We Didn’t Default….

But too many of our elected officials were perfectly willing to court disaster.

Eighteen Senators voted to continue the shutdown and to stop paying the nation’s bills. One hundred and twenty-six Representatives joined them, and several–including Todd Rokita and Marlin Stutzman from Indiana–blithely assured their constituents that a default “wouldn’t be a big deal”–all credible economists to the contrary.

The GOP brought the country to a screeching halt for three weeks–and for what? To remind us they disagreed with a law that had been passed by a democratic majority to make health insurance accessible to people who didn’t have it.

According to the Standard and Poor index, the government shutdown delivered a powerful blow to our still fragile economy. By the S & P’s estimate, this childish tantrum cost us $24 billion dollars–dollars that Elizabeth Warren accurately described as having been flushed down the drain for a completely unnecessary political stunt.

“$24 billion dollars. How many children could have been back in Head Start classes? How many seniors could have had a hot lunch through Meals on Wheels? How many scientists could have gotten their research funded? How many bridges could have been repaired and trains upgraded?”

We are governed by spoiled brats.

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Balancing Act

Leave it to the British to accurately diagnose what is terribly wrong with the American media.

It’s the mindless elevation of “balance” over accuracy. Somewhere along the line, members of the American news media (I’m hesitant to call them journalists) decided that “he said, she said” was reporting. It isn’t. It’s stenography.

This emphasis on “balance” at the expense of accuracy and the old-style journalism of verification is abetted by the media’s genuine bias, which is neither conservative nor liberal  but rather a bias for conflict. If it bleeds, it leads.

So we get “balanced” coverage of things like climate change.  More than 99% of climate scientists agree that the earth is warming, but our intrepid media will find that one crank who insists otherwise, and give us a “balanced” story by quoting “both sides.” Left unreported is the fact that the science is overwhelmingly on one “side” and the “debate” is virtually non-existent.

Or we get political coverage that has been dubbed “false equivalence.” There’s a reason for that. Over the past couple of decades, the right wing has employed a brilliant strategy: labeling the media “liberal.” (Has a factual report cast you in an unfavorable light? Scream immediately about the liberal, “lame stream” media.)  In response, most traditional media outlets have been cowed into reporting a phony equivalence whenever possible, a “plague on both your houses” approach that often distorts the reality of a situation and even more often encourages lazy reporting. How much easier it is to quote a Republican and a Democrat and then go home–without ever bothering to tell the audience who is telling the truth.

No wonder so many people don’t trust the media. Very few are still trustworthy.

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The Law and the Debt….

I had lunch with an old friend yesterday–a former law school dean and noted legal scholar–and our talk turned to the current impasse over the debt ceiling. He asked me whether I was familiar with a 1935 Supreme Court case titled Perry v. United States; I admitted I’d never heard of it.

Perry, it turns out, is pretty compelling precedent for the proposition that the United States cannot constitutionally be permitted to default on its obligations. The Court relied primarily on language in Article 1, Section 8 of the Constitution, although it also cited Section 4 of the 14th Amendment. My friend sent me a legal memorandum that he had co-authored on the subject. That memorandum included the following paragraph:

In short, the core holding of Perry is that the constitutional “Power” of Congress “To borrow Money on the credit of the United States” carries with it a concomitant duty to pay ― and not to default. While some members of the Court held differing views on the correct factual resolution of the Perry case, all nine justices, including four dissenters, agreed that the United States could not, within constitutional limits, default on its financial or contractual obligations.

The case has been cited with approval by the Supreme Court several times–most recently in 2005.

My friend’s legal conclusion is blunt: If default would be unconstitutional, then the Debt Ceiling Act is unconstitutional if it is read to require default. Since there are a number of federal statutes that confer power on the President and Secretary of the Treasury to borrow money–statutes that are routinely used when the debt ceiling isn’t an issue– and since an unconstitutional Act is void, those statutes would (again, according to the memo) continue to authorize the President to pay the country’s debts.

Makes sense to me, but this is definitely not an area of expertise for me.

Of course, if the President were to follow Perry and pay the nation’s debts, the Obama haters would immediately move to impeach (they would impeach him for breathing if they could).

It’s hard to envision a successful impeachment for actions taken to avoid an international economic catastrophe–but then, it used to be hard to envision a Congress as insane as this one.

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Who’s An Originalist?

I see where Justice Scalia has been claiming to be the Court’s one true originalist again.

“Originalism” is one of those words that gets thrown around a lot–mostly by people who (unlike Scalia) don’t understand how law works, or how “original intent” actually operates to guide today’s judges.

When I ask students who profess to be originalists to define the term, the answers generally   come down to a desire for constitutional fidelity–an admirable desire and one that I certainly share.  The devil, as usual, is in the details. What, exactly, do we mean by fidelity to the Founder’s original intent?

If originalism meant–as some insist–that courts must read the constitutional text through the eyes of the Founders as those gentlemen saw their world in 1786, the Constitution would have outlived its usefulness many years ago. Such assertions betray a lack of understanding about what constitutions are, and how they function.

Constitutions aren’t statutes prescribing or proscribing specific actions; they are broad frameworks of values, statements of important principles to which statutes, ordinances and government actions must conform.

I sometimes ask my students what James Madison thought about porn on the internet. Those who actually know who James Madison was (a subject I have dealt with elsewhere) will laugh; obviously, whatever Madison may or may not have thought about pornography, he didn’t anticipate the invention of broadcast media, let alone the internet. But Madison (and Jefferson and Hamilton and all the rest) did think about the importance of free expression, about the individual’s right to access information and exchange ideas without fear of government censorship.

Madison and the other Founders intended to privilege and protect the principle of free speech. Fidelity to that original intent requires contemporary judges to protect free expression in situations the Founders could never have imagined. That’s what is meant by legal scholars who talk about the “living constitution”–fidelity to the values protected by our Constitution and Bill of Rights and their consistent application to new “facts on the ground.”

We can agree or disagree about whether a given decision is faithful to the principle or value that the Founders were trying to protect, but we need to recognize that social change necessarily requires the application of the Constitution and Bill of Rights to a constantly evolving civic landscape.

When someone like Justice Scalia pontificates that judges have “the power to say what the law is, not the power to change it,” he is selling snake-oil. Every decision that applies settled legal principles to a new set of facts “changes” law, if only incrementally. That is how the common-law system works, and Scalia is smart enough to know that–and smart enough to know that most Americans don’t. His “originalism” allows him to pretend that his favored ideology is really principle; that he is only a sort of legal automaton looking at the world through the Founders’ eyes.

Over at Dispatches from the Culture Wars, Ed Brayton recently said it best:

“Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t. His ruling in Raich is a perfect example. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act last year. In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.”

Indeed. And intellectually dishonest about it, to boot.

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October is the Gayest Month

October 11th is Coming Out Day; October is also the month chosen for IUPUI’s Harvey Milk Dinner–an event sponsored by the university’s GLBT faculty and staff to bring “friends and family” together, to remember where the struggle for gay rights has been, and to remind us all that the fat lady hasn’t sung and the fight isn’t over. This was the fourth year of the event;  I’ve been honored to emcee last two. This year, 275 people attended, including a significant percentage of the campus administration, from the Chancellor on down.

As I looked over the crowd, I couldn’t help wondering what Harvey Milk would think if he were still alive to see what he and a few other brave pioneers had wrought.

Harvey Milk was the first openly gay person elected to public office in California (and probably, in the U.S.). Born in New York in 1930, Milk moved to San Francisco in 1972, a time when there was a significant migration of gay men to the city’s Castro District. Once there, he became politically active.

Milk ran losing campaigns for political office three times before being elected. But he was by all accounts charismatic, and he ran what have been called “highly theatrical” campaigns. He finally won a seat as a city supervisor (what most places call city councilors) in 1977.  He had served barely 11 months in office when he and Mayor George Moscone were murdered by Dan White.

Eleven months is a pretty short career.  But Milk had started something and that something has snowballed. Since his death, relatives have established a foundation in his name, he was posthumously awarded the Presidential Medal of Freedom, and the Post Office has just announced the issuance of a Harvey Milk postage stamp.

Why did Milk have such an impact? Why did a brief 11-month stint in a relatively low-level office leave such a legacy?

I can only speculate, but I think most Americans—at least, those not deeply invested in hate and homophobia—respond to obvious injustice when they can’t avoid confronting it. What Harvey Milk did—and what every single gay person who has had the courage to come out has done—is insist on visibility.

I first recognized the importance of visibility several years ago, when I was the Executive Director of Indiana’s ACLU.  We wanted to give one of our annual awards to the West Lafayette City Council for adding sexual orientation to their Human Rights Ordinance’s list of protected categories. (They were the first in the state to do so.) Since awards from the ACLU can be a mixed blessing to elected officials, I called the clerk to see whether the councilors would accept the honor. She turned out to be a chatty soul, and confided that when the amendment was first offered, she thought it was silly. No one was discriminating against gay people—at least, not that she was aware.

Then there were public hearings on the proposed amendment, and the church buses rolled. People came out of the woodwork to oppose the measure, and their behavior was anything but Christian. She was appalled. As she said, “I’d had no idea! Those people showed me how wrong I  had been and how important the amendment really was.”

When you become visible,  it is no longer possible for the “good people” to ignore bigotry and injustice.

October is the month GLBT folks and those of us who count ourselves as allies remember that lesson.

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