December 20, 2007
By
Wendy Kaminer
One lesson of baseball’s latest doping scandal sure to be overlooked is the utter ineffectiveness of prohibition in curbing drug abuse. Indeed, compelling evidence that “widespread” use of steroids and other performance enhancers has been undeterred by their illegality has persuaded Congress to pass more laws against them. Congress conducts the war on drugs like the Bush Administration conducting the war in Iraq; it simply and stubbornly stays the course that has led us to disaster.
In the wake of the decades old war, the Drug Policy Alliance finds that “heroin, cocaine, methamphetamine and other illicit drugs are cheaper, purer and easier to get than ever before. Nearly half a million people are behind bars on drug charges - more than all of western Europe (with a bigger population) incarcerates for all offenses….Roughly 1.5 million people are arrested each year for drug law violations - 40% of them just for marijuana possession. People suffering from cancer, AIDS and other debilitating illnesses are regularly denied access to their medicine or even arrested and prosecuted for using medical marijuana. … The war on drugs has become a war on families, a war on public health and a war on our constitutional rights."
Privately, many members of Congress will acknowledge the gross failures and injustices of Prohibition. Publicly, they support and perpetuate it, out of fear of being labeled soft on crime if they oppose it. So, not surprisingly there’s bi-partisan salivating over the chance to express outrage at the prevalence of illegal drugs in major league baseball: The House is planning show hearings next month; in the Senate, New York Democrat Charles Schumer and Iowa Republican Charles Grassley have proposed legislation cracking down on mere possession as well as distribution of human growth hormone. Baseball season is a few months off, but the games begin.
December 19, 2007
By James F. Tierney
In a story we missed when it first broke a month ago, a federal appellate court upheld a Texas school's decision to suspend the high school sophomore for writing a violent fictional short story that school administrators interpreted to be a "terroristic threat." According to the Student Press Law Center, the Fifth Circuit decision "relied heavily on Supreme Court Justice Samuel Alito's opinion" in the "Bong Hits 4 Jesus" case that came down this summer -- Morse v. Frederick. Alito's decision in that case had limited the scope of legitimate school censorship to "'speech that a reasonable person would interpret as advocating illegal drug use' and did not extend to any political or social commentary." [emphasis added] By contrast, in Ponce v. Socorro the Fifth Circuit divined a much broader rule that it determined was implicit in Morse, holding that "speech advocating a harm that is demonstrably grave and that derives that gravity from the 'specific danger' to the physical safety of students arising from the school environment is unprotected." [emphasis added] It looks like the family of the student is considering whether to ask the full membership of the Fifth Circuit to rehear the case; even if they do, it's by no means certain that the whole court will agree to do so. We'll follow the story and post if more details come in.
December 18, 2007
By Harvey Silverglate
One of the more silly pieces that I’ve read in recent years appeared in, of all places, the usually polished and interesting "Ideas" section of The Boston Globe, to which I invariably turn every Sunday. In an opinion piece on the first page of that section, Darius Rejali, a political science professor at Reed College and the author of a forthcoming book (Torture and Democracy) argues that while we like to think of torture as “mainly the province of dictators and juntas – the kind of thing that happens behind the iron doors of repressive regimes,” in fact, “it is the democracies that have been the real innovators in 20th century torture,” modern torture “is mainly a democratic innovation,” and we have “exported [new torture techniques] to more authoritarian regimes.”
Of course, the idea underlying Rejali’s argument is relatively unobjectionable within the academic discipline that studies torture, in both its ancient and modern forms – something I explore more below. For example, several years ago, University of Wisconsin professor Alfred McCoy published A Question of Torture, which describes how the CIA developed and later spread new torture techniques during the cold war. Around that same time, McCoy wrote an op-ed in the Boston Globe arguing that this history of what Rejali calls “innovation” led to these methods being used in Abu Ghraib:
“For more than 50 years, the CIA's no-touch methods have become so widely accepted that US interrogators seem unaware that they are, in fact, engaged in systematic torture. But now, through these photographs from Abu Ghraib, we can see the reality of these techniques. We have a chance to join fully with the international community in repudiating a practice that, more than any other, represents a denial of democracy.”
Hopefully, most supporters of democratic rights (not to mention civil liberties or human rights) would agree that torture “represents a denial of democracy,” which is what makes Rejali’s claim – that torture “is mainly a democratic innovation” – so bizarre.
On first glance, it is hard to make out what Rejali is actually arguing. Initially it appeared that he was trying to link the fact that certain torture techniques were developed in the West – such as electrotorture – with a conclusion that Western democracies were practicing torture more than authoritarian states elsewhere in the world. It seemed that this new technical savvy developed in the West was indicative of a culture that promotes and tolerates torture – the logical implication of the argument that torture “is mainly a democratic innovation.”
But the core of Rejali’s argument comes out only on repeat readings; the silliness of the article arises from the fact that his writing is sloppy, he is apparently self-contradictory, and he doesn’t follow through his conclusions.
Tracing the history of torture from the rack and screw through the nominal abolition of the practice, he concludes that “torture hasn’t really disappeared in the modern age. What have disappeared are forms of torture that leave marks.” Rejali then details the development of electotorture and its application in Seattle police stations; a magnetic device “that produces a high-voltage spark,” first employed “by the French colonial police” and popularized by the Nazis, later to be used in Vietnam and in Chicago police stations; stress positions like “forced standing,” as seen in the iconic Abu Ghraib photograph; and finally the use of waterboarding. But why are these “democratic” innovations? “[N]ewer, ‘cleaner’ tortures first appear in conditions of public monitoring, usually in democratic states,” he writes. “It is only afterward that we find authoritarian states adopting them.”
This point is astoundingly obvious: anyone who has thought with any depth about the problem of torture fully understands that while torture occurs with unnerving frequency in and by democratic nations – including, alas, our own, particularly in prisons as well as in such occasional netherworlds as the despicable American gulag in Guantanamo Bay – in fact, torture lives a very tenuous life in democracies. This has nothing to do with Americans’ inherent superior character, nor with citizens of democratic cultures generally being better than those unfortunate enough to live in dictatorships. We have learned enough from our history, and even from our present administration in Washington, to know that we’re the same human beings that “they” are.
But we also know from history that social and political institutions make all the difference. They differentiate civilized societies from their opposite. As Professor Rejali acknowledges, torturers in democratic societies take care to keep their activities secret, and even employ methods that leave no marks on the body. Unfortunately, even though he was given quite a few column inches in which to write his piece, he never explains why this is ultimately the case – only referring offhandedly to “conditions of public monitoring” that precipitate these “‘cleaner’ torture[]” techniques. This omission is all the more remarkable given the underlying reason why this occurs: in democracies, the free sectors of civil society – the free press, humanitarian organizations, the organized bar, civil liberties groups, medical associations, religious benevolent institutions, and on and on – exert constant and significant pressure every time they learn that the CIA, prison guards or some warden, some sadistic private school headmaster, a group of wayward police officers, or sometimes a whole department engages in torture.
(The fear of oversight can even lead agents of a Western intelligence agency to destroy videotapes of their torturing captives, for fear of discovery, investigation, disgrace, even prosecution. The prospect of being labeled hostis humani generis – enemy of all mankind – as the U.S. Court of Appeals for the Second Circuit described the torturer in the 1980 case Filartiga v. Pena-Irala – is enough to make torturers do incredible things to hide the visible effects of their truncheons.)
So if Rejali’s underlying claim is ultimately right, why do I think it’s a silly article? Because it’s painfully and frustratingly inelegant. If he’s trying to argue that the oversight role of civil society has forced modern democracies’ torturers to hide their efforts and develop “cleaner” techniques, he simply doesn’t say that. Instead, he claims that “the modern repertoire of torture is mainly a democratic innovation,” in which “the role of democracies is central,” leading susceptible readers to think that he’s actually blaming the democratic form of government itself, for some bizarre reason, for the institution, and spread, of torture. The Globe’s editorial staff is complicit in twisting the argument, tagging his headline with a sub-headline: “The surprising force behind torture: democracies.” And without examining whether torture is a product of sadism inherent to human nature, he risks raising questions – whether or not he means to – about whether democracies are just as bad as authoritarian states when it comes to torture.
The other major problem with Rejali’s article is that he is apparently self-contradictory. If on the one hand oversight leads to torturers developing “cleaner” techniques, how can he turn around and argue that more oversight will stamp out these torture techniques? If Rejali has correctly identified the direction of the causal arrow, shouldn’t more efforts by civil society – such as “[t]he American Bar Association’s 1931 report [on torture, which] transformed American law and policing” – cause torturers to become even more secretive? It’s not clear how, if “torturers and their apologists really do care” what people think about them, increased oversight will lead to “an end of this sorry history” rather than more refined techniques.
I’ve read a few bad dissertation proposals over the years, in which a hapless graduate student – desperate to find a worthy topic that’s not already been beaten to death by denizens of the academic enclaves – throws together a few ideas from the traditional literature and obfuscates them to make the topic sound more sexy and original. Rejali is no newly-minted Ph.D., but it seems he falls into this trap, recalling writer Barbara Grizzuti Harrison’s observation that “there are no original ideas.” It’s quite obvious that where a government is predisposed to want to torture, robust oversight by civil society will force torturers to go underground and hide their practices. If that’s his point, I wonder whether it’s a sufficiently original “idea” to warrant being placed in the “Ideas” section of the Globe – which could have mitigated some of the silliness of Rejali’s work by running a critique of the article next to it, as they have sometimes done in the past on the last page of the section. Such a critique could have been invited from someone with actual experience dealing with torture and torturers – in my own field, criminal defense lawyers, prosecutors, and judges almost all have such experience, and all understand full well the powerful role that the free institutions of civil society play in deterring official lawlessness and cruelty. Academics sometimes are not the most qualified people to throw light on such real world matters.
(With a tip of the hat to James F. Tierney for helping focus my myriad problems with the Globe piece about which I’ve blogged here.)
December 14, 2007
By James F. Tierney
You may have heard about the Pennsylvania woman who was charged with disorderly conduct for "loudly cursing at her overflowing toilet," which a neighbor -- an off-duty police officer, no less -- heard. The Boston Globe reports that the judge threw out the charges against her because her speech was "protected speech pursuant to the First Amendment." The Globe also reports that the woman's ACLU lawyer, Barry Dyller, "said rulings over the past 20 years have established that 'colorful language' isn't illegal."
December 14, 2007
By Harvey Silverglate
For quite some time, I’ve been griping about what I call “the corporatization of the American university” – the trend in which our colleges and universities have prioritized their role as businesses over their role as educational institutions. This transition has led to all manner and kind of mischief, including an administrative culture that is willing to sacrifice such basic values as academic freedom and rational processes in order that there be “no trouble on the watch” of the current president, whoever he or she might be. (I discuss this at length in my 1998 book The Shadow University.) Because promotional messages must be tightly controlled – as they are for major corporations -- the public face of most universities today is that of the “vice-president for community relations and public relations,” rather than the president or other academic leader.
It often seems that Harvard University is the punching bag for my doleful thesis about the degradation of the academy. And so it goes: In its December 13 edition, The Cambridge Chronicle, the weekly newspaper of what we Cantabridgians fondly refer to as The People’s Republik of Cambridge, reports that “The John F. Kennedy School of Government at Harvard University plans to rebrand itself the ‘Harvard Kennedy School.’” And why, after all these years, make such a move? Well, according to the Chronicle, to “better leverage the Harvard name.”
The spokesperson who explained the change, and the reasons for it, to the Chronicle was – of course – Melodie Jackson, the associate dean for communications and public affairs for the Kennedy School. David Ellwood, the Kennedy School dean, broke the news in an email to alumni, explaining: “It’s really an effort to be more effective in our communications to our audiences and to our various stakeholders,” he wrote. Stakeholders? Hmm. The decision was made, naturally, in conjunction with market research and focus group work. It turns out that there’s some kind of advantage, for branding purposes, in having the Kennedy School equate to Harvard’s other premier graduate professional schools, namely Harvard Medical School and Harvard Law School. But this raises a logical question: if the HLS teaches law, and the HMS teaches medicine, what does the Harvard Kennedy School teach? At least the old John F. Kennedy School of Government said something honest about the curriculum.
My advice to stakeholders: stay turned for future good news from the associate dean for communications and public affairs.
December 12, 2007
By Wendy Kaminer
I shouldn't bother critiquing anything penned by the Dinesh D’Souza, but his latest screed on atheism is hard to resist. Extrapolating from some intemperate comments posted by one anonymous, self-identified atheist who claims that he slapped his mother “the last time that she tried telling me that god existed,” D’Souza concludes that “atheism sometimes produces so much bitterness that even the natural human sentiments become distorted and warped.” It doesn’t “stop with disrespect,” he warns. “Next we’ll hear about the atheist who became so angry about God that he went into a church and Christian charitable center and started shooting people,” he observes (for D’Souza this qualifies as a quip,) in an obvious reference to the recent killings in Colorado Springs.
Unfortunately for D’Souza, the teen-age Colorado Springs shooter, Matthew Murrary, was “home-schooled in a religious household.” Whatever it was that drove him crazy was not an atheistic upbringing. On the contrary; knowing nothing more about Murray’s pathology, atheists who think and argue like D’Souza would reflexively blame religious belief for his derangement.
Like Ann Coulter, D’Souza is so irrational and so contemptuous of fundamental ideals of liberty and fairness that he lacks widespread credibility. (Although, unlike Coulter, he actually seems to believe what he says.) In fact, his clumsy attacks on atheism are worth citing because they seem at least a little anachronistic. Conventional wisdom about the immorality of atheism and the impossibility of leading a moral life without religion is beginning to give way to a more nuanced view of human virtue.
Consider reactions to Mitt Romney’s obvious omission of non-believers from the diverse community of virtuous Americans he lauded in his speech on religion. It was criticized in such centrist venues as the Washington Post editorial page. (I’m happy to have been wrong when I predicted that only secularists and non-theists were likely to object.) Former Reagan speechwriter Peggy Noonan (whose elegant columns justify the Saturday Wall Street Journal) characterized Romney’s insult to non-theists as the “one significant mistake in the speech.” She attributed it to his fear of losing the votes of unthinking believers: “Why did Mr. Romney not do the obvious thing and include (non-believers)? My guess: It would have been reported, and some idiots would have seen it and been offended that this Romney character likes to laud atheists. And he would have lost the idiot vote,” which apparently includes Dinesh D’Souza.
December 11, 2007
By James F. Tierney
Yesterday, the Supreme Court released its decisions in two important cases about how judges sentence federal criminals: Kimbrough v. United States and Gall v. United States. Taken together, the cases increase individual judges’ discretion in how to sentence crimes, by allowing them to depart from the federal sentencing guidelines, which are “advisory” rather than binding on judges. Kimbrough upheld a lower sentence for crack possession, taking into account the vast and unfair disparity in sentencing between crack and cocaine possession crimes, which often is a distinction drawn on de facto racial lines. Likewise, in Gall, the court explained that although judges should take the guidelines into account when conducting a case-specific analysis, they can set sentences below the guidelines when they think those lighter sentences are more “reasonable.” These decisions are rare good news about the federal government’s drug war: harsh sentences are often much more destructive than the drug use itself. Hopefully, judicial discretion will help people caught in the drug war: as the New York Times reports, “[b]elow-guidelines sentences have been given in 11.9 percent of cases, and above-guideline sentences in 1.6 percent.”
SCOTUSblog has more here.
December 11, 2007
By Wendy Kaminer
Once college students risked their lives challenging segregation and participating in voter registration drives in the deep South. Today, on many campuses, students fight for the right not to be offended, with the support and encouragement of college and university administrators. The hysteria about racial or ethnic slights and presumptively offensive speech that reigns on so many campuses is explored and exemplified by a recent article in the Boston Globe. “They’re Sitting Right Next to Us,” shrieks the headline of a remarkably unbalanced story on “ethnic tensions and racist attitudes” that might have been written by a mid level administrator defending a repressive speech code, or a recent graduate weaned on one.
What qualifies as racism on campus today? It includes “microaggressions” (in other words, slights,) that are troubling precisely because they are “difficult to report,” as if people should be “reported” for giving offense. Boston College student, Irene Jeon says that she often hears fellow students exclaiming that the ethnic food she and her friends eat in their rooms “smells so bad.” Jeon feels threatened by these remarks partly because people can’t be punished for making them: “(Y)ou can’t call the police and say, ‘they’re complaining about my food,' ” she acknowledges. “ ‘That’s why it’s so dangerous -- there’s no legal recourse.’ ”
Globe reporter Vanessa Jones doesn’t question the belief that students are endangered by casual insults to their food and ought to have some “legal recourse” for them. She doesn’t wonder how college students came to feel so fragile, so incapable of independently addressing or simply shrugging off the normal frictions of communal living, so averse to fighting their own, everyday battles without the assistance of paternalistic administrators. She trivializes the problem of bigotry by failing to distinguish verbal slights, racial epithets, and hate crimes: Jones seques unthinkingly from a discussion of jokes and insults to an FBI finding that hate crimes rose last year -- as if all decent, reasonable people agree that bad jokes lead to acts of violence. Or maybe, like many advocates of suppressing “hate speech,” she considers bad jokes the equivalent of violence.
Instead of addressing the challenge of achieving social equality without sacrificing liberty, Jones makes a thoughtless case for policing speech: Offering anecdotal evidence of presumed bigotry on campus (including criticisms of affirmative action or ethnic food,) she doesn’t question the belief that expressions of perceived bias should be actionable and that opposition to political correctness reflects opposition to equality. Jones approvingly quotes Simmons College assistant professor Darren Graves, who dismisses protests of PC as a backlash to the civil rights movement. “The people in power think things are moving too quickly,” Graves opines. “What you might be seeing on campus is a reflection of what you’re seeing in society in general: ‘Let’s slow down with this PC stuff. It’s taking people out of their comfort zones. I have to watch my words and that’s not what America’s about.’ ”
Civil libertarians have good reason to worry about the future when an assistant professor at a respected college denigrates the claim that America is not about suppressing speech. Graves needs to take, not teach, an elementary civics course, as well as classes in history and logic. “People in power” are apt to be the enemies, not the friends of free speech. Who does Graves imagine suppresses dissent, including demands for civil rights -- people without power? Does he think that campus speech codes reflect the powerlessness of campus officials who want to protect students from being offended?
Free speech advocates, many of whom are veterans of various civil rights movements, (and none of whom are quoted by Vanessa Jones) do battle against political correctness precisely because it abuses power. The movement against PC is a movement against censorship and thought policing, which have been normalized on many campuses through speech and harassment codes, as well as mandatory sensitivity training. (You can find a depressingly numerous array of examples on the Foundation for Individual Rights in Education website.) On many campuses, students can be punished for uttering the sort of jokes heard regularly on South Park or The Daily Show.
These anti-libertarian regimes of speech codes and ideological re-education programs don’t exactly prepare students for citizenship in a free society. Off campus, for example, the virtues of affirmative action are subject to debate and satire. On campus, they are often articles of faith, and students who criticize much less mock affirmative action risk being punished for harassment (the PC version of heresy.)
It would be hyperbole to call the hunt for political in-correctness an inquisition, but students have reason to feel chilled by efforts to chronicle and expose alleged incidents of bias, which undoubtedly include allegedly biased remarks. (That there is no difference between an utterance and incident, that speech equals action, is a basic tenet of PC.) The Globe reports that at Tufts, where freshman orientation includes “a group exercise that unveils bias,” the Bias Education Awareness Team, “creates programming around bigotry and guides students on how to report bias incidents.” Incidents may be reported and accessed on line. “It’s the everyday incidents that go unnoticed and unreported,” one student explains, lauding the effort to create a campus network of informants. The anti-bias team’s campaign should ensure that at Tufts, America is indeed about watching what you say – and in whose earshot you say it.
December 06, 2007
By Harvey Silverglate
Sometimes, as Sigmund Freud put it, a cigar is just a cigar. And, likewise, sometimes words in the Constitution actually mean what they say. Much brainpower, however, has been expended trying to argue that the First Amendment, which admonishes that “Congress shall make no law…abridging the freedom of speech, or of the press” [emphasis added], actually doesn’t mean what it appears to say. And, similarly, we are now in the midst of a national (and judicial) debate over whether the Constitution’s protection of the writ of habeas corpus – a cornerstone of the historic rights of Englishmen and of Americans – really means what, in quite clear terms, it says.
Yesterday the Supreme Court heard arguments in the combined cases Boumediene v. Bush and Al Odah v. Gates, which touch on this momentous question: Can the United States government escape the seemingly clear language of the Constitution’s habeas corpus guarantee by shipping people to the gulag at Guantanamo Bay and then providing so-called “combatant status review tribunals,” run entirely by the military, as a supposed substitute for habeas corpus hearings conducted by the federal courts?
Article I, Section 9 of the Constitution seems pretty clear: “The Privilege of the Writ of Habeas Corpus shall not be suspended, except when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas Corpus, under ancient English law inherited and adopted by this country, guarantees that any prisoner has the right and opportunity to petition a court to seek a release order. The court is then obligated to order release unless the jailer is able to show the court that the incarceration is lawful. This is what makes any prison system operated by our government subject to the rule of law – the jailer has to come into court and explain under what lawful process and charge the prisoner is being held. It distinguishes American prisons from the gulags found in dictatorships around the world. In the England of old, habeas corpus limited even the power of the king to arbitrarily lock up those in royal disfavor.
Well, Congress and the Bush Administration take the position that the right of habeas corpus should not be made available to prisoners at Guantanamo, even those already held without trial as long as six years and still counting, because the military tribunals provided them somehow are an adequate substitute for habeas corpus. What is the legal justification for this argument that kangaroo court military hearings are an adequate replacement for real judicial hearings in a real court? The Supreme Court foolishly ruled in 1977 in Swain v. Pressley that the writ of habeas corpus does not need to be made available to detainees so long as they have an “adequate and effective” substitute allowing them to raise similar claims, even if not wholly within the formal habeas petition structure. So the question is whether the military tribunal system cooked up by the Bush Administration furnishes such a reasonable substitute in the Guantanamo enclave.
In its brief for yesterday’s arguments, the Administration argued that the kangaroo court system provided by the 2005 Detainee Treatment Act is an “adequate and effective” substitute, which it is plainly not. Of course, the government also argues – and Justice Scalia will undoubtedly agree – that habeas does not extend to Guantanamo, even though the court definitively settled that the answer to that question is “yes it does” in 2004’s Rasul v. Bush. These two curious arguments are further explained in this online write-up of the case.
Besides the administration’s bad faith interpretation of the law of habeas, the answer to the central question posed in Boumediene would appear to be quite simple to any citizen with an IQ at least as high as his or her age. But, from all reports, the Supreme Court is close to being divided on this question. For those of us who take seriously the Constitution – and the plain meaning of the words of the English language, in which the Constitution is written – these petty squabbles about what the phrase “shall not be suspended” means are quite remarkable. There may be some vague language in the Constitution, but the habeas corpus clause does not seem to be an example. How can it be, then, that the conservatives on the high court, who normally can be found bleating about liberals’ failure to follow the “strict construction” of the “plain language” or “original intent” of our founding document, are suddenly going out of their way to twist and turn in order to escape the obvious import of the habeas corpus clause? It seems to me, to use a syllogism, that combatant status review tribunals are to habeas corpus, as Hustler Magazine is to real sex – a rather pale imitation.
Stay tuned for whether language, not to mention common sense and the lessons of history, has any real meaning in our age, and whether, to paraphrase the late Lillian Hellman (commenting on the tendency of some leftists during the McCarthy period to denounce friends and associates as Communists), the plain and tested meaning of ancient laws is to be tailored to meet the fashions of the day.
December 06, 2007
By Wendy Kaminer
Thank god for religious minorities: when members of minority faiths run for office they have little choice but to defend religious liberty and give at least a nod to separation of church and state. Appealing to our tradition of pluralism and, like John Kennedy, promising that as president he would not take direction from his church, even Mitt Romney occasionally sounded a little like a civil libertarian in his virtually obligatory speech on faith.
But, while Romney’s America comprises people of many faiths, it does not include people of no faith, who constitute as much as 9% of the population, outnumbering Jews, whom Romney did bother to acknowledge, and also outnumbering Mormons. He is hardly alone among candidates, especially among Republicans, in feeling free to disregard tens of millions of irreligious Americans, and he is enabled by the negative image of non-theists that he exploited in his speech: Religion is the basis of morality, Romney asserted, parroting conventional wisdom that we cannot be good without god (as if people were good with god.) Religion is even essential to freedom, he declared, a “fact” that would surprise members of religious or irreligious minorities (and many women) who have the misfortune of living in theocracies.
Romney also offered up the usual misconceptions about secularists, claiming that they want to remove religion from the public square. In fact, secularists (some of whom are religious people who believe in secular government) do not oppose public expressions of faith: every secularist I know would defend the right to preach in the public square. What secularists oppose is government support for public or private expressions of faith. If a public park is also a public forum, then religious groups have the same right as non-religious groups to make speeches, hold rallies, or mount displays, like crèches, in them – so long as their activities are not funded or otherwise endorsed by government.
It’s true that some secularists want to remove references to god from our money and from the Pledge of Allegiance. But, however petty and meaningless these references seem (and I am not in favor of making a federal case of them,) they do represent inappropriate government support for religious belief: a dollar bill is not the public square, and neither is an official pledge of fealty to the nation.
These are not such subtle distinctions, but Romney is not alone in ignoring them; and the hypocrisy of his call for tolerance is likely only to be noticed by those secularists and non-theists who are targeted by his intolerance. To many of us, it will be clear that Romney’s position on religious bigotry is a lot like his position on abortion rights, stem cell research, and gay rights: it’s determined by political expedience. Romney opposes bigotry in self-defense, not in defense of others, which is to say that he does not really oppose it at all.
December 05, 2007
By Wendy Kaminer
Governor Patrick’s decision to abort the removal of banners and flags from highway overpasses, following protests by people anxious to announce their support and concern for the troops, provides an interesting opportunity to test his and our commitment to free speech. If he does not eventually order the signs removed, he will effectively declare that the overpasses are public forums on which anyone can post any message, however provocative or arguably offensive (so long as it isn’t legally obscene or otherwise unprotected by the First Amendment.)
Imagine the possibilities. The overpasses could become billboards for political campaigns: "Rudy Giuliani is a humorless thug," signs could announce. (Mayor Giuliani, famously intolerant of free speech, once tried to prohibit New York Magazine from posting an ad on city buses that mocked his penchant for taking credit where none was due.) People could proclaim their rights to own guns, smoke marijuana, obtain abortions, or teach evolution in the public schools, among other disputed activities. Someone could erect a sign declaring that God is Dead and dare the Commonwealth to order it removed under our archaic blasphemy laws. What fun we might have. What a lesson in civil liberties and what a headache for the governor it would be.
December 04, 2007
By Jan Wolfe
According to
e-mails obtained by Media Matters, the Fox News Channel refused to air an advertisement produced by the Center for Constitutional Rights that accuses President Bush of "destroying the constitution."
I'm not sure what's more troubling: the fact that the top-ranked cable news channel would refuse to air a political ad, or the fact that restoring the constitution has now become a politicized issue.
December 03, 2007
By Jan Wolfe
According an
article in today's Sunday Times, a Department of Justice lawyer is arguing in British court that the U.S. has a right to "kidnap" foreign citizens who are charged with crimes in American court. The case at hand does not involve the rendition of terrorist suspects, as one might presume, but rather three bankers wanted on fraud charges.
December 03, 2007
By Wendy Kaminer
Not surprisingly, right and left wing partisans share a penchant for censorship: each side has a de facto list of taboo subjects and ideas, discussions of which expose people to formal and informal punishments. Consider these two cases:
On the right: The Texas Education Agency’s director of science, Christine Castillo Comer, was forced to resign last month because she forwarded an email from the National Center for Science Education about a talk on evolution and creationism. Merely passing on a message about a lecture by an opponent of creationism was considered “misconduct and insubordination” by education agency officials. Ms. Comer tried to keep her job by sending out a quick retraction, asking recipients of her offending email to disregard it; still; she was given the choice of resigning or being fired.
On the left: Nobel laureate James Watson was recently forced to resign from his post as chancellor of Cold Spring Harbor Laboratory on Long Island because of a stupid remark about race (he claimed that Africans have lower I.Q’s.) In the wake of Watson’s resignation, Slate writer William Saletan was attacked for a column suggesting that theories about racial differences in intelligence might be sound. Saletan issued a subsequent apology for not properly vetting one of his sources that purportedly showed evidence of genetic I.Q. differences.
Obviously the James Watson and Christine Castillo Comer cases are most analogous; both Watson and Comer were forced to resign because they expressed, or merely referenced, taboo ideas, although Comer’s dismissal for forwarding an email may also be illegal: She was fired by a state agency, which is subject to the First Amendment. There doesn’t seem to be any question that she was forced out because of the content of her speech; education agency officials reportedly claimed that by forwarding a message about a talk by a creationism opponent, she was violating a (questionable) mandate to remain neutral on the subject of evolution and creationism. But it’s doubtful that officials would have reacted similarly had Comer forwarded a message about a talk by a creationism proponent.
Obviously, the controversy over Saletan’s article is more complicated: columnists should expect and even welcome criticism of their work. If the attacks on Saletan convinced him that his examination of the race/I.Q controversy was flawed, then they reflect the virtues of free speech and the marketplace of ideas. But Saletan’s apology (as described in the New York Times) might make you wonder if he was also intimidated by the furious reaction his article evoked: “ ‘I did not mean to start a wildfire,’ he told the Times, which reported that Saletan added that “a subject as sensitive and complicated deserves to have a higher level of proof and that “he erred in treating it like any other topic.”
He concedes too much. Why shouldn’t all serious topics be treated alike? When journalists agree to approach some subjects less directly and more tentatively than others, their self-censorship offers tacit agreement that the subjects are taboo. People tend to be most timid in discussing race and religion -- but to what end? Considering the racial and religious demagoguery that continue to thrive, it’s hard to say that timidity does much good.
December 02, 2007
By Wendy Kaminer
Friendly, occasionally funny, less doctrinaire than many of his fellow conservatives and more approachable than the authoritarian Rudy Giuliani and robotic Mitt Romney, Arkansas governor Mike Huckabee is the right wing preacher/politician/presidential hopeful that some liberals are learning to like. “…he prefers consensus to confrontation .. . regards government as a tool for social betterment, (and) … liberalism not as a moral evil, a mental disease, or a character flaw,” Hendrik Hertzberg writes in The New Yorker.
But (as Hertzberg concedes,) Huckabee also advocates constitutional amendments banning abortion and gay marriage – both of which violate his religious beliefs. (Nor does he believe that humans are related to apes.) How would he justify governing (and amending the Constitution) in accordance with sectarian articles of faith? In a June, 2007 appearance before a panel of journalists organized by the Pew Forum, Huckabee generally finessed the question of church/state separationism, (which none of the journalists pressed.)
In his view, the First Amendment simply states that Congress should not pass laws “where someone’s personal religious faith gets prohibited by the government .. .To me, that’s really simple. … that government can’t dictate to those who have faiths as to what they do and what they believe as long as it does not infringe or endanger someone else.”
In other words, Huckabee recognizes that the Constitution guarantees the people free exercise of religion and utterly ignores the fact that it prohibits government from establishing religion – meaning that the state may not endorse or otherwise support sectarian religious activities or govern according to the dictates of the Bible or any other holy book. If anyone at the Pew Forum noticed what Huckabee’s version of the First Amendment omits, no one pointed it out.
Huckabee also employs a familiar rhetorical trick, implicitly misstating the views of secularists so that he looks like a victim of their irreligious biases. The First Amendment is “not about people of faith being unable to participate in government,” he slyly says in answer to a question about separating church and state. No one called Huckabee on this misstatement either and asked who has ever seriously suggested that the First Amendment is about prohibiting people of faith from participating in government. Indeed, the secularists and civil libertarians I know strongly support the Constitution’s ban on religious tests for public officials; never mind the gross abuse of liberty that would be entailed in denying religious people the right to “participate” in governance by voting.
No one asked Huckabee about his claim that when “other” unspecified candidates “are asked about faith … their answer is ‘Oh, I don’t get into that; I keep that completely separate. My faith is completely immaterial to how I think and how I govern.’ ” I can’t recall ever hearing any serious candidates for high office state that their religious beliefs were irrelevant to how they thought or governed. On the contrary, most eagerly extol religious faith and testify to its centrality in their lives. What some candidates also stress, however, is their respect for religious pluralism, their desire not to impose their religious beliefs on others, and their understanding that public officials are constitutionally obliged to refrain from transforming sectarian religious beliefs into law.
Huckabee doesn’t seem to share this understanding of religious liberty as contingent on secular government, which accommodates diverse faiths without endorsing any of them. But his views on the role of sectarianism in governing may remain unclear, thanks to his amiability, his apparent popularity among journalists, and the reverence commonly afforded mainstream religious faiths, all of which are apt to deter reporters from persistently probing his commitment to our secular constitution. God forbid they should give offense.
