That's the title of an article in the "On Religion" column that appears every Saturday in the New York Times. The article, by Samuel G. Freedman, will be of great interest to RLL readers. Here.
That's the title of an article in the "On Religion" column that appears every Saturday in the New York Times. The article, by Samuel G. Freedman, will be of great interest to RLL readers. Here.
70 Years after the War
Blessed are the peacemakers – Now especially, peace must not depend upon weapons
To our Brothers and Sisters in Christ and to All Who Wish for Peace
The Catholic Bishops’ Conference of Japan issued messages marking the end of the Second World War in 1995 (Resolution for Peace -- On the 50th. Anniversary of the End of the War) and 2005 (Peace Message After 60 Years From the End of War World II -- The Road To Peace Based On Nonviolence -- Now Is The Time To Be Prophetic). In this year in which we mark the 70th anniversary of the end of the war, we wish to once again declare our commitment to peace.
1. The Church Cannot Remain Silent in the Face of Threats to Human Life and Dignity
For the Catholic Church, this is a noteworthy year because it marks the 50th anniversary of the closing of the Second Vatican Council (1962-1965).
In the first half of the Twentieth Century the Christian Church centered in Europe experienced two world wars and genocide against the Jews by Nazi Germany. Reflecting on these tragedies, the Church cannot close itself up with merely “religious” concerns. We have realized that the problems of humanity are our problems. The Pastoral Constitution on the Church in the Modern World, Gaudium et Spes, issued at the end of the Second Vatican Council, is a clear example of this insight, opening with the following words.
“The joys and the hopes, the griefs and the anxieties of the men of this age, especially those who are poor or in any way afflicted, these are the joys and hopes, the griefs and anxieties of the followers of Christ. Indeed, nothing genuinely human fails to raise an echo in their hearts.”
From the end of the Second Vatican Council up to the papacy of Pope Francis today, the Church has actively faced the issues of human life and dignity, especially of those who are excluded or oppressed.
2. The Decision to Renounce War
Japanese colonial rule on the Korean Peninsula until 1945 as well as acts of aggression against China and other Asian countries caused great suffering and sacrifice among people. The Second World War was a horrible experience for the Japanese people as well. Beginning with the Tokyo air raid of March 10, 1945, large-scale air raids struck many cities in Japan. In addition to the many Japanese and foreign troops who became casualties during land combat on Okinawa, many civilians suffered as well. Then finally there were the atomic bombings of Hiroshima on August 6 and Nagasaki on August 9, 1945. These experiences gave birth to a desire for peace that was codified in the Constitution of Japan promulgated in 1946 based on the sovereignty of the people, the renunciation of war and respect for basic human rights. Following this peace constitution, Japan has striven to build relationships of trust and friendship with the nations of Asia.
Against the background of the Cold War and the subsequent fall of the Berlin Wall, the Catholic Church throughout the world has made increasingly clear its opposition to the arms race and the use of weapons to resolve disputes.
In his encyclical Pacem in Terris, Pope John XXIII said, "in this age which boasts of its atomic power, it no longer makes sense to maintain that war is a fit instrument with which to repair the violation of justice" Vatican II in Gaudiam et Spesopposed the arms race, and urged peace that does not rely upon military force. In his Appeal for Peace in Hiroshima in 1981, Pope John Paul II demonstrated this clear renunciation of war when he said, "War is the work of man. War is destruction of human life. War is death."
Given this historical background, it is a matter of course that we Japanese bishops respect the ideals of Japan’s no-war Constitution. For Christians, the renunciation of war is demanded by the Gospel of Christ. It is a respect for life that cannot be abandoned by religious people and an ideal that is held firmly by the whole human race.
3. The Japanese Church’s peace vocation
The Catholic Bishops’ Conference of Japan knows that it has a special vocation to work for peace. It is not based upon any political ideology. We continue to appeal for peace not as a political issue, but as a human one. Our awareness of this vocation is, of course, influenced by the horrors inflicted by nuclear weapons on Hiroshima and Nagasaki, but it is also born of deep remorse when we reflect upon the attitude of the Church in Japan before and during the war.
During a Mass celebrated on September 26, 1986, at the plenary meeting of the Federation of Asian Bishops’ Conferences (FABC) held in Tokyo, Archbishop Shirayanagi of Tokyo made the following declaration. “We Catholic bishops of Japan, as Japanese, and as members of the Catholic Church in Japan, sincerely ask forgiveness from God and from our brothers and sisters of Asia and the Pacific Region for the tragedy brought by the Japanese during the Second World War. As parties involved in the war, we share in the responsibility for the more than 20 million victims in Asia and the Pacific. Furthermore, we deeply regret having damaged the lives and cultures of the people of these regions. The trauma of this is still not healed.”
These words were not those of a single bishop. He spoke as president of the bishops’ conference, conveying the opinion of the whole conference. As mentioned above, in their messages on the 50th and 60th anniversaries of the end of the war, the bishops continued to reflect upon the issue of the Church’s responsibility before and during the war and from that standpoint have expressed their determination in favor of peace.
4. Problems such as recognition of history and the exercise of collective self-defense
Seventy years after the war, memory of it is fading along with memories of Japanese colonial rule and aggression with its accompanying crimes against humanity. Now, there are calls to rewrite the history of that time, denying what really happened. The present government is attempting to enact laws to protect state secrets, allow for the right of collective self-defense and change Article 9 of the Constitution to allow the use of military force overseas.
At the same time, we cannot overlook growing nationalism not only in Japan, but among the governments of other countries in this part of the world. As tensions rise between nations, a strong commitment to improved relations through dialogue and negotiation rather than increased militarization becomes more important for regional stability.
Domestically, the situation in Okinawa presents a particularly serious problem. Compared to the rest of the country, the number of military bases there is especially high. New base construction is underway, contrary to the wishes of the citizens of the prefecture. This demonstrates an attitude that puts priority on armaments while ignoring people and efforts to build peace.
5. Amidst the serious crises facing the world today
Viewing the world today, the tragedies of military conflict and terrorism occur over and over again in many places. In addition to conflicts between nations and ethnic groups, now violence in the name of religion makes it increasingly seem as if throughout the world dialogue has become impossible. In that situation, women and children as well as ethnic and religious minorities are especially threatened and many lose their lives.
In the face of such worldwide destructiveness, Pope Francis has expressed concern that some people seem to speak of a “Third World War” rather than making sure we do not repeat the mistakes of the past. The world faces the sorts of crises that cannot but cause people to wonder if force is the answer. What has become of respect for humanity? However, repeatedly answering violence with violence will only lead to the destruction of humanity.
The world is dominated by the globalization of companies and the financial system. Disparities continue to widen and the poor are excluded. Human economic activity is causing climate change and the destruction of biodiversity. If we wish to realize peace, this situation must change. We cannot ignore the problems of poverty and the environment that produce disparity and exclusion. We are each called upon to overcome our indifference to the world’s problems and change our lives. We cannot solve all the world’s problems at once, but we can patiently continue to work toward peace and mutual understanding.
We recall the words of Pope John Paul II in his Appeal for Peace in Hiroshima: “Peace must always be the aim: peace pursued and protected in all circumstances. Let us not repeat the past, a past of violence and destruction. Let us embark upon the steep and difficult path of peace, the only path that befits human dignity, the only path that leads to the true fulfillment of the human destiny, the only path to a future in which equity, justice and solidarity are realities and not just distant dreams.”
We are encouraged by the words of Jesus Christ, “Blessed are the peacemakers” (Mt. 5:9). Seventy years after the end of the war and 50 years after the end of the Second Vatican Council, let us renew our determination to seek peace and to work for peace. We Catholics in Japan are small in number, but in union with other Christians and along with believers of other religions and those throughout the world who wish for peace, we renew our commitment to work to make peace a reality.
February 25, 2015
Catholic Bishops’ Conference of Japan
The press coverage of the same-sex marriage case was not uniformly distinguished. Particularly problematic were reports that evangelical ministers would combat the Court’s decision by refusing to have same sex marriages in their churches. The implication was the Court decision had something to say about what happens in churches. It, of course, had zero effect on the decisions religious leaders are entitled to make and act upon in determining who can and cannot be married in their houses of worship. The Court’s decision had absolutely nothing to say about what happens in any part of the private sector. Only in rare cases, does the Constitution reach beyond the regulation of government action. Nothing in our Constitution prevents a private employer from discriminating on the basis of sexual orientation, let alone dictating to a minister who he or she shall marry.
I don’t expect that our law will ever intrude on these ministerial decisions. In a major decision last Thursday, however, the EEOC ruled that employment discrimination on the basis of sexual orientation was a form of sex discrimination in violation of Federal law. See here. It seems apparent that the decision applies to private and public employers. As a formal matter, the EEOC is obviously correct. If a man is involved with a man and is fired for it, but a woman would not have been fired, the discrimination is clearly based on the sex of the employee. The same argument was used to support the view that bans on interracial marriage were a form of race discrimination. But the EEOC did not rely exclusively on a formal argument. It observed that discrimination on the basis of sexual orientation involved sex-based assumptions, norms, and stereotypes. The agency also argued that discrimination on the basis of sexual orientation was associational discrimination based upon sex.
Unassailable as this analysis seems to be, there are reasons for concern that it may not stand up. In the same sex marriage case, the Court did not maintain that discrimination on the basis of sexual orientation was sex discrimination. Moreover, some federal courts have ruled that Congress did not intend to include discrimination on the basis of sexual orientation to be included in the concept of sex discrimination. That is probably right, but the EEOC suggests that these decisions are outdated and our conception of the nature of sex discrimination has evolved over time. I think we can expect that this issue will arrive sooner or later in the Supreme Court.
Whatever the outcome, hopefully the press will make it clear that the decision will have no impact on ministerial decisions affecting who can or cannot marry in their houses of worship.
The dissents in the same sex marriage case have been much criticized. But George Will deserves the prize for the most spectacular criticism. Chief Justice Roberts wrongly (see here) maintained that the only case supporting the majority’s decision was Lochner v. New York, a decision in 1905 invalidating a New York law setting maximum hours per day and week for bakers. Lochner has long been recognized as a dirty word. It is the poster child for what can go wrong in constitutional law. A court imposes its own economic theory in ways permitting employers to exploit workers and at the same time overrides the deliberative choices of a democratically elected body by reference to a pseudo-constitutional right.
In his syndicated column this week, George Will comes forward to claim that Lochner was rightly decided. (See here). He thinks that “America urgently needs many judicial decisions as wise as Lochner.” As Will would have it, employers have a constitutional right contractually to compel their workers to work more than ten hours per day and more than sixty hours per week. Indeed he thinks compelling this slave-like labor is a natural right. He thinks of it as freedom of contract.
It is hard to think of this as anything but an adolescent wet dream of the political right. Taken seriously, the courts in the name of freedom of contract could invalidate safety legislation, environmental legislation, corporate law, securities law, labor law, and economic regulation generally. Such a regime would constitute a massive transfer of power from the legislature to the courts. Indeed, the courts during the Lochner era did strike down scores of statutes in the name of freedom of contract while leaving others intact in an exercise of power that was difficult to reconcile from a logical perspective and destructive from a policy perspective. That’s how Lochner got to be a dirty word, and that is why none of the Justices on the Supreme Court with the partial exception of Justice Thomas have expressed the hope that decisions like Lochner should be revived. With the exception of pockets of case law (commercial speech, takings of property), the game of striking down economic legislation on liberty grounds is no longer played.
Nonetheless, George Will has a point. One of his examples involves occupational licensing: the right to pursue an occupation. One can reject wholesale declarations of economic liberty as in Lochner while recognizing that the right to pursue an occupation is particularly important and that barriers to that pursuit ought to have a reasonable justification. Instead, in many areas, licensing requirements are burdensome, excessive, and designed to benefit those who are already licensed. To take an example from a classic constitutional law case, I think it is highly dubious to claim that one has to go to law school for three years and to pass a bar exam in order to become a debt adjustor. And I doubt that the unauthorized practice of law statutes could survive a reasonable examination of many of their applications if push came to shove.
Ken Karst, a great liberal, and one of the leading, if not the leading constitutional scholar of his generation observed long ago that the right to pursue an occupation should be recognized as an exception to the general notion that the courts should stay out of the economic liberty business. He was right then. And his point is right now. But its time has not yet come. The world will be better off when it does.
This is cross-posted from the Hill with Bob Hockett's permission.
Greece's current travails offer many lessons, but they are not those that some seem to believe. This is not a story about corruption or profligacy, even if there has been some of that, as there always is. Nor is it a matter of "Greek vice" and "German virtue." It is a story about incomplete economic — hence political — unity among states. And this is a story that not only Europeans, but Americans and others, all should take heed.
Begin with a fundamental datum: Some European economies — particularly those in the north — have long been commercial and industrialized. Others — particularly those in the south — remain to this day much more traditional and agricultural in character. This means that the northern economies produce and provide more in the way of high value-added, manufactured goods and services, while the southern economies produce or offer more in the way of low value-added, agricultural produce and tourism.
Now ordinarily, this state of affairs will result in northern currencies, like the goods that one purchases with them, being in high demand. Southern currencies, like that which one purchases with them, will be in correspondingly lower demand. And now for the kicker: This means in turn that if north and south share a currency, it will effectively be undervalued as a northern currency and overvalued as a southern one. A Deutschemark issued by Germany alone, in other words, would tend to be worth more than a euro that Germany issued in tandem with Greece, while a drachma issued by Greece alone would tend to be worth less.
But now note what this means: It means Germany will be able to export much more than it otherwise would, since its currency — the euro — is undervalued as a German currency. It also means Greece will have much more trouble exporting than it otherwise would, since its currency — the euro — is overvalued as a Greek currency. So Germany will tend to rack up huge trade surpluses, and Greece will tend correspondingly to incur deficits and debts — all thanks to the nature of their shared currency in relation to their very different economies.
This situation is not unfamiliar. Indeed, substitute "New York" for "Germany" and "Mississippi" for "Greece," and you have essentially described matters in the U.S. if there is a single currency — like the dollar — shared by all of its states. Why, then, is Mississippi not in the same straits as Greece, with New Yorkers clucking complacently about their thrift and hard work in comparison to Mississippi's profligacy?
The answer comes in three words: fiscal transfer union. The U.S., unlike the European Monetary Union (EMU) is not only a monetary union sharing one currency, but a fiscal union sharing one federal budget. The "transfer" aspect of that union takes the form of Mississippians (and others, primarily, though not solely, in the South) receiving more than one dollar in federal outlays for every dollar they pay in federal taxes. This in turn is made possible by the fact that New Yorkers (and others, primarily, though not solely, in the North) receive less than one dollar in federal outlays for every dollar they pay in federal taxes. In effect, funds are continually transferred from more commercial and industrial U.S. states to less commercial, less industrial U.S. states.
In the EMU, the same thing is happening, save there, the transfers take the form of loans rather than simple outlays. And therein lies the central flaw at the core of the EMU. The U.S. would suffer the very same travails as the EMU right now were New Yorkers, say, to be lending to Mississippians rather than transferring funds to them via the federal budget.
Why is it that the Europeans don't see this and act accordingly in order to salvage their union? Why don't they adopt a fiscal union, in other words, to stabilize their monetary union? Ultimately, it comes down to whom you are willing to include in your uses of the word "we." Here in the U.S., New Yorkers and Mississippians are evidently willing to use the word "we" in a manner suggestive of their constituting one nation. This is a remarkable accomplishment, given our history, and heaven knows we worked hard to get here. Germans and Greeks aren't quite there yet.
What, then, should be done? Here is what looks to be the most reasonable and feasible near-term strategy. First, creditor members of the EMU must offer debt restructuring — and even some debt forgiveness — in the near term for distressed debtor members like Greece. This should be without austerity-forcing conditions, since the latter simply shrink the distressed economies further and make debt repayment that much less likely. Immediate term debt restructuring and even forgiveness will amount to one-off transfers of the type I've described, which in the long run will have to become a central feature of the EMU if it is to endure.
Second, in the longer term, the EMU is going to have to do one or the other of two things. It can become a fiscal transfer union like the U.S. as described above, or it can divide itself into two or more eurozones that make better sense than the present one absent a shared federal fisc. We might envisage a northern eurozone — call it "Hanseatica," for example — sharing a northern euro, while a southern eurozone — call it "Mediterranea" — shares a slightly less valuable southern euro. A measure like the latter can be expressly treated as temporary, until such time as either fiscal integration or developmental convergence is achievable.
There is one more lesson that Americans, in particular, should draw from the eurozone's current travails, having to do with our relations with China. Owing to Chinese currency practices, there is effectively a single currency shared by the U.S. and China: the dollar, as kept artificially overvalued via Chinese currency trading activities on global foreign exchange markets. This currency is overvalued as an American currency, and undervalued as a Chinese currency, meaning that U.S. exports are artificially overpriced relative to Chinese exports. This in turn means that the U.S. continues to rack up trade deficits and bleed out manufacturing jobs of the kind that once sustained our great middle class.
If the U.S. is to avoid coming to look more like Greece in the future, it must do something about this. And what it must do is not what misguided austerians say Greece must do — i.e., cut federal spending and depress economic growth even further. No, what it must do is what Greece and the EMU more generally must really do: It must either end the currency arrangement pursuant to which China manipulates the dollar away from its natural value so as to advantage its own manufacturers at the expense of American industry, or it must declare a de facto transfer union by declaring future illicitly incurred debts to China to be "grants" instead.
Hockett, a regular contributor to The Hill, is Edward Cornell Professor of Law at Cornell University, senior consultant at Westwood Capital Holdings, LLC and a fellow at the Century Foundation.
Senator Bernie Sanders of Vermont is this summer's campaign phenomenon. Consider the crowds he is drawing. In Madison, Wisconsin, he recently attracted a crowd of nearly 10,000 raucous, enthusiastic supporters. This on a beautiful summer's evening when many Wisconsinites are at the lake or on vacation. And in Iowa, he drew 2,500 equally fervent supporters in one of the biggest campaign events to date in that early-caucus state.
Why? Why such success and why so soon? I will suggest that Bernie Sanders has tapped into something very deep in the American psyche -- the realization that America is at its greatest, and at its best, when it is standing for progressive values.
The American progressive movement is not a recent creation. It is now over a century old and tens of millions of Americans lead better lives because of its successes. Let's take a look at just a few of its accomplishments. In the early 1900's, child labor was rampant, and a blight on the American landscape. Progressives in Congress enacted child labor laws in the 1910's, which were struck down as unconstitutional by a conservative Supreme Court in Hammer v. Dagenhart (1918). It took until Franklin Roosevelt's New Deal, and a more progressive Supreme Court, before this cruelest form of exploitation was finally banished by law.
Think also about Social Security. It was created by progressives in the New Deal to address the crisis of poverty among the elderly. Countless families had lost their means of support as the banks failed and the economy ground to a halt under Herbert Hoover. Families cracked and fragmented under the strain, with individual family members going their separate ways. The old social safety nets of home, and neighborhood, and private charity utterly failed.
It took a progressive administration, Franklin Roosevelt's, to rescue the day. Over the complaints of Republicans, who gloatingly predicted that it would soon bankrupt the nation, Franklin Roosevelt signed the Social Security Act of 1935 into law. Eighty years and counting, and Social Security is still going strong.
It was the progressive movement in the years after World War II that created the infrastructure that allowed millions to enjoy the American dream. The post-World-War II labor movement brought a middle-class standard of living to America's working class. Great American state university systems -- the University of California system, and the University of Wisconsin -- were tuition free. The University of California only began to charge tuition after Ronald Reagan became that State's governor.
And let us not forget the cause of civil rights. It was the progressive President Lyndon Johnson who shepherded the 1964 Civil Rights through Congress while the conservative Barry Goldwater plotted with Southern segregationists like Strom Thurmond to move the solid South from the Democratic to the Republican column. And we should not forget that it was Lyndon Johnson who signed the Voting Rights Act of 1965 into law, as well as the Medicare Act, even as Republicans complained that it amounted to socialized medicine.
So why is Bernie Sanders so popular? Perhaps, I will submit, it is because many see this progressive legacy to be at grave risk. The Republican nominee for Vice President in 2012, Paul Ryan, sought to convert Medicare into a voucher system as part of his Orwellian Path to Prosperity budget. And what about voting rights? In state after state, Republican-controlled legislatures have enacted so-called "voter identification laws" on the pretext that there is a crisis of ineligible voters casting ballots. There is no crisis. It is entirely imaginary, trumped-up. The real purpose behind these statutes, according to civil-rights organizations and the ACLU, is nothing less than voter suppression.
It is this perception of a gathering threat to hard-won gains that is stirring a popular response in the summer of 2015. And Sanders' platform seems ideally tailored for this moment. Let us look at a few examples: He supports Congressman John Lewis's Voting Rights Amendment Act, which seeks to restore legislatively portions of the Voting Rights Act invalidated by the Supreme Court in 2013. And he has harshly condemned voter ID laws on the basis of statistical evidence that turnout is reduced in the states that have the most restrictive laws (such as Kansas and Tennessee).
Or consider health care. Senator Sanders recognizes that health care is a fundamental human right. It is recognized as a non-negotiable right by virtually every developed nation in the world. And it is not surprising, perhaps, that these nations all have much healthier populations than America. In 2013, the World Health Organization ranked longevity in the United States at 34th, tied with, among other nations, Cuba. Chile, Slovenia, even Greece, have greater life expectancy than the United States. We can do better.
In contrast to the Republicans, who only want to repeal the Affordable Health Care Act, Sanders has proposed a "Medicare For All" program designed to improve access to health care and enhance Americans' good health. Even under the Affordable Care Act, far too many people are uninsured or receive inadequate attention. We need to remember that a healthier America is a more prosperous America.
And then there is the matter of economic justice. No one in the United States who works forty hours a week, Sanders has declared, should live in poverty. And today, there are millions who do. Bernie Sanders has called for moving the minimum wage to fifteen dollars an hour. Right-wing opponents will, of course, do what they have done for eighty years -- complain that it will kill jobs. It hasn't and it won't.
Sanders is running on other issues, too, that would greatly improve the lives of ordinary Americans -- bank reform, college affordability, and the reversal of that egregious judicial error, Citizens United.
There is a breeze stirring this summer. American progressives perceive that the accomplishments of the last century are in jeopardy. At the same time, aspirations are high. Idealism and faith in our common abilities, after all, are what built the United States into a great nation. Will Bernie Sanders win the Democratic nomination for president? It is far too early to say. Will he reignite a movement for greater social, racial, and economic justice in America? Perhaps he already has.
The opinions in Obergefell v. Hodges have been much discussed. The dissents claim that Justice Kennedy’s majority opinion violates principles of self-government by imposing its subjective will to resolve an issue that should be resolved in the democratic process. Much commentary rightly observes that the dissenters believe in self-government except when they don’t, e.g., when they override the will of elected representatives who pass affirmative action programs or campaign finance legislation.
The dissenters would respond that those instances are different because fundamental constitutional rights were at stake in those cases. But the majority in Obergefell also concluded that fundamental constitutional rights of due process and equal protection are implicated in the state’s denial of same-sex marriage. The dissents deny the existence of a liberty right because same-sex marriage is not deeply rooted in the nation’s traditions. The majority argues that this is the wrong standard. According to Justice Kennedy, the Due Process Clause includes most of the Bill of Rights and in addition certain personal choices central to individual dignity and autonomy including intimate choices that that define personal identity and beliefs. In support of Justice Kennedy’s position, it must be said that when the Court determined that birth control was constitutionally protected, it did not ask whether a right to birth control was constitutionally protected. It asked whether the Connecticut law in question violated a right to privacy. And when the Court found that a legislature could not criminalize abortion in Planned Parenthood v. Casey and could not criminalize same-sex relations in Lawrence v. Texas, it did not ask whether the right of abortion or the right of same-sex relations was deeply rooted in the nation’s traditions. Instead it essentially asked whether the choices at stake were central to personal dignity and autonomy.
To be sure, the Court in other cases has asked whether a particular right is deeply rooted in the nation’s tradition instead of a more general right, but the shrill claims by Chief Justice Roberts that the approach taken in Obergefell is supported only by Lochner v. New York (maximum hour statute unconstitutional denial of due process) lack integrity. It is simply preposterous. Lack of integrity in Supreme Court opinions is not unusual. But Justice Scalia’s rhetoric in his dissent was over the top even for him. Nonetheless, I do not join with one commentator (Eric Segall) who apparently thought this was the final straw and called for his resignation. It seems to me that disrespectful dissents are less sinful than hypocritical opinions.
Jonathan Turley worries that the use of the term dignity as a basis for constitutional rights could be used to limit First Amendment rights. See here. He supposes that hate speech might be limited in ways that are currently unconstitutional. I wish he were right. If he were, we would not automatically assume that speech should be privileged not only over racial equality, but also over privacy or the right to a fair trial. Free speech flows from human dignity, but so does racial equality, privacy, and the right to a fair trial. The rights should be balanced against each other; the outcome should not be presupposed in favor of free speech. I do not expect this to follow from Obergefell, but our law would be better if it did.
In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?
This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.
In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.
As I suggested in my last post, one of the most significant insights in Kennedy's opinion today is his acknowledgment that many opponents of same-sex marriage, "reach that conclusion based on decent and honorable religious or philosophical premises.” Compare that to the very different language in Loving v. Virginia: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [laws banning interracial marriage]. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."
At the same time, though, it might now be incumbent for opponents of same-sex marriage, however much they disagree with today's decision, at least to acknowledge that it is not an attack on marriage, but rather an effort to ennoble it.
In a more practical vein, that line in Kennedy's opinion might have important repercussions in the exemption cases that are sure to continue to come down the pike. That is to say, it will be harder to argue that the assorted bakers and the like who decline to offer services explicitly related to same-sex marriages are merely ignorant or arrogant "bigots."
Justice Kennedy’s opinions in gay rights cases have always reached for rhetorical heights, and some critics confuse that with mushy thinking. But his decision in Obergefell is compelling precisely because it avoids some of the cheap clichés that have marked many prior lower court opinions declaring a right to same-sex marriage. (I've critiqued some of those earlier efforts in my own prior work, including "A Holy Secular Institution," available here, and "Natural Law, Equality, and Same-Sex Marriage," available here.)
Justice Kennedy, writing for the Court, does not claim that opponents of same-sex marriage are merely bigoted. To the contrary, he acknowledges that many opponents “reach that conclusion based on decent and honorable religious or philosophical premises.” Justice Kennedy does not hold that bans on same-sex marriage are simply “irrational” as some other judges have. Instead, he relies on the fundamental right to marry.
Other courts have only thought it possible to uphold a right to same-sex marriage by hollowing out the significance of marriage itself. But Justice Kennedy does just the opposite. Thus, while the Massachusetts Supreme Judicial Court insisted that civil marriage is a “wholly secular institution,” a mere civil contract, Justice Kennedy emphasizes the “centrality of marriage to the human condition” as reiterated in “untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths.” Similarly, Justice Kennedy does not dismiss the link between marriage and procreation. Instead, he holds that one reason “for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education” (while also insisting that the exercise of the right in particular cases cannot be conditioned on the ability or willingness to have children.)
More generally, Justice Kennedy argues that “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.” And, similarly, near the end of the opinion, he writes: “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”
This is, in short, in many of the best respects, a deeply “conservative” opinion, upholding not only the right to same-sex marriage but the abiding constitutional, cultural, religious, and moral significance of marriage itself.
By Bill Quigley. Bill teaches law at Loyola University New Orleans and can be reached at firstname.lastname@example.org
Police kill a lot of unarmed people. So far in 2015, as many as 100 unarmed people have been killed by police. Here are fifteen of the most outrageous reasons given by police to justify killing unarmed people in the last twelve months.
First, a bit of background. So far in 2015, there have been around 400 fatal police shootings already; one in six of those killings, 16 percent, were of unarmed people, 49 had no weapon at all and 13 had toys, according to the Washington Post. Of the police killings this year less than 1 percent have resulted in the officer being charged with a crime. The Guardian did a study which included killings by Tasers and found 102 people killed by police so far in 2015 were unarmed and that unarmed Black people are twice as likely to be killed by police as whites.
One. He was Dancing in the Street and Walking with a Purpose. On June 9, 2015 an unarmed man, Ryan Bollinger, was shot by police in Des Moines after “walking with a purpose” towards the police car after he exited his vehicle after a low speed chase started when he was observed dancing in the street and behaving erratically. The deceased was shot by the police through the rolled up cruiser window. The murder is under investigation.
Two. Thought It Was My Taser. An unarmed man, Eric Harris, ran from the police in Tulsa Oklahoma on April 2, 2015. After he was shot in the back by a Taser by one officer and was on the ground, another 73 year old volunteer reserve officer shot and killed him, all captured by video. While dying he was yelling that he was losing his breath, to which one of the officers responded “F*ck your breath.” The police said the officer thought he was shooting his Taser and “inadvertently discharged his service weapon.” The officer has been charged with second degree manslaughter. Running away from the police so often provokes police overreaction that the aggressive police response has several names including the “foot tax” and the “running tax.”
Three. Naked Man Refused to Stop. A naked unarmed mentally ill Air Force Afghanistan veteran, Anthony Hill, was shot and killed March 9, 2015 by DeKalb County Georgia police after police said he refused an order to stop. The killing is under investigation.
Four. Not Going to Say. On March 6, 2015 Aurora Colorado police shot and killed unarmed Naeschylus Vinzant while taking him into custody. For the last three months, while the investigation into the killing continues, the police have refused to say what compelled the officer to shoot Vinzant.
Five. Five Police Felt Threatened by One Unarmed Homeless Man. March 1, 2015 Los Angeles police shot and killed an unarmed homeless man Charly Leundeu Keunang after five officers went to his tent and struggled with him. One unarmed homeless man threatened five armed LAPD officers? Los Angeles police have killed about one person a week since 2000. An investigation is ongoing.
Six. My Taser Didn’t Work. On February 23, 2015, an unarmed man, Daniel Elrod, was shot twice in the back and once in the shoulder and killed by Omaha Nebraska police after he tried to climb a tree and jump a fence to escape police who suspected him of robbery. Police said their Taser did not work, he ignored their demands to get down on the ground, he did not show his hands, and they felt threatened. Video was not made available and the officer later resigned. This was the second person this officer killed. No criminal charges were filed.
Seven. Armed with a Broom. Lavall Hall’s mother called the police in Miami Gardens February 15, 2015 and asked for help for her son who was mentally ill. Lavall Hall, five foot four inches tall, walked outside with a broom and was later shot and killed by police who said he failed to comply with instructions and engaged them with an object. The killing is still under investigation.
Eight. Throwing Rocks. On February 10, 2015 an unarmed man, Antonio Zambrano-Montes, was fired at 17 times and killed by police in Kennewick, Washington. A video of his killing has been viewed more than 2 million times. Officers said he had been throwing rocks at cars, ran away and then turned around.
Nine. Taser Worked but He Didn’t Stop Moving. On February 2, 2015, a Hummelstown Pennsylvania police officer shot unarmed David Kassick in the back with a Taser and when Kassick went to the ground on his stomach, then shot him twice with her gun in the back, killing him. The officer said Kassick, who was running away from a traffic stop, was told to show his hands and not move but continued to try to remove the Taser prongs from his back and the officer thought he was reaching for a gun. The officer has been charged with homicide.
Ten. Car going 11 Miles an Hour was going to Kill Me. Denver police fired 8 times at unarmed Jessica Hernandez, 17, who was killed January 16 after being hit by four bullets. The police said she drove too close to them when she was trying to get away and may have tried to run them down as she tried to drive away so they shot into the windshield and driver’s windows. The police said the car may have reached 11 miles per hour in the 16 feet it traveled before hitting a fence. The police were not charged.
Eleven. Armed with a Spoon. Dennis Grigsby, an unarmed mentally ill man holding a soup spoon, was shot in the chest and killed in a neighbor’s garage by Texarkana Police December 15, 2015. The killing is under investigation.
Twelve. Armed with Prescription Bottle. Rumain Brisbon, a 34 year old unarmed man, was shot twice and killed by police in Phoenix on December 2, 2014, after he ran away, was caught and was in a struggle with the officer who mistook a prescription pill bottle in Brisbon’s pocket for a gun. The police officer was not charged.
Thirteen. It Was an Accident. On November 20, 2014, a New York City police officer fired into a stairwell and killed unarmed Akai Gurley. The officer, who was charged with manslaughter, is expected to say he accidently fired his gun.
Fourteen. Don’t Mention It. On November 12, 2014, an unarmed handcuffed inmate was shot multiple times in the head, neck, chest and arms by officers while fighting with another handcuffed inmate in the High Desert State Prison in Carson City Nevada. His family was not told and did not know he had been shot until three days later when they claimed his body at a mortuary.
Fifteen. Armed with Toy Gun. John Crawford was unarmed in a Walmart store in Beavercreek Ohio on August 4, 2014, when he picked up an unloaded BB gun. When officers arrived they say they ordered him to put down the gun and started shooting, hitting him at least twice and killing Mr. Crawford. In a widely viewed video Mr. Crawford can be seeing dropping the BB gun, running away and being shot while unarmed. Likewise, Cleveland police shot and killed an unarmed 12 year old boy, Tamir Rice, who was playing with a toy pellet gun on November 22, 2014. Police said they shouted verbal commands from inside their vehicle in the two seconds before they shot him twice. In both these cases, the police story of shouting warnings and orders looks quite iffy at best.
These are the responses of police authorities who face less than one chance in a hundred of being charged when they kill people, even unarmed people. These outrages demand massive change in the way lethal force is used, reported, justified and prosecuted.
It is all to the good that the Confederate flag is now being seen as odious and hateful by most Americans. It truly has been a symbol of hate and injustice going all the way back. In the Civil War it was used to rally slave-holders and their sympathizers to battle. And in the segregationist South of the 1950's and 1960's, it was revived as a means of expressing resistance to the cause of civil rights and equality. It is time to strike those colors once and for all, remove them from the South Carolina statehouse grounds, expunge them from the Mississippi state flag, and banish them from any and all places of honor in American society.
But we should go deeper than asking for symbolic change, as important as that is. I'd like in particular to call attention to a troubling development found mostly in deep red, Republican states, and that is the unholy marriage between Confederate ideology and the Second Amendment.
The bond that unites Confederate ideology and the Second Amendment is the idea of "nullification." This is the belief that the states are the ultimate arbiters of what is or is not constitutional and that the states are thus always free to ignore federal law. States and not the courts, on this warped view of the Constitution, judge what is or is not constitutional.
This ideology has a long and deep and ignoble history. We might begin with John Taylor of Caroline (1753-1824), whom Garry Wills called "the principal theorist of nullification." He was a lawyer and a planter who sought to insulate his home state of Virginia from what he feared as early as the 1790's to be the growing, threatening powers of the national government.
The best way to defend Virginia, Taylor proposed, was to ensure that the states were the final word on what the Constitution meant. States, he argued, always retained the right, if not the responsibility, to disobey the federal government where they believed the federal government overstepped constitutional limits. Taylor meant by this doctrine to strengthen and make secure the system of slavery, from which he personally profited, since Virginia and the other Southern states would always be free to declare null and void any federal law infringing on slave-holders' "rights."
In the 1820's and 1830's, this proposal was worked into a full-blown constitutional theory by John C. Calhoun (1782-1850). Calhoun opposed the federal tariff that was then threatening the profitability of South Carolina's plantation-based way of life. Fearing the implicit threat to the slave-based economy, Calhoun insisted that South Carolina might declare the tariff unconstitutional.
South Carolina tried to do just that in 1832, but backed off this ledge when confronted with federal military intervention. South Carolina climbed back onto that ledge in 1860/1861 when it -- and other Southern states -- seceded from the Union.
These states acted as they did because they believed that the states might judge the federal government and withdraw from the Union as a last resort. Nullification, in other words, was a prominent feature of the constitutional theory that justified the Confederacy. It was a doctrine finally repudiated by the Civil War and by the ratification of the Fourteenth Amendment in 1868.
What does this history have to do with the Second Amendment? Simply this: Nullification, a concept that should have died a century and a half ago, has been resurrected from the tomb by gun-rights extremists and is triumphing in legislature after legislature in America's deep-red states.
Consider Kansas. Kansas under the leadership of Governor Sam Brownback, is well known for its extremist politics. Brownback's fiscal policies have wrecked the Kansas economy, Kansas education, and much else. Brownback has sought steady reductions in the state income tax, substituting for it "the highest tax on food in the nation." And what does Kansas have to show for its regressive fiscal policy? While most regions of the United States are enjoying economic recovery, Kansas is not. In May, 2015, a report showed that Kansas lost "nearly 4,000 jobs . . . trailing the national trend."
That is bad enough, a tragedy for the Kansans who are suffering under Brownback's misrule. But just as bad is the gun legislation he has signed. In 2013, the state legislature enacted the "Second Amendment Protection Act." By its terms, the legislation ostensibly prohibits the federal government from enforcing federal gun control laws on Kansas soil with respect to certain classes of weapons.
Alright, you might say, Brownback is an unrepentant extremist. But, unfortunately, Kansas is not an outlier. In recent years, other red states have followed a similar path. Bruce Otter is the 70-something governor of Idaho. He has spent a lifetime in Idaho politics, he is a staunchly conservative Republican in tune with his constituents, but he has never caused anyone to question whether he is tethered to reality. He is not typically prone to conspiracy theories or the other fever dreams that haunt the far right.
But even Bruce Otter has recently felt politically compelled to sign nullification legislation declaring that the federal government lacked the constitutional authority to enforce gun-control legislation within Idaho's borders. And, really, he had little choice. The Idaho nullification statute passed the legislature unanimously.
For sure, in any constitutional showdown, neither Kansas, nor Idaho, nor the other red states that have embarked on this fool's errand will prevail. The federal government has the authority to ensure that the laws it enacts are duly enforced in all fifty states.
The neo-nullificationist movement, however, represents a dangerous trend. Grassroots conservatism is no longer part and parcel of mainstream American life. For there is nothing about nullificationist ideology that represents American values. It is the failed constitutional theory of a treasonous movement -- Southern secession. Its modern-day resuscitation can only be seen as a kind of existential alienation on the right.
I am grateful to see Nikki Haley and Mitt Romney and other Republican leaders finally take a stand on the Confederate flag. It is an unambiguous symbol of hate and sedition and needs to be retired to a museum where its true place in American history might be explained.
But Republicans must go beyond the flag debate to confront the simmering ideological stew on the far right. The idea of nullification in its own way is equally odious. It is a failed constitutional theory that should likewise be banished to a museum of legal antiquities. It has no place in modern-day America. It is frightening that such an idea has captured the imagination of so many Republican legislators. It is an idea that the national GOP leadership should repudiate, and soon. Jeb Bush, Scott Walker, and the rest of the candidates, we're talking to you.
Although he agrees with the result, Cornell Law Professor, Michael Dorf exclaims that Justice Breyer’s majority opinion in the recent Texas license plate case (Walker v. Texas Div. Sons of Confederate Veterans) is “so badly reasoned that it cannot be taken seriously.” See here. In that case, Texas refused an application for a license plate with a Confederate flag on the ground that it was offensive. The relevant part of the licensing scheme was one in which “sponsors” submitted proposals for new specialty license plates including a draft design and a nomination for the government agency that would receive funds derived from the plate. The relevant statute provides that the Department of Motor Vehicles Board shall design the license plate in consultation with the applicant. It may refuse the proposal if the contents of the plate would be offensive to any member of the public or if the nominated agency refuses the funds or the proposed use of the funds would be illegal. In this case, the Texas Board refused to issue the plate exclusively because many members of the public found the plate to be offensive.
Under current law, it makes a world of difference whether speech is considered governmental or private. If government runs a school, it can favor astronomy over astrology. In other words, when government speaks, it may favor some viewpoints over others. But suppose a school district intentionally opens up its classrooms in the afternoons to public groups. In First Amendment lingo, it has created a designated public forum. It cannot exclude groups on the basis of the point of view they take. So the astrology society has as much a right of access as does any other group. And because racist speech is protected under the First Amendment, the Nazis and the Klan can gain access as well. So too, even though government may not establish a religion, religious groups can gain access to the schools as well. Government is not endorsing their speech by permitting access to them on a non-discriminatory basis.
The dissent argued that the specialty license plates were a designated public forum. The Texas exclusion of the Confederate flag license plate they suggested is the equivalent of a school district saying we will throw open our afternoon classrooms to all public groups except those we find offensive.
Justice Breyer, for the majority, argued that the license plates were government speech. But Texas had accepted license plates saying Notre Dame, the Florida Gators, and Get it sold with REMAX. No one in his or her right mind would think that the government of Texas was speaking on those plates. Yes, Texas may have co-participated in the design of those plates, but the resulting message is that of the sponsor. If the theory of the designated public forum makes any sense, Texas should not be able to let all messages in except those that are offensive. Texas maintained that it had a right not to be associated with the racist message of the Confederate flag, and Breyer agreed. But if that is correct, the school district ought to be able to say, we don’t want to be associated with the Nazis. We don’t want people to think we are willingly associating with them.
A number of commentators have said that the speech here is neither governmental nor private, but joint. See, e.g., here. Nonetheless, I would think the principle of the designated public forum would continue to apply. Government can’t approve all speech except the speech it finds offensive. Perhaps though Justice Breyer’s opinion will come to be read in a narrower way - as an opinion about race.
American protection for racist speech is out of step with the rest of the world. In my view, it is nothing to be proud of, but I do not expect it change. On the other hand, there might be room to say that racist speech is not to be treated the same as all other speech in all contexts. It seems absolutely preposterous that the Klan and the Nazis would be able to use public school classrooms. And one can appreciate Justice Breyer twisting the law to keep a Confederate flag off of Texas plates (though he says a bumper sticker with a flag would be permissible).
The Confederate flag is seen by some as a symbol of Southern pride without reference to race, and is seen by others as a symbol of racism. In fact, it is both. If we are serious about equal protection, however, no state should be permitted to display that flag.
It is a line repeated with tiresome regularity in right-wing circles: Pope Francis has no business proposing solutions to the crisis of global climate change. He is not a scientist, they say. He should stick to morals and to matters of faith and doctrine.
Pope Francis' defenders point out that climate change is a moral question. If the destruction of the planet's ecological health is not a moral concern, then what is? But while climate change is certainly a moral issue, it is something much larger and more significant than that. It is a threat to the common good of the world It is menacing the globe's well-being and even the integrity of nations. There are the island nations, of course: the Maldives, Fiji, the many islands and atolls of Micronesia, of course.
But even the Cape Verde Islands and Tonga are at grave risk. It is not a coincidence that Pope Francis conferred the rank of cardinal on Arlindo Gomes Furtado (Cape Verde Islands) and Soane Patiti Paini Mafi (Tonga). They are the first cardinals to represent these small nations, but they have clearly been given a responsibility to the world: to stand at the front line of looming climate catastrophe and carry the message of a world at risk to all of humanity.
Even the world's superpowers are not immune from the effects of climate change. Climate change is disrupting agriculture and water supplies in China. It is melting the Siberian permafrost and releasing thousands of tons of trapped methane in Russia. And it is eroding American coastlines and threatening harbors and beaches close to home. There is no question -- the world is at risk.
Pope Francis now means to address this growing crisis and he intends to do so in the name of the common good. As we look forward to his message, we should understand something of what is meant by the "common good" as Catholics use this term. For I predict that we shall hear this term mentioned frequently in the weeks and months ahead.
The "common good" is a term that has an ancient meaning and Popes have long invoked that ancient heritage. The idea of the common good can be traced as far back as Aristotle. Aristotle maintained that there were certain concerns so widely shared that it was uniquely the community's responsibility to address them. Thus, the community was supposed to see to the common defense, prosecute crime, and ensure that the marketplace operated fairly and to the benefit of all. The community should aim, in other words, at creating the conditions that allowed its members to lead "the good life."
This is not the way contemporary Americans view politics. Politics, as it is widely understood and practiced today, is about satisfying individual interests and wants. Politics in the United States is about short term fixes and quick solutions. It is missing the sober, long-term thinking that comes with reflection on the common good. Just from the standpoint of thinking about problem-solving, I suspect Pope Francis will have some important things to say.
When Pope Francis speaks about the defense of the common good later this week, he will, furthermore, be joining a long line of pontiffs who have used this mode of reasoning to advocate for a better world. The modern papacy might be said to have its origin with Leo XIII (1878-1903). Leo inherited a papacy in deep disarray following Pope Pius IX's military defeats and the loss of the papal states. But Leo had the foresight to realize that the papacy might be rebuilt, not on geographic ambitions or political expedience, but as the conscience and moral voice to the world.
Leo XIII most famously appealed to the conscience of the world in his 1891 encyclical Rerum Novarum (best translated as "On Revolution"). Writing near the end of the Industrial Revolution, he feared a death struggle between two opposing camps: the plutocratic captains of industry against socialism. Leo sought a middle ground, most especially by stating a vigorous case for the rights of labor. This much, he said, was demanded by the common good.
Subsequent popes made use of similar arguments, especially on the questions of economic development and justice. St. John XXIII was especially emphatic on these themes. In Mater et Magistra (1961), good Pope John endorsed the modern welfare state: nations today, he asserted, must provide social security and disability for those too old or otherwise unable to work; and they must also commit to ensuring the well-being of workers and farmers.
Pope Paul VI and Benedict XVI both fit firmly within this tradition begun by Leo and advanced by John XXIII. In 1967, Paul VI promulgated Populorum Progressio -- on Human Progress. Recognizing the breakdown of traditional societies, Paul recommended building just social structures to assist in the transition to modernity. Education, just and fair wages, the promotion of human development and flourishing, these were the goals Paul VI called on the world to meet. "Freedom from misery" (para. 6) was his ambition. And in Caritas in Veritate ("Love in Truth," 2009), Pope Benedict XVI warmly restated Paul's lofty ideals.
All of these documents were issued in the name of a global common good. Like his predecessors, Pope Francis sees himself as uniquely empowered to explain and defend the common good. What he is about to do, in other words, is not revolutionary. Popes have long spoken in the way that Francis is about to. But while his defense of the common good is traditional, he is expanding its focus. His vision now takes in the whole question of planetary health.
And, truly, global climate change presents questions about the common good in new and powerful ways. Climate change affects all alike. It crosses boundaries. It threatens not merely humanity but other species and forms of life. The "common" in common good, in other words, is about to receive its most expansive definition -- now encompassing not merely local or national communities, but the entire world.
I expect this week to see Pope Francis reinvigorate the long-standing practice of Popes to speak constructively about the common good. Let us hope it is to good effect.
The recent case of Elonis v. United States involved the publication by Elonis of threats on a Facebook page (dressed up as rap lyrics) directed against his wife, co-workers, a kindergarten class, and members of law enforcement. Elonis argued that the First Amendment protected his rap lyrics, e.g., “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.”
But the Court avoided the First Amendment issue by concluding that the jury instructions were defective because they authorized conviction if the communication would cause a reasonable person to believe a threat had been made regardless of the speaker’s intent. The Court ruled that negligence was an insufficient standard for a criminal statute. (Someone should tell those imprisoned for negligent homicide). Without reaching the First Amendment issue, the Court stated that the intent to communicate a threat or the knowledge that the message would be received as a threat would be sufficient under the statute. The Court did not decide whether recklessness as to whether the message would be received as a threat would be sufficient under the statute. But it did indicate that wrongdoing should be conscious to be criminal.
I leave aside whether Elonis could have been so clueless as to be unaware that his communications would be received as a threat. In my view, Elonis would be convicted under any of the standards on offer. Moreover, the claim that negligence is itself culpable deserved more discussion. Seana Shiffrin has argued that the picture of negligence as just a mistake is often misleading. People often intentionally engage in behavior creating risks for others. In addition, when people make mistakes, it is often the case that they have deliberately failed to cultivate habits that would minimize the possibility of mistakes.
What of the First Amendment issue not reached by the Court? There are at least three factors: the subjective state of the speaker (including purpose or knowledge), an objective standard determining whether the message contained a threat, and the subjective state of the person threatened. In my view two out of three are enough. If the speaker intends a threat or believes the message will be received as a threat and a reasonable person would perceive it as such, it should not matter that the person threatened is unperturbed. If the person intends a threat and the victim perceives it as such, it should not matter that a reasonable person would not.
Suppose, however, that the speaker does not have the purpose to threaten or the belief that it will be received as a threat, but a reasonable person would recognize the words to threaten and the victim perceives the words to be threatening. I suggest that a person who directs language reasonably thought to be a true threat and experienced as a true threat can reasonably be subject to criminal charges without violating the First Amendment. There will be those who will wring their hands over the “chilling effect.” But some chilling effects are desirable and one of them is to avoid language which might reasonably be perceived as a true threat directed at a targeted person.
The Court did not reach the First Amendment issue in the third scenario, but I read the opinion to suggest that it would protect the speaker in that context and perhaps in the context of reckless behavior. In other words, I have no confidence in the Supreme Court’s ability to recognize that sometimes there is no war between the Constitution and common sense.
What the power of positive thinking may have begun to lose by the late 1990s in terms of political stridency, it gained in terms of biomedical responsibility. More than anything else, this respectability was gained through the increasingly firm identification of positive thinking with the placebo effect. Between 1997 and 2000, there appeared no fewer than five academic books on the placebo effect (one of which I edited)…. The main argument offered by the new literature was that the placebo effect was important above all for what it taught us about self-healing. It was not just a trick; it produced real (physiologically discernible) effects….—Anne Harrington
The placebo effect depends on the art of deception (perhaps even ‘self-deception,’ as suggested in what follows). It’s certainly possible that psychotherapy, in part, relies on this, or at least an analogous process, as Jon Elster argues in Sour Grapes (1983):
“How are we to reconcile the facts—or rather impressions—that (i) there is a great deal of successful therapy, (ii) therapists believe that a good theory is essential for success and (iii) very little of the variance in therapeutic success is explained by the therapist’s choice of one theory rather than another? [I don’t think this necessarily means that ‘anything goes,’ but that’s an argument for another day.] Often the theory tells the therapist to bring about some intermediate state (analogous to the buried treasure [from La Fontaine’s fable of the laborer and his children]) as an indispensable stepping stone to the final goal of mental health (corresponding to wealth in the fable). In psychoanalysis, for instance, it is argued that the intermediate state of insight or ‘Bewusstwerden’ is required for the final goal of ‘Ichwerden’ to be realized. My suggestion is that in therapy the final goal is not realized instrumentally through the intermediate state, but as a by-product of the attempt to bring about that state. Moreover, there may be several, different intermediate states that, if pursued seriously, can lead to this outcome. Crudely put: the therapist must believe in some theory for the therapeutic activity to seem worth while, and it will not be successful unless he thinks it worth while. Therapist and patient are accomplices in a mutually beneficial folie à deux.”
So, should a psychotherapist be persuaded by the above account, can he or she remain a therapist? In other words, would this newly won knowledge undermine her attempt to practice therapy, given that she no longer believes the “right theory” is indispensable to therapeutic success? (See chapter 8, ‘Psychotherapy—The Purest Placebo?,’ in Evans below for an extended discussion of some of the relevant issues.)
We might compare this to an earlier story told by Elster in which a therapist attempts to bring about sleep for the insomniac. Elster describes a technique in which the patient is given instructions for the following night to “note very carefully, every five minutes, all the symptoms of insomnia, such as dizziness, headaches, a dry throat. This, the therapist says, is essential if he is to be able to come up with suggestions for overcoming the insomnia. The patient, naively and obediently, does as instructed, and promptly falls asleep. Sleep has come, but as a by-product—and in this context is it essentially a by-product, since the effect would have been spoiled had the therapist told the patient about the point of the instructions.”
One thing Elster does not discuss, however, is that this “technique” does not seem repeatable: it’s a one-shot strategy, at least with a clever or even halfway intelligent patient, who will soon discover the “real” purpose of the therapist’s instructions.
References & Further Reading:
By Bill Quigley. Bill teaches law at Loyola University New Orleans and can be reached at email@example.com
The US Department of Justice (DOJ) reports 2.2 million people are in our nation’s jails and prisons and another 4.5 million people are on probation or parole in the US, totaling 6.8 million people, one of every 35 adults. We are far and away the world leader in putting our own people in jail. Most of the people inside are poor and Black. Here are 40 reasons why.
One. It is not just about crime. Our jails and prisons have grown from holding about 500,000 people in 1980 to 2.2 million today. The fact is that crime rates have risen and fallen independently of our growing incarceration rates.
Two. Police discriminate. The first step in putting people in jail starts with interactions between police and people. From the very beginning Black and poor people are targeted by the police. Police departments have engaged in campaigns of stopping and frisking people who are walking, mostly poor people and people of color, without cause for decades. Recently New York City lost a federal civil rights challenge to their police stop and frisk practices by the Center for Constitutional Rights during which police stopped over 500,000 people annually without any indication that the people stopped had been involved in any crime at all. About 80 percent of those stops were of Black and Latinos who compromise 25 and 28 percent of NYC’s total population. Chicago police do the same thing stopping even more people also in a racially discriminatory way with 72 percent of the stops of Black people even though the city is 32 percent Black.
Three. Police traffic stops also racially target people in cars. Black drivers are 31 percent more likely to be pulled over than white drivers and Hispanic drivers are 23 percent more likely to be pulled over than white drivers. Connecticut, in an April 2015 report, reported on 620,000 traffic stops which revealed widespread racial profiling, particularly during daylight hours when the race of driver was more visible.
Four. Once stopped, Black and Hispanic motorists are more likely to be given tickets than white drivers stopped for the same offenses.
Five. Once stopped, Blacks and Latinos are also more likely to be searched. DOJ reports Black drivers at traffic stops were searched by police three times more often and Hispanic drivers two times more often than white drivers. A large research study in Kansas City found when police decided to pull over cars for investigatory stops, where officers look into the car’s interior, ask probing questions and even search the car, the race of the driver was a clear indicator of who was going to be stopped: 28 percent of young Black males twenty five or younger were stopped in a year’s time, versus white men who had 12 percent chance and white women only a 7 percent chance. In fact, not until Black men reach 50 years old do their rate of police stops for this kind of treatment dip below those of white men twenty five and under.
Six. Traffic tickets are big business. And even if most people do not go directly to jail for traffic tickets, poor people are hit the worst by these ticket systems. As we saw with Ferguson where some of the towns in St. Louis receive 40 percent or more of their city revenues from traffic tickets, tickets are money makers for towns.
Seven. The consequences of traffic tickets are much more severe among poor people. People with means will just pay the fines. But for poor and working people fines are a real hardship. For example, over 4 million people in California do not have valid driver’s licenses because they have unpaid fines and fees for traffic tickets. And we know unpaid tickets can lead to jail.
Eight. In schools, African American kids are much more likely to be referred to the police than other kids. African American students are 16 percent of those enrolled in schools but 27 percent of those referred to the police. Kids with disabilities are discriminated against at about the same rate because they are 14 percent of those enrolled in school and 26 of those referred to the police.
Nine. Though Black people make up about 12 percent of the US population, Black children are 28 percent of juvenile arrests. DOJ reports that there are over 57,000 people under the age of 21 in juvenile detention. The US even has 10,000 children in adult jails and prisons any given day.
Ten. The War on Drugs targets Black people. Drug arrests are a big source of bodies and business for the criminal legal system. Half the arrests these days are for drugs and half of those are for marijuana. Despite the fact that Black and white people use marijuana at the same rates, a Black person is 3.7 times more likely to be arrested for possession of marijuana than a white person. The ACLU found that in some states Black people were six times more likely to be arrested for marijuana than whites. For all drug arrests between 1980 and 2000 the U.S. Black drug arrest rate rose dramatically from 6.5 to 29.1 per 1,000 persons; during the same period, the white drug arrest rate barely increased from 3.5 to 4.6 per 1,000 persons.
Eleven. Many people in jail and prison because the US has much tougher drug laws and much longer sentences for drug offenses than most other countries. Drug offenders receive an average sentence of 7 months in France, twelve months in England and 23 months in the US.
Twelve. The bail system penalizes poor people. Every day there are about 500,000 people are in jails, who are still presumed innocent and awaiting trial, just because they are too poor to pay money to get out on bail. Not too long ago, judges used to allow most people, even poor people to be free while they were awaiting trial but no more. In a 2013 study of New York City courts, over 50% of the people held in jail awaiting trial for misdemeanor or felony charges were unable to pay bail amounts of $2500 or less.
Thirteen. This system creates a lot of jobs. Jails and prisons provide a lot of jobs to local, state and federal officials. To understand how this system works it is good to know the difference between jails and prisons. Jails are local, usually for people recently arrested or awaiting trial. Prisons are state and federal and are for people who have already been convicted. There are more than 3000 local jails across the US, according to the Vera Institute, and together usually hold about 500,000 people awaiting trial and an additional 200,000 or so convicted on minor charges. Over the course of a year, these local jails process over 11.7 million people. Prisons are state and federal lockups which usually hold about twice the number of people as local jails or just over 1.5 million prisoners.
Fourteen. The people in local jails are not there because they are a threat to the rest of us. Nearly 75 percent of the hundreds of thousands of people in local jails are there for nonviolent offenses such as traffic, property, drug or public order offenses.
Fifteen. Criminal bonds are big business. Nationwide, over 60 percent of people arrested are forced to post a financial bond to be released pending trial usually by posting cash or a house or paying a bond company. There are about 15,000 bail bond agents working in the bail bond industry which takes in about $14 billion every year.
Sixteen. A very high percentage of people in local jails are people with diagnosed mental illnesses. The rate of mental illness inside jails is four to six times higher than on the outside. Over 14 percent of the men and over 30 percent of the women entering jails and prisons were found to have serious mental illness in a study of over 1000 prisoners. A recent study in New York City’s Rikers Island jail found 4,000 prisoners, 40 percent of their inmates, were suffering from mental illness. In many of our cities, the local jail is the primary place where people with severe mental problems end up. Yet treatment for mental illness in jails is nearly non-existent.
Seventeen. Lots of people in jail need treatment. Nearly 70 percent of people prison meet the medical criteria for drug abuse or dependence yet only 7 to 17 percent ever receive drug abuse treatment inside prison.
Eighteen. Those who are too poor, too mentally ill or too chemically dependent, though still presumed innocent, are kept in cages until their trial dates. No wonder it is fair to say, as the New York Times reported, our jails “have become vast warehouses made up primarily of people too poor to post bail or too ill with mental health or drug problems to adequately care for themselves.”
Nineteen. Poor people have to rely on public defenders. Though anyone threatened with even a day in jail is entitled to a lawyer, the reality is much different. Many poor people facing misdemeanor charges never see a lawyer at all. For example, in Delaware more than 75 percent of the people in its Court of Common Pleas never speak to a lawyer. A study of Jackson County Michigan found 95 percent of people facing misdemeanors waived their right to an attorney and have plead guilty rather than pay a $240 charge for a public defender. Thirteen states have no state structure at all to make sure people have access to public defenders in misdemeanor courts.
Twenty. When poor people face felony charges they often find the public defenders overworked and underfunded and thus not fully available to provide adequate help in their case. In recent years public defenders in Kentucky, Louisiana, Missouri and Pennsylvania were so overwhelmed with cases they refused to represent any new clients. Most other states also have public defender offices that have been crushed by overwork, inadequate finances and do not measure up to the basic principles for public defenders outlined by the American Bar Association. It is not uncommon for public defenders to have more than 100 cases going at the same time, sometimes several hundred. Famous trial lawyer Gerry Spence, who never lost a criminal case because of his extensive preparation for each one, said that if he was a public defender and represented a hundred clients he would never have won a case.
Twenty One. Lots of poor people plead guilty. Lack of adequate public defense leads many people in prison to plead guilty. The American Bar Association reviewed the US public defender system and concluded it lacked fundamental fairness and put poor people at constant risk of wrongful conviction. "All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring...The fundamental right to a lawyer that America assumes applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the US."
Twenty Two. Many are forced to plead guilty. Consider all the exonerations of people who were forced by police to confess even when they did not do the crime who were later proven innocent: some criminologists estimate 2 to 8 percent of the people in prison are innocent but pled guilty. One longtime federal judge estimates that there is so much pressure on people to plead guilty that there may easily be 20,000 people in prison for crimes they did not commit.
Twenty Three. Almost nobody in prison ever had a trial. Trials are rare in the criminal injustice system. Over 95 percent of criminal cases are finished by plea bargains. In 1980, nearly 20 percent of criminal cases were tried but that number is reduced to less than 3 percent because sentences are now so much higher for those who lose trials, there are more punishing drug laws, mandatory minimum sentences, and more power has been given to prosecutors.
Twenty Four. Poor people get jail and jail makes people worse off. The poorest people, those who had to remain in jail since their arrest, were 4 times more likely to receive a prison sentence than those who got out on bail. There are tens of thousands of rapes inside jails and prisons each year. DOJ reports over 4,000 inmates are murdered each year inside each year. As US Supreme Court Justice Kennedy told Congress recently “This idea of total incarceration just isn’t working. And it’s not humane. We [society and Congress and the legal profession] have no interest in corrections, nobody looks at it.”
Twenty Five. Average prison sentences are much longer than they used to be, especially for people of color. Since 1990, the average time for property crimes has gone up 24 percent and time for drug crimes has gone up 36 percent. In the US federal system, nearly 75 percent of the people sent to prison for drug offenses are Black or Latino.
Twenty Six. There is about a 70 percent chance that an African American man without a high school diploma will be imprisoned by the time he reaches his mid-thirties; the rate for white males without a high school diploma is 53 percent lower. In the 1980, there was only an 8 percent difference. In New York City, for example, Blacks are jailed at nearly 12 times the rate of whites and Latinos more than five times the rate of whites.
Twenty Seven. Almost 1 of 12 Black men ages 25 to 54 are in jail or prison, compared to 1 in 60 nonblack men. That is 600,000 African American men, an imprisonment rate of five times that of white men.
Twenty Eight. Prison has become a very big private business. Corrections Corporation of America (CCA) owns and runs 67 for-profit jails in 20 states with over 90,000 beds. Along with GEO (formerly Wackenhut), these two private prison companies have donated more than $10 million to candidates and spent another $25 million lobbying according to the Washington Post. They lobby for more incarceration and have doubled the number of prisoners they hold over the past ten years.
Twenty Nine. The Sentencing Project reports that over 159,000 people are serving life sentences in the US. Nearly half are African American and 1 in 6 are Latino. The number of people serving life in prison has gone up by more than 400% since 1984. Nearly 250,000 prisoners in the US are over age 50.
Thirty. Inside prisons, the poorest people are taken advantage of again as most items such as telephone calls to families are priced exorbitantly high, some as high as $12.95 for a 15 minute call, further separating families.
Thirty One. The DOJ reports another 3.9 million people are on probation. Probation is when a court puts a person under supervision instead of sending them to prison. Probation is also becoming a big business for private companies which get governments to contract with them to collect outstanding debts and supervise people on probation. Human Rights Watch reported in 2014 that over a thousand courts assign hundreds of thousands of people to be under the supervision of private companies who then require those on probation to pay the company for the supervision and collect fines, fees and costs or else go to jail. For example, one man in Georgia who was fined $200 for stealing a can of beer from a convenience store was ultimately jailed after the private probation company ran up over a thousand dollars in in fees.
Thirty Two. The DOJ reports an additional 850,000 people are on parole. Parole is when a person who has been in prison is released to serve the rest of their sentence under supervision.
Thirty Three. The DOJ reported in 2012 that as many as 100 million people have a criminal record, and over 94 million of those records are online.
Thirty Four. Everyone can find out people have a record. Because it is so easy to access to arrest and court records, people who have been arrested and convicted face very serious problems getting a job, renting an apartment, public assistance, and education. Eighty-seven percent of employers conduct background checks. Employment losses for people with criminal records have been estimated at as much as $65 billion every year.
Thirty Five. Race is a multiplier of disadvantage in unemployment for people who get out of prison. A study by Professor Devah Pager demonstrated that employers who were unlikely to even check on the criminal history of white male applicants, seriously discriminated against all Black applicants and even more so against Black applicants with criminal records.
Thirty Six. Families are hurt by this. The Sentencing Project reports 180,000 women are subject to lifetime bans from Temporary Assistance to Needy Families because of felony drug convictions.
Thirty Seven. Convicted people cannot get jobs after they get out. More than 60 percent of formerly incarcerated people are unemployed one year after being released. Is it a surprise that within three years of release from prison, about two-thirds of the state prisoners were rearrested?
Thirty Eight. The US spends $80 billion on this big business of corrections every year. As a retired criminal court judge I know says, “the high costs of this system would be worth it if the system was actually working and making us safer, but we are not safer, the system is not working, so the actual dollars we are spending are another indication of our failure.” The cost of being number one in incarceration is four times higher than it was in 1982. Anyone feeling four times safer than they used to?
Thirty Nine. Putting more people in jail creates more poverty. The overall poverty rate in our country is undoubtedly higher because of the dramatic increase in incarceration over the past 35 years with one research project estimating poverty would have decreased by 20 percent if we had not put all these extra people in prison. This makes sense given the fact that most all the people brought into the system are poor to begin with, it is now much harder for them to find a job because of the barriers to employment and good jobs erected by a criminal record to those who get out of prison, the increased number of one parent families because of a parent being in jail, and the bans on receiving food stamps and housing assistance.
Forty. Putting all these problems together and you can see why the Center for American Progress rightly concludes “Today, a criminal record serves as both a direct cause and consequence of poverty.”
What does it say about our society that it uses its jails and prisons as the primary detention facilities for poor and black and brown people who have been racially targeted and jail them with the mentally ill and chemically dependent? The current criminal system has dozens of moving parts from the legislators who create the laws, to the police who enforce them, to the courts which apply them, to the jails and prison which house the people caught up in the system, to the public and business community who decides whom to hire, to all of us who either do something or turn our heads away. These are our brothers and sisters and cousins and friends of our coworkers. There are lots of proposed solutions. To learn more about the problems and the solutions are go to places like The Sentencing Project, the Vera Institute, or the Center for American Progress. Because it’s the right thing to do, and because about 95 percent of the people who we send to prison are coming back into our communities.
What should the word religion mean in the First Amendment? The Pew Forum recently released the results of a survey revealing that nearly 23% of Americans describe themselves as religiously unaffiliated – as atheist, agnostic, or more typically “nothing in particular.” See Pew Forum. Should this mean that this group should receive no protection under the Free Exercise of Religion Clause of the First Amendment? I leave aside the fact that the majority of this group believes in God, but does not affiliate with an institutional church. The Free Exercise Clause should centrally be read to protect freedom of conscience whatever its source. When government forces someone to do something they feel morally obligated not to do or forbids someone not to do something they feel obligated to do, a just system would recognize that this burden on freedom of conscience is at least regrettable and often impermissible.
Sometimes burdens on freedom of conscience are permissible. If a person feels a moral obligation to engage in human sacrifice, certainly the law should recognize that the interest in human life outweighs the religious interest. Sometime burdens on freedom of conscience should not be permitted. For example, it is widely understood that the Supreme Court erred when it determined that Native Americans could be prohibited from using peyote in their religious ceremonies. Since burdens on conscience could sometimes be permissible and sometimes not permissible, it seems that balancing the relevant interests at stake is necessary if just results are to be achieved.
With respect to association of religion claims, no normative weight should be placed on the fact that the claim is religious in character. For example, it seems to me that Catherine Corbin, Larry Sager, and Chris Eisgruber are right in concluding that religious freedom of association claims should not be regarded as special. The Court has ruled that religious institutions may pick ministers for any reason whatsoever, and surely they should be able to pick ministers according to their doctrinal requirements even if those requirements are obnoxious. So too the Sierra Club should be able to pick officers according to their mission. But suppose a church decides to discriminate on the basis of race in selecting a minister when it is no part of its religious doctrine to do so. The so-called ministerial exception would permit this exercise of bigotry in the name of church autonomy. That position is decidedly unattractive.
As a qualification to this discussion, I would first observe that it should be possible to raise Free Exercise claims in situations in which a religious practice is not supported by a claim of conscience. That is, the practice is not required by conscience, but is a part of the religious tradition. If it is supported by tradition, but not required by conscience, I would think that is entitled to less weight than conscience claims. On the other hand, this may be an instance in which religion should have an entitlement to be considered where secular claims do not.
Second, there is an important secular claim to conscience that I do not consider to be within the scope of the religion clause. Consider a utilitarian who believes herself morally obligated to maximize human happiness. The problem with this moral position is that it renders virtually all actions of the utilitarian as morally required, and it would make all those actions cognizable under the Free Exercise clause. That is too much not only for the law to administer, but I also doubt that utilitarians actually experience all their choices as morally freighted and I further doubt that when the law impinges on choices they would otherwise make that they regularly experience these foreclosed choices as impingements on their moral life. Of course, there will be such experiences for utilitarians, but I suspect those experiences are rooted in something more particular than a general commitment to utilitarianism.
Finally, I think the flight of many (most?) secular liberals from a strong conception of religious freedom accompanied by opposition to religious freedom restoration acts strikes me as wrong-headed. It fails to appreciate that religious freedom has always been balanced against other interests. It is short sighted because it appears to be rooted in the view that the religious right has a monopoly on religious freedom claims – a reading of politics belied by our history. And it raises again the question why the secular left defends so many hateful and harmful views under the speech clause, but seems prepared to let its rightful opposition to right wing religious views morph into a nearly full scale abandonment of the defense of religious views it has historically maintained.
Date of estimated return from overseas (DEROS) for my soul:
At times when I am calm
that even if you waited for it
nothing came as suddenly
and nothing (not even the Lieutenant)
seemed as stupid
as the silence which followed
At such times I know also
that each of us
who fought in Vietnam
was spiritually captured by it,
and that each remains
of his own war-
It is, therefore, not surprising
that for some (like for me)
the AfterNam emptiness
published no D.e.r.o.s.
for the soul....
Yet, in moments better known to me,
when reason drifts
and whole worlds are illuminated
with Platonic images
dancing against the cave-walls
of my mind,
lit by a single candle
borrowed from a twilight wish,
I take the stairs two-at-a-time
and wait in the second floor window
of my days,
hoping that someday will come next morning
and that I’ll recognize the soul of a much younger me
come diddy-boppin’ down the street,
eating a sky-bar
and hefting a duffle bag
filled with new and more believable myths
that I might live by
(not to mention back pay)
while humming something about
going to San Francisco
and something about a flower in somebody’s hair
Frankly, I don’t know if I’d throw flowers
or run down stairs, meet him at the curb
and beat Hell out of him-
leaving me the way he did!
I mean, it’s not like my damned soul,
dressed up like Jennifer Jones in drag,
and waved farewell with a lace hanky
from the base of a Bon-Sai plant
in a To do Street floral shop
while i woke the next morning and
couldn’t cry anymore
or laugh like before
or give a shit period.
And my soul didn’t go berserk
under the too bright light
of a Government Moon
and go roaring down Highway #1
doing a wheely on a cycle
like James Dean in a steel pot
and flak jacket
laughing Red Baron kind of laugh
and quoting Kipling’s Barrack-Room
My soul just did
what most souls did.
Just disappeared one afternoon
when I was in a firefight
Just “walked away” in the scuffle
like a Dunhill lighter
off the deck of a red-neck bar.
A man can lose his money,
(even his mind)
and still he can come back,
but if he loses his courage
or his pride
it is over.
Memorial Day is, by federal law, a day of prayer for permanent peace. But is it possible to honestly pray for peace while our country is far and away number one in the world in waging war, military presence, military spending and the sale of weapons around the world?
Since 1980 the US has engaged in aggressive military action in 14 countries in the Islamic world alone, according to research published in the Washington Post: Iran (1980, 1987-1988), Libya (1981, 1986, 1989, 2011), Lebanon (1983), Kuwait (1991), Iraq (1991-2011, 2014-), Somalia (1992-1993, 2007-), Bosnia (1995), Saudi Arabia (1991, 1996), Afghanistan (1998, 2001-), Sudan (1998), Kosovo (1999), Yemen (2000, 2002-), Pakistan (2004-) and now Syria. In this hemisphere, US military forces invaded Grenada (1983) and Panama (1989), and landed 20,000 military forces in Haiti (1994).
US Global War Machine
The US has 1.3 million people in the military and another million serve in the military reserves. The US has over 700 military bases in 63 countries across the world deploying over 255,000 US military personnel there. The Department of Defense officially manages over 555,000 buildings on 4400 properties inside the US and in over 700 properties across the globe. The US has over 1500 strategic nuclear warheads, over 13,000 military aircraft, dozens of submarines, many of which carry nuclear weapons, and 88 huge destroyer warships.
Nearly 7000 US military people died as a result of the wars waged by the US since 9/11. Just as important, in Iraq over 216,000 combatants, most of them civilians, have died since the 2003 invasion. No one even counted civilian deaths in Afghanistan for the first five years of our war there. Our drone attacks have murdered hundreds of children and hundreds of civilian adults in Pakistan and dozens more in Yemen.
World Leader in War Spending
US military spending is about the same as the total of military spending by the next eight largest countries combined, that is more than China, Russia, Saudi Arabia, France, UK, India and Germany combined.
Since 9/11 US spending on our military cost well over $3 trillion. Direct combat and reconstruction costs for wars in Afghanistan and Iraq since 9/11 have officially cost US taxpayers $1.6 trillion dollars according to the Congressional Research Service. Additional trillions have been spent on growing the Pentagon budget and for present and future increased health and disability benefits for veterans.
The US military captures 55 percent of our national discretionary spending and spending on veterans benefits is another 6 percent. Since 9/11 military spending has increased by 50 percent while spending on other discretionary domestic spending increased by 13 percent according to the National Priorities Project.
Corporate War Profiteers
With these trillions being spent on war, there are legions of corporations profiting.
The number one war profiteer is Lockheed Martin, according to USA Today, with annual arms sales of $36 billion. Not surprisingly Lockheed Martin spends over $14 million a year lobbying the people who make the decisions about how much money is spent on weapons and which weapons will be purchased. Their CEO is paid over $15 million, according to their 2015 shareholder report, and on their board is James Ellis, a former Admiral and Commander in Chief of US Strategic Air Command, who gets paid over $277,000 for the part time work and James Loy, former Deputy Secretary of Homeland Security, who gets over $260,000 for his part time work. Lockheed receives substantial government contracts amounting, by one calculation, to over $260 from each taxpaying household in the US. They are so entitled that a 2014 special investigation by the US Department of Energy found Lockheed used taxpayer funds to lobby for more taxpayer funds.
Number two war profiteer is Boeing with annual arms sales of $31 billion. Boeings spends over $16 million a year lobbying. The rest of the top ten corporations profiting from war include BAE Systems, General Dynamics, Raytheon, EADS, Finmeccanica, L-3 Communications, and United Technologies. You can track their corporate contributions to members of Congress, especially the politicians on the Appropriations Committees of the House and Senate on Open Secrets.
While most of the lobbying money has gone to Republicans, all the arms merchants hire lobbyists who can influence Democrats and Republicans, according to the Center for Responsive Politics.
And these war profiteers do not just sell to the US government. The US sold more than $26 billion in weapons to foreign nations and has been number one for a long time though recently that title has been going back and forth with Russia as to which is the world biggest international arms merchant.
What To Do
On April 4, 1967, in his famous Riverside Church address, Martin Luther King Jr. said the US government was the greatest purveyor of violence in the world. In response he called for a true revolution of values. This revolution calls us to question the fairness and justice of many of our past and present policies including war and the contrast of wealth and poverty in our own country and across the world.
Former US President and General Dwight Eisenhower warned citizens as he left office of the growing military industrial complex. He saw the influence of the war machine and urged all citizens to be alert and force “the huge industrial and military machinery of defense” to respond to democracy and the peoples’ desires for peace.
What must we do? First, we must learn the facts and face the truth that the US is the biggest war maker in the world. Second, we must commit ourselves and organize others to a true revolution of values and confront the corporations and politicians who continue to push our nation into war and inflate the military budget with the hot air of permanent fear mongering. Third, we must admit what our country has been doing wrong and we must make amends for the violence the US has waged on countries all over our world. Fourth, we must withdraw our military from all other countries, dramatically downsize our military, disarm our nuclear weapons, and truly stick to defending our own country. Fifth, we must work for peaceful, just solutions for conflict here at home and across our world. Only when we work for the day when the US is no longer the world leader in war will we have the right to pray for peace on Memorial Day.