Balkinization  

Saturday, March 01, 2003

JB

How to Say Anything and Get Away With It


Dwight Meredith has been running a series of valuable posts on the Bush Administration's tendency to lie, mislead, and generally to say one thing while doing another. I first noticed this tendency during the 2000 campaign. When Vice President Gore argued that Bush's proposed tax cuts would cause severe deficits and mainly benefit very rich people, Bush simply repeated over and over that these criticisms were "fuzzy math." It seems quite clear in retrospect that it is Bush who has been the master of fuzzy math. His Administration has repeatedly fudged figures, and hidden the long term costs of his tax cuts. It has announced support for a wide variety of programs and policies-- like homeland security-- and then cut back on spending for them in its budgets. It has repeatedly asserted its belief in the values of decentralization and federalism and then told the states that they will have to go it alone in funding and financing programs, with the result that state and local governments are in their worst fiscal crisis in many many years.

How does the Bush Administration get away with this? It gets away with it by stating that the President believes in X and then, some days or weeks later, failing to fund X or doing the exact opposite of X. For example, the President will say that he supports clean air and water, and a healthy environment in a public statement, and then will cut funding for EPA enforcement or weaken environmental regulations. Or he will announce that he strongly believes in Americorps but cut it out of his budget. He will announce that the government needs to make the homeland safe and denounce those who oppose him as uninterested in protecting the homeland and then fail to appropriate sufficient money for homeland security in his budget.

This strategy puts the burden on the press, and the public, to connect the earlier statement of what the Administration says it believes in and promises to do with what it actually does later on. If the press and the public do not follow up, because the news cycle has moved on, or the public's attention has been diverted to other matters, then the Administration gets away with it. It appears to be in favor of the environment while actually harming it; it seems to be in favor of helping states take on regulatory tasks while actually refusing them any help; it appears to be devoted to making America safe while actually failing to make the necessary expenditures to guarantee our safety. Because there is no follow up, and no follow through, the Administration can have it both ways. It can say whatever it thinks is popular, or compassionate, or fair, and then do things that are unpopular, heartless, and deeply unfair.

If, by some chance, an intrepid journalist or commentator asks the Administation how it can justify its policies given its stated committments, the response is simple: The journalist is wrong. The Administration remains committed to a strong environment, a healthy economy, more jobs for more Americans, fair tax breaks for everyone, a safe and secure homeland, and so on. That is to say, the Administration simply insists that it isn't doing what it is in fact doing, and then dares journalists to prove otherwise. And even if they prove otherwise, the Administration will simply deny that proof has been offered.

The Administration, in other words, has learned that in the current media world, it is enough simply to say things over and over again, and wait for the news cycle to bury any inconsistencies. It has, so far, at least, been a fairly effective strategy, for most Americans do not really know great a disconnect there is between this President's public pronouncments and his actual policies. And if the Administration has its way, they never will.

JB

Pledging Allegiance


The Ninth Circuit Court of Appeals has issued an opinion refusing to rehear its June 2002 decision holding that the Pledge of Allegiance may not be recited in public schools if it includes the words "under God," which were added by Congressional act in 1954.

Politicians will have a field day with this one, especially as we are about to go to war.

Is the Ninth Circuit's decision correct? Well, it's not obviously incorrect, but the court could have decided the case the other way.

First, consider a much easier case. Suppose that in 1954 Congress modified the pledge to say "under Jesus Christ our Lord and Savior." There seems to be little doubt that public school teachers could not lead classes in recitation of that version of the Pledge of Allegiance at the beginning of each school day. It is too sectarian a statement. Similarly, even if the Pledge said "One Nation, with fervent belief in a God who created us all," it might seem to be too obvious an endorsement of a particular theological position. The one thing that the state may not do under the First Amendment's Establishment Clause is endorse a particular concept of religion or religious belief as the correct or official one. Nor may it create its own theological beliefs or doctrines and pronounce them as the official beliefs of the government. To do this is to violate the most central command of the Establishment Clause.

But Congress didn't do this exactly in 1954. Instead it asserted that the United States is one nation "under God." Now is this an endorsement of a religious viewpoint? Is it an assertion of a preferred or official position about a religious point of view? Well, on its face it appears to be. And given the time the amendment was made, it might well have been designed to distinguish God-fearing Americans from godless Communists in Soviet Russia.

Nevertheless, the expression "under God" might fall into a small category of situations or cases that have been called "ceremonial Deism." These are situations where people express hope or faith or trust in God through traditional and styilized invocations that have very little religious feeling to them. Ceremonial Deism is hallowed by long practice and tends to lose its religious significance over time. The idea is that it has become essentially secular and people shouldn't get too upset about it; it is just the sort of thing one is supposed to say on important occasions and we shouldn't understand it as an official religious point of view.

An example of ceremonial Deism is the use of the motto "In God We Trust" on the nation's coins. That motto is so old (and the way the sentiment is expressed is so archaic) that it seems backgrounded in social life. Nevertheless, the idea of ceremonial Deism is quite tricky, for it relies on a generalized sense of social meaning. If Congress changed the motto from the archaic "In God We Trust" to the more straightforward "We Believe in God" it might be unconstitutional, because the new motto would no longer be hallowed by long usage and it would appear to be a more direct endorsement of a religious viewpoint. What differentiates "In God We Trust" from "We Believe in God" is not that the phrases have different meanings (they actually mean pretty much the same thing) but that we would suspect that the replacement of the first with the second was motivated by a desire to impose a particular religious viewpoint. Otherwise, why change the wording?

Under this line of reasoning, Congress might well have violated the Establishment Clause in 1954 when it added the words "under God," for Americans had gotten along quite well just saying "one nation, indivisible, with liberty and justice for all" for decades. But, over time, the use of the words has become comfortable like an old shoe, and has lost its religious edge. It's purely ceremonial, and we can retain it.

Note that the doctrine of ceremonial Deism is a double edged sword. It allows state officials to acknowledge God's existence, but only by requiring them to affirm that the meaning of the acknowledgment is purely ceremonial and doesn't reflect fervent adherence to a particular religious belief. However, one suspects that many people want to invoke God's name precisely because they do have such fervent beliefs and they want other people to share in those beliefs, or, at the very least, publicly say the words that reflect such beliefs. But *that* purpose for legislation really is impermissible-- Our Constitution doesn't allow us to force our religion on other people.

If the Supreme Court takes the Ninth Circuit case, they may very well reverse the decision on the grounds I've just outlined-- that the pledge is just ceremonial Deism, and therefore doesn't mean what religious Americans want it to mean. That would be a predictable result, and an ironic one.

But the irony works in both directions. For a court to strike down the words "under God," particularly when they have been said formulaicly for decades, may have exactly the opposite social meaning-- suggesting that the court is attempting to remove God from the public square. Ceremonial Deism by its nature tries to have it both ways. It treats certain religious expressions as being both religious and not "really" religious. It justifies this on the grounds that the practice is one of long standing and its religious content has long since faded into the background. The problem, however, is then that deviating from the status quo in any direction-- making the goverment's claims more overtly religious or removing the religious language altogether-- seems to create a social meaning of non-neutrality with respect to religion. So in most cases the best thing to do with examples of ceremonial Deism is just to leave them alone.



Friday, February 28, 2003

JB

Cloning Bans and Fair Weather Federalism

The House of Representatives voted overwhelmingly yesterday to ban all forms of human cloning. The Weldon-Stupak bill, H.R. 534, makes it a crime "for any person or entity, public or private, in or affecting interstate commerce, knowingly--

(1) to perform or attempt to perform human cloning;

(2) to participate in an attempt to perform human cloning; or

(3) to ship or receive for any purpose an embryo produced by human cloning or any product derived from such embryo.

In addition, the bill makes it a crime for "any person or entity, public or private, knowingly to import for any purpose an embryo produced by human cloning or any product derived from such embryo."

Human cloning, in turn is defined in the bill as "human asexual reproduction, accomplished by introducing nuclear material from one or more human somatic cells into a fertilized or unfertilized oocyte whose nuclear material has been removed or inactivated so as to produce a living organism (at any stage of development) that is genetically virtually identical to an existing or previously existing human organism."

The bill leaves untouched scientific "research in the use of nuclear transfer or other cloning techniques to produce molecules, DNA, cells other than human embryos, tissues, organs, plants, or animals other than humans." The idea, basically, is that forms of cloning that do not involve the creation and destruction of human embryos would not be prohibited.

However, currently, the creation of embryonic stem cells does require the creation of human embryos from which the stem cells are taken, so creation of new stem cells from newly cloned human embryos would be prohibited under this bill. Stem cells are important to medical research because they can be made into many other different types of cells. The hope is that such cells can be turned into replacement tissues for people who are suffering from spinal cord injuries or degenerative diseases, including Parkinson's and diabetes.

There are any number of important issues raised by the new bill. One of them is federalism. The bill outlaws cloning at the national level, instead of leaving the issue up to individual states. In the past conservatives have often criticized liberals for seeking national solutions to economic and social issues rather than leaving these issues up to the states, which, conservatives often claim, are closer to the people. It's important to recognize that many people would probably say the same thing about human cloning. But we have not heard much about this from conservative politicians in Congress who have been pushing for a ban on cloning. The reason is not difficult to understand: Throughout American history debates over federalism and state's rights have been a stalking horse for other, substantive issues, like tarrifs, child labor, civil rights, racial equality, and reproductive freedom. Many conservative politicians talk loud and long about federalism, but in reality they are committed to decentralization only so long as it serves the substantive agendas they like. They are fair weather federalists.

I myself have no problem with a national solution to the cloning issue. For me the issue is whether a total ban on cloning, including both therapeutic cloning and cloning employed to make babies, is good public policy.

There is a constitutional twist to this issue. The constitutional basis of the cloning ban is Congress's power to regulate interstate commerce. In the Supreme Court's 2000 decision in United States v. Morrison, the Court's five person conservative majority struck down the Violence Against Women Act on the grounds that the problem of violence against women was not related to interestate commerce; Congress should have left the issue of domestic violence to individual states. The Court, attempting to strike a blow for state's rights, argued that the federal government did not have the power to reach "non-economic" subjects which included crime and family law, even if these activities had substantial cumulative effects on interestate commerce. Violence against women, the Court argued was non economic because it involved crime and family relations, which, it claimed, were traditionally local activities. It is interesting to know what the Court would make of a nationwide ban on human cloning. After all, making babies seems to be about families and family law. There is no requirement in the bill that the cloning be done for a fee or as part of any other economic activity. Ironically, therapeutic cloning-- involving stem cell research to create replacement tissues and organs-- might be the most "economic" version of cloning, since one assumes that these services will be bought and sold like other medical services. But a more plausible argument is that the ban on human cloning is evidence that the Supreme Court's distinction between inherently "economic" and "non-economic" activities simply makes no sense, and the Surpeme Court's attempt to limit federal power in Morrison was misguided and the case should be overruled.


Tuesday, February 25, 2003

JB

Bullying, again


The Washington Post reports that the Bush Administration is now telling other countries that it has decided to go to war no matter what and that it is up to them to preserve the United Nations as a viable organization by voting to give the U.S. authorization to invade Iraq. The issue is not whether or not there will be war, but "whether council members are willing to irrevocably destroy the world body's legitimacy by failing to follow the U.S. lead, senior U.S. and diplomatic sources said." Put another way, it will be the fault of these other countries if the U.N. is rendered irrelevant because they didn't unquestioningly obey the orders of the United States.


A senior diplomat from [a Security] council member [nation] said his government . . . . was told not to anguish over whether to vote for war. "You are not going to decide whether there is war in Iraq or not," the diplomat said U.S. officials told him. "That decision is ours, and we have already made it. It is already final. The only question now is whether the council will go along with it or not."

This approach has three basic problems. First, it tells countries that the U.N. is already irrelevant, because the United States has stated that it will do whatever it wants. The U.N.'s job is simply to rubber stamp American adventures overseas. In what sense, then, is the irrevocable damage to the U.N. the the fault of countries that fail to go along with American bullying? Why isn't the real cause of the damage the bullying itself?

Second, this strategy is likely to cause some states to dig in their heels. If the United States is going to war regardless of the evidence that Hans Blix produces, and if the U.S. doesn't really care what they think, why should they bless the U.S. attack? If the war goes badly, they can say "I told you so." If it goes well, they can free ride on the benefits. The only reason to go along is a fear that the U.S. will punish them later on for failing to toe the party line. But the U.S. can't possibly punish all the countries that fail to go along. It will need at least some of them later, and the more influential they are (e.g., China, Russia, France, Germany), the more the U.S. will need to get past the present disagreements in the long run. Thus, ironically, the current strategy of bullying may be counter-productive because it allows countries to free ride while telling their populations that they did not kowtow to the Americans.

Third, this strategy gives Saddam absolutely no incentives to disarm. Why disarm when the U.S. has publicly announced that no matter what the U.N. says or does Iraq is going to be invaded by the Americans? Again, it is the Bush Administration that has made the U.N. irrelevant by preventing the U.N. from offering Saddam the following deal: Disarm and stay alive; fail to disarm and be deposed. The U.N. cannot offer that deal if America will attack no matter what Saddam does.

The President has continued to insist officially that he has not made up his mind whether or not to go to war. It is clear that this is a lie. That fact in itself is not so troubling. Politicians lie all the time. The problem is that this is a lie that his diplomatic officials are now openly saying is a lie.

This is no way to run a railroad, much less conduct foreign policy.


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