Fervent Fringe

Throughout this election cycle, media outlets have carried story after story describing the sharp rhetoric of fringe conservative groups and candidates. In that vein, Politico today highlights the striking statements of a Republican House candidate in Texas who advocated armed resistance in order to recover "our liberties and our freedoms." Although the candidate, Stephen Boden (who is, ironically, a pastor), had enough sense and political tact to qualify his statements by admitting that revolution is "not the first option," he did not retreat from his fundamental belief that "[o]ur nation was founded on violence."Nothing could be further from the truth.

Politico's article details how many of these extremists attempt to ground their militant philosophy in American Revolutionary ideals. As the article also points out, however, most of these purported linkages are nothing more than half-truths and misinterpretations of history. For instance, while the American Revolution was certainly the means by which this nation was emancipated from British rule, it is beyond ridiculous to view that undertaking as establishing an American predilection for violence. To do so ignores both the actual premises of the Revolution -- the 'self-evident truths' stated (one assumes for good reason) in the Declaration of Independence -- and the sustained efforts made by the Founding Fathers to avoid armed conflict with the British Empire. Diplomacy and debate were and are the proper weapons with which to oppose governmental policies with which one disagrees.

Ignoring the obvious paradox inherent in advocating the overthrow of the same government body for which one is campaigning, statements like Boden's are unfortunate because they obscure the beneficial functions of government in an effort to invoke self-serving populist anger. This is distasteful for several reasons. First, it is utterly unrealistic; however 'independent' Boden feels and wishes potential constituents to feel, the truth of the matter is that none are likely ever to forcibly oppose the federal government in a manner that bears any resemblance to a political revolution. Any attempted "overthrow" of the government would violate numerous laws and pose a very real threat to the safety of countless innocent people. Assuming Thomas Jefferson did personally believe that cyclic revolutions were good for the health of a nation (a rather simplistic interpretation that largely ignores the complex nuances of Jefferson's personal politics), that view is anachronistic in today's complex global society. Even if it were not, however, Jefferson's belief was unequivocally repudiated by the Founding Fathers' choice to establish a more stable government than he envisioned. The Constitution they crafted was clearly not "founded on violence."

More importantly, however, such threatening language is disingenuous and poisonous to public debate. Presumably, Boden and those like him -- as candidates for federal office -- would prefer to actually serve in Congress if elected. This would require that Congress remain an established government body. Moreover, it is quite likely that Boden would appreciate the support of his constituents while in office. Presumably, then, this call to violence is only temporary -- a hard observation to accept of violence is indeed fundamental to the American way of life. Boden's is an attempt to tap into disappointment, fear, and displeasure in the electorate, something almost every opposition candidate does in order to secure support for his or her message. The important difference, however, is that Boden and others who employ this sort of rhetoric go too far; they cast government and public servants as inherently and eternally evil, corrupt, and burdensome. This is not necessarily true and patently unfair.

It is often perilously easy for candidates to heap blame on incumbents and the system of government generally. To some extent, this represents the usual (if less than desirable) course of politics; such allegations are standard fare during election season. Rhetoric like that of Boden and other extremist candidates, however, is especially pernicious and goes beyond the pale. Thankfully, for this reason even members of his own party have quite rightly disavowed his assertions. Yet the cumulative effect of such statements during this election cycle has already begun to be seen: dramatic increases in the number of serious threats toward Members of Congress; drive-by shootings at district offices; and physical altercations.

With occurrences like these on the rise, it is more important than ever to remember that this is a self-governing nation and that government is essential to our way of life. As the spokesman for one GOP candidate stated in response to one such incident, "In this country we settle differences at the ballot box." Candidates act irresponsibly when they threaten secession or advise citizens to use their "Second Amendment remedies" against the government. The Founding Fathers, who actually fought wars to establish our current government and to secure the promise of liberty for posterity, would certainly look with disfavor on such callous calls for insurrection.

Unrestrained Originalism

Today Politico carried an opinion piece by Carrie Severino, Chief Counsel and Policy Director for the Judicial Crisis Network (formerly known as the Judicial Confirmation Network). Severino harshly criticized President Obama for espousing an "image of originalism [that] is detached from reality" and went on to accuse the President of seeking to challenge the very constitutional structure of the government. Severino's harangue, however, is problematic on several counts.

As an initial matter, it is important to recognize the motivation behind Severino's critique. Though the Judicial Crisis Network (JCN) purports to abhor the "politiciz[ation] [of] the enforcement of the law" and seeks to ensure only "the rule of law," it is rather plainly understood by most to be a conservative organization that actively seeks to influence the legal system through political channels. Of course, there is nothing wrong with political groups from all parts of the ideological spectrum voicing their opinions on the qualifications of judges; in fact, it is supremely healthy for citizens with diverse views to debate issues with respect to the operation and direction of the law. It is rather hypocritical, however, for the JCN to decry the politicization of the judiciary while simultaneously railing against the "radical liberal political agenda" of the Democratic Party and seeking to manipulate judicial elections. It is difficult to square these actions with the ostensibly neutral mission of the JCN to ensure a "fair and impartial judiciary." While conservative commentators are perfectly entitled to hold and promulgate their views, denying a partisan agenda where one clearly exists is simply disingenuous.

Severino's article labels as "clever backpedaling" President Obama's recent emphasis on judicial restraint, making the interesting allegation that his criticism of conservative judicial activism is tantamount to rejection of Marbury v. Madison. Though Severino makes several very valid observations about judicial activism among past "liberal jurists," her claim regarding Marbury is far too broad and ultimately incorrect. This is because the validity of her argument turns not on any fundamental constitutional principle, but almost exclusively on her own enthusiastic endorsement of originalism as the preferred mode of judicial interpretation -- particularly originalism as practiced by the conservative Justices on the Supreme Court. Specifically, Severino asserts that,

"He [Obama] characterized the conservative reliance on the Founders’ original intent as leading to some sort of judicial power grab. The president equated originalist jurisprudence with an activism that ignores the will of Congress. His image of originalism is detached from reality. Even if true, his criticism would be useless, unless he is suggesting we reach back to 1803 and overturn Marbury v. Madison."

This argument makes several implicit assumptions that are highly questionable: (1) it equates judicial restraint with originalism; (2) it treats the originalist approach to judicial interpretation as the only correct method; and (3) even accepting arguendo that originalism is how the Court should interpret the Constitution, Severino's argument assumes that the originalism practiced by the Supreme Court accurately yields the "Founders' original intent." These assumptions are suspect on several grounds.

First, it is hardly clear that originalism itself is an adequate check on judicial activism. Though theoretical adherence to the intentions of the Founders would certainly circumscribe the power and practice of the Court, exactly what the Framers actually intended is highly controversial. Leaving aside the fact that the Framers themselves hotly debated how the Government should be structured and continually disagreed on many crucial issues, there is simply no purely objective way in which to ascertain such a uniform intent even if it could clearly be shown to exist.

Most cases in which the Framers' intent is important are those in which constitutional provisions are ambiguous or altogether silent. In such situations, Justices seeking 'original intent' have no recourse but to look to other historical materials such as publications, records, notes, memoirs, and prior legal cases. Even today, countless eminent historians, political scientists, and jurists continue to mine these sources for new insights and one would be hard-pressed to articulate conclusions on which they all agree. To be sure, attempting to learn what history and our traditions have to teach us is an invaluable tool, but to assume that a Supreme Court Justice is somehow more able than generations of scholars to discover, discern, and distill such an elusive object as the subjective general intent of a deliberative body that existed over 250 years ago is questionable to say the least.

More to the point, it is highly unlikely that Justices engaging in such a nuanced investigation -- whether they be liberal or conservative -- can discard personal biases or preconceptions to the extent required to ensure judicial restraint. This is one reason why many scholars have taken issue with the originalist approach and why it remains a topic of controversy in legal scholarship today. Purely because it is controversial does mean that originalism as a theory is unsound, but it does call into question its veneration as a panacea for all constitutional ills. Originalism as a theory is actually quite young, emerging in its modern form during the 1980's, and it can give rise to very real logical, doctrinal, and social complications. Thus, Severino's elision of valid objections to the theory -- and her unquestioning adoption of originalism as the solution to judicial activism -- severely undermines her argument.

Finally, even if it were the best way to effectively balance power between the branches of the federal government, it is hardly clear that the current Justices of the Supreme Court practice pure originalism. Few modern observers of the Court can honestly maintain that personal politics have no impact on how individual Justices (of all political leanings) rule. Because every case that comes before the Court is heard precisely because the law is ambiguous, decisions in controversial cases are often guided by other considerations such as morality, public policy, equity, etc. Whether or not one believes that this is proper is irrelevant -- the point here is that the influence of politics and personal beliefs on the jurisprudence of the Court can be readily observed. This calls into question Severino's apparent belief that the Court currently methodically and mechanistically applies the tenets of originalism.

Severino's criticism of President Obama demonstrates that the JCN embraces a conservative political agenda that values and espouses originalism. Such a position certainly has a place in the national debate. Her hyperbolic claims about overruling the "Marshall court of 1803," however, are wrong. While the Supreme Court is certainly empowered and obligated to act as a check on both Congress and the President, the Legislature and the Executive were designed to be a check on the Judiciary as well. The notion of the separation of powers presupposes individual powers to separate, and deference to the will of the legislature is emphatically not the same as saying that the Court should act as a "rubber stamp." Rather, it articulates the belief that the powers accorded to Congress in Article I are coequal with those vested in the Court by Article III and as such are deserving of respect and judicial deference when within the scope defined by the Constitution. This view is hardly unique to President Obama.

Moreover, even if one assumes that Severino's conception of the system of checks and balances is correct, it simply does not follow that originalism is the only -- or even the best -- way to achieve that scheme. It is actually quite ironic that Severino displays such respect for Chief Justice Marshall and his decision in Marbury. After all, in another of his most famous cases, McCulloch v. Maryland, Marshall himself proclaimed that ours is a "Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs" -- not quite an originalist sentiment.

War on Education

A disturbing report concerning education policy in Texas cautions that the national textbook market may soon be flooded with products that advocate rather than educate. The Lone Star State recently approved changes to social studies, economics, and history textbooks that would drastically alter what the next generation of students learn. While the School Board has yet to finalize the changes (there is a required period of public comment), the initial 10-5 vote for approval suggests that acceptance is all but assured. Perhaps unintuitively, policy decisions concerning education in Texas -- ostensibly a local issue -- spawn potentially national ramifications because "the Texas School Board effectively spells out requirements for 80 percent of the nation's textbook market." Thus, it is important to take notice of how the materials for the nation's students might be altered.

The changes proposed by the Texas School Board have generated so much consternation because they would require that educational materials include questionable elements that impose an admittedly conservative gloss on their contents. Neither end of the political spectrum denies the somewhat flagrant manipulation at issue. While critical members of the School Board decry the move as an attempt to promote an extremist ideology, the conservative majority maintains that "academia is skewed too far to the left" and that "balance" must be restored. In all fairness, this is not an argument that should be dismissed out of hand. Education is a dynamic and vital part of our national culture and it should represent many different viewpoints fairly and accurately. An educational system that advocates only liberal ideas is as flawed and undesirable as one that stresses conservative beliefs, and it is frankly questionable to expect that liberal adherents are the best proponents of conservative aims. Tensions between political ideals and contested values are built into the American system in countless areas precisely so that oppositional ideologies will be respected and adequately represented. As such, a claim of imbalance or bias deserves -- indeed demands -- conscientious examination.

The conservative position is misleading, however, because it willfully ignores the essential natures of opposing educational philosophies -- undermining neutrality while purporting to achieve balance. Clearly, the goal of any educational system should be to produce intelligent, well-equipped students who possess the knowledge and abilities required for them to achieve success and become valuable citizens. The fundamental question in a democratic and deeply diverse society is how to most effectively and fairly achieve this goal. In point of fact, conservative critics who lament that "academia" generally embraces liberal ideals more readily could be correct. There is some evidence that universities and other centers of learning sometimes demonstrate left-leaning tendencies. There are several reasons, however, why the converse -- or even an increased focus on conservative values in the name of compensation -- is undesirable if one is to achieve legitimate educational goals.

The most salient argument is that a liberal educational philosophy generally values and seeks to expound as many differing viewpoints as possible while a conservative philosophy by definition must reject some ideas in order to preserve what are designated as vital principles. It is important to recognize that this observation is judgment neutral -- it says nothing about the actual value of the principles at issue or the importance of teaching those ideals to students. A conservative philosophy may, in fact, emphasize perfectly laudable concepts but it is dishonest not to acknowledge that a perspective focusing on conservation of values and beliefs is in tension with an appreciation for the inclusion of opposing ideas. One cannot conserve one way of thinking while expanding and incorporating novel concepts. The conservative model may be appropriate for some instances; for example, in a homogeneous society where core principles are universally shared and consistently rearticulated. It is woefully inadequate, however, for a fast-paced, dynamic, and heterogeneous nation composed of strikingly diverse citizens who hold infinitely varied views on almost every subject. Survival and success in such an environment is contingent on an ability to appreciate and understand beliefs that differ from one's own -- skills that are not gleaned from educational materials delimited by idiosyncratic perspectives.

Support for this analysis can be found in a brief review of several of the changes tentatively approved by the Texas School Board:

I. "A greater emphasis on the conservative resurgence of the 1980s and 1990s."

This directive would require more or better converage of conservative and antifeminist activisit Phyllis Schlafly, the Moral Majority, Newt Gingrich, etc. The School Board is correct that such information should be included in educational materials and given the appropriate weight. It is, after all, important that historical changes in political and social culture be accurately documented, preserved, and taught. "Greater emphasis" may be actually be required if the information from this period is not presented appropriately relative to other material. This, however, does not appear to be the case.

While pleasing to conservative persons, the 20-year span at issue is hardly an historical moment that inherently transcends other social and temporal periods. This is not the same as saying that important achievements were not made or that so-called 'liberal' eras should receive better treatment -- it is just as important to emphasize past conservative periods and to compare one brand of conservatism to another. The overall point is that students must learn to contrast and form their own conclusions, because both private and civic life will require that they do so. Designating such a brief time as especially important because some the prevailing political ideology compelling is simply misleading and irresponsible.

II. "Changes in specific terminology."

This suggestion would alter certain terms in order to introduce new connotations for traditional ideas. Examples include changing American "imperialism" to "expansionism," "capitalism" to "the free market," and "stressing favorable depictions of America's economic superiority across the board." Not only are these inventive alterations in many cases less precise, they are also patently unnecessary to serve any purpose other than blatant political manipulation. It is frankly wrong to implicitly deny points in history where American actions are accurately described by negative terminology -- especially when such labels are freely applied to similar actions by other countries. Without acknowledgment of its own errors no nation can learn, improve, and move forward.

Similarly, it is not the place of economics textbooks to extol the virtues of the American system over those of competing designs. It may be that the American economic system is superior and any commentator is certainly free to say so in articles, books, papers, blogs, etc. Textbooks, however, should strive to present information objectively and should never restrict information in an attempt to convey a "favorable impression." Obscuring legitimate criticisms of the American capitalist system is dishonest and perhaps even pointless. After all, if it truly is superior then presumably the benefits of capitalism will vastly outweigh the costs, leading students to reach the same desired conclusion without any need for deception.

III. Revision of the the legacy of the Founding Fathers.

Perhaps the most striking revision offering by the Texas School Board is the diminution of the importance of Thomas Jefferson, author of the Declaration of Independence, as an important intellectual force behind the Revolution. Instead, textbooks would emphasize thinkers such as St. Thomas Aquinas, John Calvin, and William Blackstone. While these individuals certainly deserve consideration as important giants in philosophical and legal thought, it is hard not to take notice of the fact that preference is given to religious philosophers while more secular theorists (such as Jefferson, who was a Deist) are ignored. There are clear indications that the School Board is seeking to emphasize the "strict Christian beliefs" that guided the foundation of the country -- an assertion that serves a baldly political and religious purpose, takes great liberties with academic accuracy, and sharply divorces fact from historical context.

Moreover, that the aim of education should be restricted to secular instruction is too established to be questioned. The ultimate goal is not and cannot be religious or spiritual education; such tutelage is rightly reserved to the individual student's religious community (or in the case of a parochial school, special classes and periods that explicitly focus on religious principles). Attempting to mold students in a specific religious image violates the autonomy and rights of nearly all involved, and seeking to accomplish this end through the rewriting of textbooks and history is deplorable.

Education is an important building block of our society; it helps us to grow, improve, progress, and survive as a nation -- and as a people. Without honest, challenging educational programs, the future of any country is bleak. The prevailing international marketplace of competition and ideas demands the best and brightest and the United States certainly has the raw talent to satisfy this call. An honest education, however, usually means challenging personal views and studying a number of other possibly conflicting perspectives. This frankly would not be offered in an educational system slanted toward conservative, capitalist, Christian views -- regardless of how appealing one might find them. Self-imposed myopia and stubborn insistence on a narrow swath of personal beliefs simply is not good enough for our nation's children.

Citizens Are United

The Washington Post reports today that an overwhelming majority of the public are vehemently opposed to the recent Supreme Court ruling in Citizens United v. Federal Election Commission. Interestingly, this opposition appears to cut across partisan, economic, and cultural lines, as the Post notes that "[T]he poll shows remarkably strong agreement about the ruling across all demographic groups, and big majorities of those with household incomes above and below $50,000 alike oppose the decision. Age, race and education levels also appeared to have little relative bearing on the answers."

The decision has continued to spark disagreement and controversy since it was announced, with supporters hailing it as a victory for free speech and opponents calling for a constitutional amendment to correct what they see as a grave error. While talk of the "Senator from Wal-Mart" and the "Congressman from Bank of America" is certainly hyperbolic, the decision does raise very serious questions about the role that corporations should play in the national political sphere. These concerns are all the more salient today as the U.S. economy continues to stumble through a recovery -- a situation that, ironically, was triggered by irresponsible corporate actors who have already proven their talent for evading regulation.

While there are reasonable arguments to be made on both sides of this issue, the two most commonly offered in defense of the Citizens United are somewhat misleading. First, advocates for corporations lament that prior campaign finance restrictions limited their powers of "speech" far more stringently than other groups. This argument ignores the fact that numerous alternative outlets have always been available to corporations -- even under the stricter regulations that were struck down by the Court. For instance, corporations could easily sidestep restrictions by making contributions through a PAC, advertising outside of the limited blackout period, or simply switching to another type of media. More fundamentally, the argument that businesses should be accorded identical opportunities as other groups obscures the very real differences that distinguish these entities. As mentioned in a previous post,

"Non-profit organizations ... rely on a particular constituency composed of individuals with like-minded views. It is easier to trace the path of their contributions to individual citizens and to impute the purpose of political expression to these donors. [...] It is arguably more difficult to discern this important connection when it comes to corporations, which derive their spending power from profits and effective business models rather than direct contributions from individuals who share similar views."

Additionally,

"While the Court has ruled in the past that corporations are (for all intents and purposes) to be endowed with many of the rights and privileges of actual citizens, it seems problematic to offer them more flexibility in the area of politics. One could argue, for instance, that the executives, stock holders, employees, etc. who make up the corporation can simply exercise their rights to free speech individually or through non-profit organizations with which they agree. [...] Insulated from public opinion by practice and profit, those at the helms of large corporations would likely acquire greater influence in the political process -- a notion that is hard to reconcile with the idea of democratic self-governance by the people."

The second claim, even more prevalent than the first, is that this decision is really a boon to small corporations such as "every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group" or, even more humorously, "Susie's Flower Shop." This argument is disingenuous because it completely ignores the budgetary realities that most small corporations encounter. It is much more likely -- especially in the midst of a difficult economic recovery -- that most "mom-and-pop" establishments will have neither the inclination nor the disposable income to effectively lobby the electorate. It is by no means certain that struggling small business owners will appropriate capital from other areas of their business to invest in political research, polling, or advertisements. In fact, it seems much more likely that such an undertaking will become the norm only for much larger businesses with deeper pockets.

It is an impermissible stretch of the truth to assert that small, locally owned and operated corporations will profit from this decision in the same way as, for example, Exxon Mobil (valued last year at approximately $375 billion). Even should small businesses wish to exercise their newfound clout, it can hardly be maintained that their influence would even come close to having the same effect as that of a massive conglomerate. Massive corporations, then, are a different story; they stand to gain much from Citizens United. Viewed in this light, the case hailed by Sen. Mitch McConnell (R-KY) as a "1st Amendment triumph" could more accurately be described as a victory for large corporate entities -- and the politicians they support.