“Well, a satirical piece in the Times is one thing, but bricks and baseball bats really get right to the point.”

Nazis Highway

So said Woody Allen (as Isaac Davis in Manhattan) in response to the suggestion that a Nazi march was “devastated” by a mocking piece in the New York Times.

In Sunday’s  Times, there was an article about a group calling themselves “The Nationalist Socialist Movement – Springfield Unit.”  It has been allowed to participate in Missouri’s adopt-a highway program. Under the program, a group agrees to pick up trash along a stretch of roadside and, in return, a sign is erected at the onset of the “adopted” segment, acknowledging their participation. The Nazis apparently pick up litter in full regalia. 

What to do? Allen’s character suggested picking up bricks and baseball bats and going to “really explain things to them.” Let’s take that off the table.

There is no question that the Nazis have a right to participate. The Supreme Court has held that groups may not be excluded from such programs on the basis of their political beliefs. That case (also arising from Missouri) involved adoption of a highway by the Klu Klux Klan. State officials responded by renaming the road after Rosa Parks.

Legislators have proposed calling the highway on which the Nazis collect trash, the Abraham Joshua Heschel Memorial Highway after the prominent rabbi and philosopher.Although Heschel’s daughter is not happy with the proposal (and her wishes are entitled to great consideration), I sort of like it. Absent the preferred option, i.e., that such people not exist, there is something about having Nazis pick up the garbage on what is, symbolically, a Jew’s road. “Excuse me, there, Horst, but I think you missed that Toblerone wrapper. Be a good little Aryan and pick that up for me.”

I appreciate that people will look at the propriety of such a response in different ways. One argument would be, I suppose, that to do anything more draws attention to the Nazis. But fanatics have a way of drawing attention to themselves. I prefer to see honoring Heschel in the face of these jamokes as the wages of hatred. The Nazis are marginalized and Heschel, who barely escaped the charnel house, is honored.

But this is the faculty blog so let’s explore a legal point.

Continue Reading“Well, a satirical piece in the Times is one thing, but bricks and baseball bats really get right to the point.”

Reflections on Why We Fight

Let’s fight about why we fight!

Or, better yet, let’s continue the intriguing discussion begun by Professor Fallone about the nature of our political divisions. There are some interesting observations in the readings he suggests (I’ve seen only the Lakoff book), but they also raise some interesting (at least to me) observations and questions.

I have not read Gary Will’s book, but I have, like many of the readers of this blog, thought and wrote about issues of federalism and the proper role of the state.  I agree with the idea that there is a “myth” about these matters, if he means to use the term in its true meaning as an explanatory narrative, rather than in its popular corruption as “false.”

That narrative reflects a rather serious body of thought that is not limited to the political right or to any particular view of the founding. The idea that the “local and voluntary” (the term “amatuer” is pejorative and trivializes the debate) can be preferable to the “centralized and mandatory” is an important aspect of Catholic social teaching (expressed in the notion of subsidiarity) and of the Calvinist notion of sphere sovereignty. Toqueville, an outsider, saw American associationalism as a valuable antidote to the potential for democracy to consume itself.

Of course, none of these perspectives argue that a central government has no role to play and part of the difficulty with using historically successful arguments for central government is that they do not imply that expanded government is always good. The need for expanded government to, for example, start a central bank or facilitate interstate commerce, means that calls for additional expansion of central government  are actually or even presumptively meritorious.

This suggests two observations about our current political divide. 

Continue ReadingReflections on Why We Fight

More on Caperton

grisham1In a comment following Ed Fallone’s post on Chief Justice Robert’s little list (actually it as a rather long list), he argues that there is little in the text, structure and history of the  Bill of Rights that might inform the question of when the due process clause requires a judge to recuse herself because of the potential for bias associated with campaign contributions:

It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

He’s right about state judicial elections. If I recall correctly, they began with Mississippi in 1832. I agree that Mike McChrystal does capture something important about why the majority acted in the way it did, but I think that it might be not simply a judicial gag reflex. I think there may be some instruction to be found in the structure of the constitution. I’m still thinking on it, but it might go something like this.

Continue ReadingMore on Caperton