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Saturday, January 14, 2012

U.S. Military in Europe: On the Tyranny of the Status Quo

On January 14, 2012, the New York Times reported that the U.S. Pentagon would bring home two brigades from Europe. That would reduce the U.S. Army presence by 10,000 to 30,000. “During the height of the cold war,” according to the Times, “when America’s heavily armored and nuclear-tipped force in Europe comforted allies and deterred the Soviet Union, the Army reached a peak of 277,342 troops on the Continent.” A mere 30,000 might seem trite in comparison, and thus palatable, unless it be noticed that the cold war ended with the fall of the USSR. So it is perplexing that the “reductions come as some European leaders and analysts make their case for a sustained American presence on the Continent to deal with uncertainties, including a rambunctious Russia — even as these same NATO allies are unable or unwilling to increase spending for their own defense.” There it is then—a military subsidy of sorts. To be sure, Russia is uneasy about Eastern European countries becoming states in the E.U., but this hardly counts as rambunctiousness—at least at the level justifying a military defense. It is democracy, rather than Europe, that needs defense in terms of Russia, given the hegemony of the United Russia party in Russian politics. As one senior European official said, “We don’t need a massive presence of U.S. troops. After all, we don’t see Russia anymore as an enemy or an adversary, but even as a partner, if a difficult one.” The shift from adversary to ally has perhaps not fully sunk in—human perception being slow to let go of long-held assumptions.

In my opinion, the uncertainty in Europe in the wake of the Pentagon’s announcement involved more than a bit of overreaction. According to the Times, “Philip H. Gordon, the State Department’s assistant secretary for European affairs, already was visiting capitals on the Continent, reassuring an audience in Berlin . . .  that ‘the United States remains committed to a strong Europe, the collective defense of our NATO allies, and to building and maintaining the capacity and partnerships that allow us to work together on a global scale.’” Such reassurance was hardly needed. In fact, it would not be needed were the remaining 30,000 troops pulled out. That would not be tantamount to the United States leaving NATO, after all. Yet strangely, the perception would be exactly that, and in politics perception can create its own effects, even reality.

Beyond the matter of military strategy (in the context of a $15 trillion U.S. Government debt), the fact that the U.S. is leaving 30,000 troops in Europe may itself point to the staying power in the status quo as an object or worship. Beyond lapses in “readjusting,” it may be that the adage, “same old, same old” gets too much air time, particularly given that the twenty-first century is not the twentieth. Thomas Jefferson advocated a new constitution every twenty years, or at least a decision on the matter. It might not be a bad thing were a little “spring cleaning” done  in the first few decades of any new century—rather than simply continuing so much on the books from the last century. The U.S. as protector of Europe is from the standpoint of the twenty-first century so antiquated that a pathological aversion to change can be suspected, with justification itself being presumed to be in the sheer existence of a practice. In other words, “it’s always been done that way, so why question it?” Under the tyranny of the status quo, layers of old laws and regulations pile up like old clothes in a basement. New clothes are instantly labeled as “extreme” and are therefore eliminated from serious consideration. The inertia of ongoing practices stifle even thought itself and render human experience far too constricted, even regimented. To break on through to the other side, where there is fresh air to breath and room to flex one’s muscles as nature intended, the entire order must have collapsed, and this seems hardly necessary.

Source:
Tom Shanker and Steven Erlanger, “U.S. Faces New Challenge of Fewer Troops in Europe,” The New York Times, January 13, 2012. http://www.nytimes.com/2012/01/14/world/europe/europe-weighs-implications-of-shrinking-us-troop-presence.html


Friday, January 13, 2012

Britain and Its Scottish Region: Should a State Split?

A region of one of the large E.U. states may split off to become a new state. For a U.S. state to split into two would require the approval of the Congress and presumably the U.S. President. I also assume the E.U.’s legislative and executive branches would have to sign off on the addition of a new state. I am not referring to Bavaria, or even northern Italy. The region to which I refer is known as Scotland, in the state of Britain. An independent Scotland would presumably have to apply to become a state of the E.U. 

The full essay is at Essays on Two Federal Empires.

Thursday, January 12, 2012

The Ministerial Exception: A Religious Right to Discriminate

In early 2012, the U.S. Supreme Court recognized, for the first time ever, a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference. In his written opinion, Chief Justice Roberts wrote, “The Establishment Clause [of the First Amendment to the U.S. Constitution] prevents the government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” The wrench in the works here concerns the matter of delimiting the exception, given the inflation in what constitutes “ministerial” in terms of tasks.

As for what positions in a religious organization constitute ministers, the court was “reluctant to adopt a rigid formula.” In his concurrent opinion, Justice Thomas highlights the inherent difficulty that the government would face in delimiting the ministerial exception by trying to define the ministerial role. “The question whether an employee is a minister is itself religious in nature, and the answer will vary widely,” he wrote. “Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the ‘mainstream’ or unpalatable to some.” In other words, the state, just in determining what constitutes a minister, violates the Establishment and Free Exercise clauses in entering the realm of institutional religion.

For all the problems that a judicial or governmental definition of “minister” would entail both constitutionally and for the religious organizations, there is also the risk that the latter could take advantage of the leeway and define virtually all of their jobs as ministerial. Already as of the date of the court’s decision, Christian churches had been busy expanding “ministerial” to include chores like weeding garden areas, preparing food, and even serving as security to protect church property. In other words, church officials had discovered that attaching “minister” to a task can attract potential volunteers for what are actually pretty mundane tasks. I would not be surprised to find a “taking out the trash” ministry at some church—praying, perhaps, over the decaying food for its prompt removal.

I see the same mentality behind such “gilding of the lily” here as in the tendency of more and more people to consider themselves to be professionals. Among the most notorious are the self-described experts in leadership who refer to themselves (and each other) as “coaches.” In other words, I suspect that “minister” serves a similar marketing purpose as “coach.” As a result, religious organizations may get away with being able to discriminate in filling (or replacing) virtually any of their jobs, even those of an office manager and accounting clerk.

Sensing the possibility that Roberts’ opinion could be exploited, Justice Alito, joined by Justice Kagan, argues in a concurrent opinion that the exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” Weeding a garden or protecting the property does not involve being a messenger of a religious institution’s particular faith. Even in parochial schools, the court’s decision “appears to encompass, for instance, at least those teachers in religious schools with formal religious training who are charged with instructing students about religious matters,” according to the New York Times. Even so, I suspect that religious organizations will continue to expand “ministerial” tasks for marketing purposes yet suddenly taking the designations seriously when discrimination needs a defense.

Accordingly, I foresee the need for a few more court decisions to test the limits, hopefully without the courts getting too involved in what can be a religious (or marketing) question. Perhaps the underlying, utter unresolvable problem is that while religious officials and administrators are involved in a transcendent-based enterprise governing by divine law, those people are also human, all too human, and thus necessarily subject to civil law. Therefore, the matter of delimiting the ministerial exception is not as clear as Thomas suggests. The court’s decision is therefore likely not the end of the story.

Source:

Adam Liptak, “Religious Groups Given ‘Exception’ to Work Bias Law,” The New York Times, January 12, 2012. http://www.nytimes.com/2012/01/12/us/supreme-court-recognizes-religious-exception-to-job-discrimination-laws.html




Assessing a “Funded Right” to Education as Constitutional

According to the Texas constitution, the government must provide funds for a “general diffusion of knowledge.” This is a worthy purpose in a representative democracy, as an educated electorate is generally presumed better able to self-govern by voting for candidates and even on policy-oriented referendums. Thomas Jefferson and John Adams had their differences to be sure, but they both believed that an educated and virtuous citizenry is vital to a republic. Accordingly, the “Texas constitution imposes an affirmative obligation to provide adequate financial resources for education, whatever the economic cycle,” according to Mark Trachtenberg, an attorney who represents more than seventy school districts that sued the government of Texas. Altogether, four funding suits were pending in Texas as of January 2012. Five hundred districts, which together educate more than half of all public school students in Texas, were involved in those suits at the time. In 2010, the Texas legislature had cut more than $5 billion from school district budgets. In the wake of the cuts, the districts claimed that they lacked the resources to provide the level of education required by the constitution. One major question is whether the courts are the proper venue for this matter.

Critics of the lawsuits say it is the prerogative of legislatures to make the call on school funding. From a democratic standpoint, the representatives of the people should decide, rather than a few unelected judges. “There are more-appropriate venues for a vigorous and informed public debate about the state’s spending priorities,” according to Colorado’s head of state, John Hickenlooper. Meanwhile, Washington’s Supreme Court ruled that the Washington legislature must come up with a plan for additional educational spending. The ruling can be interpreted as an indictment ultimately against Washington citizens, as they had elected the legislators who had insufficiently (in the justices’ view) funded general education. It is ironic that unelected justices would find the people as having been insufficient in seeing to it that the republic of Washington would remain viable with respect to “government of the people” and “government by the people.”

Constitutionally speaking, whether basic law (i.e., a constitution) should contain substantive funding requirements is an interesting question. If so, then the courts have every right to intervene, as part of their role is to interpret constitutions. The underlying question may be whether substantive rights, such as the right of free speech, should be expanded to what we might call “funded rights,” such as the right a funded education. In a “funded right,” the funding itself is moved up from being a matter of policy to being a function of government. Other “funded rights” could be “access to funded health-care,” food-stamps and guaranteed housing. Such “funded rights” can be justified as basic in terms of human rights. Furthermore, the “funded right” to a job, which may be implied in the Full Employment Congressional Act of 1946, could be written into a constitution.

In short, “funding rights” can be oriented to a “floor” of sorts below which neither a republic nor a human being can survive. Taking such rights out of the policy arena by elevating them to basic law constitutionally would protect the vulnerable from the momentary selfishness of the “haves”—particularly, the “one percent.” That is to say, a social contract that is not a mere reflection of the wealthy can perhaps exist and be protected even when under moneyed political pressure. After all, the courts are supposed to protect the rights of the individual (and minority) against the tyranny of the majority (Madison). Whereas it is clear that humans need medical care, food and shelter to survive, perhaps part of the dispute in Texas is whether a republic really needs an educated citizenry to be viable—or is it just a cherry on the sundae? Relative to medicine, food and shelter, a general education is certainly not necessary, even if it is important. The question is perhaps whether constitutional protections extend to the latter—or even whether they include that which is necessary but not necessarily in the foreseeable interests of the “haves.”

Source:
Nathan Koppel, “Schools Sue States For More Money,” The Wall Street Journal, January 7-8, 2012. http://online.wsj.com/article/SB10001424052970204331304577145052524458314.html

  

Wednesday, January 11, 2012

Plato’s Justice: On the Conflict of Interest in Google’s Search Engine

“Google’s popularity was built on its ability to help people find just the right Web pages. Then came the social Web, led by Facebook,” Claire Miller of the New York Times writes. Then came the “fledgling Google Plus social network,” the content of which Google then included among other search results at its search engine. The idea, ostensibly, is to “personalize” internet searches. In addition to expertise on a given topic, relevant comments and even pictures posted at Google’s social network may be listed, especially if from a friend. The added utility is debatable, however, particularly as content from other social media sites such as Facebook and Twitter is more in demand, according to Danny Sullivan of Search Engine Land. I question the relevance of even that content to a search on Google, given my searches up to now, though of course it is possible that someone’s post on X could be helpful if information on X is otherwise hard to come by. At the very least, Google ought to make it very easy for users to turn off the feature while at the search site.


The full essay is at Institutional Conflicts of Interest, available in print and as an ebook at Amazon.