Friday, February 28, 2014

The Provocative Rhetorical Power of Slavery in Policy Analysis

-- Posted by Neil H. Buchanan

[Update: In the post below, I discussed the film "12 Years a Slave" at some length.  I did not know as I wrote that post, of course, that the Best Picture Oscar would be awarded to that movie several nights later.  Indeed, I had forgotten all about the Oscars.  In any event, even though the award was not necessary to validate what is one of the most important films of recent years, it was a well deserved recognition of a powerful achievement.]

My new Verdict column, published yesterday, is mostly devoted to an extension of my analysis of the "baseline problem" (which I also discussed in a Dorf on Law post two weeks ago).  On Monday, I will publish a post that summarizes that column, and that further develops the core of my argument.

Today, however, I want to take a bit of a detour.  In yesterday's column, as I will explain below, I struggled with how to use the example of slavery to further my argument.  Based on my difficulty in using that example, I have been thinking about the great potency of references to slavery in modern policy discourse, and why that power is problematic, in ways that merit further scrutiny.

We can, I think, stipulate that there are situations in which the slavery example is directly implicated.  If, for example, one were to note that United States history includes prominent examples of shameful policies, it would be strange indeed if slavery did not lead the list -- and it would be outright suspicious if it were omitted from the list entirely.  Along with internment of Japanese-American citizens during WWII, and other race-related policies and legal decisions (Jim Crow, Plessy), we would add to the list the disenfranchisement of women for over a century of our history, the continuing failure to address gender-, class-, and race-related economic and social inequality, and we might add Lochner as well as the anti-labor policies of the early industrial era.  But slavery is clearly the leading example of national shame, and talking about it in that context would be essential.

The next category might be thought of as conversations in which slavery is one of many pertinent, illustrative examples, but not a necessary one.  For example, earlier this week, in a post about the right's "religious freedom" political strategy, Professor Dorf wrote: "By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation."

That is a powerful example, and it explicates Professor Dorf's point well.  One could imagine him choosing a different example (although I cannot think of any), but mentioning slavery there was anything but a reach.  Even so, we are already treading into territory where one starts to become a bit nervous, because once slavery is part of an analogy -- X is "like slavery" in one way or another -- then we must take great care to be sure that slavery is not somehow trivialized.  Again, I think Professor Dorf's use of the analogy easily passes this test.  He uses a powerful example, but not in a way that uses the uniqueness of slavery to exaggerate the power of his actual point.  One could, however, imagine another author being less careful.

In fact, I might be an example of that less-careful kind of author.  In my Verdict column today, I describe the difficulty that I have faced in trying to explain how the notion of economic efficiency is contingent on the laws under which economic activity is carried out.  I have, at various times, made the point that abolishing slavery would be inefficient (under the standard economic analysis), in a world where slavery is legal, while enacting a slavery regime would be inefficient, in a world where slavery was not currently legal.

Although that example is correct and directly pertinent, it is only one of an uncountable number of examples that could be mustered to make the same point.  I have deliberately used the slavery example to convince people that the stakes in economic efficiency analysis are anything but boring or sterile, but rather that human freedom itself can be implicated by the analysis.  Unfortunately, the impact of that example is possibly too great.  As I noted in my column, one smart and well-meaning person has told me that his reaction to my example was: "All right, so slavery is always a special case.  What else ya got?"

As frustrating as that reaction was, I do understand it.  Seen in all of its horrors, slavery is uniquely awful.  During my Tax Policy Seminar last semester, the discussion at one point slipped into some casual (but not ill-spirited) opining about how some policy or another was "like slavery" in some meaningful way.  Finally, one student said, "We need to remember that nothing is like slavery."  He reminded his fellow students (and me) that slavery was far more than forced labor without pay, extending to grotesque violence and the complete dehumanization of the people who were enslaved.

Early in each semester, I discuss in my basic tax law course the "tax protester" arguments against the legality of the federal income tax (and, for that matter, all taxes).  The low/high point of that discussion each term is when I note the protesters' claim that the federal income tax violates the 13th Amendment's abolition of slavery and involuntary servitude.  Part of that argument (if one can call it an argument) is surely based on the idea promulgated by a prominent right-wing anti-tax group, which annually announces the day on which people are "free" from taxes.  The idea is that, if taxes were to add up to, say, 25% of one's gross annual income, then somehow one spends the first three months of the year "working for Uncle Sam," and then after March 31, one is "free" to work for one's own benefit.

Although the think-tank that promotes that nonsense does not go so far as to join the tax protesters in their misapprehension of the 13th Amendment, the idea of being free to work for oneself, versus being in the servitude of others, is clearly what animates that annual public relations stunt.  This argument, moreover, has what would generally count as an impressive academic pedigree.  The conservative philosopher Robert Nozick described income taxes as being "on a par with forced labor," because it forces a "person to work n hours for another’s purpose."

When I discuss that argument in class each semester, I generally roll my eyes (because, among other things, most of the students are already laughing in disbelief, even as I describe the protesters' offensive analogy to the 13th Amendment), and then I try to say something substantive by pointing out that no one is forced to work for the government.  That is, if one does not want to pay taxes, one is "free" not to earn an income.  Admittedly, that might sound flippant.  Am I really saying that the choice is to work for the government or to live in a hut?  That is hardly better than forced labor!

The deeper point, however, is that if one does choose to work for an income, one is still not being forced to work for the government rather than oneself.  There is no time during which one is not working for oneself -- "First, I work 3 minutes for you, then I work 9 minutes for me."  The existence of taxes simply changes the terms of the labor exchange, where one ends up not earning as much as one might have thought from looking at the top-line number on the labor contract.  Each minute that one works, one is working for oneself, to receive a wage that is not as high as the gross wage would make it seem.  One can argue at length about whether taxes are too high or low, but they are certainly not involuntary servitude.

Again, however, this argument concedes far too much.  This semester, when we reached that point on the syllabus, I had just seen "12 Years a Slave," a brilliant film that depicted the horrors of slavery in ways that I had never before seen.  That film emphatically makes the point that my student made last Fall: Nothing is like slavery.  In last month's Harper's, J. Hoberman offers a moving review essay discussing "12 Years a Slave" (here, unfortunately behind a paywall), which emphatically made that point as well.  The essay's title, "Here There Is No Why," hauntingly captures the completeness of slavery's dehumanization.  There are no rules, and there need be no explanations.  Things happen, because other people make them happen -- and those people are able to make them happen with the imprimatur of a state that treats slaves as non-people.

About ten years ago, there was a brief flurry of activity among tax policy scholars regarding "endowment taxation."  The idea was that there might be efficiency-based reasons (which end up being too ridiculous to summarize here) to tax people not on their income, but on their potential income.  Under such a system, a person who could be working as a Wall Street lawyer, earning $2 million per year, would be taxed on that amount, even if she had decided to quit her job and live on the beach.  This became known among tax scholars as "enslaving the beachcomber."

One can understand the greater allure of the slavery analogy here.  Unlike Nozick's argument about income taxes, which ultimately relies on a false segregation of working time into "free time" and "forced time," an endowment tax could essentially prevent a person from quitting a high-paying job (unless she had savings from which she could pay her taxes).  The former lawyer might be "forced" by such a tax system to return to lawyering, which would be an impingement on her liberty.

But come on!  She would not be forced to work for a particular law firm, or in a particular city.  In fact, she would not necessarily even have to practice law, if there were non-law jobs that she would prefer that would pay enough to cover her taxes.  She would remain free to marry whom she wished (SSM issues very much acknowledged here), to live where she wished (within the constraints that all of us face, given economic realities in our lives), to travel on vacations, and so on.  She would not be whipped, raped, or separated from her children.

These powerful images are important to bear in mind, no matter how uncomfortable they are, because it is essential to remember what it means to casually call something "like slavery."  Something called "Godwin's Law" holds that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1."  The idea is that, no matter the subject of discussion, at some point someone will become angry or desperate enough to claim that the other side is "a bunch of Nazis," or something similar.

Slavery, too, holds the power to distort rational discussion.  My example, showing how slavery can be efficient or inefficient, depending upon one's viewpoint, does not deny the awful reality of slavery.  If anything, I could argue that as people think more about slavery's horrors, the idea that it can be called economically efficient only strengthens my point.  But I get it.  For good reasons, people respond to the use of slavery as an example with trepidation.  There are too many idiots out there saying too many stupid things about slavery to imagine that this topic can be analogized casually.  It is not off the table, but especially now that millions of people have been educated about what pre-Civil War slavery in the United States actually meant, using slavery as an example must be done with the greatest of care.

Wednesday, February 26, 2014

Arizona SB 1062 Post-Mortem: Statewide, It Would Chiefly Have Licensed Sex Discrimination. That's Right, Sex Discrimination.

By Mike Dorf

In vetoing Arizona SB 1062, Governor Brewer pointed to its possible "unintended and negative consequences."  I've been thinking about those consequences and I came to a surprising conclusion: If SB 1062 had been enacted, its chief statewide effect--indeed possibly its only statewide effect--would have been to create a religious right of businesses to discriminate on the basis of sex.  That's right, sex. Not sexual orientation.  Or at least not mostly sexual orientation.  Let me explain.

As numerous commentators have noted, even without SB 1062, it is already permissible under Arizona law for private parties to discriminate on the basis of sexual orientation--even if they are merely ordinary bigots rather than religiously motivated bigots.  Thus, while the intention of the sponsors of SB 1062 may have been to provide a shield for sexual orientation discrimination, at the state level that shield was not necessary. I suppose they may have worried that in the future the Arizona legislature would provide protection against sexual orientation discrimination, but of course a future Arizona legislature could also repeal or modify the religion exception, so if that was their worry, their remedy was pretty weak.

Moreover, as I explained in my Verdict column earlier in the week, if federal anti-discrimination law were amended to provide protection against private sexual orientation discrimination, then an Arizona exception for religiously motivated discrimination would be ineffective under the Supremacy Clause. To be sure, it might not be needed even there, depending on how broadly or narrowly the courts construe the federal RFRA, but at least for now, SB 1062 looked like it would have provided broader exceptions than the federal RFRA.

Thus, the question arises: Would SB 1062 have provided exceptions to any state law? By common law and by its state constitution, Arizona treats some businesses as common carriers with obligations to serve the general public, presumably including gay people.  SB 1062 also would have provided exceptions to local ordinances, like the Phoenix one, that included sexual orientation on the list of forbidden grounds for discrimination.

But what about at the statewide level? There, the real bite of SB 1062 would have been with respect to antidiscrimination law that applies to most or all businesses. So, are there categories of discrimination that are forbidden by Arizona law but permitted by federal law, such that SB 1062 would have broadened the exception to them? I did a little research and found that the answer is yes.

Federal civil rights law forbids discrimination in public accommodations "on the grounds of race, color, religion, or national origin." Arizona civil rights law forbids discrimination in public accommodations "because of race, color, religion, sex, national origin or ancestry."  Did you see that? Arizona law, but not federal law, forbids discrimination in public accommodations based on sex and ancestry.  Let's put ancestry aside because nearly all actionable ancestry discrimination will already be covered by one of the other categories. That leaves sex discrimination as the one category of discrimination in public accommodations banned by Arizona state law but not federal law.

My first thought on making this discovery was "Really?" It doesn't violate federal law for a restaurant to keep out female customers? Holy crap! Why didn't I know that?

Other than inexcusable ignorance on my part, the answer is that state public accommodations laws tend to apply to a bigger list of proscribed categories of discrimination than federal public accommodations law does. And that's true of Arizona too. Under current law, a Phoneix Hooters can't keep out women.

SB 1062 would have changed that, at least for a Hooters (or other business) owned by a religious sexist. A business owned by someone who thought it unGodly to serve women wearing pants, or to serve women with uncovered hair, would have been sheltered by SB 1062.

Was that sort of "unexpected consequence" a realistic scenario? Maybe.  Charges of sex discrimination in public accommodations do arise from time to time.  Moreover, given the tendency of religions to regulate gender relations, it's not hard to imagine a case in which a religious objection would ground refusal to comply with the sex discrimination prohibition.

Now it's important to remember that SB 1062 would have taken the form of an expansion of Arizona's RFRA, which, like the federal RFRA, allows for the application of laws that substantially burden religious freedom, so long as the laws satisfy strict scrutiny. If SB 1062 had gone into law, would the Arizona courts have said that the state's interest in sex equality trumps religious freedom? Maybe, but there's no guarantee.

After all, the same strict scrutiny test applied (as a matter of expressive association under the First Amendment) in Boy Scouts of America v. Dale; yet there the SCOTUS casually dismissed the idea that an equality interest satisfied strict scrutiny.  There are differences in context, to be sure, but the very idea of religious exceptions to civil rights statues appears to imply that sometimes the equality norm will fail to overcome the religious objection.

So, although they may not realize it, the women of Arizona (and for that matter the men, who also could have been denied service based on their sex under SB 1062) owe Governor Brewer thanks.

[NB: This is a revised version of the post, to take account of local ordinances. Thanks to Garrett Epps.]

Is The Right's Religious Freedom Focus a Strategic Blunder?

By Mike Dorf

Continuing with the theme of religious exceptions to general laws that I explored on SCOTUSblog and here on DoL in connection with the pending Supreme Court cases on the ACA contraception mandate and RFRA, my latest Verdict column looks at the Arizona bill now on Governor Jan Brewer's desk that would expand the state's RFRA, and at similar bills around the country. As I explain in the column, these bills differ somewhat from each other. Whereas other state bills would explicitly license religious exceptions to laws forbidding sexual orientation discrimination, the Arizona bill would expand the state RFRA generally. If enacted, it would provide broader religious exceptions (including exceptions for for-profit businesses) from laws restricting race discrimination, protecting the environment, etc. Nonetheless, the clear impetus for the Arizona bill is the same as the impetus for the more expressly homophobic bills that have been introduced in sister states: Fear that people with religious objections to same-sex marriage or to homosexuality more broadly will have to set aside those objections to comply with anti-discrimination law.

The conclusion of the column (spoiler alert!) is that the Arizona bill (whether or not signed by Gov. Brewer) underscores the need for the expansion of federal anti-discrimination law to cover sexual orientation discrimination.  Under the Supremacy Clause, federal protection against sexual orientation discrimination would supersede any state exceptions. To be sure, absent an explicit proviso, even a federal statute would be subject to the federal RFRA--and there's a risk that the SCOTUS will construe the federal RFRA to provide religious exceptions for for-profit businesses in the pending cases. Indeed, even without the federal RFRA, it may not yet be possible to secure congressional legislation from Congress expanding anti-discrimination law to cover sexual orientation without including a too-broad religious exception.

But the key word in the foregoing sentence is "yet." Given the long-term trend of public opinion, it is pretty clearly only a matter of time before sexual orientation discrimination is widely regarded as odious. Yes, there will be outliers, and they may never go away.  Aftet all, it's 2014 and the Russian government is employing Cossacks as paramilitary, so history is long. But even now, social conservatives in much of the country are giving up on fighting against LGBTQ equality generally, and focusing their attention on securing religious exceptions. My question for today is this: Is that focus a strategic blunder?

To contextualize that question, consider the following vastly over-simplified account of the last 60 or so years of contestation around social issues.

The first great organizing tool for the creation of the modern socially conservative right was race. From signs calling for the impeachment of Earl Warren through Nixon's Southern Strategy, the modern GOP's aging base of white Southern Christians was built on prejudice against, and fear of, African Americans. Race retains potency today, but for at least the last several decades, open appeals to racism have been outside the mainstream of national politics. For a (long) time, they were coded by discussion of crime, welfare, affirmative action, etc., and those issues have not disappeared, of course. However, race has become only one arrow in the socially conservative quiver.

With the emergence of the modern women's movement in the 1960s and 1970s, social conservative activists rallied around opposition to the ERA, but even though they won that battle, they lost the war--a result that is not especially surprising: It's hard to "other-ize" half the population when they are your own family members.

To my mind, the most effective issue--indeed the only issue with real staying power--for social conservatives, has been abortion. Opposition to legal abortion is rooted for many people in views about the proper role of women, but that's not all it's about. It is possible to think that abortion raises serious moral issues while holding generally progressive views about sex and sex roles.

Accordingly, I believe that the socially conservative right made a strategic blunder when, roughly in the early 1990s, so much of its energy was diverted into opposing LGBTQ rights. Whereas opposition to abortion can be, and I'll admit often is, justified on the ground that it aims to protect innocent vulnerable life, opposition to LGBTQ rights was and is gratuitously mean. The point has emerged clearly whenever trial courts have sought evidence that might be used to support laws banning same-sex marriage or otherwise denying basic rights to LGBTQ Americans: The laws' supporters stumble to articulate nonoffensive justifications, at best relying on "tradition."

Of course, the traditions that have been unsuccessfully invoked to defend anti-gay laws are often rooted in, or at least closely tied to, religious views. Concurring in the since-overruled Bowers v. Hardwick, the late CJ Burger wrote that "Judeo-Christian moral and ethical standards" were a sufficient basis for outlawing "homosexual conduct." But that was never a good argument. In a country with separation of church and state, religious doctrine is an insufficient basis for denying any group of people their basic rights.

However, religious exceptions appear to stand on a different footing. Someone who claims a religious exception from some general obligation does not say that her religious beliefs are a sufficient basis for public policy. She only asks that the contrary views of the majority not be the basis for compelling her to act or refrain from acting in a manner that contradicts her religious faith. Accordingly, there is a strong initial appeal to the move from religion as the basis for discriminatory laws to religion as the basis for opting out of laws combating discrimination.

Nonetheless, I believe that the right's shift towards seeking broad religious exceptions will fail, and may even be a strategic blunder on par with its opposition to LGBTQ rights in the first place. The reason is simple: Religion is not a trump card when the rights and interests of others are involved. Sure, the Supreme Court unanimously upheld a ministerial exemption from anti-discrimination law in the Hosanna-Tabor case. In my view, the Court erred by rooting that principle in the Constitution rather than in statutory construction, and I think the scope of the exception it recognized is too broad, but I understand the argument that the Catholic Church shouldn't have to ordain female priests as fundamentally different from the argument that a for-profit employer shouldn't have to provide contraception coverage or a for-profit florist shouldn't have to serve same-sex couples. In the one case, the exception is largely about the internal regulation of the religion; in the others, it's about interactions with the rest of society. There are borderline cases, of course, but the basic distinction is easy enough to grasp.

By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation.

Finally, even if social conservatives succeed in securing religious exceptions from laws securing equality for LGBTQ Americans, those exceptions will eventually become unusable. Even today, the federal RFRA and state-level equivalents would, in theory, permit people who hold religious objections to racial equality to resist anti-discrimination laws based on race. But virtually no one raises such claims because the same forces that made expressly racist views outside the mainstream of public opinion have made expressly racist religious views impermissible. Nearly all churches that once maintained such views no longer do so because religious views do not exist in a vacuum. Even (perhaps especially) "fundamentalist" religious views are formed in reaction to the broader social context.

Postscript: Readers should not infer from the foregoing that I am no longer pro-choice. For reasons that are connected to my views about non-human animals, I think that mid-to-late-term abortions of sentient fetuses raise serious moral issues, although I don't think that the immorality of (some) abortions necessarily justifies making them illegal. Professor Colb and I are working on a book that explores the complex connections between abortion and animal rights.

Tuesday, February 25, 2014

Are Legal Writing Professors Like Nurses?

by Lisa McElroy

In a recent blog post on the Wall Street Journal’s website, Jacob Gershman quoted from a poem and article penned by Georgetown legal writing professor Kristin Tiscione.  Those who are fortunate enough to know Kris know that she is a thoughtful, professional, highly competent professor who has taught an entire generation of Georgetown students.

Although the poem artfully expressed the frustrations of the 94% of legal writing professors who are not eligible even to apply for tenure, it was the comments that caught my eye.

The first two comments on the post compare podium professors to doctors and legal writing professors to nurses.

I’d like to start out by saying that the commenters who said things like “Why should a nurse be paid the same as a doctor?” were incredibly insulting to nurses.  Anyone who has ever had to stay overnight in a hospital – even for a happy reason like delivering a healthy baby – knows that nurses represent the front lines of health care.  Hospitals are nothing like they’re portrayed on Grey’s Anatomy.  In almost all of them, the nurses take care of patients’ psychological and physical needs.  The doctors visit patients for a few minutes at most, once or twice a day.

But when the Robert Wood Johnson foundation recently suggested in a draft report that nurses be paid the same wages for the same work – in other words, paid like doctors – that idea resulted in, shall we say, objections from doctors.  Or so the New York Times – the so-called paper of record – reports.  

Why might that be?  I ask especially because, as an abstract to an article published last year in the New England Journal of Medicine explains, “[Investigators] report that primary care physicians and nurse practitioners often work side by side but inhabit different universes, at least perceptually. Daniel Kahneman, the psychologist and Nobel laureate who helped found the emerging field of behavioral economics, would find this unsurprising. He contends that all humans are influenced by powerful unconscious mental filters that shape how they perceive the world around them. Given the heated debate over the roles of physicians and nurse practitioners in providing primary care in the United States, those filters are probably working overtime when these professionals reflect on their practice experiences and the literature on their respective performance.” (emphasis added)

The abstract goes on to say, “The differing views of physicians and nurse practitioners about their work can have troubling consequences.”

Substitute in “podium professors” for “physicians” and “legal writing professors” for “nurse practitioners,” and you’ve got the crux of the debate that goes on in almost every American law school. And it’s a heated one.

Now, I also think that the comparison of “legal writing professors” to “nurses” is an uninformed one, in many ways.  Even when nurses do the same work as doctors, they are educated differently.  Their training is much shorter.  Their responsibility level is much lower – nurses of many levels of licensing cannot prescribe medication, for example, nor do they have to deal with the responsibility of figuring out the right medicine to prescribe.

But legal writing professors graduated from law school.  In fact, according to a study published recently in the University of Louisville Law Review, 28% of legal writing professors responding to a recent survey had received a J.D. from a “top twenty” law school.   Thirty-six percent had post-undergraduate degrees from a top twenty law school. They incurred the same debt as professors who teach podium courses.  They sat beside them in the same classes.

The difference?  Well, the same study shows that most legal writing professors have far more practice experience than the average podium professor.

And yet, at most law schools, legal writing professors earn far less than podium professors. Sort of like nurses providing the same care as doctors make a lot less than their physician counterparts.  Huh. 

But, you might say, legal writing professors don’t do the same job as podium professors.  And, at many law schools, you might be right.

Most legal writing professors are not required to publish law review articles to keep their jobs.  Most podium professors are.

But most podium professors are not required to give detailed feedback on student writing.  To meet one-on-one with students on a regular basis.  To counsel and coach students through the process that is legal analysis.

To work on the front lines of student care.

That’s an awful lot of responsibility vis-a-vis students.  It’s pretty much ensuring that these students are qualified and competent to represent clients in the practice of law. 

I’m not necessarily arguing that all legal writing professors should automatically be eligible for tenure.  I’m not unrealistic enough to think that tenured faculties (including the one of which I am proud to be a part) will change their thinking about the “publish or perish” tradition.

But Kris Tiscione’s poem, the WSJ blog post, and the comments on the blog should make us think about equal pay for equal – albeit somewhat different – work. 

I’ll tell you what.  Next time I need an IV inserted, or a dressing changed, or a kind word uttered, I sure hope there’s a nurse around, one who’s paid a living wage. 

And for my law students?  I hope that they’ll benefit from the incredible community of legal writing professors, people who struggle to get by but give their hearts and souls to their work. 

My last hope?  It's that, not too long from now, Kris Tiscione will have grounds to write a more optimistic poem.  And when that happens, I hope the Wall Street Journal will report on it.

Monday, February 24, 2014

Ted Eisenberg

By Mike Dorf

I just wanted to take a moment to note the tragically premature death of my dynamo of a colleague, Ted Eisenberg. A first tribute to Ted can be found here.

Why is RFRA Still Valid Against the Federal Government? (Cross-Posted on SCOTUSblog)

By Mike Dorf

[N.B. I posted a nearly identical version of the following essay on SCOTUSblog's symposium on the contraception mandate cases. I'm reposting/cross-posting here on DoL for the benefit of those readers who didn't read it there.]

The Supreme Court granted certiorari in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius to resolve a question of statutory construction:  Does the Religious Freedom Restoration Act of 1993 (RFRA) entitle a for-profit corporation to an exemption from the requirement of providing employees with health coverage that includes contraception, on the ground that the owners of the corporation have religious objections to providing such coverage?  That is an important question that the other participants in this symposium and the Justices themselves are now considering.

In this essay, however, I want to ask an antecedent question: Why is RFRA constitutional as applied to the federal government?  In particular, I want to focus on a separation-of-powers objection to RFRA that the Court has never fully considered.  Before coming to that point, though, I shall distinguish three other sorts of constitutional objections that have been made against RFRA.

First, as applied to the federal government, RFRA falls within Congress's enumerated powers, notwithstanding the Supreme Court's decision in City of Boerne v. Flores.  There the Court held that, as applied to states and their subdivisions, RFRA was not a valid exercise of Congress's power to enforce the Fourteenth Amendment.  Because RFRA as applied to state and local government cannot plausibly be understood as an exercise of any other enumerated power, it was effectively held invalid under the Tenth Amendment.  But as a limitation on federal power, Congress clearly had the power to enact RFRA, because in that context RFRA is simply the withholding of federal power.  When it provides exceptions to laws passed under the Taxing Power, RFRA (un)exercises the Taxing Power; when it provides exceptions to laws passed under the Commerce Power, RFRA (un)exercises the Commerce Power; and so forth.

Second, concurring in Boerne, Justice Stevens opined that RFRA violates the Establishment Clause because it favors religion over non-religion.  No other Justice addressed that issue, however, and in Cutter v. Wilkinson the Court unanimously rejected an Establishment Clause challenge to the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Justice Ginsburg wrote for the Court that RLUIPA did not grant religious persons special benefits but merely lifted government-created burdens. That should not have been a fully satisfactory response to the Establishment Clause objection, because it fails to answer the question of why the government can lift burdens it has created for people with religious scruples but not for people with other sorts of scruples.  Nonetheless, Cutter pretty clearly forecloses an Establishment Clause challenge to RFRA because RFRA is materially similar to RLUIPA.

Third, shortly after the Supreme Court's decision in Boerne, a student note in the Columbia Law Review (paywall link only) argued that RFRA was invalid even as to the federal government because Congress lacks the authority to amend the entire U.S. Code in one fell swoop.  According to the author of the note (who was my student at the time), by purporting to amend the U.S. Code wholesale, RFRA accomplished through ordinary legislation what the Constitution's Article V permits to be accomplished only through an amendment:  reversing the Supreme Court's construction of the First Amendment in Employment Division v. Smith.  In my view, this argument proves too much, unless one is also prepared to say that statutes like the Dictionary Act -- which defines terms for the U.S. Code on a wholesale basis -- are also invalid.  Absent the violation of some external norm, as in a case like United States v. Windsor, in which the Court invalidated Section 3 of the Defense of Marriage Act on equal protection grounds, there is no constitutional bar to Congress amending its own statutes on a wholesale basis, even if the effect can in some respects be said to mimic what might alternatively be accomplished via a constitutional amendment.

If the foregoing three objections were all that could be said against the constitutionality of RFRA as a limitation on federal action, then it would be hard to quarrel with the Supreme Court's having taken the issue for granted in a unanimous decision finding a right to a religious exception to the application of the federal Controlled Substances Act to a hallucinogenic tea in Gonzales v. O Centro Espirita Beneficenteuniao do Vegetal.  Yet there remains one more objection to RFRA that the Court has not considered.

Justice Scalia's opinion in the Smith case offered a number of grounds for the conclusion that the Free Exercise Clause does not entitle religious objectors to exceptions from neutral laws of general application, but one crucial piece of his argument for the Court was that judges are simply not competent to make the sorts of judgments needed to administer an exceptions regime.  The clearest expression of this view appears in footnote 5, in which he states, in response to an argument offered by Justice O'Connor in her concurrence in the judgment: "it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice."  But the point is also plain enough in the text of the Smith opinion, where Justice Scalia states that it is simply not "appropriate for judges to determine the 'centrality' of religious beliefs."

It is not entirely clear which part of the Constitution Justice Scalia (and four other Justices) thought would be violated by judges weighing the importance of general laws against the significance of religious practice, or by having judges determine the centrality of religious beliefs.  The claim appears to sound in anti-Establishment principles.  It is a cousin of the principle that courts should not pass judgment on whether religious propositions are true or false.

But Justice Scalia takes a very narrow view of the Establishment Clause in other contexts – for example, in his concurring opinion in Van Orden v. Perry, in which he contends that "there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments."  Thus, it is hard to believe that he would base the Smith rule on anti-Establishment principles without even saying so.  And he did not join Justice Stevens in the latter’s anti-establishmentarian concurrence in Boerne.

Moreover, quite apart from how it would fit with Justice Scalia's other views, the opinion in Smith itself cannot be read to condemn religious exceptions as violating the Establishment Clause.  The opinion specifically approves of democratically accountable bodies granting specific religious exceptions.  If the balancing needed to decide whether an exception was warranted violated the Establishment Clause, it would violate that Clause regardless of which government officials – legislators, executive officials, or judges – did the balancing.

Accordingly, we might read the Smith majority opinion to say that the plaintiffs were asking the Court to perform a non-judicial task.  In this view, Article III – or perhaps separation of powers – makes judges especially unsuited for this sort of balancing.  Justice Scalia's disapproval of balancing in Smith thus calls to mind his disapproval of balancing generally, both in his academic writing and in his work on the Court, as when he complained that the Court's dormant Commerce Clause balancing test is "like judging whether a particular line is longer than a particular rock is heavy."

If Smith does rest on some principle that the Constitution forbids courts from weighing the importance of a religious practice against the importance of a general law, then RFRA would be invalid under this principle, for Congress has no power to require the courts to undertake a non-judicial task. Just as Congress cannot authorize the Court to hear cases in which the plaintiff lacks standing or cases that would call for an advisory opinion, so too, in this view, Congress cannot require the Court to apply a test that the Constitution makes the courts incompetent to apply.

Why, then, does the Court apparently think that it can apply RFRA notwithstanding Smith's pronouncement that the application of the compelling interest test to weigh religious freedom against government interests is unconstitutional?  Consider five possibilities, which are not meant to be mutually exclusive.

First, it is conceivable that the Court has not explained how RFRA is consistent with Smith's declaration that courts cannot balance religion against state interests because the issue has not been squarely presented to the lower courts and preserved on appeal.  If so, then the Court will apply RFRA in Hobby Lobby as well, and will continue to apply RFRA without addressing this issue unless and until some case squarely presents it.

Second, one might read Smith to say that weighing religious freedom against government interests is very difficult for judges, and generally something that they should try to avoid, but not that doing so is unconstitutional.  This reading is a bit difficult to reconcile with the adamancy of the Smith pronouncements, but supported by the fact that the Smith Court does not expressly say that it would be unconstitutional for the courts to engage in the "horrible" balancing, and the absence of any statement of what part of the Constitution such balancing would violate.

Third, perhaps the weighing that the Smith Court thought was forbidden under the Free Exercise Clause is different from what RFRA requires.  Justice Scalia's chief objection in Smith appeared to be to the necessity for determining whether a practice is "central" to a person's religion, but RFRA focuses instead on whether the law "substantially burdens" religious practice, a test that does not expressly call for a centrality inquiry.  But given that RFRA purports to "restore" the very pre-Smith test that Smith rejects, and that Justice Scalia's Smith opinion indicates that this test can avoid swamping the government with exception requests only if it includes a tacit inquiry into centrality, this approach would require a substantial retreat from the Smith principle under discussion.

Fourth, we may be witnessing such a retreat.  Smith divided the Court more or less on ideological lines, with liberal Justices favoring an exceptions regime and conservative Justices opposing one.  Since then, liberals generally have continued to promote religious exceptions, and conservative hostility to them has reversed.  Outside of the courts, that trend began with RFRA itself, which passed with overwhelming bipartisan support.  It has accelerated in recent years, as conservatives have come to embrace religious exceptions from laws forbidding sexual orientation discrimination and, as Hobby Lobby itself illustrates, laws that impose obligations respecting abortion or contraception.  Arguably, the Supreme Court's unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, finding that the First Amendment requires a broad "ministerial exemption" from federal anti-discrimination law, shows that the bipartisan approval of religious exceptions has now taken over the Court itself.  Although the Hosanna-Tabor Court distinguished rather than overruled Smith, the cases stand in considerable tension, as I discussed on my blog when the former was handed down.

That leads me to my fifth and final possibility: Perhaps a majority of the Court has come to think that Smith was wrong in claiming that the crafting of religious exceptions from generally applicable laws is inconsistent with the judicial role.  If so, that would be welcome news, because the claim never had much going for it.  As noted above, the First Amendment grounds for saying that balancing is forbidden seem quite weak (because the Smith Court allows legislators to do the balancing on a law-by-law basis), while Justice Scalia's general hostility to balancing is surely not a constitutional principle. Indeed, based on traditional iconography of the scales of justice, it would seem that, notwithstanding Justice Scalia's objections, judges are especially well suited to engage in balancing.

Saturday, February 22, 2014

Blaming the Professors, Part II: Kristof's Confused Anti-Intellectualism

-- Posted by Neil H. Buchanan

Two days ago, I wrote a Dorf on Law post in response to a NYT op-ed column by Nicholas Kristof.  Kristof, writing in last Sundays' "Review" section, argued that professors have made themselves irrelevant to the great public debates, by becoming too specialized and obscure (and none-too-subtly suggesting, as I will discuss below, that academics are too liberal).

I argued in response that Kristof is simply wrong to suggest that the media and political worlds are starving for enlightened guidance from an indifferent academy.  What Kristof identifies as a matter of under-supply (not enough professors trying to influence the public discussion) is in fact a matter of inadequate demand on two fronts: people in the media who don't know and don't care to find out if there are actual experts available to weigh in on important topics (with media outlets preferring instead to propagate an incestuous conversation among the usual roster of generalist pundits), and a political culture that is not the least bit interested in hearing from experts whose points of view do not fit neatly into the established political narrative.

My post on Thursday focused on the media and political responses to the debt ceiling, precisely because that is the special case in which the number of people with published academic expertise is quite low: exactly two, in fact.  (To be clear, there are a few papers that have been published about ancillary questions regarding the debt ceiling.  But the Buchanan-Dorf papers are the only ones that have directly addressed the full range of questions that matter for the public debate.)  That the top media and virtually all politicians failed to rely on those experts could not be excused by the argument that there were too many good choices.

And that shows precisely why Kristof's broader argument is so weak.  On every other policy topic, there are literally hundreds (if not thousands) of qualified academics clamoring to be heard.  I am not surprised when, say, my writing about Social Security's non-problems, or about the benefits of increasing the national debt, or in favor of raising taxes on the rich is not picked up excitedly by the media and politicians.  I am momentarily disappointed, of course, but I understand that there is a more than adequate supply of people who are also writing about these subjects, and there are even enough who are taking the relatively counter-intuitive positions that I take.

Every university of which I am aware hires full-time media consultants to promote the work of its professors.  Getting even one mention in a top newspaper leads to congratulatory emails from colleagues and administrators.  The environment is fiercely competitive, such that it is more than a little exasperating to be told by Kristof -- a guy who is famous because he has been given two automatic slots per week on the world's most influential media real estate -- that we are not trying hard enough.

Viewed kindly, Kristof's column could be read as saying: "Professors, I admit that I'm ignorant!  Please help me reduce how often I embarrass myself."  Viewed less kindly, however, one cannot help but suspect that Kristof is fully aware that there is no lack of input being offered by professors from American universities.  If so, then what could be the real point of his column?

The answer, I think, comes in two parts.  First, as one of the letters to the editor of the Times put it: "This is a high-minded, left-leaning form of anti-intellectualism."  (Of course, wouldn't you know it, the author of that letter is a professor of poli sci and humanities at a liberal arts college.  That's just what we would expect him to say!)  To a large degree, Kristof is simply reviving the typical rant against the ivory tower, acting as if research that is not immediately translatable into public debates is per se worthless.  He wrings his hands and says that he hates to criticize, but he obviously is excited to join in the ignorant slander.

But if Kristof is a liberal (and most evidence suggests that he can be reasonably described as left of center), then what is the point of joining in what is usually the tired right-wing pastime of professor-bashing?  The second part of the answer, therefore, has to be able to explain why a liberal would attack a group of people whom he thinks are also liberal.  Kristof is, I think, saying that he finds it inconvenient to try to rely on professors in public policy debates when so much of the work in academia is supportive of liberal arguments.  "How can I call you guys independent experts, when so many of you say liberal things?"

Putting it together, Kristof's argument thus becomes: "Hey professors, you're too obscure and abstract and wasting everyone's time.  Oh, and when I can understand what you say, you don't agree with Republicans enough!"

For example, Kristof goes to the favorite whipping boy of the anti-academic crowd, sociology, as follows: "Many academic disciplines also reduce their influence by neglecting political diversity. Sociology, for example, should be central to so many national issues, but it is so dominated by the left that it is instinctively dismissed by the right."  But the "hard" sciences are central to so many national issues, too, and they are also instinctively dismissed by the right.  Climate change, evolution, epidemiology?  Anyone?  Anyone?

Academics (including sociologists) would love to study the public health effects of firearms, but the right has prevented them from even gathering the necessary data to engage in the research.  Similarly, gathering data on high-end incomes has been stymied for decades by right-wing politicians, fearful of what the evidence will reveal.

Kristof appears to be saying that the way to assess the health of an academic field is to ask whether its practitioners line up with the current partisan make-up of the country.  When did that become a meaningful criterion for intellectual value?  Should biology departments also be concerned about political affiliations?

On some levels, I ought to have been a perfect audience for a column like Kristof's.  After finishing a Ph.D. in economics from a top university, I ended up moving into law, in large part because of many of the problems that Kristof identifies: narrowing areas of specialization, lack of concern for even minimally competent writing, disdain for the practical over the abstract and theoretical, and intolerance of dissent (in Kristof's well-chosen words: "Rebels are too often crushed or driven away.")

Yet we quickly discover that economics is one of the fields that Kristof still admires, because it "is a rare academic field with a significant Republican presence, and that helps tether economic debates to real-world debates."  He salivates over the "empiricism and rigor" of the field, saying that the importance of economics in public debates is a direct result of those supposed qualities.

But the existence of conservative economists, along with liberal economists, is hardly proof that economics is healthy as an academic discipline.  The core requirements to being an economist in good standing -- the very things that Kristof otherwise decries, such as specialization and obsession with quantification -- are inherently conservative, in the sense that one must build one's models on assumptions (such as the insane idea that people are hyper-rational actors) that are preordained to lead to Republican-friendly results.  Attempts to deviate from those assumptions are only minimally tolerated, and only after a person (such as Paul Krugman) has proved that he can play the game the way the conservatives play it.

To the extent that "empiricism and rigor" should matter in economics, the liberals win in a landslide.  When the very high-profile Romney economic advisors in 2012 tried to defend the empirically indefensible claims by their campaign about Romney's tax proposals, they talked about "six studies" that supposedly proved that Romney's plan could work.  It turned out that four of the six "studies" were not studies at all, but simply an op-ed and some online articles.  But even the actual "studies" belied what Kristof still believes to be true: The silly idea that economics as a field converges on what become accepted "truths" by engaging in rigorous, empirical research.

Consider the major policy debates of the past several years.  Would high deficits post-2008 cause interest rates to spike upward?  Conservative economists loudly said that they would.  Liberals said no.  In reality, rates hit historic lows.  Would the Federal Reserve's aggressive actions to save the economy cause inflation to rise out of control?  Conservatives were absolutely certain that it would, liberals just as certain that it would not.  In reality, inflation has dropped so low that we (and especially Europe) are in danger of entering a disastrous deflationary spiral.

The "science" of economics told us that austerity could be expansionary, supposedly supported by studies by a Harvard economics professor.  Those studies turned out to be based on selective empiricism, and more importantly, they were quickly proved utterly false.  Another economics paper told us that there is a 90% debt-to-GDP limit, above which an economy would quickly be destroyed.  That turned out to be wrong, not just in failing to think about the direction of causality (which is one of the things that intellectual rigor would presumably require), but because the study was based on bad computer coding.

More to the point, none of these embarrassments have at all chastened the right side of the aisle in economics.  None of the economists in question have revised, or even questioned, their views.  Writing for lay audiences, they continue to trot out the silliest stuff as if it is science.  (The controversy last week regarding the report on the "2.5 million lost jobs from Obamacare" is just the latest example.)  And when the facts are against them, they simply resort to insisting that their theories embody the received truth.

In short, if economics were truly a rigorous, empirically-driven science, economics departments would quickly begin to look like Kristof's vision of sociology departments -- not because they would be "neglecting political diversity," but because the rubber has now hit the road on nearly every major economic policy question, and the conservative side has lost every time.  His belief that the "Republican presence" in economics "helps tether economic debates to real-world debates" is simply wrong.  The Republican presence in economics tethers real-world debates to non-real-world wishful thinking.

Holding up economics as a model for other academic fields is thus a scary thought.  Even more scary is the sight of a nominally liberal pundit trashing academics for failing to be sufficiently sensitive to the wishes of people who simply will not accept critical thinking.

Friday, February 21, 2014

Delay in Posting Part II of my Critique of Kristof's Attack on Professors

UPDATE: The follow-up post is now available here:

Dear Readers,

Normally, my Friday post would have been published by now.  Because of unforeseen circumstances, however, I will publish the follow-up to yesterday's post tomorrow morning.

My apologies for the delay.  Thank you for reading Dorf on Law.

Neil H. Buchanan

Thursday, February 20, 2014

Are Public Intellectuals AWOL? A Test Case

-- Posted by Neil H. Buchanan

This past Sunday,  New York Times columnist Nicholas Kristof caused a stir among academics by publishing a column carrying the well-meaning title: "Professors, We Need You!"  (Apparently, in some editions of the paper, the article's title was, "Smart Minds, Slim Impact.")  The article has generated plenty of reaction, including five Letters to the Editor that the Times selected for official publication.  Because Kristof's column is on such an important topic, but especially because he so badly misses the mark in more than one important way, I am going to respond to his column in my Dorf on Law posts today and tomorrow.  In today's post, I will argue that Kristof completely misdirects the blame for the problem that he describes.  Tomorrow, I will discuss his laughably dangerous descriptions of various academic disciplines, and their places in the media and political universe.

To give Kristof his due, his column was apparently motivated by a high purpose.  The country and the world face serious, complex problems that call for expert input and independent-minded analysis.  The United States also is the home of the finest university system in the world.  (This might, of course, not last much longer.  Years of underfunding, and anti-academic pandering by public officials, are seriously undermining America's colleges and universities.)  Why, Kristof wonders, are so few professors heard in the public square, when the need is so obvious?

One sign that Kristof is being sloppy is that he quickly undermines his own premise: "There are plenty of exceptions, of course, including in economics, history and some sciences, in professional schools like law and business, and, above all, in schools of public policy."  So, professors in some of the most policy-relevant academic fields, as well as in the professional schools (he could also have mentioned medical schools and schools of public health), are the exceptions, but "over all, there are, I think, fewer public intellectuals on American university campuses today than a generation ago."

Although I think that at this point he has completely negated the force of any argument that he wishes to offer, we can at least imagine that his assertion is true.  Therefore, let us stipulate that the public square is lacking voices from academic experts.  What is causing this?  Kristof's answer: Blame the professors!  After quickly mentioning the rampant anti-intellectualism that has long infected American politics, he argues that the reason professors are not being heard from is that they have chosen to make themselves irrelevant.  Not only do they write obscure nonsense, Kristof claims, but they refuse to engage with the public through non-academic writing and, in particular, they refuse to engage with the public via modern forms of communication, such as blogs and social media.

The implication of Kristof's argument is thus that, if one or more professors were willing to engage with an important public policy topic, and to do so in plain prose and to present it to the public in accessible forms, the public debate (and political outcomes) would improve.  I have two words in response: Debt Ceiling.

The last three years have provided a perfect test case for Kristof's argument, which is essentially that the suppliers of expert commentary are not doing their part to improve political outcomes.  What about the demanders of such commentary?  That is, if academics were to do exactly what Kristof claims they do not do (often enough), would they have any meaningful impact on media coverage, or on political outcomes?  The answer is clearly no.

The debt ceiling is an especially good example, for at least two reasons.  First, it is an issue of the highest order of importance, posing immediate threats to people's continued well-being.  The Republicans' use of the debt ceiling threatened unprecedented damage to the economy, as well as to the constitutional order of this country.  Second, the unprecedented nature of the Republicans' debt ceiling hostage-taking meant that there was almost no existing body of academic research on the issue, circa early 2011.

By contrast, in debates about the minimum wage, or budget deficits, or campaign finance reform, there are plenty of academics who have written for years on those topics.  If only a few of them are heard from, while others are ignored, it might be because of simple limitations on how many voices can be heard at one time in the public square.  (It also has a lot to do with what Noam Chomsky once called "the bounds of thinkable thought" -- such that who is included and excluded from policy conversations has more to do with politics than expertise -- but we can set that aside for now.)

If Kristof were right, then then there would have been a tremendous desire by media and politicians to hear from people with actual expertise about the debt ceiling, if only such people could be found.  That the debate was (and continues to be) so absurdly confused would then be the fault of professors who insist upon writing about, say, the hermeneutics of pre-Columbian tax policy and gender identity, rather than engaging in the public square.

Professor Dorf and I naively (though unconsciously) believed that Kristof's assumption was close to being correct.  Like a few other professors, we first engaged in the rapid-fire world of blogging about the debt ceiling in the summer of 2011, but we then became the only two professors in the world to develop a sustained academic body of work on the issue.  All the while, we continued to write about the issue here on our blog, and also on Verdict.  (Both of those venues, meanwhile, use Twitter to publicize their content.)

We also wrote several op-eds, which we attempted to place in major media outlets (including Kristof's newspaper).  One of our op-eds was published by last January, but none of the others were picked up.  One Times guest op-ed last Fall, by an economist at Brookings, did summarize our arguments, and he credited us for the argument, thus putting out the word that there really were two professors who had studied the issue closely.  Even better, those professors were arguing that both sides had it wrong.  This, according to the myths that Kristof propagates, should have led to a seismic shift in the debate.

As I say, Professor Dorf and I both expected that our arguments would have an impact on the media and political conversations.  I should emphasize, however, that we were actually dreading the exposure that we were sure would follow.  Although we are both willing to give live interviews on television and on the radio, we both find it frustrating and even somewhat exhausting.  Professor Dorf is somewhat shielded from media demands by being located several hundred miles from a media center, but I am in Washington, DC.  I worried about the toll on my academic work and my teaching that the media firestorm would take.

To a large degree, those fears were realized.  During the political standoff last September and October, each of us ended up being interviewed at least once by reporters from all of the top newspapers.  We appeared on four-minute sequences on various non-network news programs (each of which takes several hours out of the interviewee's day), and we took time to talk with people at smaller newspapers and local radio stations.  It is the most media-related work that I have ever done, and Professor Dorf (even from Ithaca) found that the time commitment rivaled his efforts after Bush v. Gore in 2000 (when he lived in NYC).  My students noted how exhausted I was, by the time it all abruptly ended in mid-October.

On the other hand, nothing really happened.  People like Kristof would go on the Sunday morning talk shows, and on the cable news shows, opining on an issue about which they possess zero expertise.  Most of them did not even know the difference between a government shutdown and a debt ceiling-caused default.  Almost none of them understand that debt can be (and necessarily is) limited, even if there is no debt ceiling.

The "usual suspects" nature of the high-profile commentary was thus on full display.  Even though our arguments had gained some currency, it never occurred to even a single producer of a major network show to see if there were professors who could speak knowledgeably (and accessibly) about the issue.  Better just to have Newt Gingrich and some former Democratic Senator spout off about it!

Perhaps more importantly, and certainly more to Kristof's point, the wide (though still strangely limited) media exposure that our arguments received did not change the political conversation.  No one in Congress called on us to explain our argument, either in formal hearings or even in conversations with staffers.  Our argument is ultimately nonpartisan (limiting the power of the Presidency -- an argument that one might expect to resonate with current Republicans), which apparently means that no one wanted to listen.  The Republicans did not want to hear that they were acting irresponsibly, and that their tactics must ultimately be deemed unconstitutional.  The Democrats did not want to be told that the White House was wrong, because their political advisors had obviously decided that our argument was too politically dangerous for the President.

To be clear, even though we obviously stand by our work, we have never said that our academic work is better than anyone else's --for the simple reason that there is no other academic work out there on this subject.  It is easy to be the two top experts on a subject when no one else has even tried to gain any expertise.  (We are the top two, out of two.)  Our oft-expressed frustration has been that the people who have publicly disagreed with us (including a few legal academics) have not only not bothered to offer a scholarly response, but they do not even seem actually to have read our work (even our shorter, more social media-friendly writing).

For present purposes, however, it need only be said that, had Kristof been right, our worst nightmares would have come true.  Our efforts to craft and disseminate arguments that we thought were important would have led to even more drains on our time, and to time spent in the uncomfortable glare of political controversy.  What was a relief for us, however, demonstrates the folly in Kristof's argument.  The media conversation interacts with the political conversation, such that actual expertise is only opportunistically demanded.  At least in the one case about which I have direct knowledge, the problem is not that professors "cloister [them]selves like medieval monks," as Kristof puts it.  It is that the people who participate in the conversation, on both the political and journalistic sides, have only occasional interest in actually understanding the issues.  Most of what they do is performance art.  For Kristof to claim otherwise is either naive or disingenuous.

Wednesday, February 19, 2014

Marius the Giraffe and Abstract and Concrete Harms

by Sherry F. Colb

In my Verdict column this week, I wrote about the Copenhagen Zoo's slaughter of Marius, a healthy, 18-month-old giraffe who, according to the zoo, would not contribute to the genetic fitness of his species if he were bred.  I discussed the implications of people's outrage on behalf of Marius for our conduct toward other animals, including -- most significantly -- those whose bodies (meat) and bodily secretions (dairy and eggs) many of us consume on a regular basis.  In this post, I want to take a moment to examine why people are better able to empathize with Marius the giraffe than with the cows, chickens, and fishes in whose slaughter we participate by consuming their flesh, their milk, and their eggs.

One explanation for the disconnect is that we are emotionally invested in regarding the animals whom we regularly harm as "different" -- in some morally relevant way -- from the animals we love, including our companion dogs and cats but also including wild animals like Marius whose stories become known to us through the news.  Most of us lack any particular motivation to believe that exploiting giraffes or dogs or cats is acceptable, because we do not participate in exploiting them, at least not most of the time.  As psychology research has suggested, we tend to rationalize our consumption of animals by diminishing their worth in our own minds.

But this cannot explain everything.  After all, even people who ordinarily consume animal products express sympathy for particular cows who have escaped from a slaughterhouse.  We are accordingly not entirely desensitized to the kinds of animals whom we encounter most frequently in the form of flesh, dairy, and eggs. Yet many people do not immediately understand their reaction to Marius's slaughter as having anything to say about what (or, more accurately, whom) they choose to eat.  Indeed, even people who cheer for the escaped farmed animal often fail to connect the dots between that animal and the one on their plates as well, despite the fact that the same kind of animal is involved.  Why is that?

An important part of the answer lies in the concrete/abstract distinction.  When we cheer for a particular cow or pig to escape from her fate at the slaughterhouse, we identify with that individual animal and think about her specifically.  On the other hand, when people consume milk, they do not connect at all with the baby calf whose birth is what stimulates the cow to lactate and whose death at slaughter, if he is male (and often, even if she is female), is part and parcel of what must occur in humans' appropriation of another animal's baby food.  The harm we do to a cow when we drink her calf's milk or eat cheese or ice-cream made out of her calf's milk -- though real -- is abstract; we inflict the harm by demanding and soliciting more of it through our purchases.

We do understand the supply-demand connection in a market economy, of course.  This is why, for example, the Obama administration recently announced that it would be prohibiting much of the currently permissible import, export, and resale of elephant ivory within the United States.  Each time we purchase the parts and secretions of animals, including not only ivory but also the flesh and lacteal fluids of other mammals, as well as the flesh and ovulatory secretions of birds and fishes, we actively and effectively participate in the slaughter of those animals.

But it nonetheless does not "feel" the same way to most people when the victims of our behavior are not visible and determinate at the moment we solicit the wrongdoing.  This is why, for example, people have an easier time dropping a bomb than shooting a known individual at close range.  With the division of labor in a market economy can come a feeling of disconnection between our conduct and the impact of that conduct on living, breathing beings who literally become the products we buy.  Our moral intuitions tend to be tied to the concrete, because we historically could not as easily commit violence against unknown and abstract victims as we can today.  Taking to heart the lesson that harm to many unknown victims is morally no better than harm to one known individual, however, we can each begin to contribute to building a world in which the slaughter of living beings is an aberrant behavior.  This world would  be one in which we no longer solicit violence to sentient beings with our everyday consumption choices, any more than we would by shooting an innocent baby giraffe in the head at close range.

Tuesday, February 18, 2014

A Historical Perspective on Right-Wing Populism

By Mike Dorf

One of the fascinations of studying history is the discovery that what one regards as fixed constellations of policy positions were previously aligned very differently.  For example, modern-day liberals like myself have a hard time figuring out who are the good guys and who are the bad guys in the political fight at the turn of the 18th to 19th centuries between Jeffersonian Democratic-Republicans and Federalists. On one hand, Jefferson's party (and later Andrew Jackson's) was clearly the small-d democratic force, as against the elitism of Adams and the Federalists. On the other hand, the Jeffersonians were based in the South and their states' rights positions were tied to the preservation of slavery. Jeffersonian/Jacksonian populism was the populism of white men.

To be sure, one might try to see the past as it appeared to the the people of the time, without viewing it through the lens of contemporary concerns. But it is hardly clear that this is even possible. Moreover, ideas have lineages, and so tracing modern debates to their predecessors may shed light on our current circumstances.

Consider William Jennings Bryan. He was a populist who articulated the interests of the sorts of people who, two generations earlier, would have supported Andrew Jackson. In attacking the gold standard (for example, in his famous "Cross of Gold" speech), Bryan argued that by artificially restraining the money supply, it favored the interests of creditors over debtors. Looser money (as would arise from permitting the minting of silver as well as gold) would be expansionary, but would also pose a risk of inflation, which would favor debtors. The "little guys" who supported Bryan were more likely to be debtors than creditors, in part because they were more likely to be farmers than urbanites. (The Cross of Gold speech invoked both Jefferson and Jackson.)

Bryan attacked the banks and gilded-age industrialists. His populism was mostly continuous, although not completely co-extensive, with progressivism of roughly the same era, as most famously explained in Richard Hofstadter's classic, The Age of Reform. But whereas thinkers on the contemporary liberal/left side of American policy debate can look back fondly at progressives like Robert La Follette, Bryan is routinely held at arms' length because of his opposition to evolution (most famously in the Scopes "Monkey Trial") and the association of Bryan's band of populism with racism and nativism. Whereas La Follette was way ahead of his time on race, Bryan's populism appealed especially strongly to the remnants of the racist, nativist, and anti-Catholic Know-Nothing Party.

Seen in historical perspective, the modern conservative movement is an amalgam of, on one hand, the reactionary social conservatism of past populism (now expressed as anti-immigration, anti-gay, and still anti-evolution, with efforts to minimize public statements that are overtly racist), and, on the other hand, traditional economic conservatism. It combines the worst elements of Bryan's social legacy with the anti-regulatory attitudes of those who opposed Bryan.

The picture is complicated by the somewhat hostile attitude of the populist right towards the financial industry. Recall that the Tea Party began partly in reaction against the Bush/Obama bank bailouts of 2008/2009. Moreover, in recent months we have seen open political conflict between the Tea Party and traditional, read pro-business, Republicans--especially over the government shutdown and the question of whether and how to use the debt ceiling as leverage in fiscal negotiations. These conflicts might give the appearance that the contemporary populist right is more closely aligned with Bryan-style opposition to the banks than I have indicated.

But I think that would be a mistaken inference. For one thing, the rift that has opened between the Tea Party and establishment Republicans is largely over tactics, not goals. Both wings (the far right and the extremely far right) of the GOP favor fiscal austerity, but the establishment wing includes more pragmatists who are willing to compromise on principles in order to stay in power and thus to prevent otherwise winnable seats from going to Democrats who will be more pro-regulatory and less fiscally conservative.

Still, there may also be substantive divisions here. The Tea Party types tend to be more ideological than establishment Republicans. Put differently, the Tea Partiers oppose "crony capitalism" on principled grounds.

But it would be a mistake to code the Tea Party as anything but conservative as a result. The mugwumps--who were rightly regarded as fiscal conservatives in their day for their opposition to Bryan on the money question--also took shots at crony capitalism and gilded age bankers.

Finally, I want to be clear that in seeing the Tea Party as combining the worst views of past populists and past conservatives, I don't mean to be making any sort of claim about everyone who identifies with the Tea Party. Part of the Tea Party's early success resulted from its ability to deemphasize social issues, and thus to appeal to across-the-board libertarians, and I don't doubt that many across-the-board libertarians still support the Tea Party. But overall, the Tea Party is socially conservative as well as extremely conservative on fiscal policy.

Monday, February 17, 2014

Are Universities Special For Free Speech Purposes?

By Mike Dorf

Not long ago I received an inquiry from a Buzzfeed reporter about a bill in Congress that would pull federal funding from universities that participate (or whose sub-parts participate) in the boycott of Israeli universities. I'll come to the specifics in a moment, but first a few preliminaries.

Although I disagree with many of the policies of the Netanyahu government, especially with respect to the occupation of Palestinian territory, I also oppose academic boycotts of Israeli institutions. For one thing, the targets of such boycotts tend to be the sorts of Israeli academics who themselves are highly critical of Israeli policy, but more importantly, I think that the threshold for an academic boycott needs to be especially high.

It's one thing for a university (or other entity or an individual) to decide not to purchase goods on ethical grounds. Thus, I think it's perfectly sensible for student activists who oppose sweatshop labor to campaign to remove insignia wear manufactured by sweatshop labor from campus stores, both so that they don't participate in the exploitation occasioned by sweatshops and to put pressure on suppliers to find other sources. Like reasoning accounts for my own veganism. Accordingly, although I don't personally support BDS, I think it's perfectly legitimate for activists who do support it to urge universities to use their purchasing power and the power that comes with their endowment portfolios to try to pressure Israel--or any other country or a private firm or whatever--in that way.

But academics who boycott or preclude speech by other academics simply because those other academics are affiliated with universities in countries whose policies (or whose existence) the boycotters oppose, act contrary to the value of academic freedom. It seems to me that even very strong commitments generally ought not to be expressed in this way by academics. To use my own case as an example, while I don't eat or wear animal products, I wouldn't support a university boycott of speakers who do--much less a boycott of speakers who themselves don't eat or wear animal products but come from countries that promote such products. I don't want to say that academic freedom prevails in conflicts with all other values, but there does need to be some very special justification for a contrary result in any particular conflict. I don't see the supporters of the boycott of Israeli universities as having offered (anything close to) such a special justification, even assuming one agrees with their views about the Israel/Palestine conflict.

Having said that, I also oppose the bill to de-fund American universities that participate in boycotts of Israeli universities. The bill says, correctly in my view, that the boycotts violate academic freedom. But the bill itself violates academic freedom because part of academic freedom is the freedom (within some bounds) to define academic freedom (as I discussed here).

So much for my personal opinion as a citizen of academia broadly. What about my area of expertise? The Buzzfeed reporter who contacted me asked whether I thought that the bill is unconstitutional. I said that it was an undecided question under current law. Here is how she quoted me in the story she then wrote:
“As a general matter, government has considerably greater latitude to deny funding to speech and speakers with which it disagrees than it has to censor speech directly,” said Michael Dorf, a constitutional scholar and law professor at Cornell. “However, there are First Amendment limits to the funding power. Under the so-called ‘unconstitutional conditions’ doctrine, efforts to coerce — rather than merely to avoid funding — can run afoul of the First Amendment. Moreover, the Supreme Court’s cases have recognized that the First Amendment restrictions on the funding power are more robust when the entity to be funded (or defunded) is a university.”
I did indeed say all of that, as I was thinking about Rust v. Sullivan, the Supreme Court case that upheld the so-called "gag rule" that forbade certain federally funded doctors from talking about abortion. There the Court distinguished the power of government to choose not to fund an activity from its lesser ability to censor.  Even then, it went on to draw the two distinctions I noted: (1) The unconstitutional conditions doctrine; and (2) the possibility that there are special limits on the ability of government to control speech via funding when the funding recipients are universities.

Despite the fact that I did not draw a conclusion about the application of these or other principles to the anti-boycott bill, the story may give the impression that I was concluding that the bill violates the First Amendment. It does so by contrasting my view to a veiw expressed by Prof. Volokh. Right after quoting me, the story continues:
But Eugene Volokh, a law professor at UCLA and author of the Volokh Conspiracy blog, said he thought the bill was likely constitutional. 
“I think the bill would indeed be constitutional,” Volokh said. “Grove City College v. Bell (1984) held that the government may, despite the First Amendment, attach a no-sex-discrimination condition to government funds. Christian Legal Society v. Martinez (2010) held that a public university may, despite the First Amendment, require all groups that receive university benefits to accept all students, without excluding anyone. Likewise, the government may require recipients of federal funds not to discriminate against Israeli academics or institutions (or, more narrowly, not to boycott such academics or institutions).”
The story thereby implies that Prof. Volokh is disagreeing with me, whereas I didn't say that the bill is unconstitutional.

So, do I think the bill is unconstitutional? I wish it were but I'm not sure the case law can be made to support that result. I get to that result by a somewhat different route from Prof. Volokh, who expounded his view at greater length in a blog post here.

At first blush, Prof. Volokh's analysis seems beside the point.  In both of the cases invoked in the Buzzfeed quote, what was at issue was the application of a general-purpose nondiscrimination policy, rather than a law that specifically targeted speech. The Court did not consider a claim of academic freedom in either Grove City or Christian Legal Society, and such a claim would have been particularly weak in Christian Legal Society because the university was the source of the "all-comers" rule and students do not traditionally have academic freedom (although a well-run university will, in my view, give them a great deal of expressive freedom).

Now, of course, Prof. Volokh knows all of this, but as he explains in the blog post, he regards the anti-boycott bill as akin to the nondiscrimination rules in Grove City and Christian Legal Society in that it would forbid American universities from denying access to Israeli academics. As he notes, the bill would not target speech based on content or viewpoint.

I think that's a plausible view but I disagree. The bill does not say that American universities must be open to persons from all countries or even that they must be open to Israelis. It forbids boycotts. As the Court's labor cases and other cases recognize, however, a boycott has substantial speech elements. (See NAACP v. Claiborne Hardware Co.).  Accordingly, a law that forbids a boycott is a law that targets speech, not one that forbids or requires conduct that happens to infringe speech incidentally.

To say that a funding bill targets speech is not to say that it is necessarily unconstitutional, however, as Rust and other cases indicate. Rust left open the possibility that the government cannot use the funding power to control academic speech as readily as it can use the funding power to control the speech of other actors, and the issue remains open. As recently as 2006, in Rumsfeld v. FAIR, the Court again declined to decide whether the funding power is subject to greater restrictions when the funding recipient is a university than when it is some other actor. So I continue to think I'm right that this is an open question.

How should the open question be resolved? As an academic myself, I have a professional interest in special protection for universities, and I certainly can give hypothetical examples where the government's use of the funding power would be highly problematic. Suppose Congress were to withhold federal funding at any university that taught evolution in its biology department or that taught that man-made climate change is real in its environmental science department. Does the funding power really go that far?

I would like to say no, but it's hard to reconcile a universities-are-special approach with how the Court's cases treat journalists. Even though the First Amendment specificially protects the "freedom . . . of the press", the Court has said that reporters have no special right to shield their sources (Branzburg v. Hayes) and faces no special hurdles when it seeks evidence from a newspaper's files (Zurcher v. Stanford Daily). If the institutional press is not special for First Amendment purposes, then it is difficult to see why universities are.