In 2012, I started working my way through The Story of Civilization by Will and Ariel Durant. It’s an eleven-tome series on the history of Western civilization, going from Eastern influences on the West in volume one and Greek civilization to Napoleon in volumes two through eleven. I got through the first six volumes of this series last year, and this year I will try for the remaining five. This series is one that I have wanted to read for a long time, and I am very pleased to have read what I could. Continue reading The Story of Civilization: A One Stop Shop for Western History
In the name of supporting freedom of expression and consumer choice, Amazon made a controversial book available for sale to Kindle users: “The Pedophile’s Guide to Love and Pleasure: a Child-lover’s Code of Conduct.” According to an MSNBC news article, the book offers “advice to pedophiles afraid of becoming the center of retaliation.” According to the author, his work is (misspellings his own) his “attempt to make pedophile situations safer for those juveniles that find themselves involved in them, by establishing certian rules for these adults to follow.”
The reviews on the book’s page reflected the outrage of many of Amazon’s patrons, to whom Amazon defended their choice to sell the book. Responding that “it is censorship not to sell certain books simply because we or others believe their message is objectionable…we do support the right of every individual to make their own purchasing decisions.”
The purpose of free speech
Amazon is correct in that they do have the freedom to publish such material. But does that mean they should?
When it was included in the Bill of Rights, free speech was not designated arbitrarily. It was included to protect an individual’s rights from being trampled by the federal government—not to give the individual permission to do whatever he wanted. Freedom of speech is foundational to all other freedoms because it preserves space for dissent, for ideas and opinions to be heard—but it is not freedom to say whatever you want. It is freedom to pursue truth.
In order for truth to surface in public dialogue, there must be public space for a free exchange of ideas. Wendell Berry, in his essay “Sex, Economy, Freedom, and Community” argues that freedom exists because people will disagree, and that freedom is “a way of guaranteeing to individuals and to political bodies the right to be different from one another.”
Notice that Berry does not say that free speech is protected for the purpose of doing what we want—it exists for the good of society. Because freedom is not the license to do whatever we please, our individual freedoms come with corresponding duties to our communities. In the case of this book, Amazon is the private individual and the community is all the families that shop Amazon.com.
Why Amazon was right to remove the book
After a few days, Amazon removed the book from its site, presumably because of the public outcry and threats of boycott. And they were right to do so. Respect for the community should not be taken lightly. According to Barry, only the sphere of community can mediate between public and private interests.
Community “identifies itself by an understood mutuality of interests”—namely, virtues such as trust, temperance, mercy, kindness, and forgiveness. In order for communities to flourish, they must encourage these virtues. Properly functioning communities will “invariably, not as a rule . . . enforce decency without litigation.”
Absent this idea of community, where decency is encouraged, “private” comes to mean an area which individuals defend as space for doing what they please, even if this includes limiting or destroying the rights of others. The community alone has the power to influence behavior by dictating “what works and what does not work in a given place.” Only a community can determine for itself what is good and what is harmful.
Community has an interest in being able to protect itself. And for the sake of freedom of speech, the public ought to let it. But free speech is not an absolute right. It only exists as people concur that it should. Says Berry, “One person alone cannot uphold the freedom of speech…[It] is a public absolute, and it can remain absolute only so long as a sufficient segment of the public believes that it is and consents to uphold it. It is an absolute that can be destroyed by public opinion…If this freedom is abused and if a sufficient segment of the public becomes sufficiently resentful of the abuses, then the freedom will be revoked. It is a freedom, therefore, that depends directly on responsibility. And so the First Amendment alone is not a sufficient guarantee of the freedom of speech (emphasis added).”
The standards of a community ought to be considered because the community is a part of “the people” whose support is necessary to uphold free speech as a right. This is why it is not right for Amazon to ignore the opinions of the community in the name of free speech alone.
Amazon is correct: individuals do have the right to make their own purchasing decisions. However, when the community complains, Amazon ought to listen. Communities are rightfully interested in their own self-preservation, and this includes upholding some sort of moral standard. Where public laws exist to bind the government to a particular arena, communities exist to uphold morality and decency, and to tell people how they ought to live. The government should not do this, and an individual alone cannot. Therefore, we must rely on the community to be the mediating pathway in many areas. If a community determines that it ought to uphold certain standards of decency, the public sphere ought to listen. If free speech exists only because the majority of people support it, individuals should not destroy that which allows the community to flourish with their freedom– lest they lose it.
Finally, it is right that the government not control what books Amazon sells. It is dangerous when the government involves itself in our ability to freely exchange ideas. Yes, “The Pedophile’s Guide to Love and Pleasure: a Child-lover’s Code of Conduct” is offensive. However, the government should not make a law, and it will not have to, if the community is allowed to function properly. Decency will be encouraged, and there will be no desire—or need—for litigation.
When a man claims he can build a tower so tall that it reaches God, raise your eyebrows and ask skeptical questions. Beyond warnings against architectural hubris, the story of the Tower of Babel also says much about modern understandings of government.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted…
Most complaints against government concern ‘liberty’. Conservatives argue that high taxation infringes upon our liberty. Liberals argue that big business or gay marriage bans infringe our liberty. The connection between ‘liberty’ and the ‘pursuit of happiness’ is rarely talked about and, if it is, the two are frequently equated.
But what kind of liberty does the pursuit of happiness presuppose? Generally, people advance one of two notions.
The first conflates the ‘pursuit of happiness’ with ‘social liberty’. Our Founding Fathers recognized that ‘happiness’ is found in personal freedoms, it will assert. That’s why the separation of church and state, as well as the right-to-privacy is so important. If coming from the right, the conversation may lead into something like second amendment rights. If on the left, it might turn into claims that the right to pursue happiness supports the legalization of gay marriage or abortion.
The second takes a different emphasis, focusing on government involvement in our fiscal, rather than social, lives. A conservative might include a solemn reminder that government is not our breadwinner, describing the right to ‘pursue happiness’ as a basis for free-market economy. On the other hand, a liberal might take it as a ‘right’ for welfare programs or government subsidized businesses. These, in turn, conflate ‘pursuit of happiness’ with ideas of ‘economic liberty’.
Both discussions of how justice relates to happiness deserve discussion. But both approaches have a fundamental flaw: they assume the Congress of 1776 just decided to be redundant about that whole ‘liberty’ thing.
To be charitable, let’s assume they meant something unique. But what?
George Mason wrote in Virginia’s 1776 “Declaration of Rights”:
All men…have certain inherent rights… namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Mason relates ‘property’ to ‘life and liberty’, and in turn, separates it from ‘happiness’, which is connected to ‘safety’. His correlation makes sense: emotions within ‘happiness’—contentment, satisfaction, joy—are negated by fear. Security is a prerequisite of happiness; safety gives us the space to ‘pursue happiness’.
In Federalist Paper No. 45, Madison is explicit about this connection:
But if the Union be essential to the security of the people of America against foreign danger…to their security against contentions and wars among the different States…to guard them against those violent and oppressive factions… if, in a word, the Union be essential to the happiness of the people of America…
Be wary of projecting personal conceptions of ‘happiness’ onto government. The government does not offer happiness—it doesn’t even pretend to know what happiness is. But tonight we won’t have to worry about foreign enemies breaking down the door or another state’s militia invading our state. Peace balanced with liberty affords us the space to pursue whatever we think will give us happiness, be it social or economic. The right to pursue happiness is not an answer. It gives us space to ask the question.
If there’s one thing most people agree on, it’s that human beings have an unqualified right to do what they want with their own bodies.
There are, of course, a few exceptions, most of which are mired in debate. For example, should a minor be able to get a tattoo or piercing without parental consent? Even in such cases, however, the notion of absolute, individual autonomy is rarely questioned (in the example I just gave, the question is whether parental rights over their children outweigh the child’s autonomy, not autonomy itself).
As with most things in the Christian worldview, here also we find our deepest cultural assumptions challenged. The Apostle Paul, in 1 Corinthians 7:3-5, writes:
The husband should give to his wife her conjugal rights, and likewise the wife to her husband. For the wife does not have authority over her own body, but the husband does. Likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another, except perhaps by agreement for a limited time, that you may devote yourselves to prayer; but then come together again…
Within the context of marriage, Paul actually asserts that the spouse has authority over one’s body. A wife has the right to her husband’s body, and vice versa.
This passage could be twisted by the wicked into a pretext for rape, but that is clearly not what Paul means. Such authority does not turn one’s spouse into a plaything. Rather, Paul is arguing that within certain contexts we do not have the unqualified right to do whatever we please.
In this case, he is focused on the sin of sexual immorality. Though we are free in Christ to do many things, including expressing our sexuality, we are not free to do so in any way we see fit. In marriage, we belong to another person. Crass expressions like referring to one’s wife as “the old ball and chain” are a twisted reflection of this truth. When you have a husband or a wife, you are no longer free to say, “It’s my body, and I will use it as I see fit.” Your body belongs to another.
Ultimately, of course, your body does not belong to your spouse (especially for those who aren’t married!), but to God Himself. And He has a deeper claim on how you ought to use your body than a spouse could ever have. Literally everything done on any given day should be accomplished, first and foremost, with the glory of God in mind. That’s a big task, and it doesn’t leave much time for thinking about your own rights.
Freedom from any sort of enslavement is a good thing, or else God’s own Son would not have died to set us free from our bondage to sin. I’m glad we live in a libertarian society where I won’t be fined or put in jail for refusing to give my spouse her conjugal rights.
But this passage ought to reorient our thinking generally away from a “me-and-my-rights” mentality. In human sexuality, I ought to be thinking first about how best to love my wife, not how to satisfy myself. I would call this simply obligation or duty, but that would fail to fully capture what Paul is teaching here. As the Heidelberg Catechism, Answer 1, puts it:
Q. What is your only comfort in life and in death?
A. That I am not my own,
body and soul,
in life and in death—
to my faithful Savior Jesus Christ. ‘
Why is race on the census form? Over half of short census is dedicated to the question of race. The question is not without controversy, but before you can reach a decision about whether race ought to be included on the census, you ought to know the history behind the census and race inquiry.
A decennial census is mandated by Article 1, Section 2, Clause 3 of the United States constitution. The line directly pertaining to the census reads, “the actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” In true American form, controversy broke out among the founders as to the meaning of “actual Enumeration.” Were estimates acceptable or was a full count necessary? People on both sides of the debate agreed that accuracy was needed to avoid oppression. As Alexander Hamilton stated in The Federalist No. 36, “an actual census or enumeration of the people must furnish the rule, a circumstance which effectively shuts the door to partiality or oppression.” Hamilton believed an accurate census would shut the door to oppression by generating population figures not subject to political manipulation upon which Congress would base the apportioning of representatives and taxation. Every citizen’s voice would be proportionally heard and taxation proportionally distributed.
However, with regards to the census, the “race” question plagued this noble goal from the very beginning by revealing hypocrisy within the system. Take a moment to stop by the 2010 Census website where they have addressed the race question. The 2010 Census website justifies the race question by citing its use in the very first census of 1790. It’s an odd, almost eerie justification of presence of “race” on the census today. In the 1790 census, the race question was used to make sure that slaves received only 3/5ths representation in Congress – the slave voice was disproportionately counted. The full text of Article 1, Section 2, Clause 3 reads,
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Caroline five, and Georgia three.”
With the passage of the 14th amendment, the 3/5ths rule was abolished, yet the race question remained. Audrey Singer, Senior Fellow at the Metropolitan Policy Program and a scholar who defends the use of racial inquiry in the census, argued, “State and local data on age, race and ethnicity, household size and composition help communities with projections for school enrollment, housing, transportation and health care… Information from the census is used to prepare for emergency services, research changes and advocate for various causes.” While I understand how age and household size contribute directly to projections for school enrollment, housing, transportation, and health care, race or ethnicity shouldn’t contribute meaningfully to these projections. After all, we needn’t make special calculations for those 3/5ths persons walking around.
Critics believe the race inquiry, as its presently done, is confusing at best and politically corrupt at worst. Writing for the Manhattan Institute, Tamara Jacoby writes, “The issue is not just that the census’ approach is politically wrong-headed. Far more troubling is the gulf between the government’s standardized categories and the fluid, rapidly changing racial and ethnic reality of America. By the second generation, between a third and a half of both Hispanics and Asian Americans marry outside their groups. The number of those who prefer the multiracial designation is expected to multiply exponentially in ‘coming decades. It’s hard to see what value it has for sociologists or anyone else to label such people by their ancestors’ country of origin. Yet the Census Bureau goes on trying—and pretending it is able—to capture and codify this changeable, subjective ethnic landscape.” If Singer is to be believed and census data on race actually provides meaningful data for government program planning, then the data will be inaccurate. As Jacoby notes, “Some people’s self-identification is so flexible that it changes from week to week with passing fashions: The number of people self-identifying as American Indian, for example, rose noticeably in the wake of the movie ‘Pocahontas.'”
Writing at the Huffington Post, John Whitehead parallels Jacoby’s remarks with some poignant questions of his own: “How, for example, would President Obama answer the [Census Bureau’s race] question? Is he black or white? What about Tiger Woods? Is he black or [A]sian? And what race are Tiger’s kids?” Whitehead followed up his questions by tying together the census’ intended purpose, to apportion congressional representation, with the census’ racial inquiries and the regular practice of gerrymandering:
“As if gerrymandering was not already bad enough, will 2010 Census data be used to carve out future congressional districts? Will African-American communities be matched with sitting African-American congressmen? Will nearby Hispanic neighborhoods not currently in the same district be lumped together in hopes of increasing Hispanic representation in Congress? If the information is being used toward drawing district boundaries, then obviously some race-related parameter or objective must be in play when drawing those district lines.”
Separate from the criticisms leveled above, I believe that the government’s present concern with race vis-a-vis the census is dehumanizing and divisive. In his most famous speech, Dr. Martin Luther King Jr. said, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” In his dream, Dr. King longed for a nation where law and justice were colorblind. If Dr. King’s dream is to be realized and law and justice are to be colorblind, then what use is racial data for makers of our laws? If law and justice are not colorblind, then they cannot help but favor one race over another and are thus dehumanizing and oppressive to the disfavored race.
Some people are refusing to fill out the census because they are suspicious of the government and of agendas behind the inquiries like the race inquiry. You should fill out the census. It’s against the law to refuse and you’d be behaving unconstitutionally. Additionally, over $400 billion federal dollars are at stake – some of that money should rightly go to projects in your neighborhood. However, the current census reveals biases and mindsets in Washington that deserve re-examination. Personally, I’m going to fill “American” in the race line because its the most truthful reflection of my ethnic self-identity that I can give. It’s also sufficient data for government work. Regarding future use of the race question in government censuses, there does not seem to be a good argument for keeping it. I’ll admit that while I’ve not read every possible argument for preserving the race question, I’ve noticed that those who defend it’s use in government work typically assert the point without offering evidence for its usefulness and, as mentioned earlier, that point is contentious. Furthermore, the arguments against the current practice of racial inquiry on the census are compelling enough that the practice ought to be dramatically reformed or ended altogether. ‘
The small towns of America’s heartland are becoming an endangered species, argue researchers Patrick J. Carr and Maria J. Kefalas in Hollowing Out the Middle: The Rural Brain Drain and What It Means for America—a lengthy title for a slim and troubling ethnography. In a nation where urban studies and development are hot topics, Carr and Kefalas turn their attention to the rapid depopulation and economic crises facing Main Street. The family farm has all but vanished into corporate agribusiness, and the industrial jobs rural workers take instead pay poorly and have an uncertain future in the current economy. Carr and Kefalas note that some rural researchers have gone so far as to suggest that the answer to such inevitable decline—economically and ecologically—is “to return much of the Great Plains to its original state”—a Buffalo Commons.
What distresses the authors most is that the rural, Midwestern towns containing the “real Americans” politicians try to comprehend every four years have been steadily losing their best and brightest young people to more metropolitan locales over the past few decades. This exodus has caused the median age in these towns to skyrocket, caused schools to close, and created a dearth in civic leadership, economic growth, and medical facilities. As the Heartland’s “creative class” invest their human capital in cities such as Austin and Phoenix, the “regional losers—the laggard, blue-collar red states […] find themselves fighting to keep their communities and counties viable.”
Carr and Kefalas moved to a northern Iowa town to investigate this phenomenon for themselves. They discovered that students whom they aptly termed “Achievers” left not only because of unappealing employment prospects but because the town expects them to leave, attend college, and accomplish great things—despite the fact that these towns are shooting themselves in their proverbial feet. “Stayers” are towns’ underinvested in, low test scorers, those of lower-middle class status who marry right out of high school and find work locally. They enter the workforce little comprehending that they will make the same paycheck at 40 as they did at 18.
While states are scrambling to build campaigns to attract “Achievers” to return to Iowa or Kansas, Carr and Kefalas would urge small rural towns to nurture and invest in the “Stayers”—to equip and update them with technical skill sets utilizing the community college system, to emphasize computer skills, and to generally “raise the human capital of those who stay.” They also recommend that there be a “national call to move to sustainable agriculture and green energy technology” to the heartland, and that immigrants be given the opportunity to gain legal status and work in well-regulated industries.
But why should Americans care about the future of small towns in our heartland? After all, in a capitalist system, are there not going to be winners and losers? Carr and Kefalas argue that it isn’t that simple: the country, they claim, couldn’t properly function without these small Midwestern towns. Our food and other natural resources come from these areas, they say. Do we really want to see the continued propagation of cheap and unhealthy food grown by large corporations? The Midwest is ground zero for sustainable agriculture, as well as green energy. It is one of the best places to develop wind and solar power. The region is also historically central to the health of the nation, they argue, and America is best when unified. We should care about all parts of our country; as we care for struggling urban areas, we should also invest in struggling rural ones. ‘
President Obama has poured billions of tax dollars into a government take-over of the Auto Industry. Fair Enough. He is pushing through a Socialist agenda for a national healthcare system, which will effectively strip us of our options with regard to our medical care, while simultaneously creating a shortage for the care available. Que Sera, Sera. He has nominated for the Supreme Court a Justice who is clearly a racist, but being a person of color is not called to account for her evil views. Such is life.
As disastrous as I believe President Obama’s domestic policy to be, it pales when compared to his foreign policy with regard to the “elections” in Iran; a foreign policy that would be generously described as tepid, insincere, passionless, or even disinterested.
Let me be clear: with regard to the sham elections and the violent fallout that has arisen as a result, the position of the Leader of the Free World should be a full-throated denouncing of the criminal tactics of Ahmadenijad and his ilk, and unwavering support of the protestors and a call for outside, neutral investigations and recount.
Perhaps President Obama is simply nervous about inserting the full power of the US government into delicate and difficult circumstances. Still, he has felt no compunction about telling Israel how it should handle the delicate situation in Gaza. As we are some of Israel’s last allies, a scolding from our Commander-in-Chief is hardly the kind of support a nation under almost constant terrorist attack needs. And his domestic policy would certainly suggest that there is little he believes the US government is unable to fix. But that is for another post.
Yet for all of this, somehow the best we can manage when the democratic process is ignored in a state already on the edge of an international confrontation for its nuclear program, combined with its rampant anti-Semitism, and it’s support of multiple terrorist organizations, is this, “It is not productive, given the history of US and Iranian relations to be seen as meddling in Iranian elections.”
It remains unclear how stating that injustice is being done to an entire populace is “meddling” and apparently even President Obama’s own administration finds his inarticulate defense of free and fair elections to be less than appropriate. While I recognize that care is necessary when dealing with the internal politics of any other nation, especially a nation such as Iran, I think it is ridiculous that any President would feel the need to tip-toe around publically denouncing the killing of political protestors, or the violent repression of a free election. It is not redundant to state publically what we are for, and what we oppose, especially in a case such as this. For the people of Iran, the powers that be all seem to have conspired against them; why should we flinch from demonstrating how different we are?
Perhaps we could forgive Mr. Obama; after all, this is only the second time in less than a year that the cause of freedom and liberty have been challenged while he had access to the largest microphone in the civilized world. Or, perhaps the President is simply not comfortable being the spokesman for Freedom, Justice, and Liberty. One begins to wonder exactly which basic principles of our society, if any, he is comfortable promoting. ‘
President Obama should not speak in support of the Iranians protesting the recent presidential elections. In fact, no US official, in power or out of it, should publicly support them.
First, it’s redundant. Is there any doubt that anyone in Iran (much less, the world) knows whose side the Americans are on in this conflict? A diverse population, young and old, rich and poor, clergy and laity, Persian and Arab, male and female, are uniting in peaceful protest in the streets of Iran’s major cities, marching in silence against corruption and violence in their electoral system. The protests echo the footsteps on US-80 to Montgomery, and earlier ones to the sea at Dandi. It is a movement that is growing exponentially by the day, with almost 3 million people reported at rallies today to mourn those murdered by the Basij for participating. Is there even a chance that the world might question, especially in light of recent clashes with Ahmadenijad, what outcome American leaders favor?
Second, it would undermine the movement. The election wasn’t about American-Iranian relations. The protests don’t even represent a massive ideological divide in the Iranian electorate. As many commentators have observed, Mousavi’s policies aren’t dramatically dissimilar to those of Ahmadenijad. This movement is about political legitimacy. Iran is an illiberal democracy, a system with the trappings and functions of a democratic state but without the guaranteed civil rights and civil liberties necessary to maintain a true democracy. The Guardian Council decides who may or may not run for office, but the Iranian people expect that the elections themselves will be legitimately decided by the voters.
This election was obviously and audaciously rigged. The movement is a genuine, grassroots rejection of the results by the electorate. Already, the Iranian government is attempting to prove that the U.S. and Israel are behind the protests, to discredit this as genuine outrage on behalf of the citizens of Iran. We must not lend aid to that attempt at propaganda. We must not cut the legs out from under our brothers and sisters who refuse to be silenced. Our speech would silence them in their own country.
Third, it would endanger the protesters. Ahmadenijad was elected by the skin of his teeth in 2005. His popularity has declined as he failed to make good on any of his campaign promises. The only popularity he seems able to retain in the electorate is what he gets from being an outspoken opponent of the U.S. The more we oppose him, the more powerful he gets. Some analysts have even speculated that he would have no power at all in Iran if not for the Bush administration’s rhetoric. The rhetoric was intended to call him out, but some argue that it merely gave him legitimacy within the country (especially since U.S. statements rarely distinguished Ahmadenijad from the rest of Iran).
If President Obama speaks out against Ahmadenijad and the Supreme Leader’s decision to ignore the will of the people, he will only help those in power cling to it more desperately. It could allow the government to become more brutal in its attempts to suppress the protests, casting the violence in the language of struggle against U.S. imperialism. We must protect those who are willing to lay down their lives for freedom. Sometimes that means not saying things that make us feel better about ourselves.
What can we do instead? This is a time for the people of America to act on behalf of their leaders. If you’re not on twitter, sign up here. Follow #iranelection or #gr88 to find out what’s going on. Change your location to Tehran and your time zone to GMT +3.30 to help confuse Iranian authorities who are trying to arrest protesters. Visit this Guide to the Cyberwar site for more information on how to help (and not accidentally hurt) the Iranians’ fight for freedom.
And pray. As our own Rachel Motte so elegantly said, the sons of Isaac pray for the sons of Ishmael, for we all come from the same father. ‘
This morning dawned with the Obama administration’s announcement of his nominee for Justice Souter’s replacement. The well-managed leaks from the West Wing made sure Sonia Sotomayor’s name was already familiar in the press, but commentators have found plenty to discuss on air anyway. It seems the old partisan battlelines are being drawn, though as some have said (including our very own Dr. John Mark Reynolds), the GOP would be wise to save its limited political capital for another fight. There will be plenty of those!
Judge Sotomayor is a brilliant choice for Obama’s first nominee to the Supreme Court. Though many on the Right will try to paint her as a radical liberal loose constructionist, her record shows Sotomayor is an experienced, methodical judge who painstakingly examines the intricacies of the law. While she enthusiastically advocates an interpretation of the law that promotes equality in cases of race and gender discrimination, her ruling from the bench has demonstrated her work as a jurist who considers each case on its own terms. She has frequently left idealism aside in order to reach a decision that accurately applies the principles of the law.
A lot will be said about comments Judge Sotomayor made at a 2005 panel discussion at Duke University Law School, which have been circulating on YouTube ever since her name was mentioned in a pool of likely candidates for nomination:
All of the legal defense funds out there, they’re looking for people with court-of-appeals experience, because it is – court of appeals is where policy is made. I know this is on tape, and I should never say that, because we don’t make law, I know. [The audience laughs.] OK, I know, I know. I’m not promoting it, I’m not advocating it, I’m, you know. Um. OK.
It lacks eloquence, as off-the-cuff remarks often do, and seems to advocate unbridled judicial power. The trouble with using this statement to prove Sotomayor is a radical revisionist who legislates from the bench is twofold. First, her record simply doesn’t show that’s the case. Second, it’s just a little civics 101. Someone, usually the White House, proposes policy. Congress enacts legislation to put that policy in action. The Executive Branch, usually the bureaucracy, executes that policy. But in the policymaking process, the courts determine what the law says. That interpretation determines what the policy looks like in practice. Instead of fearing a radical jurist, we should be delighted that a nominee to the Supreme Court recognizes that power and, so far, has cautiously exercised that power. Let’s hope for a quick confirmation full of excellent debate over constitutional interpretation!
Of course, the more exciting judicial news of the day came around 10am Pacific time from the California Supreme Court. In a six-to-one majority, the Court upheld the voter-approved ballot initiative to ban gay marriage, Proposition 8. Immediately upon receiving the news, scores of protestors crowded the streets of San Francisco and other California cities, railing against the blow to human rights and calling the justices all manner of names.
Regardless of where you stand on gay marriage, however, you have to accept the legality of the situation. The California Supreme Court wasn’t asked to rule on gay marriage at all. In fact, its previous ruling on the subject, In re Marriage Cases in June of 2008, overturned voter initiative Proposition 22, a 2000 ballot initiative that defined marriage as the union of a man and a woman. Likewise, the 2008 ruling precipitated Proposition 8, which amended California’s constitution to prevent same-sex marriage. The question before the Court for today’s decision was simply whether or not the Constitution had been legally amended by voter initiative. Was it an amendment, which the California constitution allows voters to determine in general election, or was it a revision, which is a legislative matter?
The question came to whether or not Proposition 8 was presented to voters in the right form, and whether or not it substantially changes the constitution’s equal protection provisions. The Court decided today not for or against gay marriage, but that the authors of Prop 8 had done their homework while drafting the amendment. Unfortunately, it was not in the Court’s jurisdiction to decide whether or not it’s idiotic to allow 50.1% of voters to substantially amend the state’s constitution.
Gay marriage proponents vow tonight that the fight isn’t over. For now, in California, it seems it may be. Much more substantial changes need to be made to the method of constitutional amendment, or a small percentage of the electorate must be convinced to overturn the amendment in the next election for anything to change. After all, Prop 8 passed by a margin that was hardly decisive. But even then, the fight won’t end here. Ultimately, gay marriage is a federal issue, and must be decided by the Supreme Court. It is the ‘full faith and credit’ clause, not any lingering moral code set forth by the Framers that pushes the argument into the Supreme Court’s jurisdiction. And, it seems with the recent action on the issue in Iowa, Washington D.C., New York, and elsewhere, we won’t be able to ignore the federal battle for much longer. The state initiatives are just a prelude to the moral conversation we must have on the issue. Its outcome will determine who we are. ‘