The Losing Side of History

by New Dealer

The Dragons of Reaction know that they are losing and losing quickly. This is the good news in what appears to be a lot of bad news. The bad news is that we can tell when people know they are entering the losing side of history when they start acting under the guise of massive resistance. It happened in the South after Brown v. Board of Education and the follow-up case of Griffin v. Prince Edward County Island and the passage of the Civil Rights Act of 1964 and the landmark cases of Heart of Atlanta and Ollie’s BBQ. In Prince Edward County, the Supreme Court ruled that school districts could not shut down all public schools to avoid desegregation and Brown v. Board of Ed because it violated the Equal Protection Clause. Heart of Atlanta and Ollie’s BBQ held that Congress had a right to order private businesses to integrate.

We know see that the Dragons of Reaction know that they are on the losing side of history when it comes to equal rights for LGBT people. This is happening fifty years after Congress passed the Civil Rights Act. In November, the citizens of Oregon will vote and will hopefully/probably pass a law that allows gay marriage. There is also an initiative from opponents of gay marriage. Their initiative would give business owners a “right of conscience” to refuse to serve gay customers.[1] The Kansas House of Representatives overwhelmingly passed a bill that allow any individual, group, or business the right to refuse to serve gay couples and possibly gay individuals under the guise of it potentially being “contrary to sincerely held religious beliefs.”[2] The law applies to both private and public sector people, groups, or businesses.

Nothing is set in stone yet. The people of Oregon can vote to allow gay marriage and also defeat the homophobic initiative. The Kansas State Senate can reject the homophobic bill from the House of Representatives or the Governor can come to his senses an veto it. The bill seems to try and present a First Amendment defense of bigotry. This tactic was used during the Civil Rights struggle. In my view, I think the Kansas bill is unconstitutional on its face. It doesn’t even pass a rational basis defense. If Colorado’s homophobic bill was unconstitutional in Romer v. Evans, the Kansas bill is probably unconstitutional as well.

I think these are the actions of people who know that the tide of popular opinion is quickly turning against them and they are doing all they can to keep their side winning for as long as possible. Kansas is clearly reacting to how judges and government officials have been interpreting Windsor including conservative judges. The 9th Circuit ruled that Windsor logically means that laws or government action targeting gay people must receive a heightened scrutiny form of review and Windsor means that lawyers could strike potential jurors because of their sexuality just like women and minorities cannot be struck from juries because of their gender and race. The 9th Circuit decision caused the Attorney General and Governor of Nevada to announce that they would stop fighting for a gay marriage ban in the courts.

The amateur historian in me sees the parallels between the actions of those who oppose gay marriage and those who fought bitterly to keep Jim Crow and Segregation alive. There could be serious backlash. The tyrannical tactics of Bull Connor using fire hoses and police dogs on civil rights demonstrators did help awaken the consciousness of the American people and politicians and turned popular opinion against the South. However, the passage of the Civil Rights act also lead towards George Wallace receiving a few dozen electoral college votes and the election of staunch segregationists like Lester Maddox as the governor of Georgia, it might have also led to the election of Jesse Helms.  I can see demagogues on the right trying to run on homophobia but I can’t see them going very far. Lester Maddox only served one term before being succeeded by Jimmy Carter. I don’t see gay marriage leading to the election of homophobes in northern cities like the Civil Rights backlash among white ethnic voters led to the election of racists like Frank Rizzo as mayor of Philadelphia.



[1] http://www.slate.com/blogs/outward/2014/02/04/oregon_anti_gay_referendum_the_initiative_is_homophobic_segregation.html.

[2] http://www.slate.com/blogs/outward/2014/02/13/kansas_anti_gay_segregation_bill_is_an_abomination.html.

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189 thoughts on “The Losing Side of History

  1. Particularly bothersome to me is the manner in which the demagogues of whom you speak seek to cloak their bigotry under the noble mantles of religion and religious freedom. I can only imagine how much more upset I would be at this were I personally a religious person.

    I am a person who cares about freedom and constitutional rights. But it is so trivially easy to accommodate the religious freedom of those churches and other religious entities that do not wish to recognize same-sex marriages, that it is evident to me that the demagogues who seek short term political gain from claiming to be the champions of these freedoms, that they have no desire whatsoever to actually offer those reasonable and virtually universally-acceptable accommodations. Ask a same-sex couple if they really want to be married in a church that does not recognize the validity of their marriage. I’ll bet they’ll tell you that they would be just fine leaving that church be, and going to a different community where they would be welcomed. So allow a church the ability to not perform religious services for same-sex marriages, if that is consistent with that churches interpretation of its religious doctrines. Treat public accommodations, like banquet halls, bakeries, and other similar for-profit businesses offering their goods and services to the general public in the same way they are treated by their states’ and the federal government’s nondiscrimination laws treat them in contexts other than same-sex marriage.

    To return to my first point, it does not escape my notice that the bulk of the people claiming that recognition of same-sex marriage somehow intrudes upon their own religious freedom happen to be Christians. While I do not claim to be a Christian, I have certainly read the Gospels. And it seems to me that Jesus told his followers to love their neighbors rather than to shun them, to not criticize whatever sins their neighbors may have committed, and to give unto Caesar that which is Caesar’s and to give unto God that which is God. That last clause seems to me to be Jesus indicating that the civil government is not the same thing as the religious doctrines that should guide an individual’s moral behavior. And, I find nothing in the words of Jesus himself suggesting that romantic love between two people of the same sex is in any way immoral. Because, of course, it is not.

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    • “Particularly bothersome to me is the manner in which the demagogues of whom you speak seek to cloak their bigotry under the noble mantles of religion and religious freedom. I can only imagine how much more upset I would be at this were I personally a religious person.”

      This is also nothing new. Plenty of resistance to the civil rights movement was done on allegedly religious grounds including the infamous proclamation from the Virginia judge about how god almighty meant to kept the races separate. This judge proclamation earned well deserved scorn from the Supreme Court and Chief Justice Warren when the Supreme Court finally struck down bans on interracial marriage as unconstitutional.

      “To return to my first point, it does not escape my notice that the bulk of the people claiming that recognition of same-sex marriage somehow intrudes upon their own religious freedom happen to be Christians.”

      Christians can still claim to be a majority religion in the United States and can be blithe about the importance of the First Amendment. Many (but not all) have counter-narrative histories in which the First Amendment is really only meant to apply to the Federal Government and/or protect Christianity. If you are an Orthodox or Ultra-Orthodox Jewish person, you might not like gay marriage but you are also very aware about not wanting to cause a backlash against the First Amendment.

      Also Judaism is different than Christianity. The most Orthodox of Jews will still tell you that a plain-text/originalist reading of the Torah is impossible. This is why Jews can get into hair-splitting debates about how long you need to wait before you can consume diary after eating meat. In traditional Judaism, male homosexulaity was a sin only because it wasted semen that could be used for children (thou shall be fruitful and multiply). This is how you get ancient rabbis discussing that lesbianism is less of a sin than male homosexuality because lesbian sex does not waste eggs.* In all cases, homosexuality was much less of a sin in Judaism than it is in Christianity and even though Levitcus does have all the death sentences, we also have the Talmud (think of it as the Jewish Code of Civil and Criminal Procedure) which makes the death penalty a near impossibility in implementation.

      *Yes, we really are this legalistic. Early Christianity heavily criticized Judaism for being this legalistic.

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    • ” Treat public accommodations, like banquet halls, bakeries, and other similar for-profit businesses offering their goods and services to the general public in the same way they are treated by their states’ and the federal government’s nondiscrimination laws treat them in contexts other than same-sex marriage.”

      I’m assuming that this is a reference to the various court cases where same-sex couple sued photographers, bakers, and other service providers over those providers’ refusal to contract with same-sex couples.

      …I mean, I can’t see how you can *not* address that particular elephant in the room.

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  2. My belief is that they are simply doing this out of spite. They might be hateful bigots but very few of them can think that these laws would be affirmed by the Court especially in the post-Windsor era. What they are trying to do is make things as difficult as possible for the LGBT community for as long as possible and make them waste money defeating these laws in court. At the same time, they are wasting tax payer money because the state will have to use that money to defend these loathsome laws in court cases that they know they are not going to win.

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      • Too bad you can’t sue a legislator for vexing legislation

        You mean vexatious legislation. ;)

        This piece and mine make nice companion pieces, ND. Yes, it’s clear much of this is the last gasp of reaction. As you suggest, infuriating as it can be, it’s also possible to look at it as a clear signal that we’re almost at the finish line (for the law anyway; the social side of things is obviously different, but also proceeding apace).

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      • One of the most notable things to me is how quickly everything has changed since 2004 when conservatives were able to use gay marriage as a wedge in their favor. 10 years is really quick for these kind of legal developments.

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      • I can not see how this would work out. It seems to me that abstract judicial review would put too much power in the hands of the court. Judges should not be able to initiate actions on their own but should have to wait till somebody files suites. The elected offices must be the ones with the power of initation no matter how stupid they might act sometimes.

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      • So abstract judicial review is broad and encompasses both situations you outline. In some countries the judges themselves can initiate review. But in other countries, some threshold of legislators is required to initiate the review. Some countries allow the head of state to also initiate review.

        Regarding too much power in the hands of the court, well it would be the same power but a difference in time where the power was applied. The elected offices would still be the ones with the initiation power; they’re still the ones coming up with legislation. Courts would just weigh in earlier in the process than they do now.

        Lastly, I don’t think we reflect enough on how utterly wasteful it is to have the same sets of problems percolate through various courts across the country. Until, finally, years later they arrive at the Supreme Court. How much judicial time has been spent focusing on the same or very similar circumstances (also the time of the lawyers involved)? Judicial resources are scarce. As are legislative resources.

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      • That’s all part of a separation of powers justification thought, right? If the Courts are organized in a way that makes them fairly sclerotic, that weakens them relative to the other branches, which we might decide is desirable even with the added expense.

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      • Courts would just weigh in earlier in the process than they do now.

        Courts only weigh in on actual cases and controversies. In your example, it would appear that courts would review far more laws than get reviewed in our system.

        Based on my understanding of this, abstract judicial review would not only involve courts weighing in on matter involving the constitutionality of federal statutes but also the constitutionality of state statutes where such violations of the federal constitution may occur (Art 1, Sec 10, 14th Amendment, etc).

        It puts entirely too much power in the hands of courts. Something like this was proposed at the Constitutional Convention (the Virginia Plan’s Council of Revision) and it was rejected.

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      • IIRC, the Supreme Court equivalent in non-US countries can and do review laws for constitutionality before they are passed by the legislature. Other countries do not have our aversion to the Political Question Doctrine and justicability issues.

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      • The case/controversy thing has a tautological element. Oftentimes, there’s a case when the court says there’s a case. Sometimes there might be a case and the court decides under some doctrine or another not to get involved. Sometimes, saying something to the effect of “That’s a political question, you elected branches sort it out between yourselves”. Or under various ways to play with who has standing or whether a question is moot or not – sometimes, “It is moot in this instance but it could come up again so we’ll take the case”. There’s a degree of gaming involved that’s just not explicit in the present system.

        It puts entirely too much power in the hands of courts.

        We disagree. I’m not going to say you’re wrong, there are any number of ways that a constitution can be ordered that, as Don Zeko points out, involve tradeoffs. I’d trade our present more duplicative system for one where judges weigh in earlier and may have more issues in front of them for consideration – far fewer circuit splits, and maybe a neat traffic light (red, yellow, green light) system providing more legal certainty all around. Personally, I think it is kind of bizarre the amount of legal uncertainty the US system permits.

        I’d add for your consideration though, the US currently has a system of strong judicial review anyway. The courts already possess some large percentage of the power I’m discussing. Take any strongly worded 5:4 Supreme Court opinion for instance; it is very often the final word.

        Something like this was proposed at the Constitutional Convention (the Virginia Plan’s Council of Revision) and it was rejected.

        And yet when Americans (and allies) were writing contributing heavily to the German constitution they put it in. Go figure.

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      • Creon Critic,

        We’ll probably agree to disagree. I read your 2011 post and as imperfect as our system is right now, I’m not sure how this would help. My reading of your post tells me that you would be putting more strain on the resources of the Supreme Court and not less.

        There are other issues as well. Would an advisory opinion be the final word? How can we be sure that all of the constitutional questions are covered and that the arguments for each side are appropriately represented? What about the state governments and private citizens? Are they now shut out from challenging federal laws?

        I can understand the frustration of dealing with idiot legislators that take unconstitutional positions and waste time and energy posturing from those positions. I think the best solution for that is not to use the courts to provide guidance. The best solution is to vote their asses out of office.

        I understand our current court wields a lot of power, but I’d rather have a system where states and citizens can bring cases into the federal courts. I’m not sure your system allows for that. Interesting concept though.

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  3. To sound an optimistic note, I don’t think the backlash will come absent an absolutely idiotic overreach by gay rights groups that I simply don’t see happening. Homosexuals, unlike racial minorities, have a logistical advantage that is rather unprecedented; gays can pop up anywhere in one’s personal tree of relations. Your fervent fire and brimstone anti-gay bigot can easily end up with a gay child or immediate relative in a manner that a fervent racist cannot. More importantly the vast majority of opponents who are not bigots or racists but who simply toe the status quos line can similarly find gay relatives or friends presented to them who abruptly invert the low information decision matrix.

    With the demise of the long term closet this virtuous cycle seems to be strong self reinforcing and I don’t see how the social cons have any shot at reversing it (absent some kind of titanic wave of violence).

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    • Good points hence people like Rob Portman coming out for gay marriage.

      From what I’ve read, the legislation is being written by some kind of right-wing group with a euphemistic name in D.C.* Similar bills are or will be proposed in Tennessee and South Dakota.

      These are all fairly to very strong red-states and might only be getting more red. Tennessee has the highest chance of turning purple. The GOP seems to be doing their damned best to make sure they completely turn off almost any voter under-45.

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    • “gays can pop up anywhere in one’s personal tree of relations. Your fervent fire and brimstone anti-gay bigot can easily end up with a gay child or immediate relative in a manner that a fervent racist cannot. ”

      This is also what leads to some of the intense fear of gays. They are, in the minds of some conservatives, like commies hiding in our homes and schools as fifth column waiting to jump out and take over.

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    • I do need to push back on this:
      Your fervent fire and brimstone anti-gay bigot can easily end up with a gay child or immediate relative in a manner that a fervent racist cannot.

      As a child, one of my best-friend’s father was an outspoken racist. My friend’s sister, at 17, got pregnant. Father was black.

      The turn around in that man was incredible; he loved that granddaughter, and seemed to get that the things he said about blacks in general applied to her.

      I also think that there’s more racial cross-mixing in most of our family trees then we’re willing to admit. I know more then a few folks working on family trees who’ve unearthed surprises that made individuals within the family have to reconsider their biases.

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    • What would “idiotic overreach” by gay rights group look like? It might reflect a failure of imagination on my part but I really can’t think of anything that would qualify. Gay rights groups have the advantage of looking back at other civil rights movements and learning from the mistakes they made.

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      • Zic,

        True. They do see that kind of legislation as overreach and this has always been fraught about when the state can and cannot interfere with the parent-child relationship.

        There was a time when the State tried to prevent parents from sending their kids to Catholic schools or schools in German.

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      • I am not sure if banning conversion therapy really counts as overreach. It will certainly be interpreted as such but a lot of conversion therapy can be interpreted as abusive by its practice. In its more primitive form, it was also literaly torturous since it involved shocked treatment.

        Overreach has to involve using the law to go beyond legal even if still immoral reations to something. The classic example is busing. A lot of whites reacted to Brown vs. Board of Education by abandoning the cities and moving to the suburbs. This took a lot of the umph out of the desegregation drive and civil rights movement. What the whites did was legal but immoral. Busing was a way around this but was such a problematic solution that it could be described as overreach. LBGT overreach has to be similar.

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      • There was a time when the State tried to prevent parents from sending their kids to Catholic schools or schools in German.

        When the Supreme Court struck down those laws in Meyer v Nebraska and Pierce v Society of Sisters, those laws were seen as serving no valid public purpose. They were arbitrary acts against specific groups of people.

        I was a bit uncomfortable with the notion of a ban on this kind of therapy, since the states that have outlawed the practice can show that the practice is basically junk science, ineffective and harmful, I can’t see a court striking it down. It’s not an arbitrary ban if good reasons are given for it.

        Nor does this necessarily interfere with the parent-child relationship. Such bans prevent the use of licensed therapists. Who is to say they can’t take the kids to a church and have the local preacher tell them they’ll burn in hell for being gay? As repulsive as that is to me, I’m not sure if speech like that can be considered illegal.

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      • What would “idiotic overreach” by gay rights group look like?

        The Fire Island Mardi Gras?

        But seriously, overreach is not hard to imagine. For instance, forcing small business owners to provide services or gay weddings or forcing religions to sanctify gay marriages would likely count as overreach in that it would put pressure on groups that people tend to like. I don’t see the latter happening anytime soon. I believe that the former already has, but I don’t see it leading to much backlash so long as things don’t become too heavy-handed.

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      • One of the things about the former issue is that it’s actually got little to do with the SSM debate other than that the events business owners object to assisting now have the formal designation of being “marriage.” The actual legal issue is entirely a function of pre-existing anti-discrimination law, and for that purpose it doesn’t make a whit of legal difference whether the business is refusing to participate in a gay person’s marriage or a gay person’s commitment ceremony.

        The second issue that I think tends to get glossed over here is that, to my knowledge, the business owner herself is not being told to provide service to gays; it’s her incorporated business that is being told to do so – AFAIK, there’s no reason she can’t, for instance, hire a temporary worker to handle that event or subcontract it out to another business. So then the question becomes whether incorporated for-profit businesses (as opposed to sole proprietorships) can claim to have sincerely held religious beliefs. At which point, we’re discussing the Hobby Lobby case that’s already been accepted for hearing in front of SCOTUS this term, which is a really interesting case, but also one that I think causes a lot of problems if SCOTUS rules in Hobby Lobby’s favor – and not just because it makes it easier for corporate entities to evade anti-discrimination laws.

        The bigger problem in my mind is that it creates an unworkable standard: if you’ve got a publicly held for-profit corporation that purports to be a purveyor of Christian values….well, which set of Christian values, seeing as different Christians can have wildly different beliefs, not just from denomination to denomination, but also from congregation to congregation and even from individual to individual within a congregation? And if it’s a closely held corporation, again, which owner’s beliefs control? And what if the business is sold or a new partner comes into the picture? And even if there’s only one owner (but it’s still incorporated), how do we know that the owner’s beliefs are sincere rather than just an attempt to undo some of the responsibilities that come with incorporating without undoing any of the benefits of incorporating (e.g., limited liability)? And isn’t forcing an individual to undergo an intense government-enforced examination of the sincerity of his religious beliefs itself problematic and a potential violation of the person’s right to free exercise?

        These are, I think, very different issues from the question of whether corporate entities may have free speech rights, even if they both arise under the First Amendment. In the case of speech, what is protected – and what is indeed valued – is the speech itself, independent of the belief underlying it and independent of the speaker. Speech transmits ideas, regardless of whether those ideas are sincerely held by the speaker. Words are an observable output. A corporation can “speak” because it can produce. But what’s more, a corporation’s free speech rights – just like an individual’s – protect only its verbal output. A corporation can’t use its free speech rights to evade having to comply with laws to which it objects or that its principles find immoral.

        But in the case of religion, what is protected is the “exercise” of religion. How, exactly, can an entity whose legal existence is premised entirely on notions about the socialization of risk and the encouragement of profits “exercise” religion in a manner not already protected by free speech principles? To the extent a corporate entity’s “exercise” of religion is defined by its output, its free exercise rights are wholly and completely subsumed within its free speech rights. But to the extent its “exercise” is negative, defined by that which is nonverbal and intangible, by its owner’s vague concepts of morality and immorality….well, suddenly we’ve turned corporations into a vehicle for individuals to evade compliance with any laws they dislike. If a business owner believes (or says he believes) that labor unions are immoral and forbidden by his particular Christian theology, does his business then get to evade compliance with the NLRA while retaining the benefits of limited liability? With minimum wage laws?

        When we talk about free exercise rights, to the extent not subsumed under free speech rights, we talk about either (a) rights to interact with the physical world in a particular manner that is inapplicable to corporate entities – to attend services, to wear certain clothing, to use certain substances; or (b) rights not to be compelled to act in a particular manner that violates a readily defined belief. But corporate entities’ very existence is a function of what they may be compelled to do – they must file certain paperwork, they must create certain documents, and most importantly, they must act in a manner consistent with an independent entity, lest they forfeit their limited liability.

        Allowing corporate entities to evade their legal obligations because of the (supposed) sincerely held beliefs of their principles turns that last concept on its head – insist that a business has “beliefs,” and that those “beliefs” are whatever its owners purport to believe, and you elide the distinction between owners and their businesses that underlines the entire basis for having corporate entities. A business may well “speak” in a manner independent of its ownership (in fact, any business that has employees does so every day), but for a business to have free exercise rights in any meaningful sense, those rights must of necessity be entirely indistinguishable from a particular business owner’s beliefs, making it damn near impossible to determine where the corporate entity (and thus its limited liability) ends and the business owner (and thus his individual liability) begins.

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      • And if it’s a closely held corporation, again, which owner’s beliefs control? And what if the business is sold or a new partner comes into the picture?

        Frankly, we’ve never allowed *other people* to testify in regard to sincerely held religious beliefs before. If you want to get conscientious objector status, *you* have to appear in front of the draft board and explain your objection. I’m damned if we can see why we should start allow other people to testify as to *your* religious beliefs.

        If the corporation has sincerely-held religious beliefs, the corporation needs to get on the stand and testify as to them. Not an owner, not the CEO, not a lawyer speaking for the corporation. The actual physical corporate entity needs to get up there and explain what beliefs are in *their* mind, not have a lawyer hired to represent them ‘explain’ things.

        Some people might point out this is impossible. Well, yes. Yes it is. It is impossible because corporations do not have bodies, and nor do they have minds to have ‘beliefs’ in.

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      • Yeah, I could have saved myself a few hundred words if I’d just written that.

        Heh, no, you were much more on point, I was just snarky.

        To actually address the issue, I’m right, but in the wrong way. A major issue in religion infringement cases is determining whether or not something is an actual religious belief, which is done by questioning the holder of the belief. Yes, on the stand, or at a special hearing created to hear the claim, like in selective service.

        But the ‘people’ in these cases, is a) someone who cannot be questioned or appear on the stand to determine the sincerity of the belief, and, more important, b) someone *everyone acknowledges has been told to have this ‘belief’ by an outside entity*.

        (a) is just snark, but (b) makes the entire case sheer nonsense on the face of it. If you’ve just been *told* you believe something, even if you’re told it by your owner(1), then you do *not* have a sincerely-held religious belief. Especially if you also appear to have literally no mind to have ‘beliefs’ in.

        1) Yes, it seems odd to talk about people having owners, but, hey, I’m not the idiot who invented that.

        But corporate entities’ very existence is a function of what they may be compelled to do – they must file certain paperwork, they must create certain documents, and most importantly, they must act in a manner consistent with an independent entity, lest they forfeit their limited liability.

        I keep making this point, and no one seems to listen. But it’s slightly stronger than that…a corporate entities’ very existence *is* the paperwork, and actions by human beings that the state allows to be attributed *to* the corporation.

        There’s a certain brand of silliness that thinks of corporations as the owners, or the CEO, or even the workers. No. The state has created (upon request) a fictional entity that workers can ascribe their actions to, and left that fictionally entity nominally in control of the owners.

        The closest analogy to corporations are fictional characters in strange, joint-written fictional works. Except in addition to mere words on paper or images on a screen, the writers can also run around doing certain things in the real world, and have those things *legally* be attributed to the fictional characters.

        I’ve deliberately stopped talking, in this sort of discussion, about corporations ‘doing’ anything…because corporations only ‘do’ things via legal fiction. It’s *very* easy to anthropomorphize corporations, and then ascribe them goals and thus motives and thus beliefs. And you want to stop that, which is good…but the thing is, that’s stopping too late.

        In reality we shouldn’t even *reify* corporations. They do not exist, period, full stop. There is no there there. It’s the realm of pure imagination. It’s like saying Harry Potter isn’t really a person, and I guess he’s not. But Harry Potter also *doesn’t really exist at all*.

        That’s the line we hold in the discussion. Make the other side patiently explain how fictional things exist in some sense. When they’re done, when they’ve gone all metaphysical to explain how anything that has an effect on the world can be considered to exist in some sense…they just totally lost the plot, because to get there, they will have admitted corporations are entirely a construct.

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      • I think it’s also worth considering to extent to which we’ve polluted the concept of a limited liability corporation.

        The whole POINT of an LLC is that it shields the owners from liability, placing a firewall (corporate veil, what have you) between the owners and the company. “Closely held” is BS phrasing — you’re either “limited liability” in which case you, the owners, are separate from the company — or you’re not.

        I’d be a lot more forgiving of the ‘religious values’ of not LLC’s or charities than any LLC.

        Now, Bob and Sam’s Flower Shop is probably not an LLC — but Hobby Lobby is.

        Corporations don’t have values, religious beliefs, or anything that people do — because corporations, by and large, were created to sever the relationship between the owner and the business.

        Something I think SCOTUS has really lost sight of. (As you can guess, I think Citizens United is BS of the highest order).

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      • Corporations don’t have values, religious beliefs, or anything that people do — because corporations, by and large, were created to sever the relationship between the owner and the business.

        That’s not, technically, why they don’t have those things.They don’t have those things for the same reason Harry Potter doesn’t have values or religious beliefs, , and unicorns do not have one horn. Because Harry Potter, unicorns, and Pottery Barn do not exist, so cannot have attributes of any sort. (1)

        Perhaps more importantly, the government, if it wished, *could* let the people in control of those corporations ascribe religious beliefs to them, and ‘recognize’ those ascribed beliefs as legally true. They could do it the same way they can recognize that a corporation has ‘signed a contract’ or ‘owns some land’ when a specific person does those things. (And then, of course, they could put religious exemptions into the law for such ‘corporate beliefs’.)

        Of course, the government doing such a thing is completely contrary to how we’ve done all other ‘religious exemptions’ in the laws of this country, like I pointed out.

        *And*, as you point out, it’s completely contrary to the entire point of corporations on top of that. The entire point is that they *aren’t* their owner, or even their employees. Letting them start throwing around religious beliefs is a bit absurd.

        So there really are two really good reasons not to let corporations have a religious exemption…that is not how corporations work, and that is not religious exemptions work either!

        1) This seems a silly quibble, but all too often I see people talking about ‘real’ things corporations do and have, as compared to religious beliefs, which they don’t ‘really’ have. But in reality, every single thing a corporation does is the government *imagining* the corporation did a thing, instead of the specific individual that really did it. Everything. Nothing is really done by them. Corporations are a mutually agreed-upon lie everyone tells themselves.

        Corporations are the Santa Claus of adults, where there’s just a bunch of stuff that different individuals do that get attributed to a specific entity.

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      • It’s worth mention – and on this I am probably in the minority here, but I’ve written at length about this before- that there’s a huge distinction between speech and beliefs. Nowhere in the first amendment does it say only natural persons’ speech is protected (or even that only people’s speech is protected in general). What it says is that speech itself is protected, regardless of who’s paying for it or who it’s attributed to. Speech is, as I said above, a tangible product, and thus something that corporations can produce. A corporation can “speak” through its employees, and what’s more, a corporation can be liable for it’s employees speech on it’s behalf – if an employee commits fraud on the corporation’s behalf, the corporation can and will be held liable.

        But corporations cannot “exercise” religion, because the “exercise” of religion is definitionally action or inaction based on a belief. Beliefs require brains, which corporations by definition do not have. To the extent a corporation can be said to have any beliefs ( as opposed to interests) at all – and they cannot be- those beliefs can only be that it should try to be profitable. Which, of course, isn’t a religious belief.

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      • You may be in the minority, but I’m there with you. The First Amendment is a specific restriction on Congress; “Congress shall make no law…abridging the freedom of speech…” There is no qualification on that clause, nothing that says “of individuals.” It is also followed by “or of the press,” which clearly does incorporate actual corporations. I think it’s a tougher legal analysis to give Congress the authorityto restrict any speech than it is to deny Congress the authority to restrict any speech.

        There’s also, I think, a dangerous link that you hint at, in terms of holding corporations liable for something like fraud. If “GloboMegaCorps isn’t a person, and has no speech, so the false claim that Joe Schoe promised you is his fraud, not the corporation’s” becomes a legitimate claim, good luck getting full compensation from the shallow pockets of Joe Schmoe, while GloboMegaCorps goes unpunished.

        I understand why critics of CU dislike it. But disliking the capacity of corporations to spend shiploads of money to influence elections is 1) as a constitutional matter, insufficient basis for legislative authority, and 2) not a complete analysis of the consequences of their legal logic, which can–at least theoretically–produce outcomes they would dislike every bit as much as corporate campaign spending.

        I think the legal reasoning makes this a no-win situation for CU critics. That’s a sucky position to be in.

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      • I understand why critics of CU dislike it. But disliking the capacity of corporations to spend shiploads of money to influence elections is 1) as a constitutional matter, insufficient basis for legislative authority, and 2) not a complete analysis of the consequences of their legal logic, which can–at least theoretically–produce outcomes they would dislike every bit as much as corporate campaign spending.

        Not to mention it doesn’t solve the problem. All it actually does is make the billionaires attempting to purchase the government use their own names.

        I don’t want a world where the Koch brothers can donate all the want to candidates in their own names, or run all the political ads they want, and the AFL-CIU is barred from any political activity.

        Conflating corporations with people is very bad and stupid precedent, but it is not *actually* the problem with Citizen’s United.

        The problem is that if money is speech, not only do certain people seem to have a crapload more ability to ‘speech’ than others, but the Supreme Court seems to think this is a *good* thing.

        That said, I have no problems with fixing the ‘dark money problem’. There is a time and place for anonymous political action (People seem to forget that such anonymity has, in the past, protected people donating to gay rights groups.), but that time and place is *not ads run on television*. Period. Every dollar of every political TV ad should be traceable to someone.

        Likewise, I have no problem fixing the ‘CEOs and boards abusing corporate money to influence the political process’. I’m completely in favor of the idea that all stockholders get a voice in *their* corporation jumping into politics.

        But neither of those will actually fix the issue. The problem isn’t ‘free speech’ rights of corporations, it’s ‘money is buying politics’.

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      • CU has much in common with Shelby County:

        Both were 5-4 decisions across the usual fault line.

        Both had the obvious effect of helping Republicans electorally. (They may not have figured out how to use unlimited funds yet. That doesn’t mean that they never will.)

        Both are wildly unprecedented. Campaign finance law had applied differently to individuals and organizations for decades, and the VRA as almost 50 years old.

        In both cases, Clarence Thomas wrote opinions in which he wanted to go even further that the majority. The Senate that game him a lifetime appointment at 43 has a lot to answer for.

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      • The problem is that if money is speech, not only do certain people seem to have a crapload more ability to ‘speech’ than others, but the Supreme Court seems to think this is a *good* thing.

        1. Some people will always have more speech than others, even if speech wasn’t money. Some people have the ability to get people to listen and take them seriously, others don’t. Not all of that ability is related to whether they “ought” to be taken more seriously.

        2. I must object to the final phrase. It’s important to understand that when the Supreme Court rules in a particular way they’re not saying they think X is a good/bad thing but X is constitutionally allowable/not constitutionally allowable. Anyone who’s studied the Constitution understands that it allows for any number of foolish laws, and bans some laws–which ones depending on each person’s own political ideology–that might be wise.


        [CU] … had the obvious effect of helping Republicans electorally.
        Eh, Vizzini, I don’t think that word “obvious” means what you think it means. Multiple studies demonstrate that money itself just doesn’t determine electoral outcomes. You’re relying on some really superficial theory without considering any of the empirical data.

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      • The problem is that if money is speech, not only do certain people seem to have a crapload more ability to ‘speech’ than others

        So you want to ban mass media and public speeches? Because that’s basically what it’s going to take to solve this problem.

        What most of the anti-CU people seem to be arguing for, effectively, is a system where the privilege of disseminating one’s speech far and wide is reserved for owners of mass-media outlets.

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      • when the Supreme Court rules in a particular way they’re not saying they think X is a good/bad thing but X is constitutionally allowable/not constitutionally allowable

        Eh…in theory. In practice, many of them seem to have trouble drawing that distinction.

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      • The 15th Amendment is part of the Constitution. Used to be, anyway.

        Contrary to received wisdom from the left, the 15th Amendment is alive and well. All Shelby County did was eliminate the statutory requirement for pre-clearance of changes in voting rules and procedures. It did not eliminate the constitutional requirement that those changes not abridge the voting rights of minorities, so if a change does, it can still be challenged and struck down.

        Now as a constitutional matter, I think the Court got Shelby County wrong. Both the 14th and 15th amendments have clauses authorizing congressional enforcement. However the clauses limit it enforcement to “appropriate” legislation. So the question is whether the pre-clearance requirement is appropriate today. Like you, I think it is. But since it only applies to certain counties, based on their history, rather than on their current actions, it’s not entirely unreasonable to argue the pre-clearance provisions are discriminatory.

        To play devil’s advocate, look at the current efforts by the GOP in a variety of states to make more restrictive voter ID requirements, requirements that disproportionately affect minorities (because they disproportionately affect the poor). Why don’t those states have to get pre-clearance? Their present actions are more discriminatory than the regulates states/counties present actions are. So perhaps a uniform pre-clearance rule for all states and counties would be arguably more legitimate than a pick-and-choose-based-on-historic-not-current-actions rule.

        But be that as it may (and again, I think the Court got it wrong), the 15th Amendment requirements against abridging the right to vote were not actually touched by the Shelby County case. They’re just like every other constitutional right–challenged when they’re violated.

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      • I’m sympathetic to that view. I’m not a big fan of anonymous speech. But particularly for those who are…hmmm, less privileged, the subaltern, the oppressed, choose your term…requiring disclosure of the speaker’s identity can, sadly, suppress their speech.

        So I think allowing anonymous speech is a necessary cost to encourage free speech.

        In addition to death and taxes, another certain aspect of life is that the privileged will take advantage of any rules designed to protect the less privilege.

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      • I gotta be honest, and there’s no reason to go over this again because we have before, I just do not understand the dislike some have for anonymous speech.

        I understand people who don’t like equating ‘money spent’ with ‘speech’ (as a general rule I am for maximal transparency in seeing where the money is coming from, and where it is going in our political system) – but being against the basic concept of anonymous speech *itself* just seems crazy to me.

        It’s like being against the concept of fiction, because some people lie.

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      • I’ll admit that the demand for anonymity annoys me most when it’s being used because the speaker knows that the message will be badly diluted if everyone knew who it was yelling so loudly. The Walton kids spending big bucks to advocate anonymously for eliminating the inheritance tax (using the sympathetic image of the small family farmer as a front), or large chemical companies advocating anonymously that the EPA shouldn’t be allowed to regulate fertilizer run-off from from massive industrial farms in the Mississippi drainage (again using that small family farmer image). If you’re going to spend a fortune to advocate for policy changes that would be directly to your benefit, you ought to have to reveal that that’s the case.

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      • “I gotta be honest, and there’s no reason to go over this again because we have before, I just do not understand the dislike some have for anonymous speech.”

        As someone who speechifies anonymously on blogs, I almost completely agree. I am probably paranoid, but I do believe a strong presence in the blogosphere under my own name might potentially make it more difficult for me to get or keep a job.

        I do think there’re dangers to anonymous speech, however. It’s much easier for me to elude consequences for offensive or controversial things I might say online. And although I think I generally acquit myself well in that regard, I can think of some examples where I’ve said things that were needlessly argumentative or by my own standards offensive and about which I’m still embarrassed. If I had not been anonymous, I’d have to face greater consequences for such speech.

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      • Speech is, as I said above, a tangible product, and thus something that corporations can produce. A corporation can “speak” through its employees, and what’s more, a corporation can be liable for it’s employees speech on it’s behalf – if an employee commits fraud on the corporation’s behalf, the corporation can and will be held liable.

        Yes and no.

        The US government cannot ban someone from speaking, employee of a corporation or not.

        What it *can* do is not recognize the legal fiction that said employee is acting for the corporation if the employee starts making political speech. Make a law that political speech, unless the organization is *specifically* a political non-profit, will never be considered to be an authorized action of the corporation. No speech whatsoever will be banned, a certain type of speech just been removed entirely from the corporation universe and placed outside that.

        Once you remove that legal fiction, the speech will stop. (For one reason, because if they spent any money, now whoever spent that money probably just committed theft, and if the board authorized it they probably just committed malfeasance of some sort, just like if they authorized tax fraud.)


        My own complaint isn’t so much about money equaling speech so the rich get bigger voices, or purely legal entities like corporations getting free speech, but the notion that such speech, especially political speech, can be anonymous.

        Anonymous political speech, specifically in the form of money, has been very useful in the civil right’s movement. Oppressed people might not be willing to get out and march, or even publicly speak out, becuase they are worried about retribution. But they are willing to donate to a cause.

        That said, if there’s actual oppression on *that* level, I’m pretty sure said groups wouldn’t be able to buy TV ads, nor do the super-rich need access to this sort of thing. I think a donation cap could be reasonable…you get a grand total of $1000 a year you’re allowed to anonymously donate to groups. (Of course, right now, thanks to idioticly

        And we should *completely* remove second- and third-level donations, which is how a lot of dark money is thrown around. Want to donate anonymously to a 501(c)(3), which has public donation records? Simply make a 501(c)(4), or a real corporation, and donate to that, and they can donate the 501(c)(3).


        So you want to ban mass media and public speeches? Because that’s basically what it’s going to take to solve this problem.

        Money isn’t speech, at all. Money is an *amplifier* for speech.

        In the non-analogy world, we already have rules about how loudly you are allowed to amplify speech.

        We’re sorta looking at this the wrong way. The problem isn’t donating money to people (Which is the basis for most campaign finance laws, and nearly impossible to care about.), the problem is very loud and misleading speech drowning out other speech.

        We basically need to treat this the same way we’d treat a huckster who set up a booth on the side of the road, promising through loudspeakers a miracle cure for cancer. There may be some ‘speech’ involved there, but it doesn’t mean we ignore it.

        What we need to do is a few things. One, stop all the redirection of anonymous money, and almost all anonymous money, period. Two, stop allow corporations and non-profits that are not explicitly political from including political speech under their corporate actions. Three, make it easier to sue for deliberately false political attacks.

        That’s all I really have at this point. It wouldn’t make things perfect, but it would fix most of the *current* problems…I’m sure some new abuses would shortly show up, though.

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      • Heh, I forgot to finish a paragraph there. It was presumably going to be about the dumbass supreme court that made donating to political groups ‘speech’ made it nearly impossible to cap donations to such groups.

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      • What I mean is that the broadcast media are by far the loudest and most pervasive speakers. They broadcast non-stop, year-round, to audiences in the millions. Nothing else even comes close. If you’re concerned with inequality of speech, that’s the obvious target. Reducing anyone else’s ability to disseminate their speech just increases that inequality.

        And your plan is obviously just a pretext for a ban on corporations disseminating speech. There’s no way that would get past the same court that ruled in favor of Citizen’s United.

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      • And your plan is obviously just a pretext for a ban on corporations disseminating speech. There’s no way that would get past the same court that ruled in favor of Citizen’s United.

        My plan, or zic’s?

        You’re right in that’s zic’s would not. The Fairness Doctrine was not only silly, there’s no legal justification for it for *cable* news anyway, and that’s the main problem at this point.

        Now, I know part of my plan would not get past the Supreme Court, but it’s not the corporation restrictions part, it’s the anonymous speech cap thingy. (You may have posted before I explained that missing paragraph I forgot to write.)

        I think you may be right, that restricting political speech from being considered a corporate action might *possibly* not get past the supreme court at this point, but if so, the supreme court will have rather clearly gone off the rails. There’s already all sorts of things corporations aren’t allowed to do under their fiction that are perfectly legal for people to do, and as long as the laws are structured *that way* (Blocking certain actions from being being considered under the corporate rubric, instead of just barring people from doing the action.), they are constitutional. Any court that says otherwise, frankly, needs to be impeached.

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      • Foolish of political campaigns to spend so much time and energy raising money if it doesn’t help. Someone who understands that should be able to run much more effective ones by concentrating on things that do matter.

        So perhaps a uniform pre-clearance rule for all states and counties would be arguably more legitimate than a pick-and-choose-based-on-historic-not-current-actions rule.

        That could well be, but sup-optimal != unconstitutional. And, of course, so long as the GOP controls at least one house, the replacement won’t be a better standard, it will be nothing at all.

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      • 1. You haven’t read the literature on campaign spending effects, you haven’t been a campaign professional, and you haven’t talked much to campaign officials, am I right?

        2. There’s actually a way to argue about constitutional law that indicates an understanding of it, rather than just indicating political preferences.

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      • There is. For instance, when saying that the pre-clearance rules were “discriminatory”, as opposed to “not enforced in the most sensible way” you can explain who they discriminated against and why such discrimination is unconstitutional.

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      • You just signaled that you haven’t actually read, or not understood, the decision, so I’m just going to stop now. This is all too reminiscent of trying to discuss constitutional interpretation with right-wing or libertarian ideologues.

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      • I think your grasp of American political theory is incomplete. The states were sovereign independent countries under the Articles of Confederation. When the Framers crafted the Constitution, all power given to the Federal Government was a sacrifice of power from the states. But the states didn’t give up all their power, and what remains to them does not come from the Constitution or from the federal government, but predates both. That is, the power “reserved to the states” is their original sovereign power.

        Although its boundaries have been chipped away at, each state still has that sovereign power. As one important example, each state has the general police power to regulate for the health, safety and welfare of the public, which the federal government in fact still does not have. And each state is equal.

        So defending equal sovereignty, I’m happy to do that. The federal government does not have authority to put special conditions on just some states unless there is particular justification. Once again, I am in agreement with you that in this case that justification still exists, and I think Justice Roberts was wrong. But he was wrong in his conclusion, not in his argument that differential treatment of the states has to be justified.

        Wishful thinking, or viewing it as an anachronism or an undesirable condition (legitimate views, of course), doesn’t make the states’ sovereignty go away.

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      • The federal government does not have authority to put special conditions on just some states unless there is particular justification.

        And this is a settled principle that has been used to invalidate laws is the past? The Posners can’t find it, except in hypothetical

        It’s possible that the federal government would subject a state to unequal treatment so arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional authority.

        which the VRA doesn’t approach.

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      • which the VRA doesn’t approach.

        That leaves open the question of just how onerous and arbitrary an action might be required to get the SCOTUS to toss it. Within my main narrow focus, I expect that sometime in the next 10-12 years such an action will be identified: long-term storage of nuclear wastes from commercial nuclear power stations. The spent-fuel cooling pools are more than full; the dry-cask on-site storage is starting to pile up; the populous eastern half of the country will revive the idea of burying it all in one of the lower-pop Great Basin states. I expect the SCOTUS reasoning to follow the lines of “If it’s too dangerous to store in a New Jersey or Alabama or Illinois where it’s produced, then it’s too dangerous to force on an unwilling Nevada or Utah.”

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      • And this is a settled principle that has been used to invalidate laws is the past?

        Name other laws that impose onerous requirements just on a select numver of states. Sometimes judges never make a particular ruling because the particular violation never happens. Foe example, the Supreme Court has never ruled against the Federal Government on 3rd Amendment grounds, nor has it evet applied the 3rd Amendment to the states, the somole reason being a dearth of actions by either the Federal or state governments leading to 3rd Amendment challenges. (There was a case, Engblom v. Carey, in the 2nd Circuit in 1982, and a current case in Nevada pushing a possibly dubious 3rd Amendment claim (although I hope they win); that’s about it.)

        The Posners can’t find it, except in hypothetical

        So they accept the concept of equal sovereignty, just not the application? Good, they agree with me.

        which the VRA doesn’t approach.

        You seem to think we’re arguing about the outcome of this case, no matter how many times I tell you I agree with you. Why?

        There are legal principles, and then there is the specific application of a legal principle–believing a particular legal principle is legitimate does not commit a person to every specific application of it. The idea that state have some degree of sovereignty, and that each is equally sovereign with each other, is not seriously disputable. The idea that these states’ equality of sovereignty was improperly violated; very debatable. It’s absolutely critical in all analyses of constitutional law to distinguish between principle and application.

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      • We basically need to treat this the same way we’d treat a huckster who set up a booth on the side of the road, promising through loudspeakers a miracle cure for cancer. There may be some ‘speech’ involved there, but it doesn’t mean we ignore it.

        What we need to do is a few things. One, stop all the redirection of anonymous money, and almost all anonymous money, period. Two, stop allow corporations and non-profits that are not explicitly political from including political speech under their corporate actions. Three, make it easier to sue for deliberately false political attacks.

        The last time that I can remember someone promising to cure cancer it was about five years ago in the State of the Union and far from being ignored he was broadcast live on every channel that broadcasts.

        If our democracy is robust enough to weather the ill-effects that come from vesting the full freedoms and powers of speech with such an unsavory and dishonest lot as politicians, political parties and the media, then I think we’ll be OK with a few daft billionaires throwing their money around like rappers in a strip club.

        Conversely, if our democracy is such a hothouse flower that a few commercials can bring the whole thing down, then the thing probably wasn’t worth much to begin with.

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      • Name other laws that impose onerous requirements just on a select numver of states. Sometimes judges never make a particular ruling because the particular violation never happens. Foe example, the Supreme Court has never ruled against the Federal Government on 3rd Amendment grounds, nor has it evet applied the 3rd Amendment to the states, the somole reason being a dearth of actions by either the Federal or state governments leading to 3rd Amendment challenges.

        But we know that the 3rd Amendmant exists as an article of law, whatever it means or its effects might be if ever invoked. We don’t know that about equal sovereignty of the states – that’s what we’re trying to determine about it: whether it’s an actually-existing legal doctrine. If we could read it in the Constitution, that would be evidence of it existing. Alternatively, there are active legal doctrines that spring into being as judicial action and don’t have clear textual embodiment in legislation or written constitutional language, but that do have a track record of existence-through-application in the case law.

        The problem Mike is identifying is that, as a legal doctrine, at least some highly-informed interpreters (the Posners) claim there is not evidence, either in legislative or constitutional language, or in the judicial record, to support the idea that equal sovereignty of the states existed as a legal doctrine in American constitutional law before Justice Roberts invoked for the first time in 2009. That makes the non-enforcement of the 3rd Amendment an insufficient analog, since there is clear evidence of its *existence* as at least a legal artifact, if not doctrine, in constitutional text.

        It’s fine to say that the legal principle always existed (and was just never enforced) because of the background political-institutional realities of the formation of the U.S. Constitution. But to say that’s so is not to provide evidence that it’s so, and it’s certainly not to provide evidence for the legal doctrine’s prior existence that is as compelling as the text of the 3rd Amendment is for the existence of the the 3rd Amendment as a legal doctrine (of some sort) despite it’s almost non-existent application to events thus far.

        (Incidentally, it’s also fine to say, “No, indeed you’re right, it was not a legal doctrine until Roberts (very belatedly for the Court) turned the political principle I cite, which we ought to see as profoundly compelling, into a (new) legal doctrine in 2009. It’s just that new. After all, all interpretive legal doctrines that depart or add to the statutory or constitutional text were at one time this new, and this one is as justified as many of them.” No joke. IMO, that’s a 100% legitimate response from the perspective of constitutional interpretation and jurisprudence. You might consider whether it’s the correct response here, because I think you have failed to provide evidence for the doctrine’s existence existence as a legal doctrine prior to 2009.)

        Again, either a history of application or textual embodiment alone in the absence of the other obviously do constitute evidence of the *existence* of a legal doctrine (though of course not for its correctness) that, while not as compelling as a record of unambiguous application of embodied language (if such exists), is still usually dispositive of the existence of the doctrine as legal doctrine. But the absence of both textual embodiment in statutes or a constitution and the absence of a record of application of a purported legal doctrine calls into question its very existence as a legal doctrine, and creates a need for evidence to establish its existence (at a given date: we can all, I think, agree this doctrine now exists as a legal doctrine and has since 2009, but we can’t agree it has existed longer than that). And an historical argument for the existence and soundness of a political principle that *would* justify such a legal doctrine if it existed on date X (or that *does* justify it if it exists on date Y) is not itself evidence that the legal doctrine existed on date X.

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      • Also, it appears that I started this whole sub-thread on corporate personhood, which is odd because I specifically mentioned small businesses in my comment.

        Anyway, it is uncanny, but almost anytime that I see people objecting to the majority decision in Citizens United, they are almost never objecting for the same reasons stated in the dissenting opinion. And that is odd, because the dissenting opinion is long and contains lots of arguments. Nowhere in those dissenting arguments, though, is there any notion that the constitutional prohibition against laws impeding free speech ought not extend to corporate entities. Of course it does.

        The minority dissent was on the basis that the government ought to be able to more stringently regulate corporate speech, because of the supposed threat it holds to the sanctity of the electoral process. Even the dissenters agree that the government may not suppress corporate speech, but only place limits on it.

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      • Another point on this:

        Name other laws that impose onerous requirements just on a select numver of states.

        …or, rather, a question. If we could come up with laws that do this to about the same extent that the VRA does (and my intuition tells me we could, though I might well turn out to be wrong), would that establish or suggest for you whatever you are implying there it would establish or suggest if someone were to name such laws? (Presumably that the notion that this legal doctrine always existed and just never found fact pattern to which it could be applied must come into serious doubt at that point, but you can say exactly what it would mean.)

        …OR, would your response be that, since Roberts was wrong in his application of the legal doctrine of the equal sovereignty of the states to the facts in Shelby County (and presumably the 2009 utilities district case), that finding laws similar to the VRA would be insufficient, and we’d have to find laws that in your view would properly been seen to violate equal sovereignty without the requisite justification?

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      • Michael,

        Let me hit this from a few angles.

        1. A constitutional principle can exist distinctly from any application, or lack of, by the Supreme Court. Especially a principle that is so foundational as the states’ sovereignty and equality. See, for example, in Public Works v. Mitchell (1947) the Court saying:

        The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people.

        See also Hamilton in Federalist 33:

        But it will not follow from [the supremacy clause] that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation,

        So the actuality of states’ sovereignty (within a limited sphere), is established. And who can doubt the states’ equality in that sovereignty? Do we have second-class states as a constitutional matter?

        So far the only argument I’ve heard against this is that we’ve not heard the Supreme Court enunciate it specifically before. What I haven’t heard hear is an argument for how the Supreme Court could deny this principle.

        But does it bind Congress to treat the states equally? One can infer that from Hamilton. But imagine some cases of arbitrary inequality. Let’s say Congress imposes a rule disallowing California from using a non-partisan blanket primary. Just California. Can you, anyone, make a good argument for the legitimacy of such a rule? Is Mike Schilling going to say they can? On what legal theory? If he says they can’t, on what legal theory?

        2. Assume it is a new constitutional principle, at least so far as Supreme Court interpretation goes, since they’ve never explicitly announced it before. So on what basis does a liberal make a general objection to the Court announcing a new constitutional principle? One could, in that case, legitimately sneer at conservative justices who pretend to be against such things.

        But a generalized sneering at the creation of new principles would gut liberal-favored jurisprudence. Griswold and Roe–gone. The incorporation of most of the Bill of Rights against the states–gone. Those all involved brand-new, never before announced, principles.

        But each had a logical foundation. And I’ve explained the logical foundation of the equal sovereignty principle. So a liberal like Schilling can’t just sneer away newly announced principles, or he denounces the ones he favors, but must critique the logic underlying them. That I’ve yet to see here.

        3. Finding other real-world examples. I’d have to consider them on a case-by-case basis. I think Shelby was wrong because both the 14th and 15th Amendments explicitly grant the regulatory authority Congress needs in this area, and because the Courts normally give more deference to Congress as a finder of facts to justify a law, and should have done so in this case. That was the real error, not the equal sovereignty principle, but the lack of their traditional deference to Congress’s superior fact-finding ability.

        If someone shows me other relevant cases, I’d look at them on a case-by-case basis. But I’ve established–to my satisfaction–the sound, I’d say inevitable, basis for the principle of equal sovereignty. So the Court’s failure to apply it in a particular case I might call an error. Or I might agree it didn’t apply in that case.

        That is, to persuade me I’m wrong, you’d have to undermine the logic of the constitutional theory.

        I suspect the fundamental basis of Mike S.’s disagreement–and of course I’m speculating–is a combination of dislike of the policy effects of the outcome and a misunderstanding (common today) of the fact that states still have fundamental sovereign authority that can’t just be overridden by Congress, and perhaps a misunderstanding of the fact that Congress is in fact a legislature of limited, enumerated, powers, not a legislature of general powers. Where the boundaries of legitimate federal regulation of states lie is the subject of on-going debate (and one can legitimately think the limits ought to be done away with completely), but that they do exist cannot really be denied by anyone who’s seriously studied the Constitution.

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      • Addendum.

        M. Drew, I think you missed the point of my 3rd Amdt. analogy. There was an implication that previous failure to mention was somewhat dispositive of the question of the doctrine’s reality. The 3rd Amendment rebuts that because it also largely lacks Supreme Court reference* yet we have indisputable textual proof of its existence.

        So while lack of reference to a principle means those claiming it have a harder case to make, we know, by analogy to the third, that it logically cannot be conclusive evidence of the principle’s non-existence. So what you took to be the flaw in the analogy, the 3rd’s textual existence, was actually the key to it.

        As to lack of prior use, it shouldn’t surprise us if Congress rarely arbitrarily overrides the authoritu of just a subset of states. The Reps and Senators from those stated would normally do their damndest to prevent that, right? That’s why I ask, give me examples.**
        _____________
        *A passing, largely irrelevant, glance in Griswold.

        ** I suspect Michael Caine is wrong about nuclear waste, since that csn be classified as interstate commerce (garbage has been so classified by SCOTUS). But I can see Nevada trying that angle if Yucca Mountain is re-opened.

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      • Here’s a shot at tracing the SCOTUS history of equal sovereignty.

        tl/dr version: The principle of of equal sovereignty of the states has a Supreme Court history dating back to 1845.

        1. In Shelby County (2013), Roberts cites his own opinion in Northwest Austin Municipal Utility Distict v. Holder (2009). (Wry smiles all around, I hope.)

        2. In Northwest Austin he uses “equal sovereignty” in quotation marks and references United States v. Louisiana, (1960). That is, he’s indicating that the precise phrase was used in that prior case.

        3. Unfortunately I can’t access the actual opinion in that U.S. v. Louisiana, but supreme.justia.com does have a syllabus* of the opinion (written by Hugo Black for a unanimous Court–essentially the Court of Brown v. Board of Education, Mapp v. Ohio, Miranda v. Arizona, and other such liberally applauded rulings), and in that syllabus it says;

        This Court early held that the 13 original States, by virtue of the sovereignty acquired through revolution against the Crown, owned the lands beneath navigable inland waters within their territorial boundaries, and that each subsequently admitted State acquired similar rights as an inseparable attribute of the equal sovereignty guaranteed to it upon admission. Pollard’s Lessee v. Hagan.

        4. Pollard’s Lessee v. Hagan (also cited by Roberts) is an 1845 case that deals with whether states or the federal government held possession of tidal lands above the low water mark. The doctrine is referenced in passing, but approvingly.

        between 1840 and 1844, a doctrine had sprung up in the courts of Alabama, (previously unheard of in any court of justice in this country, so far as I know,) assuming that all lands temporarily flowed with tide-water were part of…a sovereign right in the old states; and that the new ones when admitted into the union, coming in with equal sovereign rights, took the lands thus flowed by implication as an incident of state sovereignty, and thereby defeated the title of the United States… Although the assumption was new in the courts, it was not entirely so in the political discussions of the country; there it had been asserted, that the new states coming in, with equal rights appertaining to the old ones, took the high lands as well as the low… That the United States acquired in a corporate capacity the right of soil under water, as well as of the high lands, by the treaty with France, cannot be doubted; nor that the right of soil was retained and subject to grant up to the time Alabama was admitted as a state. Louisiana was admitted in 1812; to her the same rules must apply that do to Alabama. (emphasis added)

        5. In U.S. v. Louisiana, immediately following the reference to Pollard, there is a reference to footnote 12 of the U.S. v. Louisiana opinion. That footnote reads,

        This holding was approved in a considerable number of subsequent cases. See, e.g., …U. S. Maryland… Mumford v. Wardwell … Weber v. Board of Harbor Commissioners … McCready v. Virginia … Shively v. Bowlby … Manchester v. Massachusetts … United States v. Mission Rock Co. … Louisiana v. Mississippi … The Abby Dodge … Borax Consolidated Ltd., v. Los Angeles … Martin v. Waddell…

        I don’t have time to dig into each of these right now, but I just want to emphasize that this is Hugo Black’s history of the equal sovereignty principle, not John Roberts’s.

        6. In NW Austin Roberts also references South Carolina v. Katzenbach (1966), a case dealing directly with the Voting Rights Act. Earl Warren wrote the opinion, which includes the following:

        The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U.S. 559, and cases cited therein.

        Note that Warren accepts the doctrine of state equality; he just argues that it does not apply, or is overridden, in this case by the existence of “local evils.” Roberts agrees with this in Shelby–he does not reverse the prior Voting Rights Cases as wrongly decided, but accepts them as good law.

        The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem… Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defianceof the Constitution.” South Carolina v. Katzenbach… As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.”

        There is no fundamental disagreement between Warren and Roberts on whether equal sovereignty is a legitimate principle or on whether it can be overridden in extraordinary cases. Roberts just thinks–rightly or wrongly–that the present case isn’t extraordinary.**

        So, in conclusion, the equal sovereignty principle has been accorded respect by the Court since at least 1845, and has been accepted by the Court even in its most liberal period. Whether the application in the particular case is legitimate is debatable. One could even debate, I think, whether the principle is properly applied to elections.*** But the existence of the principle itself is well-established in constitutional jurisprudence.

        ________________________
        * A syllabus is a briefer version of the opinion, but generally includes as much direct phrasing from the opinion as possible.

        ** One can disagree with Roberts, of course, and I reiterate that I disagree with his conclusions. But in the interests of both fairness and intellectual honesty, it’s worth considering his arguments about whether the extraordinary conditions still exist.

        Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years.

        Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” … Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. …

        At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.”

        ***Article 1 section 4 gives states the authority to regulate elections, but also grants Congress authority to overrule most of those regulations, and as noted, there is regulatory authority in Amendments 14 and 15. But those would more clearly justify a wholesale, nationwide, congressional takeover of federal elections regulation than a state-by-state takeover.

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      • So the actuality of states’ sovereignty (within a limited sphere), is established. And who can doubt the states’ equality in that sovereignty?

        This person, for one, among others I found.

        On the California example, I’m not clear what authority they would have to make a law like that for all the states, much less just California. To use a slightly less extreme example, what about a law putting heavy restrictions on commerce in a good that many or all states produce and export between California and just one other state. That clearly would treat states with unequal sovereignty, but would also have some justification under an enumerated power. You’d have to explain why a law with a straightforward textual basis in the Constitution also has a “particular justification” for its failure to respect equal sovereignty (including an example of a hypothetical law treating states with unequal sovereignty that has for its effect a clear basis in enumerated powers, where that basis nevertheless doesn’t provide a “particular justification” for unequal respect for sovereignty). If it turns out that any law that would have a basis in an enumerated power also turns out to have a particular justification for any unequal respect for state sovereignty it may (even explicitly) entail, then we’re not, as it turns out, talking about much of a doctrine here. Moreover, for my part I would further respond to your California example by saying that any law described as you describe this one that also has a positive basis for existing under the Constitution would be legitimate because, pursuant to that latter fact, so long as it’s the case I’m not aware of a reason for it not to be legitimate relating to its unequal treatment of a (semi-)sovereign state (or even relating to its singling one state out by name). Or, IOW, it’s not up to me to say why the law would be supported. You have to say why it would be supported by the constitution in every respect but in the sense that it singles one state out.

        Though all that is more than I was arguing to show. I wasn’t trying to argue that such a law should be seen as legitimate. I’m not arguing against your argument that the political background suggests there should be an active legal doctrine protecting the equal sovereignty of the states. There might well be a good argument that such a law would not be legitimate under a compelling political argument about a jurisprudential doctrine that should exist. I’m just arguing that, before 2009, it was not in place in U.S. jurisprudence.

        Which brings us to newness. You go to some length to argue for a point that I explicitly offer up as one I’d be happy to accede to – that if you’re willing to argue for this doctrine as a new legal doctrine in 2009 (which nevertheless would have been justified all along if it had existed), I’m more than happy to take up that argument. Indeed, I recommended you make that argument). Obviously, that doesn’t mean I couldn’t argue against its justification, but I wouldn’t hold its newness against it as a doctrine to consider adopting. (The liberal complaint regarding newness against Robert’s use of this doctrine in Shelby, from what I have seen, doesn’t argue that because it is new it is entirely invalid as a doctrine, but that it is uncompelling to argue in the face of affirmative articles of the Constitution – saying that the Congress can make laws to enforce the Fourteenth and Fifteenth Amendments – that laws that have been found to be appropriate for that purpose repeatedly by both Congress and the Roberts’ own Court are inappropriate using a doctrine this new.)

        On the 3rd Amendment analogy, I believe I did get your point. The analogy does illustrate that the lack of application doesn’t establish that there is no existing legal principle – I wasn’t trying to deny this at all, and I was at pains to make that point myself separately as well. It just also, and in my opinion more dramatically (being that the point about the 3d Amendment existing as a legal artifact despite its non-usage is pretty well-understood, I would argue even by Mike, who wa saying that this is a problem in the context of a legal doctrine that has also doesn’t seem to have any established textual basis in the way the 3rd Amendment does) illustrates starkly the salient difference between that example and the one we are examining. I.e., yes, the 3rd Amendment example shows that a legal doctrine can exist while not being much referred to by courts (something I think we all understood), but it even more dramatically differentiates a case where that clearly is the case (the 3rd Amendment) from one where the kind of clear existence that the 3rd Amendment has, as well as much other evidence for it, is conspicuously absent.

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      • MD, do you see a difference between a government saying:

        a) All states are prohibited from doing X.

        b) All states are prohibited from doing X if Y, though Y is a benchmark that only a few states meet (Say Texas, Idaho, and South Carolina)

        c) Texas, Idaho, and South Carolina cannot do X, but other states can. No clear benchmark. Those states are mentioned by name.

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      • he just argues that it does not apply, or is overridden

        False. He does not “just” argue that it does not apply in that situation (and certainly not that it applies but is overridden). He argues not merely that it doesn’t apply in that situation, but that it *only* applies in one quite particular context – namely the terms upon which States are admitted to the Union. Further, see the scholarship showing that admittance (and especially readmittance) of states to the Union has evinced no such doctrine.

        The other examples all respect the same question (after all, that’s the tradition Warren was referring to). Just as Warren says (and Roberts elides in his quote of him), there was no doctrine holding that Congess must treat states of the Union equally in legislation due to their equal sovereignty absent particular justification (though as you point out, political constraints generally have seen to it that treatment is reasonably equal). It apparently holds that they have been admitted on the basis of roughly equal presumed sovereignty to the existing states, but a look at the historical record shows that to just not be true anyway. And in any case, that that sovereignty (i.e. those rights) were equal among the states does not entail the idea that among those rights is the right to be treated equally in legislation by Congress absent special reason for differential treatment. The states can all equally have the right to be treated equally in federal legislation absent special reason to be treated differently or all equally not have that right under whatever tradition of residual state sovereignty (stemming from their purported admittance on equal terms) is in place. Warren was saying in Katzenbach precisely that they all equally don’t have it. Roberts misquotes him to suggest otherwise.

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      • To clarify, there are values of X where a-c are all illegitimate, and values of X where a-b all may be legitimate. But I have a hard time with the notion that agreeing with a and b means an objection to c is invalid. I don’t know what reason that might be other than some presumption that by default, the states should be treated equally in what powers and authorities they have.

        Which I consider to be distinct from the position that since some policies have disparate impact on some states, or affect some states more than others, or affect states differently, then we are allowed to treat states differently as a matter of course or with little or no standard of justification.

        I consider this so obvious that I feel like I must be missing someone’s point. Either I don’t agree with Hanley like I think I do (ie he is saying more than I think he is) or I don’t disagree with MD as much as I think I do (ie he is saying less than I think he is).

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      • Will,

        The issue is not at all whether there might be reason to object to C from the perspective of what’s fair in a political or fairness sense. (I have a hard time finding my ground in terms of discussions of questions of absolute fairness in treatment of states by the federal government, and I’m not making an argument about that.) It’s just whether there actually was a legal doctrine in place in U.S. federal jurisprudence before 2009 requiring that something like C only happen with “particular justification,” whether or not there should have been.

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      • I think we can all imagine the problems. Whether they are compelling enough to bar Congress from doing it (under various incident justifications for various actions representing various values of C which, crucially, necessarily vary in the strength of their justification in the first instance ), and whether legal doctrines posing such bars actually existed in U.S. jurisprudence prior to 2009, are other questions.

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      • This person, for one, among others I found.

        That piece is badly flawed. His history begins with the civil war and then hops to 1990s SCOTUS jurisprudence. He seems to implicitly treat the Civil War, and the south’s bad post-bellum behavior as evidence against state sovereignty. It could reasonably serve as an argument for why we should eliminate state sovereignty, but unfortunately for him the Constitution still enshrines it.

        You go to some length to argue for a point that I explicitly offer up as one I’d be happy to accede to – that if you’re willing to argue for this doctrine as a new legal doctrine in 2009 (which nevertheless would have been justified all along if it had existed),

        This is a false statement of what I argued. Let me repeat myself; you have made a false statement about my argument.

        I said the principle appears in the Supreme Court as far back as 1845, and actually cited the specific words of the case. Does 1845 come after 2009 in the Drewniverse? It’s the guy you cited whose constitutional history begins in the 1990s, not me.

        However, if you want to focus on the application of the principle to voting rights, I have already explicitly said that a constitutional argument could be made against that application and gave the constitutional bases for it.

        The liberal complaint regarding newness against Robert’s use of this doctrine in Shelby … it is uncompelling to argue in the face of affirmative articles of the Constitution – saying that the Congress can make laws to enforce the Fourteenth and Fifteenth Amendments – that laws that have been found to be appropriate for that purpose repeatedly by both Congress and the Roberts’ own Court are inappropriate using a doctrine this new.

        Again, I don’t think you read what I wrote. The Warren Court explicitly said in the first voting rights case that took this general line that it was extraordinary facts that warranted congressional action; implying that Congress does not have a general right to make this type of regulation without the existence of extraordinary facts on the ground. So, new? Not true. The peculiar province of a conservative judge? Also not true.

        All that’s really new is that a) Roberts gives the doctrine more weight than a Warren might have (and arguably more than he should), and b) Roberts thinks the current facts on the ground are not extraordinary (and maybe he should). While we might not trust Roberts to actually do so, the implicit reasoning of his opinion is that different facts-on-the-ground would have overridden state sovereignty.

        False. He does not “just” argue that it does not apply in that situation (and certainly not that it applies but is overridden). He argues not merely that it doesn’t apply in that situation, but that it *only* applies in one quite particular context – namely the terms upon which States are admitted to the Union.

        Sigh, you’re picking at nits, which strongly suggests you’re not building a substantive case against my actual argument. The terms upon which states are admitted includes their having all the sovereign powers of the already existing states. The argument in that case is saying that equal sovereignty doesn’t apply to anything that isn’t inherently a sovereign authority of the states.

        What you’ve yet to do is make an actual argument that the concept doesn’t have a sound constitutional basis or that it is absent in SCOTUS case history. I’m doing all the heavy lifting here; all you’ve done is cite a rather weak law review article. If you want to continue this, I’d ask you to stop picking at nits in my argument and try to build a substantive argument of your own.

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      • JH,

        Sorry, my mistake on the basis for the election law you suggest. For some reason, I was imagining this as regulation of state government elections. Obviously Article I provides for regulating elections for Congress.

        I would say that, no, the principle of equal sovereignty of the states would not have prevented Congress from enacting a law governing only federal elections in California if it determined there was a rational reason to do so before 2009.

        Let’s look at the Warren quote from Katzenbach quote in near-full.

        the Act intentionally confines these remedies to a small number of States and political subdivisions which, in most instances, were familiar to Congress by name. [n35] This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. [n36] In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. See McGowan v. Maryland, 366 U.S. 420, 427; Salsburg v. Maryland, 346 U.S. 545, 550-554. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms [p329] upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U.S. 559, and cases cited therein.

        Doesn’t Congress in its normal course of legislating take itself to be remedying evils (whether local or national) and responding when action seems necessary? What higher standard of justification beyond a normal basis for Congressional action (i.e. satisfying the enumerated and limited powers limit, here satisfies by the Fifteenth Amendment, but always needing some satisfaction or another) is Warren acceding to here? He specifically says they need only a rational basis for this action, and summarily dismisses the idea that equal sovereignty raises the bar for action here (because of the targeted-to-specific-states nature of the action) any higher than is necessary for any other action absent further specifics – namely, providing a basis in enumerated powers for the action, saying that the principle applies only in the special context of the admittance of states to the Union. I.e., not to legislation that otherwise has a clear basis in the Constitution.

        As I understand it, any law that the Congress passed pursuant to Article I Section 4 would need to pass rational basis analysis if challenged, whether applied to the whole country, or only to California. That’s the standard Warren said the VRA had to pass owing to the fact that Congress was acting pursuant to a clearly enumerated power. Congress used a particular coverage formula to come up with the jurisdictions to apply the preclearance requirement to, but theycould have used any other so long as it was rational. Similarly, if Congress were do identify a problem with primaries in California that it had a rational basis to think could be remedied by a law specific to California, as far as I can see under doctrine that was good law until 2009, owing to Article I, Section 4 it could constitutionally pass that law.

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      • Warren was saying in Katzenbach precisely that they all equally don’t have it. Roberts misquotes him to suggest otherwise.

        You are incorrect. Roberts quotes him exactly. And Warren does not say states don’t have equal sovereignty. He says it doesn’t apply to congressional remedies “for local evils which have subsequently appeared.”

        He cites Coyle v. Smith, which says (in part):

        “This Union” was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission. […]

        The plain deduction from this case is that, when a new State is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original States, and that such powers may not be constitutionally diminished, impaired or shorn away by any conditions, compacts or stipulations embraced in the act under which the new State came into the Union which would not be valid and effectual if the subject of congressional legislation after admission (emphasis added)

        1911, not 1990s. Cited approvingly by Warren, with no misquote of him by Roberts.

        And this case, Warren, and Roberts all agree that certain restrictions, but not any and all possible ones, on sovereignty can be legitimate.

        I have class now, and can’t comment again until this evening.

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      • James,

        You hold me to a misreprentation of a comment that came while I was writing a response to an earlier comment. The comment in which I say that you argue for a contentioin I accede to was in response to your 7:32 comment:

        Assume it is a new constitutional principle, at least so far as Supreme Court interpretation goes, since they’ve never explicitly announced it before. So on what basis does a liberal make a general objection to the Court announcing a new constitutional principle? One could, in that case, legitimately sneer at conservative justices who pretend to be against such things.

        But a generalized sneering at the creation of new principles would gut liberal-favored jurisprudence. Griswold and Roe–gone. The incorporation of most of the Bill of Rights against the states–gone. Those all involved brand-new, never before announced, principles.

        But each had a logical foundation. And I’ve explained the logical foundation of the equal sovereignty principle. So a liberal like Schilling can’t just sneer away newly announced principles, or he denounces the ones he favors, but must critique the logic underlying them. That I’ve yet to see here.

        I was responding to that when you posted your 10:30 comment with the references to 1845 and the like. Sorry I didn’t keep abreast of what you were posting as I wrote, but I wasn’t misrepresenting anything I had seen you say; I was responding to the above hypothetical, which I characterized accurately: “if you’re willing to argue for this doctrine as a new legal doctrine in 2009 (which nevertheless would have been justified all along if it had existed), I’m more than happy to take up that argument.” I realized you’re not, but you brought up the notion of what if you (we) were, and if that were the case, I’d be happy to discuss that on those terms.

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      • Very quickly (my students will wait).

        I would say that, no, the principle of equal sovereignty of the states would not have prevented Congress from enacting a law governing only federal elections in California if it determined there was a rational reason to do so before 2009.

        Yes, if such legislation was appropriate (I’ll leave aside whether merely rational basis test is the proper level, because I haven’t thought about that).

        In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.

        Yes, here “acceptable” and “necessary” do the lifting. Again, no one disagrees with this principle.

        Doesn’t Congress in its normal course of legislating take itself to be remedying evils (whether local or national) and responding when action seems necessary?

        Yes, of course. And of course the Court sits as a board of review of whether their action is constitutionally legitimate. I know you don’t dispute that, so what argument is there between us?

        Warren … specifically says they need only a rational basis for this action, and summarily dismisses the idea that equal sovereignty raises the bar for action here

        Sometimes the courts change the bar (are you going to rip the court for changing the bar on discrimination against homosexuals?), and sometimes (albeit rarely) laws fall even under rational basis scrutiny. So now we’re not arguing about that principle, we’re arguing levels of scrutiny, which is not my purpose.

        If you respond more, do us all a favor and move it to the bottom of the page, yes?

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      • I’ll just keep it here because I don’t have a lot more to say.

        In response to my saying,

        The states can all equally have the right to be treated equally in federal legislation absent special reason to be treated differently or all equally not have that right under whatever tradition of residual state sovereignty (stemming from their purported admittance on equal terms) is in place. Warren was saying in Katzenbach precisely that they all equally don’t have it.

        James says,

        And Warren does not say states don’t have equal sovereignty. He says it doesn’t apply to congressional remedies “for local evils which have subsequently appeared.

        I didn’t say he said they don’t have equal sovereignty. I said he said that they all equally (equally because of their equal sovereignty) don’t have the right to be treated equally in federal legislation absent special reason (as opposed to normal legislative reason) to be treated differently. The degree of sovereignty the states retained in 1966 could have included the right to be treated equally by federal legislation absent special justification for the difference, or it could not. It’s possible for the states to equally retain the same amount of sovereignty, but for that degree of sovereignty not to entail a right, for example, not to be singled out by Congress absent a special justification beyond the normal requirement that Congress have a rational basis for passing any law. (If there’s no rational basis for a law that singles out a state, that law is constitutionall suspect not because it picks out a state, but because it lacks a rational basis.) I took that to be what Warren was saying in that quote, though I’ll look to see what he has to say where he cites Coyle v. Smith as James lately references, and if I have something to say about that</i?, I'll bring that to the bottom. For now, I'm done as well.

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      • I suspect Michael Caine is wrong about nuclear waste, since that csn be classified as interstate commerce (garbage has been so classified by SCOTUS).

        That’s a reasonable point. However, there’s garbage, and then there’s stuff where a lower court has ruled that a 10,000-year planning horizon on containment is too short, and where the politicians in every state where a potential storage site was identified are on record at some time as saying the stuff is too dangerous to store in their state. IIRC, the DOE started with a list of 20-some possibilities, and a working assumption that at least one large repository needed to be located in the East close to the reactors. None lasted long enough to be eliminated for engineering reasons. The chair for the budget reconciliation conference committee where the last candidates other than Yucca Mountain were eliminated answered a reporter’s “What happened in there?” question with “We screwed Nevada.” There’s commerce, and then there’s the federal government promising that the feds will take care of the waste, making up for any shortfall in the fee-based operating budget out of general revenues.

        That said, I fully expect the West to lose the fight. Use the Great Plains or 100° W as a dividing line; of 100 currently licensed reactors, 94 are east of the divider. All new reactors that are under construction or with a serious license in process are east of that divider. In addition, 37 states are east of the line. Add one western state and that’s enough to amend the Constitution and put a repository wherever the more-heavily-nuclear East wants to put it. If the amendment is properly worded so that a truly serious clean-up of the Hanford site is guaranteed, Washington State will probably sign on. I’m pretty confident you could buy Hawaii’s vote for less than the cost of cleaning up Hanford.

        Finally, get a half-bottle of a nice white wine in me, and I’m usually willing to discuss just how few and fragile the transportation paths across the Great Plains are, how many nutcases there are in the West on any issue, and the relative ease with which a fast drone loaded with several pounds of explosive can be constructed these days. Just kidding, NSA :^)

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    • Thanks, James. That all sounds exactly right to me.

      For our purposes, maybe the easiest way to conceptualize it is with some word substitution. The First Amendment says: Congress shall make no law…prohibiting the free exercise [of religion]; or abridging the freedom of speech, or of the press….”

      “Exercise” in this context is essentially a synonym for ANY action of any sort. So Congress may not make any laws prohibiting any actions (or inactions, for that matter). But of course that would make governing wholly impossible, so it’s heavily qualified – Congress is only prohibited from prohibiting actions to the extent they are actions (or inactions) “of religion.” Religion, of course, is nothing if not a particular type of belief set, and thus the “exercise of religion” can be restated as “actions that are religiously motivated.”. So, Congress cannot restrict ANY actions- but only so long as those actions are religiously motivated.

      But then there is another qualifier that goes back in the other direction – there are some actions that may not be restricted in ANY manner, full stop, regardless of their motivations. Specifically, Congress may not abridge the acts of speech, or of the press, full stop.

      In other words, it’s the very act of speaking that’s protected – regardless of the mode of speech or the tool used for speaking – not the underlying beliefs. Speech thus doesn’t lose its First Amendment protection just because it is expressed through or by a particular medium – if it’s speech, it’s protected, full stop. But outside of speech, acts (or the lack thereof) are protected by the First Amendment only if they’re religiously motivated, and fictional entities by definition cannot have religious motivations.

      (FWIW, I’m not sure that the reference to the press is a reference to corporate entities, but instead a reference to written communication- but I don’t think the result is any different).

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      • Re: Press. I didn’t meant to limit it to corporate entities, just that it necessarily included them.

        And I emphasize that it’s not limited to corporate entities because lately there’s been some attempts to limit press protections to corporate entities, to try to shut down bloggers who criticize their local cops; I think that’s quite clearly constitutional BS.

        In fact I think it’s far more clearly constitutional BS than the anti-CU claims.

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      • Mark, I’m not sure about that analysis, but I don’t want to push on it too hard because it’s hard to figure out what to put in its place.

        Two points, both pretty deep in the weeds.

        1) You wrote

        some actions that may not be restricted in ANY manner, full stop, regardless of their motivations. Specifically, Congress may not abridge the acts of speech, or of the press, full stop.

        If I was gonna get nitpicky in defense of Morat’s view above, I’d say something like “acts and motivations are properties of living beings and necessarily not abstract entities.” That is, if speech is an action, then a corporation can’t engage in it. If the exercise of speech is an action accomplished (for example) via transferring money to an individual or firm for that expression to be made public, then that too is something abstract entities cannot engage in. So I’m not sure the analysis gets by all the worries that might come up about the issue.

        2) You wrote

        A corporation can “speak” through its employees, and what’s more, a corporation can be liable for it’s employees speech on it’s behalf – if an employee commits fraud on the corporation’s behalf, the corporation can and will be held liable.

        I think there’s an ambiguity in the word “corporation” expressed in this sentence between “the shared interests of the flesh and blood individuals who comprise or represent the board” and “the abstract entity constructed as a barrier between those individuals and the outside world”. There is no way a person can literally speak thru a person, since speech is an act which abstract entities cannot perform. So the scare quotes you included are entirely correct. But they also reveal that what’s at issue isn’t the act of speaking or the exercising of a right to speech.

        But also, the fact that an individual can sue a corporation – rather than individual owners – is the explicit purpose of constructing legally defined fictional entity. The fraud or speech violation wasn’t committed by the abstract corporate entity, it was committed by flesh and blood humans. Insofar as those individuals represent the corporation, I think we’re getting back to the same ambiguity in language expressed above. A flesh and blood individual cannot represent an abstract entity, but they can represent the collectively determined or shared interests of other F&B individuals who constitute the governing structure (or whatever) of a firm.

        So I’m not convinced that your analysis gets past the standard worries and objections expressed by Morat.

        What I’d be inclined to say is that the philosophically dubious assignment of rights and protections to abstract entities is justified insofar as it serves a compelling social purpose, even if there are some downside risks. So pragmatics grounds and justifies our legal and social practices rather than anything like a sound argument based on an analysis of the abstract entities themselves.

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      • Agreed in full.
        The problem with your point 1 is that sayng that corporations technically can’t act and this can’t speak doesn’t get us anywhere – the speech exists one way or another as words spoken or written, and those words don’t cease to be protected just because they appear alongside a corporate logo or published via a printing run paid for out of a corporate bank account.

        While the sentence you’re responding to in the second point wasn’t my clearest, I think the counter again is that regardless of whether we accept the fiction that the speech is that of the corporation, it’s a tangible output or product of the corporation just as much as a promotional sample the company gives away for free as a marketing maneuver. The difference, conceptually, is that the First Amendment says, in effect, “this type of product may not be regulated.”

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      • Well, if corporations actually cannot speak, then all of their so-called speech is actually the speech of actual human beings, no? And then the complaints of the anti-CU people are moot, no?

        I mean, that’s not my preferred logic, but it seems the necessary outcome of your logic, unless I’ve misunderstood you (and since you’re getting philosophicalish, it’s possible I am).

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      • Alright, I’m not sure I can navigate this one all that clearly, but here goes.

        Oh and before I get going, Mark, I agree with you about actions, what I’m objecting too is attributing those actions to a legal fiction, abstract entity. If you want to say that they’re engaged in the name of the corporation, then that seems to me to be a different analysis of the ct itself, and therefore, of what the CU ruling is legally protecting.

        Along those lines, James, I think there probably is some wiggle room in how we interpret the language used in certain types of court cases along the lines I was talking about above. For example, on one conception a corporation merely is legal fiction that acts as a firewall protecting individuals from liability. On another, a corporation is an entity (a union, a firm) which can be analyzed as a legal fiction, but can also be viewed as a collection of flesh and blood individuals. So … this quote from Kennedy’s opinion:

        “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”[30]

        It seems to me that Kennedy is clearly talking about actions that arise from the F&B collective which comprise the membership of a union or firm and specifically not the legal fictions that those groups might enjoy as a governmentally granted privilege.

        So, I think you’re right.

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      • That is, if speech is an action, then a corporation can’t engage in it. If the exercise of speech is an action accomplished (for example) via transferring money to an individual or firm for that expression to be made public, then that too is something abstract entities cannot engage in.

        By this logic, corporations can’t commit torts, either, and thus can’t be sued.

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      • By this logic, corporations can’t commit torts, either, and thus can’t be sued.

        Well, maybe, but maybe not. The view would be that a legal fiction, which is an abstract entity, can’t commit anything. It can’t act. But individuals within the group could.

        The reason we can sue a corporation and not the individual share holders and owners is precisely because of the legal fiction that acts as a firewall preventing liability from passing thru. That’s one of the privileges bestowed on the group (or collection of individuals, whatever) via governmental dispensation. It’s not an inherent property of that group, which exists conceptually prior to and distinct from the legal fiction which the privileges apply to.

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  4. FWIW, the president of the Kansas senate believes the bill to be unconstitutional and is not intending to introduce it. But it doesn’t really go away. It will just lay in a drawer and could re-emerge as a bargaining chip.

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  5. Well, you’ve got people like Rod Dreher, who sounds like a reasonable, intelligent human being when posting about Louisiana politics, food, and the issues surrounding his book about his sister, but who turns into a conspiracy theorist about gay marriage, claiming seriously that Christian’s will be in the same position as blacks during the Jim Crow era within a few decades. No, I’m not hyperbolic. He literally said that.

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    • Rod Dreher has always been a special case. It is a testament to Andrew Sullivan that he has the grace to publish and promote him. But yeah, half the time he strikes me as a conservative I can get along with and is seemingly intelligent and then there is the “Holy fuck! You really believe that” part of his politics.

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      • Rod Dreher is one of the idiots who helped promote the ‘Danish government orders churches to marry gays’ nonsense, which ‘proves’ it’s coming to the US also.

        (In case someone is not aware of the actual facts there, in Denmark, the church is *run by* the government. So the government ‘ordering’ the church to do something is, uh, just ‘the church’ deciding to do it itself. Feel free to object to state-run churches, but don’t pretend that has anything at all to do with the US, or even *non*-state-run churches in Denmark.)

        He seems completely immune to the fact that it has been illegal to discriminate on the basis of race for 50 years, and illegal for states to block interracial marriages for almost as long, but it is *still* absolutely legal for churches to refuse to marry interracial couples. No, he is *absolutely convinced* churches will be forced to marry gay couples.

        It’s sad, I used to actually read him, back when he was one of the few conservatives to object to Bush.

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      • And a lot of the time he seems like a perfectly nice, reasonable person. He’d predicted that accepting gay kids would cause the Boy Scouts to schism, It didn’t happen, and just the other day he posted a short “I said this, and I was completely wrong. I guess it isn’t really a problem.” message.

        Then in the next piece he quoted “My friend, Steve S-a-i-l-e-r”.

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      • In other words, various forms of wingnut welfare. Even though, to be fair, due to the amount of overhead, I bet there’s a better shot the “race realists” have a better shot at keeping Taki and VDare above water legitimately than for example, The National Review ever does.

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      • “Wingnut welfare” is when the same material is published and is bought in bulk by various organizations for distribution to members or to hand out free at events. When the author is invited to speak at various conferences for these same organizations and gives pretty much the same speech every time. When the speakers at these conferences review each others books and speeches every time. It’s an almost hermetically sealed loop of publication success. I’m sure leftwingers would love to have something similar. I’m sure most authors would as well.

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  6. If people who are “traditional Christians” (whatever that phrase means to the Drehers of the world) and business owners don’t have a problem with people who are divorced working for them, then I have a hard time understanding why SSM is the new Rubicon. Jesus is on record as condemning divorce. And as a Catholic, I’m not at all surprised that the Church would rather condemn SSM than certain other activities over the past few decades that aren’t exactly indicative of respect for families.

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      • We’re still talking about a church that doesn’t recognize the legitimacy of most remarriages after divorce. That doesn’t approve of masturbation, that doesn’t think abortion in the case of rape and incest is okay.

        People seem to have a limitless degree of “I oppose the church’s position on X, but it’s still my church.”

        If your view is they will increasingly kind of look the other way, like they do with premarital cohabitation, I agree. But I don’t think they will bless gay marriage in my lifetime (or become irrelevant because of it). From a strategic standpoint, that is as likely as not to be the right move. (I’m thrilled that my Episcopal Church has a more liberal outlook on such things, but it pays a price rather than receives dividends for it.)

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      • I think at some point the actual practices of Catholics will be so inconsistent with doctrine that doctrine will become more or less meaningless. (As it is already on some issues.) At that point, practice will functionally determine doctrine rather than the other way around, and the Church will be confronted with some difficult choices. Seems to me the arc of conflict we’re talking about here is only beginning to get up to speed and full swing won’t hit til sometime in the future. At that point, I think all bets are off.

        Remember, the Pontiff has the power to unilaterally change church doctrine with the turn of a phrase or pen. If (or when) doing so can be justified as preserving that institutional power or minimizing its being diminished, the guy in the funny hat will do it. Or he’ll just be a guy in a funny hat.

        I’m just invoking an institutional analysis here (hopefully correctly), and making no moral or principled arguments or anything like that.

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      • By “licit”, are we talking about valid in the eyes of the Church, or not the Church’s concern, like a non-Catholic divorcing and remarrying or a Muslim practicing polygamy? I can picture the latter; in fact I think it’s a principled response the Church could adopt today.

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      • The Church has been through weirder times than this. The Communists said that the Church would become irrelevent, as did the neo-Malthusians before them, as did Napoleon before them, and the French Revoluionaries before him, dot dot dot Nero. I’m sure this time it’s different – it’s been different every time.

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      • I can picture the latter; in fact I think it’s a principled response the Church could adopt today.

        You’re right, Mike. Exactly. Francis made a gesture towards gay marriage that I interpreted as exactly what you’re saying here when he said “Who am I to judge?”

        If Catholics actually took the literal words of the Pope seriously according to their own doctrine, that statement would give them a pretty clear indication of not only his views on the topic but the Church’s views.

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      • As it is already on some issues.

        That’s sort of what I was getting at. The church has shown a remarkable ability to navigate this sort of dissonance. Churches that have been more concerned with keeping up with the times… those are the ones that have become decreasingly relevant.

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      • And yes, I know, I blew the -ant -ent thing on the word “relevant”. I do that all the time. I lost my confidence (confidance?) about a year ago on that, and now everywhere I look there are words with those endings.

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      • We’ll compare notes in 100 years, Pinky, and see who has bragging rights. I think the church is gonna look alot different then, and gay marriage (and gay sex and gay lifestyles) will be fully accepted by the church, they may even be accepted as valid catholic practices. And if they don’t move to accept those things, they’re undermining they’re own tenuous grip on “authority”.

        That’s a far cry from where the church was … any time *ago*.

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      • You’re right, Mike. Exactly. Francis made a gesture towards gay marriage that I interpreted as exactly what you’re saying here when he said “Who am I to judge?”

        If Catholics actually took the literal words of the Pope seriously according to their own doctrine, that statement would give them a pretty clear indication of not only his views on the topic but the Church’s views.

        I forget exactly the context in which Pope Francis made that statement, but I don’t think it was about gay marriage, but more about accepting gays generally, but not necessarily in a way that means the Church would solemnize gay relationships. However, I remember seeing that statement only in passing, so maybe he was talking about marriage.

        The Pope as infallible doctrine setter is something that obtains only in highly restricted circumstances. When a Pope is not speaking “ex cathedra,” his statements are not to be taken as expressions of doctrine. Still, he is the chief bishop and if he says something, it’s a cause for conversation and perhaps it’s part of an attempt to lay the groundwork for later changes, and perhaps those changes will be solidified in a statement of doctrine. But I don’t think the Church is there yet. That’s not to say the Church doesn’t change. But I do think it changes under different rules than you and I are used to.

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      • Pierre,

        I agree that he wasn’t suggesting sanctifying gay marriage or anything like that. If I was to get really nuanced about something I don’t have an intimate knowledge of (and it’s the internet, so I will!) I’d say that Francis’ comment is an attempt to emphasize different aspects of the Church’s official views on homosexuality. He wants to ditch the previously existing emphasis of viewing gay marriage as a pernicious evil that ought to be opposed in favor of viewing gays with compassion. Both views are consistent with the catechism, it seems to me.

        And how the church views gays is of a piece with how it views reproductive rights, of course, since both flow from a conception moral sexual behavior. Social norms on both of those issues are undergoing radical change, and not because the winds of change are merely blowing people’s opinions around. There are really good arguments justifying those views, as well as increasing acceptance of gays and the practice of birth control, even among Catholics. At some point, unless the Church revises its views on this (in one of the two ways Mike S outlines above) the contradiction between the beliefs and practices held by society generally and practicing catholics in particular and Official Doctrine will be obvious (as it already is on birth control and some aspects of marriage).

        Here’s an interesting quote from Archbishop Muller responding to suggestions that Francis wants to take the Church in a different direction wrt divorce and remarriage.

        “The church cannot respond to the growing incomprehension of the sanctity of marriage by pragmatically accommodating the supposedly inevitable,” he wrote. “The Gospel of the sanctity of marriage is to be proclaimed with prophetic candor. By adapting to the spirit of the age, a weary prophet seeks his own salvation but not the salvation of the world in Jesus Christ.” Archbishop Müller also ruled out the argument that “remarried divorcees should be allowed to decide for themselves, according to their conscience, whether or not to present themselves for holy Communion.

        “If remarried divorcees are subjectively convinced in their conscience that a previous marriage was invalid, this must be proven objectively by the competent marriage tribunals,” he wrote.

        Personally, I think the first sentence of this quotation clearly expresses the problem the Church is in on these issues. He’s not ignorant of the dynamics in play, and how changing cultural norms are at odds with Official Doctrine. But I think he also gives the game away, in one sense, by admitting that there’s an ever-growing sentiment (expressed by practice) within the laity which is against Doctrine on this issue. As it is on birth control. And soon enough, I think, on homosexuality.

        No one knows how this plays out, of course, but I found his response to be a non-response: we have our Doctrine, and we’re stickin too it. I don’t think that’s a tenable solution to a dynamic problem, especially if the laity increasingly rejects the Doctrines which presumably defines the Church.

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      • Stillwater,
        the Catholic Church as political entity has entirely soiled its britches on the concept of divorce. I for one do not want to hear any entity that has been so nakedly bribable claiming to stand for something sacrosanct, and that only its own councils are proof of an unmarriage.

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  7. If you take the Pope’s words literally, he said, “A gay person who is seeking God, who is of good will — well, who am I to judge him? The Catechism of the Catholic Church explains this very well. It says one must not marginalize these persons, they must be integrated into society. The problem isn’t this (homosexual) orientation — we must be like brothers and sisters.”

    And what does the Catechism say? If you don’t mind a long quote:

    “Homosexuality refers to relations between men or between women who experience an exclusive or predominant sexual attraction toward persons of the same sex. It has taken a great variety of forms through the centuries and in different cultures. Its psychological genesis remains largely unexplained. Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that “homosexual acts are intrinsically disordered.” They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.

    “The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God’s will in their lives and, if they are Christians, to unite to the sacrifice of the Lord’s Cross the difficulties they may encounter from their condition.

    “Homosexual persons are called to chastity. By the virtues of self-mastery that teach them inner freedom, at times by the support of disinterested friendship, by prayer and sacramental grace, they can and should gradually and resolutely approach Christian perfection.”

    (Now, it’s worth noting that “objectively disordered” doesn’t mean “obviously crazy”. It means that the object of homosexuality is contrary to order. It sounds better in Aristotelianism than in English.)

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  8. Universal GAYety is Coming !

    Gays are found throughout history. For the first time ever – finally – they’re almost worldwide! Wow!
    This global gaydom is even foretold in the Bible – predicted by Jesus (see “days of Lot” in Luke 17 and compare with Genesis 19).
    And the Hebrew prophet Zechariah (14th chapter) says that during the same gay “days” ALL nations will come against Israel and fulfill the “days of Noah” at the same time (see Luke 17 again) – a short time of anti-Jewish genocide found in Zechariah 13:8 when two-thirds of all Jews will die.
    In other words, when “gay days” have become universal, all hell will break loose!
    Shockingly, the same “days” will lead to and trigger the “end of days” – and when they begin, human government will quickly wind down in just a few short years. For the first time in history there won’t be enough time for anyone to expect to live long enough to be able to attend college, have kids and grand-kids, save for and enjoy retirement, etc.
    One final thought. The more we see gays “coming out,” the sooner Jesus will be “coming down”!
    (For more, Google or Yahoo “God to Same-Sexers: Hurry Up” and “Jesus Never Mentioned Homosexuality. When gays have birthdays…”)

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  9. I do see something like a reaction comparable to massive resistance. However, like above, I think the reaction will not be as strong or as long-lasting. For one thing, massive resistance, in some ways, is still going on, or at least its legacy is still with us. Many schools are even now de facto segregated.

    I do think, however, that it is a mistake to call the reaction against legal ssm–or even massive resistance–as being on “the losing side of history.” The assumption seems to be that there is one end to which “history” is headed, and that this end is inexorable and a good thing. “History” in this sense becomes “progress toward that which is good” or becomes “modernity” where anyone who has any discomfort with it is marked as anti-modernity and therefore bad or backward-looking. And the anti-moderns become not only those who stand in the way of a right, the exercise of which has only negligible negative affects on others (i.e., maybe a slight reallocation of survivor benefits through social security, or some such, and that’s about it.) They also become those who are marginalized in modernity, who are shunted away from the capital and information networks to which a class of affluent professionals have greater access. Perhaps the anti-moderns benefit from this new modernity too, but certain classes of people benefit much more.

    I’m not sure how to define modernity, and I’m no theorist. But it’s the ambiguity of what modernity is that bothers me most. One can simply name something as “modernity” or “the march of history,” and then anyone who questions that modernity becomes bad or anti-modern, or a mere reactionary.

    My point is the pedant’s point about how something is said and not what is said, and I feel inconsiderate bringing it up. To paraphrase Voltaire (or whoever said it), “I may agree with what you have to say, but I will nitpick to the death the way you said it.”

    At least is willing to write a guest-post and put himself out there and expose himself to criticisms. It’s easy for me from the cheap seats to criticize the way in which writes in support of that which I also support. I agree with the his point that popular support for ssm seems to be growing. I hope the growth in now inevitable and picks up the pace.

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    • — Well, there seems to be a difference between (something like) ubiquitous cell phone service and (another thing such as) the end of Jim Crow. One might call either the “march of progress,” and one might stand in defiance of either. But they are very different.

      Those who refuse to play “Flappy Birds” (or whatever) seem to be a different sort of person from those who passionately hate queers. If you want to conflate them, that’s on you.

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      • But what if the trends reverse? What if in, say, 50 years’ time we see a re-assumption of Jim Crow by other means? Will that then become the trend toward history, opposition to which is now anti-modern?

        Perhaps, though, I’m not being fair to your point. I do think there’s a linkage between the types of communication and capital networks I discuss in my original comment and the obsolescence of Jim Crow. I don’t think Jim Crow as it existed in the early 20th century is at all compatible with what I perceive others mean by modernity. I do fear that huge numbers of people are left behind and that we have a semi-permanent class of working-poor people, and markers of racial difference seem to correlate very strongly with those who are left behind.

        Maybe I’m wrong, however. Maybe as more and more wealth is created, more opportunities arise: articles of necessity might become cheaper, and people might have greater choices in how they sell their own labor. Also, some of the factors that keep people behind–the quasi-privatized “incarceration state” that has arisen over the last 40 years–can be combated and dismantled, to a generally liberating effect. I’m enough of a neoliberal to believe such an outcome is possible.

        In fact, another one of my soapboxes is that people who are derided as “anti-modern” are actually often very modern in the sense that the one who criticizes them uses the term. Which is one reason why I do question the use of history as being directed toward some beneficent end. There are newer and newer ways of marginalizing people and exercising domination toward others.

        I should clarify one point. By “capital and communications networks,” I meant something like the ability of multinational corporations to transfer large sums of money and slowly continue the integration of the world economy through information systems that’s been going on since at least the 1500s. And the class that benefits most are those in the financial sectors or information management or risk management or even someone like me who enjoys a job in which I exercise whatever supposed expertise my degree has given me.

        Not that your example of ubiquitous cell phone service doesn’t fit in here. I think in many ways such service is mostly a positive good. But the service is so ubiquitous in large part because it is embedded in the very networks that worry me. The NSA’s apparently non-responsible (because not reviewed) use of the trails that metadata leave behind to be one instance in which ubiquitous cell-phone service might be part of a longer process in which private decisions and actions are made ever more public, or at least more “legible” to the state. (I do realize that gathering metadata is not the same thing as listening in on phone calls or reading text messages. But it is still a way to analyze and process our actions and decisions.)

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  10. Mark Thompson, earlier:

    “One of the things about the former issue is that it’s actually got little to do with the SSM debate other than that the events business owners object to assisting now have the formal designation of being “marriage.” The actual legal issue is entirely a function of pre-existing anti-discrimination law, and for that purpose it doesn’t make a whit of legal difference whether the business is refusing to participate in a gay person’s marriage or a gay person’s commitment ceremony.”

    …you’re right, but this is also irrelevant, because there are very specific things that business owners are legally prohibited from doing with bigotry as a motive. Refusing to form a contract to provide services is not one of those prohibited things.

    “The second issue that I think tends to get glossed over here is that, to my knowledge, the business owner herself is not being told to provide service to gays; it’s her incorporated business that is being told to do so – AFAIK, there’s no reason she can’t, for instance, hire a temporary worker to handle that event or subcontract it out to another business”

    um

    hire another employee?

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  11. were equal among the states does not entail the idea that among those rights is the right to be treated equally in legislation by Congress absent special reason for differential treatment.

    This entire conversation requires multiple comment rescues on my part, but since I’m too busy to do that at the moment, all I’m going to say is if anyone wants to read about a situation where policy was seen as not only being unequal but punitive on the states it burdened, by all means look up the Tariff of Abominations and the Nullification Crisis.

    Say what you want about the extensive doctrines of nullification and consensus rule that John C. Calhoun developed as a result of what he thought were flaws in the constitutional framework (i.e. majority rule COULD and DID allow a numerical majority to benefit itself at the expense of others – i.e. treat the minority party unequally). His goal, as twisted as it was in its own way, was to ensure that the federal government treated all of the sovereign states equally by legislating with everyone’s interest in mind. His approach, in my opinion, was fatally flawed for a number of reasons, but his belief that the sovereign states were equals was very well understood going all the way to the founding.

    I don’t know why the lack of a legal doctrine prior to X date matters. I’ll have to read MD’s arguments more carefully to respond in full; however, since the Constitution when established did not come with any legal doctrines attached to it and were developed as questions and controversies arose, the issue of a question coming up in 2009 doesn’t faze me.

    By the logic I think I’m seeing, the same thing could be said for the incorporation doctrine, Footnote Four, the Griswold line of cases, the gay rights cases and just about any groundbreaking Supreme Court jurisprudence that established certain principles. Legal doctrines apply rules to constitutional meaning, right?

    I may be missing something here so by all means let me know. I may be reading this uncharitably but at first glance, this seems to conflict with my understanding of early American federalism.

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    • since the Constitution when established did not come with any legal doctrines attached to it and were developed as questions and controversies arose, the issue of a question coming up in 2009 doesn’t faze me.

      That’s great. If we agree on that date as when this notion of the equal sovereignty of the states as a bar on legislation generally that treats states differently absent special reason came into force in the court’s jurisprudence (rather than a bar only on legislation laying out conditions for admittance of new states to the Union that would explicitly make new states’ degree of sovereignty different from existing states’ – and, yes, it’s fair to say that I’ve had to adjust my position to account for that understanding of the doctrine, as I did start out arguing denying its existence at all), then we agree on the point I’m arguing. If we don’t, we don’t, which is fine. Perhaps we can agree that the idea of (not just the fact of) applying the notion to legislation (in theory, not just actually doing it in fact) is new as legal doctrine in 2009 and go home, though I take James not to be willing to do that.

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      • Perhaps we can agree that the idea of (not just the fact of) applying the notion to legislation (in theory, not just actually doing it in fact) is new as legal doctrine in 2009 and go home, though I take James not to be willing to do that.

        …or if not the idea being new, since John Roberts plainly had the idea before then, then the established doctrine of doing so as active legal doctrine.

        So I’ve never been saying that this doctrine (adjusted to be defined as applying equal sovereignty as placing a special burden on legislation that treats existing states differently) is any more wrong (or right) than the other cases you mention that created new rules; I’ve really been at the simple task of establishing its newness as a doctrine this whole time. If you want to say it’s always been justified by the meaning of the Constitution but doctrine has never had to exist to give it force before, that’s fine (I won’t argue that now). But there has been dispute about its newness as doctrine.

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      • Eh, maybe. I’m not too bothered by whether its new in that sense. Note that the argument here started out along the lines of “Roberts is nuts, there’s no such thing as equal sovereignty of the states.” As long as we’ve dismissed that nonsense claim, the rest is pretty small potatoes.

        And once we’ve agreed that its normal and legitimate for the Court to invoke new/previously-uninvoked principles, then it’s merely an academic question which of those this one is, with little bearing on the actual legitimacy of the ruling.

        And then, at last, we could have a serious discussion of Shelby County free of the non-sense critiques of it. Except I think we agree on the substance of the ruling, unless Dave wants to take Roberts’ side.

        Or maybe if I find time, I’ll do a devil’s advocate argument in defense of the ruling.

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      • Actually, not to be argumentative with Michael, but I’m going to cite a bit from Roberts’ argument here, because I suspect most people who are outraged by it never took the time to read it.

        [W]hen we first upheld the Act in 1966, we described it as “stringent” and “potent.” … We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not otherwise appropriate” could be justified by “exceptional conditions.” […]

        Nearly 50 years later [the VRA requirements] have been made more stringent… There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.”… Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered … with a gap in the sixth State of less than one half of one percent. […]

        Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” … The House Report elaborated that “the number of African-Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years, particularly since 1982,” and noted that “[i]n some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.”… That Report also explained that there have been “significant increases in the number of African-Americans serving in elected offices”; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African-American elected officials in the six States originally covered by the Voting Rights Act. […]

        The preclearance statistics are also illuminating. In the first decade after enactment of §5, the Attorney General objected to 14.2 percent of proposed voting changes. H. R Rep. No. 109–478, at 22. In the last decade before reenactment, the Attorney General objected to a mere 0.16 percent. […]

        There is no doubt that these improvements are in large part because of the Voting Rights Act. … Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides.

        Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way. Those extraordinary and unprecedented features were reauthorized—as if nothing had changed. In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period. […]

        Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5, which dissuades covered jurisdictions from engaging in discrimination that they would resume should §5 be struck down. Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior. […]

        Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. … And voter registration and turnout numbers in the covered States have risen dramatically in the years since. … Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. … There is no longer such a disparity.

        In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. […]

        [T]he Government contends that the formula is “reverse-engineered”: Congress identified the jurisdictions to be covered and then came up with criteria to describe them… Under that reasoning, there need not be any logical relationship be-tween the criteria in the formula and the reason for coverage; all that is necessary is that the formula happen to capture the jurisdictions Congress wanted to single out. […]

        …the Government’s reverse-engineering argument does not even attempt to demonstrate the continued relevance of the formula to the problem it targets.

        Arguable? Certainly.

        Stupid? Not even close.

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      • I don’t claim to understand everything that’s been said in this discussion, but it seems to me this quote

        Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior.

        is Roberts’ argumentative lever, which is where people could legitimately disagree with him. I mean, if the only way to determine whether deterrence really is motivating the good behavior is by eliminating it (which is what he’s suggesting here, it seems to me), we’re talking about a level of demonstration that has pretty far reaching implications and is functionally irreversible taboot if the original hypothesis was in fact correct, no?

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      • Stillwater,

        It’s not the only lever, but, yes, it’s an important one.

        But not irreversible. Not at all, for two reasons. First, any actual discrimination–in purpose or effect–is still a violation of the 14th and 15th Amendments, and a challenge alleging electoral discrimination could be addressed by the courts. Second, any actual discrimination–in purpose or effect–would provide Congress justification for renewal of restrictions. Roberts’ argument is quite explicit that the special circumstances of electoral discrimination in the 1960s justified the VRA then, and that it’s the absence of such special circumstances that makes part of the VRA fall now. So a renewal of special circumstances logically justifies a renewal of the VRA’s special restrictions.

        As things stand, the VRA’s “justification” is a 40 years past state of affairs and/or a deep suspicion about what the south would do if the restraints are listed. I think the latter is the basis of most liberals’ anger at the court’s ruling. And frankly, I’m bigoted enough against the south that right or wrong I share that deep suspicion. But is suspicion about what someone might do a legitimate basis for selectively targeted rules? That’s uncertain, at least.

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      • I’m pretty damned liberal; and I can see with my own two eyes that special circumstances still exist 40 years later.

        But I agree with Roberts; the new circumstances should be documented; goals for change, if nothing else. Otherwise, it’s like the war on terror.

        But I don’t like that he did this. My feeling — nothing more then that — is that he did the right thing to gain political advantage because he knew Congress, at this very minute, is not capable of this task.

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      • By the way, while I argue that Roberts’ argument isn’t stupid, if you find it persuasive, you should read Ginsburg’s dissent before you completely buy in. She lists evidence and specific examples of contemporary attempts at suppression of the minority vote, including a town where the white mayor and all-white city council decided to cancel the elections when a record number of black candidates filed to run. When DOJ required them to hold the election, the mayorship and 3 of the 5 council seats were won by black candidates.

        There’s also the case of a city that tried to delay an election in a majority black city council district for two years, leaving that district unrepresented on the city council. Meanwhile the neighboring majority white district was to have 3 representatives. After the DOJ blocked that idea, the city tried to move a polling place from inside a majority black district to a majority white neighborhood outside the city limits.

        These were in 2001 and 1993, respectively. It boggles the mind that even small town politicians can be such clueless racists as to think they can get away with that kind of thing nowadays.

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      • zic,

        Ginsburg ignored the evidence Roberts presented, too. They both cherry picked evidence and talked past each other.

        And there’s the rub. Neither acknowledged the real complexity of the situation of being in a state of tremendous improvement where there are still real problems. Neither is completely honest.

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      • Stupid? No, he’s a very smart man. Dishonest? Of course. The day the decision was handed down, Texas and North Carolina went ahead with voter ID laws that wouldn’t have been allowed before, and that was completely predictable. If a law is the only thing stopping people from violating a principle, its completely disingenuous to say “Well, the principle isn’t being violated much anymore, to the law is unnecessary.” It’s like removing seatbelts from cars because there are fewer fatal accidents,

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      • Mike, I don’t think it’s quite like that. To me it’s more like Roberts saing It’s like saying that the only way to determine whether seatbelts save lives is to not require cars to have them and people to wear them, and derive the only relevant evidence going forward (post repeal). But that begs the evidential question in ways that you’ve outlined and Ginsberg apparently nailed him on. If he was being disingenuous in the part I quoted earlier, it’s that he imposed an evidential standard that begged all the questions in play. And he must have known that.

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      • Yes, that’s a much better analogy. Likewise, the Clean Water Act. How do we know it’s clean water that’s saving lives until we repeal it and see how people with all the other advantages of modern medicine do drinking sewage?

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    • Good points. I was thinking of the original federal understanding, too, but hadn’t thought about the nullification debates (but not surprised you did).

      In a nutshell, I have a hard time fathoming a serious constitutional argument that doesn’t ignore history yet manages to reject state sovereignty and it’s equalness among states.

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      • In a nutshell, I have a hard time fathoming a serious constitutional argument that doesn’t ignore history yet manages to reject state sovereignty and it’s equalness among states.

        I don’t think there are any serious constitutional arguments that reject the fact that the states retained a portion of their sovereignty (although state sovereignty – the idea that the states were 100% sovereign even after the ratification – has been consistently rejected). However, I need to go back and re-read the debate above because I think there can be a case made that “equalness” should perhaps be read more as a qualitative measure of the general welfare language in the Preamble. The equalness of the states isn’t as important per se as making sure that the laws passed promote the general welfare of all the states.

        Protective tariffs did not apply equally to the states as they benefited the northern manufacturing states at the expense of the agrarian cotton planters southern states who under the tariff would have had to pay more to clothe the slave labor force while seeing their exports take a hit from other countries applying a tariff on their cotton.

        I don’t necessarily see how the equalness of the states applies here. Maybe to you this is unconstitutional. I thought the Tariff Act of 1828 was bad policy but it did fall under an enumerated power of Congress.

        To your comment about whether or not I’d take Roberts’ side, I’d have to read the opinion. I haven’t gotten around to that one but I think I should. The excerpt you posted was very sensible to me; however, I can’t possibly be persuaded until I read the dissent. It would also be helpful to me to see the legal doctrine being discussed put into action in order to get a better perspective.

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      • Dave,

        I think it’s inevitable that laws of general applicability are going to hit some states harder than others. E.g., the Clean Water Act probably affected Michigan a lot more than Arizona, simply because we have a lot more water and a lot more municipalities that needed to upgrade their sewer systems. The Clean Air Act hit some states harder because they had more coal power and industrial production, etc.

        I don’t think that’s a constitutional problem, and I’d put the tariffs (bad policy, yes) in that camp. It’s the target nature of the VRA extension that calls it into question–it doesn’t just hit some states harder, but it effectively specifies them (not by name, but by particular factors; and the government admitted that it chose the factors to fit a pre-determined set of targets).

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  12. Again, my quote of Warren. The Coyle v. Smith quote you mention appears at the end:

    the Act intentionally confines these remedies to a small number of States and political subdivisions which, in most instances, were familiar to Congress by name. [n35] This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. [n36] In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. See McGowan v. Maryland, 366 U.S. 420, 427; Salsburg v. Maryland, 346 U.S. 545, 550-554. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms [p329] upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U.S. 559, and cases cited therein.

    Whether approvingly or otherwise, he clearly cites Coyle and related cases as evidence that his take on the doctrine of equal sovereignty, specifically that “The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms [p329] upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared” is correct. That’s all he says in relating that citation to this decision – that’s it. No more or less approving, in any other way, than that.

    I have given my account of the meaning of that take on equal sovereignty. The quote from Coyle that you extract doesn’t contradict that account IMO. It basically says that new states will have the same artifacts of sovereignty that the old ones retained. It doesn’t say that among these is a right to be treated equally by federal legislation absent special (or “particular”) reason to be treated differently over and above the requirements that Congress faces to justify any of its actions, even ones that apply to all the stats equally. Maybe I’ve got that interpretation of Warren’s point wrong (again, the fact that he emphasizes only rational basis is required is a point that I think merits some attention here), but I don’t think either his citation to Coyle nor the specific passage of that decision that you quote shows this to be the case.

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    • Michael,

      I don’t think you really grasp the subtleties of constitutional law. When he says “the doctrine of X does not bar this action,” he’s implicitly admitting the basic validity of doctrine X. He may in fact disagree with it, but he’s not challenging it in the legal opinion, so the legal opinion recognizes the validity of doctrine X, but says “this particular action–this one right here that we’re discussing–is not barred by doctrine X; it is an action allowable under doctrine X.”

      The quote from Coyle… basically says that new states will have the same artifacts of sovereignty that the old ones retained. It doesn’t say that among these is a right to be treated equally by federal legislation absent special (or “particular”) reason

      You’re assuming that’s not an artifact of sovereignty. I await your constitutional argument that Congress has the right to treat states unequally without justification beyond “we can.”

      Hell, there’s precious thin constitutional grounds for Congress interfering with internal state legislative policy at all. That’s why we have regulatory federalism and the bribery of attaching federal funds to compliance with congressional wishes–because the targets of most of those actions are within the sovereign authority of the states, and not subject to direct regulation by Congress.

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      • When he says “the doctrine of X does not bar this action,” he’s implicitly admitting the basic validity of doctrine X.

        “Basic” does all the work here. His main purpose in the quote is to narrowly define the scope of the doctrine – to a context that, his entire point is, is not in play in this matter, and is not generally in play regarding legislation affecting existing states. That’s just plainly his meaning.

        You’re assuming that’s not an artifact of sovereignty.

        No, I’m saying it’s a new legal doctrine from 2009 (or thereabouts) that it is for purposes of the way Congress treats the existing states.

        Hell, there’s precious thin constitutional grounds for Congress interfering with internal state legislative policy at all. That’s why we have regulatory federalism and the bribery of attaching federal funds to compliance with congressional wishes–because the targets of most of those actions are within the sovereign authority of the states, and not subject to direct regulation by Congress.

        Exactly. It fairly hard for Congress to find legal ways to intervene with legislation in a lot of things that happen in the existing states that make up this country. But where they have found them, it’s not the case that they have taken themselves, nor have courts taken them, to be forced by the Constitution additionally to treat states equally in legislation absent a *special* justification for not doing so over and above the hard-to-find justification for any action in that subject-matter area in any state at all, and a *normal* (i.e. not extraordinary) finding that it treats a given problem well to limit the treatment of it to a particular geographic part of the country. (Though they nearly always, but not always (I don’t think) have treated them pretty close to equally, mostly because there is, as you say, a political tradition of doing so which would make not soing so, at least not making a convincing show of it, politically unsustanable and, in many cases – but not all – practically unworkable). Rather, the *normal* (hard-to-find) justification for the federal action action, if it can be found, is enough to justify the action as targeting of a particular place, if that is thought to be a useful way to approach the problem. If there is enough constitutional justification (i.e., something like the 15th Amendment’s enforcemnt provision, or Article I Section 4, etc.), and not enough competing interest, for the action that all Congress needs is a rational basis to think it serves an enumerated constitutional power, and the action is formulated appropriately to do that, and that action happens is an action targeted at a particular state, and there’s a rational basis for that targeting, then, under doctrine before 2009 as I understand it reading Katzenbach (not that that’s a fully adequate sampling of the record in itself), the action, targeted as it is, is justified. Sure, there has to be a rational basis for the state targeting as well as for the rest of the law, but that’s not unlike any other particular feature of any other law, all of which has to have a rational basis if it impinges on people’s (mostly unenumerated) rights in any significant way at all. The same, I think, would hold at higher levels of scrutiny for more highly-protected rights, etc. I could of course be wrong about all of this, but that’s what I read Warren to be saying in Katzenbach.

        And: maybe we do agree on all this. I’ve never meant to argue that Congress could tack on a completely arbitrary limitation on an otherwise legitimate law to one state with no reason at all for doing so. No part of any law that impinges on any rights at all (i.e. pretty much no law) can be without any rational basis, isn’ that right? I’ve taken you to be arguing that equal sovereignty imposes the burden of some kind of a special justification for unequal treatment (especially explicitly unequal treatment) of states that is over and above what is required for any law, i.e that all of its parts have a rational reason for existing. If you’re just saying that the state-targeting of a law has to have a rational reason for existing just like every other part of the law if that’s the kind of requirement generated by the constitutional justification for the law without the targeting (i.e, the language of the 15th Amendment on enforcement is so clear and forceful and the competing interest limited enough that it only requires Congress to have a rational basis to take any given action to enforce the Amendment), well, then clearly we agree – that’s what Warren is doing in the decision.

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      • You say Warren is saying the doctrine is not in play in this case, and not generally. Ergo the doctrine exists and predates Warren, and all you’re really arguing about is application I’m not arguing about application–I’m arguing against the wholesale dismissal of the principle.

        As to whether the right to equal treatment is a new legal principle–by which I assume you are distinguishing it’s usage by the court from its usage in general constitutional theory (that distinction makes sense to me anyway, so I hope that’s your meaning)–let’s assume for the sake of argument you’re right. So? That works as an empirical observation, not an effective normative critique. Not from anyone who favors liberal judicial innovations, such as the right to have the state provide a lawyer, or the exclusionary rule, or the right to privacy, or the New Deal reinterpretation of the commerce clause. New constitutional principles is not sufficient critique. (Not really for conservatives, either, but less obviously so than for liberals.)

        But absence of evidence is not evidence of absence. There are plausible reason the principal was not enunciated precisely until the ’90s.

        Congress had almost no regulatory authority over the states until the 14th Amdt., and the states have always been equal. So you have to produce an argument that when Congress gained the authority to engage in “appropriate legislation,” “appropriate” encompasses unequal treatment without a good justification (again, setting aside what standard should be used in judging that).

        And of course due to the Southern states the 14th and 15th amendments were not really enforced until the ’60s, and the justification for those laws applying to just some states was pretty clear.

        Congress also gained regatory authority with the reinterpretation of the commerce clause, but used that power for generally applicable regulation.

        So when did Congress do anything that ought to have resulted in the clear enunciation of what plausibly–at a minimum–was a latent principle?

        To press a claim that no such principle existed, you just about have to argue that Congress acquired the authority to arbitrarily regulate some states and not others. But arbitrary authority is anathema to our constitutional principles.

        If you say, no, not arbitrary, just a rational reason, then the principle is in play, even if only weakly

        Again, you keep attacking minor points of my argument, as though all you need is to create doubt about the principle. But you haven’t attempted a structured argument for why the principle is incorrect, for why states’ equal sovereignty doesn’t mean they have a right to equal treatment by the Feds (except when justified by some standard that we can assume, for the sake of argument, we’ve agreed upon).

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      • I’m arguing against the wholesale dismissal of the principle.

        And that’s fair, as I didn’t initially limit my claim to reflect its history relating to admittance of new states. If that’s all you’re interested in, then we’re good. Something called the “doctrine of equal sovereignty of the states” existed prior to 2009. And it didn’t state that legislation had to treat states basically equally absent special justification for not doing so. Rather, it only was relevant to a specific area of federal administration (admitting new states). You can say that this means that the principle existed and the rest is just arguing over application. But at some point it becomes absurd to say that every single piece of law falls in the domain of every constitutional provision or legal doctrine, it’s just that in some cases X doesn’t apply to Y. It’s equally the case that in many such cases no doctrine exists that provision X covering a particular set of government action relates to or controls Y genre of government actions.

        The doctrine that I’m interested in is the doctrine that states that the principle of equal doctrine of the states holds that legislation has to treat existing states basically equally absent special justification for not doing so. That doctrine did not exist before 2009 that you have shown.

        As to whether the right to equal treatment is a new legal principle–by which I assume you are distinguishing it’s usage by the court from its usage in general constitutional theory (that distinction makes sense to me anyway, so I hope that’s your meaning)–let’s assume for the sake of argument you’re right. So? That works as an empirical observation, not an effective normative critique.

        Yes, as I said to Dave, that’s what I’m doing. THere is a certain amount of So? to explore, but I don’t claim it’s a dispositive normative critique of having the doctrine in place. The argument would go that, under stare decisis (I think) something so (legally) novel should have a really, really steep hill to climb to defeat language as clear as Article 2 of the Fifteenth Amendment and almost fifty years of judicial and congressional support for the proposition that that language supports this legal arrangement. That might be something like how the argument might go, but I’m not making that argument. I am just trying to establish the newness of the doctrine in Court jurisprudence as an empirical matter.

        There are plausible reason the principal was not enunciated precisely until the ’90s.

        There absolutely are.

        So you have to produce an argument that when Congress gained the authority to engage in “appropriate legislation,” “appropriate” encompasses unequal treatment without a good justification.

        Not if I don’t believe it’s true!

        (again, setting aside what standard should be used in judging that)

        But I’m not going to do that. Because if it just turns out to be the same standard that’s required for literally any other provision of any other law, then we’re not actually talking about a distinct principle that I can see. No aspect of any legislation can be arbitrary – not just this one!

        To press a claim that no such principle existed

        But I’m not pressing that claim. I really only am pressing the claim that no doctrine existed to enforce it before 2009, for whatever reason….

        you just about have to argue that Congress acquired the authority to arbitrarily regulate some states and not others.

        …but even if I were, I think this is mistaken. The principle, again, is that it’s not the case that “when Congress gained the authority to engage in “appropriate legislation,” “appropriate” encompasse[d] unequal treatment without a good justification”… that , instead, good justification is needed. Again, I’m not arguing that that principle never existed – only that doctrine didn’t exist enforcing it until 2009. But if I were going to argue that it didn’t exist I would certainly not accept the idea that what “good” means can be put aside while at the same time being told that in order to make my argument I just about have to argue that Congress “acquired the authority to arbitrarily regulate some states and not others.” Refusing to talk about the nature of the justification required is the exact thing that makes it so that the choices become “good” or “arbitrary.” Other possibilities for kinds of reasons are “any,” “rational,” “sufficient,” etc. The whole question of whether I’d be saying Congress would have to be able to include an arbitrary clause if it can include one without “good” reason ignores all the intermediate possibilities short of arbitrariness where they act with reasons that it’s unclear whether are good or not, but that defeat arbitrariness and satisfy existing doctrine.

        If you say, no, not arbitrary, just a rational reason, then the principle is in play, even if only weakly

        What principle? As far as I am aware, all parts of all federal legislation has to have at least a rational basis basis to be constitutionally legitimate. If all that’s required of a clause limiting a law to a particular state is that is have a rational basis, I don’t see where a principle of equal treatment in legislation is a principle unto itself: it doesn’t impose any extra burden on lawmakers that wouldn’t have been there without the principle. If it’s rational for the law to apply to the whole country and it does, it’s legitimate. If it’s rational for it to apply to one state and it does, it’s legitimate. I don’t see where there’s a background principle of equality at work there necessarily. None of which is to say that that background principle isn’t there, that the burden isn’t higher, etc. etc. But it’s not the case that just because, like all other parts of all other legislation, Congress has to have at least a rational basis to enact a clause of a law that limits its effect to just some or one states, that therefore a separate principle of equal treatment of states by legislation due to equal (though limited) sovereignty has always existed as a background Constitutional principle (Though I’m not saying it hasn’t! I’m only saying the doctrine enforcing it came into being in 2009!).

        ..Thus (from that last parenthesis) it’s absolutely true that I

        haven’t attempted a structured argument for why the principle is incorrect, for why states’ equal sovereignty doesn’t mean they have a right to equal treatment by the Feds

        …and I don’t intend to, because I don’t hold that it’s the case that it doesn’t (or that it’s not the case that it doesn’t)!

        I’m completely wiped out on this. I’m going to be done for the evening on it now, regardless of where we stand on whatever questions remain.

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      • it only was relevant to a specific area of federal administration (admitting new states).

        No, that is not right. It was about new states having every bit the sovereignty of previously existing states. It wasn’t just about their admission; it was about what sovereign authorities they would have, and continue to have, after their admission.

        You keep mis-stating the significance of that, but it doesn’t even make sense to say it only applies to “federal administration” of “admitting new states.” I can’t quite fathom what equal sovereignty would mean in that concept, divorced from the sovereign authorities the state would have long long after admission.

        I’m only saying the doctrine enforcing it came into being in 2009!

        It doesn’t see to me that’s how you began. And if that’s all you’re saying, you could have approached that without making it sound like an antagonistic criticism right off the bat. Then maybe you wouldn’t feel so wiped out. *Shrug.*

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