Letting freedom (and common sense) reign

It was just a year ago that I blogged about the Supreme Court’s Hobby Lobby v. Sebelius decision. While not entirely unexpected due to its earlier disastrous Citizens United decision, this decision, which let a “closely held corporation” opt out of the birth control provisions of the Affordable Care Act, still felt like a kick in the groin to us progressives. June can be a very frightening month in the United States since it’s when the court’s most controversial opinions get released.

For 2015 though progressives have much to cheer about, and it’s the conservatives that are furious. This is principally because of two cases decided in the last two days that had seismic impact.

In case you just climbed out of a cave, these were King v. Burwell and Obergefell v. Hobson. In the former, a majority of the court said the Affordable Care Act could not be gutted because of the ambiguity of one section of the law that talked about state health care exchanges. In the latter, a closely divided court decided that no state could prohibit two people of any sex or gender from marrying, and that every state had to recognize same sex marriages issued in other states. In short, gay marriage was instantly legal everywhere in the United States.

If you are a progressive, this makes for a very good week indeed, but it gets even better. Almost ignored was Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The ruling said that even if a housing developer did not knowingly engage in housing bias, it could still be subject to a civil suit for such bias. Apparently, ignorance of the law by housing developers is no get out of a civil suit free card, even though the plaintiffs were hoping it was.

So while the court’s decisions last June were mostly a fright show for us progressives, this year it is mostly a fright show for conservatives. It caps an excellent week for President Obama, who also resurrected his Trans-Pacific Partnership proposal by getting Congress to agree to special rules to enact it with an up or down vote with no amendments by either chamber. For progressives though this was the sour political note of the week. The TPP, or actually the TPA, sort of rose from the dead after we thought we had put a stake through its heart two weeks ago in the House.

Include into the melee the nine people brutally murdered by Dylann Roof last Wednesday at Charleston, South Carolina’s historically black Emanuel AME church in what but only a few of the craziest conservatives agree was a racist act of domestic terrorism. The tragic and horrifying event though had a special power in a way that its perpetrator did not intend. Just a few months after the 150th anniversary of the end of the Civil War, the South seems to suddenly want to actually end it, just in spirit this time. The Confederate flag, even in the South, is no longer cool. Once South Carolina governor Nikki Haley spoke in favor of the removal of the Confederate flag from its special flag post at the state’s capitol, Republican politicians were practically jumping on top of each other trying to agree that Confederate flags everywhere needed to go to museums and stay there. States across the South are anxiously revisiting their previous pride about the Confederate States of America.

Despite Republicans controlling a majority of the state houses and governorships and the U.S. congress, their agenda is being beaten back. It’s not supposed to be this way and in fact in many ways it’s not happening. It’s largely not happening with their increasingly onerous restrictions on abortion rights, or voting rights, or on many other issues. But on some of the issues that animate them the most, like gay marriage and Obamacare, they got bitch-slapped something bad this week. They are furious but largely impotent. If you see someone foaming at the mouth these last few days, it’s probably a Republican.

Whereas progressives like me are kind of stunned by it all, but particularly on the court’s ruling on gay marriage. It’s not its decision that surprised me, but I am stunned by how quickly the nation and the courts evolved on the issue. I wrote in this post back in 2008 that I expected it would take a few more decades for gay marriage to be legal in all fifty states. In the court’s 5-4 decision today, it’s now legal in every state, just seven years later! To put this in perspective, it was just 11 years ago that Massachusetts became the first state to legalize gay marriage. This is a stunningly fast change. Justice Kennedy, writing for the majority in Obergefell v. Hobson, was almost poetic in his writing:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The 14th amendment to the U.S. constitution was the legal rationalization for the decision. It is also known as the “equal protection” amendment. Its citing was not a surprise, but using it as a justification was poetic as well. Here’s why: the 14th amendment was passed after the Civil War to protect the rights of blacks who were no longer slaves. The amendment can be thought of as the “equal means equal” amendment. The Supreme Court simply stated that its ruling was constitutional because otherwise gay, lesbian and transgendered individuals would be denied privileges available to others, which is both the intent and spirit of the 14th amendment. Progressives can feel giddy because had there been no Civil War it’s unlikely that this amendment would have been introduced at all, so it’s quite possible this ruling would never have been enacted. There probably would have been no constitutional rationalization for this decision otherwise, and conservatives would have won the day. In short, you can tie the court’s ruling on gay marriage as a very belated response to the insurrection of the southern states and the apartheid principles that Dylann Roof perpetrated last week.

In the case of King v. Burwell, the Supremes essentially undercut the premise of the self-proclaimed constitutional conservatives on the court. Constitutional conservatives believe that every law must be judged against the original intent of the constitution and it means exactly what it says and nothing more. No less that Chief Justice Roberts, who wrote the majority opinion, explicitly undercut that rationalization. He wrote:

The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well.

Roberts and a majority of the court affirmed, as it has hundreds of times throughout its history, that when a portion of a law erroneously works against its clear intent, then the intent of law is what prevails. It was a ruling that faithfully reflected the will of Congress when the ACA was written, and a majority of the court thus held to the fidelity of the law.

For us progressives, this has been a week of largely good news. It is good news that gays, lesbians and the transgendered have the same marriage rights as heterosexuals. Equal now really means equal. We see it as an expansion of freedom. Strangely, conservatives only want to expand freedoms for those who look and act a lot like they do. Anything else is the overreaching hand of big government at work. Similarly, in the case of the interpretation of the Affordable Care Act, conservatives think that every law should be interpreted literally, whereas the Supreme Court reaffirmed that its rulings should be faithful to the law’s clear intent. These rulings were victories for common sense and for the spirit of the law and constitution.

What goes around though will come around. These court decisions seem to ping between favoring liberal and conservative wings, usually based on Justice Kennedy’s interpretations of the law and the constitution. So it wouldn’t surprise me if in a year from now I will be railing against the court again for their ill-informed judgments. For now though it’s pop the champagne time. Obergefell v. Hobson in particular is a landmark opinion of a scope and breadth rarely seen these days, and whose impact will be strongly felt for decades to come.

When did conservatism become so radical?

Halloween should be rescheduled for the last week of June. This is the last week of the Supreme Court’s annual session and they tend to leave their juiciest and most controversial decisions to the very end. The Supremes did not disappoint this year with two decisions yesterday that should leave sensible people reeling.

I’ll concentrate on the first, Hobby Lobby v. Sebelius and leave the public unions decision Harris v. Quinn perhaps for a future post. In the Hobby Lobby ruling, we got a decision that grants “closely held corporations” religious rights. Previous Supreme Court decisions had already granted corporations personhood status, a preposterous assertion given that corporations do not breathe, have children, die, get checkups, walk, talk or vote. On the latter, given the court’s breathtaking decision in this case, it’s probably only a matter of time before corporations get the right to vote as well. (Given the way the Supreme Court sees these things, they will probably get a number of votes proportional to their status, maybe based on the number of employees.) Justice Alito went so far in his decision as distinguish between corporations as people and actual human beings, “natural persons” as he calls us. You have to ask yourself: WTF? Was he sober when he wrote this?

All this, you see, is to protect the precious rights of the people that own these companies, as if in their role as “natural persons” they don’t already have the right to vote, or to spend their own money on campaigns, or speak out at rallies or take out ads in the newspaper. This means, of course, if you are an executive of a corporation you effectively get twice the rights, but effectively a lot more as you can wield the assets of your company to the extent you have money or can borrow money to speak out as much as you want. The Koch Brothers epitomize the ability of the very moneyed to drown out much of the rest of us. And now because your corporate personhood is so precious, you can also take away the rights of others. Unsurprisingly, certain companies like Hobby Lobby feel the need to screw it to women, which thanks to this decision means that they can prohibit contraceptive coverage from being covered in their health insurance plan. Why? Because it’s against their religion. Like corporations can go to church!

You would think this decision could not possibly make the pigs any “more equal” than the other farm animals (that’s an Animal Farm reference, in case you missed the allusion), but you are forgetting one of last year’s stunner decisions. Almost a year ago, on June 25, 2013 the Supreme Court struck down the heart of the Voting Rights Act of 1965. This law required certain states like Mississippi with a long history of racial discrimination in the voting booth to get preclearance for their voting methods. Mississippi was one of many mostly Southern states to set up more onerous criteria for voting: you had to show an approved photo ID, something that is difficult, expensive and inconvenient if you are poor. The Justice Department didn’t like it, of course, so it nixed the idea, but the state appealed to the Supreme Court. Of course, keeping blacks and minorities from voting was the whole intent of the law in Mississippi. By this decision, the Supreme Court effectively gutted the Voting Rights Act, which was written specifically to get rid of decades of Jim Crow laws that made it hard or impossible for minorities to vote.

So the Supreme Court, which claims to be so concerned about maximizing freedom of speech, gives virtually unlimited speech to corporations which aren’t even human beings while allowing states to make it harder for certain actual human beings, minorities and the poor naturally, to exercise what limited speech they have due to their financial state. In other words, it’s more freedom for those who can afford it, including entities (corporations) that are legal fictions, something Justice Alito in his decision candidly acknowledged. And due in part to last year’s decision, it’s less freedom for those that can’t. This is not surprising from a court that was very plainly equated money with speech. Last I checked, a dollar bill did not have lungs, a tongue and lips.

This is conservatism? This is not radically changing what has worked in the past? I don’t know what word it is, but it is not conservatism. It’s crazy and radical stuff. Rather it was the Supreme Court that inferred that corporations must be treated as people. These latest shocking decisions take this to a further absurd and quite frightening level.

Given that these radicals will be on the court for some time a harder and more permanent solution is needed. It’s already underway but as a practical matter to actually make it happen will require Democrats to have large majorities in both the House and Senate. It is simply this: we need a constitutional amendment that unambiguously states that corporations are not people and only have such temporal rights as Congress deigns to give them. If I were in charge, corporations would be forbidden from giving a dime to any political candidate, any PAC or any group that works to influence public policy on any level whatsoever.

What kind of glue are these conservative justices sniffing? Have they read the preamble of our constitution lately? It simply starts, “We the people”. There is no “We the people and corporations”. That is original intent. The so-called constitutional conservatives on the Supreme Court who voted for these unwise and radical decisions have simply proven the opposite. Instead, they are part of a cancer that is killing our democracy.

Conservatism’s harvest

It is not that, of course; if NATIONAL REVIEW is superfluous, it is so for very different reasons: It stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.

William F. Buckley
November 19, 1955

Granted, the late William F. Buckley’s idea of conservatism as it should be practiced differs substantially from those of our current president, whose approval ratings are now at 28%. Based on ever-rising gas prices, a tanking stock market and increased unemployment his anemic approval ratings are likely to collapse even further before his term expires in January. Still, both Bush and Buckley, like many conservatives, based their conservative philosophy on the assumption that what worked before has value, so change should be resisted.

The problems with conservatism have been borne out in the last eight years and should be plain for all to see. Just because you want societal progress to stop, does not mean that it will. Human behavior is that way. We act like a stream. Sometimes it crests. Sometimes it ebbs. Sometimes the stream overflows its banks. Its currents will transform the land around it. The stream, like society, is ever dynamic and changing. It is only when its image is frozen in our mind that it appears static.

Based on many millenniums of observing our species, we can safely assume that we humans will continue to be irascible folk. We will continue to defy neat categorization. We will continue to do dumb and stupid stuff. We will increase our population beyond the planet’s ability to sustain us. We will fight bloody wars for ethnic, racial and economic reasons. We will also do amazing stuff, like putting our species on the moon, making scientific breakthroughs and generating visionary and inspiring leaders that transform nations and the world.

Law, morals, ethics and governments exist to try to bring order and predictability to human affairs. These artifacts though work only to the extent that they fit within man’s current condition. When they do not they are easily overcome by our natural human behaviors, which on a mass scale can rarely be controlled for long. Moreover, when you try to counteract these natural human forces, the effect is invariably counterproductive. The damage of trying to fit the square peg of the past into the round hole of the present over these last eight years is all around us.

We are witnessing the train wreck of a principled but unworkable ideology called conservatism. Giving tax cuts to millionaires did not raise the boats of the middle classes, any more than it did in the robber baron age. Funding abstinence-only sex education has not reduced teen pregnancy. Voluntary cuts in carbon emissions have not reduced pollution. Freeing the free market further means fewer people are watching for foxes in a much larger and more complex financial henhouse. Proactive wars fought with 20th century tactics make us more insecure and prove financially ruinous. Less government, while potentially emboldening freedom, also means less oversight and exploitation. Its result is a nation that today more resembles a patch of weeds than a garden. What we are witnessing today is simply the natural consequence of conservative government refusing to give any ground to modern realities. We are witnessing that the tactics that worked for us fifty years ago are now foolish and counterproductive.

Why? Because we are not the same people that we were fifty years ago! For one thing, we have roughly doubled the number of us on this planet. This has affected how we think and behave. Increased travel and trade have mixed us up more, allowing us to live less insular and more connected lives. At least in the first world, we are much better educated than previous generations. We are less industrialized and more technology based. We have moved on from the past because the past no longer fits us.

Consequently, when conservatives govern we get huge disconnects. The Supreme Court tells us we have the constitutional right to own a gun even though we have no need for militias and the Indians are unlikely to attack. Today, most of us have a neighbor within shouting distance, not miles away. Not surprisingly when you put more of us closer together and you allow us to have guns, more of us are going to be victims of gun violence.

Effective government must adapt to fit the context of its times or it proves counterproductive. It must address today’s issues with tactics likely to work within the current environment, not with solutions that worked for a different age. Some like to call progressivism a philosophy. It is not. Liberalism is a philosophy. Progressivism is not the least bit ideological. Progressivism is pragmatic. It comes down to this: deal with the reality of what is before you by working with its dynamics rather than against it. As you might expect, I am a progressive.

William F. Buckley spent a career eloquently articulating the case for conservatism. Yet conservatism works only to the extent that its constituents do not change. Feudalism kept society stable and worked for centuries. Modern day feudalism, such as practiced by the Taliban or the Bush Administration, no longer works. One size no longer fits all.

In my fifty years, things have changed enormously. There are times when I too pine for the way things were. The order I perceived in the past provides a feeling of comfort. This is probably because I had few cares. I had my parents to worry about the real world for me and for them it was likely as messy as mine is today. I also know that time has passed forever. I would not now give up my computer, or my cell phone, or my unleaded gas, or my hundreds of entertainment choices to feel this way again. As I age, my world will continue to morph just as it always has.

Conservatism at its roots amounts to the desire to revert everyone to a myopic and unrealistic view of the past that was always more image than reality. Life was simpler for me in 1957 when I was born. However, to get that feeling of simplicity I would not want to return to the era of the Cold War. I would not want the pervasive racism that our country had back then. Nor would I want its pervasive conformity. I would not want my spouse to be a Stepford wife who had few career opportunities beyond that of mother and housewife. I would not want homosexuals to live in shame and in the shadows. I would not want just three television stations (all in black and white) and a few commercial radio stations. I would want the feeling of neighborhood and family connectedness that I had back then. I think we are recreating these for the times that we live in. In today’s world, these feelings are extended toward a larger community in cyberspace. My wife is one of many people whose social circle dramatically expanded with the Internet. Now they are very much her real friends. Fifty years ago, she would never have met any of these people.

We need to realize that while huge changes have occurred in our lifetimes, there have also been huge amounts of progress, much of it for the better. Fewer of us live in poverty. Our health care is better and we live longer and more meaningful lives. Most of us will not spend our final years in poverty. There is less discrimination in the workplace and in society in general. It is easier for us to be, as Martin Luther King prophesized, judged by the content of our character, not by the color of our skin. Barack Obama is a modern manifestation of King’s progressive vision.

We should want the best of both the past and the present, not just the past, and be mindful that what is new can be good as well as bad. I hope that by creating a better present, the future will unfold to be a happier and more enriching experience for all of us. I do know, as you should know also from the past eight years that trying to go back to the way things were done, is very damaging. Like communism, conservatism is one of these great ideas that stimulate the imagination but just do not work in execution. My hope is that after these last eight years, we will, like its great proselytizer William F. Buckley, give it a civil burial and move on.

Bye Bye, Modern Conservatism

The big lesson of The Cold War was that communism was unworkable. It was not that, like a shining city on the hill, it did not have some merits in the abstract. In a way, it was Christianity as Jesus had envisioned it without the Christ. In reality, communism killed millions, most of them fellow communists, in an attempt to prove that its model of governance would actually work inside our culture. It quickly devolved into a dictatorial socialism. Communism still has some adherents, but they are rare. You have to go to places like Nepal and Cuba to find communists these days.

In 2008, we should have learned another lesson: modern conservatism does not work either. The only ones who have not gotten the messages seem to be modern conservatives themselves. No matter how stupid and wrong-headed modern conservatism has proven to be in action they can neither see nor face it.

For six years the conservatives have had carte blanc. You had a conservative president with a rubber stamp conservative Congress. Perhaps the biggest irony of all is that by putting their version of conservatism into practice, they ended up at odds with their own principles.

Conservatives are supposed to believe in limited government. When has the most growth in the federal government occurred lately? During two of our most conservative presidents: Ronald Reagan and George W. Bush. Conservatives believe in giving more power to the states and less to the federal government. Yet Conservatives have been busy doing just the opposite. From intervening in the sad Terri Schiavo matter, to trampling on California’s desire to regulate automobile emissions, to overturning Oregon’s assisted suicide laws, rather than returning power to the people and the states, conservatives have proven they want to increase federal power. They cannot even be conservative about our food and are gleefully approving irradiated meats and encouraging us to consume cloned animals.

Conservatives supposedly believe in freedom from government intrusion into our personal affairs. Yet they have no qualms about allowing the NSA to listen in on our telephone calls without a warrant or to sniff our emails. Conservatives are supposed to believe in human rights, yet it was conservatives who took away some of our fundamental rights. They gave power to the president to lock up anyone he wants to as enemy combatants, including American citizens in the United States, and keep them away from the courts indefinitely.

It is all a ruse. What conservatives really want, and which is true of most politicians, is simply power. They have gone to extraordinary and likely unconstitutional lengths to acquire it and to hold on to it. Conservatism should be about relinquishing the power of the state. It is supposed to be a philosophy that gives you more personal freedom, not less. Before Bush came to power, I had the right of Habeas Corpus. Now in certain cases, I do not even have this right, a right that can be traced back to the Magna Carta.

Prior to our current president, I thought we had three branches of government. I assumed that if conservatives ran the government they would diligently respect the separation of powers. Now I find out that there is a fourth branch: Dick Cheney and that is why he cannot release any records under the Freedom of Information Act. Prior to this administration, I assumed that if a bill became law the President was constitutionally required to execute it faithfully. Now I learn that even though a president signs a bill, he can unilaterally assert the right to ignore parts of it or take actions that are the exact opposite of the intent of Congress. All he has to do is attach a signing statement. Conservatives, please show me what part of our constitution that gives the president this power.

In short, there is nothing the least bit conservative about modern conservatism. Indeed, conservatism as it is practiced today has nothing in common with conservatism at all. When someone comes along, like Ron Paul who actually parrots true conservative principles, modern conservatives snicker. A real conservative would never have gone into Iraq in the first place because real conservatives do not rush into anything. Changes, if they must occur, are done thoughtfully and only after great consideration, and typically with reluctance.

Conservatism does not really exist in this country. Instead, it has been co-opted by the ranks of people who are hotheads, obnoxiously stubborn and who cannot even be bothered to pay attention to the laws of cause and effect. Despite the last eight years, they still believe that by cutting taxes the government will balance its budget. It did not work for Ronald Reagan, and it did not work for George W. Bush either but hey, it doesn’t matter if it doesn’t make any sense, what matters is sticking to principle! Cutting taxes is so important that they will even borrow money today and make their children pay for it tomorrow so they can enjoy lower taxes now. In essence, modern conservatism is simply rampant selfishness for the moneyed crowd gone amok. No accumulation of disagreeable facts and outcomes can suggest to this crowd that even one of their policies was ever in error. Instead, they anticipate tomorrow, or next week, they will be proven right.

This is why they are foaming at the mouth because it looks like John McCain will win the Republican nomination. Conservatives like Ann Coulter are so upset they want to raise money for their nemesis Hillary Clinton. The reason they loathe John McCain so much is that McCain realizes to get things done you sometimes have to cross the aisle. He has demonstrated an unforgivable pragmatic streak. A true conservative never compromises principle for the sake of political expediency. (I might add, many liberal Democrats suffer from the same delusion. I saw this in the fascination for many with the candidacy of John Edwards.)

Conservatism, at least its most modern and perturbed manifestation, is in its death throes. That is why President Bush’s approval ratings are at 30% and Congress’ are even lower. That is why Democratic caucuses in overwhelmingly red states like Kansas have people waiting for hours in the freezing cold to participate. People across the country are in great pain, and it is a direct result of having conservatives in charge. They are not easily roused out of their political stupor, where they prefer to remain. However, they are roused in this election. For eight years, government has been run for the exclusive benefit of the elite. It was done this way openly and shamelessly. Middle and lower class America has paid the price in lost jobs, stagnant wages, dirtier air and a collapsing health care system. It will take another generation before they will have a chance at power again. First, they need voters who can forget their trail of carnage, and the only hope of doing that is to have no memory of it.

I hope that future generations will read take the time to read their history books. Modern conservatism like communism has proven unworkable. It should now be relegated to the dustbin of expensive lessons learned.