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Friday, July 25, 2014

Orwell and us

George Orwell is one of many figures whose life and work testifies to the truth of the theory of generations and turnings put forth 40 years after his death by Strauss and Howe.  He was a British nomad, born in 1903 (the British cycle has consistently been a few years behind our own).  He described his early education at the hands of two British Prophets, his school headmaster and his wife, and he was enough of a Nomad to go out east in the British imperial police after graduating from Eton.  He lost faith in every ideology during the 1930s, but when the Second World War broke out he rediscovered his patriotism and became an active participant in Britain's Fourth Turning.  Most importantly of all for my purposes today, he wrote very sensitively about the emotional and ideological impact of great political crises.  I devoted a post some years ago to his great essay, "Notes on Nationalism," which detailed the characteristics of ideologues, and today I would like to quote briefly from a parallel essay, also written during the Second World War, called Looking Back on the Spanish War.

" I know it is the fashion to say that most of recorded history is lies anyway. I am willing to believe that history is for the most part inaccurate and biased, but what is peculiar to our own age is the abandonment of the idea that history COULD be truthfully written. In the past people deliberately lied, or they unconsciously coloured what they wrote, or they struggled after the truth, well knowing that they must make many mistakes; but in each case they believed that 'facts' existed
and were more or less discoverable. And in practice there was always a considerable body of fact which would have been agreed to by almost everyone. If you look up the history of the last war in, for instance, the ENCYCLOPAEDIA BRITANNICA, you will find that a respectable amount of the material is drawn from German sources. A British and a German historian would disagree deeply on many things, even on fundamentals, but there would still be that body of, as it were, neutral fact on which neither would seriously challenge the other. It is just this common basis of agreement, with its implication that human beings are all one species of animal, that totalitarianism destroys. Nazi theory indeed specifically denies that such a thing as 'the truth' exists. There is, for instance, no such thing as 'Science'. There is only 'German Science', 'Jewish Science', etc. The implied objective of this line of thought is a nightmare world in which the Leader, or some ruling clique, controls not only the future but THE PAST. If the Leader says of such and such an event, 'It never happened'--well, it never happened. If he says that two and two are five--well, two and two are five. This prospect frightens me much more than bombs--and after our experiences of the last few years that is not a frivolous statement."


Many readers will, of course, have immediately recognized one of the core ideas of 1984, which laid out what a totalitarian High might be like, and also gave more than a hint of the primal forces that might bring it down.  That, however, is not what I am after today.  Instead I want to use this passage to illustrate one of the bizarre aspects of our current era, one which is rapidly getting worse.  I believe more strongly than ever that we are not destined in the next decade or two to see another massive conflict on the scale of the twentieth century's world wars, if only because modern states no longer have the necessary organization or command the necessary loyalty to fight them.  But emotionally and intellectually, the atmosphere of both domestic and international politics is resembling those years more and more.  Both individual peoples (including our own) and different nations have lost the ability to agree on basic facts.

The Russian-Ukrainian crisis is one example.  Putin has evidently sold the bulk of the Russian people on the idea that Fascists run the new government of Ukraine.  Not content with that, his propagandists are now arguing that the Ukrainian government staged the downing of the Malaysian airliner in order to turn public opinion against the separatists and the Russians.  Meanwhile, Hamas and Israel are busily trading allegations, and the Israelis are insisting that the ratio of about 25 to one between Palestinian and Israeli deaths--a pretty standard ratio in these conflicts--is actually the fault of Hamas.  The Middle East has been agog with conspiracy theories for decades, and more than once at the War College I tried vainly to convince students from Arab countries that the United States was not in fact behind every major political development in their region, or that it could not snap its fingers and remove the Assad regime in Syria if it wanted to do so.   

The same problem is getting worse and worse in American politics. Republicans deny that global warming is man-made, and insist that immigrants are coming to the United States to live off the bounty of the federal government--two claims with little or no basis in fact.  Paul Krugman has repeatedly pointed out that most economists continue to argue that the government has been pursuing inflationary policies that would drive up interest rates, even though this has not happened.  Saddest of all, from my point of view, one of the ideas that Orwell cited as fashionable--that truthful history cannot be written--is now orthodoxy in most history departments.  So is the idea that different genders and races have different realities.  Conservatives constantly argue that the federal government is more intrusive and expensive than ever, another claim that is manifestly false.  We cannot even agree upon whether looser gun laws increase gun deaths or decrease them--partly, to be sure, because the NRA has intimidated the Congress into passing laws forbidding government bodies from compiling statistics on this question.

And here, to me, is the really frightening point:  only a great war, in all probability, could rebuild a general consensus around basic facts.  That was how the arguments of Orwell's day were resolved--by the victory of the United States and the Soviet Union, whose views of reality ruled the territories they occupied for at least the next 45 years.  That was how the United States settled the issues of slavery and the union in the 1860s.  Let me repeat that I have no wish to see another huge war, but the absence of one means that we will have to live with alternative views of reality among leading political groups for decades to come.  This is in fact what happened in France roughly from 1815 to 1962 or so, a period of nearly two full saeculums, the 80-year periods on which Strauss and Howe focused.  There was not a single moment in all that time at which many influential and powerful Frenchmen did not reject the essential basis of their government.  (It was de Gaulle, one of the greatest statesmen of the twentieth century, who finally solved this problem.)  The relationship between victory in war and legitimacy is a complicated one, and most of us correctly identify great wars as bad things.  Nonetheless, they played a key role--and perhaps an indispensable one--in creating civilization as we have known it.

I remember my father remarking, perhaps half a century ago, that television, contrary to the fears of many, had not produced a great demagogue.  He was right, but I do not think the technology was the reason.  That era was generally unfriendly to demagogues because the nation's victory over the depression, the Nazis and the Japanese had created a genuine national consensus, as Barry Goldwater discovered 50 years ago.  We have now destroyed that consensus.  So far we are threatened not with one demagogue, however, but with many.  They include "commentators" and talk radio hosts, politicians like Ted Cruz and Rand Paul and Darrell Issa, and many more.  They threaten all established political structures.  The market for truth--the market for which Orwell wrote his early, almost unknown works--is more than ever a specialty market, and it will so remain for some time to come.
 



Friday, July 18, 2014

Who Lost Iraq?

Eleven years ago, the Bush Administration invaded Iraq, full of self-righteousness and high hopes. They did so, we know now, with an extraordinary lack of either organization or forethought.   Just a few months before the invasion, according to one reliable source, President Bush did not understand that there was a conflict in Iraq between Sunnis and Shi'ites.  His neoconservative cheerleader assured Terri Gross that that would not be a problem:  "Iraq has always been pretty secular," he said.  Worse, it now seems pretty clear that the Bush Administration never put on paper a clear statement of why we were invading Iraq or what we intended to happen as a result of the  invasion.  They did what George W. Bush probably did on a number of tests in high school and college--they winged it.

Embarking upon the wrong war, I would suggest, is a bit like getting into a long-term relationship with the wrong person.  One can endlessly speculate about how things might have turned out differently, where they went wrong, and whether the other person might change, but in many cases, nothing can make up for that initial fundamental mistake.  So it was, in my opinion, in this case.  The collapse of the Iraqi Army in the northern part of the country, the fall of Mosul, and the establishment of the Islamic State of Iraq and Syria has led to a flood of recriminations directed against the Obama Administration.  If only the President had not cut and run too early, Republicans claim, none of this would have happened.  Others ask in amazement how the Iraqi Army upon which we spent so much money and which we supposedly "trained" for so many years could have collapsed so quickly.  No one--not even Dexter Filkins, who understands the weaknesses of the Malilki government as well as anyone--seems to be able to face the simple truth: that Americans have no means of making Iraqis become whom they want them to be, tolerant and mutually understanding citizens of an independent nation.  He concluded this New Yorker blog saying that the construction of an effective Iraqi government would take a lot of time.

Sunni Muslims had ruled Iraq at least since the British set up the Iraqi Kingdom in the early 1920s.  The country's population grew more than tenfold in the next 60 years, and by the time of Saddam Hussein in had a large Shi'ite majority. Its Shi'ite politicians, including Nuri Al-Malilki, became clients of the Iranian theocracy after 1979, as Filkins showed in another New Yorker recently.  They were more bitter than ever after their uprising was brutally suppressed in 1991, after the first Gulf War.  Nine years ago, on December 3, 2005, I commented on the results of one of the first postwar elections on Iraq.  The voting had broken down completely on religious lines, splitting Sunnis, Shi'ites and Kurds.  When the new Shi'ite-dominated government was established under Al-Maliki, the power shift was evident.  That was why the uprising against the American occupation became so violent in Sunni areas.  That, in turn, led to General Petraeus's appointment, and to the surge in 2007.

What General Petraeus showed was that a mixture of careful political management--paying off Sunnit tribal leaders to wean them away from the insurgents--and substantial American force could quiet the situation down and make the intervention look like a success.  There was, however, no way either to secure the loyalty of the Sunnis to the Shi'ite government, or to get that government to agree to an indefinite American presence.  Obama is now accused of carrying on the negotiations for a status of forces agreement that would have allowed us to remain  "half-heartedly," but there was never any evidence that any Iraqi government wanted 10,000 or so Americans to remain indefinitely, immune from Iraqi law.  Maliki boasted quite recently that he had kept that from happening.  As we discovered in other contexts before, from China under Chiang Kai-Shek to South Korea under Syngman Rhee and South Vietnam under Ngo Dinh Diem, many foreign leaders simply do not believe that the United States knows more about how to lead their countries than they do.  Maliki, the Bush Administration's eventual chosen instrument, is no exception.

Loyalty and determination hold armies together.  Those qualities were generally lacking in the South Vietnamese Army, another one which we tried to build and train, and it collapsed the first time that it had to face the North Vietnamese on its own.  The billions the United States made available to the Iraqis could not make up for their lack of common purpose.  The ISIS, on the other hand, has been fighting for some time in Syria, and it knows exactly what it wants.  So do the Kurds, who have established a strong state and a strong army, even if they technically remain part of Iraq.

We will never know how politics would have been different in the Middle East if the Bush Administration had not invaded Iraq.  The evidence from Egypt and Syria suggests that the authoritarian regimes that have ruled much of the region for decades were bound to come under threat, and that some territories were likely to fall into chaos.  We surely, however, accelerated that process, and now it is out of control.  The Germans might well have felt the same way about the Bolshevik revolution in Russia, which they made possible by defeating the Russian Army so thoroughly during the First World War.  Not until Hitler, however, did they make an all-out effort to undo that result, and the consequences turned out to be disastrous for Germany.  Having helped set the disintegration of the Middle East in motion, we cannot arrest, much less reverse it.  It will play itself out by its own rules.

Neoconservatives will continue to blame the Obama Administration for what is happening in Iraq, and even for what is happening in Syria.  There many are still looking for a mythical "third force," a group of anti-regime moderates that can prevail both against the Assad regime and Sunni extremists.  Graham Green wrote about the American search for a third force in South Vietnam sixty years ago in The Quiet American.   Similarly, Thomas Friedman in the New York Times writes one column after another arguing that the peoples of the region simply want to live in western-style democracies--only wicked rulers stand in the way.

I would suggest that the time has come for the United States to look inward before we are too critical of the Iraqis.  Our own government is just as divided between Republicans and Democrats as theirs is between religious factions. Indeed, religion plays an important part in our divide, too.  We, like the Iraqis, cannot agree on solutions to some truly fundamental problems, such as the status of millions of non-citizens within our nation and the control of our borders.  I strongly suspect that if a Democrat wins in 2016 we may be threatened with the break-up of the nation.  The image of a diverse nation in which the inhabitants regard themselves as citizens first, allowing them to rise above religious, regional and other differences, remains in inspiring one.  It is no longer, sadly, the kind of nation in which we now live.

Friday, July 11, 2014

Out of control

The United States of America, it occurs to me, is in a very strange state because of some strange political occurrences over the last fifteen years.  On the one hand, the Democratic Party has essentially been the plurality party, nationally, for more than 20 years, since Bill Clinton ran for office the first time.  They achieved that stature, to be sure, partly by giving up the policies that had made them successful from FDR through LBJ, and becoming the accomplice of the new rise of corporate power, especially on Wall Street.   But they had secured it, and in 2000, Al Gore--never a strong or compelling candidate--won a significant plurality of the popular vote and, it turns out, barely carried the state of Florida according to the most accurate post-election count.  But Governor Jeb Bush's pre-election purge of the voting rolls, the butterfly ballot in Palm Beach, Gore's failure to demand a full recount in Florida, and the Supreme Court's partisan decision awarded the election to George W. Bush.  As I have said many times here, Bush did not feel in the least inhibited, and he ruthlessly imposed his own agenda at home and, after 9/11, abroad.  The result was a crippled federal government saddled with the largest permanent deficit yet, and a disastrous Middle East crisis that seems likely to go on for decades. A further result was the election and re-election of Barack Obama, by larger popular vote margins that either Clinton or Bush II had ever received.

What has mitigated the effects of these Democratic triumphs is, of course, the polarization of our politics, and the Republican determination to make Obama fail and destroy government as we have known it in the United States.  In addition, Obama signally failed to mold a new majority around new economic policies in his first two years in office, as Franklin Roosevelt did.  Had he been able to think in terms of a whole term, or perhaps even two, from the very beginning of his Presidency, Obama might have focused on alleviating the nation's economic distress more during his first two years and deferred health care reform--but he didn't.  The recession continued through his first year, hard-core Republicans reacted with fury to his election, and the Democrats lost the House of Representatives and the state governments of Ohio, Pennsylvania, Michigan and Wisconsin Those states promptly gerrymandered their Congressional districts so as to assure Republican majorities in their delegations, even when well over half their voters voted for Democrats.  Since 2011 Obama has not been able to pass any significant legislation.  Failing to regain the White House in 2012 only made the Republicans more desperate, and they have become more obstructionist than ever.  Today's New York Times reports that Senate Republicans will not allow any bill that might be popular with the constituents of vulnerable Democratic Senators to come to a vote.  The immigration issue is hopelessly politicized. Eric Cantor's defeat has made it even more unlikely that the Republicans would compromise on anything.  The Administration stumbles along, trying and often failing to make the government work with inadequate resources, and depending on demographics and social issues to insure the future electoral health of the Democratic Party.  The Affordable Care Act seems to be working quite well, but Democrats are too frightened even to mention it on the campaign trail, much less run ads featuring Americans to whom it has given health insurance for the first time.

Seldom in the Atlantic World has a nation been so unable to handle serious problems during a crisis, or Fourth Turning.  Some of the ones that were comparably inefficient, such as Tsarist Russia in the First World War, collapsed under the strain of international conflict. The paralysis of the Weimar Republic in Germany lasted only about two and a half years, from 1930 until January 1933, when it gave way to Hitler.  Herbert Hoover floundered through three years of depression before giving way to FDR.  All these cases had something important in common with us today.  The government was unable to enlist the bulk of the population in a common cause, and to mobilize significant resources for the common good.  That, it seems to me, is what has made it impossible for Obama to build a durable majority in the Congress or lay the foundation for a substantial new period of Democratic rule.  And it seems clear that the Democrats have no other candidate in 2016 who will even propose to do such a thing.

The Democratic electoral strategy essentially accepts our economic state and our distribution of wealth as the best we can do.  (I know Elizabeth Warren is an exception, but she seems likely to remain so.)  It counts on the support of single women and minorities to keep it in power.  Such a strategy, it seems to me, is not likely to succeed indefinitely in the midst of long-term economic crisis.  Meanwhile, the Republicans mobilize their troops more and more aggressively.  The hate mongering on the immigration issue by people like Ann Coulter and Sarah Palin is a national disgrace.  But there is no observable countervailing trend in the Republican Party, either.

For the last four years the Republicans have in effect managed to impose their belief that we do not need more government.  President Obama, indeed, cooperated in that more than he should have when he agreed to the sequester, even though it has now been partially rolled back.  The problem is not simply that the Republicans are encouraged by their own successes; it is that we do need more government, and more resources mobilized on behalf of public goods. 

Dictatorship does not seem to be a danger which we face.  We will not have a military coup, like Chile in 1973, and we have no totalitarian party contending for power like Germany in 1933 or Russia in 1917.  Our danger, as I have said many times, is anarchy.  Today I read that the same militiamen who rallied to the cause of Cleavon Bundy in Nevada are deploying on the Texas-Mexico border to stop immigration.  Who knows what kind of incident might result?  Contempt for institutions is highly contagious, and from the VA to the CDC to the CIA, ours are not doing enough to inspire respect.

Announcement-A New Blog

A new historyunfolding post will appear tomorrow.  Meanwhile, please take a look at my new blog, here--and please send the link to anyone, anywhere, who you think would be interested in it.

Thank you all!

DK

Friday, July 04, 2014

Religious freedom?

 The Hobby Lobby decision has rightly aroused a great deal of commnet.  Politically, this decision, together with the decision reached a few days earlier striking down Massachusetts limitations on the right of abortion protesters to confront patients on their way into clinics, suggests that our culture wars are going to continue for a long time, and that the victory of the Left is anything but assured.  But constitutionally, in my opinion, the Hobby Lobby decision is both astonishingly novel and terrifying.  Like the Heller decision that revised the meaning of the Second Amendment, Judge Alito's decision in this case redefines an essential American concept, freedom of religion.  It does so in a way that will give religion literally unprecedented influence upon the operation of laws, and it does so, really, without any effective chain of reasoning whatever.  Let me explain what I mean.

Alito purports to base his decision on the appallingly named Religious Freedom Restoration Act, passed in the early 1990s and signed, in a typical burst of conciliatory moderation, by Bill Clinton.  That Act apparently was a response to a Supreme Court case, Employment Div., Dept. of Human Resources of Ore. v. Smith, in which certain Amerian Indians were both dismissed from their jobs and denied unemployment benefits for using peyote, an illegal drug, as part of their religious practice.  Here are the key passages of this act.



(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. 
The act further defines "religious exercise" as follows:
(7) Religious exercise
(A) In general
The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) Rule
The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose. 
Now I have no objections of either of these passages as written, except to say that I do not think we needed them, since they really do no more than to elaborate on the text of the First Amendment to the Constitution.  But that is because I regard an "exercise of religion" as something that an individual, family, or congregation, do, or refuse to do, themselves, because of their personal beliefs.  They should not therefore be compelled to eat food that their religion prohibits, or open a store on what they regard as a sacred holy day, or denounce part of their church doctrine.  Jehovah's witnesses have been allowed by the Supreme Court to refuse to salute the American flag in school based upon their beliefs.  Young men have been exempted from military service because their religious training made them oppose all wars.  To be sure, federal courts have ruled against parents who tried to deny their children essential medical treatment based upon their religious beliefs, but those are extreme situations which the new law also recognizes.

Yet the Hobby Lobby claim--and this, for me, is the key point--has nothing to do with the plaintiffs' exercise of their own religion.  They do not believe in abortion or certain forms of birth control, which is their perfect right, but the government is not trying to force them to have abortions or have IUDs implanted.  Instead, the government has required them (and other comparable businesses) to make health insurance available, and to include full contraceptive coverage (although not coverage for surgical abortions) in the plans they offer.  What Hobby Lobby wanted to do was to make it harder for its employees to do anything in opposition to Hobby Lobby's own beliefs.  That, in my opinion, is not the "free exercise of religion." It is the opposite: an attempt to impose their religious beliefs on others.  And if that isn't unconstitutional under the First Amendment and a violation of all American traditions, then I don't know what is.
Yet astonishingly, Justice Alito,  in his opinion, does not even provide any reasoning for endorsing this claim, but simply assumes its validity. Here is the key passage (the opinions may be read here:)


"In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions,they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives." The court,  Alito continues, has to decide "whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe theywill be facilitating abortions, and if they do not comply,they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount toa substantial burden, it is hard to see what would."

Thus, Alito and   his four colleagues are arguing that no one can be compelled to cooperate in the administration of federal legislation whose effect is somehow contrary to their religious beliefs.  In exactly the same way, Quakers could easily claim exemption from all taxes collected to pay for wars, Jews and Muslims could object to any federal money spent to facilitate the manufacture, inspection and distribution of food products made from pork, and so on.  Every American becomes the rightful judge of what laws he shall observe, based upon his religious belief.  Yet the whole point of the United States, child of the Enlightenment that it was, was to form a government based on reason, not religion.  Alito and his brethren had imposed a scandalous revision of fundamental Constitutional law, and Providence alone knows where it wll end.

I had written the above paragraphs before I checked Justice Ginsburg's dissent, and to my great joy, she went right to the heart of this matter in her first two paragraphs.  To my knowledge, however, the media has failed to pay much attention to what she said.


"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along withpartnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible withtheir sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based optouts impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always willbe whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1

"The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent."

That is not all.  Justice Ginsburg then lays out the legislative history of the ACA with respect to the issue at hand.  The initial bill did not require that contraceptive services be covered, but Senator Barbara Mikulski introduced an amendment to do so, and it passed.  As Justice Ginsburg initially noted, the court majority claimed a statutory, not a constitutional, basis for siding with Hobby Lobby.  But it turns out that the Republicans tried to write Hobby Lobby's position into the law during the debate on the ACA--and Congress rejected their position.

"While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moralconvictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left healthcare decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers."

Ginsburg also makes clear from the legislative history that the Religious Freedom Restoration Act was designed merely to overturn the Smith decision, and not to create new, additional rights related to the exercise of religion. Alito's reasoning relied on the opposite assertion.

Justice Ginsburg's also dismisses the majority's incredible claim that since corporations have in some contexts been characterized as "persons," they can also be accorded the right to exercise religion.

"Until this litigation, no decision of this Court recognizeda for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether underthe Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise ofreligion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearlytwo centuries ago, a corporation is “an artificial being,invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part)."

Justice Ginsburg also shows at length that the majority's grant of religious rights to for-profit corporations is not only unprecedented, but flies in the face of distinctions between for-profit and religious corporations that have been made in Anglo-American law for centuries.

It seems to me clear that the Republican majority on the court, which has been carefully put together and nurtured for decades by a network of sitting justices (whose clerks often go on to great things), the Federalist Society, and right-wing think tanks, are engaged in an ongoing campaign of judicial activism designed to undo much of the law and governing philosophy of the last century.  Chief Justice Roberts is among other things a clever politician, and he knows enough not to go too far too fast, as he showed when he declined on very narrow grounds to declare the Affordable Care 3unconstitutional, while denying Justice Ginsburg's overwhelming arguments that it passed muster on all counts. Yet the long-term trend is clear.  It can be compared, it seems to me, to two other periods in the court's life.  In the decades from the 1880s through the 1920s, when the Supreme Court repeatedly ruled against both federal and state power to regulate the economy in many ways, denied the rights of organized labor, allowed racial segregation, and declared a federal income tax unconstitutional.  In the years 1934-6 the Court struck down a number of important New Deal laws, including the National Recovery Act, the Agricultural Adjustment Act, and the Guffey-Snyder Coal Act, which sought to regulate wages and hours in the coal industry.  In 1937, however, after Roosevelt introduced legislation to increase its size, the Court majority shifted its course and let stand both the Wagner Act and the Social Security Act.

Of the two eras, sad to say, the Gilded Age looks much more similar to this one than the New Deal era.  The Nine Old Men, as Drew Pearson and Robert Allen named them, were fighting a rear-guard action against progress.  They were relics of a distant age.  The Gilded Age judges, led by Chief Justice Fuller, were still "in the full force of life," as the French say, and confidently pushed free market ideas forward for a long time.  The current court majority includes two members of the Silent generation, Judges Scalia and Kennedy (who has become more conservative of late), and three Boomers, two of whom are only in late middle age.  If a Republican President gets to make the next Supreme Court appointment, their views will dominate for another ten years at least.

The greater ruthlessness of Republicans, who want to return us to the Gilded Age, than Democrats, who are meek defenders of parts of the inherited status quo, is one of the main reasons for the victories they have won for their policy agenda.  The Republicans began their ascendancy, after all, by stealing the presidential election of 2000, and they continue to use every advantage they can find both to block Democratic agendas and to advance their own.  This decision is another such step forward for them, and to the extent that it does indeed create chaos in the administration of federal laws, it will help them still further. The battle for the future of the US is still going on.





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