Topic: Political Philosophy

Happy Bill of Rights Day!

The Bill of Rights, or the first ten amendments to the U.S. Constitution, were ratified on December 15, 1791, 222 years ago today. However, it wasn’t until 1941, on the 150th anniversary of the ratification of the Bill of Rights, that Bill of Rights Day was recognized as a national holiday.

This Bill of Rights Day, the Cato Institute invites you to share what the Bill of Rights means to you. 

Tweet your response using the hashtag #CatoForRights any time today. We’ll be sending a very special gift to the author of our favorite tweet. Make sure you’re following @CatoInstitute on Twitter to qualify.

Antidiscrimination Law Can’t Trump the Freedom of Speech

While Cato supports marriage equality, a commitment to equality under the law can’t justify the restriction of constitutionally protected fundamental rights like freedom of speech or association. Yet increasingly, legislation and judicial rulings sacrifice individual liberties at the altar of antidiscrimination law. Perhaps the most prominent current example of that trend is the case of the New Mexico wedding photographer.

Elane Photography, a Christian-identified business in Albuquerque, declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal opposition to gay marriage. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission. She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law. The commission found against Elane and ordered it to pay $6,600 in attorney fees. The state trial and appellate courts affirmed that order.

The case then went before the New Mexico Supreme Court, where Cato, along with same-sex-marriage-supporting law professors Eugene Volokh and Dale Carpenter, filed an amicus brief urging the court to reverse the court of appeals. Our brief explained that photography, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers), is an art form protected by the First Amendment—even if it’s not political and even if the photos are taken for commercial purposes. 

The U.S. Supreme Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech. The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

Alas, the New Mexico Supreme Court also ruled against Elane Photography, holding that the First Amendment only prohibits compelling an individual to speak the government’s message, and that even if the state law did infringe on Elane Photography’s speech rights, those rights could not be vindicated because they conflicted with Willock’s right to equal access to public accommodations. Cato, again joined by professors Volokh and Carpenter, has again filed a brief, this time urging the U.S. Supreme Court to hear the case, because the New Mexico court’s reasoning is incorrect and incompatible with Wooley. 

The Supreme Court has never held that the compelled speech doctrine is only applicable when an individual is forced to serve as a courier for the message of another. Instead, the Court has said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a photographer to create a unique piece of art violates that freedom of the mind.

Our brief also argues that the New Mexico Supreme Court was wrong to hold that the First Amendment can be abridged if a state law creates a “new right” that the constitutionally protected expression allegedly violates. The U.S. Supreme Court has never allowed such operation of state law, and allowing the New Mexico court’s reasoning to stand would send a dangerous message to state legislators and courts that the Bill of Rights is merely a suggestion, not a rule.

Vanessa Willock has until February 11 to file her opposing brief, and soon thereafter the Court will decide whether to take the case. If it does, Elane Photography v. Willock would likely be argued at the beginning of next term, in October, with an ultimate decision by June 2015.

President Obama Can’t Dictate Senate Rules

While much attention has focused on the Senate’s recent vote to eliminate the ability to filibuster judicial and executive nominations, another aspect of constitutonal separation of powers will come to the fore in January when the Supreme Court hears argument in NLRB v. Noel Canning.

The Recess Appointments Clause, which gives the president the power to “fill up Vacancies” in federal offices and judgeships that “may happen during the Recess of the Senate,” allows the president to fill vacancies without going through the normal requirements of obtaining the Senate’s “advice and consent.” The Framers understood that, particularly during the nation’s early days, the president and the rest of the executive branch would be the only members of the government in Washington for the entire year, so important offices may become vacant while the Senate was out of session. The Recess Appointments Clause would thus be an important but rarely used exception to the normal confirmation process.

For nearly 200 years, however, presidents have been whittling down the clause’s requirements. For the first three decades of the Constitution, the clause was interpreted to apply only to vacancies that occurred during a recess—perhaps because a cabinet member died—and didn’t apply at all to vacancies that existed while the Senate was in session. During the Monroe administration, the attorney general first authorized appointments to offices that were vacant during the previous recess.

Liberalish Rather than Liberal: A Kuwaiti Grades the Gulf Kingdom

Kuwait City, Kuwait—“I read your blog post,” Dr. Anood Al-Sharikh told me when we met. “Kuwait isn’t really liberal, but more liberalish, don’t you think?”

She’s right, though in the Middle East even liberalish is a major advance over ugly authoritarian systems like the Saudi theocracy. Kuwait hosts many traditionalists and Islamists who live conservatively, but there is space for most everyone. Many women, like Al-Sharikh hold professional jobs, travel the world, and dress fashionably.

Moreover, politics is freer than elsewhere in the Gulf. Kuwait is ruled by an emir who appoints government ministers, but an elected National Assembly can challenge government ministers and force a cabinet’s resignation. On Tuesday I sat through some the “grilling” of the health minister, a liberal royal who I met last year when he was working in the prime minister’s office. Animated legislators vigorously challenged his performance as well as the arguments of their colleagues while pushing a no confidence motion.

Still, the government clearly has the upper hand, aided by problems elsewhere in the Gulf. A year ago, Kuwait was host to multiple demonstrations by an angry opposition which ranged from secular liberal to Islamist. Today “things have calmed down,” noted Waleed Moubarak of Alghanim Industries. That’s positive, in his view, since you “can only sustain so much political drama.”

But more happened than people being worn out. The authorities “sucked the wind out of” the opposition movement, noted Al-Sharikh. The “government struck back effectively” in a notably illiberal fashion, jailing some people and using its various forms of influence. It even pressed Islamist clerics to issue fatwas against the opposition. Moreover, she asked, “how can anyone in Kuwait be against the government,” which offers jobs, provides homes, pays for education, and more.

Internal contradictions hobbled the opposition: by allying with Islamists, the liberals were effectively promoting a political agenda that included imposing dress codes, closing churches, executing blasphemers, and enshrining sharia as the fount of law. Equally important, the collapse of the Arab Spring had a sobering effect. A bank analyst told me “the public was fed up, it saw chaos in Egypt, violence in Syria, and said that is not for us. People decided there was more to lose than to gain if they went down that particular route.”

In fact, Kuwait well demonstrates the tensions between a democratic polity and liberal society. Thus the “liberalish” country’s fascinating paradox: today, at least, Kuwait’s hereditary emir might be more likely than an elected parliament to encourage development of a free society.

Race Has Nothing to Do with the Judicial Nominations Fight

The Congressional Black Caucus has now explicitly attacked Republicans as racist for blocking President Obama’s latest judicial nominees. Not only are they racist, but if you scratch them, you find Confederate gray. 
 
Unbelievable. 
 
Do these elected officials really think that the filibustering of three D.C. Circuit nominees (one of whom is black) has more to do with race than either judicial philosophy or the ongoing battle over whether this underworked court actually needs more judges? Even after Indian-American Sri Srinivasen was confirmed to that same court unanimously in May after Caitlin Halligan (who’s white) was blocked for ideological reasons?
 

Thank Inventors and Innovators for a Better Life

Hans Riegel recently died at age 90. He changed the world for the better. He brought us the treat known as gummi bears. 

Politicians routinely crusade against wealth and inequality, but that occurs naturally when people create products and offer services benefiting the rest of us.   

Today people live on their cell phones. Once we didn’t even have telephones. Thank Alexander Graham Bell, born in Edinburgh, Scotland. 

The internal combustion engine auto came from Karl Benz. He was a design engineer who in 1886 won a patent for a “motor car.” 

In 1903, Clarence Crane created the hard fruit candy known as Life Savers. 

Helen Greiner, a fan of Star Wars’ R2D2, came up with the Roomba vacuum cleaner robot in 2002. 

John Mauchly and John Eckert created the first computer in 1946—the Electronic Integrator and Computer, or ENIAC. 

Thomas Edison gave us working light bulbs in 1879. Joseph Swan might have beaten Edison, but the latter bought Swan’s patent. 

The 3-D printer was created in 1983 by Chuck Hall. His first creation: a tea cup. 

Flight Not an Option in Public School Wars

People viciously go for each other’s throats when they’re trying to help “the children.” At least, according to a new Politico article, that’s the case over the last several years, with demonization increasingly the weapon of choice when it comes to education politics.

Several pragaraphs in, the piece gets to the inflamed heart of the problem:

The policies the two sides fight over are high-stakes indeed. They drive hundreds of billions in public spending. They could impact millions of union  jobs and millions in corporate profits. And they will have an enormous impact on where, how and what the next generation learns.

That may be why the hostility seems to be escalating.

Public schooling politics is a zero-sum game: all people pay in, but only those with political power get control. That is exactly why public schools drive such vitriol and anger. It is like politics generally, but with the emotionally charged, added stakes that people’s children and, often, their basic values, hang in the balance. Making matters worse is that basic decisions about crucial questions—including who is held “accountable,” how, and what children will learn—have for roughly 50 years been increasingly made at the federal level. As a result, people who want something different can’t move to another district or even state to get the education they want. There is no more flight. There is only fight.

Of course, painful conflict caused by public schools is nothing new, even if nationalization is making it worse and more visible. Familiarizing oneself with the history of American education makes clear just how divisive public schooling has been. For instance, see the Philadelphia “Bible Riots,” or the textbook war in Kanawha County, WV. And just because something is local- or state-controlled doesn’t free it from conflict. Cato’s still-under-construction public schooling “battle map” pinpoints well over 800—and growing—contemporary battles over basic values and rights fought at the school, district, and state levels. And that doesn’t include constant combat over budgets, teacher evaluations, school start times, math curricula, and on and on.

Ultimately, understanding why public schools are the source of unceasing conflict—and why it worsens the more that control is centralized—requires the simplest of logic: One government school system cannot possibly serve all, diverse people equally. And the higher decision-making goes, the more diversity the monolithic system encompasses.  

Government schooling essentially guarantees war without end, and increasing centralization only puts peace further out of reach.