Monday, July 20, 2020

The More Things Change...


Recently the Supreme Court held that the Founding Fathers did something senseless when they wrote the constitutional provision for the election of the President. And a little misleading. They gave the distinct impression that they wanted actual electors to vote for the President—deceptively accomplished by the use of the term “electors”—when what they really wanted was for the state legislatures to award points allocated to each state based on the number of Representatives and Senators it has in Congress.

We’ll probably never understand why the Founders decided to express themselves in the way they did. But it turns out that all this time states have been engaging in the meaningless act of sending actual people as electors to “meet in their respective States,” [1] to “vote by ballot for President and Vice-President.” [2] We were probably thrown off by the provision that the electors are, after the votes are cast, to make a list of all the persons voted for, which they are to “sign and certify, and transmit sealed to the seat of the government of the United States….” That makes it look like human beings are required to exercise the office of an elector. But apparently not.

Alexander Hamilton was apparently fooled too. In Federalist Paper No. 68 he wrote of the electors that it was “desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” [3]

But why would it be necessary to have people of such qualifications as electors, if all they were to do was perform a ministerial act? Why couldn’t the governor handle it? Why would you need “a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”? [4] Wasn’t Alexander Hamilton paying attention during the Constitutional Convention?

The reason I ask these questions is that in the recent case of Chiafalo v. Washington [5] the Supreme Court upheld a state law that requires electors to “’execute [a] pledge’ agreeing to ‘mark [her] ballots’ for the presidential  (and  vice  presidential)  candidate of the party nominating her….And the elector must comply with that pledge, or else face a sanction.  At the time relevant here, the punishment was a civil fine of up to $1,000.”

But being that kind of elector doesn’t require people “most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.” On the contrary, a precocious 10-year-old could perform this function.

It’s true that electors are appointed from each state “in such Manner as the Legislature thereof may direct….” But that goes to the manner of their appointment, not the casting of their vote.

So why did the Court rule in this manner? “’Long settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions,’” the Court said. So if there had been a long settled and established practice of entering homes without warrants, that would be constitutionally acceptable? Or of denying defendants the right to counsel in criminal trials?

No, someone will object, those practices would be contrary to the plain text of the Constitution. Well, this is contrary to the plain text of the Constitution. The Constitution calls for electors, not administrative functionaries.

What we are left with is a system where political parties (nowhere mentioned in the Constitution) choose the electors, and, in all but two states, the presidential candidate who wins the plurality of votes in the state (not even a majority) by one vote, gets all of the state’s electors. That’s indefensible to any objective observer, and is manifestly not what the Founders intended. It’s a system designed to accommodate political parties, not republicanism, and, if this is the way we’re going to do it, we’re better off with a popular vote.

Thursday, June 18, 2020

I Will Have Mercy and Not Sacrifice


42 U.S.C. §2000e-2(a), which will hereinafter be referred to as “Title VII,” says that it is “an unlawful employment practice for an employer—

“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” [1]

This statute was enacted in 1964, back when very few were considering same-sex marriage as a possibility, or transgenderism as anything requiring legislation. But in a recent case that has achieved instant notoriety, Bostock v. Clayton County, the United States Supreme Court has ruled on whether the above statutory language covers employer actions against homosexuals or transgender persons based on their status as such.

Now it may be doubtful that anyone in Congress was thinking of homosexual or transgender persons when the statute was passed. But such an inquiry would have some difficulty. There were 535 members of Congress, then as now, and it would be impossible to know what was on the minds of all of them. “Legislative intent,” therefore, is always something of a term of art.

That’s why the preferred method of statutory interpretation is to go with the plain meaning of the statutory language whenever possible. Under that method, the “limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” [2]

“Sex” in our age of linguistic engineering can mean different things to different people. But in 1964 it is safe to assume that “sex” had the traditional biological meaning. As the Court said in this case, “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.”

In other words, courts are to look to the original meaning of the words when interpreting statutes. That is different than trying to discern original intent, which might be a metaphysical enterprise. So how did that work out in this case?

First, it is important to take note that “the statute prohibits employers from taking certain actions ‘because of’ sex.” Well, what does that mean? “In the language of law, this means that Title VII’s ‘because of’ test incorporates the ‘”simple”’ and ‘traditional’ standard of  but-for  causation….That  form  of  causation  is  established whenever a particular outcome would not have happened  ‘but  for’  the  purported  cause….In  other  words,  a  but-for  test  directs  us  to  change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”

When the wording of the law is taken into account, the Court’s ruling appears inescapable:

“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a  statutory  violation  has  occurred. Title VII’s message is ‘simple but momentous’: An individual employee’s sex is ‘not relevant to the selection, evaluation, or compensation of employees.’ [citation omitted]

“The statute’s message for our cases is equally simple and momentous:  An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If  the  employer  retains  an  otherwise  identical employee  who  was  identified  as  female  at  birth,  the  employer intentionally penalizes a person identified as male at birth  for  traits  or  actions  that  it  tolerates  in  an  employee  identified  as  female  at  birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

Justice Gorsuch, who wrote the majority opinion, wasn’t engaged in an act of judicial legislation. He wasn’t betraying the “social conservatives” who voted for the President who appointed him. He was doing what it was always clear that he would do, given his well-known judicial philosophy: applying the text of the law to the facts before him, without interjecting his own policy preferences. That was supposed to be what the “conservatives” wanted.

Of course, sometimes the positive law can be unjust. According to natural law theory, of which your humble servant is an adherent of the least dignity, an unjust law is no law at all. But is Title VII unjust, or did it have an unjust result in this case? Consider the facts.

“Each  of  the  three  cases  before” the Court “started  the  same  way: An employer fired a long-time employee shortly after the  employee  revealed  that  he  or  she  is  homosexual  or  transgender—and  allegedly  for  no  reason  other  than  the  employee’s homosexuality or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work.  After a decade with the county, Mr. Bostock began participating in a gay recreational softball league.  Not long after that, influential members of the community allegedly made disparaging comments about Mr.    Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct ‘unbecoming’ a county employee.

“Donald Zarda worked as a skydiving instructor at Altitude Express in New York.  After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.

“Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan.    When she got the job, Ms. Stephens presented as a male.  But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman.  In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to ‘live and work full-time as a woman’ after she returned from an upcoming vacation. The funeral home fired her before she left, telling her ‘this is not going to work out.’”

The question that must be asked is whether it would have been just to let these employer actions stand. If one is opposed to homosexuality or transgenderism, does it follow that he should support actions that deprive such persons of a livelihood? Your humble servant is a Catholic, and I need not delineate my Church’s stance on these issues. But does that require me to rise in support of the termination of good employees because they don’t adhere to the tenets of my religion? On the contrary, “Go then and learn what this meaneth, I will have mercy and not sacrifice.” (Matthew 9:13) [3]

The statute has been satisfied, justice has been satisfied, and so should we be satisfied. America will never be great by inflicting harm.

Saturday, June 6, 2020

Time for Something New


With all due respect to the police officers who have responded positively to the protests over the murder of George Floyd, we have seen a good deal of police violence against peaceful protestors, and we deserve a radical social transformation. Because this is not what America is supposed to look like. This is not what a functioning democracy is supposed to look like.

In the last offering in these pages, your humble servant made some suggestions for reform. [1] But witnessing the heavy hand of authoritarianism over the past few days, it is now clear that even more fundamental changes are needed.

The basic problem appears to be that a kind of divide has developed between law enforcement and the citizenry. The police have come to view themselves as a group apart, and this has led to an objectification of the citizens in the eyes of law enforcement. The police see each other in familial terms, and perceive themselves as standing in an adversarial relationship with the rest of the population.

What this has resulted in is a circling of the wagons whenever a charge of police brutality is made. You may have seen the video of the police in Buffalo shoving a 75-year-old man, Martin Gugino, to the ground. The video shows “two officers pushing Gugino down as he approached them in a public square around an 8 p.m. curfew Thursday. Gugino stumbles back and falls, and the video shows him motionless and bleeding from his head.” [2]

The two officers were suspended, and, by rights, they should be charged with a battery. But the result was that all “57 of the members of the department’s Emergency Response Team resigned from the unit” in protest.

This is exactly the sort of us versus them mentality that is crux of the problem. But there is a way to solve it.

In the early days of our Republic, people were concerned about standing armies. That concern was one reason why the Second Amendment was placed in the Bill of Rights. Militias were considered more trustworthy, because they were comprised of neighbors, and friends, and family members; they were of the people, rather than a separate military class that could so easily be utilized in the service of oppression.

But now, in large cities in particular, something of a standing army exists in the police force, especially with the military equipment they now have. They may be called “the police,” but they are in the nature of an occupying military force. This must change.

The way to change it is to require that any member of the police force must have resided in the locality he is to work in for a certain number of years before donning the badge. This will make it so he or she will police people he or she knows or grew up with. The larger cities should be divided up for this purpose into policing districts, so that officers will serve their own neighborhoods. Consideration should also be given to using reserve officers, who have other occupations, but who can be called into service when needed.

There will have to be specialized units, of course, for things like hostage situations. But these can be centrally located, and called in by the neighborhood police when needed. These would have no authority to act unless called in by the neighborhood police. Detective work is also a necessity, and this can be dealt with in the same manner.

Localized and neighborhood policing, by those who are previously familiar with those they have jurisdiction over is an idea that might make this country start looking like America again. And that is what we want. Isn’t it?