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Posts For: November 27, 2013

ObamaCare, Religious Liberty, and a Crucial Supreme Court Showdown

The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

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The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice.

Thus it is instructive to listen to how the left frames the debate. To do this, it will be important to look beyond the “corporations aren’t people” argument that the left typically employs when asking the courts to remove First Amendment rights from individuals who coordinate their activities through an organized group. This argument is exceptionally weak; as Ilya Shapiro explained in the wake of the liberal hysterics over Citizens United, no one argues that companies don’t have, say, Fourth Amendment or Fifth Amendment rights.

So the left moves then from explicitly trying to revoke the constitutional rights of those with whom they disagree to the claim of protecting their own rights. This is when the left is at its most revealing, for liberals have a curious definition of rights. Last night, the Washington Examiner’s Tim Carney debated birth-control activist Sandra Fluke on MSNBC on the topic. Carney said that if the government wants to claim a compelling interest in the provision of free birth control, they also must argue there was no less intrusive way to provide it. There are obviously less intrusive ways than this ObamaCare contraception mandate.

Fluke responded that one less-intrusive way would be to have the government simply provide birth control directly, but complained that conservatives are cutting back on funding for such public programs. Then, as Ryan Moy pointed out after the broadcast, Fluke said this:

So there’s an attack on allowing employers to be required to provide this insurance coverage on insurance that employees pay for, at the same time that there’s an attack on public availability through clinics.

One more time: there’s an attack on allowing employers to be required to provide this insurance. To the left, there is no freedom without government coercion. This is either incoherent or Orwellian, or both. But that’s the argument the left is running with: they want you to be forced to provide the funding for even their most private activities; only then will you be truly free.

But Fluke isn’t the only one making this argument. Mediaite has the video of an MSNBC roundtable on the issue, in which the panelists are panicked at the thought of affording Americans full religious liberty because, essentially, it’s then a slippery slope to protecting all constitutional rights. And then–mayhem, or something:

“This is another reason why we should have moved toward a single payer system of health coverage, because we’re just going to end up with one challenge after another – whether it’s in the courts or outside of the courts – and I just don’t see an end to this,” Herbert submitted.

“We’re already on the slippery slope of corporate personhood,” he continued. “Where does it end?”

“Where does it end” is the attention-getter in that comment, but I think Herbert’s plea for single-payer health insurance is just as telling. Put the government in charge of the country’s health care, Herbert argues, because then it will be much more difficult for Americans to “challenge” the government’s infringement on their freedom. It’s not just legal challenges either. Herbert says those challenges can be brought “in the courts or outside of the courts,” the latter perhaps an allusion to the shady world of participatory democracy.

So this is much more than a fight over birth control, or even health insurance. It’s about two fundamentally different views on American constitutional freedoms. Conservatives want those freedoms to be expansive and protected, as the Founders did. Liberals want those freedoms to be curtailed lest the citizenry get greedy or the democratic process imperil the state’s coercive powers.

The Founders saw religious freedom as elemental to personal liberty in America. But they were not alone in thinking that unimpeded religious worship was a guard against an overly ambitious or arrogant national government. As Michael Burleigh writes about the role of religion in post-French Revolution European politics, with a supporting quote from Edmund Burke:

The political function of religion was not simply to keep the lower orders quiescent, as has been tiresomely argued by generations of Marxists, but also to impress upon those who had power that they were here today and gone tomorrow, and responsible to those below and Him above: ‘All persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.’

Religion was not the “opiate of the people,” intended to keep them in line. It was, rather, to keep the government in line. This was not a revolutionary idea; it predated the American Constitution, certainly. As Francis Fukuyama writes in The Origins of Political Order: “The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. The assertion of Frederic Maitland that no English king ever believed that he was above the law could not be said of any Chinese emperor, who recognized no law other than those he himself made.”

A battle over the constitutional protection of religious liberty is not an abstraction nor, as in cases like the birth-control mandate, a minor social-issue front in the culture war. Such battles go to the heart of how we seek to govern ourselves and how we understand the fundamental documents that serve as the explication of our national political identity. Americans should watch this case closely and take its implications seriously.

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Desperate Measures in Venezuela

The other day, I asked a leading Venezuelan opposition figure what he thought was the main difference between Hugo Chavez, the late Venezuelan comandante, and his successor, Nicolas Maduro. “If Chavez was Frank Sinatra,” came the reply, “then Maduro is the guy in the karaoke bar singing an out of tune version of My Way.”

The point here is not that Chavez was a preferable alternative to Maduro; as Roger Noriega correctly points out in the New York Post, Chavez’s “divisive, illegitimate regime polarized society and devastated the economy.” It’s that the uncharismatic, foul-tempered Maduro has, during the seven months that he’s been in power, exposed the totalitarian tendencies implicit in the ideology of chavismo, with the result that he’s fast losing support among those segments of Venezuelan society, like the three million Venezuelans now living in extreme poverty, who regarded Chavez as a savior not so long ago.

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The other day, I asked a leading Venezuelan opposition figure what he thought was the main difference between Hugo Chavez, the late Venezuelan comandante, and his successor, Nicolas Maduro. “If Chavez was Frank Sinatra,” came the reply, “then Maduro is the guy in the karaoke bar singing an out of tune version of My Way.”

The point here is not that Chavez was a preferable alternative to Maduro; as Roger Noriega correctly points out in the New York Post, Chavez’s “divisive, illegitimate regime polarized society and devastated the economy.” It’s that the uncharismatic, foul-tempered Maduro has, during the seven months that he’s been in power, exposed the totalitarian tendencies implicit in the ideology of chavismo, with the result that he’s fast losing support among those segments of Venezuelan society, like the three million Venezuelans now living in extreme poverty, who regarded Chavez as a savior not so long ago.

The crisis facing Maduro’s regime has coincided with a bitter political campaign around the upcoming municipal elections on December 8, which the opposition MUD coalition is billing as a referendum on the country’s future. One recent opinion poll indicates that 48 percent of electors intend to vote for opposition candidates, as against 41 percent for the ruling party, but that is not necessarily a reliable guide to what will happen on the day. Maduro can always do what he did during the April presidential election: deploy chavista thugs to hector voters arriving at the polling stations, or even rig the result in his favor.

Maduro’s behavior over recent weeks suggests that he has chosen the path of intimidation as the key to his political survival. With inflation running at 54 percent, the highest in the Americas, and a constant shortage of basic household goods like cooking oil and sugar, on November 19 Maduro railroaded through a Ley Habilitante, or Enabling Law, which allows him to bypass the National Assembly and rule by decree. Claiming that Venezuela is the victim of an “economic war” waged by the United States and its local allies, Maduro’s new powers will assist him in prosecuting what his vice president, Jorge Arreaza, delightedly calls “class warfare.”

So far at least, the regime’s offensive against those it labels “speculators” and “bourgeois parasites” has manifested in two ways. Firstly, harassment of the opposition: last weekend, just hours before an MUD election rally, military intelligence officers beat up and arrested Alejandro Silva, a senior aide (or “fascist henchman,” in the words of Andres Izarra, one of Maduro’s ministers) to opposition leader Henrique Capriles. Secondly, it has begun targeting the entire business community, from large retail chains to small merchants, with state-enforced price controls.

Mindful of the potential electoral benefits to be gleaned from the approaching Christmas holiday, Maduro has abruptly ended the long-established practice of selling consumer goods at the black market rate for U.S. dollars–currently ten times the official rate. Initially, this resulted in open looting of stores belonging to retailers like the “Daka” electronics chain. In the days that followed, police officers turned up at other stores demanding that their owners immediately reprice their wares. A video being circulated by opposition activists shows a devastated Lebanese immigrant merchant in the eastern city of El Tigre begging for sympathy: “I bought at 60 thousand Bolívares [Venezuela’s currency denomination],” he wails, as he stands helplessly in front of his goods. “I can’t sell at 6 thousand!”

The main result of these measures, which have similarly impacted thousands of other merchants, will be to ruin the retail sector, since owners cannot possibly hope to recover their initial outlay if they are compelled to cut prices so radically. Further, they demonstrate the painful absence of any long-term strategy on Maduro’s part to address Venezuela’s capsizing economy.

Instead, the beneficiaries of Maduro’s policies are principally found among Venezuela’s military elite. As the constitutional lawyer Asdrúbal Aguiar observes in an interview with El Universal, military officers are now running key institutions like the Interior Ministry and a shadowy new intelligence body known as “Cesspa” (Strategic Center for Security and Protection of the Motherland). Consequently, as Roger Noriega summarizes the situation:

Virtually every Venezuelan is infuriated by the daily fight for survival. The anti-chavistas are fed up with the harassment by an illegitimate and incompetent one-party state. All sides in the military are busy weighing their options.

Any act of repression, street brawl, electoral fraud or corruption scandal could unleash all the fury built up over the regime’s 15 years. Tragically, the sight of military units squaring off in the streets of Caracas is not a distant memory.

Noriega concludes from all this that the U.S. “must act urgently to prevent a Syria scenario on our doorstep.” Another equally depressing comparison can be drawn with Zimbabwe, whose dictator, Robert Mugabe, embarked on a similar price-controls crusade in 2007. Either way, the prospect of a bloody denouement cannot be ruled out.

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A Welcome Show of Strength from Obama

Perhaps this is what the Pacific pivot means. The Obama administration is telegraphing weakness, indecision, and retreat in the Middle East but is showing some welcome spine in the Far East.

This past weekend China had the temerity to proclaim an Air Defense Identification Zone over much of the East China Sea, including islands disputed by Japan and South Korea. If recognized, this would serve to extend China’s effective sovereignty and could lead to a dangerous confrontation with its neighbors, since China’s new air-defense zone overlaps with those of Japan, South Korea, and Taiwan. But the Obama administration rightly said it would not recognize the Chinese power grab, and to underline the point a pair of B-52s flew into the disputed air space without notifying Beijing.

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Perhaps this is what the Pacific pivot means. The Obama administration is telegraphing weakness, indecision, and retreat in the Middle East but is showing some welcome spine in the Far East.

This past weekend China had the temerity to proclaim an Air Defense Identification Zone over much of the East China Sea, including islands disputed by Japan and South Korea. If recognized, this would serve to extend China’s effective sovereignty and could lead to a dangerous confrontation with its neighbors, since China’s new air-defense zone overlaps with those of Japan, South Korea, and Taiwan. But the Obama administration rightly said it would not recognize the Chinese power grab, and to underline the point a pair of B-52s flew into the disputed air space without notifying Beijing.

This is precisely the sort of action that a liberal superpower needs to take to maintain freedom of the skies and the seas. It, indeed, recalls the Reagan administration using force in the 1980s to challenge Libya’s power grab off its coast and Iran’s power grab in the Persian Gulf. Of course challenging China–a superpower in the making–is a lot more perilous an undertaking than challenging regional powers such as Libya or Iran. So it is all the more to Obama’s credit that he did not flinch from what could be a potential confrontation.

In reality China has made plain that, while it is happy to bully lesser states such as the Philippines, it has little appetite yet for an open confrontation with the United States which can still–but for how much longer?–bring overwhelming naval and air assets to bear in the western Pacific. By stepping forward, the U.S. is actually reducing the chances of a much more dangerous confrontation between Japan and China which might have ensued–and still may–were Japan’s nationalist new prime minister, Shinzo Abe, to send his own aircraft to challenge China’s air defense claims.

This is yet another sign of why the world needs a strong and vigorous American military that can keep the peace, as it has done for the most part since 1945. That capability, sadly, is now imperiled by imprudent defense cuts. Ten years from now, China may be able to not only assert wide-ranging territorial claims but make them stick, because by that point the U.S. may be too weak to resist.

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