Crumbling Shackles

The human imagination stubbornly refuses to die. And the moment any significant number of people simultaneously shake off the shackles that have been placed on that collective imagination, even our most deeply inculcated assumptions about what is and is not politically possible have been known to crumble overnight.

-- David Graeber, The Democracy Project (2013)

Both the country and the Sift had an amazing week. What was amazing for the country is outlined below. As for the Sift, it had the most page views of any week ever -- more than 150K -- led by a surge of interest in last August's post "Not a Tea Party, a Confederate Party". (Being extensively quoted at FireDogLake may have had something to do with that.) That article got more than 120K views this week, rocketing past "The Distress of the Privileged" to become the most popular post in Weekly Sift history. (Between them, those two posts account for slightly over half of the traffic since the Sift moved to WordPress in 2011.)

This week's featured posts are "Two Cheers for Justice Kennedy" and "Slurs: Who Can Say Them, When, and Why".

This week everybody was talking about the Supreme Court

Thursday, the Court refused to gut ObamaCare, and Friday it legalized same-sex marriage nationwide. I broke off one piece of my Court analysis into its own article: "Two Cheers for Justice Kennedy". Gay-rights advocates loved the rhetoric in Kennedy's majority opinion, but his reasoning was mushy and convoluted. He provided justification for the criticism that he was redefining marriage according to his own values, and he didn't establish a more general gay-rights precedent that was there for the taking in some of the lower-court rulings.

Roberts and polygamy. I was a little surprised that Chief Justice Roberts went for the polygamy cheap shot.

One immediate question invited by the majority's position is whether States may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective "two" in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

If you've lived anywhere that allows same-sex marriage, you've seen that it's barely a leap at all. All the legal structure remains exactly the same, you just allow more people to access it. Polygamy OTOH opens up all kinds of complications, like: How does family health insurance work if you can add as many people to your family as you want? They may not be insuperable difficulties, but there's some thinking to be done.

But what really amazed me was that Roberts learned nothing from Justice Scalia's dissent in Lawrence, the case that threw out laws criminalizing sodomy in 2003. Scalia made a reduction-to-absurdity argument, claiming that the Court's reasoning would lead to same-sex marriage; since that would clearly be absurd, the Lawrence ruling must be absurd also. But instead, his dissent has been quoted again and again in subsequent years, making Scalia the inadvertent prophet of marriage equality.I don't expect to see legal polygamy anytime soon. But if it does happen, Roberts will be its inadvertent prophet.

Obamacare. For the second time -- the first was three years ago -- the Supreme Court refused to kill ObamaCare, with Chief Justice Roberts writing the opinion once again. This time he had Justice Kennedy with him, adding to the four liberals (Ginsburg, Breyer, Kagan, and Sotomayor) to make a 6-3 decision. The far-right faction of the Court (Thomas, Alito, Scalia) united around a dissent written by Scalia in his trademark everyone-who-disagrees-with-me-is-an-idiot style (maybe best rendered as an emo song).

[BTW: I'll take some credit for being right about the outcome. When I examined this case last summer, I wrote: "I don’t think they’ll overturn the subsidies. The Roberts Court practices conservative activism, but prefers to do it by stealth. ... I can imagine Thomas, Alito, and Scalia going that way, but Roberts and Kennedy will be reluctant."]

Like the previous legal attack on ObamaCare, this one was basically absurd. (In the 2012 case, a new legal theory was invented precisely for the purpose of killing ObamaCare, and got four justices to endorse it. Salon's Andrew Koppelman wrote: "The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written." In fact, it got five justices: Roberts endorsed the theory, but re-interpreted the Affordable Care Act to avoid applying it.)

This challenge was more of a legal "gotcha" attack, claiming that the way one sentence was worded, the law didn't mean what everyone involved in the legislative process thought it meant and intended it to mean. As I explained last summer, the sentence establishing the subsidies to help people pay for health insurance refers to "exchanges established by the State", while 33 states let the federal government set up a healthcare exchange for them. So the plaintiffs in King v Burwell argued that the subsidies weren't valid in those states. As Roberts observed in his opinion, this would likely have started a "death spiral" of health insurance in the federal-exchange states: Without the subsidies, the individual mandate wouldn't apply to a large number of people, who then would wait until they got sick to get insurance. Insurance companies would raise their rates to compensate, pushing even more people out of the market, and so on.

According to former Republican Senator Olympia Snowe, who was lobbied heavily by the administration but ultimately voted against the ACA, the interpretation pushed by the plaintiffs was "never part of our conversations at any point". She attributed the disputed sentence to "inadvertent language".

Back when we had white presidents, Congress handled this kind of thing without getting the courts involved. It's not at all unusual to discover after a law is passed that some part of it isn't worded quite right. But these drafting errors are just fixed by new legislation, which usually passes without noticeable opposition. (No one has come up with an example of a major pre-Obama law that got skewered because of inadvertent language.) Similarly, it's typical for a complicated piece of legislation to need minor fixes to its procedures, and Congress used to simply recognize that the fixes made the law better, rather than seeing this as a chance to refight the original battle and scuttle everything.

But in Obama Era, Republicans in Congress practice an unprecedented scorched-earth opposition, and have abandoned all previous standards of fair play. So there is no chance of getting amending legislation passed. (This is also why Obama has had to do so much through executive order. No matter how sensible a procedural change is, Congress will not pass it. Obamacare delenda est!) So the law Congress originally passed is the one the Court has to work with. Like Obama, the Court had to decide whether to take on a larger role to compensate for Congressional dysfunction.

Fortunately, Roberts and Kennedy did the sensible thing. Looking at the option of canceling the subsidies in 33 states and throwing their insurance markets into chaos, Roberts wrote: "It is implausible that Congress meant the Act to operate in this manner."

And it is. No one who voted for the law has come forward saying s/he thought it meant what the plaintiffs claimed. And when the state legislatures were deciding whether or not to create healthcare exchanges, nobody argued that they were risking their citizens' subsidies.

Roberts' interpretation has an added bonus: One way the case could have come out (the way one of the appeals courts ruled) is that the sentence in question is "ambiguous", and so the Court would defer to the IRS' interpretation. But that would allow the next president to order the IRS to interpret the law differently. By finding on his own authority that the sentence means what the Obama administration has been saying, Roberts avoided that scenario.

So maybe now we can just let the law operate as intended. It seems to be doing pretty well.

and symbols of the Confederacy

When I wrote "Please Take Down Your Confederate Flag" last week, I had no idea how suddenly the ground would shift. I expected South Carolina's Republican majority to rally around that flag, leading to further protests like flag-burnings.

Well, within hours after I expressed that expectation, not only did Governor Haley ask the legislature to remove the flag from the capitol grounds, but a groundswell began to remove Confederate symbols across the South. Alabama Governor Bentley removed Confederate flags from a memorial on his state capitol's grounds. Tennessee started talking about removing the bust of KKK Grand Wizard Nathan Bedford Forrest from its capitol. Mitch McConnell called for moving the statue of Jefferson Davis in Kentucky's capitol to a museum. Several governors said they'd eliminate the option of putting a Confederate flag emblem on state license plates. Statues people had been walking past obliviously for decades suddenly became issues in places like St. Louis and Kansas City.

On Facebook and various other forums, I've been amazed how quickly Confederate defenders jump to charges of "banning" Confederate symbols, which I don't think anybody is asking for, and which would violate the Constitution anyway. What we're asking is that governments stop endorsing the Confederacy, and that individuals and private institutions that endorse the Confederacy face criticism. It's your First Amendment right to fly any flag or put up any statue you want, but it's my First Amendment right to point out that you're promoting and celebrating racism.

The encouraging thing is how quickly the country seems to have lost patience with the mythology of the Confederacy's noble Lost Cause. President Obama summed it up in his eulogy for Rev. Clementa Pinckney

Removing the flag from this state’s capitol would not be an act of political correctness; it would not be an insult to the valor of Confederate soldiers.  It would simply be an acknowledgment that the cause for which they fought -- the cause of slavery -- was wrong -- (applause) -- the imposition of Jim Crow after the Civil War, the resistance to civil rights for all people was wrong.  (Applause.) It would be one step in an honest accounting of America’s history; a modest but meaningful balm for so many unhealed wounds.

The Confederacy fought to keep millions of African-Americans in slavery. There was no nobility to that cause. It was immoral and does not deserve to be remembered kindly or proudly. For decades, American leaders have tip-toed around those truths for fear of offending white Southerners -- that's the real political correctness in this issue. Maybe that's over.

As for what to replace those Confederate monuments with: There's a real shortage of monuments to the hundreds of thousands of slaves who escaped their masters and joined the army of the United States. No doubt every Confederate State has such a black hero. You can impugn the motives of many of the Northerners who fought, but these Southern blacks were the real freedom fighters of the Civil War.

Let's not overestimate the importance of these symbolic moves. But they seemed impossible just a few weeks ago. As David Graeber has said (see quote above), political common sense can change very suddenly. It gives me hope for issues that seem hopelessly jammed today, like serious action on climate change.

and you also might be interested in ...

I mentioned Obama's Charleston eulogy above. If you haven't seen the whole thing [transcript, video] you should.

It's really hard to imagine how Obama could have picked up all that Christian theology at his madrassa in Indonesia. But seriously, I think people who assume authentic Christianity belongs to conservatives will be stunned.

I'll be interested to see if we hear more of this change: Where presidents have been ending their speeches with "God bless America", Obama ended this one with: "May God continue to shed His grace on the United States of America." It is a more humble usage, less amenable to American exceptionalism.

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Ted Cruz is calling for Texas clerks to express their "religious freedom" by not processing marriage licenses for same-sex couples. Hmmm. Would he support a clerk expressing his religious freedom by refusing to process gun-owner licenses?

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Now that they're not allowed to discriminate against gays, at least two Alabama counties have stopped issuing marriage licenses entirely. Good luck with that. I'm sure this principled civil disobedience will bring gay rights advocates to their knees. Personally, I am quivering at the thought that opposite-sex Alabama couples who can't get married will blame me rather than their local officials.

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I have already expressed my sympathy with the Bernie Sanders campaign. But if you are tempted to forward some of those anti-Hillary social media messages, you might want to explore where they come from. You might be carrying water for some right-wing group that is trying to turn Democrats against each other.

and let's close with a inter-species musical jam

Who knew elephants could boogie? Actually, elephant intelligence is remarkable, and ought to be studied further. For example, elephants are one of the few species that can recognize their own reflections in a mirror. Unfortunately, elephant labs tend to be rather expensive, so for the foreseeable future we'll understand white rats a whole lot better.

Here's a question somebody ought to know the answer to: If elephants have a sense of rhythm, does that mean they'll get in step with each other on long migrations?