We're Thinking About the Court All Wrong

So Justice Kennedy announces his retirement and the internet blows up. Liberals are screaming in fear because they believe the court will be stacked against them for the next 20 years, and conservatives (or whatever they are nowadays) are shouting in triumph that they will finally have a bulletproof majority on the Court.

All of this is wrong. All of it.

I get that the court is, by necessity, something of an all-or-nothing institution. When it makes rulings, its rulings stand - at least until a later court overturns them. Another casualty of the politicization of the law may be the stare decisis standard, which appeared to take a bit of a hit today in the Janus case. I fear that future courts, both right and left, will see their job as undoing the work of the "other side" in the previous generation.

The reality is that we live in a diverse, often divided nation. And we live under a political system that is supposed to value that diversity, and to produce outcomes that, however imperfectly, reflect everybody's voices. If only 20% of people want something, they shouldn't be able to impose their will on the other 80%. That's what we call democracy, and it's what we all claim to value.

Yet the celebration on the right, and the yearning on the left, for a court supermajority are both repudiations of these foundational ideals. It's not just that the court is (by some necessity) a non-democratic institution. How we think about the court betrays how little we really value our democracy.

Take the issue of Roe v. Wade, one of the most oft-cited cases for the importance of getting "your" side to dominate the court. I get that there are people who believe that abortion should be eradicated entirely. I also get that there are people who would like it to be restricted much more than it is. Just as there are people who think it should remain available, and people who would like to widen that availability. I spent a semester in grad school poring over General Social Survey data on Americans' attitudes towards abortion. They are diverse, and remarkably stable, and on balance tend to fall into the "keep it legal but hopefully rare" area, with a large standard deviation around that mean.

So if you celebrate winning a supermajority on the court so that Roe can be overturned and abortion made illegal everywhere, you're in essence saying that winning a complete and total victory on this issue is more important to you than democracy. That even if your view is only held by 20% of the American population, you think you should win anyway and impose that view on the 80% who think differently.

The alternative approach, which is actually far more consistent with our claimed democratic values, would be to try to persuade enough of that 80% to see things your way, so that your view prevails across the population. This is basically why gay marriage is legal now - not because a court said it should be, but because over the course of a couple of generations most Americans have come to agree that people should be able to marry whom they want. Want to change that? Convince them back the other way (good luck).

That approach hasn't worked well on abortion, as the GSS data shows. Hence the arguing over the court - and the hidden abandonment of democratic ideals.

You can substitute any number of other issues for abortion here - gun rights, labor unions, travel bans, take your pick. For those who take the "long view" on the court, who are looking out over the next 20-30 years, it's not any one issue. It's the desire to see "their side" win all of the battles over that period.

If we really believed in democracy - if we really believed that we make our best decisions collectively when everybody's voice is in the mix - we wouldn't want a supermajority on the court. Or a permanent majority in Congress, as Karl Rove used to dream of. If we really believed in democracy, we would want Justice Kennedy replaced with another moderate, swing-voting judge. If Elena Kagan stepped down, we would want her replaced with another liberal justice. If Clarence Thomas retires, we would want him replaced with another conservative.

If we really believed in democracy that's what we all would want, regardless of our own personal views. But we don't really believe in democracy. We only support it when it means we get to win.

All of this is compounded by the fact that we are living through the most anti-democratic Presidency in modern US history. Trump has not the slightest regard for the views of others, and - by his own repeated admission - he wants to win all the time. He doesn't care about what other people think. If he could impose his will on the world, he would, even if nearly everyone disagrees with him.

The mood of the country as a whole is increasingly anti-democratic. Sure, lots of folks are saying, go out and vote. Voting is not a reliable indicator of democracy - just ask Zimbabwe, or pre-1990 South Africa, or Saddam Hussein's Iraq. On all sides, the act of voting - indeed, all political acts - have taken on existential proportions. Everything has become Chuck Norris' "1000 years of darkness" warning, on all sides.

Don't believe me? Watch Tucker Carlson, speaking to a national audience of millions, equate the desire to welcome immigrants with suicide. Translate that into Kinyarwanda and Carlson would fit in nicely with RTLMC radio just ahead of the Rwandan genocide.

This is not Schoolhouse Rock America anymore. We are not e pluribus unum - rather, our motto ought to be e unum pluribus. Out of one have come many. Where there was one nation, united by a common set of political values, now there are many, divided by fear and anger and hatred.

For those who look at Kennedy's retirement and say, this is why I voted for Trump - who believe that for all of his faults and problems, it was worth it to "secure the court" for the next generation - you're entitled to your reasons. If you feel happy today, you're entitled to that too. What you're not entitled to do is claim that you value democracy. Because in the end, if we don't value each other more than we value winning out over each other, then what are we?

Laws, Norms, and War: We Have Met the Enemy (again)...

As President Trump continues to flirt with the idea of hitting Syria with missiles, some in Washington have started asking whether the President has the legal authority to do so. This question makes little sense to most Americans, who have long assumed that Presidents (whom we refer to as "Commander-in-Chief" more often than by any other title) can do whatever the heck they want with the US military.

But the question does bear consideration. Lame-duck Speaker Paul Ryan opined today that the President doesn't need any legal authority beyond the Authorization to Use Military Force (AUMF) passed by Congress in the wake of 9/11. Others have pointed out that that particular AUMF is a little long in the tooth (nearly 17 years), and it's stretching the original meaning well past any reasonable interpretation of the original intent to suggest that an authorization to go after al Qaeda and its affiliates somehow covers military strikes on the Syrian government, which hates AQ and its ilk.

The Framers of the Constitution never intended the President to be the one to decide whether the US goes to war. The power to declare war is listed under the Enumerated Powers of Congress (Article I, Section 8). That same section also gives Congress the power to create (or not) an Army and a Navy. For all that conservatives in the vein of the late Antonin Scalia like to talk about the Doctrine of Original Intent, none have ever felt any qualms about the complete abandonment of the obvious intent of the Framers on this issue.

That being said, here we are. The US Congress has not declared war since December 1941, and appears unlikely ever to do so again, even though the United States has been involved (often heavily involved) in a great many wars since the end of WWII. Sometimes, in a salve to the Constitution, they pass an AUMF as a way of saying, "See! We still have a say!" But often, even that doesn't happen.

My friend Vaughn Shannon pointed out recently that, while President Obama came under a lot of criticism for not striking Syria militarily back in 2013 when the question of chemical weapons first came up, this is not nearly the whole story. President Obama believed that, in order to strike a sovereign government in Syria, he would need (at minimum) authorization from Congress. That Congress, controlled by Republicans disinclined to given Obama anything that might benefit him politically and still stinging from the Iraq debacle, declined. Under the rules as he understood them, therefore, President Obama could not strike Syria. The fault was not his, it was Congress'.

All of this is to say nothing, of course, of international law. The UN Charter expressly forbids an attack on a sovereign member state except in self-defense or under the authorization of the Security Council. Most Americans have long since forgotten that the United States wrote those rules, though we have long ignored them. (Bonus points for anyone who can name the two incidents in history where the UNSC actually did authorize war.)

Usually, the way to settle questions of law is to go to court. But US courts have long declared that they have no intention of touching this question with a 10-foot pole, so there's no help there.

Congress, of course, only exercises the war power when they feel like it politically, and when the President feels like asking them to. This has devolved into a situation where the President is given broad leeway, and where people support or oppose acts of war based on which party they belong to. So much for politics ending at the water's edge...

How did we get here? Like a great many bad decisions, the roots lie in fear. After the Cold War, we very quickly became afraid of a resurgent Soviet Union and the global Communist menace. In that fear, we allowed successive Presidents to commit US forces to various and sundry military adventures, including the Vietnam debacle now memorialized by over 50,000 names carved in black stone in Washington.

The problem with using law as a guide to the US' use of force is that the law must be interpreted first. As another friend of mine, Steve Saideman, pointed out recently, everyone in Washington has their own lawyers. The White House has lawyers, the Pentagon has lawyers (both in the Office of the Secretary of Defense and in the Joint Staff, which serves the military side), the State Department has lawyers, Congress has lawyers. Lawyers generally come up with arguments explaining how whatever their masters want is on the right side of the law - witness the infamous "torture memos" drawn up in the George W. Bush administration by John Yoo and his colleagues.

So the original question - does the President have the authority to launch strikes on Syria - isn't actually a legal question at all. It's a political question. And how we answer it turns very much on how we understand both the rules supposedly enshrined in law, as well as the norms underlying those rules.

In general, laws only function when people accept their legitimacy - that is, when they buy into behavioral norms that underpin the laws. Take those norms away, and the law becomes merely a rhetorical device, a talking point for pundits to argue about. The very idea of being a "nation of laws" rests on our willingness to actually behave as if the laws matter more than what we happen to want to do at any one moment.

As Steve Saideman and others have pointed out, this is where the Trump Administration has done perhaps more damage than in any other area. Norms have been eroding for years, of course, and any reference to a "golden age" of norms in the past is probably mythical. But Trump, who more than any other President is the embodiment of his own administration, actively rejects all norms. He doesn't think they exist, or if they do they only exist for suckers and losers. He believes himself to be unconstrained by any rules - laws, norms, social understandings of shame, you name it.

And so in the coming days, the Trump Administration may attack Syria with missiles or bombs. Such an attack will likely accomplish nothing, as I have argued elsewhere. But as it will come with neither blessing from the UN nor authorization from Congress, it will be one more erosion of the norms that once governed US military force, however imperfectly. In so doing, we model the behavior that the rest of the world will emulate. We are creating the world we claim we don't want, and then blaming everyone else for it. Perhaps we, like our President, need to grow up and face the world like adults.

Religious Convictions, Public Behavior, and the Mythical Quest for Purity

In the wake of the US Supreme Court's decision legalizing gay marriage across the country, a number of quite-predictable rearguard actions have sprung up. Many of these revolve around "religious conviction" exceptions, based on the argument that no one (public employee or otherwise) should be required by law to engage in behavior which violates their sincerely-held religious beliefs. As one lawmaker put it in North Carolina, "Just because someone takes a job with the government does not mean they give up their First Amendment rights." A cake baker has apparently also decided to take his case to court, lest he be sanctioned for discriminating against gay couples in the making of wedding cakes.

I find this argument deeply troubling on many fronts. It strikes me as a species of other arguments people make which use the trappings of commonly-held values (in this case, the language about rights and freedom) to advance the opposite. I'm not 100% sure that's what's happening here in all cases, so I'll leave that broader issue aside and focus on a number of more specific ones:

• While the Supreme Court was arguing the Obergefell case, a number of parallels were made to Loving v. Virginia, the 1967 Supreme Court decision which struck down laws outlawing interracial marriage. Across American society today there is very little opposition (at least in public) to interracial marriage, and we tend to chalk the history of such opposition up to the blatant racism which once ruled much of white society. We forget, to our peril, that much of that racism had a very sincerely-held religious dimension to it:

In this counter-protest photo from the civil rights era, in between the "race mixing is Communism" signs is one equating "race mixing" with the "march of the Antichrist". It's a pretty safe bet that for folks making that argument, this was a sincerely held religious belief. Were public and private individuals excused from following the law in the wake of the Loving decision? Was racism OK because it was cloaked in theology?

• There are a great many other legal parallels related to the broader argument. The core of that argument is that it would violate someone's First Amendment rights to religious liberty to pressure or force them by law to participate in some activity of which they personally disapprove on religious or theological grounds. This was part of the argument behind the recent Hobby Lobby decision, although that decision also created the somewhat novel conclusion that corporations have religious beliefs.

During the Civil Rights era, we had a very different view. At the time many businesses (restaurants, hotels, and all manner of other places) routinely discriminated against blacks. Many of those businesses' owners undoubtedly held strong religious convictions about the "mixing of races". And yet, none were allowed to use those convictions as a shield against the law. The legal doctrine of "public accommodations" meant that, if you serve the public you have to serve the whole public - not just those folks you feel like serving. That's what anti-discrimination laws are about.

There's a broader issue here - the extension of the First Amendment into what might be termed a Quest for Purity. What people seem to be asking for is that they be allowed to completely disassociate themselves from anything that violates their religious principles. But where is that line? Does making a cake morally involve the baker in the wedding? Does processing paperwork in a courthouse indicate individual moral approval?

The fact is that we are all involved in many transactions each day that bring us into contact with things to which we might well have religious objections. My tax dollars go to support wars overseas which I find fundamentally immoral, and certainly indefensible within my theological view. But I don't get to withdraw that support selectively. The government can't draft me to fight in such a war - there's an example of a religious exception - but I can't escape being connected to it.

Legally and culturally, what these folks are asking for is a morass. If every individual, regardless of job or responsibility, gets to pick and choose whom they will or will not engage in transactions with, things could go sideways quickly. Over the medium term, I would expect to see even more Balkanization or "voting with one's feet" than we already see - people retreating into enclaves (neighborhood, school, church, business networks, etc.) of people who are only like themselves.

When that withdrawal is complete - as it largely is with the Amish community - that's OK, especially when it's a small minority that doesn't mind being cut off from the rest of society. And even the Amish don't refuse to do business with the rest of us, even though in their eyes most of us are sinners. But the people who are making these "religious conscience" claims want to have it both ways - they want to engage in society and participate in its wealth and power, but they want to be selective about it. That way lies madness, I fear.

• As much as the debate will focus on law - what individual judges or cake bakers are or not permitted to do without legal sanction - the legal side of this case is less interesting to me. Just as the theology of racial segregation largely vanished from mainstream institutions within a generation or two (though it still exists in dark corners, as Dylann Roof demonstrated), I expect that religious views on homosexual relations will also evolve. Indeed, they already are:

- Jimmy Carter (possibly the nation's most famous Southern Baptist) has publicly broken with the Southern Baptist Convention over this issue.

- Tony Campolo, one of the most prominent public evangelicals in the US, has come out in support of gay marriage after years of opposing it on religious grounds.

Granted, both of these guys have leaned left over their careers and have been to some degree left behind by the rightward drive of their own churches. Both have received plenty of pushback for the statements they've made, some of it pretty harsh. But that's to be expected. I suspect that, in a generation or two, our children and grandchildren will look back and wonder what all the hullabaloo was about.

• What's really interesting to me is not what the law says. It's the "religious conviction" arguments that people are making and the religious understanding behind them. The vast majority of folks seeking religious freedom exemptions in these cases are doing so from a Christian standpoint. And while I can understand (although I don't agree with) Christians who regard homosexual marriage as theologically inappropriate, I don't understand their desire to disassociate themselves from it to such an extreme degree.

Many Christians, even today, find divorce morally problematic. Given the passages in Matthew 19 this is understandable, even though others may interpret those passages differently. Given this, are there county clerks who refuse to issue marriage certificates to people previously divorced? Are there bakers who ask if either of the couple has been married previously before baking a cake? My guess is, probably not.

In Christian theology there are many sins - that is, many things which can separate a person from God. In some Christian views, no sin is worse than another - all have the same effect of sundering the relationship between humans and the divine. In other views there is something of a hierarchy - the Catholic church, for example, has famously raised up seven "Cardinal" sins in particular as the most dangerous. Yet in none of these views is homosexuality given a unique position in the pantheon of sin, as being worse than all others. On those grounds, therefore, it's hard to see why one would religiously discriminate against homosexuals but not, for example, against greedy or violent people.

Even the repeated assertion that "the traditional Biblical view of marriage is between one man and one woman" is challenged by the numerous references (some of them quite favorable) to polygamy in the Old Testament. Politicians who have recently argued that the Obergefell decision will lead to the sin of polygamy next should perhaps read their Bibles a little more closely...

The truth is that views of marriage and relationships have always been cultural, and have always been changing. A couple of centuries ago we still considered wives as property, and marriage was structured as such. Adherents to that view embedded it in their theology, and there were plenty of "sincerely held religious beliefs" supporting legal and social structures that we would find abhorrent today. Despite claims by some that "God never changes", our understanding of God and God's will have changed a LOT over the centuries. Somehow, we always manage to "discover" a theology that fits with our current cultural views and norms.

This is not to say that religious beliefs aren't sincere, or that the search for truth about God isn't important. I don't advocate throwing up our hands and retreating into some kind of radical relativism. What I do think this suggests is the need for humility. People in the past have been wrong - not just wrong by the standards of our day, but wrong. We didn't abolish slavery because we changed our minds and now things are different - we came to view the ownership of any human being by another as contrary to the will of God for humanity as it always had been.

So how best to wrestle with these issues? I think the warning about the speck in your neighbor's eye in Matthew 7 is instructive. We are called to look to ourselves first and foremost, rather than trying to control the behavior of others. Some have suggested that these "religious exemption" arguments for county clerks are a way of making sure that no gay weddings take place in certain communities - that is, a back-door way of trying to control other's behavior. I'm sure there's some truth to that.

But the gospel doesn't call us to control the behavior of our neighbors or to make sure that they don't commit what we think are sins. It also doesn't call us to remove ourselves from the world and refrain from contact with any sinful thing - although that's not what these "exceptionalists" want anyway, since they're not trying to disassociate themselves from any other sins. The only clear direction I can see: love one another. Try as I might, I can't find any qualifiers on that - it's not "love only the people you approve of" or "love only the people who are behaving the way you think they should". Matthew 5 is pretty clear on that subject, it seems to me.

So in a certain sense, I would welcome more religious discussion in this context. If you want to express your faith through your action in the world, great. Just make sure - in all humility - that it's the faith you really claim, and (ideally) that it's a faith that pulls people in and builds them up, rather than tearing them down. I see nothing "Christian" about this wave of rejectionism. Eventually, I hope they see it the same way.

Resolving Conflict is Simple - It's Just Not Easy

There's a lot of conflict in the air as we enter the new year. Various factions in Washington are in conflict over the Federal budget. Various factions in society are in conflict over gun restrictions. And some hard-core tribalists want to continue the conflict that played out during the election.

I have spent my entire adult life studying conflict - how to analyze it, how to understand it, how it gets resolved. Conflict resolution, as hard as it is to achieve, is really very simple. Not easy, but simple. Because there are (on the whole) only two ways that conflicts get resolved:

1) One party beats the other into submission and takes what it wants - the "winner take all" ending.

2) Both parties come to an agreement that ends the conflict - the voluntary and mutual ending.

The essence of civilized politics - the grand discussion of political philosophy for the past 400 years - is about how we get rid of the first outcome and enable the second, and how when outcome #1 is necessary the decision is made objectively on the basis of rules we all agree on ahead of time, rather than on who has the most power.

The systems we have built to accomplish these ends aren't perfect, and still need a lot of work. But on the whole, we've come a long way - Steven Pinker's observations about the decline in violence are only one indicator of our progress. And the march of that progress is, to a significant degree, a measure of our advancement as a civilization. The less we take from each other by force, the less we allow the strong to lord over the weak, the less we end our arguments in fistfights (or gunfights) rather than agreements, the better we are as a people. The recent massive protests in India, to take just one example, are a reflection of a shared human desire to beat back the barbarity that took that young woman's life and impose a more civilized society based on mutual consent.

To a substantial degree, this is an unremarkable observation - few of us want to live in a broadly winner-take-all, dog-eat-dog society. The problem comes, of course, in the particulars. When it comes down to particular issues, some forget the bedrock of mutual civilization in their desire to Win and Be Right.

What do I mean? Here are a couple of examples:

• In his address a week following the Newtown shooting, NRA Vice President Wayne LaPierre continued his organization's unwavering opposition to any legislation placing any sorts of restrictions on firearms. In a speech labeled by commentators across the spectrum as "tone deaf", Mr. LaPierre blamed everybody in reach and drew a simplistic "good guys/bad guys" view of the world. This is not the first time that the NRA has signaled its aversion to dialogue. Many of its most hard-core supporters cheered his stance, continuing a deadlocked "discussion" that has frustrated a great many Americans who would like to find a way forward.

• The following Facebook meme showed up on my FB feed today (posted originally by a FB group, the Conservative Club, with over 8500 followers - not enormous, but not a trivial number either):

The core message here is one of tribalistic bravado - "we're not gonna take it anymore!" Of course, what exactly these folks propose to do (aside from call their opponents childish names) is left to the imagination. But the gut feeling here is clear - we will win and they (morally bankrupt, Godless, soul-less evil Communists) will lose.

We spent much of 2012 listening to rhetoric from folks like Mr. LaPierre and the Conservative Club. In the context of an election, it was easy to dismiss this as pandering for votes - even as some of us worried about the corrosive effect on society as a whole. Now at the start of the new year, nearly two months after the election, there seems to be a lot of this kind of barbarity still around.

I use the term "barbarity" here not for hyperbole, but for its definition. If your approach to politics (or any conflict) rests on an unwillingness to dialogue, discuss, consider, compromise, or hunt for mutual solutions, you stand against the basis on which civilization is built. Refusing to look seriously for a mutual agreement while rejecting the rules we have set up for resolving disputes (as the Conservative Club's ill-considered meme does) is simply to say, "I'm right, you're wrong, and I'm going to beat you senseless until I win." Or, to give a real-world example of this kind of "dispute resolution" in action:

Tenants killed in snow-shoveling row

This landlord in Maine apparently decided that the only way to resolve his dispute with his tenants was to kill them. I doubt we'll hear Mr. LaPierre, or any NRA supporters, discussing this case.

So we as transition from one year of rabid partisanship to another, let's try to remember that the most basic disagreement in our society isn't between Democrats and Republicans, or between Right and Left. It's between those who think that civilization is based on reason, evidence, the search for mutual agreement, and the rule of law; and those whose adherence to dogma (Right, Left, or otherwise) will drive them to reject anything - reason, evidence, compromise, or law - that stands in the way of their total victory.

Tim O'Brien, recipient of the 2012 Richard C. Holbrooke Distinguished Achievement Award, gave a speech recently in Dayton. In that address, he talked of his own experience in Vietnam, and the "two heads" (Left and Right) which have argued in his own mind ever since about that war. He expressed great concern about those who make the "one headed" mistake - thinking that they are right, that they know everything there is to know, and that there is nothing left to do but beat their opponents into submission. To the extent that this thinking gains the upper hand in our society, we are in real trouble. Let's hope that 2013 sees an increase in reasonableness and a retreat from dogma.

The Point Where You Need to Stop Listening To Your Lawyers

Despite years of work to stamp it out, hazing remains a serious issue on many college and university campuses. The most recent case to make headlines involved the death of Robert Champion at Florida A&M in a hazing incident last year.

Note that the facts are not particularly in dispute here. The autopsy report (you can get to it through the story linked above) ruled his death a homicide. The university's president subsequently resigned.

Unsurprisingly, Champion's parents have sued several defendants, including the university. One presumes that the Florida A&M legal team has been preparing for this since day one - this lawsuit was as predictable as the sunrise.

But rather than try to reach a settlement - much as Penn State has indicated it will do with the victims of its recent scandal - FAMU has decided to fight the suit in court. And, apparently listening to the "admit nothing, contest everything" school of legal defense, they have adopted this as their primary response:

Florida A&M Blames Victim in Hazing Death

That's right - in a case of verified homicide, the university has decided that being a murder victim was the victim's own fault. Never mind the volumes of research about the psychological pressures that lead people to participate in hazing, establishing beyond a doubt that the answer to hazing has never been Nancy Reagan's "Just say no."

There comes a time, especially in extraordinary cases like this, where you should stop listening to your lawyers, fall on your sword, and do the right thing. If this lawsuit goes before a jury, it's hard to imagine a group of 12 folks - some of them likely parents themselves - accepting this line of argument. Moreover, even if they do manage to "win" the lawsuit, they will be forever known as the university that blamed the murder victim for his own death.

Frankly, I find it hard to say much more about this. This is so obviously horrible, such a clear failure of both moral vision and rational self-interest, that it boggles the mind. One wonders how the rest of the university community, or its alumni base, will react. I hope that some group - perhaps the faculty, or alumni, or students themselves - can put a stop to this madness before the current administration destroys what's left of the institution's credibility.