Religious liberty is not absolute. Religious pacifists must pay taxes that fund wars. Medicare pays for blood transfusions, which are against the beliefs of taxpaying Jehovah’s Witnesses. The “free exercise” clause gave Mormons no exemption from laws against polygamy. Religious concerns deserve weight, but they are not trumps. They must be weighed against competing, secular interests.
These conflicts over the free exercise of religion are nothing new in American jurisprudence. As law professors Nelson Tebbe, Richard Schragger, and Micah Schwartzman explained:
In a line of cases going back decades, the Supreme Court has held that the government may not grant religious exemptions when doing so would impose significant burdens on third parties who are not beneficiaries of the religious accommodation. An important case is Estate of Thornton v. Caldor, which involved a Connecticut statute that provided employees with an absolute right not to work on the Sabbath day of their choosing. Although the law was passed to accommodate religious employees after the state revised its Sunday closing laws, the Court nevertheless found that it violated the Establishment Clause.
Writing for an 8-1 majority, Chief Justice Burger explained that under the statute, “religious concerns automatically control over all secular interests at the workplace; the statute takes no account of the convenience or interests of the employer or those of other employees who not observe a Sabbath” (472 U.S. 703, 709 (1985)). Because the exemption did not account for the secular interests of employees, it “contravenes a fundamental principle of the Religion Clauses.” To express that principle, Chief Justice Burger quoted Judge Learned Hand, saying: “The First Amendment . . . gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities” (472 U.S. at 710).
Religious employers are not free to impose their faith on their employees. Again, Tebbe, Schragger, and Schwartzman explained:
Supreme Court case law supports our understanding of third-party burdens. In United States v. Lee, the Court rejected a challenge by Amish employers who objected to paying social security taxes on behalf of their employees. Specifically, the Court found that the government’s interest in providing the benefits scheme in a relatively uniform way was compelling. It also explained that
“When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”
In a footnote, the Court said it was not considering whether Congress would have violated the Establishment Clause if it had voluntarily exempted the Amish employers in Lee. Yet it finds the rule against “impos[ing] the employers religious faith on the employees” to be important. Tellingly, when Congress extended a religious exemption after Lee, it only covered religious employers for wages paid to workers who share their beliefs.
A choice must be made between rival freedoms. And in the case of Hobby Lobby, the employer’s positive liberty can only be exercised at the expense of their employee’s negative liberty.
Hiking the minimum wage, as Paul Krugman said, “has little or no adverse effect on employment, while significantly increasing workers’ earnings.” And the Economic Policy Institute countered many other misconceptions. But there is one I loathe more than any other. It is the easy conceit that miserly pay for the working poor owes everything to their lack of productive skill and nothing to their lack of power. The latter is too often assumed away.
A company, as economists Samuel Bowles and Herbert Gintis said [PDF], “is a political institution in the sense that some members of the firm routinely give commands while others are constrained by the threat of sanctions to obey.” Not all actions can be specified in a contract—other means of coordination are necessary. Managers have not only the legitimate authority but the power to ensure compliance. They can deprive an employee of the assets with which they work and hire someone else.
Bowles and Gintis trace this power “to both the structure of markets and the structure of firms.” Employer power arises because employees are on “the short side of a non-clearing market,” which means “the side of the market on which the number of desired transactions is less.” Yes, firms are hierarchies, but short-side power “is exercised in markets, not simply outside markets or despite markets.” So long as having the job is better than being jobless and searching, the employee has a compelling reason to obey. The darker the prospect of being unemployed, the greater the employer’s edge.
As Bowles and Gintis said, “the exercise of power is ubiquitous in private exchange.” Therefore, “it is mistaken to think of society as composed of a political sphere, meaning governments and other bodies with formal powers of coercion, and a private economic sphere in which the exercise of power is absent.” L. T. Hobhouse also recognized this reality in his lucid book Liberalism:
In the matter of contract true freedom postulates substantial equality between parties. In proportion as one party is in a position of vantage, he [or she] is able to dictate his [or her] terms. In proportion as the other party is in a weak position, he [or she] must accept unfavourable terms.
A legal monopoly on violent force is not the same as a legal monopoly on coercive power.
Does a Hobby Lobby employee violate their boss’s conscience when they use their wages to buy morning-after pills? If not, what changes when those same pills are covered by the employee’s health insurance? Health benefits are compensation for services rendered. They are a form of personal income. There may be some legal detail I am missing, but from an economic perspective, I see no significant difference. I see payments, not to the producers of contraceptives, but to company employees by way of their health plans.
And given equal treatment under the law, couldn’t employers of any faith claim this authority? If so, whether an employee’s health plan covered vaccinations, blood transfusions, or psychiatric services could be at the mercy of their boss’s conscience. I doubt many on the religious right desire this outcome, because I doubt they mean the same thing as secular liberals when they say “religious liberty.”
For secular liberals, religious liberty means freedom from interference. We believe people should be free to exercise their own faith, so long as they do not unduly burden others. There can be reasonable disagreements about what constitutes an undue burden, but there is something more to this debate. Christian Nationalists conceive of religious liberty as their God having dominion. In the words of Rick Santorum, civil laws must comport with the law of his God, from whom they derive their legitimacy. One faith should be more equal than others.
There is some evidence that the owners of Hobby Lobby share Santorum’s worldview. This would make their demands more coherent. If contraceptive pills like Ella and Plan B are “abortifacients” (a dubious term), their use is a violation of the law of Hobby Lobby’s God. Policing their use, by any means possible, would be an exercise of religious liberty in the positive sense.
The Assassination Market is a website where bounties are posted on government officials. Two of its more popular targets are Ben Bernanke and Barack Obama. Anyone can anonymously contribute Bitcoins, in what Andy Greenberg of Forbes called a “Kickstarter for political assassinations.” The site runs on the anonymity network Tor. The bounties are posted for anyone who kills the target, but assassins only collect if they can prove their responsibility.
The market was allegedly created by someone using the pseudonym Kuwabatake Sanjuro. According to Greenberg, Sanjuro’s ambitions go beyond a few political killings:
He believes that if Assassination Market can persist and gain enough users, it will eventually enable the assassinations of enough politicians that no one would dare to hold office. He says he intends Assassination Market to destroy “all governments, everywhere.”
“I believe it will change the world for the better,” writes Sanjuro, who shares his handle with the nameless samurai protagonist in the Akira Kurosawa film Yojimbo. (He tells me he chose it in homage to creator of the online black market Silk Road, who called himself the Dread Pirate Roberts, as well Bitcoin inventor Satoshi Nakamoto.) “Thanks to this system, a world without wars, dragnet panopticon-style surveillance, nuclear weapons, armies, repression, money manipulation, and limits to trade is firmly within our grasp for but a few bitcoins per person. I also believe that as soon as a few politicians gets offed and they realize they’ve lost the war on privacy, the killings can stop and we can transition to a phase of peace, privacy and laissez-faire.”
Sanjuro claims only he can identify those who use the site. He advises contributors to launder their funds to preserve anonymity. He requires would-be assassins to announce the kill date in a text file. If I understand correctly, they must use a hash function on this message, which returns an encrypted value. This hash value must be submitted to the Assassination Market, along with a donation of one Bitcoin or more. After a target is murdered, the assassin will then submit the original, unencrypted text file. The hash function will then be used. If the returned value is the same as the one previously submitted, then Sanjuro will pay the bounty.
Sanjuro identifies as a “crypto-anarchist.” He only adds a suggested target to the hit list if he decides they have “initiated force against other humans.” Also, they must be “outside the reach of the law because it has been subverted and corrupted,” with Sanjuro defining subversion and corruption. By creating this anonymous market, he believes “the great equalising forces of capitalism have the opportunity to work in politics too.” The “forces of capitalism” are turned against the rule of law itself.
Not all enemies of the open society seek a closed one. There is also what Leszek Kolakowski called “the self-poisoning of the open society.” By this Kolakowski mean “not merely the inherent inability of democracy to defend itself effectively against internal enemies by democratic means alone but, more importantly, the process by which the extension and consistent application of liberal principles transforms them into their antithesis.” When openness itself results “in the paralysis of openness, then we are dealing with self-destruction.” Liberal principles are turned against themselves in an act of self-negation.
Doubt your grasp of John Maynard Keynes’s basic ideas? Are you dimly aware of them but wish for more light? If so, Mark Blaug made you a video.
Blaug was a great historian of economic thought. He wrote and presented a short documentary on Keynes’s life, his ideas, and their legacy. This one-hour film was created in 1988 and does not transcend its time. Stagflation was fresh in living memory, while the Great Depression was receding into the distant past. Blaug faithfully covered part of Keynes’s contested legacy, but, twenty-five years later, something more is needed.
Two extensions of Keynes’s work that I value were made by Hyman Minsky and G. L. S. Shackle. They further developed the ideas (respectively) of spontaneous disorder and radical uncertainty—our deep ignorance of the future.
Until now, opposition to the Affordable Care Act has been dominated by Tea Party zealots. As the exchanges open and the individual mandate goes into effect, I fear another kind of discontent could arise, one grounded in actual experience. Like, say, trying to sign up for coverage. Republicans may conflate the two, but liberals should not.
Even if HealthCare.gov were to work flawlessly by the end of this month, we would still have to learn what the Affordable Care Act means in practice. A good place to begin is with Trudy Lieberman, who has written a couple of posts “untangling Obamacare.” One post deals with affordability, cost sharing, and glib comparisons of apples, oranges, and pears. The other explains why buying health insurance in the exchanges will not be like buying an airline ticket online. Both posts are so rich in detail that I won’t try to summarize them.
Access to health care should be a right, not a privilege. It is undermined, not simply by a lack of insurance, but by costs so exorbitant they can lead to bankruptcy. It would be a welcome surprise if Obama’s attempt at reform succeeds on these terms, but I expect liberals have much more to do. Short of Medicare for All, Uwe Reinhardt has some smart ideas about all-payer regulation, and Michael Lind has called for federalizing Medicaid.
Although Tea Party Republicans are looking for any faults they can find to discredit the new law (as well as inventing ones that don’t exist), liberals must not be diverted into trying to explain away real problems. The focus should be on making health care affordable, on the purpose of policy. The Affordable Care Act is a partial means to this end, not its embodiment. If we are to build public trust in the face of “glitches” or worse, we must be prepared to admit where the means have fallen short.
What follows is an attempt to make sense of why I’ve been furloughed, just as the Tea Party planned. A good place to begin is with Jonathan Chait, who explained how the this faction is exploiting a fault in our political system:
[Juan] Linz, the Spanish political scientist who died last week, argued that the presidential system, with its separate elections for legislature and chief executive, was inherently unstable. In a famous 1990 essay, Linz observed, “All such systems are based on dual democratic legitimacy: No democratic principle exists to resolve disputes between the executive and the legislature about which of the two actually represents the will of the people.” Presidential systems veered ultimately toward collapse everywhere they were tried, as legislators and executives vied for supremacy. There was only one notable exception: the United States of America.
Linz attributed our puzzling, anomalous stability to “the uniquely diffuse character of American political parties.” The Republicans had loads of moderates, and conservative whites in the South still clung to the Democratic Party. At the time he wrote that, the two parties were already sorting themselves into more ideologically pure versions, leaving us where we stand today: with one racially and economically polyglot party of center-left technocracy and one ethnically homogenous reactionary party. The latter is currently attempting to impose its program by threat upon the former. The events in Washington have given us a peek into the Linzian nightmare.
How to settle this dispute? Here is where Linz’s analysis rings chillingly true: “There is no democratic principle on the basis of which it can be resolved, and the mechanisms the Constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate.” This is a fight with no rules. The power struggle will be resolved as a pure contest of willpower.
What then is the will of the Tea Party’s people? According to Michael Lind, they are fighting to retain provincial power and privileges:
The Tea Party right is not only disproportionately Southern but also disproportionately upscale. Its social base consists of what, in other countries, are called the “local notables”—provincial elites whose power and privileges are threatened from above by a stronger central government they do not control and from below by the local poor and the local working class.
Even though, like the Jacksonians and Confederates of the nineteenth century, they have allies in places like Wisconsin and Massachusetts, the dominant members of the Newest Right are white Southern local notables—the Big Mules, as the Southern populist Big Jim Folsom once described the lords of the local car dealership, country club and chamber of commerce. These are not the super-rich of Silicon Valley or Wall Street (although they have Wall Street allies). The Koch dynasty rooted in Texas notwithstanding, those who make up the backbone of the Newest Right are more likely to be millionaires than billionaires, more likely to run low-wage construction or auto supply businesses than multinational corporations. They are second-tier people on a national level but first-tier people in their states and counties and cities.
Yes, these “local notables” are responding to changing circumstances, but even they must appeal to something more than their own pecuniary interest. They may offend the West Coast and the Northeast Corridor, but they must take heed of local opinion. They must offer their constituents what Irving Kristol called a “morally meaningful criteria” for the distribution of power, privilege, and property.
Within the Tea Party movement (and, yes, it is a movement), there is an ideological core of “constitutional conservatives.” In their view, the Founders settled most if not all political controversies—from abortion to taxation—for all time. Ed Kilgore gave a smart summary:
[C]onstitutional conservatives think of America as a sort of ruined paradise, bestowed a perfect form of government by its wise Founders but gradually imperiled by the looting impulses of voters and politicians. In their backwards-looking vision, constitutional conservatives like to talk about the inalienable rights conferred by the Founders—not specifically in the Constitution, as a matter of fact, but in the Declaration of Independence, which is frequently and intentionally conflated with the Constitution as the part of the Founders’ design. It’s from the Declaration, for instance, that today’s conservatives derive their belief that “natural rights” (often interpreted to include quasi-absolute property rights or the prerogatives of the traditional family), as well as the “rights of the unborn,” were fundamental to the American political experiment and made immutable by their divine origin.
Granted, these revanchists have long had their share of racial prejudice, but Kilgore rightly insists there must be some account of their religion as well. There should be a deeper appreciation for how their “Bible-based values” often include libertarian economics. There is more common ground than many realize between the Christian Right and those who thump the works of dead Austrians. As Kilgore explained back in 2011:
On an institutional level, the merger of Christian Right and Tea Party interests is remarkably advanced. The alliance has served as the very foundation stone of the Faith and Freedom Coalition, the latest venture of that intrepid politico-religious entrepreneur, Ralph Reed, which has sprouted chapters in many states, most prominently Iowa, where it sponsored the first candidate forum of the 2012 cycle. There is even a term to describe this new strain of conservatism: the “Teavangelicals,” a subject of a recent broadcast by Christian Right journalist David Brody, which, among other things, examined the conservative evangelical roots of major Tea Party leaders. Most recently, a host of organizations closely connected with the Christian Right and “social issues” causes have signed onto the “Cut, Cap and Balance Pledge,” the Tea Party-inspired oath that demands a position on the debt limit vote that is incompatible with any bipartisan negotiations.
Hence the religious denunciations of Keynsian economics and tax increases as the moral equivalent of stealing. The sanctification of libertarian economics should come as no surprise. After all, a belief in an obvious and simple system of natural liberty easily shades into a belief in divine Providence.
In short, the Tea Party need not yield in their demands to mere polls or majorities, because the ultimate source of their legitimacy lies elsewhere. So, having failed to retake either the Senate or the Presidency, and having lost most of the constitutional argument before the Supreme Court, they are seeking new forms of nullification.
They have focused their ire on the Affordable Care Act, because they see it as the tipping point. They fear the law will expand the forty-seven percent of “takers” to a supermajority, which would mean their ultimate defeat. So, they shutdown the federal government. The odds of success were absurdly long, but given their desperation and rapidly-diminishing options, it made perverse sense.
Rather, it would have made some kind of sense if their shutdown had abolished the insurance exchanges, Democratic Senators had defected and forced the President to cave, and/or an overwhelming majority of voters had rallied behind the Tea Party, marched on Washington, and demanded repeal now. Likewise, if I had bought a winning Powerball ticket, I could have paid off my mortgage…