It's been quite a month.
As they finished their 2014-15 Term, the Supreme Court upheld Obamacare for the second time and constitutionalized gay marriage. Then the President went to Charleston and brought us all to tears -- and the congregants to their feet -- with his Amazing Grace speech. Meanwhile, Europe remained embroiled in l'affaire Grecque, with Greek voters overwhelmingly rejecting yet another round of fruitless austerity. This in turn was followed by northern European (principally German) obstinacy and Greek collapse as the former, oblivious to empirical macro realities, insisted on further austerity, and the latter, unprepared to exit the European monetary union, hoisted the white flag of surrender. Meanwhile, the Pope told us climate change was a moral issue and -- in a visit to Central America -- that capitalism without a conscience is a sin. And then there was the Donald.
As former NYC Mayor Ed Koch would say . . .
How're we doin'?
The answer is . . .
Mixed.
The Obamacare decision was pretty much a no-brainer. The notion that the Affordable Care Act (ACA) was written to forbid means-based subsidies in cases where states opted into insurance exchanges set up by the federal government was irrational on its face. The purpose of the ACA was twofold: (1) to radically decrease the numbers of uninsured (which had risen to about 50 million prior to its passage); and (2) to bring down the medical inflation rate (which was running, for decades, at rates far in excess of the CPI). Without means-based subsidies for all purchasers on all the exchanges, state or federal, policies would have been unaffordable for millions and the market itself would have collapsed. Consequently, the notion that the wordsmiths in Congress who drafted the Act intended that result was silly.
As was the notion that this Congress would have fixed the problem if the Court had simply made those subsidies illegal.
The gay marriage case was much more interesting. My own view is that Justice Kennedy's decision missed an opportunity. It declared that gay marriage was constitutionally required more or less as a matter of substantive due process, namely, the view that there are some rights so fundamental -- marriage being one -- that the state cannot exclude whole groups from enjoying them. The problem with this view is that the Constitution nowhere mandates what in fact must constitute the "substance" of "due process," which makes those determinations -- so say conservatives -- ones which a non-elected Court should not make. The dissents in the gay marriage case more or less rode this horse, either in the form of Chief Justice Roberts's measured disagreement or Justices Scalia's and Alito's extremely vitriolic versions.
The substantive due process debate is one with no end. There really is no way to solve the central problem. It is simply a fact that the rights which constitute the substance have been found by federal judges. You can justify or defend that approach, and save it from the charge of illegitimate legislating by a non-elected branch of the government, by arguing that the craft of litigating and judging itself supplies restraints, largely in the form of case by case development and the formation of judicial opinions.
You can also defend the approach by noting that concepts like due process and equal protection of the laws are inherently malleable; in fact, they are products of common law, which was never meant to be static. Put differently, if one is concerned about being faithful to the original intent of those who put the words "due process" and "equal protection" into the original Constitution or the 14th Amendment, the first concession must be that the drafters of those documents intentionally embraced inchoate terms whose meaning had evolved over time and was expected to evolve well into the future. So-called strict constructionists become apoplectic asserting that the original intent of the 14th Amendment was to insure due process and equal protection for freed slaves, and that this only forbids race-based distinctions. The problem for them, however, is that the Amendment could have been fashioned with specific words that ended such distinctions; in other words, it could have been fashioned as a regulatory amendment aimed at a specific group. But the drafters did not do that.
Nevertheless, there was also another way out of this conundrum.
And that was to declare laws forbidding gay marriage irrational.
Under the equal protection clause, the Court has for more than a century held that it must defer to legislative enactments (or popular referenda) that are rationally related to legitimate state purposes. The ban on gay marriage, however, is not so related. Those who argued in favor of the ban claim that gender based exclusions protect children and heterosexual marriage from what would otherwise be the adverse consequences of a non-exclusionary regime. The problem, however, is that there is no evidence to support this claim. Kids raised by same sex parents don't turn out worse than those raised by mommies and daddies, and gay marriage doesn't have any impact whatsoever on the heterosexual counterpart. In fact, and this was made crystal clear in Chief Justice Roberts's dissent, the basis for the claim of rationality is nothing other than longevity; he argued that marriage has "always" been "defined" as being between a man and a women, and that this distinction is rationale because it ostensibly is related to the "legitimate state interest" of "preserving the traditional institution marriage."
Except that it isn't . . .
And, more importantly, never was.
The "rationale basis" test has pretty much been viewed by the federal courts as a free pass to Constitutionality. This is because, as a general rule, there is usually at least some reasonable basis for a legislative enactment, and un-elected Courts are not really in a position to contradict those claims. In my view, however, the gay marriage cases offered a unique opportunity to take a sober look at the test and treat it with more respect. Legislatures do a lot of things that are irrational, and thanks to gerrymandering and the current campaign finance laws, they aren't all that representative either. The notion that courts should call them on that irrationality, especially when it results in exclusions visited upon groups -- like gays and lesbians -- that have been historic victims of discrimination, is not one that will bring down our Constitutional democracy.
President Obama, of course, had a pretty good week when the Court upheld his signature legislative achievement and then dealt prejudice against gays and lesbians a legal body blow.
The same, however, could not be said for the families of the nine victims of the Charleston shooting. They were in mourning.
But in their mourning, they taught us all a powerful lesson in both forgiveness and progress.
Which Obama then reflected -- and even enlarged upon -- in his Amazing Grace speech.
It is one of the ironies of this administration that its cerebral, calm, professorial and non-dramatic chief executive could, in his seventh year, find the right word -- grace -- to dispel the bitterness and polarization of our recent past.
Polarization and division leads to hatred. From my vantage point, it is more or less one of the very last stops on that road. How, therefore, do you stop the trip once you are so far down that road? The Charleston victims did it by showing up at an arraignment and forgiving the killer. Governor Haley -- a Republican -- did it by bucking convention and calling for the removal of the Confederate flag. One of Jefferson Davis's ancestors -- also a Republican -- did it by voting in the South Carolina House of Representatives for that removal. What made these actions possible? It wasn't just the shooting. Blacks have been attacked in their churches for decades and no one before ever tore up the Stars and Bars.
Our Pastor-in-chief said -- and at the end he even sang -- that grace -- God's unearned gift inviting change when nothing else has worked -- makes it possible . . .
To walk in the other guy's shoes.
Which may, in turn, allow us to re-visit gun violence and reasonable gun laws.
Or climate change and the need for economic equity.
Maybe it will even allow Donald Trump to re-visit . . .
Mexico.
Trump's "rapists and murderers" characterization of illegal Mexican immigrants was so wrong at so many levels that it's hard to know where to begin. The comments themselves are racist. They are, of course, also grossly inaccurate. Illegals in fact are more law abiding (allowing, of course, for the initial violation at entry) than the general population as a whole. Nor is the problem of illegal immigration all that much of a problem. In fact, more illegal immigrants are returning to Mexico and Central America then are now coming, and an enormous number of those remaining are children who had no say in the matter.
The last thing the immigration issue needed was a weigh-in from Donald Trump. In fact, if we were looking for political outsiders -- those with no connection to the much hated Washington establishment that Trump and his right wing populists constantly bemoan -- to show us the way on this issue, the best candidate was himself in the region the Donald so thoroughly misunderstands. He would be . . .
Pope Francis . . .
Who visited Central America and basically gave the technocrats who now run western economies a refresher course on morality.
For years, I have wondered when the hierarchy in the Catholic Church was going to hold consumer-based capitalism to account for its obvious love-affair with inequality and poverty. That day has now arrived. The Church's opposition to Communism has often been read by the right wing as unbridled support for capitalism; the fact that the Church also embraced "subsidiarity" as a principle, i.e., the notion that policy/political decisions ought to made at the lowest level of competent authority, was deemed to be further support for private management of society's economic affairs. Now comes Francis, however, warning that inequality and rising poverty are not emblems of competence, and can neither be accepted as a matter of subsidiarity nor ignored in the absence of the threat of Communism.
Angela Merkel and the European Union should take note. They have collectively put the boot on the neck of Greece, requiring an austerity policy that will not work (and has not, wherever it has been tried) in exchange for any further loans, and demanding that Greece more or less sacrifice any right to democratic self-government as part of this devil's bargain. They ignore the changes Greece has made (which, though not complete, have not been inconsiderable either), as well as the fact that it has been running a primary surplus (which is about all that could be expected in the current environment). They also ignore the fact that the monetary union is essentially a northern European creditors club that favors deflation (and hence depression). Before the euro, Greece would have devalued its way out of its current morass (as would have been the case in Spain, Italy and Ireland). Post-euro, the Greeks (along with the Spanish, Italians and Irish) are enslaved to ideologues who have ignored rudimentary macro-economic principles (the first of which is that you cannot solve a depression with austerity; that only makes it worse) in the service of a pseudo-morality that calls debtors irresponsible even as it bails out the banks who (irresponsibly) lent all the money out in the first place.
Quite a month. I score it . . .
Good guys - 3.
Bad guys - 2.
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