Home » 2014

Yearly Archives: 2014

2014: An Election about Nothing

The election postmortems all suggest that 2014 is the year of the Republican resurgence, backlash against the President and a rejection of politics as usual in Washington. Maybe the next two years—the last of the Obama administration—will confirm this. But, for now, the election data reveal that this was an election that tells us very little about political change in the United States.


The Democrats should have done much better. Historically, a good economy works in favor of the President’s party. Sure, there are many economic indicators out there. But, those that appeal to folks should have resulted in a much better showing for the Democrats. Gas prices are low and continue to fall. The Dow and S&P 500 are up nearly 100% over the last 5 years. Unemployment has dropped from about 8 to about 6%. The positive economic data abound. But, the Democrats suffered huge losses.


Instead, polls consistently indicate that voters are preoccupied with economic fears. They distrust government and want change. Yet, they voted in record low numbers. Current estimates suggest that turnout nationwide will be about 37%. That’s low even for a midterm election—and the lowest since the Second World War. While ushering Republicans into governors’ seats and state legislatures across the nation, voters wasted their time in congressional races where pundits ranging from Charlie Cook to the Center for Voting and Democracy estimated that some 370 seats (85%) in the House were either completely safe for the incumbent or, worse blowouts.   In Virginia, turnout matched the national average of about 37% and the winners in congressional elections in the commonwealth all polled about 60% or better. This is hardly the stuff of competitive democracy.


As pundits and pollsters now turn to focus on who will run for president in 2016, we see the indicators of the political disarray that has characterized the nation for some time. Polls suggest that nearly a dozen Republicans are viable contenders for the party’s nomination. Some would say this is a good thing—a triumph of democracy. It’s also a manifestation of a lack of focus and the absence of a political center for the party. If we look at the heirs to Ronald Reagan and George W. Bush, the list includes names such as McCain, Palin, Romney, Huckaby, Ryan, Christie, Paul…. Plot those characters on a partisan map and see if you can find a point that represents a coherent ideological center. It is not there.


Looking then, towards 2016, we see that 2014 is much ado about very little.   Low turnout and voter malaise hardly translate into an endorsement of a coherent GOP agenda or response to the President. The GOP ran a brilliant campaign against an unpopular president on a district-by-district level. But, this is easy compared to the challenge of mounting a coordinated, coherent national campaign in support of one political standard bearer for a party that suffers from deep divisions.


Meanwhile, Hillary Clinton is the clear favorite to win the Democratic nomination.

Looking to an election between Hillary Clinton and the standard bearer for a very divided Republican party, it is difficult to discern the issues over which the campaign will be fought. Neither party offers a coherent message to the voters. The Democrats, under Obama, took back the presidency under banners of “hope” and “yes we can”. The GOP mounted an opposition that responds, essentially, with assertions of “no you won’t” in the absence of any other coherent vision of proactive governing.


One wonders why such a system fails to beget meaningful political change. Perhaps America really is too big to fail and, as a result, a politics of unbeatable incumbents and voter frustration will continue to characterize the nation.   The rules governing campaign spending, the gerrymandering of legislative districts and the costs of running for office all erect tremendous hurdles to those who would look to bring about systematic change. That’s why we can have an election in which 85% of the Congress is returned to office unscathed and, yet, polls indicate that voters want change in Washington.

Technology, Democracy and Liberal Education

Bryan Alexander and I  in the Norfolk Virginian-Pilot on how these three go hand in hand.



Revisiting Boston Sports Agony: Hope, Glory, Satan, the Babe and the Civil War

Sometimes a Super Bowl victory is not enough.

From the ROANOKE TIMES, 12 February 2002


USUALLY, I write opinion pieces on political issues. This is no exception. The New England Patriots’ Super Bowl victory Feb. 3 got me thinking about one of the most important aspects of American politics: the enduring divide between North and South.
I got back to the old Bostonian roots that night as the Patriots won the most exciting Super Bowl ever. I ran outside, bellowed to the moon, called my dad, my brother, my buddy in the upper peninsula of Michigan, my college roommate and just yelled for joy. Called my brother back and barked some more. But it was not good enough (talk about pathetic).

If you find a native Bostonian (or New Englander) nearby, look him or her in the eye. You’ll see that this Super Bowl victory was magnificent, fantastic, blessed, just, awesome (uh, for you New Englanders, that would be wicked), incredible, redeeming and absolutely not enough in the face of the Curse of the Bambino.

Yup. That’s it. It does not matter what happens. Boston bleeds for the Red Sox. Until Tom Brady suits up for the Sox, and pitches their way to a World Series victory (only after beating the Yankees in the playoffs), no true Bostonian (or New Englander for that matter) will be able to sleep at night, shave or walk out to get the paper in the morning without getting irritated.

To the gentle Southern reader, this may seem incomprehensible. How much do you Bostonians want? How could the Sox get me down when the Patriots won the Super Bowl?

What do Northerners know about pain? When I first came to teach at Washington and Lee, it was pointed out to me that the difference between a Southerner and everyone else is that everyone else can go 10 minutes without feeling pained about the Civil War. Every Southern boy, it was explained to me, shares the same passion that rose with Pickett’s charge on the way to the high point of the Confederacy at Gettysburg.

Well, I’ve been to the high point at Gettysburg and it does not compare to the spirit of agony that haunts Fenway Park. The Patriots’ victory proves the one fact that will horrify Southerners and Bostonians alike: They are equally tormented.

Dallas has won a couple of Super Bowls, and the Atlanta Braves have won the World Series. Did this make up for coming in second in the recent unpleasantness? Apparently no. So there.

This apparent bond is bound to cause consternation in Dixie: The torment suffered by Red Sox fans is actually worse than that suffered by the South. The South came in second only once. The torment of the South is finite. Boston agony renews itself annually.

The difference between a Red Sox fan and the rest of the world is that the rest of the world can go 10 minutes without being ticked off about the curse of the Babe, the 1946 World Series, Bucky Dent, Bill Buckner, etc. (Note to the reader: There is a dark religious significance in this. BUCKy Dent. Bill BUCKner. B, U, C and K are the second, 21st, third and 11th letters in the alphabet. Add them up and that comes to 37. Divide 37 into 666 and you get 18. That’s three sixes. If this curse is not satanic, nothing is.)

The South came in second to the likes of Ulysses S. Grant and William T. Sherman. How many Confederate generals (or, for that manner, self-respecting privates) were called Bucky? Buddy, maybe. Bubba, possibly. But Bucky? There is no dignity losing to a Bucky.

It’s not as if the South is going to wake up this spring with hopes of winning the war this year. It’s not as if Birmingham goes to bed at the beginning of October saying, “Oh, shucks. We’ll win the war next year.”

Bostonians suffer the sort of ongoing torment that is nurtured by hope. As long as baseball seasons begin after they end, there remains the hope that this year we can win the Series. Bostonians know real pain. We are the sports Prometheus. Every year, the Red Sox buzzard comes back and takes another bite out of us. We are the sports Tantalus. Just when we think we’ll drink the World Series water, it disappears from our lips.

So, the Patriots won the Super Bowl and the Red Sox still have not delivered. But at least Boston provides solace to those achy Southerners. No matter how bad their pain is, Bostonians suffer worse.

The last time the Sox won the World Series was against the Chicago Cubs. Their fans have suffered longer than those of the Sox! We are saved. Go Patriots! – and take the Curse of the Babe with you.

Sam Rasoul on Gerrymandering in Virginia

In a recent piece in the Roanoke times, delegate Sam Rasoul finished his call for redistricting reform with the following statement: “ Redistricting reform can stop the unethical practice of politicians drawing their own district lines, and reform can help our great commonwealth create a political atmosphere that encourages more solution-centered dialogue. Our futures depend on it.”

Gerrymandering has been a pox on American politics for more than a century. In the wake of the Voting Rights Act, it has become even more pernicious. Sticking to the letter of the law, state legislators and members of Congress have worked together to draw districts that will ensure the election of minority legislators as effectively as they used to be drawn to prevent this. Thus, in the wake of the VRA, “electoral reform” has resulted in the diversification of the class of unbeatable incumbent legislators.

Granted, this is, indeed progress. Minority political aspirants now can run for office and minority voters can now actually register and vote without being subjected to the various forms of heinous disenfranchisement that characterized U.S. politics before the passage of the VRA.

Nonetheless, if the fallout of the VRA has been to enable incumbents who are racial minorities to gerrymander themselves into office as permanently as those who are white, then it is clear that our incumbents have settled for some pretty low hanging political fruit. So, we now have more racially and ethnically diverse legislatures. But, incumbents remain unbeatable, elections remain generally uncompetitive and turnout in legislative elections is embarrassingly low. It seems that we’ve forgotten that voters—not incumbents—were the intended beneficiaries of the VRA.

Redistricting reform would be an important step to improving the conduct of elections and promoting the aspirations of the Voting Rights Act. Alas, only our incumbent legislators can pass the laws necessary to bring about the necessary reforms. But, it is unlikely that legislators will pass laws that will take away their control over the districting process that enables them to gerrymander district lines. Sadly, this process is absolutely undemocratic: it enables legislators to choose their voters—instead of the other way around.

We should heed Rasoul’s call for electoral reform. Legislators should not be allowed to draw legislative districts. It’s a conflict of interest. As well, we should look to simplify the political map of Virginia: use multimember districts in and around our cities so their citizens can vote together instead of having their interests divided. There is lots that can be done. Check out the Center for Voting and Democracy. They have a wealth of information on this topic. For now, though, sent a tweet of support to @Sam_R

Democracy and ISIS in Tunisia.

The New York Times ran this article by David Kirkpatrick, “New Freedoms in Tunisia Drive Support for ISIS,” on 22 October on the Arab Spring in Tunisia. In it, we see some of the subplots that were in operation throughout the movement. From the “western” perspective, this is a pro-democracy movement. This is inaccurate. While people across the Arab world do seek freedoms, they seek, more importantly, better lives. They will settle for a UAE-style illiberal state if life is good and sufficiently free. They do not seek western, liberal democracy.

Democracy does cater to the organized. Everyone from James Madison to Mancur Olson to Jonathan Rauch tells us that. In the Arab world, desires for freedom and better economic conditions were and remain tempered by the fear that democracy and elections will lead to rule by the Muslim Brotherhood or, now, ISIS.

Oscar Wilde said that the problem with socialism is that it takes up too many evenings. This concern was palpable during my time in the Middle East and remains so today. If democratic freedom means that one is now free to spend all of one’s free time combatting the political power of the Brotherhood or ISIS, many across the Arab world would settle for a much less liberal version of democracy than that to which westerners are accustomed.   Granted, this is a much easier tonic for folks living in oil-rich, stable states such as the UAE.


Nevertheless, it’s instructive to note that the circumstances under which democracy flourished in North America in the late 18th and early 19th centuries were a far cry from those across the globe today. The spread of democracy across the North American continent was neither bloodless nor always peaceful. Thus, it should come as no surprise that the spread of democracy in the wake of the Arab Spring is following a well-trodden path similar to paths it has taken across the world and throughout history.


Tags: Arab Spring, Democracy, Tunisia, Oscar Wilde

The Hobby Lobby Disaster—-from the Virginian-Pilot

The Supreme Court finished its term with a vitally important – and unfortunate – decision concerning religious freedom.

In Burwell v. Hobby Lobby, the court ruled 5-4 that for-profit corporations could opt out of generally applicable laws if they could demonstrate that abiding by the law would “substantially burden” their free exercise of religion. The high court ruled that Hobby Lobby and other like-minded businesses could exempt themselves from the Affordable Care Act’s requirements concerning contraception.

Hobby Lobby’s owners argued that the ACA substantially burdened their religious freedom because its requirements were objectionable to their beliefs. In this respect, the case seemed to be a classic example of a religious dissenter confronting the power of government. It was not. Instead, it embodied a clash of visions of religious freedom. The court had to choose between them.

Compliance with the ACA is not a burden on religious practice. If you choose to open a business, you must comply with rules of the marketplace that include everything from building codes to sanitation rules to employment laws. Abiding by provisions of the ACA that one does not like is no more of a burden on religious freedom than complying with speed limits or paying tolls when you are on the road.

Hobby Lobby argued that the Religious Freedom Restoration Act exempts it from religiously objectionable laws. In agreeing with this argument, the court deviated radically from prior rulings dealing with religious use of drugs in Oregon (Employment Division v. Smith) and religious exemptions from historical preservation laws (City of Boerne v. Flores).

In those cases, the court ruled that it was contrary to religious equality to privilege religious exemptions from laws. Thus, it would be unfair to allow religious groups to use drugs with impunity while subjecting nonbelievers to criminal prosecution. It would be unfair to allow a church to ignore zoning laws while forcing a neighboring business to abide by them. In siding with Hobby Lobby, the court has opened the door to religious exemptions that it had previously denied.

More important, Hobby Lobby’s exemption constitutes a great potential infringement on the beliefs (religious or not) of employees who do not share their employers’ convictions. In essence, siding with Hobby Lobby enables businesses to qualify the terms of employment on the basis of their owners’ or board members’ religious beliefs.

In many ways, the decision flies in the face of some of the great civil rights decisions of the 20th century. Under the last vestiges of Jim Crow, some business owners sought to deny African Americans (or anyone else) employment, entry into their businesses, service at lunch counters, hotels, movie theaters and so forth on the premise that a business is one’s private property and that the owner is free to serve or deny service to whomever he or she chose.

The court ruled in all of those cases that when you enter into the marketplace, you must leave some of your private beliefs and convictions behind – regardless of their source – and play by generally applicable rules of fairness.

Of course, religious convictions and discrimination are radically different. But, when it comes to employment, business, or access to government benefits, neither can serve as a barrier to customers or employees.

The court did emphasize that the decision applies only to the contraception requirement. Nonetheless, the decision encourages any business owner with a religious objection to a law or government program to look to secure an exemption. Workers could gain or lose rights and access to government benefits whenever they change jobs or employers or even if their company is purchased or taken over.

No doubt, Hobby Lobby’s defenders will celebrate the decision as a great victory for religious freedom.

In fact, it is the opposite: it will create religious tension where there now is none and it will ensure that access to the marketplace and government benefits is subject to religious restrictions. This is an unfortunate decision. Let’s hope the Supreme Court has the chance to revisit – and reverse – it soon.

350 Words on why third parties can’t succeed in the USA

The recent survey by Pew (http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/) has folks wondering about the direction U.S> Politics is taking. America has a very moderate political tradition. It embodies an institutional and historical rejection of European party politics. During the Founding Era, James Madison wrote his celebrated Federalist 10 in which he lamented the evils of faction. Alas, they are necessary to politics and include the notion of political parties. (Madison later acknowledged the necessity of political parties).

But, the American political system is designed to make it difficult for third or minor parties to succeed. In recent decades we have seen independent presidential candidates such as John Anderson and Ross Perot rise and fall. The winner-take all electoral system is designed to defeat small ideological parties because it is nearly impossible for them to win.

Some scholars celebrate this. It prevents the proliferation of narrow, ideologically distinct political parties (such as those that might spring from right-wing movements like the Tea Party) and forces such movements to join the ranks of the two larger parties, moderate their views and form successful governing coalitions under the umbrella of the Democrats or Republicans.

Unfortunately, there is no doubt that the major parties have atrophied as a result of the lack of true challenges outside of the duopoly they operate. Campaign finance laws favor the major parties. Legislative and congressional districts are gerrymandered to ensure that only Democrats or Republicans can win. And, the winner take all electoral system dooms third parties to failure in the long run.

We could change all this. American cites use and experiment with alternative electoral systems that enable small parties to grow. Europe has had multiparty systems for some time and European democracy flourishes.

Alas, as we have seen in the wake of the defeat of Eric Cantor, as soon as the major parties perceive a threat to their duopoly, they can look to close ranks (or, in this case, the nomination process) to prevent small parties from gaining power. Ironically, in the land of the free market, the political marketplace has the highest barriers to entry.

Piketty-Peak higher education

Very interesting comments posted by my colleague @BryanAlexander on Inside Higher Education re: “Peak Education” in the USA (apropos, “peak oil”).  Bryan emphasizes the extent to which the cost increases in higher ed will continue to render it more and more out of reach for all but the select few.

In the odd confluence of news articles department, an article appeared in the NYT on 18 April that detailed how the WH hosted the heirs to America’s vast fortunes.  Amazingly, it was in the STYLE section–not Politics or whatnot.

All this in the midst of the sturm and drang over Thomas Piketty’s Capital in the 21st Century.  Does higher education also reflect the trends that Piketty describes?

My Review of Michael Perry, HUMAN RIGHTS IN THE CONSTITUTIONAL LAW OF THE UNITED STATES. Forthcoming, Law and Politics Book Review.

Vol.24 No.3 (2014) pp.xx-

HUMAN RIGHTS IN THE CONSTITUTIONAL LAW OF THE UNITED STATES, by Michael J. Perry.  Cambridge: Cambridge University Press. 2013.  Paper.  ISBN: 97-1-107-66608

Reviewed by Mark Rush,

Michael Perry’s book is another important and provocative contribution to the literature on constitutional law and human rights.  In it, Perry carefully argues that particular human rights are now essentially “entrenched” in the United States constitutional fabric.  Judges should, therefore read the constitution as if those rights were actually in the text or, at least, interpret the constitutional text in a manner that promotes the entrenchment of the rights he discusses. These three rights are: The right not to be subjected to cruel and unusual punishment; the right to moral equality, and, the right to religious and moral freedom.

Specifically, he argues that the protection against cruel and unusual punishment renders the death penalty and torture unconstitutional.  Moral Equality protects the right to same-sex marriage.  Finally, religious and moral freedom embraces the right to an abortion. The principal basis for his conclusions is that the international rights community has moved clearly towards these visions of human rights.  Furthermore, the trajectory of the U.S. Supreme Court’s doctrine indicates a general trend in this same direction.  Accordingly, he concludes that these interpretations of rights are now, for all intents and purposes, entrenched in the U.S. Constitution.

Let me pause to say here that I found this to be an extraordinarily provocative, yet troubling book. On the one hand, I have nothing but great respect for Professor Perry’s work.  Further, I do, for the most part agree with his positions on the issues of same-sex marriage, torture, capital punishment and abortion.  Nevertheless, I found it quite difficult to agree with or be persuaded by the reasoning on which he bases his conclusions.

Granted, this is a work of political and legal philosophy and therefore, it should invite rebuttal and response along with agreement.  So, in that spirit, I offer the following friendly, yet critical analysis of the rationale underpinning Perry’s conclusions.  When dealing with such divisive issues, it is vitally necessary to construct airtight arguments to support one’s positions.  Alas, I found that Perry’s reasoning is not as airtight as it needs to be to support his conclusions or persuade those who might not agree with him.

To begin, Perry’s argumentation swings back and forth from a reliance on positive power (relying, e.g., on the force of global majority opinion to conclude that life begins at conception) to making prima facie assertions about the moral unacceptability of, for example, the death penalty: “no matter what the crime, punishing a criminal, even a mentally competent adult, by killing him or her is excessive – it crosses the line – and is evidenced as such by the fact that capital punishment has become demonstrably unusual.” (p.85)

A particularly troubling aspect of his reasoning is, ironically, his reliance on global public opinion.  Much of his argument about abortion, same-sex marriage, torture and punishment is grounded on the fact that international human rights laws and treaties have come to embrace the positions he supports.  In this respect, part I of the book is a truly useful, clear and concise overview of trends in the development of human rights law over the last half century or so.

But, relying on the force of global public opinion is, inescapably, taking a positivist stand.  Perry argues that, insofar as global public opinion generally condemns torture and capital punishment, maintains that life begins at birth and not at conception, and supports gay marriage, the U.S. should follow suit. While global consensus is important,. Perry’s argument in favor of supporting it in the U.S.A. begs the question:  would he be as supportive of global public opinion if it took a contrary stance?

As well, the nature of Prof. Perry’s argument casts the U.S.A. in a paradoxical light:  to the extent that American law might not agree with global public opinion, does the USA not, then take on the position of the Thoreauvian dissenter or conscientious objector whose moral principles are as entitled to respect and protection as those of the seeker of an abortion or same-sex marriage? I offer this point of view not to be argumentative but, instead, to note that the structure of Perry’s argument does leave the reader conflicted.

I found his analysis of the constitutional basis for banning capital punishment to be wanting.  Perry and I would assuredly find common ground in our opposition to the death penalty, but for different reasons.  His assertion that the ban against the death penalty is entrenched in the U.S. Constitution via the Eighth Amendment’s prohibition against cruel and unusual punishments is, with all due respect, incomplete at best and inconsistent at worst.  The due process clauses of the Fifth and Fourteenth Amendments countenance the death penalty explicitly:  neither life, liberty nor property may be taken without due process of law.  The Fifth and Fourteenth Amendments are no less entrenched than the Eighth.

Perry suggests that to the extent that most of the world’s nations have abolished the death penalty, it is now, indeed “unusual” as well as cruel (p.81).  There is merit to this argument. But, it is not clear that “unusual” is necessarily synonymous with “uncommon.”  Furthermore, there is no escaping the fact that majority support for a concept does not necessarily give it moral transcendence.  Majority support provides most certainly a positive, powerful, perhaps Hobbesian basis for a law, but not necessarily a moral one.

Perry thoughtfully acknowledges the problem with a blanket ban on capital punishment when he alludes to Cathleen Kaveny’s “A Horrific Crime” (pp.83ff.).  The reader can get the details of the unconscionable murder that Kaveny discusses in Perry’s text or in her article.  Suffice to say that the quadruple assault/rape/abuse/homicide by various means involved would test anyone’s objection to capital punishment.

Perry quotes from Kaveny to demonstrate the cruelty and inhumanity of the death penalty:

The execution is a separate event from the crime.  At the moment of execution, a criminal is helpless before the power of the state.  We strap him to a gurney and snuff out his life.  Can a society engage in this ritual while meaningfully advancing a commitment to the unconditional dignity of every human being? (p.85)

I note that Kaveny actually goes on to acknowledge that Thomas Aquinas himself suggested that the removal of some criminals from society is for the good of society – like removing a gangrenous limb.  But, Kaveny maintains that criminals are, like Frankenstein’s monster, created by the society that wishes to kill them.  Can society justify terminating their lives?

In the same way that Kaveny says that we must look at the criminals as part of society, so too must we look at the punishment as part of a series of events that includes many actions and choices by the criminals and that includes victims, and others.  This is not a heartless, faceless, soul-less state that has chosen to make an example out of a hapless “helpless” defendant.  The “helpless” defendant was in fact quite empowered perpetrating crimes – until the state, acting on behalf of the victims, caught him.

For many reasons, I do not support the death penalty.  But, it is clear that there are moral reasons for supporting it.  Even Justice Blackmun – who became one of the most outspoken critics of the death penalty – wrestled with the issue before changing his mind and declaring capital punishment unconstitutional.  As Justice Blackmun noted in FURMAN V. GEORGIA: “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty with all its aspects of physical distress and fear and of moral judgment exercised by finite minds.  . . .  Although personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped.”

Perry also struggles mightily with what would seem to be an easier case:  banning torture.  Yet, he acknowledges that, as Charles Fried notes, there may be, in unconscionably extreme situations, a justification for it – else the heavens (or the World Trade Center) might fall (p.51).  In the end, Perry makes a reasonable suggestion that we should deal with such extreme situations as they arise and, meanwhile, maintain unqualified bans on torture.  In this regard, he echoes Robert Jackson’s opinion in KOREMATSU v. U.S., where he argued, essentially, that the Supreme Court should not decide the case for fear of establishing a legal and constitutional precedent for race-based internment (or other) policies.

With regard to moral and religious equality, Perry contends that the rights to abortion and same-sex marriage are also entrenched in the U.S. Constitution.  It is with regard to these two rights that I find his notion of constitutional entrenchment to be troubling. Perry states that a right is entrenched in a constitutional document if “constitutional enactors entrenched [the right] in the constitutional law [sic],” and it has not been superseded by subsequent constitutional action or amendment or constitutional right (p.57).  So, essentially, a right is entrenched when someone entrenches it.  Until then? Citing Robert Bork, Perry goes on to explain that an entrenched right is

a practice that is “so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectation of individuals and institutions,” that the Supreme Court will regard the practice or right as constitutionally authoritative.  In some instances, this entrenchment is the result of Supreme Court decisions. (58)

This seems quite reasonable.  But, as written, it would justify perpetuating clearly established practices that we might not approve.

On the one hand, Perry argues for a very broadly-defined notion of religious freedom: practices protected by religious and moral freedom include not just practices one believes oneself religiously and/or morally obligated to engage in (p.119).  In this regard, virtually any firmly held beliefs or objections must be afforded religious and moral protection.

Yet, he also places qualifications on this broad definition.  First, to be afforded religious or moral protection, a belief must be a “core or meaning-giving beliefs” not mere “fundamental preferences we display as individuals” (p.120). Second, he notes that the International Covenant on Civil and Political Rights (ICCPR) regards religious rights as conditional (p.121).  Not just any practice can be deemed “religious.”  Accordingly, a government may ban or restrict a practice only if it

  • Serves a legitimate government purpose;
  • It does so in the least burdensome manner to belief-holders; and
  • The good the government seeks must be justified by the burden on the exercise of the religious claim (p.122)

Accordingly, Perry cites REYNOLDS V. U.S. and LUNDMAN V. MCKOWN as demonstrations of how religious freedom does not extend to extreme practices such as polygamy or the denial of medical care to one’s children (p.121 n. 26).  Citing Article 18 of the ICCPR, Perry condones such decisions because the ICCPR allows government  to act to “protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (p.124).

This still leaves the reader hanging, though.  Even a staunch advocate of rights to same-sex marriage may acknowledge that at least some of those who disagree might ground their antithetical positions on concerns of public safety, order, health, morals.  So, how do we distinguish valid restrictions from invalid ones?

Perry thoughtfully offers a distinction between laws grounded on secular morality and those grounded in sectarian morality:  “The right to religious and moral freedom leaves no room for the political powers that be to ban or otherwise regulate conduct based on sectarian belief that the conduct is immoral” (p.126).

Citing Joseph, Schultz and Castan (2004), Perry says that “public morals’ measures should reflect a pluralistic view of society, rather than a single religious culture” (p.125).  This is a thoughtful and reasonable way to distinguish among truly secular policies and sectarian ones that might be cloaked in secular clothing.  Still, it leaves the reader to wonder: How much overlap between a particular policy and a corresponding sectarian belief renders the former sectarian?

His discussion of world opinions concerning when life begins is instructive here.   While some institutions and persons may regard the issue as a religious one, others – particularly those seeking an abortion, may not.  Accordingly, to cast it as a religious issue does not necessarily strengthen the case for or against abortion rights. This is not an argument for or against a woman’s decision to terminate a pregnancy.  But, I offer it, again, as an example of where readers may find Perry’s reasoning troubling even if they agree with his policy preferences.

In closing, the reader should not regard my points of view, queries and rebuttals as manifestations of anything less than respect for Perry’s thesis.  One must respect another’s ability or capacity to find clear moral or otherwise principled grounds for particular stands on human rights.  One who finds amoral or practical (or other) justifications for such stands – even one who agrees with Perry’s stands – still might find his reasoning less than convincing.  Folks may share a cause, but not motivation.

That cause, which all certainly share, is the support of the principle stated in Article I of the Universal Declaration of Human Rights:  “All Human beings are born free and equal in dignity and rights.  They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”  In the end, and from the beginning, Perry makes his case against torture and capital punishment and in favor of rights to abortion and same sex marriage in this spirit of brotherhood.  In HUMAN RIGHTS IN THE CONSTITUTIONAL LAW OF THE UNITED STATES, Perry demonstrates that it is easier to share a cause than it is to agree on why we do so.


Bork, Robert. 1997.  THE TEMPTING OF AMERICA. New York: The Free Press.

Kaveny, C. 2010 “A Horrific Crime”.  https://www.commonwealmagazine.org/horrific-crime.  13

International Covenant on Civil and Political Rights.  United Nations.  Office of High Commissioner for Human Rights.  http://www.ohchr.org/en/professionalinterest/ pages/ccpr.aspx

Joseph, Sarah, Jenny Schultz and Melissa Castan, eds. 2004.  THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.  New York: Oxford University Press.


FURMAN V. GEORGIA 408 U.S. 238 (1972)

KOREMATSU V. U.S.. 323 U.S. 214 (1944)

LUNDMAN V. MCKOWN, 530 N.W. 2D 807 (1995)



Copyright 2014 by the Author, Mark Rush.

American Democracy, competing with itself?

In the February 1-2 edition of The Wall Street Journal, we find an Opinion page that makes us wonder whether we are living in one country or…many.  On the one hand, Walter Russell Mead (@wrmead) advocates (“A Strategy to Counter Democracy’s Global Deficit”– http://on.wsj.com/1bjLycJ) the export of American and liberal democracy through a more aggressive policy of spreading U.S. Education abroad and either through that initiative or in tandem with it, spreading the wisdom of the great western thinkers (Edmund Burke, Benjamin Franklin, Adam Smith, etc.) to the rest of the world by translating their works into other languages.

There is no question that the best defense is a good offense.  Mead’s suggestion is an eloquent call for the spread of American ideals and liberal democracy through, perhaps, the best aspect of soft power: the university and the marketplace of ideas.

Nonetheless, if we turn to look above the fold on that same page, we find Peggy Noonan (@peggynoonannyc) describing an America that would seem to have little to offer to the rest of the world (“Meanwhile, Back in America…”– http://on.wsj.com/1fomJNF).  There is something wrong when adherence to particular interpretations of liberal democratic principles may actually bring about an illogical if no undemocratic or illiberal result.  Just ask the Little Sisters of the Poor as they struggle to abide by the mandates of ObamaCare or parents in Louisiana as they fight to retain access to school vouchers for their children.

Certainly, there are imperfections and inconsistencies in any nation or ideology.  Nevertheless, if we wonder why the world seems to be resisting the spread of American or western-style democracy, we might simply pause to look first at our own house and get it in order.  It’s hard to sell democratic principles to the rest of the world when they seem ideally suited to driving the U.S. Congress to continued brinkmanship with the nation’s budget and debt ceiling.  The rest of the world scratched its head in wonder as the USA struggled simply to refine the filibuster.  Turning to Europe, we see the wages of European democracy as country after country struggles to maintain an unsustainable economic vision.

From the perspective of the Middle East or Asia, while soft authoritarianism or illiberal democracy may not be ideal, it is not necessarily regarded as a bad option in comparison to the west.  Across much of the Middle East, western style democracy—with free elections and freedom to organize politically—means trading stability, restricted freedom and perhaps peace for the freedom to spend every last waking minute battling the Muslim Brotherhood or other political forces who, because of their organizational skill and power, would easily take control through normal electoral means.  To paraphrase Oscar Wilde, “Democracy would therefore take up too many evenings” in battles essentially to protect ways of life that many folks already have.

Most certainly, one can look around the world and join Mead in lamenting that democracy and liberalism are not spreading their benefits.  Political conditions in many parts of the world are appalling.  But, it is sobering to realize that, as currently practiced, western democracy and liberalism do not present particularly attractive options.