About That Ciivil War..

Jennifer Rubin’s column on the leak of Alito’s “slash and burn” opinion pretty much summed up where we are: she pointed out that

unelected justices — in some cases appointed by presidents who lacked a popular-vote majority and confirmed by senators who did not represent a majority of the country — would bring to head a battle between a fading racial, religious and political minority and an increasingly diverse, secular country.

Rubin is not the only pundit pointing to the implications of the leaked analysis: this isn’t simply an attack on Roe, or on the right to abortion. This is the culmination of a 50-year effort to reverse the jurisprudence of substantive due process.

As I used to explain to my students, in American law, there are two kinds of due process: procedural and substantive. Procedural due process is–as the name implies–concerned with the fundamental fairness of the legal process. Did an accused person get a fair trial? If the matter was civil, rather than criminal, was the government procedure properly respectful of the individual’s liberty interests and property rights?

Substantive due process, as the name implies, is concern for the substance of a proposed law or government action. Is this an area where government regulation or action is appropriate, or is this a matter that must be left up to the individual to determine?

In other words, in this particular instance, who gets to decide? Government or the individual involved?  The question is not: what should the decision be? The question is: who gets to make the decision?

Ever since the Supreme Court ruled in Griswold v. Connecticut that the legislature had no business deciding whether married couples could use birth control, the doctrine of substantive due process has been applied to limit state intrusion into what the Court has called “intimate decisions.” Those “intimate decisions” include whether and when to have children, who to marry, whether to have consensual sexual relations, and many other choices that contemporary citizens believe are simply none of government’s business.

Alito’s sneering draft sweeps away that distinction. He hands over to state legislatures the authority to invade the most personal and private areas of individual lives, and to decree how those “intimate” lives should be led.

Make no mistake: eviscerating the doctrine of substantive due process, which is what this decision would begin to do, would return the U.S. to a pre-modern version of state authority–to a time when government had the right to impose the religious beliefs of those in power on citizens who do not share those beliefs.

If the leaked draft represents the Court’s ultimate, official decision, it will generate a civil war between the minority of Americans who want to turn back the clock to a time when church and state were joined in authority over citizens’ most personal decisions, and the rest of us.

Why do I characterize what’s coming as “civil war”?

Over the past 50 years, Americans (and for that matter, citizens of other Western democracies) have become accustomed to a legal system that draws a line between permissible and impermissible government actions. We have become accustomed to a culture in which we are entitled to a degree of personal autonomy, to control of the most meaningful, personal aspects of our own lives. In the U.S., polling repeatedly shows that large majorities believe that a woman should be able to control her own body and make her own reproductive decisions, that people of the same sex or different races should have the right to marry, that decisions to use or forgo contraception is none of government’s business.

A minority of paternalistic religious critics have worked  tirelessly to turn back the clock– to return to a time when these decisions were made by the White Christian Males in charge, those Rubin properly characterized as a “fading racial, religious and political minority.” Alito’s draft represents a massive victory for that minority. If it is seen accurately for what it promises–a steady stream of decisions depriving citizens of hard-won rights to live their “intimate” lives as they see fit– I believe furious Americans will launch a civil revolution of massive proportions.

It will be war.

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Performative Religion Versus The Real Thing

Calling something “performative” is a nicer way of identifying what’s phony–of calling out the posturing of politicians pretending to care about governing, and especially “Christians” pretending they are acting out of genuine faith.

I recently encountered two unrelated examples of that calling out. The first was an editorial from Religion News Service, referencing the just-argued Supreme Court case of the football coach who insisted on praying on the 50-yard line.

That coach, Joe Kennedy (absolutely NO relation!), sued a school district in Washington state after it prohibited him from leading public prayers immediately following games. The editorial didn’t focus on the constitutional argument; instead, the author pointed out that  genuine believers are ill-served by public expressions in secular settings.

This — more than any legal reasoning — is the judgment believers are called on to make. In the exercise of liberty, we can recall the words of St. Paul: “’All things are lawful,’ but not all things are helpful. ‘All things are lawful,’ but not all things build up.” 

Ostentatious public prayers do not edify. If anything, they detract from serious Christian devotion. As with street-corner preachers who are well within their right but convince no one, Kennedy’s public postgame prayers were likely little more than a sideshow. The law may broadly permit it, but Christianity does not require it.

The essayist pointed to scriptural evidence that “Christ himself not only does not require showy, potentially coercive public prayers — he teaches against them.” Kennedy’s prayers, he notes, “may have provided psychological uplift to him, but they were not meaningful exercises in Christian faith and devotion.” And he worries that “emboldened conservative justices” will “open the door to more nominal, cultural Christianity. It seems that in the era of former President Donald Trump and his judges, that’s all so-called conservative Christians really want.”

Research by political scientists and religion scholars alike has documented the use of precisely that “cultural Christianity” by White Christian Nationalists intent upon retaining their status as the “real Americans.” Their panic about “replacement” and loss of cultural hegemony is producing ugly accusations of “grooming” by LGBTQ citizens, and other despicable charges defended as protected expressions of religious piety.

Which brings me to the really excellent example of how genuinely religious people can and should respond.

Michigan State Senator Mallory McMorrow describes herself as a “straight, white, Christian, married, suburban mom.” She had been accused by a GOP colleague of being a “groomer,” the latest right-wing slander against anyone who supports the rights of LGBTQ children. Rather than ignoring the accusation, or walking back her support, she grounded her position in her own faith.

  “I want every child to feel seen, heard, and supported,” she said, “not marginalized and targeted if they are not straight, white, and Christian.”

As the author of the linked article pointed out, 

To understand the power of McMorrow’s words, you have to understand that “straight, White and Christian” is the default cultural and political setting in this country. Throw in “male” and you’d have the top of this pyramid. Just ask Tucker Carlson.
 
When you’re none, or not all, of those identities, you’re made to feel it. Your intellect, dignity and value are called into question. Demagogues gin up fear of you for electoral gain. Your very life becomes a political piñata whacked around by people who don’t have to live with the consequences of what they have wrought. Look at the anti-trans legislation littering the land or the “don’t say gay” law in Florida.

Activists who aren’t “straight, white and Christian” have pushed back against bigotry for many generations, and they have secured hard-won advances. But especially in this new front in the United States’ oldest culture war, those voices could use some backup. Enter McMorrow. …

The author makes an important point: McMorrow’s response should be a “blueprint for Democrats who are accustomed to cowering in fear of Republican culture war attacks.”

Too many national Democrats are letting the incipient “groomer” charges go unchallenged or are assuming they’re too ridiculous to gain traction. They’re ridiculous, yes — but that doesn’t mean they can’t gain traction. (Have you seen today’s Republican Party?)

I am not religious, and I have frequently expressed contempt for self-identified “religious” figures who are intent upon imposing their purported beliefs on others. Like Coach Kennedy, their public expressions of piety are purely performative. That said, I have great respect for people who  genuinely look to their religious traditions for lessons on what constitutes moral and ethical behavior, and for guidance on how they should treat their fellow humans.

There was a saying “back in the day” to the effect that the religious right is neither. We need more people like Mallory McMorrow, who are positioned to illustrate what the real thing looks like.

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Briggs Gets It. Banks Doesn’t

James Briggs is currently an opinion columnist for the Indianapolis Star. (I say “currently” because for the past several years, the Star has employed one columnist at a time to opine about the news–usually national– arguably to distract readers from recognizing the extent to which the newspaper doesn’t cover state or local government. But I digress.)

I have tended to agree with Briggs’ take on the various matters he’s covered, and a recent column was no exception.The target was Florida Governor Ron DeSantis, and his retaliation against Disney for having the temerity to oppose his “Don’t say Gay” bill. Briggs wonders whether Florida’s break between business and the GOP will spread to other Red states.

Florida Gov. Ron DeSantis’ war on Disney feels like a potential breaking point for Republicans and big business.

The question is whether the rift will extend beyond certain regions (such as the Southeast) and personality-driven politics (DeSantis boosts his national profile by taking on that lib, Mickey Mouse) to alter the governing philosophy of Republicans in red states across the country.

As Briggs notes, the traditional alliance between the GOP and big business has become strained, as a number of corporations have responded to public opinion by taking political positions that have angered Republican culture warriors. He mentions Dick’s Sporting Goods, which led large retailers to stop selling semiautomatic rifles and ammunition in 2018, and decisions by Coca-Cola and Delta to oppose Georgia Republicans’ voting legislation last year.

The most famous Indiana example of government clashing with big business, of course, was the 2015 response of Hoosier business to the effort by then-Gov. Mike Pence and the Republican-controlled Indiana General Assembly to pass an altered version of the Religious Freedom and Restoration Act–a version that would have facilitated anti-LGBTQ discrimination. Business won that conflict.

This year in Florida, however, DeSantis’ obedient state legislature  passed a bill to eliminate a special district that enables Disney World to operate as its own municipality in the state. The effective date of the measure was delayed until after the midterm elections, undoubtedly because–if it goes into effect– it will raise taxes and shift enormous debt from Disney to Florida taxpayers. (Culture wars come at a cost…)

Some Indiana Republicans are agitating for that shift as well, most notably U.S. Rep. Jim Banks, who has called out Eli Lilly & Co. and bragged about being blacklisted by the Indianapolis drugmaker’s political action committee over objecting to Joe Biden’s election certification last year. Banks also is among 17 Republican members of Congress who wrote to Disney expressing opposition to extending copyright protection for Mickey Mouse beyond 2024.

The sentiment is simmering throughout Indiana. Rank-and-file Republicans in the Indiana General Assembly have been putting the state’s top companies on their heels in recent years, including the most recent session when they introduced legislation that would have all but banned employer vaccine mandates.

I find this 180 degree shift in Republican philosophy gobsmacking. The GOP used to be overly deferential, if anything, to corporate America’s freedom to manage its own business affairs.

Briggs is confident that Indiana will not follow DeSantis’ authoritarian lead. His reasoning is persuasive, but depressing. Essentially, he says Florida remains a state where people want to live and do business. It’s the eighth-fastest-growing state, and it has three of the 10 hottest housing markets. It’s “attracting the population and talent to drive a thriving business climate.”

Indiana is a tougher sell. Eli Lilly CEO David Ricks recently laid that out in brutal terms during a speech to the Economic Club of Indiana.

“Our education attainment in the state is not good,” Ricks said, as reported by WISH-TV. “The ability to reskill the workforce, I think, could improve. Health, life and inclusion, overall, I think, conditions rank poorly nationally in our state. And also workforce preparedness, also related to reskilling, is a liability for us.”

Ricks might have elaborated on that thesis, pointing out that Indiana’s infrastructure and overall quality of life don’t send welcoming messages to potential residents or businesses. “We’re cheap” isn’t exactly an enthusiastic endorsement. Add to our other visible deficits the voices of far too many of our elected officials; Banks isn’t the only embarrassment working overtime to appeal to the under-educated and overwrought GOP base.

Indiana’s Republicans have long since abandoned the statesmanship of Dick Lugar and Bill Hudnut. Instead, they are emulating the bigoted idiocies of Margery Taylor Green, Paul Gosar and their ilk.

As Briggs points out, Indiana needs big, high-paying employers–and those employers need workers who are unlikely to agree with Jim Banks, et al, on social issues. We aren’t Florida, “where oceans and warm weather in January have a way of making you forget about politics.”

These days, businesses will think twice about Florida–ocean or not–let alone Indiana.

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The Real Welfare Queens

America’s most generous welfare system is one in which the rich get richer, and the rest of us pay the bills.

Both Axios and American Progress have reported on the taxes paid–or more accurately, avoided– by members of the Fortune 500. This was at a time when corporate profits were more than healthy, and in the view of many, a time when corporate greed has contributed to the inflation that is eroding wage gains.

The table at the link shows 2021 federal income tax expenses, pre-tax earnings, and effective corporate income tax rates for 19 companies in the Fortune 100. Four of them show a negative tax rate, or zero taxes owed that year and for some, entitlement to a refund.

I’ve pared down the following list to the name of the corporation, its pre-tax earnings after allowable deductions and credits, and the effective tax rate. There are many more companies that fall into this category, but this will give you a (bitter) taste…

Amazon.com Inc.
$35.1 B
6.1%

Exxon Mobil Corp.
$9.3 B
2.8%

AT&T Inc.
$29.6 B
−4.1%

Microsoft Corp.
$33.7 B
9.7%

JPMorgan Chase & Co.
$48.2 B
5.9%

Verizon Communications
$27.2 B
6.9%

Ford Motor Co.
$10 B
1.0%

General Motors Co.
$9.4 B
0.2%

Chevron Corp.
$9.5 B
1.8%

Bank of America Corp.
$30.6 B
3.5%

United Parcel Service
$14 B
9.9%

FedEx Corp.
$4.7 B
4.2%

MetLife Inc.
$4.8 B
1.3%

Charter Communications Inc.
$6 B
−0.2%

Merck & Co. Inc.
$1.9 B
4.0%

American International Group Inc.
$9.8 B
−2.2%

Dow Inc.
$1.5 B
−3.1%

Nike Inc.
$5.6 B
5.9%

A recent Guardian analysis of top corporations’ earnings shows most of them are enjoying significant profit increases while they continue to pass higher costs on to customers. And despite record profits and minimal or even negative taxes generating big refunds, several of these companies–Amazon is notable–are frantically opposing the unionization of their workforces.

If you wonder why the gap between the rich and the rest continues to grow…

A recent article from Time Magazine traced the history and effect of unionization.

Unions became popular in the U.S. starting in the 1930s, with membership rising from just over 10% of the eligible working population in 1936 to about a third by the mid-1950s, according to 2021 research published in the Quarterly Journal of Economics. That remained the case until the mid-1980s, when they fell out of favor, thanks to a culture in which companies refocused on maximizing shareholder value and minimizing worker benefits, as well as a court-backed emphasis on the value of private property and private profit. “Those years turned out to be basically a blip in what otherwise has been not only a very contentious, but many times a very violent interaction between workers and employers in this country,” Devault says of the mid-20th century.

During unions’ heyday in the U.S., however, the income gap between the richest and poorest Americans shrunk considerably. “The only time that the bottom tenth of the population and the top tenth of the population have come closer together has been during those years, when unions were operating in the largest corporations in this country,” Devault says. As unionization declined in the 1970s and 80s, that income gap grew once more. Today, it is at an all-time high since tracking began over 50 years ago, based on Census Bureau data. Research shows that as much as $50 trillion has migrated into the coffers of the top 1% of income earners in the U.S., an upward redistribution of wealth that has squeezed out the middle class.

Business schools are finally recognizing that shareholders aren’t the only stakeholders who matter to the success of a business enterprise. Employee morale is ultimately as important to the bottom line as tax avoidance. For that matter, a prosperous middle class consisting of people with disposable income is critical to sustained business success.

America’s tax system is an abomination. You need not be anti-capitalist to insist that the rich pay their fair share to the country that provides them with the wherewithal to make those fortunes.

I’d be willing to bet that the “captains of industry” who manage those tax-avoiding businesses don’t resent paying the dues charged by fancy country clubs; they know it takes money to maintain glitzy clubhouses and immaculate golf courses. It also takes money to maintain the roads and bridges over which manufacturers ship their goods. It takes money to pay the police and firefighters who provide businesses with security and public safety, and it takes money to compensate the judges and other personnel who administer the legal system all businesses depend upon.

Etcetera.

During one of the 2016 Presidential debates, Trump responded to Hillary Clinton’s charge that he’d played fast and loose with his taxes by sneering that his tax avoidance meant he was smart. Too many executives agree with that sentiment, and they are all wrong.

The truth is, they are the “welfare queens” that they like to disparage.

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It’s More Complicated Than That!

When I was teaching, my introductory lecture always included something along these lines:  Welcome. We’ll be studying several issues about which Americans disagree, often passionately.  I may or may not share my own perspective on some of those issues, but if I do, let me assure you that your grade will not be affected by whether you agree with me.

That said, there’s one insight I do intend to inculcate and do want you to incorporate in your world-views. I want everyone who leaves this class to use two phrases far more frequently than they did before enrolling: it depends and it’s more complicated than that.

Most issues–in and out of academic life–are less straightforward than politicians and pundits like to insist, and helping students recognize that fact is essential to effective instruction.A recent book written by Yascha Mounk underlines that complexity.

Mounk was addressing the common perception that the United States will soon be “Majority minority,” a perception based upon demographic projections that have been widely publicized. (I’ll admit to accepting those projections at face value.)

For the foreseeable future, the implication goes, America will be characterized by a clash between two mutually hostile blocks—and because of its shrinking size, the group that has traditionally dominated the country will soon lose much of its power.

That very simplified belief has cheered progressives, who believe more people of color will translate into stronger civil rights and a more robust social safety net. It has  triggered a frantic backlash by White Supremicists, seen in the chants of alt-right activists insisting “We shall not be replaced,” and in the overt racism displayed by people who believe that social dominance is a zero-sum calculation.

As Mounk points out, demographic reality is more complicated than that.

But the set of assumptions which underwrites both these hopes and these fears is mistaken. Most developed democracies will never become “majority minority” in any meaningful sense. It is highly premature to assume that the politics of the future will neatly pit “whites” against “people of color.” And anybody who wants diverse democracies like the United States to succeed actually has reason to celebrate the fact that demography, despite the belief that so many parts of both left and right now share, is not destiny.

When the United States Census Bureau projected that the country would become majority minority sometime in the 2040s, its demographic model was presented as an exercise in science, giving the prediction an air of unassailable fact. But this conceals the extent to which the categories used by the Census Bureau to classify Americans as white or non-white rely on highly questionable assumptions about how they identify now—and even more questionable ones about how they will do so in future.

Does the child of two white immigrants from Spain count as white or Hispanic? (According to the United States Census Bureau, the answer is: Hispanic.) Will the child of a white father and a Chinese mother identify as white or Asian? (Asian.) And is someone who has seven white great-grandparents and one black great-grandparent white or black? (Black.) Seemingly scientific, the projections of the Census Bureau assume that all Americans who have either a drop of non-white blood or some distant cultural heritage connecting them to a Spanish-speaking country will be “people of color.”

It isn’t simply that the census bureau’s categories are questionable.  We’ve come a long way from the time when a majority of Americans opposed racial “intermingling” via dating  or intermarriage. The data confirms that change; according to Mounk, in 1980,” fewer than one in thirty newborns in the United States had a mother and a father from different ethnic groups.” Today, not only is the number of people who oppose interracial marriage relatively small, by the late  2010s, one out of every seven children born in the United States was mixed-race.

That’s an astonishing turnaround–and it further complicates those simplified “majority/minority” projections. For one thing, according to newspapers and demographers, every single one of the babies born to these couples is classified as a “person of color.”

That classification is at odds with the self-perception of mixed-race children, many of whom see themselves as White. Similarly, a majority of children with roots in Spain or Latin America who are neither black nor indigenous consider themselves ethnically white rather than Hispanic.

Bottom line: we need to resist the urge to “slice and dice” our fellow Americans into opposing ethnic enclaves. As Mounk reminds us, Americans once feared the conflicts posed by Irish and Italian immigrants, yet today, the “distinction between Americans who hail from Sussex and those who hail from Sicily seems quaint.”

Ethnicity isn’t destiny, political or otherwise. It’s more complicated than that.

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