Let Us Pay For Them To Pray

In an opinion mercifully lacking in self-serving references to antiquated opinions of jurists dead for centuries, the Supreme Court of our Great Quasi-Republic has decreed that a law of the State of Maine in force since 1981 is unconstitutional.  The law provided that public funds (taxes) may, in certain circumstances (primarily where public schools are unavailable), be used to pay tuition to private schools of a parent's choice, provided the schools are nonsectarian.  A "sectarian" school is considered to be one associated with a particular religion or belief system, which teaches regular academic subjects but also promotes a particular religion or belief system or teaches subjects taught from the standpoint of that religion or belief system.

In Carson v. Maine, the Supremes have decreed that this cannot be, i.e. that if public funds are to be used in support of private schools, they must be used to support schools which promote a particular religion or belief system.  

The majority of the Court notes that this doesn't mean that public funds must be used to promote a particular religion or belief.   At this time (not yet?) the Court makes no such decision.  The majority points out that Maine may avoid this result by providing an adequate number of public schools.  Presumably, it may also do so by ceasing the program by which public funds may be used to pay tuition to private schools where there are no public schools.  If public schools are not available, it seems, it is constitutionally more appropriate that schools promoting a religion be paid public funds if public funds are used to promote education.  Constitutionally speaking, better no education at all than no religious education, saith the Supremes.

The majority makes an interesting distinction between past precedents against using public funds to benefit religions and its decision in this case.  It states that previous decisions prohibiting the use of public funds to support "church leaders" or education of religious clergy do not apply in this case.  In this fashion, a religious belief--a religion--may be supported by public funds, but particular adherents of a religious belief may not.  What, though, is the basis for this distinction?  Why is it significant?

It isn't clear to me that this is addressed by the Supremes.  It is, instead, merely a difference in circumstances relied on to avoid the need to acknowledge prior decisions as binding.  It's precedent-avoidance, of a kind indulged in by lawyers whenever they want to ignore the kind of reasoning employed in the previous case, and its holding.  

One wonders if the intent behind the doctrine of separation of church and state was to merely prevent the direct funneling of public funds to "church leaders."  Or if it was the intent that public funds be available to religious believers who are not religious clergy, but nonetheless to further the purposes of a religion.  In what sense is one or the other more likely to lead to or constitute the establishment of a religion?  In what sense is a person's ability to practice his or her religion impaired if he's unable to use public funds to pay the tuition of his children needed for them to attend a school promoting his or her religion?

I'm a cynical soul, I'll admit.  I think the number of citizens of U.S.A. who actually practice their religion, rather than merely avow it, is relatively small in comparison with its population.  Diogenes the Dog searched for an honest man. I think the search for a true Christian (for example) would be no more successful.  Practicing a religion in these times consists of simply following established rituals and ceremonies.  Perhaps that's always been the case.

But let's say that engaging in those rituals and ceremonies is practicing religion.  I doubt attending a secondary school will constitute such practice.

I, for one, would oppose the use of public funds to pay the tuition of any private school.  So the fate of this particular law is a matter of indifference to me.  The state may have an interest in an educated citizenry, up to a point, meriting expenditure of taxes received, but I don't think it can be maintained it has an interest in the promotion of any particular religious faith.

And that would seem to me to be the real question to be addressed.  Should, or may, public funds be used to pay the tuition of a Christian, or Muslim, or Hindu, or Jewish high school?  Perhaps Scientology has high schools also--I don't know.  I would say no, regardless of the religious faith being promoted.   It appears the majority of the Supreme Court would say yes.

 

Which Dystopia?

Let's cavil no longer, and admit what is clearly the case.  We live in a dystopia, a bad, harsh place according to the ancient Greek on which the word is based; a society in which its inhabitants live wretched, dehumanized and fearful lives according to Merriam-Webster Online.  Thomas More used the word "utopia" in his novel of the same name, a word meaning "no place."  His utopia was a nearly perfect society, but of course did not exist, being nowhere.  There can therefore be no utopian society, but certainly can be a dystopian one, as we have proved or may be in the course of proving.

Various authors have imagined dystopias, some famously.  But if we live in one now, which of the fictional dystopias is it most like?  Such things may concern some few of us who are citizens of this one in particular.

Some fictional dystopias commonly result from some kind of cataclysmic or apocalyptic event, such as nuclear war or natural disaster.  I find it hard to isolate the cause of our own dystopia.  There's probably no one cause.  In any case, lacking such an event I think we can't compare our dystopia to those depicted in such novels as The Road by Cormac McCarthy or The Drowned World by J.G. Ballard.

As a citizen of God's Favorite County, the U.S.A., I can imagine with relative ease a dystopia created by the machinations of a particular religious sect as in the case of Margaret Atwood's The Handmaid's Tale. The Abrahamic religions are inherently intolerant and exclusive, and the version of Christianity most popular here has always been particularly restrictive, though its adherents are notably flexible in their interpretation of the appropriate path whenever it suits them, which is to say for the most part whenever it limits their self-interest, selfishness and bigotry.

I doubt our dystopia can be called religious, however, as there is so much more contributing to the woeful condition of our society.  Economic inequality, for example.  I don't know that plutocracies have ever been considered dystopias, however.  Ayn Rand's Atlas Shrugged has been called a dystopian novel, but the plutocracy it idealizes, which separates itself from the rest of the world, is characterized as a utopia, made up of insanely wealthy geniuses some of whom seem to be aficionados of rough sex, like Ms. Rand herself.   It's unclear whether she considered a fondness for rape roleplay to be common among her super-men and women, if not a necessary condition of their exalted nature, but it figured prominently in her fiction.

The prevalence of violence in our dystopia, particular among the young, is reminiscent of Anthony Burgess' A Clockwork Orange.  Our suspicion of books and tendency to restrict what is taught brings Bradbury's Fahrenheit 451 to mind.  I don't think Orwell's 1984 is similar to what we have achieved to date, as we aren't quite as regimented and regulated, or unified enough, to be compared to its version of dystopia.  Also, our society isn't as puritanical.  We love our pleasures, and are committed to them and manipulated by them.  In that sense, it may be that dystopia as depicted by Huxley in Brave New World is more similar to ours than not.

Which brings me to The Garden of Earthly Delights, the peculiar masterpiece of that peculiar artist, Hieronymus Bosch, pictured above.  Paradise is on the left, hell on the right, and in the center is our world, in which we cavort.  Bosch portrays us as engaged in a grotesque romp.  The people he painted are silly, stupid, carnal, frenzied and mad.  Hell is obviously their destination--indeed, they seem to be rushing towards it.

One thing which I think has been lacking in fictional dystopias is the fact that we're quite capable of making our world a harsh place in which we live harsh and fearful lives simply by being stupid and ignorant.  I don't think it an exaggeration to say that stupidity and ignorance are two of the primary causes of our current dystopia.  What we accept and believe today as true is remarkably preposterous in certain respects. That we accept things as true without hesitation or efforts at verification is extraordinary in itself.  It's hard to think of other times when we've been so credulous, so willing to believe what we're told, particularly when it comes to our politics.  

As elections and primaries grow close here, we're inundated with commercials so pitiful, so corny, so clearly biased that it's difficult to believe they can be taken seriously by anyone.  Do those who create these vile, pandering, unintentionally comic advertisements really believe we're so shallow, so stupid, so easily manipulated?  Are we, in fact?

We all know the saying "The only thing necessary for the triumph of evil is for good men to do nothing."  It's been attributed to Edmund Burke and John Stuart Mill.  That may well be true, but our dystopia may have come about not because we've done nothing to prevent the triumph of evil, but because we've been too stupid to recognize the evil taking place, or understand what is good, or do good.  

I don't think a novel with this theme will be forthcoming.

Duck and Cover, Again

Some of us may remember Bert the Turtle, pictured above.  He cheerfully urged students of our schools to "duck and cover" in case of nuclear attack during the early days of the Cold War.  That consisted of diving under desks and covering heads with arms.  Thus, the effects of nuclear explosions were avoided, Bert (and presumably his creators) told us.  Perhaps some of the flying shards of glass and debris which might have resulted would have been blocked by desks and arms, but it's unlikely that incineration would have been avoided in any significant sense, and if anyone survived radiation would have served to eliminate them despite Bert's wise recommendation.  

But perhaps ducking and covering would be more effective against bullets than against ICBMs carrying nuclear warheads.  Clearly, the possibility of students being shot by someone carrying one firearm or another (it seems semi-automatic rifles are the most popular weapons of choice currently) is far greater than was (is?) the possibility of nuclear war.  Perhaps we should bring back the Duck and Cover drills, and it's to be hoped improve on them, this time in an effort to foil people who use guns to kill other people.  Guns, as we know, don't kill people.  But it seems undeniable that some people who have guns do kill others, particularly here and now.  People use guns to kill people.

A Renaissance of Duck and Cover drills or something similar is probably all, and likely more, than can be expected in response to the most recent mass murder.  Fantasies of owning guns to prevent the tyranny of government aren't what inspire objections to gun control or an absolutist interpretation of the Second Amendment.  It is, very simply, a question of money.  As long as money can be made manufacturing and selling guns here in our Glorious Union, the so-called gun control debate will continue to be meaningless and unproductive.  That people, even children, are shot has become part of the cost of doing business.

It's possible that technology soon may allow each of use to manufacture our own cheap firearms, in which case profits from making and selling guns will diminish.  Then the politicians who are mere shills for the gun and ammunition industries may be less inclined to do their bidding.  But in that case we'll all have guns, men, women and children, or easy access to them, and control won't be a practical possibility.  

But perhaps that's the goal, ultimately, of those who admit of no restriction to the ownership and possession of firearms.  They look forward to the day all will have guns, or perhaps when all must have guns.

A Tough Roe to Hoe

I almost feel obliged to comment on the remarkable leak of what seems to be a draft of a majority opinion of the Supremes reversing Roe v. Wade, and the remarkable nature of that opinion.  It's not something I enjoy doing.  Abortion is something to be taken seriously, and given serious consideration.  It isn't clear to me that serious consideration is possible in our times.  In this post, my comment will be limited to what I think is remarkable about the opinion, rather than its impact or its conclusion.

It's unusual for long-standing precedent to be reversed by a court, but it happens, and is possible in certain limited circumstances.  So I don't think the fact this opinion would if adopted reverse Roe v. Wade is remarkable in itself.

What is remarkable to me is the tone of the opinion and the nature of the argument made, in certain respects.  Its tone is angry and contemptuous.  The decision reversed, and therefore those Justices who made the decision, are ridiculed.  It seems a kind of rant; its author pontificates.  He seems to have a rather enormous axe to grind, and he makes a display of grinding it.  There's a kind of exhibitionism involved in writing of this kind.  It's unusual for a Justice of the highest court to write in this fashion, and it's especially unusual for a majority opinion on a very serious subject to be infused with such self-righteousness.  Sometimes, the author of a dissent will indulge in sarcasm.  But majority opinions make law.  Bismark famously commented that its best not to see how laws and sausages are made.  It seems that may be true of case law as well as law adopted by legislatures.

It's also striking that the author of the opinion goes to such lengths to support the claim that abortion has never been considered a right, and instead has been considered a crime.  The law as it existed centuries ago, and the writings of commentators on that law who also existed centuries ago, are seldom pertinent to any lawyer or court and are generally disregarded in the actual operation of the law.  They're the concerns of historians of the law.  Nobody cites Blackstone or Hale in court proceedings.  One may as well cite Ulpian or the Code of Justinian, if not that of Hammurabi.

It's remarkable that the author of the opinion failed to understand that engaging in such a rhetorical exercise would merely make him appear silly, or pedantic, or a crank, or antiquated, or prejudiced.  It can't be denied that the laws of the past were in many cases cruel and the result of injustice, bigotry and superstition which at least ostensibly have no place in the modern world .  Why bother referring to them in reversing a decision on the grounds that the right it relies on doesn't appear in a document so clearly the work of men of the Enlightenment--men who claimed rights the existence of which was denied, or at least thought subordinate to that of a King?

It's possible that this first draft in the normal course would have been modified to be less of a rant and more like a reasoned decision.  My guess is it certainly will be now that it's been exposed.  If not, then I suspect we'll see concurring opinions that are somewhat less virulent and less dependent on antiquated law and thinkers.

 

Free Speech and the Suspension of Judgment

Several times in this blog o' mine I've noted the confusion which often surrounds pronouncements and platitudes regarding what we enjoy calling free speech.  Here in our Glorious Union, it's claimed that our right to free speech is grounded in the First Amendment to the Constitution, which states that Congress shall make no law abridging the freedom of speech.  Strictly speaking, of course, no right is created thereby; it's a prohibition.  It doesn't say everyone has a right to free speech.  It says only that Congress may not adopt laws of a particular kind.  

Although many feel that the First Amendment provides that nobody may restrict our freedom of speech, it very clearly refers only to Congress.  Via the Fourteenth Amendment and case law, it's been extended to apply to actions by state and local as well as the federal government, but it doesn't relate to the actions of any person or entity which isn't a representative or agency of a government.  

One can if one wishes claim there's a natural or God-given right to free speech, but it's difficult to rely on such a claim to prevent someone from restricting our speech.  If we wait for nature or God to punish those who make us shut up or prevent them from doing so, it's more than likely that we'll be unable to speak when that happens, if that happens.

There's a kind of romance associated with free speech.  The picture associated with this post is of someone speaking at Bughouse Square in Chicago, across from the Newberry Library, where I labored as a student for a time (studying J.S. Mill and the Philosophical Radicals, interestingly enough).  The speaker is speaking from atop a box, possibly a soapbox as would be traditional.  The purpose of the box is to make the speaker visible above the crowd which (it's hoped) would be listening intently to what's being said.  This is an image which is conjured up from time to time in reverence to free speech--the common, or perhaps uncommon, person delivering views in public.

It's an attractive image, as is the idea of free speech itself.  Everyone should be able to speak their mind without fear of reprisal.  But in these sad times the tendency is more and more to claim that that everyone should be able to speak their mind no matter what they say and without objection or limitation.  Reprisal isn't required to violate free speech, according to some of those who self-interestedly champion free speech these days.  Vocal or active disagreement may violate the right to free speech, or a boycott may do so, even when by private persons.  Even shaming may do that, or not being allowed to say something in a particular (private) place or on privately owned media.

This is called censorship, and when it is called that those who make the claim also do so as a result of their confusion, or ignorance regarding the meaning of the word.  A censor is a government official.  Censorship is an official action, not a private one.

Even the First Amendment and the legal right it creates (to the extent there is a "right") is limited.  The government is not prohibited from restricting speech in certain circumstances.  Since the First Amendment doesn't apply to private conduct, it makes sense that a private person or entity would be able to restrict speech to a much greater extent than the government particularly where the speech is taking place in property the private person owns.

This shouldn't be surprising.  It should be even less surprising that certain speech is unworthy of protection beyond legal protection, and that no "right" to that speech exists.  People have no more right to indulge in malicious, stupid, ignorant, bigoted or hateful speech than they have a right to be malicious, stupid, ignorant, bigoted or hateful people.  Other people are perfectly free to object to such speech or people and act against them, within the law.

Free speech doesn't entail that all speech is equally worthy, or that there is no basis on which speech of any kind can be objectionable.  Free speech doesn't require that we suspend judgment when we encounter speech that is despicable and accept any view voiced regardless of its merit.   We need not tolerate all speech, just as we need not tolerate all conduct on the grounds that all people are free to do as they please.  The legal right of free speech and the First Amendment are poorly served by those who claim the right to say whatever they want whenever or wherever they want.