Morning Report – Ben Bernanke has a blog 3/30/15

Markets are higher this morning on overseas strength. Bonds and MBS are up small.

Personal Income came in at .4%, higher than the Street estimate. Personal Spending however disappointed. The PCE Core rate (the inflation rate preferred by the Fed) came in at 1.4%, lower than the Fed’s 2% target.

Pending Home Sales rose 3.1% in February, higher than the estimate. The Northeast was affected by the weather, but the Midwest jumped. February is a short month and during the seasonal slow period, so it is hard to read too much into these numbers.

Beard has a blog. Supposedly he will dish on his critics and go after the “audit the Fed” crowd. It might be interesting as a “Talking Points Memo” on monetary policy, where surrogates argue with critics, leaving the official participants out of it.

61 Responses

  1. Tim Cook makes a fool of himself on the Wa-Po op-ed page.

    http://www.washingtonpost.com/opinions/pro-discrimination-religious-freedom-laws-are-dangerous-to-america/2015/03/29/bdb4ce9e-d66d-11e4-ba28-f2a685dc7f89_story.html

    A wave of legislation, introduced in more than two dozen states, would allow people to discriminate against their neighbors. Some, such as the bill enacted in Indiana last week that drew a national outcry and one passed in Arkansas, say individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law.

    This is simply untrue. He obviously does not understand the law.

    America’s business community recognized a long time ago that discrimination, in all its forms, is bad for business.

    This is absurd. Businesses discriminate all the time. It is in fact only certain specific kinds of discrimination, not discrimination “in all its forms”, that has Cook and others troubled.

    From North Carolina to Nevada, these bills under consideration truly will hurt jobs, growth and the economic vibrancy of parts of the country where a 21st-century economy was once welcomed with open arms.

    Rubbish. First of all, even if the bills allowed what Cook claims (they don’t), there is no reason to think that such discrimination would be implemented in in any significant way. Second, to the extent that such discrimination is ‘bad for business”, it is bad for the business doing the discriminating. Which means it would actually be good for all the other businesses that didn’t discriminate. There is no reason whatsoever to think that it would be bad for the economy as a whole unless one believed that so many businesses would adopt the discriminatory practices that it would effectively prevent those being discriminated against from participation in the economy altogether. If Cook believes that would be the case (he almost certainly doesn’t) then his sense of his own moral superiority relative to everyone else says more about himself than about the rest of the economy.

    I have great reverence for religious freedom.

    This is simply not believable. If he did, then he wouldn’t be trying to misinform the public about what these laws do.

    I was never taught, nor do I believe, that religion should be used as an excuse to discriminate.

    This is a straw man. The question isn’t whether religion “should” be used as an “excuse” to discriminate by anyone. The question is the extent to which the government can/should burden religious practices in its pursuit of other government interests, and how it does it. The fact that Cook turns this nuanced and complex issue into a simple-minded soundbite is yet more evidence that he doesn’t really understand what it means to great reverence for religious freedom.

    I remember what it was like to grow up in the South in the 1960s and 1970s. Discrimination isn’t something that’s easy to oppose.

    Completely laughable. In the current political atmosphere discrimination, particularly against gays, minorities, women, etc is incredibly easy to oppose. What is difficult is defending the right of people, particularly religious people, to discriminate even if one is personally opposed to such discrimination.

    The days of segregation and discrimination marked by “Whites Only” signs on shop doors, water fountains and restrooms must remain deep in our past. We must never return to any semblance of that time.

    That Cook thinks this is relevant to the question at hand shows again that he is ignorant of the laws to which he is objecting. But apart from that, the notion that there is even the most remote chance of any such return occurring is more evidence of Cook’s low opinion of the rest of his fellow citizens.

    With the lives and dignity of so many people at stake, it’s time for all of us to be courageous.

    More comedy, as if writing this mindless op-ed actually took courage. Again, if Cook wants to be courageous, I encourage him to dig into that deep reverence for religious freedom that he claims to have and write an op-ed for the Wa-Po defending the right of a business owner to run his business according to religious principles that cut against what is reflected in popular culture. He would find out what courage really means.

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  2. @Scottc1: “say individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law.”

    As I read it, the law says they can cite their personal religious beliefs in an attempt to refuse service, but final dispensation on that is up to the court, essentially. Of course, anyone can “resist” a state nondiscrimination law, or any law. Not the best working.

    “Rubbish.” Do we think everybody involved knows this is a proxy war for the normalization of gay marriage (and homosexuality generally) versus the non-normalization of gay marriage and homosexuality? I would think Tim Cook must, and has put forth his proxy-volley of pro-gay-marriage normalization because he is homosexual, agrees with said normalization, and is about to release a new product that can only benefit in his target market with his making a stand.

    “there is no reason to think that such discrimination would be implemented in in any significant way”

    The anti-gay marriage crowd has not lost significantly enough, thus a point must be made. I can’t imagine anyone thinks that actively discriminating against homosexual customers would work out from a practicality and business standpoint. What, I’m not going to bake a generic cake for a non-specified anniversary because you sound swishy? How would that work? Mountains out of molehills.

    “The days of segregation and discrimination marked by “Whites Only” signs on shop doors, water fountains and restrooms must remain deep in our past. We must never return to any semblance of that time.”

    Sweet! Unless the culture collectively normalizes gay marriage, we are returning back to Jim Crow days! Next stop: slavery!

    I have yet to see a “Straights Only” sign. Just anecdotal, but you know.

    “More comedy, as if writing this mindless op-ed actually took courage.”

    There’s a risk, but it’s small vs. the likely reward. I’m getting the feeling that that new Apple Watch is going to do very well.

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    • KW:

      As I read it, the law says they can cite their personal religious beliefs in an attempt to refuse service, but final dispensation on that is up to the court, essentially.

      That sounds about right. My understanding is that the law does the same thing that the federal RFRA does, ie requires that the government establish a compelling interest before burdening religious freedom, and it requires that any such burden be the least restrictive means of pursuing the compelling interest.

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  3. @Scottc1: “Worse than Cook, my governor is apparently ignorant of the RFRA law in his own state.”

    Timing, I guess. I really don’t understand why people aren’t going after all the other state RFRAs. For being discriminatory.

    That being said, I’m opposed to all those laws. Don’t need ’em. But that’s only the tip of the iceberg regarding laws we do not need.

    Ultimately, I feel like this law was a meaningless red meat gesture on the behalf of Pence, this is well understood, and the primary movers behind the attack on the Indiana law is about making him pay for a meaningless pander to his constituents. Also, sort of a: think about what we’d do to you if this law actually *meant* anything!

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    • KW:

      I really don’t understand why people aren’t going after all the other state RFRAs.

      Because it is impossible to sell the notion that laws that have existed for years will have consequences that they manifestly have not had. It is much easier to sell the idea that a yet-to-be law will produce all kinds of injustice in the future.

      But if the Indiana RFRA can be effectively demonized, then demonizing existing ones will be that much easier, because then the strategy won’t have revolve around all the bad consequences the law ostensibly produces. It will simply revolve around saying “It is the same as that horrible Indiana law, and since we all agree that was evil, then these must be as well.” Wait for it.

      That being said, I’m opposed to all those laws. Don’t need ‘em.

      I disagree. I think they are very much needed to protect religious freedom, which is, I believe, undeniably under assault.

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  4. “is yet more evidence that he doesn’t really understand what it means to great reverence for religious freedom.”

    I would take it more of evidence that he doesn’t care about it.

    This was just an opportunity to strengthen his progressive political correctness bonafides at a negligible cost for Apple. It may score them some points the next time the left goes after them for their suppliers.

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    • jnc:

      I would take it more of evidence that he doesn’t care about it.

      Well, yeah, I did say earlier that his claim was not believable.

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  5. It may score them some points the next time the left goes after them for their suppliers.

    Or their offshore cash hoard…

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  6. Again, I’m going to argue Tim Cooks’s timing is not coincidental. At just the moment they start their advertising push for the Apple Watch, this editorial is released. While one would assume Apple couldn’t engineer the Indiana law and backlash to happen at just this moment, I think the decision is informed with a firm awareness of the overall temperature of the country, and especially the mood of people who might buy Apple Watches and, I’m guessing, especially the mood of wealthy celebrities and fashionistas who might by $27k gold Apple watches.

    I may be wrong, but I’m pretty sure this was run by Apple legal and marketing and was judged likely to be good for the company.

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  7. @Scottc1: “I disagree. I think they are very much needed to protect religious freedom, which is, I believe, undeniably under assault.”

    There’s the federal law and the states law. Other than the Hobby Lobby case, has their been any useful defense of religious freedom that you know of? Honestly curious.

    That being said, I still don’t think we need ’em. Or many, many others. The constitution plus basic law ought to be sufficient. Of course, I say that about most everything.

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    • KW:

      There’s the federal law and the states law. Other than the Hobby Lobby case, has their been any useful defense of religious freedom that you know of?

      Yes. It is used all the time. Here is a list of 10 relatively recent cases.

      http://thefederalist.com/2015/03/30/meet-10-americans-helped-by-religious-freedom-bills-like-indianas/

      I think you need to understand the history of these laws and why they came about in the first place. According to everything that I have read, historically the standard used by federal courts to adjudicate claims of religious liberty infringements was that the government could only place a substantial burden on sincere religious beliefs and practices if it could demonstrate that it was doing so in pursuit of a compelling state interest, and that the burden placed was the least restrictive means available in that pursuit. Then, in 1993 (I think) the Supreme Court actually dispensed with this long-existing standard in a ruling about the use of peyote by some American Indians. Because the standard was widely viewed across both parties as a proper standard in dealing with religious liberty claims, Congress passed (by large bi-partisan numbers) and Clinton signed the federal RFRA, which re-instituted the previously used judicial standard by formal statute. But in a later case, the Supremes ruled that the RFRA was only applicable with regard to federal law, so as a result several states (19 I think, ranging the political spectrum from Texas to Connecticut) decided to pass their own RFRA’s, formally putting the standard in back in place with regard to state law.

      So as you should see, because of certain Supreme Court rulings changing the way that religious freedom claims were be adjudicated, these RFRA’s are in fact needed in order to maintain long-existing standards that pretty much everyone agrees (or at least did agree in the abstract, until they produced results disfavored by the left) are reasonable standards. And given the left’s increasing animosity towards religion and religious attitudes regarding some of the left’s favored constituencies, along with the its penchant for using the coercive power of government to achieve its desired ends, I think these RFRA protections are even more needed now than ever before.

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    • KW:

      The constitution plus basic law ought to be sufficient.

      It ought to be, but plainly it isn’t. And with regard to the RFRA, there is nothing in the constitution that instructs the judiciary how it is to handle conflicts between religious practices and generic law that would prohibit such practices. A strict interpretation, I suppose, would hold that any such conflict must be resolved in favor of the religious practice (“congress shall make no law….”) and personally I am sympathetic to that view, but as soon as one accepts that certain religious practices can be legitimately prohibited (human sacrifice?), then a standard of balancing religious freedom against other interests is unavoidably needed, and that standard does not exist in the constitution. A statute is a perfectly reasonable and in fact ideal way of establishing that standard.

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  8. @scottc1: Thanks! Very informative.

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    • My pleasure. It’s a shame that you have to ignore the mainstream media if you wish to get the real story, but I guess that is to be expected. The media has largely ceased to be interested in informing its audience (if it ever was) and is now interested mainly in political advocacy. Hence its routine mis-characterization of these laws as “anti-gay”.

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  9. Interesting to me the forming argument I’m seeing, re: all the laws that are almost identical to the Indiana law. I’ve frequently heard the “intent” behind the law mentioned, as if now that the perceived intentions a law was written and passed with is the important thing, not the language of the law.

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    • KW:

      I’ve frequently heard the “intent” behind the law mentioned, as if now that the perceived intentions a law was written and passed with is the important thing, not the language of the law.

      Which tends to support my belief that many, perhaps most, progressives have little interest in law based on objective principles of justice, and instead favor law based strictly on preferable results. A law that intends to protect the religious liberty to use peyote is highly desirable, but that very same law becomes an abomination when used to protect the religious liberty to object to gay weddings.

      They support freedom, sure, but only the freedom to do things they approve of. There was a time when the political left understood that supporting freedom meant supporting the rights of even distasteful people to do distasteful things, like Nazis marching in Skokie, Illinois. Regrettably, such support is increasingly rare, or at least decreasingly visible, on the political left.

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  10. @ScottC: Liberals are arguing that the peyote use is a freedom of religious expression, while not catering a gay wedding is a “right to discriminate”. Thus different, though potentially encompassed under the same law. It seems odd that such things cannot be left up the courts to decide; certainly they could make that distinction within the penumbras and emanations and expect a correct adjudication of an almost identical law would say yes to peyote use and “no” to discrimination. But apparently the judicial process cannot be trusted.

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    • KW – I think courts will likely draw that distinction. I think local/state RFRAs are not unusual or bad laws, per se, and I think they will create plenty of easy work for lawyers, as we find out the limits of their reach. Also, I think the issues are molehills, not mountains.

      New “Quote” in honor of April Fools Day is posted.

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      • Mark:

        Also, I think the issues are molehills, not mountains.

        Which issues? I think the issue of bakers choosing not to bake cakes for same-sex weddings is a molehill. Such bakers are extremely rare, and their choice does not result in any real injury to anyone other than themselves. But I think the effort to demonize these bakers, and use the power of the state to bully them into compliance or face bankruptcy, is indeed a mountain. Religious freedom is one of the foundations of the nation, and these efforts are a plain assault on that foundation.

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        • Scott, on the molehill front, wake me when a court rules that Marriott can refuse service to non-Mormons.

          The USA has substantial civil rights laws that Congress has enacted over time. Until a state RFRA is used in derogation of a statutory federal civil right and a court ultimately upholds the derogation I am plainly disinterested.

          There are certainly issues wrt homosexuals and civil rights that are not yet settled law. And if the broad pronouncement in Hobby Lobby of corporate religious freedom were extended to for profit publicly traded entities that would be interesting. And if public accommodations statutes werre sought to be extended to affect entities regardless of size that would be an issue that would merit a lot of discussion.

          Until then, meh.

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        • Mark:

          And if public accommodations statutes werre sought to be extended to affect entities regardless of size that would be an issue that would merit a lot of discussion.

          The bakers and florists that are being bullied and bankrupted are all small, single owner or family owned businesses.

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        • Great line from a great column by Kevin Williamson:

          Tim Cook, who in his role as chief executive of the world’s most valuable company personifies precisely the sort of oppression to which gay people in America are subjected, led the hunting party when Indiana’s governor Mike Pence signed into law the Religious Freedom Restoration Act…

          http://www.nationalreview.com/article/416307/war-private-mind-kevin-d-williamson

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        • Scott I sympathize with the Washington florist and the Oregon bakers. They were sued under state laws. That is presumably what those states wanted – to force small businesses to accommodate SSM. So in those states, the remedy for that is a state RFRA, which I hope OR and WA pass before too many more small businesses are affected.

          Yes, I see this as molehill territory, still, because it is playing out in the states, and differs from state to state. Gets bigger in a hurry if Congress extends the federal civil rights acts to cover small businesses and the Supremes categorize homosexuality as an immutable trait, against which discrimination is highly suspect.

          I predict the first will not happen in my lifetime, but that the second probably will.

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        • Mark:

          Yes, I see this as molehill territory, still, because it is playing out in the states, and differs from state to state.

          Legally it is currently playing out in the states, but politically (which is what ultimately drives law) it is obviously being played out at a national level. Tim Cook isn’t a local small business owner writing an op-Ed in the Indianapolis Star. He’s the CEO of one of the biggest and most successful corporations in the nation (world, actually) writing in one the two or three truly national newspapers in the nation. Why do you suppose the political left is going to such lengths to distort and demonize this Indiana law nationally if it isn’t in the service of some larger national strategy? I think you are being naive if you really think this whole brouhaha doesn’t have, and wasn’t meant to have, implications beyond Indiana.

          Also, as an aside, why do you think owners of “small” businesses should have more rights than owners of “large” ones?

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        • Also, as an aside, why do you think owners of “small” businesses should have more rights than owners of “large” ones?

          I see the world of legal rights as a continuing balancing act. We exempted small businesses from the public accommodations CRA in 1965 ostensively because they had no true impact on interstate commerce – travelers did not have to stop at Ma Barker’s rooming house. But more to the point, if Ma Barker only wanted to rent her 6 rooms to women because she feared for her personal safety from men, she could, and she could be certain that no man would sue her and put her out of business, or worse, actually cause a problem in her living room or with her female guests. This was not an issue for the Hilton chain, of course. What is not an issue for Apple can be an issue for a single lady florist.

          So as with protective tariffs, small businesses need some exemptions that big businesses do not. Somebody sues Hilton for refusing a SSM then Hilton can afford to defend or settle, depending on the merits of the case. Somebody sues the little old lady florist, and regardless of the merits of the situation her business is critically wounded. Count this as a tip of the hat to George’s suggestion that starting a small business is a nutty thing to do.

          I am becoming aware of what you have been suggesting, btw. I posted my views as to why I thought it was essential to keep the exemptions for small businesses in mind at a liberal blog and the response was to the effect that I was outrageous for suggesting a rooming house could discriminate while Hilton could not, and that of course those bakers and florists should be skewered.

          So the exact policy distinctions that I think are important – that folks should have reasonable access to public accommodations and services regardless of their race, or gender, or what have you, but that there is no need to compel TOTAL access, are exactly not what the public wants to hear right now. They either want to invest all businesses, whether individually owned or publicly traded, with the same penumbra of religious conscience, or they want to burden all businesses with a threshold of liability that is a bar to market entry.

          So this molehill has been made into a mountain, apparently, by a strategy of fomenting outrage, because no one but me ever seems to think any legal rights can be balanced.

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        • Mark:

          So the exact policy distinctions that I think are important – that folks should have reasonable access to public accommodations and services regardless of their race, or gender, or what have you, but that there is no need to compel TOTAL access, are exactly not what the public wants to hear right now.

          But if access (as opposed to total access) is what is important to you, then no law is really needed. If Hilton doesn’t want to accommodate SSM, there is always Marriott, or Sheraton, or any one of innumerable other hotels. The idea that in the absence of laws forcing big businesses to service gays none or hardly any will shows a complete lack of judgement about where our culture is right now. In fact big businesses are far less likely to engage in such discrimination than small ones, for many reasons. Big businesses hate controversy. To make money they have to have wide appeal, they can’t rely on niche markets. They are generally public companies with no single controlling interest possessing a single viewpoint on social issues. They are subject to national opinion regarding their product, and can’t survive on a local population.

          The mere fact that these laws even can become law shows that they aren’t needed. They need to have widespread support in order to become law, and such support proves that the activity they wish to outlaw is a minority position.

          These laws are not about “access” at all. They are about punishing, with an aim toward stamping out, the expression of an unpopular opinion. Do you seriously think that gays are coincidentally stumbling upon the few Christian bakers and florists that don’t want to service gay weddings? They are being targeted. This is a classic case of the majority, which thinks redefining marriage to include same sex unions is perfectly acceptable, trying to prevent the expression of an opinion contrary to its own. There is no “balancing” needed here. It is exactly what the founders wrote the Bill of Rights, and particularly the first amendment, to protect against..

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        • BTW, Mark, in a truly federalist system as the founders intended it, states would be perfectly free to pass laws discriminating against religious expressions of opposition to gay marriage, and I wouldn’t be able to argue against them. The first amendment was written to protect against federal violations of free expression and religion, not state encroachments. States have their own constitutions, most of which contain similar provisions, but that is for them to sort out. Unfortunately, the constitution is no longer read as it was intended, so in the context of current (read incorrect) understanding of constitutional interpretation, I think it is clear that the first amendment should protect any business, large or small, that wishes to express opposition to redefining marriage by refusing to service them.

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        • McWing:

          From Ace, to you:

          First, lets dispense with the canard that Conservatives need to just step back and let the worst happen. Let the inevitable collapse occur with an eye towards rebuilding a more traditional, freer, country from the ashes.

          It ain’t going to happen.

          I can think of no situation in the history of mankind where societal or governmental collapse was not followed by a tyrannical government. Remember, oligarchy is the natural state of mankind, once all of the underpinnings of American law and government are destroyed, an oligarchy WILL form to reestablish “order” and to provide “security” for the people. Betting the house that we’d be able to form a successful, American version of the White Army to prevent this strikes me as gambling against very long odds indeed. I understand the seductive nature of let it burn, really I do, and sometimes in frustration or cynicism I waiver towards it’s siren call, but ultimately I think it’s a fool’s gambit. That’s not a world I want to live in or want my children or my grandchildren to inherit. Life there is nasty, brutish and short.

          http://ace.mu.nu/archives/355942.php

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        • Quickly Scott – the public accommodation law was passed exactly because in many places, not just in the old Confederacy, black people could not find any such, whatsoever; no Hiltons, no Hyatts, no Motel 6s, no McDonald’s. The rule to make PAs available regardless of race, creed, or national origin, and later gender, wisely exempted small biz [IMO] and should be viewed as the model for homosexuals, as their recognition as a disadvantaged minority expands. It is the failure to carry this distinction into many state civil rights laws that has allowed, first, these unfortunate attacks on sole proprietorships, and raised, second, the apparent need for RFRAs in this context.

          As to the federalist model, it was clearly modified by the 14th A. which imposed due process and equal protection for all citizens as a duty of the states. So the Constitution is being read as it was intended, as amended.

          You probably know all this.

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        • Mark:

          The public accommodation law was passed exactly because in many places, not just in the old Confederacy, black people could not find any such, whatsoever; no Hiltons, no Hyatts, no Motel 6s, no McDonald’s.

          Which is analogous to the position of homosexuals in 2015 America in virtually no way whatsoever.

          The rule to make PAs available regardless of race, creed, or national origin, and later gender, wisely exempted small biz [IMO] and should be viewed as the model for homosexuals, as their recognition as a disadvantaged minority expands.

          This couldn’t be more wrong, as far as I am concerned. Far from being a “model” for anything, laws making private racial discrimination illegal are a clear exception to the principles of free association upon which our notions of justice are founded, and are justified (to whatever extent they remain so) only by the very unique nature of racial discrimination against blacks in the history of the US. And today those laws are more symbolic than anything else, as the idea that in their absence national hotel chains like Hyatt and Marriott would suddenly refuse to cater to blacks is, I think, utterly absurd.

          As to the federalist model, it was clearly modified by the 14th A. which imposed due process and equal protection for all citizens as a duty of the states. So the Constitution is being read as it was intended, as amended.

          The extent to which the 14th amendment was meant to alter the federalist model is far from clear, as evidenced by the fact that the incorporation doctrine, which explicitly appears no where in the 14th amendment, was not read into it until more than 50 years after it was passed. So the claim that the constitution is currently being read “as amended” is hardly uncontroversial, and very likely flatly untrue.

          You should know all this.

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        • Go Badgers!!! Brent, I assume you were playing tonight. Fantastic outcome.

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    • KW:

      Liberals are arguing that the peyote use is a freedom of religious expression, while not catering a gay wedding is a “right to discriminate”.

      A right to discriminate and a right to religious expression are not mutually exclusive. If religious belief includes opposition to certain kinds of activity (which, of course, virtually all religion includes) then a right to the latter can and does include a right to the former.

      We need to get past this notion that labeling something “discrimination” automatically renders that thing legally unacceptable. Discrimination occurs all the time. “No shirt, no shoes, no service” is discrimination. Whole Foods stores discriminate against people who like certain kinds of food. Big and Tall stores discriminate against skinny and short people. Non-glatt delis discriminate against kosher Jews. These types of private acts of discrimination in our society are endless. We couldn’t survive without them.

      On a personal level, some of us may object to certain instances of discrimination as invidious. But what may be objectionable to me may be perfectly acceptable to you. These are personal judgments. Free societies can exist with these differences, as long as both of us are free to act on our judgement. You are free to engage in your personal acts of discrimination, and I am free to discriminate against you in turn. We are both free in a real and meaningful sense.

      Discrimination only becomes a threat to freedom when it becomes enshrined as law. And this is true regardless of whether I object or not to the discrimination that is enshrined. A law that says a baker must sell wedding cakes for gay weddings is no less an act of discrimination against, and no less an imposition on the freedom of, the baker than is a law that says gays are not allowed to buy wedding cakes to celebrate a same-sex wedding is an act of discrimination against and an imposition on the freedom of gays.

      Those who object to the legal right of christian bakers and florists to engage in private discrimination with regard to the type of weddings they will service are themselves demanding a legal right to engage in far more troubling governmental discrimination against christian bakers and florists.

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  11. Tim Cook (a) was just doing his part to normalize gay marriage in the US, (b) doing his part to sell about $1m of $17k edition watches to inspired liberals who otherwise might have passed on Apple’s effort to delve into high fashion.

    As I’ve said (and I like Tim Cook a lot, and even begrudgingly admire the cynicism in his public position in regards to a symbolic Indiana law as opposed to, say, slave labor in China), it’s no coincidence that he decided to leverage his position to make a “bold, public statement” right about the time the Apple Watch started taking orders.

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    • KW:

      As I’ve said (and I like Tim Cook a lot, and even begrudgingly admire the cynicism in his public position in regards to a symbolic Indiana law as opposed to, say, slave labor in China)

      I think it is wrong to describe the law as “symbolic”. It has serious and significant implications for how religious freedom claims will be adjudicated in the future.

      Nor do I find Cook’s cynicism to be admirable in any way at all. I find it pretty depressing. This campaign to manufacture outrage by lying about this law has real world negative impacts on real people, even if Cook and his fellow Apple shareholders end up making a few bucks out of it.

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  12. Mark, what are the odds that blue states like WA and OR will pass these laws in light of the Outrageous Outrage that’s been demonstrated up to this point?

    Ultimately, why anybody would open up a small business anywhere is beyond me.

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  13. @ScottC1: “I think it is wrong to describe the law as “symbolic”. It has serious and significant implications for how religious freedom claims will be adjudicated in the future.”

    I use symbolic, as it is what it symbolizes that is being attacked. There’s no question for me that the law was written at least with the idea of it being a proxy to keep gay marriage illegitimate in mind (at least, in regards to some of the backers, but I’m open to more charitable interpretations). But I believe the backlash against it is entirely symbolic. This isn’t about oppressing Christians, whether that’s an effect or not, it’s about winning an important symbolic victory to the quest to normalize gay marriage. These attacks, and Tim Cook’s lecture, would not have have happened had this been about, say, widely believed to be about giving city officials the right to prevent KKK or Nazi party sympathizers from marching, or even about giving pharmacies the right to evict known drug users, or (let’s be honest) the right of scientific institutions to deny employment or even services to evangelicals (granted, these are hypotheticals).

    It’s also symbolic, in my opinion, is there is a way to avoid catering or supplying floral arrangements to gay weddings without saying: “We don’t do gay weddings.” Pricing and schedule conflicts work wonders! It’s about being able to express your opposition to gay marriage directly while simultaneously refusing to serve them because of your religious objections, which makes it symbolic, to me.

    I think it has more influence, in my opinion, on what kind of laws will be written, more than on adjudication, which will depend ultimately on the highest court that will take the appeal, and the ideology of the people on those courts.

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    • KW:

      There’s no question for me that the law was written at least with the idea of it being a proxy to keep gay marriage illegitimate in mind (at least, in regards to some of the backers, but I’m open to more charitable interpretations).

      I think there is no question that the immediate impetus for adopting the law was the idea that small businesses like bakers and florists shouldn’t be forced to service gay “marriage” celebrations. I’m not sure how that is supposed to work to keep alive the idea that SSM is “illegitimate”. SSM has already been imposed on Indiana, so if gays aren’t targeting and suing Christian bakers and florists, then the issue of SSM would be less, not more, likely to be the subject of public discussion.

      Like

  14. @gbowden41: “Mark, what are the odds that blue states like WA and OR will pass these laws in light of the Outrageous Outrage that’s been demonstrated up to this point?”

    I personally consider the odds they will be passed very high, as the folks passing them will largely be in districts where passing the law is considered a positive with their constituents, and for whom national office is not presently a concern, nor are they worried about being lectured by Tim Cook.

    The odds the governors will sign them is much, much smaller after the Outrageous Outrage. Since the intent with which these laws, almost identical to laws that have existed elsewhere and at the federal level for 20 years, now constitutes a Thought Crime.

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  15. @scottc1: “Nor do I find Cook’s cynicism to be admirable in any way at all. I find it pretty depressing. This campaign to manufacture outrage by lying about this law has real world negative impacts on real people, even if Cook and his fellow Apple shareholders end up making a few bucks out of it.”

    And I totally get that, and confess you are on the right of it and I’m on the wrong. As with my desire to eat tasty things that I know are bad for me or chain watch television shows with no redeeming qualities, it’s probably something I should work on. But he’s so slick, and his business acumen is so high, I currently believe he will actually turn the insanely overpriced Apple Watch Edition into A Thing. Which would be a legitimate Business Miracle.

    And, ultimately, he has his finger on the pulse of the nation. The vast majority of younger, plugged-in folks are watching Modern Family and love Mitch and Cameron and the governor of Indiana doesn’t want them to get married! He’s a bad man. Tim Cook agrees. Yet, generally, the awareness of corporate execs that the temperature is right for a particular Bold Stance is usually terrible. They are either way too far ahead or way too far behind, most of the time. If the Apple Watch tanks I’ll take it all back. 😉

    Like

  16. @gbowden41: “Ultimately, why anybody would open up a small business anywhere is beyond me.”

    They don’t know what they are in for. It’s the only reason.

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  17. I get the desire for reform, I really do but do not see how 18 trillion in debt gets reformed without massive disruption. I see collapse as inevitable and since I’m 49, I need it to happen now rather than later.

    If someone can share with me how a debt such as ours gets resolved in a way that won’t result in massive disruption I’d love to hear it.

    What can’t go on forever, won’t. I don’t see Americans accepting the massive tax hikes and benefits cuts needed to return us to sustainabity which means we’ll keep monetizing more debt right up to and past the cliff.

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  18. Great game, Wiscy! Happy Easter to all of you.

    Scott, the refusal of 19th Century courts to actually recognize the extension of equal protection and due process to citizens against their states is a black mark on American history, not a feature to be celebrated, by smugly assuming the failure of incorporation to become doctrine was somehow justified by the language.

    It cannot be, for example, that a state can give whites only the right to vote, and claim that non-whites are equally protected. That the clause was meant for more than freeing the slaves although that was the inception of it is clear, also, from the language and from the debates in Congress, where the express exclusion of Chinese coolie labour from the the effect of the Amendment was defeated.

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    • Mark:

      …by smugly assuming the failure of incorporation to become doctrine was somehow justified by the language.

      I think you are assuming that because incorporation has become doctrine (and probably also because you like its results), it must therefore be justified by the language. I try to understand the constitution on its own terms, not terms dictated by either Supreme Court opinions or desirable outcomes.

      It cannot be, for example, that a state can give whites only the right to vote, and claim that non-whites are equally protected.

      And yet section 2 of the 14th seems to contemplate precisely that eventuality, setting out what is to happen to a state’s representation should it do just that. Why would the 14th alter a state’s representation in the event that the state does X if it actually prohibits the state from doing X in the first place?

      By the way, why would the 14th use the phrase “privileges and immunities” if what it actually meant is “rights”? The word “right” is found elsewhere in both the constitution and the 14th when “rights” is what it is meant to refer to, so why would it suddenly use a totally different phraseology and avoid the simple and obvious reference if what was intended was what you claim, ie to turn federally protected rights into state protected rights?

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      • You picked the one self effecting provision that imposed a sanction on a state limiting a federal election voting right, self effecting before even the CRAs of the late 1860s and early 1870s, as evidence that equal protection was not a proper basis for forcing states to allow blacks the vote? Really?

        You think that because a state cannot deny an American citizen the privileges and immunities of American citizenship, that the disjunctive equal prtection and due process clauses do not refer to long established legal rights in Anglo-American law? Due process is the core of legal rights in our historic system of justice, man. Are you just arguing for the sake of argument?

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        • Mark:

          You picked the one self effecting provision that imposed a sanction on a state limiting a federal election voting right, self effecting before even the CRAs of the late 1860s and early 1870s, as evidence that equal protection was not a proper basis for forcing states to allow blacks the vote?

          I am asking you to explain why section 2 would contemplate the occurrence of something that you claim section 1 dictates “cannot be”. It seems to me that that the logic of section 2 rests on the recognition of the limited power of the federal government, under the constitution (including the 14th), to compel states to do, or refrain from doing, certain things. That is why it sets out a specific federal reaction short of physical force (adjust representation in the federal legislature rather than send in the federal troops) to a potential state action of which the federal government disapproves. If the 14th implied or understood that the federal government has the constitutional power to literally compel states to do X, why would it ever need to contemplate any federal reaction to the absence of X other than to send in the federal troops and make it so?

          You think that because a state cannot deny an American citizen the privileges and immunities of American citizenship, that the disjunctive equal protection and due process clauses do not refer to long established legal rights in Anglo-American law?

          No. My understanding is that the incorporation doctrine rests on the meaning of the phrse “privileges and immunities”, not the meaning of “equal protection” and “due process”. Yes, the 14th requires that states provide equal protection of the laws, but which laws? State laws, of course. It is one thing to say that a law passed by a state legislature or existing in a state constitution must apply to both blacks and whites equally. It is an entirely different thing to say that a law that has explicitly only ever defined what the federal government can or can’t do now suddenly defines what a state government can or can’t do. If a state law or state constitutional clause protects a citizen’s right to X, then the 14th would dictate that it must be applied to all citizens, black or white, equally. But on it’s face it doesn’t compel a state to necessarily protect that right. Only that, if it does, it must do so equally.

          The only way in which the 14th can be seen to be dictating that a state must protect specific rights (as a generic matter) is if one reads “privileges and immunities” to refer to the Bill of Rights. Only then does the incorporation doctrine make any sense. If “privileges and immunities” includes the Bill of Rights, then it is conceivable to read the text of the 14th to imply that not just congress (as explicitly stated), but state legislatures as well, are prohibited from making certain laws.

          So my question to you is that, if the 14th amendment was intended to do that, why doesn’t it just say that? Why does it use the phrase “privileges and immunities” if what it actually meant was “constitutional rights”? Why doesn’t it simply state directly that “No State shall make or enforce any law which shall abridge the constitutional rights of citizens of the United States”?

          Are you just arguing for the sake of argument?

          No, I am just not compelled by claims that do not actually address the arguments I am making.

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    • The rule of reason take from a homosexual rights blog –

      http://tinyurl.com/n36z6bb

      Yes, you can be a supporter for LGBT rights, same-sex marriage, and religious freedom. What you can’t be is an authoritarian statist and a defender of liberty.

      “…there is a social problem in this country about gays filing lawsuits against people who don’t want to participate in their weddings.”

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  19. No. My understanding is that the incorporation doctrine rests on the meaning of the phrse “privileges and immunities”,.

    That is your misunderstanding, not my understanding. Incorporation doctrine relies entirely upon the due process clause. What are the rights of property, liberty, and life that cannot be taken without due process? In defining the liberty rights that cannot be taken, the Court has one-by-one included the liberties defined in the Bill of Rights, beginning with speech in Gitlow.

    I concede that Congress got caught up in the argument about whether the 14th was enough to give blacks the franchise, and resolved the issue with the 15thA. I should not have used the franchise as an example.

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    • Mark:

      That is your misunderstanding, not my understanding.

      If so, it is not just my misunderstanding.

      According to legal scholar Akhil Reed Amar, the framers and early supporters of the Fourteenth Amendment believed that it would ensure that the states would be required to recognize the same individual rights as the federal government; all of these rights were likely understood as falling within the “privileges or immunities” safeguarded by the amendment.

      http://en.m.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

      By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states.

      http://law2.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm

      But in any event, basing incorporation on the Due Process clause makes even less sense to me othan basing it on the Privileges and Immunities clause. Due process refers to the method by which something is done, not the fact that it is done at all. Which is to say that it actually does allow the government to deprive citizens of life, liberty, and property as long as the proper procedure is followed. We need not ask, as you do, “what are” the rights of life, liberty, and property. The clause means what it says. The state may not take your life (death penalty), your liberty (imprisonment), or property (fines/taxation) without a certain process. But, provided that the state does follow that certain process, it actually can kill you, imprison you, or take your property.

      To me the due process clause was obviously meant to end the arbitrary and extra-legal punishment of blacks by imposing the same restriction on the state government that the constitution imposed on the federal government via the fifth amendment. It strikes me as rather odd to think that the 14th was meant to impose the 1st amendment (among “selected” others, and by selected we mean selected by the Supreme Court…interesting, that) on states, but instead of simply saying so, it instead incorporates the language of only the fifth amendment, which actually doesn’t prohibit the government from doing anything at all (as the 1st does), but rather merely proscribes the manner in which punishment must be imposed, ie via an objective, legal method.

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      • Scott – Of course the first incorporation case was Chicago, Burlington & Quincy Railroad v. Chicago, 1896. The eminent domain provisions of the Fifth Amendment were incorporated in the Due Process Clause of the Fourteenth Amendment and bound the states. Chicago condemned some RR ROW and paid the RR $1.00. The railroad appealed the judgment, alleging that the condemnation deprived it of its property in violation of the Due Process clause of the Fourteenth Amendment. The Supreme Court of Illinois affirmed the judgment.

        In a 7-1 decision, the Supremes held that the Due Process clause required the states to award just compensation when taking private property for public use. While the Court warned of the danger of a government that did not have any restraints in exercising eminent domain, fair compensation could address that danger. Since the procedures specified in Illinois’ general statutes were followed in the case, the railroad’s 14th A rights were not violated.

        In 1926[?]Gitlow argued at his trial and on appeal that trying him for spreading socialist literature in NY state court was a violation of his 1st A rights of speech and press, by reason of the Due Process Clause protecting his liberty in state court.

        The precise question presented, and the only question which we can consider under this writ of error, then is, whether the statute, as construed and applied For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.[9]

        The Supremes ruled that indeed the liberties of speech and press were guaranteed, but the state statute was not unconstitutional as it was applied to Gitlow because he was advocating incitement.

        No subsequent case that “incorporated” a right even mentioned P+I as far as I can recall, all of them came up raising the issue that a fundamental liberty was being denied without due process of law. I understand your argument to be that due process is HOW a right can be limited, but in order to get anywhere with an argument that a fundamental right is being denied one must say that it IS a fundamental right, and thus due process is required.

        Thus the framing of a lawsuit leads to the result: incorporation, in every case, comes up because someone in a state court claimed s/he was denied due process in the taking of property, or liberty, or life.

        Like

        • Mark:

          I understand your argument to be that due process is HOW a right can be limited, but in order to get anywhere with an argument that a fundamental right is being denied one must say that it IS a fundamental right, and thus due process is required.

          I don’t understand your introduction of the notion of a “fundamental right”, or its distinction from any other presumably non-fundamental right, in connection with due process. The 14th amendment doesn’t mention “fundamental rights”, nor does the 5th amendment. It only mentions “due process” with regard to denying life, liberty, or property. The necessary implication is that the state is allowed to deny such things as long as a given process is followed.

          But the first amendment says flatly that “congress shall make no law…” So it in fact goes well beyond the notion of simple “due process” by stating that certain things cannot be criminalized even if due process is followed. The first amendment represents a greater restriction on governmental action than does the due process clause of the fifth amendment. Which is why it makes no sense to claim that the due process clause of the 14th, which mirrors the 5th, requires the incorporation of the first amendment (and judicially selected others).

          Simply put, due process says that one may not be punished for a crime unless the state follows a particular process, but it doesn’t say what can and cannot be criminalized, which is what you seem to want it to say. To me the due process clause is perfectly understandable on its own, and could easily exist and perform its function even if, say, the first or second amendment didn’t exist. You apparently believe that the due process clause is unintelligible without the first or second amendment establishing what our “fundamental rights” are. I don’t understand where such an interpretation possibly derives from.

          I understand your argument to be that due process is HOW a right can be limited, but in order to get anywhere with an argument that a fundamental right is being denied one must say that it IS a fundamental right, and thus due process is required.

          Again, I don’t understand your introduction of the notion of a “fundamental” right or the need to establish what these “fundamental” rights are with regard to due process. If the government is trying to kill you, or imprison you, or take your property away from you, then we need not inquire any further…due process must be followed.

          Then the question becomes, was due process followed? Well, if the law was passed by the legislature in the same way as all other laws, and signed by the executive in the same way as all other laws, and enforced by the police in the same way as all other laws, and the courts adjudicated any accusations of violations in the same way that it adjudicates all other law, then it seems to me that due process was followed.

          Might there be some other reason that the law is unconstitutional? Sure, it might be explicitly prohibited somewhere else in the constitution, but it being prohibited under some other clause of the constitution doesn’t mean that due process wasn’t provided in the first place. You seem to be trying to suggest that if the federal government is explicitly prohibited from enforcing certain kinds of laws even if it follows due process, it necessarily become a violation of due process for any government to enforce those kinds of laws. I don’t see any logic supporting that position.

          Like

  20. Scott – “fundamental right” in this context is, first and foremost, a right not to be denied life, liberty, or property without due process of law. Life, liberty, and property are fundamental rights in this context, as well.

    Constitutional due process includes some American innovations in the common law at the time of the founding.

    First, a statute must be explicit enough to put a reasonable man on notice of what it allows and prohibits – and, in a criminal case, it must be VERY specific.

    Second, one is entitled to notice of the complaint against him.

    Third, one is entitled to a fair and impartial hearing with a right to confront the evidence against oneself and produce evidence of one’s own.

    These first three safeguards were considered fundamental procedural rights.

    Later, the Supremes added substantive due process, which has been and remains a minefield.

    Since 1896 the Supremes have been defining which of the enumerated rights in the BoR are included within the fundamental rights of life, liberty, and property, or within the fundamental procedural rights that constitute notice-confrontation-fair hearing, and are thus mandatory upon the states.

    The process is largely judicial because the controversies arise in cases brought by litigants in courtrooms. From early America the right to counsel in a federal felony was recognized under the 6th A. to be fundamental to protect the rights of L, L, and P. It does not take a great bold leap of imagination to say first that is an explicit part of the fair hearing/confrontation/evidence production due process right of the common law at the time of the BoR. It does not take a second great bold leap to say if that is part of the due process right it is applicable to the states thanks to the 14th A.

    A related but not entirely relevant personal story.

    In my very first federal case, in 1968, I went to the USDC in Austin with a Master Sergeant at the Killeen Defense Atomic Substation who had been stripped of his security clearance without a hearing. Actual reason: his daughter knew the Colonel’s daughter was a pothead. Colonel wanted daughter to be removed from Killeen. I petitioned the court to force the Army to constitute a notice and hearing procedure that complied with the APA, which applied to the military as well as civilian employees of the government. I of course argued that my client had been denied due process under the 5th amendment. Immediately upon my introducing myself to the Court, Judge Roberts growled “I read your brief, and all I want to know from the Army counsel is whether it is true this man was denied a hearing.” The JAG officer admitted there was no hearing and further conceded the entire case.

    Afterward, he took me aside and asked if I knew the entire story and I said I knew what I had been told, about the daughters. He said that was the whole thing in a nutshell and asked if my client would agree to a transfer to the DASA at Los Alamos, which in fact was like winning the lottery for my guy.

    Meanwhile, Judge Roberts issued an opinion that relied on the 5th A. due process clause as well as the APA and he characterized the loss of a security clearance as the taking of a mixed liberty and property interest without a fair hearing.

    In that courtroom I could have come back later with a case of a state termination of a state employee’s state security clearance without a hearing on 14th A. grounds because of how Roberts had defined loss of a security clearance. If I had, he probably would have forced the state to initiate a notice-and-fair hearing procedure. In fact, TX adopted such a procedure soon after but I do not recall if it arose indirectly from a court ruling or spontaneously from the lege. When I was a legislative clerk, in law school, I worked on a state APA that did not pass, but I think one was passed in ’69 or ’71.

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    • Mark:

      Scott – “fundamental right” in this context is, first and foremost, a right not to be denied life, liberty, or property without due process of law.

      It makes sense to me to say that due process itself is a “fundamental” right, but it doesn’t make sense to me to claim that in order for due process to exist, the substance of laws must be evaluated against other “fundamental” rights like the first or second amendment. Due process is about exactly that, ie process, not substance. I will agree with you that it is not a big leap to say that a legal process such as the provision of legal counsel, that might be required as part of the fed’s due process is also, as a result of the the 14th amendment, now required of the states. But it is a gigantic leap to then move from that to saying that requirements placed on the federal government that have nothing whatsoever to do with process are also required of the states as a result of due process. In fact it is less a gigantic leap than it is a hyperspace teleportation from one universe to an entirely different and unrelated universe.

      Life, liberty, and property are fundamental rights in this context, as well.

      Well, yes, but understanding that does not require incorporation, and I remain baffled as to the logic behind thinking that it does. As mentioned earlier, the denial of life, liberty, and property simply refers to imposition of the death penalty, imprisonment, or fines/taxes. These are the three primary methods by which government effects punishment for violations of the law. And the plain language of the due process clause suggests only that, before the government can effect such punishments, it must follow a particular process (which you have helpfully listed out). It does not, either on its face or through implication, comment on what the substance of laws must or must not be in order for violations of them to be punishable. Yet that is precisely what incorporation does. It disallows states from enforcing laws of particular substance, and has nothing at all to do with process. So when you or some Supreme Court justice claims that due process requires incorporation of the first or second amendment, I am totally baffled. There is nothing about the words in the due process clause that say or imply that it is the case. In fact it strikes me as a complete non-sequitur. You raise the issue of “fundamental rights”, as if the existence of legal rights apart from due process rights somehow transforms the notion of process into one of substance. I don’t understand the logic in that.

      Is it possible for due process rights to exist in the absence of, say, the first and second amendment? I think it is obviously possible. The federal government could have the power to, say, outlaw gun ownership or certain religious practices but still be required to follow a particular process in passing, enforcing, and adjudicating those laws. So I have no idea what makes you think that an explicit requirement for states to recognize and respect due process rights implicitly requires them to also recognize and respect the first or second amendments. The connection you apparently see seems nonexistent to me.

      Like

      • Just to be clear, according to Blackstone the original understanding of “Free press” meant almost completely free of prior restraint, but sometimes punishable for consequences after the fact – libel, incitement, porn.
        I take those freedoms of speech, press, and religion, as well as the establishment clause, as being amendments that fleshed out some of the liberty rights that could not be taken. Same with bearing arms.

        Of course, one could have due process in a vacuum in which it was not protecting rights of citizens. That is an empty counterfactual. We have due process to protect rights that are deemed of such significant value that loss of them would limit the life, liberty, or property rights we seek to protect.

        Which is why all of us here think the Kelo case is truly awful. Certainly, the property owners were “duly processed”, but their rights were abused, in our view. The Supremes said the property owners simply did not have the rights, vis-a-vis local gummint, we all thought were our heritage. Incorporation did not help because the Supremes were effectively saying any level of gummint can take your property for a private for profit rental unit development if it would raise taxes for the unit.

        I hope that is an example for you of why it is so important to know what is a right of L,L,or P when raising the due process argument.

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        • Mark:

          Of course, one could have due process in a vacuum in which it was not protecting rights of citizens. That is an empty counterfactual.

          I have not proposed such a counter factual. Due process is the articulation of a right in itself, specifically the right to a particular process before being punished by death, imprisonment, or confiscation of property. It is not an admonishment to respect other, unspecified rights. If that process is being followed with regard to law making, enforcement, and adjudication, then the articulated right has been protected. I have no idea what it even means to have “due process in a vacuum in which it is not protecting rights.” If due process exists, then by definition the right which the clause demands be protected is being protected.

          Instead of addressing what you claim is an empty counter factual, let us take up the specific example I actually raised. We can easily imagine a constitution in which the second amendment did not exist. Plenty of people today actually would like to make that the case. So, if the second amendment did not exist, and the federal government had the constitutional power to prohibit the personal ownership of firearms, do you think that fact would suddenly leave the due process clause of the fifth amendment empty of content? Or would the due process clause continue to have meaning by actually requiring that the making, enforcement, and adjudication of laws prohibiting the ownership of firearms be executed via a particular process?

          Like

        • So, if the second amendment did not exist, and the federal government had the constitutional power to prohibit the personal ownership of firearms, do you think that fact would suddenly leave the due process clause of the fifth amendment empty of content? No.

          Or would the due process clause continue to have meaning by actually requiring that the making, enforcement, and adjudication of laws prohibiting the ownership of firearms be executed via a particular process? (except for “making”)Yes.

          And do you think the 14th A. could be said to require a state not to restrict the right to bear arms without due process if there were no 2d A.? I don’t. Thus your example is inapposite to incorporation doctrine, as it applies to express rights in the BoR.

          You have conceded the rationale for the procedural safeguards of the BoR being incorporated. These would be the 4th, much of the 5th, 6th, 7th*, and 8th A.s off the top of my head. You only balk at the incorporation of substantive rights that cannot be limited without due process;the part of the 5th dealing with eminent domain, the 1st and 2d, and quartering troops. Right?

          *7th has never been “incorporated”.

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        • Mark:

          Yes.

          So, then, we have established that due process can exist even if the “fundamental” right to bear arms does not. That is to say, whether or not due process rights are being protected, and whether or not the “fundamental” right to bear arms is recognized, are totally separate questions. So, if due process can exist in the absence of recognition of the right to bear arms, then I see no reason to conclude that the 14th amendment’s explicit requirement that states provide due process should be read to imply that states must also recognize a right to bear arms. You seem to think it does, and I do not follow your logic.

          And do you think the 14th A. could be said to require a state not to restrict the right to bear arms without due process if there were no 2d A.?

          Of course I do, just as I think it requires a state not to, say, restrict the right to snort cocaine without due process, the relevant phrase being “…without due process”. The 14th amendment requires a state to provide due process with regard to any law, regardless of content, that it wishes to punish people for violating. Surely I must be misunderstanding what you are asking me, because I find it hard to believe that you disagree with that.

          You have conceded the rationale for the procedural safeguards of the BoR being incorporated.

          Sure. The argument that the specific “process” required by “due process” includes the processes already required of the federal government seems rational to me.

          You only balk at the incorporation of substantive rights that cannot be limited without due process…

          No, I balk at the incorporation of rights that cannot be limited by the federal government even with due process. The second amendment doesn’t say that the right to bear arms shall not be infringed without due process. It says that the right to bear arms shall not be infringed. Period. As I said earlier, I read the 1st and second amendments to be even greater restrictions on what the federal government can do than is the due process requirement. The due process clause tells the government how it must do what it does, not when it can and can’t do what it does.

          Can the federal government pass and enforce laws regulating interstate commerce? Sure, but it still must follow due process when doing so. Can the federal government pass and enforce laws regulating the free exercise of religion? Absolutely not, even if it does follow due process when doing so.

          Like

  21. @markinaustin: From your link: “According to CNN Legal Analyst Jeffrey Toobin, it’s likely that a refusal to serve a gay person wouldn’t stand under the law, but a refusal to provide a service for a gay wedding would”

    Am I incorrect that “likely” is too soft a term, and that “it is 99% certain” that refusal to serve a gay person would not stand under the law? I’m not sure refusal to serve a person who looks normal but you happen to know is a Satan worshipper would work, if they were just getting something that everybody else gets from your establishment.

    I suspect part of the issue has to do with the definitions of services: those who anticipated using the law to allow people to religiously object to gay marriage made a clear assumption: gay marriage is a distinct and separate thing from heterosexual marriage, so that one could reasonably provide services for hetero marriages but not gay marriages, the way limo services might rent for weddings and anniversaries and other special events but exclude proms.

    Ultimately, the battle was heated because, to many (consciously or unconsciously) it’s about whether or not gay marriage and hetero marriage are the same or different things. Implicitly, using religious beliefs to refuse to service a gay marriage says: it may be legal, but a gay marriage and heterosexual marriage are not the same thing by definition. Those on the normalization side want gay marriage and heterosexual marriage to be conceptually, legally, and culturally identical. Thus why such a pitched battle over a law so similar to existing federal and state laws that saw no such battle. It’s the first case where the passing of the law had an implied or assumed role in determining that gay marriage and hetero marriage are different things and can be treated and thought of differently.

    I think that’s the same reason that civil unions did not work for gay marriage advocates: it continued to treat the union of a gay couple as different and perhaps less than the marriage of a heterosexual couple.

    I could be wrong about that. But that’s my take.

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    • I think Toobin’s take is “rule of reason” stuff but that your social commentary is certainly in the background. He is seemingly emphasizing the difference between merely selling goods and participating in an event, I think.
      A costumer could not under these typical ordinances fail to refuse a costume in stock to a homosexual, but I think he could refuse to design costumes for a gay pride parade with impunity. That’s my guess as to the distinction Toobin meant.

      Like

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