This Day in History: West Virginia v. Barnette

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Justice Robert Jackson, West Virginia Board of Education v. Barnette (1943)

Forbath on the Distributive Constitution

Progressives have forgotten how to think about the constitutional dimensions of economic life. Work, livelihood, and opportunity; material security and  insecurity; poverty and dependency; union organizing, collective bargaining, and workplace democracy: for generations of American reformers, the  constitutional importance of these subjects was self-evident. Laissez-faire, unchecked corporate power, and the deprivations and inequalities they bred were  not just bad public policy—they were constitutional infirmities.  Today, with the exception of employment discrimination, such concerns have vanished from progressives’ constitutional landscape.

That has to change.

Today, Matt Dimick called attention Williams Forbath’s piece in Dissent, “Workers’ Rights and the Distributive Constitution” which opens with the above quote. It makes a good follow up to my last post on the role of money in putting deeply unpopular Social Security cuts on the agenda, or more simply, the power of the donor class. Forbath notes that conservatives use constitutional language to advance their agenda, while progressives often respond defensively.  But Forbath calls for progressives to recapture a constitutional tradition that would insist that government has not only the power but the duty to push back against the conservative assault on the New Deal and Great Society.

The Definition of Insanity: Democrats Working to Undermine Financial Regulation

By Scrumshus (Own work) [Public domain], via Wikimedia Commons

[Updated below]

Erika Eichelberger has a great and depressing story on how some Democrats (and more Republicans), are trying to weaken the major financial regulation legislation Dodd-Frank, passed in response to the financial crisis, before it takes full effect.  This massive legislation requires a great deal of administrative rule making to implement it

A group of 21 House lawmakers—including eight Democrats—is pushing seven separate bills that would dramatically scale back financial reform. The proposed laws, which are scheduled to come before the House financial-services committee for consideration in mid-April, come straight on the heels of a major Senate investigation that revealed that JP Morgan Chase had lost $6 billion dollars by cooking its books and defying regulators—who themselves fell asleep on the job. Why the move to gut Wall Street reform so soon? Financial-reform advocates say Democrats might be supporting deregulation because of a well-intentioned misunderstanding of the laws, which lobbyists promise are consumer-friendly. But, reformers add, it could also have something to do with Wall Street money.

“The default position of many members of Congress is to do what Wall Street wants. They are a main source of funding,” says Bartlett Naylor, a financial-policy expert at the consumer advocacy group Public Citizen. “These are relatively complicated [bills]. It’s easy to come to the misunderstanding that they are benign.”

A Legalistic Heritage and a Democratic Ideology

A legalistic heritage and a democratic ideology have predisposed American political science to search outside the Washington community for explanations of behavior in that community—legalism looking to the Constitution as a determinative influence, and democratic ideology looking to public opinion and constituency ‘pressures’ as determinative influences upon the conduct of men in office….Political science has yet to confront squarely the proposition that the governing group in Washington…has an inner life of its own—a special culture which carries with it prescriptions and cues for behavior that may be far more explicit than those originating outside the group and no less consequential for the conduct of government.

James S. Young, The Washington Community, 1800-1828, quoted in
Donald R. Matthews and James Stimson, “Decision-Making by U.S. Representatives: A Preliminary Model.”

Asymmetric Misperceptions and the Conservative Construction of ‘Public Opinion’

There’s been a lot of buzz about an excellent (but not yet peer-reviewed) working paper by David Broockman and Chris Skovron, “What Politicians Believe About Their Constituents: Asymmetric Misperceptions and Prospects for Constituency Control,” which looks at state legislative candidates’ perceptions of their constituents’ opinions.  The findings are striking, but unlike many others, I don’t find them all that surprising:

Actual district opinion explains only a modest share of the variation in politicians’ perceptions of their districts’ views. Moreover, there is a striking conservative bias in politicians’ perceptions, particularly among conservatives: conservative politicians systematically believe their constituents are more conservative than they actually are by over 20 percentage points, while liberal politicians also typically overestimate their constituents’ conservatism by several percentage points.

Corwin on Democracy and Political Science

That the primary task of political science is today one of popular education, and that therefore it must still retain its character as a “normative,” a “telic,” science, is, then, my thesis. Why, indeed, should there be another natural science anyway? The general obtuseness of the laboratory sciences to social values is boasted by their would-be imitators, and is as notorious as it is infantile. With modern physics and chemistry brandishing sticks of dynamite with the insouciance of a four-year old, what could be more preposterous than to induct political science into the same nursery of urchins?

Edward S. Corwin, “The Democratic Dogma and the Future of Political Science”

Justice Scalia, Voting Rights, and Racial Entitlement

Demonstrators walk down a street during the civil rights march from Selma to Montgomery, Alabama in 1965. (Peter Pettus. 1965. Library of Congress Prints and Photographs Division. Lot 13514, no. 25. More about the photograph)

[updated below]

The Supreme Court, according to many, seems poised to strike down Section 5 of the Voting Rights Act, which would make it far easier for states and localities to engage in all manner of disenfranchisement knowing full well that it will take forever for a federal court to rule against them via the normal litigation process.  Creativity in such things is not a rare quality.

This should have been settled a long time ago.  As Justice Frankfurter said:

The reach of the Fifteenth Amendment against contrivances by a state to thwart equality in the enjoyment of the right to vote by citizens of the United States regardless of race or color, has been amply expounded by prior decisions. Guinn v. United States, 238 U.S. 347 , 35 S.Ct. 926, L.R.A.1916A, 1124; Myers v. Anderson, 238 U.S. 368 , 35 S.Ct. 932. The Amendment nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.

Ironically, the Court (via Chief Justice Warren) used Selma, Alabama to illustrate the necessity of Section 5:

Put Out the Fires or Stop Fueling the Flames

== Summary == * Fuoco. Foto di Giovanni Dall’Orto, luglio 2003. * Fire. Picture by Giovanni Dall’Orto, july 2003. == Licensing == {{cc-by-sa-2.5}} it:Fuoco

This morning’s Up With Chris had an amazing discussion of Libya and Mali, and the role of the United States and the French in North Africa.  [Update: this segment can be viewed here.] One point that came through strongly was how the decision to enter the Libyan civil war (what is commonly, and I think misleadingly, called ‘intervention’) was never litigated. That is, the US didn’t have a discussion about it in public before the decision happened.

Today’s episode included a great discussion of all this, including voices that rarely get heard on my television, and I learned a great deal as a result.  I wasn’t the only one watching this discussion who praised Up for this.

But this reminded me of another frustration I’ve had for a long time that I haven’t seen many others articulate.  

People Can and Should Govern Themselves

The basic idea [of participatory democracy] is simple: people can and should govern themselves. They do not need specially bred or anointed rulers, nor a special caste or class to run their affairs. Everyone has the capacity for autonomy, even quite ordinary people—the uneducated, the poor, housewives, laborers, peasants, the outsiders and castoffs of society. Each is capable not merely of self-control, of privately taking charge of his [sic] own life, but also of self-government, of sharing in the deliberative shaping of common life. Exercising this capacity is prerequisite both to the freedom and full development of each, and to the freedom and justice of the community.

Pitkin and Shumer, quoted in Joe Soss, Unwanted Claims.

The Claim of Representation

I’ve been talking a lot about politics as contested claim making, and how taking formal ideas like judicial review and democracy for granted distorts our understanding of politics. Related is the idea that a lot of analytic terms are really just justifications for the status quo, and we’d be better off finding a different set of terms that aren’t tied to such justifications.

This is different from the standard story of politics science, which says that the discipline used to confuse normative ideas for empirical ones, until the behavioralists (pdf) severed the ties between the two, thus truly becoming a science. Since that time, political theory (in essence, the study of normative ideas) has been a sort of odd fit in the discipline–not unlike judicial politics, although for different reasons.