Religion in America - A town called Greece

I did a search on my blog to see how many times I've written about the Constitution and religion or about the role of religion in our society.  It is a topic I spend a lot of time, at least relatively speaking, studying. But, it turns out, for some reason or another, those thoughts don't end up here. So, I will have something to say about it today in terms of two recent cases before the Supreme Court, which in general concerns whether rather incidental religious acknowledgment has a place in our government and if so, how much and whether religious belief can exempt us from the law? I'm a wordy fellow and thus only going to tackle one today and perhaps the other next week (and when I say ''week," I mean, of course, "eventually."

Petitioning our government or litigating in court is a tense situation for most people. My experience is with court, not government, so I can speak more knowledgeably about that. I have ever noted that sometimes clients or adversaries come across with an almost blasé attitude towards the process. It is usually my opinion that at least much of the time it is feigned and they are masking a basketful of emotions which usually burst out at some inopportune time. And, although attorneys who regularly practice in court are more used to it, they have emotions too and in many circumstances are working hard to block the feelings underneath from showing. Lay persons go to court or the government expecting fair play - a government of laws, not men, and that their issues will be determined without favoritism. One of the biggest concerns of most attorneys I know is who is the judge? Sometimes the answer decides the case before it is heard. The hope is, of course, that we will have an independent inquiry without pre-determination and bias. And, that is how the system is portrayed. In movies, where the judge is other than fair, it is because he is bent or bought or evil. These things happen, of course, but not regularly in most courts. At least, not anymore.

In real life, of course, we know that authorities and judges are as biased as the rest of us. At least, we should know that. In fact, to pretend otherwise is foolish and I would say dangerous. When attorneys go to court they often know the biases of the judges they are before. Some judges even think it is acceptable to display open favoritism and cronyism with attorneys who they are friendly with or regularly appear before them. I don't approve, but it is so hard to prove without widespread agreement among attorneys that attorneys rarely bother to complain.

The reason that to pretend otherwise is dangerous is because if you don't recognize it, then you cannot even try to prevent it or have rules and procedures that minimize it. Of course, what I say here of court is true of government in general.


So, with that in mind, consider how the two women who brought a lawsuit against the Town of Greece, New York. The case name is The Town of Greece v. Galloway. Galloway is the name of one of the plaintiffs - in higher courts, the original case name is often reversed so that the name of whoever is appealing comes first.

The purpose of the suit is to end the town board's practice of beginning their meetings with a prayer led by an invited clergy person, and almost invariably Christian in tone, will feel when their Supreme Court oral argument begins with a ceremonial summons that contains the phrase "God save the United States and this honorable court." In fact, given the use of the word "save," it is not unreasonable to consider it a Christian ceremonial statement. 

Some facts about the case to give you the lay of the land. Just as in many other places, a town board governs Greece, New York. They have official meetings at which the town supervisor presides. Before 1999, the Pledge of Allegiance was recited followed by a moment of silence. But in 1999 the supervisor started to invite local clergy to offer a prayer to begin the meeting. There was some official notion made of the clergyman and the prayer and the "chaplain of the month" was thanked. Eventually, an employee of the town used a list of churches in the area from the chamber of commerce publication to invite the clergymen. There was an unofficial list of "Town Board Chaplains." The employee would basically go down the list until someone said okay. The list was exclusively Christian and through 2007 all chaplains who gave the invocation were Christian. Jesus was frequently mentioned and the audience was often included in the prayer as "we," indicating that they were included in addressing God. As this lawsuit was being considered, the town did occasionally have other clergy from other religions appear at a rate of one a year and there were specific references to non-Christian deities. There was never an official policy and the town officials insist that anyone - even a non-believer who wished to participate, would have been accommodated.

That did not in fact happen and the right for practitioners of other religions to lead the invocation was never generally made known to the public. Apparently one town officials said it in an interview, but that's it. The trial judge decided that the town's position, since it allowed other than Christians to participate, was constitutional. But the federal appeals court disagreed. They determined that legislative prayers were fine (as they have been for over 200 years) but that's the way the Town of Greece did it was not constitutional.

The Supreme Court took this case, but I doubt there will be a very definitive resolution. Based on the oral argument, Justice Scalia seems certain of his position, as he almost always does. Justice Thomas did not speak, which is his custom (I agree with him. Most of it is pageantry and there is little need for argument most cases, particularly now that all the reading material is available online. Though Thomas has been roasted for his silence, I heard the newest member, Justice Kagan recently state that oral argument is usually quite unimportant). One thing it does do is, usually, give us a first read on where most of the judges are going to end up. But, reading the oral argument transcript, the other judges seemed unsure of how to handle this situation.

It should be noted that one of the two plaintiffs is an atheist. She believes the only way to make the Town's practice truly constitutional is to do away with the prayer altogether. But, her co-plaintiff is a believer and just as the prayer be made more non-denominational. In arguing, plaintiffs declined to suggest a specific prayer they thought would be acceptable. Instead they indicated that there should be an announcement that there was a diverse group of beliefs, that the prayer can make reference to a supreme being, should be no reference to a specific deity or other denominational symbol, that there should be a time lapse between the prayer and any business and that no one should be asked to participate or any questions should be asked of the audience, such as when it was asked to them how many of them have been saved? Good God. That sounds to me like it would take longer than the prayer.

I have a much older friend, who, after going on a philosophical rampage likes to ended by looking up and asking, "So you ask-what is the answer? And it comes back - 'Schmuck!'" I'm not entirely sure what he means, but I think it is something about there not really being any answers. Enjoying both constitutional law and theology, I often find little difference in their interpretation. Experts in both fields seem to be more concerned with the result and any hyper-technical or logical approach. Some constitutional questions are simple, of course, such as-how old does the president have to be?  How do we elect a vice president? But obviously most questions are quite difficult and we find wide disagreement between both professionals and regular citizens.

What I can tell you with more certainty is that the Supreme Court is generally divided up among what are often called non-preferentialists, accommodationists and separationists. I can only generalize what these categories mean, of course, as with any political definition. Generally speaking, accommodationists believe that so long as the government itself does not establish a church, it can promote religion and give wide latitude for the religious beliefs of citizens to be part of the law. The non-preferentialist goes further and believes that government can promote and entangle itself with religion, so long as it does not favor any one group - which I would argue is impossible. Separationists generally believe that government should have no entanglement with religion at all, or, if at all, only in routine nondenominational and traditional matters, such as having the words "in God we Trust" on money. This is sometimes called "ceremonial deism."

Of course, all of these groups believe that the Constitution and the history of our country support their position. There are books on this and I'm sure many websites. Naturally, the First Amendment comes into play. Pertaining to religion, it is divided into two clauses, that unfortunately, do not blend seamlessly. It goes like this:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."

You can find, without a little effort, the history of how these words came to be. The amendments were proposed by James Madison, later a president, but then a member of the House of Representatives. This phrase, you may or may not be surprised to learn, did not spring full grown out of his head. The states had constitutions with various positions on religion, including his home state of Virginia and like statements of rights had been part of English law and American law. A number of people made suggestions which he considered. And, indeed, the actual language I quoted above is not the language Madison proposed. It was this, leaving out some legal verbiage:

 “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed”

And:

“No state shall violate the equal rights of conscience . . . ."

Clearly Madison wanted an individual to be protected from the states as well built into the constitution. Put his two clauses together and you would get:

"“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.  No state shall violate the equal rights of conscience."

These were debated by a House committee which whittled it down, but made it broader:

"No religion shall be established by law, nor shall the equal rights of conscience be infringed. "

Another proposal was debated, and you can see the final language slowly coming into shape.

"Congress shall make no laws touching religion, or infringing the rights of conscience."

Notice now that it is clearly congress as opposed to a state which is proscribed.  And it is a more powerfully put - no power to make a law even “touching religion.”

Some days later they considered this:           

"Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."

Of course, even as it takes shape, none of it is clear - what exactly are the rights of conscience?     How does that differ from just free exercise? Thoughts? Speech? Non-religious belief? It went from the House of Representatives to the Senate like so:

"Congress shall make no law establishing Religion, or prohibiting the free Exercise thereof, nor shall the right of conscience be infringed."

The Senate scaled it back a bit:

"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."

Clearly, the non-establishment part is not as strong as the House's. Eventually, the Senate and the House negotiated it to our present first amendment, quoted above, though I left out the rest which speaks of speech, press and association rights.   

I take two things from this history. First, it is impossible to determine original intent or an original meaning of the text. There were two many candidates to know what congress was thinking. We do not know what was discussed by them or why they made the changes they did. What eventually passed was relatively expansive.  It abandons the idea of prohibiting just a national church and instead prohibits laws "respecting the establishment of " (i.e.,  more than prohibiting just "establishment") religion, though we know that has  been often honored in the breach. It also abandons language as to conscience (whatever that means) and gives religion a special place in our law.

The Court will almost certainly take what you could call an extra-textual short-cut in the Town of Greece case, as they have done in the past. After discussing a law that seems to violate the Constitution on its face, they often point out that we've been doing something for a long time - could be decades or even centuries.  In this case that something is legislative prayer. They will rarely change that without a complete societal change (such as with separate but equal). Thus, the real question they will determine will be - is the way they do it in the Town of Greece constitutional?   
 

It's my opinion, and that of many others, that the constitution has been so dragged through the thickets, and because of our system of precedents, the actual text can't really be applied in many respects anymore. Arguably, it never really worked that well outside of the very basics (that is, the simple questions I discussed earlier). Consider for example that most of the bill of rights is now applied against the states, though that is not what was written. Though I like the fact that the states are required to obey the bill of rights, or, at least that part of it deemed fundamental to our concept of ordered liberty, I really do not believe in the doctrine that these rights were meant to be applied to the states as a result of the word liberty in the 14th amendment. In fact, I would say this reading is a sham which developed and spread because that is what enough people and the judges who counted wanted, rather than the Constitution dictating it. Conservatives steadfastly and reasonably opposed it for many decades. Now however, since it has been recently applied to the second amendment, even they are on board with it.  So, if we forget the last 100+ years of rulings and just read the Constitution, the religion clauses would not apply against the states or their subdivisions, and people would have to rely on their own state constitutions, many of which contain religious freedom clauses that are not identical with the federal version. For example, New York's constitution has the following clause:

"The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state."

There is, you can see, no establishment clause in the New York constitution.  I'm sure you could make an argument that free exercise and enjoyment of religion includes someone giving an opening prayer before a town meeting in the manner they see fit.

Thus, I am left in a constitutional quandary. I really do not believe that the federal constitution we have protects minorities from state or local laws that establish religion. On the other hand, I think it should - I want it to.  Fortunately for me, the way the Constitution has been interpreted, it does apply against the states, but in such a way that it allows some minor entanglement of the government and religion - so long as it is non-denominational. There is nothing on the face of the Town of Greece's purported policies (if we can believe them) that makes it pro-Christian, but I think in practice, it will probably be deemed that it lends itself to that happening.

So, I will make a prediction for The Town of Greece. There will be at least 5 votes, including Kagan, Ginsburg, Breyer, Sotomayor and Kennedy, to strike down Greece's prayer at beginning of the meetings.  But, the town will merely be required to tweak their policy such that it is more inclusive of other religions, at least in theory. They will possibly have to have some written policy that affirmatively invites other voices than just Christians. Lists of Christian churches will not be sufficient. In other words, the town will be required to make its unofficial policy - official. Not much of a change.

Of course, it is very hard to see how that can work well in reality. What if, as is sometimes asked rhetorically, Satanists want to participate? Must the Town Board really suffer through an appeal to the Devil to open its meeting? Or a 99% Christian or Orthodox Jewish community suffer an atheist to give the benediction? What if they announce a party and no one shows up except Christians? Nothing will have changed. And, many will say, why should it? The invocation probably is, for the most part, a harmless ritual. I disagree in theory, believing that we can safely leave religion out of government and court completely, without suffering as a nation. Nothing stops religious people or groups from praying or celebrating their religion as much as they like outside of government. On the other hand, it probably is not much of a problem so long as anyone can in fact, get up and speak with a modern in words that are basically non-denominational. Naturally, that won't satisfy everyone, particularly those who want their religious views to be the favored ones. 

In the end, the Constitution really can't fix our problems except in establishing very basic rules that are never going to be perfect and can always be side-stepped and/or interpreted out of existence.  I have always been enamored by some words of a famous American judge, who is often cited by the Supreme Court - more than any other lower court judge - Justice Learned Hand. He   made  a speech during WWII and which was later printed in a book, The Spirit of Liberty (1944). There is a religious - Christian - aspect to it, which, is a little ironic given that Hand was privately agnostic. But, it is secular aspect of it that seems wise to me:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.

Playing off that - on one hand (no pun intended) I often credit the first amendment with being our country's greatest law and asset - because it has given a frame work that allows us to resolve our religious differences without resorting to self help or unilateral force. But, that in itself, without the spirit of our culture of which Hand wrote so eloquently, means nothing. John Adams wrote in a letter "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." It was difficult at the time to separate out moral from religious, though some few could. It is often nowadays just as difficult for many, though more are comfortable with accepting that morality can stem from other than religion. I hope so, for my sake.

But, obviously, many still disagree. They would perhaps more agree with James Madison - the other James Madison, the founder's  cousin, Bishop James Madison of the Episcopal Church, who gave a speech on a day of Thanksgiving (proclaimed/recommended by George Washington), which included these words -

"Fellow citizens, it is an easy task, For those who may have the honor of addressing an American audience this day,To point out the excellencies of our civil governments, to shew their superior aptitude for the promotion of political happiness, to evince that obedience to laws constitutionally enacted is the only means of preserving liberty, and that every expression of the public will is obligatory upon every citizen; to prove, that representative republics, instead of being the prolific parents of anarchy and confusion, are, on the contrary, of all the forms of government under which men have yet associated, either through compulsion or choice, the most promoted for private and public happiness,the most susceptible of that energy which is equally capable of curbing the licentiousness of the multitude or frustrating the wicked designs of the ambitious; it is easy for them to shew that virtue is the vital principle of the Republic, that unless a magnanimous spirit of patriotism animates every breasts, unless a sincere and ardent love for justice, for temperance, for prudence, for fortitude, in short, for all those qualities which dignified human nature, pervades, enlivens, invigorates the whole mass citizens, These fair superstructures of political wisdom must soon crumble into dust. Certainly my brother, It is a fundamental maxim that virtue is the sole of a republic."

This sounds much like the sentiment which Learned hand stated so much later in time. But, Bishop Madison goes on:

"But, zealous for the prosperity of my country,I will repeat, and in these days it is of infinite moment to insist,that without religion--I mean rational religion, the religion which our Savior himself delivered, not that of fanatics or inquisitors--chimeras and shadows are substantial things compared with that virtue, which those who reject the authority of religion would recommend to our practice. Ye, then, who love your country, if you expect to wish that real virtue and social happiness should be preserved among us or that genuine patriotism and a dignified obedience to law, instead of that spirit of disorganizing anarchy, and those false and hollow pretenses to patriotism, which are so pregnant with contentions, Insurrections, and misery, should be the distinguishing characteristics of Americans; or that the same almighty arm which hath yet protected your country, and conducted her to this day of glory, should still continue to shield and defend her, remember that your first and last duty is "to fear the Lord and to serve him"; remember that in the same portion as irreligion advances, virtue retires; remember that in her stead will succeed factions, ever ready to prostitute public good to the most nefarious private ends, whilst unbounded licentiousness and a total disregard to the sacred names of liberty and of patriotism will here once more realize that fatal catastrophe so many free states have already experienced. Remember, the law of the Almighty is, they shall expire, with their expiring virtue."

I do not know if Learned Hand would have quite agreed. But, I have no doubt that were a very old but cogent Bishop Madison and Justice Hand to be alive today, we could all sit down and have a very civil conversation, and disagree on few important things. Perhaps though, we would disagree on the necessity of values being transmitted through religion. And that, dear reader, is a topic for another day.

 

 

Political update for March, 2014

It's easy to get sick of politics. Usually by the time a president is elected almost all political discourse makes me near nauseous. Like life, the exciting, tantalizing things in politics are so often the bad ones. We like car wrecks and every campaign is at least part one. Presidential races closer resemble demolition derbies than they do debating societies.  But, as I can't remember when my last political update was posted, and there are some "interesting" (you can read that as - sad) things going on in the world, it's time to get over it again and that's where we are going today.

Ukraine

The news in the last few weeks has been dominated by Ukraine (when and why did we stop saying "The Ukraine?")  Few enough people will read these words that I really do not have to abide by usual,and sometimes ridiculous, full disclosure rules, but, for whatever it is worth, though I grew up thinking my family was part Russian, I have also heard Kiev (Ukraine's capital) mentioned in stories from my youth, and that may mean I'm part Ukrainian (my brother says Polish, but I never heard this once my entire childhood). Of course, my family was Jewish, so genetically, there are likely big differences between myself and most Slavs. I don't really know and I don't really care at all. Whether I am part Russian, Ukrainian or Polish by geography (or dna - who knows what my ancestors were up to?) I have no connection with those countries and zero feelings of identification.  Russia in particular has always been the enemy to me, though, as most Americans seem able to do, I can automatically distinguish the people from the government.  As with virtually all Americans who were conscious of it, I was happy for the nations under the thumb of Russia in the U.S.S.R. when they broke away about a quarter century ago. One of those countries is Ukraine.

In a nutshell, if you have no idea what I am talking about, because you read no papers, watch no news on tv or the internet yet SOMEHOW read this blog - The people of Ukraine last month rose up and got rid of their president, Viktor Yanukovych, who has now fled to Russia.  In response, Russia has quickly and quietly occupied the long desired peninsula extending into the Black Sea in the south-eastern portion of Ukraine, known as the Crimea or just Crimea.  If you care, Ukraine is a little bigger than France with roughly two thirds the population, between 40-50 million people.

I'm bothering to write about it because I disagree with the present conventional American response - which is that Russia's invasion (as far as I know, no shooting occurred) is illegal and wrong. Don't the circumstances matter?  Here are some things that are not being generally discussed in the media that are pretty relevant:

Ukraine is mostly made up of Ukrainian people, but, according Wikipedia, the 2001 census found that something over 77% were Ukrainian and over 17% were Russian, with a number of minorities each making up a fraction of the last 5-6%.  Many of the Russians live on the Eastern side of the country -- that is, bordering Russia.  And many of these Russians live in the Crimea where they form a majority. There, the balance is reversed and only about a quarter of Crimeans are Ukrainians, with Tatars forming a third minority. Now, you may have heard that Crimea has been part of the Ukraine for over sixty years. That's somewhat true, but, without an additional fact, it's less than informative and maybe misleading.  The entire area was part of the U.S.S.R. since its formation until 1991, when it dissolved.  In 1954, Crimea was transferred from Russia S.S.R. to The Ukraine S.S.R. at that time. It should be noted that according to a New York Times Article on March 7th (http://www.nytimes.com/2014/03/08/world/europe/russias-move-into-ukraine-said-to-be-born-in-shadows.html?hp&_r=0), a Wikileaks document revealed a Putin cable indicating that he disputed the legality of that transfer.  I'm not about to leap into that thorny legal thicket, of which I am certain there is no logical way out. But, politicians don't rely on logic. Putin can claim that the Crimea never should have been part of the Ukraine and someone else can argue that what's long done is long done and at some point you have to rely on the status quo.  Someone else might add that Thomas Jefferson thought a revolution every generation was a healthy thing.

Now, leaving that aside, here's the important part which I do not see discussed in the media at all, but is not disputed either in general. Crimea has been considered an autonomous area, at least by some, since the beginning of the Soviet system (to the degree there was any real autonomy in the U.S.S.R), with a gap for a while after the Soviets depopulated the region of its population around the end of WWII. In fact, Crimea has its own constitution, though I understand that Ukraine will not acknowledge it. But that just tells us what the problem is.

By the way, what is the physical difference in terms of DNA between a Ukrainian and a Russian and Belorussian and a Polish person?  I can't tell you. I don't think anyone can, though I could be wrong. They are all eastern Slavic people. The languages are closely related, but that is not a biological fact but a social one and an accident of geography - where one is raised. The real difference is only one of self-identification.  And we can see from the recent uprising and the civil division that the Russians and Ukrainians there are at odds. No doubt both sides feel victimized and in the right. No one much cares for the small minorities but their own selves.

There has been no vote yet, but it is likely that a majority of Crimeans, again the majority of which identify as Russian, want to be part of Russia, rather than the Ukraine. This is less surprising given the facts in the previous paragraphs. Given the virtual state of civil war between Russians and Ukrainians in Ukraine, it is not surprising that Crimean Russians there would seek the mother country's protection. I recognize that Ukrainians who live there and also the other minorities, would not like this. But, this is true in all countries undergoing this type of civil division which are made up of tribes or nations. There is going to be some government. Some group is going to be the majority and the others are going to be unhappy.

So, my question is - what is so wrong with Russia helping a democratically elected president in a neighboring country and be willing to annex a part of the country the majority of which identify as Russian and want to be part of Russia rather than minorities in Ukraine?  Why are there so many articles condemning Putin (or Obama for being weak and not doing anything)? Is it simply a matter of our following the official and media propaganda?

The division of territories into nationalities has long been accepted, in fact, has been almost dominant since WWI.  It was a Wilsonian idea, though he had no idea how many nationalities there really were. The division of countries along national lines may have been unavoidable but has caused innumerable problems in the 20th century.  If you are familiar with the peace talks after WWI (where our president left the country for months to participate in them), you know that they were arbitrarily and often very badly done.  Some nations did well, some poorly or received nothing.  Why there is an Kuwait, but not a Kurdistan, is a damned good question.  But, what determines a "nationality?" Is it the ethnicity of the present majority, as Albanian Kosovans claim? Or is certain land stamped with an invisible nationality at some point, bearing its mark forever, as Serbia and Israel claim.  Arguably, the people in an area - the majority - should get to decide. But, then you consider Egypt, which I (many) think far better off with Morsi's overthrow and democracy given at least a potential reset. There are no real practical answers for these questions - never has been - just what various powers want it to be at various times.

I laugh when I read that Pres. Obama and others have stated that what Putin did by putting troops into the Ukraine is against the Ukraine's constitution and international law. First, given our president's past decision to unilaterally declare congress in recess; to fight a war in Libya (whose government was actually helping us in the "war on terror" -- so much for international law) in violation of the war powers resolution; a civil rights division that was so corrupt two lifetime staffers left; the ugliness, if not illegality of the way Obamacare was legislated; and  Russia and America's 20th and 21st century competition . . .  I can't see Putin is very concerned about his opinion on this matter.  But, when you think about it, why should he?  Can we complain when a part of a country determines it no longer wishes to be so? That's how our country started.  In modern times we back Kosovo, which split off from Serbia because we sided with the minority that considered themselves a different nationality and was persecuted. We back the small island of Taiwan, which does not wish to be part of Communist China.  There is little consistent in our approach. In Egypt we supported the fall of an autocrat - Mubarak and we supported the rise of the Moslem Brotherhood candidate (in reality), Morsi, because he was democratically elected.  And when he became autocratic rather quickly, we opposed his being overthrown for the same reason. Compare this to Ukraine where we support the overthrow of a democratically elected president and now complain when some others, seeing their president overthrown, no longer want to be part of a country where they feel threatened.

There is rarely consistency in international policy. But that doesn't mean others have to take us seriously if we press weak or hypocritical arguments.

I'm not carrying Putin's water here. He is an autocrat, though it would be wrong to compare him to Hitler or Stalin.  Russia is often still a bad actor in the world, though we cannot compare it with the Soviet Union.  We don't want him determining the future of the Ukraine, but I believe Russian troops will stop where they are and that he will be content with Crimea. I can wish that the Crimean people did not want this, but they probably do.  I can't help but note that with Russia's show of force, there is also relative peace there, and it could have spiraled and spread terribly (still a possibility, of course).  Normally we put a high premium on preserving peace where there is unrest throughout the world. Wherever there is violence, we insist it stop and that talks be had. Or an election or plebiscite. Isn't that what is happening? No doubt Putin sees himself as a necessary and heroic force holding a country together and protecting "Russians" on her borders. Of course, countries that are under Russia's "protection" or sphere of influence don't do so well, e.g., Syria, Iran. Countries that adopt or are adopted by the West in general seem to do better.  But, does anyone think that Ukraine is or will be a hotbed of fairness to minorities or that Russians will feel very safe there? 

Though we would prefer Ukraine to come closer to the West and we may not want to cede the Crimea to Russia or credit Putin with a smart move, there will probably be a referendum, possibly in a week or so, or, if there is not, at some point, Russia will simply annex the area.  Forces in the west are marshaling to squeeze Putin economically, as he moves to squeeze Ukraine by shutting off its gas. I do not expect Russia to crumble. I do expect Crimea will become a part of Russia, at least for the meantime.  

Here's a well known quote from Winston Churchill. "Russia . . . is a riddle wrapped in a mystery inside an enigma." Now here's a fuller quote, rarer to see in print: "I cannot forecast for you the action of Russia. It is a riddle wrapped in a mystery inside an enigma, but perhaps there is a key. That key is Russian national interest."  (My emphasis).  The language was quintessential Churchill, but did it make sense?  All countries act on the principle of self interest, at least for the most part.  Why not Russia?  Putin is acting in his country's perceived self interest (though he may prove wrong) and if you go by the majority, so will Crimea. 

On a last note, what of the memorandum between the United States, Russia, Britain and Ukraine entered into when Ukraine gave up its nuclear weapons upon becoming independent.  It is not a treaty, as was first reported.  The memorandum does not call for the U.S. or Britain to defend the Ukraine. It calls for recognition of the integrity of Ukraine's border and an agreement not to use economic coercion against her. It is clear that Russia has already violated the spirit of this memorandum.  Perhaps, as discussed above, they do not have good reason.  But, the memorandum does not require the U.S. to do anything to protect Ukraine. Certainly, what we have already done (pledging money to Ukraine along with the E.U.) is more than required.

What is the answer to all of these problems? I don't know, of course. I just know I favor whichever side in any dispute believes more in enlightenment values than their counterparts. Often you can't tell  and sometimes it is neither.  We are told the Ukrainians want more identification with the west. It seems that their president backing away from this is what began the crisis. If so, we will support them. Me too. But, that doesn't mean what happens in Crimea is wrong.

Arizona

Here we go again. Here we go again. I'm not a Republican. But, right now, I wish for at least a short while, they control the presidency and at least one house. I always dislike seeing any party have it all. But, I have voiced my disapproval of this administration over and over again. It is too far left and too unconstitutional in its actions.  Even a liberal constitutional law professor who regularly goes on MSNBC and says he agrees with Obama on most things, Jonathan Turley, has recently written that Obama's path is a dangerous and unconstitutional one.  I would go further. Not only has he shredded the constitution for his own purposes, but his policies both domestic and foreign have proved anywhere from ineffective to dangerous. No doubt, the Republicans deserve it to some extent as they championed unwarranted presidential power when they had the White House (remember the "unitary executive.") But, the American people do not deserve it.

No one knows what the next few years will bring in the presidential race. Right now, most people believe that Hillary Clinton will be the Democratic nominee, and, health issues aside, I think so too.  Some say, well, no one thought Obama had a chance at the comparative time in 2006. Not so. By late 2005 I knew who he was, thanks to C-Span, and wrote here in my bloggedy blog blog that he was the only one with a chance against her. Perhaps the larger public was not aware of him, but politically, he was hardly a secret.  There is no one comparable out there right now in the Democrat Party.

Clinton will be a formidable opponent for any Republican candidate. Though I hope and expect she will be a much better president than Obama, she will probably want to continue most of his policies and I would rather we did not. Though I will continue to long for a legitimate third party candidate, it is not realistic. Whoever I vote for (I hate voting for either Democrats or Republicans), I will hope that a Republican wins, as I have the last three elections.  The most conservative branch of that party -- those most opposed to Pres. Obama -- were, in my view, the reason Pres. Obama was re-elected.  Without benefit of a good poll studying the issue, my anecdotal experience leads me to believe that Romney lost decisively because he was not good enough to explain why progressive economic policies cannot work and prone to saying the dumbest things possible (like his 47% comment) but also because by the time he was nominated he had already been severely damaged by the more conservative members of his own party running against him, who went after him in a far more vicious fashion than Obama did. He identified himself, gladly, with those who can't seem to help themselves in alienating independents and moderates, mostly with their anti-gay, anti-atheist, anti-American-Moslem and pro-religious aspirations.

And, despite having their clocks cleaned - they want to do it again. Not that they want Clinton to win. But, they will, in pressing the issues dearest to them, alienate enough independents and moderates to allow her to win. 

This weekend is CPAC, a big meeting for conservatives to come show their chops. Much red meat is offered to the audience. Probably the most was offered by Ralph Reed, who has long been a very central figure in the religious right. He said:

"[W]e're really done following those who advocate mushy mealy mouthed moderation we're no longer going to follow the counsel of those who offer capitulation masquerading as compromise, who counsel only the cold seduction of surrender.  . . From now on we're going to accept in 2014, 2016 and beyond nothing beyond unapologetic, unalloyed conservative that defends the principles upon which this nation was founded including the biblical principles of freedom of religion, the sanctity of life and the sacred institution of marriage."

And all I can think is here we go again. Republicans will likely have the same ugly battles, the same kowtowing of moderates to the religious right in Iowa, the same division. At the end, perhaps another moderate will win or perhaps they will. Either way - the Republican brand - will have been damaged. They will be painted, and not unfairly, as behind the times and discriminatory. They will likely lose for the same reasons as last time. When they do, we continue with economically destructive policies (probably even with them, to be fair, just slower).

Rand Paul, who is my early Republican favorite (but only because Mitch Daniels of Indiana remains on the sidelines), and the winner of the straw poll at CPAC this weekend, is being very cagey and careful in reaching out to everyone he can. He brings some issues to the table that are bipartisan - like the NSA and privacy and fear of the government. But, even he can't help himself, commenting recently and more than once about President Clinton's treatment of women. Is he serious? Yes, sadly he is. Just as conservatives bizarrely convinced themselves in 2012 that they were going to win despite every poll showing the opposite, Sen. Paul seems to think that attacking Pres. Clinton's morals is a winner.  It's not. President Clinton left office with tremendous popularity. I myself was disgusted by Republicans for the impeachment and general attacks on him. If these attacks are made on candidate Clinton, it will help her immeasurably more.

What does this all have to do with Arizona? Last week the Republicans narrowly avoided a most dangerous situation. Their legislature passed a law which mirrored the federal Religious Freedom Restoration Act (1993), which all but unanimously passed congress. The Supreme Court has already struck down this law as applied to the states (but not the federal government).  It is not the law on its face that I have so much trouble with, but its spirit. I don't want to give this a lot of space here, and I fear it would take a long post to explain why a law seemingly meant to advance religious freedom would irk me, but, the gist of it is that the two religion clauses of the first amendment are frequently in tension - when you advance religious freedom for some you risk the establishment of religion by privilege of the religious minded. When you prohibit the establishment of religion, you risk prohibiting religious freedom.  The RFRA was passed in response to a Supreme Court case that refused to allow religious practitioners to trump a neutral law by raising their religious beliefs as a shield (Employment Division v. Smith [ 1990]). The point of the law was to try to lower the bar for the free exercise clause to the disadvantage of the establishment clause prohibition.  This, of course, supports the viewpoint of accomodationist and nonpreferentialists.

There is no doubt, based on statements made outside the text of the law itself, that the point of the Arizona law was to allow those businesses which wished to discriminate against gays to do so.  It is a reaction to a case out of New Mexico now in the Supreme Court, which penalized photographers for refusing to agree to photograph a same sex wedding.  I happen to take the side of the photographers, though I disagree with their decision. I've discussed this at length on 11/5/12 (Photography and Freedom), and you can look there if you care why. And Arizona's governor took it off the table for the moment by vetoing the bill. My point here though is not who is right in this case or my feelings about the constitutionality of the RFRA, but political.

Will they really do it again? If it is up to Ralph Reed and Sarah Palin and Rush Limbaugh, yes they will. They apparently can't help themselves.

Mugwumps

I'm not going to take a poll, but I'm going to bet anyway that most people who have even heard that bizarre sounding term do not know what it means. No surprise because it goes back to a campaign in 1884 and had pretty much died out by the turn of the century. In a nutshell, the Mugwumps were some Republicans who voted for the Democratic candidate, Grover Cleveland, because they rejected the patronage system (which most of us do now) and were not loyal to their party when they disapproved of their candidate, James Blaine.  The strange sounding word reportedly derives from an Algonquin Indian one meaning some kind of leader or head man, but was meant to imply in the 19th century that the so labeled Mugwump thought he was above it all and superior to the party he left.  This is a charge that seems instinctively to be applied by loyalists to independents and moderates then and now. 

The name isn't used any longer, but the sentiment is the same. Few are hated as much in politics as those who disagree with their own party. Joseph Lieberman was ostracized by Democrats, though his differences with his party were few.  The same was true of Republican Lincoln Chafee.  Very often, the mugwump isn't all that different than those in the party who he is leaving. Often it is a relatively independent or moderate politician who disagrees on one important point to which the rest of his party are wedded.  

One of my favorite quotes from anyone is by Mark Twain - "Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world-end never will." The key to the phrase is the word "petrified" because it implies an opinion frozen in time and place, without debate or consideration. Because so many quotes are apocryphal, especially, for some reason, with Twain and others like Jefferson, Franklin, Shakespeare and . . . Kurt Vonnegut(?) On account of this, I tracked down the actual use. It is from a paper he wrote on "Consistency" in 1887 and which he read to some group called the Monday Evening Club. I'm only going to quote the last few paragraphs, which features - of course - the word - Mugwumps.

"I repeat that the new party-member who supposed himself independent will presently find that the party have somehow got a mortgage on his soul, and that within a year he will recognize the mortgage, deliver up his liberty, and actually believe he cannot retire from that party from any motive howsoever high and right in his own eyes without shame and dishonor.

Is it possible for human wickedness to invent a doctrine more infernal and poisonous than this? Is there imaginable a baser servitude than it imposes? What slave is so degraded as the slave that is proud that he is a slave? What is the essential difference between a lifelong democrat and any other kind of lifelong slave? Is it less humiliating to dance to the lash of one master than another?

This infamous doctrine of allegiance to party plays directly into the hands of politicians of the baser sort — and doubtless for that it was borrowed — or stolen — from the monarchial system. It enables them to foist upon the country officials whom no self-respecting man would vote for if he could but come to understand that loyalty to himself is his first and highest duty, not loyalty to any party name.

Shall you say the best good of the country demands allegiance to party? Shall you also say that it demands that a man kick his truth and his conscience into the gutter and become a mouthing lunatic besides? Oh no, you say; it does not demand that. But what if it produce that in spite of you? There is no obligation upon a man to do things which he ought not to do when drunk, but most men will do them just the same; and so we hear no arguments about obligations in the matter — we only hear men warned to avoid the habit of drinking; get rid of the thing that can betray men into such things.

This is a funny business all around. The same men who enthusiastically preach loyal consistency to church and party are always ready and willing and anxious to persuade a Chinaman or an Indian or a Kanaka to desert his church or a fellow-American to desert his party. The man who deserts to them is all that is high and pure and beautiful — apparently; the man who deserts from them is all that is foul and despicable. This is Consistency — with a capital C.

With the daintiest and self-complacentest sarcasm the lifelong loyalist scoffs at the Independent — or as he calls him, with cutting irony, the Mugwump; makes himself too killingly funny for anything in this world about him. But — the Mugwump can stand it, for there is a great history at his back; stretching down the centuries, and he comes of a mighty ancestry. He knows that in the whole history of the race of men no single great and high and beneficent thing was ever done for the souls and bodies, the hearts and the brains of the children of this world, but a Mugwump started it and Mugwumps carried it to victory: And their names are the stateliest in history: Washington, Garrison, Galileo, Luther, Christ. Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world-end never will."

I'm not so sure about his examples as I really don't think any of them are what he was really talking about.  I started to explain why and realized it was too much of a tangent. But, what Twain was talking about was not only the independent mindset, but one found in someone who can walk away from his accepted and orthodox place in a party where loyalty is the most prized attribute, for one of reason or principle. Politically,  I yearn for a viable alternative to Democrats and Republicans, the first lost in a utopian vision of economic "equality" (which has all to do with results and not at all with opportunity or initiative) and the other married to a reactionary view of religious privilege. Of course there are (relative) moderates in every party, but I'm describing those that are driving the train and dominating the conversation among them.

Most Americans do not believe we are on the right path in our country.  Perhaps having a majority believing it is on the right path is only possible with a loss of freedom and complete control of the media and speech. And who wants that? But, what I would give for a party that represented what I think actually represents a majority of Americans - one which is more economically conservative and more socially liberal, but recognizing that this describes one in which the libertarian elements of each side are the general default. The problem is that independents and moderates are often not politically involved - they want to be left alone to live their lives. Thus, the actors in this hypothetical party are more likely going to come from modern day Mugwumps - Democrats and Republicans who just can't take it anymore. What this will look like, what amalgamation of unpredictable accidents and social or political events and reactions might combust to make it feasible, I couldn't say, but members would likely have to have members from both parties, rather than the instinctively moderate rising up.  

I don't expect it anytime soon, because though there are some in the Republican Party who might fit the bill if they gave up party loyalty without fear of being ostracized, it is not realistic when the road to the nomination begins in Iowa where the religious right dominates the conversation for months before those otherwise unimportant caucuses and sets the tone for a party.  But, far too few Democrats who would have any interest in this now even if they could get past the calumny which would be their lot.  For even the relatively moderate Democratic Leadership Council has disbanded as of 2011, there simply not being any interest at this time in the party leadership other than progressivism.  Their constituency, heavily made up of those who demand some type of legal economic privilege, demand it. Hence, while the Republican nominees the last two elections, though relative moderates, were highly criticized by their own party, there was little difference between the Democrat nominees - Kerry and Obama - and their Democrat competitors.

So, what I hope for will not come when expected and maybe not in my lifetime. Nor can I expect that if that day ever comes I will agree with every plank in a platform or that any member will agree with all others in every point. But, I think it will come some day. Unfortunately, I expect it to arise out of the wreck of near disaster. It could be just disaster without the adjective, but as long as I'm fantasizing . . . .