Wednesday, June 11, 2014

An Insects Perspective: Inductive Reasoning and the Tea Party Victory

Eric Cantor was up by as little as 13 and as many as 30 points (depending on which poll you trust, which clearly should be neither) going into the Virginia primary on June 10, 2014. Cantor lost by 11% of the vote. Conservatively, his campaigns best guess was 24 points off. That type of disparity makes the Romney Campaign's polling errors seem like mere margin of error, and they were pretty bad. But this race isn't about polling, or how to run a campaign. Sure there were differences and probably some lessons to be learned in both areas, but they are secondary. This race is about the shock of a virtual unknown knocking down a genuinely established party leader.

The GOP has been in flux since 2008, when the McCain campaign opened the Pandora like box on the Tea Party with the pick of Palin as a running mate. Hindsight being 20/20 I don't think anyone on that staff fully appreciated what they were doing, they just wanted to win and needed to do something big. It failed in the moment but in the long game the message that Palin and several others began pushing was popular in certain areas. As self-identifying “conservatives” and NOT Republicans began to voice their displeasure with the new President the Tea Party went from being a few people dressed in the latest in colonial fashion at a few events, to a force of political influence and change. Most likely the Tea Party and their growing membership probably wouldn't like me using that word “change” to describe them, but it's true. Obviously the word alone holds no indication of the type, or what its effect will be when it occurs, but it applies just the same.

Yes, the Tea Party has won another big race. Yes, the Tea Party continues to grow, even if it is at a slower pace. Yes, the Tea Party will have an impact in 2016. Those are the easy questions to answer. The hard question is: Will it actually matter?


Congressional districts are heavily skewed. Most of us have a basic understanding of Gerrymandering, but let's refresh. Gerrymandering is simply drawing the lines around voters on maps to make sure that certain areas always come out one way or the other. There is much more nuance to it, but that is the essence of the issue. States are portioned off into their congressional districts and certain voting blocks are packed into one district (like making sure inner-city populations vote all together), or sometimes are cracked apart (like splitting a city in half) depending on what the line drawing party is trying to achieve. In some instances it creates very safe seats for both parties and can often make it impossible for one party to win in a certain area.

A secondary effect is that the district will likely have more “extreme” members of one party or another. If the area, like in Virginia's congressional race, is already a Republican stronghold (the Democrats didn't even have a primary, it's worthless to them due to the gerrymandered electorate) then the more extreme right is going to have a greater influence. Instead of Liberal v. Conservative it becomes Republican v. Self-identifying “conservatives” and in most current cases, the Tea Party. In practice, it is still a two party race. While the macro picture shows the Tea Party as a sub group of the GOP, the micro version is much different. The Tea Party is not a wing of the GOP. The Tea Party is independent of the GOP, they just agree on one very central point: hating Obama and assuming that all liberals are anti-Americans.

Slide to the left

What happens to the moderate Republican voter? Cantor, by all accounts, is a current moderate. His voters didn't want the Tea Party to win, but will they vote for the R on the ticket in the fall? To answer that question, let's remember the 2012 election. The Tea Party was in its prime, and ready to knock heads. Senate races were supposed to go red on election night, and Romney was neck and neck with Obama for the Presidency. Then the votes came in. The Senate stayed blue, Obama was reelected before midnight on the east coast, and the House picked up a handful of new Tea Party members. The small races that can, and have, been gerrymandered went red while the general U.S. population voted blue. You can't gerrymander the Presidential race, or the Senate races. I suspect this trend will continue in 2016 and 2020.

See the forest

For all the Tea Party vitriol about Obama, the left, the liberal media, and the annihilation of “American” values they seem ill equipped to see the macro. They are not the moral majority, no matter how badly they wish they were. The Tea Party is a minority group with a heavy base of a specific religious sect. Yes, their moral minority is “winning” if you stop the conversation at small, heavily gerrymandered, house races but every step backward reveals a different landscape. This idea that the Tea Party is somehow the only group of people who know (or even could know) what is best for our Country, or that their version of morality is superior for any reason is the very thing clouding their vision. Taking a small sample and applying it to the larger problem is inductive reasoning. It's the equivalent of trying an apple, not liking it, and deciding you don't like fruit.

I see the Tea Party racing around, building its infrastructure, working hard to create a base it can count on and win with. Like an army of ants building their ant hill, digging tunnels and storing away supplies for the future. Then I imagine if an ant could view the world from a human's eye and see that the ant hill, with it's vast and impressive system of tunnels, is so easily demolished. How would it react? Would it begin building a more sound structure, or would it even understand what it's looking at?

-Adam Sommer

Tuesday, May 6, 2014

It's All Greek To Me: The Troubling Phraseology of The Town of Greece v. Galloway

The Supreme Court of the United States (SCOTUS) has handed down what is best be described as an interesting decision regarding the First Amendment in it's May 5, 2014 decision on The Town of Greece v. Galloway. In a 5-4 decision (written by Kennedy), SCOTUS decided that a prayer, regardless of its sectarian nature, prior to monthly town board meetings does not violate the establishment clause by preferring Christians over other religions, basing the decision on the tradition, culture, and heritage of the U.S. government to use prayer similarly. Galloway presents an interesting question: Are tradition, culture, and heritage enough to allow a practice that may be out of bounds under a more formal Establishment Clause test? The essence of the majority opinion is that the long standing traditions of prayer before important events, and it's use by the Federal legislature similarly to the way the Town of Greece used it, is enough to allow the practice. The majority relies heavily on Marsh v. Chambers, 463 U.S. 783 (1983).

Marsh Opinion

The Marsh Court harkened to our nations founding to point out that prayer at public meetings is not new. It also used very specific language to say that any prayer used is not being used to proselytize the listener. “As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.Quoting Lynch v. Donnely, 465 U.S. 668, 693. The Marsh Court called this a "tolerable acknowledgement of beliefs widely held," in explaining why the practice should be permitted and does not violate the establishment clause of the First Amendment. I'll keep moving through the opinion for now, but keep that 'beliefs widely held' in the back of your mind.

In Marsh Justice Brennan pointed out, in dissent, that the practice should not be allowed to continue without subjecting it to a more formal test under the establishment clause, which SCOTUS did not do. Instead, the Marsh Court and now the Galloway Court have relied on culture and heritage, along with with tradition, as the proper standard to uphold this practice as not violative of the establishment clause.

Lemon Test

Probably the most famous of the formal Establishment Clause tests is the “Lemon Test” found in Lemon v. Kurtzman, 403 U.S. 602 (1971). Admittedly, the Lemon Test is not the best one to apply to this case, but I'll get there later. It's useful context and I use it to demonstrate my point, that SCOTUS didn't even bother to use a simple test, like Lemon, in this case.

Lemon dealt with text books and teacher salaries at private, religious, schools and the use of public funding. The facts have little to do with Galloway, but it did give us the 3 prong test. The Lemon Test is as follows:

The Lemon Test:

(1) Does the law have a secular purpose?

(2) Is the primary effect either to advance religion or to inhibit religion?

(3) Does the law foster an excessive governmental entanglement with religion?

It's a fairly simple test. If the law in question, or practice being challenged, violates one of the three (note it's an OR test, not an AND test, so one is enough) then it violates the First Amendment under the Establishment Clause. So, the Court would take the practice in question, here using prayer that is particularly sectarian (regardless of the sect, though here it was obviously Christian in nature) and run it through the test. Parts one and three don't apply because it's not a law in question. Part two, the primary effects test, is worth a look though. Does the town board of Greece specifically want the prayer to advance religion? It doesn't seem that way, though admittedly we don't know the exact motivation of the persons that created the practice for the town, so it could have been to advance religion, and even a specific form. That's what is troubling, we don't actually know why they started the prayer, their intrinsic motivations. The Court didn't get into that issue, why bother to find out if the practice can survive a Constitutional test when you aren't going to apply one any way?

What we know is that the City did make a point to call several religious leaders to do the prayer. We also know that the prayers offered were, almost exclusively, Christian in nature and relied heavily on the specific name of Jesus, and what could easily be called a more evangelical bent in the wording.

Factually, the issue might violate the Lemon Test, or might not violate the Lemon Test, but since the majority didn't bother to apply any formal tests the case doesn't make that determination. Instead the majority opinion rests on the prayer's relationship to culture, tradition, and heritage along with a brief analysis in which the majority finds that the prayer isn't coercive, without applying the Coercion Test (which we'll get to in a bit). That's were things get fuzzy.

Boiled down to it's simplest form, SCOTUS may have created a new test called the Galloway Test, or the Culture and Heritage Test, as the test for whether prayer before a governmental function is violative of the Establishment Clause. If so, that is troubling.

Wizards and Dragons

Before I make my argument I want to point out something very important. I do not think that the five justices involved with this opinion are KKK sympathizers in any way shape or form. What I do think is that using the words “culture,” “tradition,” and “heritage” to support any argument that isn't about how to celebrate holidays with your family, isn't a good thing.

Google up any KKK webpage and do a word search for “culture and heritage” and see what comes up. The answer? A lot of hits.

Imperial Wizard, Frank Ancona, of the Traditionalist American knights of the Ku Klux Klan (who I hear is really just a big softy) uses the word culture two times and the word heritage five times in his 293 word essay (for reference, this essay is about 1,700 words) titled “Why Are We Needed?” Needless to say, those words are also typically used right alongside the word “race,” and Frank isn't talking about NASCAR. His argument rests heavily on culture and heritage to explain why white's are superior. This is not something from 100 years ago. This is a webpage, updated in 2014.

Imperial Wizard, Colt Thornton, of the United Northern and Southern Knights of the Ku Klux Klan uses similar language, focusing on culture and heritage and the way things are stacked against the white man these days. I like his group's webpage better though, because they split up their sub groups into realms, with their Wizards (I live in the Realm of Missouri) so it has a very 'Game of Thrones' feel to it, but with way more clothes and only slightly fewer dragons. Plus, the UNSKKKK (really the name is just too long) is smart enough to put some advertising boxes on their site so while I perused their well written and enlightened articles I was reminded that Mother's Day is just around the corner. Never let it be said that the UNSKKKK isn't helpful. Also, if you say the name fast enough over and over again it sounds like a beat box, which is fun. (You tried it, didn't you?) Again, a 2014 webpage update.

These are extreme examples, to say the least, but that's the problem. I didn't have some special knowledge to find these examples. I don't have the best and brightest law clerks in the country working for me (in fact, I have none) and yet with just ONE search on Google I found two examples of the KKK using the exact same rhetoric and argument to support their message as what SCOTUS relies on in Galloway.

In His Own Words

I'm not trying to say that the issue in question, the prayer in the Town of Greece, is actually being done in violation of the Establishment Clause. I  don't think it is based on the description of efforts to include other sects/religions. That there are without a doubt more Christian churches than non-christian organization/religious center/church is not the fault of the people who wanted to add the prayer. There is plenty to be said for the prayer being nothing more than a connection to the solemn nature and serious nature of governmental work, and getting people to take that work seriously is not a bad thing. Plus, the prayer most likely does survive a genuine application of the Coercion test.

What I am trying to say is that we the people should demand more from the nine that decide how our Constitution is applied to our laws and practices. The Majority opinion could just as easily have gone through Lemon, or Wallace v. Jaffree 472 U.S. 38 (1985), which dealt directly with prayer. Even better, Justice Kennedy could have followed his own reasoning from Lee v. Weisman, 505 U.S. 577 (1992) in which the learned Justice actually created the “Coercion Test” for the Establishment Clause, rather than giving it lip service. Creating the test, Justice Kennedy wrote: “It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise[.]” Weisman at 587.

Instead of using his own words, Justice Kennedy skirts the issue by using the words relied on and shared by a subculture extremist group. Justice Thomas twists the Coercion Test into a few paragraphs about Federalism (which this case most certainly is not about) but appears to do so only to make the point that if the coercion is subtle, then it's ok. (Seriously.)

Forests and Trees

Let me be clear, the ruling in The Town of Greece v. Galloway is not a victory for speech. It is the opposite. It is an unfortunate reaffirmation that law, precedent, and fairness often pale in comparison to “social norms,” even if those norms are inherently discriminatory

As Justice Kagan cited in the dissent, the idea of neutrality is not a new notion created by “political correctness” but rather a basic principle of our most famous founders. Madison warned us that religious proclamations might, “if not strictly guarded,” express only “the creed of the majority and a single sect.” Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 561 (1946).

The majority decision in this case seems remarkably short sighted, granting the ability for governmental units to have sectarian prayer before meetings at the cost of setting a precedent that tradition, culture, and heritage of the majority is now a proper legal argument. Perhaps someone should remind those five that the Constitution is actually an anti-majoritarian document designed to protect the minority, not bolster the majority. 

-Adam Sommer