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Tag Archives: Law

Custom-made disagreement

I’ve written a few times before about U.S. Supreme Court cases, without claiming legal expertise. This time it’s the Masterpiece Cakeshop case, with oral arguments presented yesterday. This case is important because of the culture war implications and interesting because of the need to draw a line between behavior the state can prohibit and behavior the state can’t prohibit.

The case is complicated by several factors: it concerns a business, not an individual; it concerns a corporation, not a sole proprietorship; it concerns a message without knowing any text associated with that message; it concerns freedom of speech, though it seems like freedom of religion; and it concerns food, which seems removed from freedom of speech.

The justices seemed to see the case in a larger context, which is good because that’s the rub. Where do we draw the line? The principle that a business must serve all comers is well recognized and accepted. But can a business refuse a customer on the basis of their purpose for buying the goods or services?

In most cases, a business does not know what that the customer’s purpose is, other than the obvious one – e.g., food is purchased to eat. But in the case of a custom product or service the business needs to know the customer’s purpose. What if the business does not want to be part of fulfilling that purpose?

There are straightforward cases of a customer of a print shop who wants a message printed that the print shop objects to. The customer has the freedom of speech to speak the message but the business has the freedom to refuse to assist them because of the message. The refusal is focused on the message, not the customer themselves.

Although a message wasn’t yet part of the transaction, the parallel with the cakeshop is clear. The cakeshop objected to the purpose of the custom-made cake the customer wanted. The state should not be able to force a business to make something for a purpose they object to.

The cakeshop could advertise that they custom-make wedding cakes for traditional weddings and (perhaps in small print) they don’t custom-make cakes for non-traditional weddings – except that a customer may purchase any off-the-shelf cake and use it for any purpose they choose.

Is that too difficult to understand?

Religious freedom in two senses

I last wrote about religious freedom here. The post concerns how to define religion for purposes of religious freedom.

Basically, there are two ways to define religion: (1) a narrow, traditional sense in which religion means one of the world religions, which are concerned with worship of God or gods and/or following a certain way of life; or (2) a broad sense in which religion means what each person defines as the greatest good or ultimate concern and the lifestyle choices that follow from that. In the latter sense everyone has a religion; even those who are atheistic or anti-religious make a religion out of that.

The First Amendment to the U.S. Constitution lays out the two sides of religious freedom: negative freedom (freedom from) and positive freedom (freedom to). “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The incorporation doctrine applies this to the States, too. Consider these two sides in relation to the two definitions of religion.

(1) In the narrow sense of religion, government shall not promote or demote one traditional religion over another, shall not provide material support for traditional religious activities, and shall not interfere with traditional religious organizations and activities.

That protects religious organizations and leaders but what about adherents who want to apply their religion to their daily activities, their business, or other nominally secular actions? For example, can a business operate in accordance with religious principles if they conflict with generally applicable laws? The Supreme Court has said, No. So the narrow definition of religion causes problems for individuals.

(2) In the broad sense of religion, government shall not promote or demote one view of the greatest good or ultimate concern over another, shall not provide material support for anything that someone might consider religious, and shall not interfere with any organization or activity that people claim has religious significance for them.

Clearly, the broad sense of religion causes problems for government. For example, there are people who say it’s against their religion to pay taxes. Does that mean they get off free? Does anyone have a veto over laws based on something they claim is part of their religion? In the broad sense of religion, it seems so.

The Supreme Court has reacted against this stricture on government and affirmed the legitimacy of any government action that is not aimed against any particular religion. In 1990 an exemption was sought so members of a tribal religion could ingest peyote despite a ban on this drug. The Court denied this in terms that seemed to equate freedom of religion with freedom of speech: say anything you want, have any religious opinions, but the law applies to everyone (Employment Division v. Smith).

The problem is that the second definition is too broad and the first definition is too narrow. The way forward is to adopt a broader version of the narrow definition or a narrow version of the broad definition. What might this mean?

For example, it could mean that someone can’t just say, My religion forbids me to pay taxes. They need to demonstrate that this is part of a religious tradition or doctrine that is a central part of their life. This is similar to the process for obtaining conscientious objector status with the selective service system (military draft). It’s not easy to obtain this status, but it can be done by those with a strong case to be members of a pacifistic religion.

On the other hand, it should take more for the government to justify a law than merely that it advances a secular purpose. Many secular purposes these days are against the religious beliefs and practices of many people. The government should be required to show a compelling public interest in a law, or else carve out exceptions for religious objectors.

As government has grown, religious freedom has been under pressure to contract. This needs to change, without giving everyone a veto over laws they don’t like.

Trust and America

President-elect Donald Trump is about to be inaugurated as the 45th President of the United States. Many people feel an anxiety and fear not felt since the election of Abraham Lincoln, whose election led to the secession of the southern states. Why is there such apprehension?

The simple answer is a lack of trust. There were different issues in the 19th century but in both cases a lack of trust has led to fear and anxiety over what the new President might do. Clearly today trust has eroded between Americans and their government, and between Americans who are on opposite sides of politics. What is the origin of this lack of trust?

One might go back to the American Revolution and its lack of trust in civil authority, represented by Great Britain. There has been a certain skepticism of government that dates to that era – which helped form the Constitution with its checks and balances. For those in the South who lost political power, the Civil War was a loss of trust in the Federal government. One could also point to the Vietnam generation that lost confidence in a foolish (or worse) government and a conformist culture.

But there is one specific source of the lack of trust today: the Supreme Court’s Roe v. Wade decision of 1973 and a series of decisions since then that set aside the Constitution in favor of a vision of society held by a majority of the Court. These decisions have been exercises in raw judicial power.

Many have written about this and bemoaned the judicial usurpation of politics. The point I’m making here is that the American social contract, the Constitution, has been set aside at significant points since 1973. America does have some traditions and to some extent an unwritten constitution continues. But America is much less traditional than Britain and needs an explicit statement of what binds us together as a nation.

This lawlessness – for that’s what it is – has affected the Presidency, too. President Obama since 2014 has openly bypassed Congress to push his agenda, for example with regulations that have no authorizing legislation behind them.

So today one does not know what limits there are to the Presidency. That may not be seen as a problem if one agrees with the President’s agenda. But that is short-sighted since a new President may arise with a very different agenda. That has indeed happened in the change from Obama to Trump.

It used to be that political opponents would work together for the good of the nation. One cannot assume that any more. The differences are so deep and the limits on power so weak that there’s no telling what could happen.

So there is reason for grave concern, not because of Trump’s brand of politics but because America’s political system is under attack from the one body most charged with defending it – the Supreme Court. The Court must return to the principle that where there is no law, the Court cannot go.

Constitutional authority undermined

I’m not a constitutional lawyer, but those who are have been sounding the alarm over the actions of a Supreme Court and President that are extra-constitutional. I write to point out that an official under a constitution who officially acts outside that constitution has undermined their legitimacy. The constitution remains but the official who sets it aside lacks legitimate authority.

As background let’s look at a few excerpts from the dissenting opinions in the Court’s Obergefell same-sex marriage decision: from Chief Justice John Roberts’ dissent:

[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.

From Justice Antonin Scalia’s dissent:

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”`

“[W]hat really astounds is the hubris reflected in today’s judicial Putsch.”

Here are some excerpts from a report on extra-constitutional actions of the President:

President Obama has said repeatedly that he would take unilateral executive action whenever necessary to achieve his political ends if Congress and the courts did not acquiesce to his demands. He declared openly and repeatedly that America “cannot afford to wait” on Congress or the courts to act on his agenda, and he made good on his threat to bypass the Congress and ignore the courts numerous times in his first term, as we documented in this report. After he was re-elected to a second term, Mr. Obama became even more brazen.

With his kitchen cabinet of czars in place a broader strategy to expand presidential power by executive fiat is unfolding. Obama’s “new normal” promises rule by executive fiat, plain and simple. On the issues of gun control, illegal immigration and fiscal policy, Obama has sneered at Congress and the judiciary.

Those who are called President and Supreme Court justices hold their offices by virtue of the Constitution they have sworn or affirmed to uphold. If they act extra-constitutionally, to that extent they undermine their claim to such an office. In short, their acts are not official acts, despite any outward appearance.

Positive vs. negative authority

In constitutional republics the founding documents provide the positive basis for political authority. In the U.S. the Constitution delineates the authority of the executive, legislative, and judicial branches of government. Thus the President could do only what he (so far only he) is authorized by the Constitution to do: act as Commander in Chief of the armed forces, negotiate treaties “by and with the Advice and Consent of the Senate”, veto legislation, etc. Similarly, the judicial branch with its apex in the Supreme Court is authorized to hear actual cases and controversies only.

The Constitution incorporates “checks and balances” so that if a branch of government exceeded their authority, the other branches of government could stop them. The greatest authority is vested in the legislative branch, the Congress, but the process of passing bills is purposively challenging to prevent excessive use of that authority.

Thus stood the Republic for over two centuries. Now however that is ending. Congress is consistently divided on basic issues and members are reluctant to take a strong stand on any controversial matter. So Congressional inaction is the order of the day. The judicial and executive branches increasingly fill the gap and exceed their positive authority.

What we are seeing is that the executive and judicial branches can do anything that they can get away with. They are appropriating to themselves a negative authority: an authority that extends as far as the limits to what they can be prevented from doing.

The judicial branch “legislates from the bench” and invents rights out of thin air. The executive branch produces directives and regulations that are not based on authorizing legislation. The President wages war without the consent of the Senate and negotiates “agreements” instead of treaties so that the consent of the Senate is not needed; if the Congress cannot stop the President, the agreement is put into effect.

The Constitution is not working. The American people are deeply divided. A tyranny is developing and is even now here. It is a dark time. God help us.

Authorizing legislation

Congress passes a bill to authorize a government program and expenditure of funds before passing an appropriations bill to approve the expenditure of funds. Authorization bills cover multiple years (such as 3 or 6) whereas appropriations are usually annual. Some programs such as so-called entitlements do not follow this process.

One advantage of periodic authorizations is that they allow Congress to make changes to programs. While they can always do so, the difficulty in passing legislation makes it unlikely to happen unless a bill must be passed because an authorization is about to expire. I wrote about a similar situation with the difficulty of repealing legislation here.

I suggest a Constitutional amendment to require authorization bills at least every 12 years. This would ensure that Congress revisits every program at least that often. Without this requirement it is difficult to end programs that no longer are needed; they continue because the process of repealing them is too difficult. But if an authorization expires, there is nothing for Congress to do but to let it expire.

Repealing legislation

The Founders did “better than they knew” when writing the U.S. Constitution. They wisely separated the legislative, executive, and judicial powers. They also wisely made the legislature bicameral with an executive veto to make new laws difficult to enact. However, now that many, many laws have been passed, we can see that the difficulty in enacting legislation makes it difficult to repeal legislation, too.

A case in point is the Affordable Care Act (ACA), officially the Patient Protection and Affordable Care Act, commonly called Obamacare. This was passed by a thin margin in March 2010 and immediately became an issue in the 2010 Congressional elections. In November the electorate spoke and many Representatives lost their seats. In January 2011 the newly-elected House of Representatives voted to repeal the ACA. However, the Senate did not agree and the President would have vetoed it anyway.

But the fact remains that after the electorate changed the make-up of Congress, the ACA would not have been enacted. In short, the electorate was denied the opportunity to repeal a law once enacted. Why? Because a repeal of a law is treated as a law and laws are difficult to enact. One result of this is that laws accumulate on the books and are modified but rarely repealed.

The solution to this is to make repeal of a law less difficult than enacting a law in the first place. This is consistent with making new laws difficult to enact, so the status quo is privileged over change without a consensus for change. However, a law enacted years ago may have led to many things that would be impossible to undo so there should be a limit to how long a law may be repealed without passing a new law.

A simple amendment would be to allow either chamber of Congress to repeal a law by majority vote within two years of its enactment. That would allow one Congressional election cycle for the electorate to speak. New laws would effectively have a two-year probationary period, something that is often done in other situations such as new employment.

The order of life, liberty, and property

The first and second article of the Virginia Declaration of Rights, which was written by George Mason and adopted unanimously by the Virginia Convention of Delegates on June 12, 1776, states:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The (U.S.) Declaration of Independence, which was primarily drafted by Thomas Jefferson and adopted by the Second Continental Congress on July 4, 1776, states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

I suspect that the omission of “property” from the Declaration was to avoid the potential for this revolutionary document to be challenged as an attempt to abrogate British property rights.  In any case, the rights to “life, liberty and property” are asserted in the Declaration of Colonial Rights, a resolution of the First Continental Congress.  The Fifth and Fourteenth Amendments to the U.S. Constitution declare that governments cannot deprive any person of “life, liberty or property” without due process of law.

The U.S. Civil War can be understood as a conflict over the rights of liberty vs. property.  Slaves were chattel property and their right to liberty was not acknowledged until the war was decided.  The right to liberty trumps the right to property if there is a conflict.

The continuing clash over abortion can be understood as a conflict between the right to liberty and the right to life.  It is greatly to be hoped that the right to life will prevail as liberty means little if a life can be taken without due process of law.

In short, the rights to life, liberty, and property should be acknowledged in that order with life taking precedence over liberty and liberty taking precedence over property.

January 2011