there was no Devil, and no God either, truth to tell, but why get into another of our hang-ups.  But we hanged the women anyway, just in case, to serve as a warning against any other innocent women joining the Devil's League, now called the NFL.

Why did these women confess to something they knew was false?

They were arrested, jailed, threatened with death, and told that if they confessed, they'd be spared and would see their husband and children again.  Henry Miller wrote a play about it, called "The Crucible."  A crucible is a hot-pot, laden with lumps of metal needing to be melted down into a liquid for re-forming after cooling into a mass again.

Put a suspect alone into a room with zealous cops who think it's their job to prove that the person they arrested is the culprit and the game begins, which the suspect can only lose, unless he keeps his mouth shut except to demand a lawyer.  See the remains of Miranda.

Well, now Professor Brandon L. Garret of the University of Virginia Law School has studied a few of the modern cases where coerced confession has resulted in false conviction and concluded that the police often provide details of what they're looking for during the process of inquiry, thus tipping off the suspect as to what they're expecting to hear.  His compilation is here.  When he feeds it back to them, they're expecting to hear it, are predisposed to believe it, and take it as corroboration of the theory they were working on, no matter how erroneous it is.  This has aspects of a magic show, where the audience is not able to see the preparation and execution of the plan designed to fool, making it impossible for the audience to dispel the illusion.

We don't always know, or remember, the verbal and gestural clues we give when interrogating children and others subordinate to us in terms of the discussion.

A client in a business dispute was concerned about a competitor in the trucking business, whose name he mentioned once.  Weeks later, in a follow-up discussion, I mentioned that he needed to watch out for, and here I mentioned the name of the competing trucking company.  The client appeared dumbstruck.  "How did you know about them?" he asked, indicating that it was this group that had him sleepless at night.

He'd forgotten that he'd told me.  I used what he told me to make a point, succeeding more than I'd intended.  He might've thought that I was a mind reader when all I did was to be a good listener with a decent memory for things that seemed of some importance.

Children see how their parents react to certain information.  Mother may react with horror at the mention of Dad's relatives.  Child learns who is good and who is bad, or in ill-favor.

Children do this before they learn to speak.   Some relatives get hugs and others frowns.  It's not necessarily a verbal thing.  Infants read parents by feel and body language.  There's a difference, to a nursing baby, between a relaxed mother and a tense, anxious mother.  No words need be uttered and the child understands.

BREYER'S BOOK

"Making Our Democracy Work:  A Judge's View"

Stephen Breyer, Associate Justice of the U.S. Supreme Court, has written another book on what he's doing there.  The first, "Active Liberty," was a little difficult to get one's head around.  Abstract legal principles are fine, but for enjoyable reading, it helps to anchor them to crises in people's lives.

Let's hope the current one, discussed on NPR, above, is a little more concrete. One of the questions he seems to address, according to the discussion, is whether the Constitution is a "living document," meaning subject to ongoing interpretation in light of new circumstances, or whether, as Justice Scalia thinks, it is a fixed menu, not subject to the creation of new rights.

Breyer uses an interesting metaphor to describe the Court's function:  it serves as a sort of Border Patrol among the competing major legal doctrines embodied in our Constitution, riding herd on 300 million cats, deciding where the line is between two or more conflicting legal doctrines, such as government power and individual freedom, to give the most basic as an example.

I look forward to reading it.

VEILED THREATS

Excellent commentary on freedom of conscience and religious liberty in Western democracy, using the ban-the-burqa movement in Europe as its starting point, by Martha Nussbaum.

And don't forget to see her follow-up piece, "Beyond the Veil."

July 11, 2010, 5:35 pm

Veiled Threats?

By MARTHA NUSSBAUM

The Stone is a forum for contemporary philosophers on issues both timely and timeless.

Tags:

Discrimination, equality, Human Rights, Islam, muslim veiling, Philosophy, religion, women

In Spain earlier this month, the Catalonian assembly narrowly rejected a proposed ban on the Muslim burqa in all public places — reversing a vote the week before in the country’s upper house of parliament supporting a ban. Similar proposals may soon become national law in France and Belgium.  Even the headscarf often causes trouble.  In France, girls may not wear it in school.  In Germany (as in parts of Belgium and the Netherlands) some regions forbid public school teachers to wear it on the job, although nuns and priests are permitted to teach in full habit.  What does political philosophy have to say about these developments?   As it turns out, a long philosophical and legal tradition has reflected about similar matters.

What is it to treat people with equal respect in areas touching on religious belief and observance?

Let’s start with an assumption that is widely shared: that all human beings are equal bearers of human dignity.  It is widely agreed that government must treat that dignity with equal respect.   But what is it to treat people with equal respect in areas touching on religious belief and observance?

We now add a further premise: that the faculty with which people search for life’s ultimate meaning — frequently called “conscience” ─  is a very important part of people, closely related to their dignity.   And we add one further premise, which we might call the vulnerability premise: this faculty can be seriously damaged by bad worldly conditions.  It can be stopped from becoming active, and it can even be violated or damaged within.  (The first sort of damage, which the 17th-century American philosopher Roger Williams compared to imprisonment, happens when people are prevented from outward observances required by their beliefs.  The second sort, which Williams called “soul rape,” occurs when people are forced to affirm convictions that they may not hold, or to give assent to orthodoxies they don’t support.)

The vulnerability premise shows us that giving equal respect to conscience requires tailoring worldly conditions so as to protect both freedom of belief and freedom of expression and practice.  Thus the framers of the United States Constitution concluded that protecting equal rights of conscience requires “free exercise” for all on a basis of equality.  What does that really mean, and what limits might reasonably be placed upon religious activities in a pluralistic society?  The philosophical architects of our legal tradition could easily see that when peace and safety are at stake, or the equal rights of others, some reasonable limits might be imposed on what people do in the name of religion.  But they grasped after a deeper and more principled rationale for these limits and protections.

Here the philosophical tradition splits.  One strand, associated with another 17-century English philosopher, John Locke, holds that protecting equal liberty of conscience requires only two things: laws that do not penalize religious belief, and laws that are non-discriminatory about practices, applying the same laws to all in matters touching on religious activities.   An example of a discriminatory law, said Locke, would be one making it illegal to speak Latin in a Church, but not restricting the use of Latin in schools.  Obviously, the point of such a law would be to persecute Roman Catholics.  But if a law is not persecutory in this way, it may stand, even though it may incidentally impose burdens on some religious activities more than on others. If people find that their conscience will not permit them to obey a certain law (regarding military service, say, or work days), they had better follow their conscience, says Locke, but they will have to pay the legal penalty.  A modern Lockean case, decided by the U. S. Supreme Court in 1993, concerned an ordinance passed by the city of Hialeah, Fla., which made “ritual animal sacrifice” illegal, but permitted the usual ways of killing animals for food.  The Court, invalidating the law, reasoned that it was a deliberate form of persecution directed at Santeria worshippers.

Erin Schell

Another tradition, associated with Roger Williams, the founder of the colony of Rhode Island and the author of copious writings on religious freedom, holds that protection for conscience must be stronger than this.  This tradition reasons that laws in a democracy are always made by majorities and will naturally embody majority ideas of convenience.  Even if such laws are not persecutory in intent, they may turn out to be very unfair to minorities.  In cases in which such laws burden liberty of conscience ─ for example by requiring people to testify in court on their holy day, or to perform military service that their religion forbids, or to abstain from the use of a drug required in their sacred ceremony ─ this tradition held that a special exemption, called an “accommodation,” should be given to the minority believer.

Do the arguers really believe that domestic violence is a peculiarly Muslim problem? If they do, they are dead wrong.

On the whole, the accommodationist position has been dominant in U. S. law and public culture ─ ever since George Washington wrote a famous letter to the Quakers explaining that he would not require them to serve in the military because the “conscientious scruples of all men” deserve the greatest “delicacy and tenderness.”  For a time, modern constitutional law in the U. S. applied an accommodationist standard, holding that government may not impose a “substantial burden” on a person’s “free exercise of religion” without a “compelling state interest” (of which peace and safety are obvious examples, though not the only ones).   The landmark case articulating this principle concerned a woman, Adell Sherbert, who was a Seventh-Day Adventist and whose workplace introduced a sixth workday, Saturday.   Fired because she refused to work on that day, she sought unemployment compensation from the state of South Carolina and was denied on the grounds that she had refused “suitable work.”  The U. S. Supreme Court ruled in her favor, arguing that the denial of benefits was like fining Mrs. Sherbert for her nonstandard practices: it was thus a denial of her equal freedom to worship in her own way.  There was nothing wrong in principle with choosing Sunday as the day of rest, but there was something wrong with not accommodating Mrs. Sherbert’s special religious needs.

I believe that the accommodationist principle is more adequate than Locke’s principle, because it reaches subtle forms of discrimination that are ubiquitous in majoritarian democratic life.  It has its problems, however.  One (emphasized by Justice Scalia, when he turned our constitutional jurisprudence toward the Lockean standard in 1990) is that it is difficult for judges to administer.  Creating exemptions to general laws on a case by case basis struck Scalia as too chaotic, and beyond the competence of the judiciary.  The other problem is that the accommodationist position has typically favored religion and disfavored other reasons people may have for seeking an exemption to general laws.  This is a thorny issue that requires lengthy discussion, for which there is no room here.  But we don’t need it, because the recent European cases all involve discriminatory laws that fail to pass even the weaker Lockean test.  Let’s focus on the burqa; arguments made there can be adapted to other cases.

Five arguments are commonly made in favor of proposed bans.  Let’s see whether they treat all citizens with equal respect.  First, it is argued that security requires people to show their faces when appearing in public places.  A second, closely related, argument says that the kind of transparency and reciprocity proper to relations between citizens is impeded by covering part of the face.

What is wrong with both of these arguments is that they are applied inconsistently.   It gets very cold in Chicago – as, indeed, in many parts of Europe.  Along the streets we walk, hats pulled down over ears and brows, scarves wound tightly around noses and mouths.  No problem of either transparency or security is thought to exist, nor are we forbidden to enter public buildings so insulated.  Moreover, many beloved and trusted professionals cover their faces all year round: surgeons, dentists, (American) football players, skiers and skaters. What inspires fear and mistrust in Europe, clearly, is not covering per se, but Muslim covering.

A reasonable demand might be that a Muslim woman have a full face photo on her driver’s license or passport.  With suitable protections for modesty during the photographic session, such a photo might possibly be required.  However, we know by now that the face is a very bad identifier.  At immigration checkpoints, eye-recognition and fingerprinting technologies have already replaced the photo.  When these superior technologies spread to police on patrol and airport security lines, we can do away with the photo, hence with what remains of the first and second arguments.

A third argument, very prominent today, is that the burqa is a symbol of male domination that symbolizes the objectification of women (that they are being seen as mere objects).  A Catalonian legislator recently called the burqa a “degrading prison.”  The first thing we should say about this argument is that the people who make it typically don’t know much about Islam and would have a hard time saying what symbolizes what in that religion.  But the more glaring flaw in the argument is that society is suffused with symbols of male supremacy that treat women as objects.  Sex magazines, nude photos, tight jeans — all of these products, arguably, treat women as objects, as do so many aspects of our media culture.  And what about the “degrading prison” of plastic surgery?  Every time I undress in the locker room of my gym, I see women bearing the scars of liposuction, tummy tucks, breast implants.  Isn’t much of this done in order to conform to a male norm of female beauty that casts women as sex objects? Proponents of the burqa ban do not propose to ban all these objectifying practices.  Indeed, they often participate in them.  And banning all such practices on a basis of equality would be an intolerable invasion of liberty.  Once again, then, the opponents of the burqa are utterly inconsistent, betraying a fear of the different that is discriminatory and unworthy of a liberal democracy.  The way to deal with sexism, in this case as in all, is by persuasion and example, not by removing liberty.

Once again, there is a reasonable point to be made in this connection.  When Turkey banned the veil long ago, there was a good reason in that specific context: because women who went unveiled were being subjected to harassment and violence.  The ban protected a space for the choice to be unveiled, and was legitimate so long as women did not have that choice.  We might think of this as a “substantial burden” justified (temporarily) by a “compelling state interest.”  But in today’s Europe women can dress more or less as they please; there is no reason for the burden to religious liberty that the ban involves.

A fourth argument holds that women wear the burqa only because they are coerced.  This is a rather implausible argument to make across the board, and it is typically made by people who have no idea what the circumstances of this or that individual woman are.   We should reply that of course all forms of violence and physical coercion in the home are illegal already, and laws against domestic violence and abuse should be enforced much more zealously than they are.  Do the arguers really believe that domestic violence is a peculiarly Muslim problem?  If they do, they are dead wrong.  According to the U. S. Bureau of Justice Statistics, intimate partner violence made up 20 percentof all nonfatal violent crime experienced by women in 2001. The National Violence Against Women Survey, cited on the B.J.S. Web site,  reports that 52 percent of surveyed women said they were physically assaulted as a child by an adult caretaker and/or as an adult by any type of perpetrator.  There is no evidence that Muslim families have a disproportionate amount of such violence.  Indeed, given the strong association between domestic violence and the abuse of alcohol, it seems at least plausible that observant Muslim families will turn out to have less of it.

Related More From The Stone

Read previous contributions to this series.

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Suppose there were evidence that the burqa was strongly associated, statistically, with violence against women.  Could government could legitimately ban it on those grounds?  The U. S. Supreme Court has held that nude dancing may be banned on account of its contingent association with crime, including crimes against women, but it is not clear that this holding was correct.  College fraternities are very strongly associated with violence against women, and some universities have banned all or some fraternities as a result.  But private institutions are entitled to make such regulations; a total governmental ban on the male drinking club (or on other places where men get drunk, such as soccer matches) would certainly be a bizarre restriction of associational liberty.  What is most important, however, is that anyone proposing to ban the burqa must consider it together with these other cases, weigh the evidence, and take the consequences for their own cherished hobbies.

Societies are certainly entitled to insist that all women have a decent education and employment opportunities that give them exit options from any home situation they may dislike If people think that women only wear the burqa because of coercive pressure, let them create ample opportunities for them, at the same time enforce laws making primary and secondary education compulsory, and then see what women actually do.

Finally, I’ve heard the argument that the burqa is per se unhealthy, because it is hot and uncomfortable.  (Not surprisingly, this argument is made in Spain.)  This is perhaps the silliest of the arguments.  Clothing that covers the body can be comfortable or uncomfortable, depending on the fabric.   In India I typically wear a full salwaar kameez of cotton, because it is superbly comfortable, and full covering keeps dust off one’s limbs and at least diminishes the risk of skin cancer.  It is surely far from clear that the amount of skin displayed in typical Spanish female dress would meet with a dermatologist’s approval.  But more pointedly, would the arguer really seek to ban all uncomfortable and possibly unhealthy female clothing?  Wouldn’t we have to begin with high heels, delicious as they are?  But no, high heels are associated with majority norms (and are a major Spanish export), so they draw no ire.

All five arguments are discriminatory.  We don’t even need to reach the delicate issue of religiously grounded accommodation to see that they are utterly unacceptable in a society committed to equal liberty.  Equal respect for conscience requires us to reject them.

[For more on this issue, visit the Times Topics page on Muslim veiling.]

Martha Nussbaum teaches law, philosophy, and divinity at The University of Chicago. She is the author of several books, including “Liberty of Conscience: In Defense of America’s Tradition of Religious Equality” (2008) and “Not for Profit: Why Democracy Needs the Humanities” (2010).