Strict Constitutionalism?

Today Politico published an article that gave an overview of the recent conservative 'rediscovery' of the Constitution, detailing the many new arguments deployed by these groups against current liberal initiatives. While there are certainly fundamental -- and valid -- arguments to be had over the proper meaning and interpretation of our nation's founding document, many of the recent attacks launched by self-proclaimed "strict constitutionalists" (most notably Sarah Palin) are duplicitous and disturbing.

Some suggestions are simply senseless. One recent proposal in Virginia calls for an investigation into the feasibility of an alternate form of state currency -- just in case there is a "a major breakdown of the Federal Reserve System." One would think that this was precluded by Article I, section 8, which specifically grants to Congress the power "[t]o coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures." Apparently this provision is somewhat more ambiguous to Republican Delegate Bob Marshall, though thankfully not to Republican Governor Bob McDonnell. Though Gov. McDonnell may be correct in asserting that "proposals like Marshall's arise out of fear about frightening levels of debt the federal government has taken on," deliberate attempts to infringe on constitutionally federal prerogatives are hardly the solution.

Far more problematic, however, are the arguments designed to cast "strict constitutionalism" as the only permissible method of interpretation of the Constitution. Because of the complexity of the document itself and the profundity of the issues involved, there are many reasonable approaches to constitutional interpretation that depend on many diverse factors. While both liberal and conservative theories of the Constitution have varying degrees of validity and applicability, however, "strict constitutionalism" is particularly dubious because it often coincides with ignorance or obfuscation of the actual Constitution. In order to be a "strict constitutionalist," it often seems as though one must change the Constitution so that the text can say what it already means. This hardly seems to make sense. Moreover, it is alarming in light of how many 'errors' "strict constitutionalists" have found in the Founding Fathers' handiwork. "Strict constitutionalism" thus appears to be defined by a limited reverence for the Constitution -- a respect that apparently extends only to the point at which the document's provisions depart from a preconceived conservative ideology. It is disingenuous (and downright illogical) for "strict constitutionalists" to claim that the Constitution must be changed in order to be harmonized with its own principles.

Two recent examples merit consideration. First, numerous strict constitutionalists are currently advocating for changes to provisions of the 14th Amendment. One of the more extreme approaches is found in Arizona, where several state legislators have taken it upon themselves to alter federal immigration laws. This is not to say, of course, that proposing or supporting an actual amendment to the Constitution is somehow improper; it was truly a stroke of genius on the part of the Founders to provide for thoughtful, deliberate modification of our governing compact. Moreover, the debate concerning immigration is important and evokes powerful feelings on both sides. It is certainly a debate that our country needs to have, and solutions must be found for the problems that everyone agrees exist. Circumventing or violating the Constitution for the sake of expediency, however, is clearly not an acceptable answer. Purporting to preserve the constitutional design by openly rejecting its mandates is even more perverse.

More perplexing is the strict constitutionalists' quest to repeal the 17th Amendment, which provides for popular election of United States Senators. Prior to the adoption of this amendment in 1913, senators were elected by state legislatures rather than the people themselves. Sen. Mike Lee (R-UT), Rep. Steve Southerland (R-FL), failed candidates Sharron Angle and Joe Miller, and conservative commentators such as Tony Blankley have all expressed support for the repeal of the 17th amendment. Their argument, apparently, is that popular election by the people of the state leads to the eventual corruption of senators by Washington elites. The causal connection between these events, however, is rarely made clearer than that (likely for good reason).

There are two problems with this stance, one empirical and one philosophical. First, that the electorate would be better off if state legislatures selected the state's senators presumably assumes that state legislators are never corrupt or subject to undue political influence. It hardly seems necessary to show that this assumption is absurd. While many -- even most -- state elected officials are dedicated public servants who discharge their duties with diligence and integrity, it is difficult to see how vesting politicians with the power to select other representatives is ever better insulation against corruption than submitting the decision to the people they will serve.

More fundamentally, the proposals to repeal the 17th Amendment are philosophically at odds with the values that strict constitutionalists purport to hold. For instance, it is unclear why the conservative rallying cry of "limited government" applies only to the federal government. It is an undeniably essential part of our national character to be suspicious of government action and jealous of our liberties, as such dispositions promote transparency, fairness, and liberty in a republic. Yet shouldn't this suspicion also extend to state governments, who often exercise even broader powers than Congress? After all, while conservative groups prefer to demonize Washington, our history is replete with instances in which the federal government was called upon to protect individual rights from infringement by the states (the clearest examples, of course, being the abolition of slavery and the eradication of Jim Crow laws).

Moreover, recent events in Alabama, Alaska, California, Illinois, and New York certainly call into question the wisdom of blindly trusting non-federal elected officials. Thomas Jefferson once declared that he "kn[ew] of no safe depository of the ultimate powers of society but the people themselves and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform them." It is hard to see how revoking citizens' rights to directly elect their United States Senators would ensure better federal representation.

Our Constitution is both the shortest and oldest written constitution of any nation. The sweep of its brilliant -- and frankly beautiful -- language was meticulously crafted to build a flexible and evolving document, a charter to stand the test of time that would allow the nation to grow and prosper. As our society changes, new ideas and constitutional interpretations are sure to develop and take hold. As Thomas Jefferson stated,

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

Yet "strict constitutionalism" is not an idea born of reasoned reflection, studious analysis, or pragmatic considerations. It does not expound a new view of the Constitution or attempt to rediscover forgotten truths; rather, it merely invokes the cultural power of our shared devotion to a national icon as support for a predetermined political agenda. The life of our Republic is dependent on a thriving national dialogue. It is vital for us to continue to have meaningful debates about the nature, scope, and substance of our Constitution. In these discussions, there is ample room for all political viewpoints, be they liberal, conservative, moderate, etc. In fact, all are necessary if we are to thrive as one nation. But as James Madison, often called the "Father of the Constitution," observed, "[t]he citizens of the United States are responsible for the greatest trust ever confided to a political society." As a self-governing nation, our duty to exercise that trust responsibly is profound indeed. Casually treating our Constitution as a mere tool for the sake of expediency or personal political gain derogates the obligation that we bear, as a society and as a country, to build a better Union.

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.

Gross Inequality

Today the New York State Senate killed a measure to grant marriage rights to same-sex couples. In a vote of 38-24, the state senate rejected a proposal that would have granted equality to a large population within New York and dashed the hopes of many loving couples. This bill, already passed twice by the Assembly, is dead for at least this year but is expected to brought forward again in the future.

Predictably, the main line of attack against granting same-sex marriage was religious in nature. Since no reputable medical, psychological, or economic organization has adduced any reasons why same-sex marriage should not be granted, this is perhaps the only available argument. As such, it bears scrutiny in the context of today's vote.

The opposition to the measure was led by Senator Ruben Diaz, Sr., a Pentacostal minister from New York City. In his opening remarks, Diaz implored legislators to "remember your values -- remember you stand for traditional values, family values, moral values." Such misplaced rhetoric is truly offensive and reveals Ruben's profound incapacity to understand the effects of his actions on the gay community. Nothing about same-sex marriage threatens family or morality. Thus, Ruben's comments are also disappointing because they continue his tragic trend of leveling baseless accusations and showing a distinct lack of compassion toward an minority seeking equal treatment. Richard Barnes, executive director of the New York State Catholic Conference, also commented, saying, “While the Catholic Church rejects unjust discrimination against homosexual men and women, there is no question that marriage by its nature is the union of one man and one woman.”

This unfortunate myopia demonstrates the duplicitous attempts of religious leaders to cast themselves as both opponents of gay marriage and as egalitarian defenders of the downtrodden. In reality, however, the church's continuing crusade against the gay community is better understood as clear and unequivocal discrimination. That the church believes it has strong reasons for its stance only offers an explanation for its position -- it does not change the fact the real effect of its actions is to derogate and subordinate gay people. The definition of discriminate is "to make an adverse distinction with regard to" or "to distinguish unfavourably from others." Declaring that one group is not entitled to the same rights as another -- or, for that matter, arguing that their lifestyle is inherently worthy of condemnation -- is clearly within this definition. For religious leaders to argue to the contrary is unambiguously and categorically false.

Rather, a more appropriate analysis would be to say that religious leaders believe that they have the right to discriminate -- a right that they claim is granted to them by their religious traditions (e.g. the Bible, the Quoran, etc.). The problem with this, of course, is that the history and Constitution of this nation overwhelmingly reject the notion that any group possesses some natural right to discriminate against another. The mandate of equality under the law is not modified or rescinded simply because the discussion turns to religion -- a fact that religious leaders themselves are quick to trumpet whenever their interests are threatened. When Congress recently passed legislation classifying violence related on sexual orientation as hate crimes, religious leaders voiced their displeasure over the mere possibility that their freedom of speech might be infringed.

Contrary to the claims of many religious leaders, the laws of the United States are not rooted in Christianity -- or, in fact, in any other particular religion. That religious dogma and civil laws sometimes possess similarities cannot be doubted, but this is more attributable to the historical evolution of moral and ethical thought rather than some inherent interdependence. The intellectual underpinnings of law such as theories of ethics, morality, and justice, often grew out of religious musings. This common origin, however, by no means gives religion a monopoly on moral or legal thought. In Reynolds v. United States, the Supreme Court stated that "to permit [bigamy based on a religious duty] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Such a notion was firmly rejected by the court as inconsistent with the freedom and liberties granted to people of this nation, and it is equally inappropriate to maintain that religious beliefs should become the law of the land.

One should also hesitate to apply religious laws because -- even among the religious -- there is severe disagreement about everything from the correct teachings to the proper principles. People around the world subscribe to many different systems; Judaism, Christianity, Islam, Buddhism, and Hinduism are but a few of the major faiths found throughout the globe. From Animists to Zoroastrians, each has different beliefs and values which are often unique. Even within each particular sect there is a wide spectrum of beliefs and practices. State Senator Eric Adams, a Brooklyn Democrat who supports same-sex marriage, stated, “When I walk through these doors, my Bible stays out." His beliefs are obviously quite different from those of many Christian fundamentalists -- even though they are based on the same compilation of writings and teachings. In fact, there are dozens of different translations of the Bible in the English language alone. Given the practice of carefully parsing the text of religious documents, even small differences in each version are likely have significant consequences. The diversity within the broad umbrella of religion is nothing short of astounding.

Yet many religious leaders maintain that the religious rules to which they adhere are the one true set of laws that should prevail. For instance, Rabbi Yisroel Dovid Weiss, who traveled to Albany before the vote on same-sex marriage, admonished the State Senate “that the world belongs to the Almighty, and [the Senators] have to reckon with his rules and his law.” When one realizes that such declarations are almost always followed by religious directives (Rabbi Weiss did not just leave and the legislators decide for themselves what the laws of the "Almighty" said to do), comments of this sort are reduced to little more that religious threats -- thinly veiled attempts to coerce democratically elected leaders into opposing propositions that do not conform with religious teachings.

But why is this a problem? Much of religion, after all, is concerned with commonly held values such as love, kindness, honesty, and reciprocity. Viewed in that light, it might seem beneficial to allow religion to shape our laws. Serious complications arise, however, because human beings are -- as recognized by most religions themselves -- imperfect. Human beings (a category that includes religious leaders) are susceptible to mistake, coercion, bigotry and a long list of other vices. Much of our history has been spent overcoming these shortfalls, a task that is nowhere near finished. Because the people who write, read, teach, and lead in religious circles are human, they are subject to the same fallibility as all other people.

Unfortunately, many people have a tendency to confuse the allegedly pure teachings of religion with the very human aspect -- granting some religious leaders broad powers that they are neither worthy nor capable of wielding. This situation has been seen throughout history, and has led to countless atrocities being committed in the name of the noblest purposes; an embarrassingly short summary includes the Crusades, the Spanish Inquisition, persecution of scientists, slavery, male chauvinism, the Salem witch trails, genocide, and opposition to interracial marriage.

In Loving v. Virginia, the Supreme Court case that recognized the right to marriage, even the trial judge who convicted the Lovings stated that, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Furthermore, many argued that interracial unions were "evil" and "unnatural." This line of thinking has been born again today in the debate over same-sex marriage. More recently, the Pope claimed that condoms would actually exacerbate the HIV/AIDS crisis in Africa -- a shockingly irresponsible move that quite literally puts thousands of lives at risk and promotes the spread of a devastating disease.

None of this is to say that religion is inherently bad -- it most certainly is not. A humble, honest, and reverential search for spiritual or divine meaning can certainly enrich the life of the seeker (and perhaps the lives of others) in myriad ways. Yet while religion certainly has many valuable aspects, ignoring its shortcomings and denying that commonplace religious doctrine can be wrong or misinterpreted can also be extremely harmful. We should bear in mind the dangers of refusing to think about religion. Tradition and custom are powerful forces in society, and they have helped us to maintain many practices which are beneficial. They have also, however, been the historical vehicle through which to oppress minorities. Our Founding Fathers built a country consecrated to liberty, not religion, and we would do well to observe the safeguards that they put in place -- measures meant to guard against the unfair concentration of power and to prevent the formation of a monarchy, autocracy, or theocracy.