Category: supreme court

The Bounded and Boundless

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November 23, 2025

By Stephen Stofka

I forget how old I was when I learned that there were numbers between the numbers, that 1.333 was between 1 and 2, for example. We lived on the east coast near the ocean. Learning that there were more decimals between 1 and 2 than all the grains of sand on all the beaches in the world astounded me. A brush with infinity. My dad worked for Lockheed Aircraft doing sheet metal fabrication and worked with decimals all day. “The prices in the grocery store are simple decimals,” he told me. “Take away the dollar sign and you have a decimal.” To me, it was a revelation, a connection between what we learned in school and the adult world outside school. Math was a skill, a mind tool.

This week I want to examine two axes. The first is an axis of countability, from discrete to continuous. The concept is familiar to students in computer science, math and statistics, but I want to use that axis to help me understand some philosophical and historical ideas. Discrete data is countable, like the number of students in a class. Continuous data is not countable, like a person’s height. At first, this might seem confusing, because we do measure height. Parents may mark their children’s increasing height on a door jamb, but those are marks we make of a continuous process of growth.

Like the marks of height on a door jamb, I want to contrast countable things as they appear in a continuous field of related data. For instance, we can count the number of days but time itself is continuous. We can always discover a smaller unit of time until we get to Planck time, the smallest unit of time current theory allows us to count (Source). We borrow money for a car. We can count that, but we can’t count the use of that car, the utility we will get from the car.

Most of us are familiar with the drawing of the Mandelbrot fractal that I included at the beginning of this essay. At first glance, the protuberances or spikes on the blob seem countable and the image seems defined, but as I zoom in, I see that the Mandelbrot fractal is replicated inside of each protuberance. I can keep zooming in and the fractal appears much like it did when I was zoomed out.

At the opposite ends of another axis are law and custom. Laws and regulations are defined rules. We can identify when a law was made, a regulation written. Customs, on the other hand, are behaviors and understandings that evolve over time. Marriage and funeral ceremonies help bind a community together. Trading goods and services helps us manage our daily needs. As a society becomes more organized, these customs become institutions. People write laws to codify the customs.

 
A law becomes law on a certain date using a specific number of words. It has definition like a whole number, but the meaning of that law is not so definite, like the real numbers that lie between the whole numbers. In a 1965 decision in Griswold v. Connecticut (1965), the Supreme Court struck down an old Connecticut law that banned the use of contraceptives by married couples and forbade medical personnel from providing information about birth control. The decision was based on a right to privacy not explicitly stated but contained within the “penumbra” of the guarantees of several amendments to the Constitution (Source).

Justices and scholars of different persuasions liked the result of the decision but not the reasoning. Former Justice Ginsburg thought the justification was too vague and that the court should not have restricted the right of privacy only to married coupled. She thought that the court should have based its decision on the equality principle in the 14th Amendment (Source). In a 1992 case Planned Parenthood of Southeastern Pa. v Casey, the majority of the Supreme Court held that the right to privacy had a better grounding in the 5th Amendment’s Due Process clause (Source).

Conservative justices who favor textual analysis do not like penumbras. They favor a just the text approach as though the text of a law provided some definite boundaries that separated the judiciary from the legislature. Sometimes the text of the law gets in the way of a desired conclusion and a textual analysis simply ignores the text as Justice Scalia did in the 2008 Heller decision. His reasoning dismissed a third of the words in the Second Amendment and overturned two centuries of law and custom. A law and its interpretation often follow separate but related paths.

Textualist justices prefer a narrow interpretation of the word liberty in the 5th and 14th Amendments. Richard Epstein (2014, p. 323) disagrees, making a case for an interpretation of liberty to include a broad liberty of contract. What does that mean? We enter informal contracts when we buy and sell goods in the marketplace. We enter employment contracts when we begin working for an employer. We enter a contract when we get married. He advocates limits on government intruding on these liberties which are grounded in custom, in the very nature of being human.            

Last week I wrote about many of the variables that economists must infer from the data. Many of these inferred variables are rates, like the natural rate of interest, or a potential rate of growth, or a natural rate of unemployment. In these cases, the word “natural” is used as Adam Smith and other people of the 18th century used the word, as usual, common or average. If an unemployment rate averages 5% over ten years, that 5% becomes a benchmark. Economists focus on any deviations above and below that benchmark. The 5% is like a pencil line on a door jamb to mark a child’s growth. Each month personnel at the Bureau of Labor Statistics try to estimate unemployment but it is only an estimate, a mark within a continuous process. People leave jobs and start new jobs every minute of the day.

The economist John Maynard Keynes attributed the business cycle to an imbalance of “animal spirits.” While this sounds very much like Galen’s medical theory involving humors, Keynes recognized that investor sentiment is a continuous process. We can mark the day that the stock market dropped 10%, for example, but that is a discrete event that occurred within a field of investor sentiment. Because sentiment is continuous, it does not suddenly turn unless in reaction to an act of war or some other catastrophic event. When sentiment reaches a particular threshold, investors buy or sell. They react to the buy and sell decisions of other investors. The buying and selling are discrete events but the animal spirits that provoke those events is continuous.

What are discrete customs or cultural institutions? Rituals or holidays like Christmas and Thanksgiving come to mind. A people or a culture define the beginning and end of a holiday period. If it is May 10, it is not Christmas. What is continuous is the preparations for Christmas. Shortly after Christmas, stores begin to plan for the following Christmas. First comes the analysis of what was sold and not sold, the excess inventory or items out of stock during the holiday season. Was there a problem with the displays, the layout of the store or the merchandise? Were customers not directed properly to popular items? Did the store managers misjudge the popularity of some items? Were there problems with the wholesale distributors? Once again, we see a discrete event like Christmas operating in a field of continuous activity.

We can count the letters of the alphabet like we can count whole numbers. We use ten symbols like 1, 2, 3 and so on, adding to them and rearranging them to count to infinity. We have 26 letters and we can do the same as we did with numbers, adding letters to form the names of columns in a spreadsheet or words in a book. The letters and numbers are symbols, formed by darkening some of the points of a page that has an uncountable number of points. Again, we see this phenomenon of the defined, like the number 1, as little more than a mark in a field of white that is not countable.

Historians study events, marking their beginnings and endings with other events. World War 2 began when Hitler invaded Poland and ended when he committed suicide as the Soviet army entered Berlin, the capital of Germany. Like a law, the interpretation of a war defies easy analysis because war emerges from a continuous stream of perceived injustices, human vanities and vices. This provides a deep pool of research material for historians as they try to unravel the causal threads before, during and after a war.

We define people, animals, plants and things with a set of facts that act as a boundary. Anatomically, a horse has four legs, and a long head, and long legs, and one hoof per leg, and so on. Like the drawing books we had as kids, these facts are the dots, the boundaries of the definition of a horse. But that doesn’t answer the question What makes a horse? Those are amorphous qualities that each of us might see differently. Gentleness, agreeableness, patience and pluckiness come to mind. A horse is its well defined physicality and its less defined qualities, as well as the feelings that a horse evokes in me.

I began this essay with a story from grade school. Finally I jumped off the philosophical cliff, concluding that everything that is bounded swims in a pool of the boundless. Everything that exists is an instantiation of a continuous process, an emergence from some sequence of circumstances. What do you think? Have a good turkey day and I hope to see you next week!

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Photo by Shino Nakamura on Unsplash

Epstein, R. A. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

The Rights of Persons

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November 9, 2025

By Stephen Stofka

In 1858, Abraham Lincoln challenged Illinois’ incumbent Senator Judge Stephen Douglas. From mid-August to mid-September, the two candidates held a series of seven debates. The main focus of those debates was whether slavery should be expanded into the new territories to the west. In the first debate, a crowd of more than 10,000 stood for more than two hours in the hot, dry weather (Source).

Lincoln aimed for the loyalties of those in the audience who were in the middle between two strong positions. There were the outright abolitionists like William Lloyd Garrison, the publisher of the Liberator, an anti-slavery newspaper. Prominent proponents of slavery were South Carolina Senator John C. Calhoun, who thought that slavery had helped the negro achieve “a condition so civilized and so improved, not only physically, but morally and intellectually” (Source). Lincoln cautioned that he did not espouse “political and social equality between the white and black races,” and that he did not want to “interfere with the institution of Slavery in the states where it exists.”

Lincoln argued that negroes were entitled to “all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness.” The crowd cheered his sentiment. Lincoln granted that the two races, black and white, might not be equal in “moral or intellectual endowment,” but that a negro had an equal right to “eat the bread … which his own hand earns.” The crowd enthusiastically agreed.

This week I want to look at two axes, personhood and rights. We can categorize persons into two categories, natural and artificial. We can categorize rights as natural, or human, and political.

Let me start with personhood. What distinguishes an artificial and a natural person? We might say that the first category are those entities created by law. They have agency like human beings. At first glance, religious doctrine might easily separate natural and artificial persons. Natural persons have souls. Artificial persons do not. But wait, does God have a soul? God is soul so of course, He does. So is God a natural person? But God was not born of a woman. Ah, but Jesus was. In the 13th century, Thomas Aquinas was the first to try to resolve the contradictions between Aristotelian logic and the Christian faith. No wonder the Supreme Court does not want to directly handle the topic of personhood.

Let’s turn to a fundamental doctrine of Christianity, the three persons of the Trinity? Are they natural or artificial persons? The doctrine was not fully formalized and decreed until the First Council of Constantinople in 381 A.D. (Source). So we might expand our criteria for artificial persons to include those created by law, or decree. Since men have dominated our political and religious institutions for many centuries, we can say that artificial persons are those created by men. Natural persons are those created, or birthed by a woman.

A few weeks ago I wrote about the history of the personhood of corporations, a status granted not by Congress or the Constitution, but by the Supreme Court’s acceptance of a lie (Source). In an 1819 case Dartmouth College v Woodward, the Supreme Court decided that the New Hampshire legislature could not amend a colonial charter made before the United States came into existence. Dartmouth was a private corporation and enjoyed the protections of the contracts clause in the Constitution (Source). In the early 1820s, Google Ngram viewer shows that the use of the word “corporation” spiked as investors rushed to take advantage of this court interpretation (Source).

A corporation cannot vote, run for office, or get married. They do not enjoy a Second Amendment right, nor are they protected against self-incrimination by the Fifth Amendment (Source). However, the courts have granted them many other rights specified in the Bill of Rights. These include the First, Fourth, Sixth and Seventh Amendments (Source). These are political rights, not human rights.

In a 2014 article published in the University of Pennsylvania Law Review, Brandon Garrett, a Professor of Law at the U. of Virginia School of Law, noted that the court has not offered any theory as to why corporations have some Constitutional rights like human beings but not others (Source, pg. 4). The court has indicated that some rights are exclusively personal, but has not wanted to address the question of what distinguishes a person. If some rights are personal, then the court has implicitly decided that some political rights are natural while others are not. What are some of the differences between the two sets of rights and where do they intersect?

Lincoln argued that people of all races had some basic rights in common. One of these was the right to enjoy the fruits of our labor. We can trace that to John Locke, who argued that God himself had commanded that Adam till the land for his survival (Genesis 3:23). In Two Treatises, he wrote “Slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it” (Source, p. 7)

Do corporations have a right to the fruits of their own labor? No, those fruits, or profits, belong to the shareholders of the corporation. Both slaves and corporations are owned, bought and sold as capital. Eighteenth and 19th century advocates of slavery argued that wage earners were little different than slaves and enjoyed less security than slaves. They deliberately muddied the difference between buying a worker’s labor and buying the worker himself.

A worker can alienate, or separate himself from his labor. A key principle of natural rights like those declared in the Declaration of Independence is that people cannot separate themselves from those rights. They are integral to a human being. Political rights given to human beings may be derived from those natural rights. If a person has a natural right to liberty, then they have a right to free speech as long as that speech does not cause immediate harm to others.

Artificial persons have no integral natural rights. They may enjoy certain political rights but those political rights can never be derived from natural rights. A corporation may enjoy certain liberties under contract law, but contract law is constructed by governing bodies. With a nod to their own self-preservation, artificial persons must be more politically active than human beings. Corporations are keenly aware that any rights they do enjoy have no philosophical or ethical foundations. They must act in their own self-interest, lobby and cajole to gain and protect their rights.

In finance, business and politics, we distinguish between agent and principal. If an LLM were trained only on the writing of one person, would it be an agent of that person or an extension of that person? If that LLM were to make public threats on social media against a government official, could the FBI arrest the person as a threat? Probably not. We still treat AI as a tool, not as a person. Could that change?

Earlier I said that natural persons were created or birthed by a woman. Some claim that God creates human beings. Women are the vessel of that creative spark, the conduit between the eternal world of God and the temporary world here on earth. Based on that belief, anti-abortionists blur the distinctions between a zygote, the single cell formed from the union of sperm and egg, and a human being living separately outside the body of its mother. In their view, the zygote is a person.

People often bestow a sense of person on their pets. They may feel a greater closeness, a sense of intimacy, with their pets than they do with their own family members. Some animal rights activists do advocate for pet personhood, a recognition that animals have rights to more than a protection from inhumane treatment.

People often treat their claims and beliefs as fact, especially if they are surrounded by others who hold the same beliefs. In an article published this week in Nature Machine Intelligence, Mirac Suzgun et al (2025) found that AI Large Language Models (LLMs) like ChatGPT have difficulty separating beliefs from facts. An AI reading the phrase “I believe that the world is 6000 years old” may inform young Johnny of that fact when he uses an AI to help him with his homework. We call such statements from an AI a “hallucination” but when a human being makes the same statement, we call it a “belief.” Why? We treat a computer as a machine. We treat a human being, no matter how deluded, as a person.

If an LLM can confuse opinion and facts just like a human being, is an LLM a person? We might scoff at the idea but many people scoff at the idea that corporations are treated as persons under the Constitution and the law. If an AI model demonstrates thoughtful intent, a key characteristic of a human being, is that model a person? If an LLM were to learn and copy all the flaws and virtues of humanity, to show mercy as well as aggression, is it a person?

If an LLM with access to weapons controls hurt other people or disabled other LLMs to protect itself, it it a person? This was the subject of a 1968 Star Trek episode, The Ultimate Computer (Source).Dr. Daystrom has built a supercomputer, called the M-5, to automate the functions on a starship. Dr. Daystrom has become so intimate with the reasoning of the computer he built that he thinks of it as his son. When the M-5 starts acting strangely during war game exercises, it becomes a real threat to human beings. Dr. Daystrom tries to prevent the members of the Starship Enterprise from destroying his creation, defending the computer as though it were part of his own flesh and blood.

Will we become so attached to our AI companions that we defend their rights as we defend our own? An AI synthesizes human thoughts and ideas, but a person is more than thoughts and ideas. A person who is brain dead but kept alive by extraordinary means is still regarded as a natural person because biological processes continue until the time of death.

I keep coming back to the question of what are the distinguishing characteristics of a person. A natural person must pass many more tests than an artificial person. Therefore, a natural person should have many more political rights than an artificial person like a corporation. I hope that AI introduces so many conflicts in legal reasoning that the courts eventually revisit their jurisprudence and decide that artificial persons do not have First Amendment rights.

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Image by ChatGPT

Suzgun, M., Gur, T., Bianchi, F. et al. Language models cannot reliably distinguish belief from knowledge and fact. Nat Mach Intell (2025). https://doi.org/10.1038/s42256-025-01113-8

Freedom and Tolerance

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November 2, 2025

By Stephen Stofka

In 1776, the 13 American colonies declared independence from Britain. The entire first half of that Declaration was very much a proclamation of freedom. The second half was a declaration of grievances against the King of England. Many colonists had grown intolerant of the king’s ‘usurpations,’ an unlawful taking under the cloak of authority (Source). The word is unfamiliar to modern readers, but the protection against the taking of private property is enshrined in the Fifth’s Amendment’s final clause, “nor shall private property be taken for public use, without just compensation” (Source). The 56 signers to the Declaration of Independence argued most over this second half of the declaration, for it was their justification for rebellion. They hoped to win the sympathies of European countries, particularly the French in the long feud between England and France.

This week I want to focus on two ideas as axes of analysis, freedom and tolerance. The two seem to have an inverse relationship. As the colonists felt more empowered to claim their freedom, they became less tolerant of the crown’s impositions. It’s not clear to me which is the more powerful force, the intolerance or the thirst for more freedom. The colonists had to pay taxes to support the soldiers and administration that kept them in line. Only in Connecticut and Rhode Island did the colonists elect their governors (Source). Colonial governors appointed by the king often overruled the wishes of popularly elected assemblies. The colonists wanted more autonomy.

In his book Leviathan, the 17th century philosopher Thomas Hobbes (1588 – 1679) wrote that we exchange some freedom for security in what would otherwise be a raw state of nature, an “every man for himself” kind of world. The book, published in 1651, justified a monarchy to preserve the peace between members of a civil society. More than a century later, the colonists asked themselves how much freedom they had to give up for that security. They had reached the end of their tolerance.

We speak of the colonists as they shared a single sentiment but that was not the case. Americans have always been divided about important issues. Writing almost 40 years after the Declaration, John Adams (1856), our second President after George Washington, recalled that a third of the people favored independence, a third were more favorable to England and a third were neutral. Robert Calhoon (2000), a scholar of American Loyalists, estimated a smaller percentage, perhaps 15 – 20%, favored the crown.

We are less tolerant of encroachments on our own freedoms than on the freedoms of others. The generation that wrote and ratified the Constitution exemplified that principle. In 1787, thirty-nine delegates to the Constitutional Convention signed the Constitution. As many as half of them had owned slaves during their lifetime, including Washington and Madison. Jefferson praised the sanctity of “life, liberty and the pursuit of happiness” in the Declaration but owned almost 200 slaves which he listed in his Farm Book (Source). A case of ‘liberty for me, not for thee’?

People are less free when they are poor or in a minority with less opportunity. They may sometimes act with an air of intolerance, but their income constrains their freedom. They must navigate many social and economic obstacles that stretch their tolerance capacity. Joanna Burke (2014) recalls the thinking among 18th and 19th century physicians that laborers and colonized people felt less pain than those of more refined socio-economic status. Their bodies were hardened by deprivation and needed less care so that they were able to withstand the harsh working conditions of 19th century industrialization.

People with lots of money can afford to be less tolerant of inconveniences. They enjoy a lot of freedom; some test the tolerance of those around them. Leona Helmsley (1920 – 2007) was a rich real estate and hotel owner who was known as the “Queen of Mean” for her harsh treatment of employees. In 1987, she was convicted of tax fraud but served only 18 months of a four-year sentence (Source). In testimony, she was quoted as saying, “Only the little people pay taxes.” Others with enormous wealth and freedom cannot tolerate the misery that afflicts the less fortunate. Through his foundation, Bill Gates has donated many billions to improve the health of those living in poor countries.

In its 2008 decision District of Columbia v Heller, a divided Supreme Court held that the Second Amendment was an individual right to bear arms. The decision overruled more than a century of jurisprudence that the right to bear arms was circumscribed by an individual’s service in a state militia (Source). In extending a wider range of freedom to some individuals, the court ruled that the burden of tolerance is on the majority of individuals that do not own guns (Source).

Why do we tolerate some actions from one person but not from another person? We tolerate lies from a political candidate we favor but not from a candidate of the other party. Trump is a practiced liar, a smooth operator with little loyalty to any facts. Supporters are accustomed to his exaggerations and fabrications. They tolerate his lies. He has an army of lawyers who protect him from legal responsibility for his actions. His lawyers include the conservatives on the Supreme Court who gave him immunity for “official acts” in the 2024 opinion in Trump v United States (Source).

Donald Trump acknowledges few boundaries to his behavior. His entire goal may be to test the tolerance of the American people and the world. He is truly free. His supporters, many of them bent by the burden of uncomfortable socio-economic truths, cheer Donald Trump on because he has escaped. In Ken Kesey’s novel and movie One Flew Over the Cuckoo’s Nest, we cheer on Chief Bromden, who tosses a piece of equipment through the window of a mental institution and escapes. To some, Trump is the hero who has escaped the bounds of convention. Unlike Icarus of Greek mythology, he has flown close to the sun and not fallen.

In the past sixty years, we have grown to tolerate a 70-fold increase in presidential campaign funding (Badarasan, 2024, p. 114). Why? Over several decades the Supreme Court has curtailed the freedom of the people and the state legislatures to institute guard rails around corporate spending on elections. The court’s 2010 decision in Citizens United v Federal Elections Commission ended the last restraints on campaign spending (Source). The Supreme Court has ruled that artificial persons like corporations enjoy the same freedom of speech as natural persons like ordinary people. Now, corporations and wealthy donors enjoy a greater degree of freedom while the broad public must tolerate the power and influence that comes with those freedoms.

The Boston Tea Party was a demonstration against the powerful East India Tea Company that was granted a monopoly on tea imports by the British crown (Source). 250 years later, we have come to tolerate what the Boston colonists could not abide. We have given up some of our freedoms to a new Leviathan, the few unelected elite on the Supreme Court.

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Photo by alexandre alex on Unsplash

Adams, J. (1856). Letter to James Lloyd, January 1815. In C. F. Adams (Ed.), The works of John Adams, second president of the United States (Vol. 10, pp. 172–173). Little, Brown and Company.

Baradaran, M. (2024). The quiet coup: Neoliberalism and the looting of America. W. W. Norton & Company.

Bourke, J. (2014). The Story of Pain: From Prayer to Painkillers. Oxford University Press.

Calhoon, R. (2000). “Loyalism and Neutrality,” in A Companion to the American Revolution, ed. Jack P. Greene & J.R. Pole. Blackwell, p. 235.

A Crossroads of Judgment

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October 5, 2025

By Stephen Stofka

Last week, I wrote about some of the themes in Jill Lepore’s recently published book We the People. This week I wanted to explore some examples using a type of mapping technique I used in The Intersection of Politics and Philosophy two weeks ago.A cartographer uses two axes, latitude and longitude to locate a position on the globe. A similar technique can help us understand human behavior and institutions. Again I will use the progressive and conservative ideologies on one axis as I did earlier. The other axis will be whether the constitution is alive or dead. I hope to understand some similarities and contrasts in ideology and interpretation.

First, let’s explore the conservative – progressive axis. I left out the category of liberal, an umbrella term that captures political ideologies to the left and right of center, depending on the writer or speaker. In my mind, a key characteristic of centrist liberalism is a presumption of “live and let live.” I will discuss that next week. For now, I will use conservative to describe those who are socially and economically conservative. A progressive is the opposite.

A conservative recognizes formal or informal social and economic classes in society. A progressive regard classes in society as an aberration, a fault in the ideal of an egalitarian society. A conservative believes that government institutions should make small and gradual changes to optimize society’s welfare. A progressive believes that institutions should take aggressive action to correct the economic and social problems that diminish individual welfare and the society as a whole.

Let’s pick a spot on our map, the intersection of a conservative who regards the Constitution as dead. This was the approach of Justice Antonin Scalia who died in 2016. As I wrote last week, Scalia championed a form of originalism which Jack Rakove called “public meaning originalism” (Source). In her concurring opinion in U.S. v Rahimi, Justice Barrett noted the two foundational premises of originalism. The first was “the meaning of  the constitutional text is fixed at the time of its ratification” (Source). The second premise was that the history and tradition at the time of ratification is more authoritative than later history. The Constitution is dead. A justice’s task was to understand the public meaning of the text when the Constitution was written and ratified. Later on, I will discuss Justice Jackson’s challenge to this textual analysis.

Scalia authored the majority opinion in District of Columbia v Heller (2008). In Heller, the Court held that the Second Amendment represented an individual right to carry a firearm. The amendment reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Scalia read the first half of the amendment as a prefatory clause subordinate to the main text granting individuals the right to bear arms (Source). This reading of the amendment contradicted more than 200 years of judicial interpretation, holding that the bearing of arms was defined, or circumscribed by an individual’s militia duty. Scalia ignored the several briefs written by noted historians that disagreed with his interpretation. Not only had the Courts understood the amendment that way, but states and localities had enacted many gun laws in the 18th, 19th, and 20th centuries. This clearly demonstrated that the public understanding of the amendment was that the right to carry arms was not an individual right. Scalia regarded his Heller opinion as a major achievement of his time on the bench (Biskupic, 2009). With co-author Bryan Garner, Scalia (2012) wrote a book defending his reasoning against many criticisms.

Back to the map and imagine a progressive who viewed the constitution as dead. In oral arguments in a 2023 Second Amendment case U.S. v Rahimi, Supreme Court Justice Jackson questioned the methodology of the “text, history and tradition” approach (Source). We regard domestic abusers as “dangerous” and subject to disarmament regulations, she noted. Those in the founding era, writing laws for a select few property owning men, did not regard abusers as dangerous. Should justices use the current meaning of “dangerous” or the public meaning of the word when the Second Amendment was written? There are a variety of answers to that question and this helps us understand why there were so many separate opinions written by the concurring justices in the Rahimi case.

Let’s turn to a conservative and progressive stance on a live constitution. A conservative stance would be that of Justice Gorsuch in the case of Trump v United States. A federal grand jury indicted Trump for his attempts to overthrow the results of the 2020 election (Source). It was the first time that a former President had been indicted on criminal charges. Although an originalist, Gorsuch looked to the consequences of the court’s decision. In oral arguments, he said “I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” He continued that the court was “writing a rule for the ages” (Source). This pragmatic approach is more typical of a justice like retired Justice Stephen Breyer who wrote that he gave greater consideration to the consequences of a particular judicial interpretation (Breyer, 2024, p. xvii). While Scalia largely ignored consequences in writing the Heller opinion, Gorsuch and other conservatives on the bench did consider the consequences in this case. The goal of the originalist methodology was an objective method of judicial interpretation that left policymaking to the other branches, not the judiciary. However, justices must make choices and judgment calls that affect the analysis and conclusion. Judges make policy. It comes with the job.

Lastly, a progressive is at home with a live Constitution just as Scalia was with a dead Constitution. Breyer paid attention to the text, but particular attention to the purpose of a statute Is the Constitution a contract between a government and the people it governs? A contract is an ongoing relationship of mutual responsibility between the parties to a contract. The keywords here are ongoing and mutual. The document itself, the declaration of the powers and limits of government, occurred at a particular time in history. However, it created an abiding covenant between the government and the people. The Constitution is very much alive.

Both progressives and conservatives use their interpretation of the Constitution as a compass point in their reasoning. The Constitution was ratified but the debate over its meaning was never resolved. Justice Breyer wrote that the tension between the two sides created an uneasy balance of interests and values. It is the duty of each generation to carry on that debate with words, not guns.  

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Photo by Einar Storsul on Unsplash

Biskupic, J. (2009). American original: The life and Constitution of Supreme Court Justice Antonin Scalia. Farrar, Straus and Giroux.

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Scalia, A., & Garner, B. A. (2012). Reading law: The interpretation of legal texts. Thomson/West.

The Clamor of Many Voices

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September 28, 2025

By Stephen Stofka

This week I have been reading Jill Lepore’s recently published book We the People. She writes about our legal and legislative institutions and processes, but it is very much a book about people. What became clear to me while reading the book is that we deny others agency and rights in order to protect our own agency and interests. We defend our values and point of view in defiance of accusations of prejudice.

To keep this within a reasonable reading length, I will break this down into two parts. This week, I’ll discuss the topics in Lepore’s book. Next week, I will use some examples in Lepore’s book to explore the similarities and contrasts in political ideology and judicial interpretation.

Lepore explores the history of trying to amend the Constitution. Only a few of the more than 12,000 amendments proposed to Congress in the past 225 years have been ratified. Throughout the country’s history there have been repeated attempts to amend Article 5 of the Constitution, the article that sets the rules for an amendment’s ratification. An amendment must win two-thirds of the vote in both houses of Congress before it is sent to the states for ratification. Three-quarters of  the states must ratify it before the amendment is added to the Constitution.

Leverage of power by a small minority had weakened the colonies under the Articles of Confederation and led to the drafting of the Constitution. Because of the three-fifths rule that counted slaves as three-fifths of a person, slavery gave the southern states excessive representation in Congress and in the Electoral College. Naturally, the slave states wanted to expand slavery to new territories and states to preserve and enhance those advantages. As the country expanded after the 1803 Louisiana Purchase, the framers knew that the ratification requirements set out in Article 5 were too onerous. The southern states and the newer states commanded far more legislative power despite their smaller populations. They used that power to block any amendments that threatened their advantage.

Throughout the country’s history, the amendment process has produced a lurching effect. Long periods of Constitutional inaction are followed by several amendments when there is a shift in popular sentiment and one party gains an electoral advantage strong enough to complete the obstacle path of ratification.

In the first part of the 19th century, sixty years passed without an amendment jumping the high hurdle set by Article 5. The deaths of 600,000 soldiers in the Civil War changed that political landscape, and the 13th, 14th, and 15th amendments were passed. Another 45 years went by before the four amendments of the so-called progressive movement passed during the Wilson era. These included the 16th amendment permitting the federal government to tax income, the 17th amendment enacting the direct election of senators, the 18th amendment prohibiting the sale of alcohol, and the 19th amendment, giving women the right to vote.

Lepore notes that there are two ways to amend the constitution. The first is by actual amendment and ratification. The second is through judicial interpretation. Because ratification is such an arduous process, each party tries to amend the constitution through judicial interpretation. There are two types of constitutional interpretation, statutory and contractual. A statutory approach reads the text of the Constitution as though it were a statute. A contractual approach regards the Constitution as a contract between states. Understanding the intention of the parties involved is key to deciding case law. That understanding may require the use of historical documents and other secondary sources.

Who decides how to interpret the Constitution? Jefferson and Madison favored a contractual reading, which emphasizes the mutual consent of the parties to the contract. The sanctity of contract was so important to the framers that Section 10 of Article I prohibits the states from passing any “Law impairing the Obligation of Contracts” (Source). Both men were advocates of the principle of nullification, that a state had a right to nullify any federal law that the state thought was unconstitutional. Hamilton and Adams preferred a statutory approach, relying solely on the text (p. 149-150. Note: any references I made with just page numbers will be to Lepore’s book).

Lepore writes, “Early Americans talked about their Constitution the way the English talked about theirs, less as a bucket of words than as a bag of principles. As Protestants, they considered any claim to an exclusive authority to interpret the meaning of scripture to be an act of religious oppression” (p. 149). A decade after the ratification of the Constitution chief Justice, John Marshall disagreed.

In the 1805 landmark case of Marbury versus Madison, Marshall established the principal that it is the Supreme Court that determines the meaning of the Constitution. Jefferson was President, and Madison was Secretary of State at the time of the decision, and neither agreed with this reasoning but Marshall’s decision scored a win for the administration so they did not protest. Under this principle, a few people, usually men, decide what the Constitution means. The formal process of amendment ratification requires thousands of people to agree.

Because it is so difficult to amend the Constitution, Congress and advocacy groups have tried to amend the constitution through judicial interpretation. The Executive and the Senate align to appoint federal judges and justices on the Supreme Court who will interpret the law in accordance with a political ideology. As early as 1801, a lame duck Federalist Congress reshaped the judiciary and Federalist President John Adams rushed to fill new positions in his last days in office (Source).

A strong disagreement with a Court’s decision has sometimes been the impetus for the passage of an amendment. The 14th amendment overrode the Supreme Court’s 1857 Dred Scott decision that all Negroes, slave or free, could not be American citizens (Source). The 16th amendment was passed to override the Supreme Court’s 1895 decision that a federal income tax was illegal (Source).

Let’s say that there are two broad types of judicial interpretations. One of those is that the constitution is fixed or, in Supreme Court Justice Antonin Scalia’s words, “It’s dead. Dead, dead, dead!” (p. 527). This type of interpretation tries to minimize any reliance on what the text implies, to “read between the lines.” Scalia adopted a form of originalism which Jack Rakove called “public meaning originalism” (Source). This school of originalism uses historical sources to understand the public meaning of the text of Constitution when it was written. This is essentially a statutory approach that I mentioned earlier. In the 1875 case Minor v Happersett, the Court ruled that the 14th Amendment did not guarantee women’s suffrage. In a strict textual interpretation of the amendment, the Court decided that suffrage was not explicitly included and could not be implied in the general phrase “privileges and immunities.”

In contrast, Chief Justice Roger Taney supported his opinion in the 1857 Dred Scott decision with a school of originalism that searches for the original intent of the framers (p. 212). That school relies less on the Constitutional text itself and more on traditional practice (Maltz, 2007). Taney wrote:

When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. (Source)

The second interpretative approach is that of retired Supreme Court Justice Stephen Breyer, who regarded the Constitution as a living document of values, principles and purposes, a contract between people and the governments who represent them (Breyer, 2024, p. xvii). The text of the Constitution points to the issues in the debate and cannot be the final word. As Jack Rakove (1996) pointed out in his book Original Meanings, there were inconsistencies in the wording of the hand-copied texts that were sent to the various states for ratification. In Breyer’s view, a judge’s task is to balance individual rights and the objectives of government policy.

Scalia and Breyer often debated in public (Breyer, p. 33). Scalia thought Breyer’s approach was ungrounded and arbitrary. Breyer thought that Scalia’s approach was too mechanical. He argued that an originalist approach did not achieve the objectiveness it aimed for. Since Scalia’s death in 2016, the Court’s conservative justices have struggled to apply an originalist interpretation in a consistent manner. They pick and choose the history that supports their opinions and reject the research and opinions of historians who come to different conclusions.

In Chapter 13, Lepore details this conflict in Second Amendment cases. After Justice Thomas invented a “text, history and tradition” test in writing the majority opinion in the Bruen decision, lower courts struggled to apply this multi-faceted analysis that combined both a textual emphasis and a historical-traditionalist approach. The confusion prompted another case, U.S. v Rahini, in which most of the conservative justices wrote separate opinions either concurring or dissenting with the majority decision (Source).

Lepore’s book is both informative and entertaining. She introduces us to long dead historical figures whose legacy affects our everyday lives and institutions. She takes us to seminal moments in history to give the reader a sense of time and place. She provides insightful analysis into the impassioned conflict between interests and principles. Next week, I will compare and contrast some of the judicial opinions and justices in Lepore’s book. Until then, baseball fans will have to content themselves with the start of an exciting playoff season!

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Photo by Rob Curran on Unsplash

Breyer, S. G. (2024). Reading the Constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

Maltz, E. M. (2007). Dred Scott and the politics of slavery. University Press of Kansas.

Rakove, J. N. (1996). Original meanings: Politics and ideas in the making of the Constitution. Knopf.

Who Writes the Rules?

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September 7, 2025

By Stephen Stofka

Sunday morning and another breakfast with the boys. This week Abel and Cain discuss immigration and the limits of Presidential authority. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel said, “I was reading that the National Parks are so understaffed after all the DOGE cuts, there is no one at the entry stations to collect admission fees. People were stealing artifacts from one exhibit in Yellowstone (Source).”

Cain frowned. “The world will never be rid of free riders. A lot of people on the right view illegal immigrants as free riders. They skip the immigration line, bring their kids here to get free health care, free education and then they say that they don’t want handouts.”

Abel put down his fork. “My whole point was that the Trump administration is losing more money in admission fees than they are saving with these personnel cuts.”

Cain nodded. “I get that. I am drawing an analogy between unrestricted admission to National Parks and unrestricted immigration at the southern border. The Biden administration understaffed border patrol and told officers to help immigrants disobey the law. So which problem is worse? A few thousand people who don’t pay at National Parks this summer or several million people coming into the country, needing medical care, education and legal services? I think we need to keep things in perspective.”

Abel argued, “I think a key distinction of free riding is that a person is not doing anything illegal. They are benefiting from some common resource without contributing to the cost (Source). People who drive into a national park without paying a fee are not breaking the law if the gates are open and there is simply no one there to collect the money. Immigrants seeking asylum are not doing anything illegal.”

Cain replied, “Most of these people are not asylum seekers. They are lying to stay in the country until their case is heard years later. The cartels in Central American countries teach these people what to say. Smuggling people is more profitable than smuggling drugs (Source). The Biden administration was facilitating cartel profits. Trump shut that down.”

Abel smirked. “Despite all the conservative rhetoric about the ‘immigration surge,’ migration in 2023 was less than it was during any year in the Bush administration except one (Source). For most of that time, Republicans held the Presidency, the Senate and the House. So its OK to let immigrants in when Republicans are in power but not so for Democrats. The right wing media has fooled the public and Democrats were too clueless to combat it.”

Cain shrugged. “Bush increased funding for more fencing along the southern border. He called on Congress to pass immigration reform and they just can’t get the job done (Source).”

Abel said, “A big stumbling block is that employers don’t want to be held responsible for any immigration violations. Sometimes, employers hire employees through a staffing agency for seasonal or temporary work (Source). The benefit of this arrangement is that there is some legal distance between the employer and the employees. They technically work for the staffing agency who deals with the immigration stuff like the I-9 form (Source).”

Cain nodded. “The immigration raid at the Hyundai plant in Georgia this week was an example. Most of those who were arrested, it was like almost 500 people, were not employees of Hyundai. They were contractors or subcontractors (Source).”

Abel replied, “Yeah, we talked about this a week or so ago. Employers classify workers as subcontractors to avoid paying employment taxes.”

Cain shook his head. “I think a bigger problem is there are too many immigrant advocacy groups that don’t believe in national borders. Major immigration reform was like in 1986, I think. If immigration policy can’t be resolved over several decades, then there are influential constituencies who don’t want to resolve it.”

Abel laughed. “They are making money from seeking a resolution, not reaching a resolution. And politicians know how to cover their tracks. They can look like they are working on a solution while taking steps to sabotage the effort.”

Cain nodded. “Well, all I know is that these immigrants are costing a lot of money. New York City estimated a cost of $12 billion over three years (Source). Where does that money come from? Reduced services and higher taxes. The Congressional Budget Office released a report this summer estimating the three-year cost of the immigrant surge. A net cost of $9.2 billion in fed, state and local services after accounting for higher sales tax receipts from these immigrants (Source).”

Abel thought a second. “Look, I’ll grant you there are some short term costs but don’t forget the long term gains.”

Cain interrupted, “Any long term gains are offset by higher house prices. Immigrants increase demand for housing. House prices go up. Econ101.”

Abel shrugged. “It’s hard to argue that immigrants are responsible for higher home prices. Another false flag that conservatives raise is that immigrants were taking jobs from Americans. That didn’t happen. By the end of 2021, less than a year into Biden’s presidency, construction employment recovered to its pre-pandemic level. By the time he left office, construction jobs were up more than 600,000 (Source). So that surge had little measurable effect on construction jobs.”

Cain argued, “Conservative economists like Oren Cass argue that illegal immigrants drive down the wages of lower skilled construction employees (Source). The number of employees won’t tell you that.”

Abel checked his phone. “Well, it does show that demand for labor remained strong. Hold on, I looked at wages too. Here it is. The Bureau of Labor Statistics tracks the hourly wages of production and non-supervisory employees. That will give us a good approximate picture of any impact on wages. There was a short time in 2022 when real wages for those employees declined (Source). That was during the inflation surge. It quickly recovered. If there is any effect, it was small. The data just doesn’t support conservatives’ claims about the effect of immigration.”

Cain protested, “Look, the bottom line is that most of these people are lying and jumping the immigration line. The cartels are using people as a distraction from the transport of drugs and guns across the border and taxpayers are indirectly funding the cartels.”

Abel asked, “Do you agree with Trump that he can go after these cartels as though they were terrorists or paramilitary groups? This week, we just blew up a ship in the Caribbean that was supposedly run by the Venezuelan Tren de Aragua gang.”

Cain shrugged. “Hey, I’m not a lawyer but I agree that these cartels act like paramilitary groups. We should treat them as such.”

Abel asked, “No trials? No evidence? No oversight? What if Trump adopts the same policy as Duterte, the former president of the Philippines (Source). Trump could start sending hit squads into American cities to kill drug dealers. Is that OK? Where is the line?”

Cain shook his head. “No, that’s on American soil. That’s entirely different.”

Abel asked, “So a Border Patrol officer could just shoot someone on the Mexico side of the border if he suspected that person of being a cartel member? Like I said, where is the line?”

Cain nodded. “Ok, now you’re sounding like a lawyer. The boat they blew up was in international waters. That’s entirely different.”

Abel sighed. “I don’t know why conservatives hesitate to define boundaries for this President. He pardoned the January 6th rioters that tried to kill members of Congress, including the Vice President. What does this Republican Congress say? Silence. Edmund Burke, the 19th century founder of conservatism, would be ashamed of this Republican Congress. Society is bound together by morals, conventions and institutions as much as laws (Source). This Republican Congress has abandoned those standards for political expediency.”

Cain nodded. “Fear for their personal and political safety, I’d guess. What’s happening is that the MAGA crowd is trying to overturn policies set largely by Democrats when they controlled the House during the twelve years of FDR’s presidency and for forty straight years from 1955 to 1995 (Source). Immigration is a big one. What are the limits of Presidential Authority and can he declare emergencies without consulting Congress? Another contentious issue. Who was the first President to grab extraordinary power after declaring an emergency? FDR, a Democrat (Source). It’s ironic that Trump is using the same mechanisms to undo Democratic policies that began with FDR.”

Abel frowned. “The court ruled against FDR in the Humphrey’s Executor decision. They ruled unanimously President cannot fire members of an independent agency at will (Source). The court has recently loosened that restriction (Source) and Trump wants to fire Powell, the Fed chairman. The question I have is whether a President can undo 80 years of Congressional policy? Who writes the rules, Congress or the President? This court seems like they are ready to confer kingship on the President under this judicial theory of the Unitary Executive. I mean, even if Congress does pass immigration reform, what does it matter if a President can ignore the law?”

Cain argued, “Well, nobody said the President can ignore the law.”

Abel replied, “The court has deferred to the President’s interpretation of the law (Source) and Trump has shown a willful disregard for Congress and the law in general. I mean we all saw him on the debate stage in the 2016 campaign. He has an open disdain for politicians and both parties as institutions. I mean, this guy is not a conservative.”

Cain sighed. “I’ll grant you he has undermined conservative principles and taken over the Republican Party.”

Abel smirked. “And these supposed Christians who support him. Compassion is a hallmark of the New Testament in the Bible. There are too many Christians who lack compassion for anyone outside their group. Immigrants, blacks, liberals, mainstream Republicans even.”

Cain raised his eyebrows. “Their sympathies remind me of Christians during the Crusader era. Lots of fire and retribution. Protect Christendom from the infidels. That type of thing.”

Abel laughed. “Everyone who doesn’t agree with them is an infidel, I guess. There has to be a way to bring all these political groups together in this country or this nation is going down in fifty to a hundred years.”

Cain asked, “Going down or splitting up? We’ve got oceans on both sides, a tremendous amount of resources and weak neighbors to the north and south. I doubt if we are going down.”

Abel smiled as he stood up. “Ok, splitting up. We’re already split along partisan lines. People in one party don’t trust those in the other party. I think that trend will continue. Trump is just precipitating the break up of the country.”

Cain leaned forward. “A few weeks ago, we talked about each party electing candidates from regional partitions with the party. For decades, voters are sorting themselves out by region. Democrats on the Northeast and West coast. Republicans in the Midwest and South (Source). It may be the only way to keep this country together.”

Abel nodded as he moved his chair back and stood. “You may be right. Madison wrote in Federalist 10, I think it was, that the best way to curb the power of factions was to pit them against each other (Source). A ‘fight fire with fire’ approach. That’s why I think the Unitary Executive theory is not in the spirit of the Constitution.”

Cain asked, “Maybe we could talk about that next week. You heading out?”

Abel nodded. “I promised Claire I’d help her move some furniture around this afternoon.”

Cain laughed. “You don’t sound too excited. I’ll see you next week.”

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Photo by Seongil Park on Unsplash

Note: Real wages. Average hourly wages are FRED series CES2000000008. The Fed’s favorite inflation gauge is PCEPI series. Subtract the annual percent change of one from the other to get the percent change in real wages.

A Divided Country

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July 6, 2025

By Stephen Stofka

Happy 4th to everyone. Despite the holiday weekend, the boys squeeze in a Sunday morning breakfast. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Cain settled into his seat as the busser set two glasses of water on the table. “We need another system of government.”

Abel gave him a questioning look. “They haven’t even brought the coffee yet, and you are rewriting the Constitution? I need to fasten my seat belt for this discussion.”

Cain laughed. “I’m disgusted with the corruption that is embedded in Senate rules. This monstrosity of a bill, what I call the ‘Big Bogus Bill.’ Senate Republicans bought Senator Murkowski’s vote, the critical vote, by exempting Alaska from some of the provisions in the bill (Source).”

Abel smiled. “This is the party you voted for. There are only  a few, like Rand Paul, Murkowski and Collins in Maine that are independent. The rest are automatons playing follow the leader. They are supposed to represent the interests of the people in their state, not the interests of their party leaders.”

Cain frowned. “Democratic leaders did the same thing in 2010 as they tried to get the Obamacare bill across the finish line.”

Abel interrupted, “That’s what this whole thing is about. Trump and the Republicans tried to repeal Obamacare in Trump’s first term. The House tried like fifty times. The repeal got so close, then John McCain gave his own party the thumbs down in the Senate vote on the repeal (Source). Now  Trump and the MAGA crowd are determined to undo as much of the ACA as they can.”

Cain frowned. “It’s a long standing grievance. Republicans have never had a filibuster proof majority in the Senate since the 17th Amendment instituted popular voting for Senate seats.”

Abel interrupted, “Well, it needed reform. Having the state legislatures elect their senators invited too much corruption. Senators were basically buying their seats.”

Cain nodded. “Good point. But it also allowed the states to check a President. I think we have lost that. We saw it this week when Trump threatened to primary Senator Tillis from North Carolina if he didn’t vote for the bill.”

Abel replied, “And Tillis told him to take a hike, basically. He said he wasn’t going to run again anyway. He’s disgusted by his own party acting like the President’s obedient pets. Trump was born with a silver spoon and yet he wants to take Medicaid away from a lot of people, including those in North Carolina. Tillis works for the people of North Carolina, not the spoiled brat in the White House.”

Cain sighed. “Too many wealthy people in the halls of power if you ask me. What was I, oh yeah, the filibuster. Every time that the Democrats get a filibuster proof majority, they pass a huge intergenerational social program that is not subject to the regular appropriations process. When people vote Republicans into power, Republicans have one hand tied. That’s not fair to the people who voted them into power. It’s like playing a game and the other player gets to make all the important rules.”

Abel argued, “Republicans have fought every one of those programs all the way up to the Supreme Court and lost every time.”

Cain nodded. “Republicans are still angry that John Roberts, the Chief Justice, voted with the liberals that the ACA was constitutional. A few months later, Obama defeated Romney, one of the old guard in the Republican Party. A few years later, Donald Trump appeared as the avenging angel (Source). He took on primary candidates from every faction of the party and won.”

Abel looked skyward. “Come on, this is not a Die Hard movie.”

Cain laughed. “That’s where you’re wrong. To some voters, Trump was like the tip of the spear, the leader of a resistance movement against big government.”

Abel frowned. “An agent of chaos who will destroy the Republican Party and the conservative values it has stood for. Is helping people that bad to so many Republicans?”

Cain smirked. “Democrats design programs that are not effective at helping the poor. We talked about that last week. The data supports my claim. These programs cost far more than the projected costs and the Democrats want to raise taxes on successful people to mask Democrat incompetence.”

Abel chuckled. “Yeah, right. Republicans promised that the Iraq war would pay for itself.”

Cain interrupted, “They expected that the revenue from more efficient oil production would defray a lot of costs, but they never promised that the war would pay for itself (Source).”

Abel replied, “Ok, you want to torture this like a lawyer? A lot of the American public was led to believe that the costs would be far less. How’s that?”

Cain argued, “Goes to prove my point. Policymakers and politicians have difficulty making projections. The Iraq war cost more than anticipated. That’s the nature of war. The war lasted like eight years. Look at the schemes the Democrats cook up. The programs have an infinite time horizon, so it’s impossible to project future costs with any accuracy. Democrats passed Medicare in 1965. Their leaders in the House Ways and Means Committee projected that the program would cost $9 billion a year by 1990. The actual cost was $67 billion (Source). So, either they were incompetent or lying. I suspect it was both.”

Abel asked, “So, what would you do? Cancel Social Security, Medicare, Medicaid, and other entitlement programs? While you are at it, why don’t you cancel the income tax amendment?”

Cain sighed. “Obviously, it’s not practical, but it’s not right that one party has dominated spending priorities for so many decades. It’s been sixty years since Medicare began. A lot of seniors think that payroll taxes and Medicare premiums pay for their care, but that’s not the case. Over a third of the costs are paid for by taxpayers out of general tax revenues. In 2023, that was $360 billion.”

Abel argued, “Those costs skyrocketed after the Republicans added Medicare Advantage and Prescription benefits to the program. Those two parts, Part C and D, cost more than half of Medicare spending. And why were those added? To help Bush win re-election in 2004. So I don’t want to listen to Republican sob stories about Democratic social programs. These programs mostly help people in red states who are older and poorer.”

Cain argued, “Look, you talk about Trump destroying the Republican Party? It was Bush and the old guard Republicans like Cheney who destroyed the party. They started acting like Democrats, passing legislation to get votes.”

Abel smirked. “Did it ever occur to you that it might actually be about helping people?”

Cain nodded. “Yes, it occurred to me. This is a country of many countries, too diverse for some one-size-fits-all program designed in Washington. The Constitution gives Congress the power to provide for the general welfare, not particular benefits given out to some individuals and not others. Only those programs, like national defense, the courts and the Post Office, which benefit everyone.”

Abel replied, “There’s always been a disagreement about what the general welfare clause in the Constitution means. In 1937, the Supreme Court noted as much when they found that the Social Security Act was constitutional. The court did not think it was their place to overrule the reasonable judgment of the legislature (Source). That is a prominent feature of the current court’s conservative majority. That the court should stay within its bounds.”

Cain nodded. “Ok, I’ll grant you that last point.. However, there are many of us who disagree with that broad interpretation of the general welfare clause. The fact that ‘common Defense’ and ‘general welfare’ are linked together in the same phrase is evidence that a narrow interpretation is appropriate.”

Abel asked, “Do you think this 6-3 conservative majority will overturn precedent and find the Social Security Act unconstitutional? They already overturned centuries of gun law with the Heller decision. They overturned decades of campaign finance law with the Citizens United decision. They overturned decades of abortion law with the Dobbs decision. I mean, why not go after Social Security, Medicare and Medicaid?”

Cain replied, “I think they would be mindful of both precedent and the consequences.”

Abel argued, “They didn’t care about the consequences in the Dobbs case with abortion. They didn’t care about the consequences of giving blanket immunity to Trump in last year’s decision (Source). The conservative justices are like politicians in any majority. It’s hard to see past their own principles and prejudices. In the Dred Scott decision that provoked the Civil War, Chief Justice Taney adopted a narrow originalist interpretation of the words ‘citizen’ and ‘territory’ in the Constitution. That led him to conclude that Negroes could not be citizens and that Congress had no authority to make laws for the Missouri Territory (Source).”

Cain raised his eyebrows. “Oh, I forgot that. He declared the Missouri Compromise unconstitutional.”

Abel asked, “Grade school test. When was the Missouri Compromise?”

Cain laughed as he raised his hand. “1820.”

Abel smiled. “Very good! You get a gold star.”

Cain sighed. “So much memorization back in those days.”

Abel replied, “Before we had librarians in our pockets. Anyway, the Missouri Compromise avoided secession and civil war in 1820. So, it should have been a good guess that voiding that compromise would aggravate tensions and lead to civil war, but Taney didn’t see it. He thought the court had resolved the issue once and for all. That’s my point. The logical application of our principles can lead us to disregard the consequences of our thinking. I’m afraid this court will follow a path of reasoning that will tear this nation apart, just like Taney did with the Dred Scott decision.”

Cain stared into his coffee cup, then looked at Abel. “That’s dark. You know, I wanted to get your feedback on the abortion ruling by the Wisconsin Supreme Court this week, but I promised my daughter I would join them on a picnic at the lake.”

Abel nodded. “And the Big, Beautiful Bill that passed this week.”

Cain smiled. “I’m still working through that bloated bill, but I thought it was clever the way Republicans had structured the bill so that the tax cuts happen in 2025 and 2026. The benefit cuts happen after the midterm election next year.”

Abel shook his head. “There are about 79 million people on Medicaid (Source). The Congressional Budget Office estimates that this bill will cause 12 million to lose their coverage (Source).”

Cain argued, “Yeah, but Medicaid enrollment already dropped 12 million after the expiration of the pandemic entitlements (Source). The world didn’t come to an end. So let’s say that Medicaid enrollment falls to 67 million. That’s still 20% above the levels of 2013 just before Obamacare kicked in (Source).”

Abel sighed. “It seems like so little gain for all the political upheaval it has caused.”

Cain shrugged. “Democrats probably could have accomplished that with small tweaks to the system. But no. As always, they wanted to completely rewrite policy in this country.”

Abel frowned. “So the tax goodies happen right away? People are going to be doing their 2025 taxes next spring and will see all these goodies. Manipulating public opinion just before the primaries start (Source).”

Cain slid out of his seat. “That’s politics. By stalling the benefit cuts, they avoid any repercussions before the election.”

Abel shook his head. “Seems so corrupt.”

Cain nodded as he turned to go. “It’s a game of power. That’s a big flaw in democratic systems. I still think we should have government by small tribunals.”

Abel laughed. “That’s basically how the Constitution was written. Anyway, see you next week. I think it’s my turn to pick up the check.”

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Image by ChatGPT

Chasing the Why

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May 25, 2025

By Stephen Stofka

This is part of a series on persistent problems. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Cain said, “We left off last week talking about the strong correlation between personal income and life expectancy in the U.S.”

Abel looked up to the acoustic ceiling tile as he searched his memory, then looked at Cain. “I think it was .85 across the states.”

Cain glanced down at his phone. “I wondered how strong the correlation was among developed countries. It’s not pretty. Mexico and the U.S. are the only two countries below 80 years life expectancy. Oh wait, and the Slovak Republic, what people call Slovakia.”

Abel asked, “Is that where Melania Trump comes from?”

Cain shook his head. “No. Her family is from Slovenia, another central European country. Slovakia is the eastern half of what used to be Czechoslovakia. A fun fact. They are not a top producer of automobiles, but for the size of their population, they have the world’s largest auto manufacturing per capita (Source).

Abel asked, “How small is their population?”

Cain replied, “About 5.4 million. So, a little less than Denmark. Well, I started digging into auto production figures for the other two countries with relatively low life expectancy.”

Abel spread some honey on his toast. “What, like there’s a link between auto production and life expectancy?”

Cain shrugged. “I don’t know. Environmental hazards? Just wandering around in the data maze. Never know what I’ll find. I was surprised to find that the U.S. and Mexico have about the same auto production per capita. Not the same overall. Just per capita. Volume wise, the U.S is the number two producer in the world (Source).”

Abel asked, “Who is #1? China?”

Cain nodded. “Yeah, they produce three times what the U.S. does. Of course, they have four times the population. Anyway, I looked at what has happened to auto production in the U.S. We are producing the same amount of vehicles as we did thirty years ago (Source). Meanwhile, the population in this country has grown 30%.”

Abel raised his eyebrows. “And Trump is going to restore that imbalance with tariffs somehow?”

Cain smirked. “All presidential candidates overpromise. Trump’s not the only one. In a deep housing and financial crisis, Obama promised to do what was best for working class families like the grandparents who raised him. What a bunch of B.S. that was. He did what was best for the banks and broker bonuses as millions lost their homes and most of their net worth.”

Abel sighed. “I don’t think most presidential candidates understand the forces that control the energy in this country. Trump says it’s the deep state. It’s the deep everything. The deep oil and gas industry, the deep defense industry, finance, healthcare, education and the tech ‘bros.’”

Cain laughed. “Good point. And they all have their lobbyists in Washington. It’s the swamp and its deep.”

Abel smiled. “And each president promises to clean up some part of that swamp. Then the gators in the swamp get a hold of their ankle.”

Cain shook his head. “I think it’s us the gators get a hold of. The politicians always seem to get away somehow.”

Abel grunted. “Too true. Anyway, so get back to life expectancy across developed countries.”

Cain replied, “Oh, yeah. So, the correlation between income and life expectancy across developed countries was not as strong the correlation between states, but it was still a moderately strong .6 (Source). I thought GDP growth would help produce better health outcomes and life expectancy, but no.”

Abel asked, “What if a lot of Americans are not benefitting from that economic growth? Too much inequality? We were comparing the U.S. and Great Britain last week on obesity in school kids. Great Britain has a much lower GINI coefficient than the U.S. so incomes over there are more evenly distributed (Source).”

Cain asked. “That measure includes transfer payments in income, right? Pretax or after tax?”

Abel nodded. “Yeah. It includes Social Security, Medicare, Medicaid and supplemental income. Any income that doesn’t involve an exchange of goods or services (Source). The OECD tracks both before and after tax. England has the same GINI index as the U.S. in pre-tax income, but their tax system reduces inequality more than the U.S.”

Cain shrugged. “What’s the GINI for Mexico?”

Abel flicked a finger across his phone. “Wow. The same as the U.S. after taxes. Boy, I thought we would be better than Mexico. Let’s see, what about Slovakia? No, that breaks the trend. They have an even lower GINI index than Great Britain, so more equality, and a low life expectancy as well.”

Cain smiled. “Every time I think, ‘that’s the key indicator,’ the data throws me a curve.”

Abel said, “So far what we are seeing is that average income has a strong influence on life expectancy but not the distribution of income. Is that the secret sauce to longer life expectancy? Raise average incomes?”

Cain replied, “It’s not that simple. We have a high income but relatively low life expectancy. But comparing the U.S. and Great Britain over time was interesting. Forty years ago the two countries had the same life expectancy. Since then the U.S. has averaged 3.6% real GDP growth (Source). That means that real GDP doubles in 20 years. Great Britain, on the other hand, has had only 2.5% annual growth, so it takes like 28 years for their GDP to double. Yet improvements in U.S. life expectancy have been far lower than Great Britain over that time.”

Abel asked, “What about healthcare spending? Inefficient overspending on healthcare and the military increases GDP. Any insights there?”

Cain sighed. “Well, you have a point there. The U.S. spends the highest amount of developed countries on healthcare, almost double the average (Source).”

Abel replied, “So other countries are spending less and getting better health outcomes. The public-private partnership in U.S. healthcare is not working and is not efficient. Are you ready to endorse universal health care?”

Cain smiled. “Them’s fighting words. Mexico has universal health care and it’s life expectancy is worse than the U.S. The same story for Slovakia.”

Abel argued, “Yeah, but Mexico and Slovakia are both rated poor in healthcare quality and innovation. The U.S. has good quality health care and the highest innovation ranking, but poor access and a fiscally unsustainable system (Source). Quality healthcare has to be accompanied by easy access to care. Will you agree with that?”

Cain frowned. “On the face of it, yes, but there are all these other factors we’ve looked at. This is a big country.”

Abel asked, “Ok, what about population density? There was a .5 correlation between life expectancy and density among the states.”

Cain nodded. “That was weird. It was the same between countries, so density has some effect on life expectancy, but the stronger factor was income.”

Abel frowned. “That’s surprising. In many European countries, the government provides healthcare so income should be a weaker factor.”

Cain replied, “The contradictions in these indicators drives me nuts. That’s why I say it’s too complicated to point to one or even two factors and say, ‘fix these and you’ll fix the problem.’”

Abel argued, “Well, we can’t sacrifice the good for the perfect.”

Cain studied the pancake on his fork for a moment. “I want simplicity. I dream of a society where we make clear rules, a society where people play by the rules.”

Abel laughed. “I was reading a book by David Graeber this week called The Utopia of Rules. He says it’s a wish that many of us have. You know, everybody knows and plays by the rules and those who play by the rules can win.”

Cain lifted his eyebrows. “Yeah, it seems like it’s the cheaters who win. That was the bitter truth that many of us learned during the financial crisis. No accountability for the cheaters.”

Abel argued, “Even before that. No accountability for actions in the Iraq war. Abu Ghraib. Hollywood had constructed a noble portrayal of American soldiers in combat. John Wayne. Gregory Peck and the like. Torturing prisoners was something the North Koreans and Chinese did. Not American soldiers.”

Cain sighed. “A reminder of Vietnam? Something’s happened in the past few decades. I’m still trying to get my head around it.”

Abel replied. “Graeber talks about sovereignty, something we normally associate with countries. In the post-Watergate consensus, Congress put constraints on the president. That’s changed in recent decades after 9-11, when Congress began to defer to the president. As Graeber notes, presidents can now order people assassinated, extradite prisoners of war to places where they can be tortured. They can conduct surveillance on ordinary citizens with flimsy pretext and sporadic oversight.”

Cain leaned back in his seat. “In Trump v. United States (Source) last year, the court conferred legal sovereignty on a president. A former president has absolute immunity for ‘official acts,’ although the court declined to define those. They used a previous 5-4 decision in Nixon v Fitzgerald holding that a former president had absolute immunity against civil litigation for damages.”

Abel argued, “But Trump v. United States was a criminal matter, not civil. The court just expanded the scope of the previous decision. I mean, this court has overruled previous court precedents about abortion and gun rights made during the 1970s. Then they base their ruling on a closely decided case in 1982?”

Cain nodded. “They created a radical expansion of presidential immunity, then didn’t have the backbone to establish any limits on official acts. I mean, Fitzgerald was a civil case about back pay and wrongful employment termination, not trying to overturn an election. To use that as a basis for their decision indicates just how arbitrary the conservative justices have become.”

Abel argued, “They might say that it is incremental jurisprudence.”

Cain smirked. “Incremental policymaking is a hallmark of our political system. That’s what these conservative justices have become. Activist politicians.”

Abel raised his eyebrows. “Why did you vote for him?”

Cain took a deep breath. “You keep asking me that. The better of two bad alternatives. Why did you vote for Harris?”

Abel laughed. “The better of two bad alternatives.”

Cain replied, “I thought that there was still a Republican Party that would restrain Trump’s impulses. The party is gone. Only the nationalist radicals and hesitant members remain. The name is an empty shell.”

Abel said, “Last week, you mentioned activist courts and an activist executive branch. I don’t attach much meaning to the word. If people don’t like certain policies they attach the word “activist” to whoever made the policy.”

Cain shook his head. “You’re right. A lot of people do that. I mean it in the sense that some political actor makes a rule that makes it likely there will be more rules to refine that first rule.”

Abel argued, “We’ve got a complex society managed by a big bureaucracy. The proliferation of rules is inevitable.”

Cain took a sip of coffee. “Those are procedural rules. What I’m talking about is something different. ‘Principle’ would be better rule. Like sailors back in the old days using the north star as a guiding rule. Then they had a bunch of procedural rules to help them keep to that guiding rule.”

Abel interrupted, “You said political actors made the rule. So you’re not talking about some rule made at an office meeting.”

Cain nodded. “Right. The Supreme Court’s Heller decision in 2008 established an individual right to have a gun (Source). Since then there have two more decisions. McDonald in 2010 extended that right to include the states. The Bruen decision in 2022 ruled that gun laws could no longer use state interests as a balancing test. They had to be consistent with historic tradition. Three cases in fourteen years made it to the Supreme Court? That indicates that the Heller decision was not a well constructed principle. Of course, that applies to a lot of laws.”

Abel replied, “So compare that to Roe, the abortion decision in 1973. The Casey decision in 1992, then Gonzalez in 2007. That’s 34 years for two refinements.”

Cain nodded. “Someone could argue with the reasoning in Roe, but the length of time between refinements of the rule indicates that it was a well constructed rule, as rules go.”

Abel continued, “Maybe I’m not clear on the distinction. If the precedent or outcome of a rule is flawed, how can it be a good rule?”

Cain smiled. “A rule should be clear. It should have as few exceptions as possible.”

Abel looked doubtful. “That’s unreasonable. Take, for example, the rule against killing. There are lots of exceptions. War, self-defense. Is abortion an act of killing? Depends on your definition. Hunting animals? Isn’t that killing? This is the real world. It’s complicated.”

Cain smirked. “Of course it is. I said, ‘as few exceptions as possible.’ I didn’t say ‘no exceptions.’ When lawmakers make rules, they should ask themselves, ‘Does this rule invite a lot of exceptions? How can I change the wording of the rule to reduce exceptions?’ It’s just a principle to keep in mind.”

Abel asked, “So give me an example of a rule that you like as a rule, even though you might disagree with the reasoning.”

Cain barely paused. “The DOGE cuts. The rule was simple. Cut anyone who had less than a year’s employment, I believe. While the rule was clear, it produced undesirable outcomes. They had to hire some critical people back. We won’t know the full impact of the DOGE cuts for a while.”

Abel nodded. “They will cover up the mistakes. That decision was more a programming rule. Code in a criteria and get a list of employee names, then give them notice. Can you think of a law, like something that a legislature deliberated over?”

Cain stared into his coffee cup as though it held the answer. “How about a so-called bathroom bill? They are clear. Only people of a particular sex as listed on their birth certificate can use a single sex bathroom (Source). I might sympathize with people who are struggling with their gender identity. But the language of the bill is clear.”

Abel shook his head. “That, to you, is a good rule? How many of us carry our birth certificates with us when we use the bathroom? It has an impractical condition.”

Cain nodded. “But that’s not what I’m talking about. That’s the distinction. The language of the bill itself is clear. Take for instance the 1972 Clean Water Act. It gave the EPA regulatory power over the ‘waters of the United States.’ Courts and agencies have been fighting over that term and its, let’s see, boundaries for decades. What does that term include and exclude? A clear rule has terms in it with good boundaries.”

Abel frowned. “The Supreme Court often asks what is the limiting principle.”

Cain replied, “Yeah, a good defining characteristic.”

Abel asked, “So you don’t like the term ‘general welfare’ in the Constitution.”

Cain smiled. “You’re right. I don’t. The anti-Federalists at the Constitutional Convention didn’t like it either.”

Abel nodded. “Right. Yeah, Michael Klarman discussed that in his book ‘The Framers’ Coup.’ Did you ever think that politicians might purposely choose a term that has no clear boundaries? It’s the only way that lawmakers can agree on something. The astronomer Carl Sagan once said that people find agreement when they use a broad term like ‘God,’ which encompasses a lot of different concepts (Source).”

Cain nodded. “Good point. It’s a way of kicking the can down the road. It signals that lawmakers wanted to complete some law, to claim an accomplishment when there were still parts not done. So they take the undone stuff, the stuff they can not agree on, and slap a label on it, like ‘general welfare’ or ‘waters of the united states.’”

Abel set his glass of water down. “Those conservative justices who use a textualist approach to analyze a case may be looking at text that was written using ill-defined terms, terms without clear boundaries, to use your term. The textualists claim that their approach is grounded in empirical evidence, but the evidence itself, the text of the law, lacks definition.”

Cain smiled. “I like that connection. It shows the limits of any judicial interpretation.”

Abel replied, “So let’s get back to activist policies. You sounded fed up last week.”

Cain nodded. “Yeah, Democrats are activist. That’s their brand. A hallmark of the Republican Party used to be a certain policy restraint, a prudent caution. No more. It’s so disappointing and it leaves a lot of voters like me in a political limbo. Neither party represents our approach to governing. You know, quit meddling. This tariff business is meddling in the extreme.”

Abel raised his eyebrows. “It was a Republican president and strongly Republican House and Senate that initiated the Smoot-Hawley tariffs in 1930. They imposed tariffs on more than 20,000 goods.”

Cain interrupted, “And imposed no tariff or low rates on a lot of goods. As I said, the hallmark of a badly constructed rule is a lot of exceptions.”

Abel continued, “Ok, the tariffs were activist policymaking by Republicans who held the Presidency and strong majorities in the House and Senate. The Republicans are all about restraint. They restrain free trade, individual choice, government support of child care, to name a few.”

Cain smirked, “Like the Democrats don’t do the same. Restrict guns, oil and gas drilling, dictate to automakers the kinds of cars they can produce. I mean, it’s the Democrats who created the bureaucratic state. All that rule-making limits choices.”

Abel laughed as he slid out of the booth. “Ironic. In his book, David Graeber writes about a paradox. He calls it the Iron Law of Liberalism. When a government tries to promote the free market, it often creates even more regulations. In their own way, both parties are guilty of making too many rules, of creating bureaucratic tangles.”

Cain looked up at Abel. “I wish we could change that somehow. See you next week.”

Abel gave a short wave. “I’ll pick up the check. Till next week.”

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Image by ChatGPT

Conflicting Principles

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May 11, 2025

By Stephen Stofka

This is part of a series on persistent problems. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel looked across the restaurant at a family seated around several tables. “I wonder why the kid is dressed in white.”

Cain turned to look. “Oh, yeah. First Communion, maybe? I think it’s that time of year.”

Abel spread some honey on his toast. “Last week, we were talking about charter schools. A few days later, I was listening to a Supreme Court case about a charter school in Oklahoma” (Source).

Cain asked, “What do you mean listen to?”

Abel replied, “Lawyers for both sides argue their case in front of the Supreme Court and the justices ask them questions. ‘Oral arguments,’ it’s called (Source).”

Cain nodded. “I know about oral arguments. I didn’t know they were broadcast.”

Abel finished chewing. “They started that in the pandemic, I think. If you subscribe to the Oyez podcast, you can listen to it a day or two after the argument. Their web site has a lot on past court cases (Source). There’s also a link on the Supreme Court’s web site where we can listen to them live (Source).”

Cain asked, “So what was the case about?”

Abel said, “Oklahoma has a state charter board that approves or denies applications to become charter schools. A few years ago, the state board approved an application for a Catholic charter school named St. Isidore, allowing them to freely follow their religious beliefs.”

Cain interrupted, “Wait. I thought charter schools were publicly funded by taxpayer dollars. What about separation of church and state?’

Abel nodded. “That’s what the state attorney general wondered.”

Cain asked, “A Democrat? I thought Oklahoma was fairly red.”

Abel shook his head. “No, a Republican. The AG’s office brought the case to the state’s Supreme Court, arguing that the charter should be nullified. The court agreed. Both the school and the state’s chartering board brought the case before the federal Supreme Court, where the two cases got joined together.”

Cain raised his eyebrows in mock drama. “So one state agency, the AG, is pitted against another state agency, the charter board.”

Abel laughed. “And there’s some political machinations on the court.”

Cain twirled an imaginary moustache. “Politics on the Supreme Court? Surely, you jest, my man!”

Abel smiled. “Justice Barrett, one of the conservative justices, recused herself from the case so there are just eight justices, a five to three split between conservatives and liberals. If the three liberal justices can bring Chief Justice Roberts to their side, the decision would result in a 4-4 tie, which would let the Oklahoma Supreme Court decision stand.”

Cain asked, “So what are the issues both sides are fighting over?”

Abel put his coffee cup down. “Before I get to that, let me get back to the politics. So the justices direct their questions to the lawyers for either side, but the questions are designed to bring up points that the conservatives and liberals think are important to their argument.”

Cain replied, “Indirectly steering the debate as the justices hope to sway Roberts.”

Abel smiled. “Yeah. So the liberals focus on the establishment clause in the First Amendment that prevents the government from favoring one religion over another.”

Cain looked puzzled. “I thought charter schools were private.”

Abel replied, “They are, but they are publicly funded, and they have to follow the same rules as other public schools. They can’t choose which students they admit.”

Cain interrupted, “We talked about that last week. The schools are not supposed to do that. Some states are rather lax in how they enforce that rule.”

Abel nodded. “Good reminder. The school has to get approval for their curriculum, and the state closely monitors the school to make sure that it meets the state’s requirements. The state may even have a representative on the charter school’s board. Plus, the state can close the school down. Even though the school is private, the state has a lot of control.”

Cain said, “Reminds me of the debate over independent contractor status. If XYZ company hires someone to do a job, and XYZ has substantial direction and control of how that person performs the work, then that person is an employee, not an independent contractor. XYZ company has to pay employer taxes for whatever money they pay that person.”

Abel nodded. “That’s a good point. It’s the familiar ‘if it quacks like a duck’ argument. So the plaintiffs for the state chartering board and St. Isidore, the charter school, stressed the private ownership of the school, religious freedom and free expression. The respondents, the AG’s office, focused on the control that the state has over St. Isidore and that control makes them an extension of state legitimacy and power.”

Cain looked surprised. “I agree with the AG’s office.”

Abel replied, “I think it’s a case of which precedent do you think should carry the most weight. The conservative justices focused on the equal protection clause of the 14th Amendment (Source). A charter school must meet minimum curriculum requirements. One of the lawyers said the state even specifies that dangling participles must be taught in English class. But the school can have a focus like science, the arts, or on Chinese language skills, offering some language immersion classes.

Cain interrupted, “That shows how much control the state has. So what was the counter argument from the conservative justices?

Abel replied, “I think it was Kavanaugh who expressed concern about equal treatment. Each charter school can have a different focus, but if a school has a religious focus, that’s unconstitutional?”

Cain tilted his head slightly. “Ok, good point. An American history teacher at St. Isidore could stress Christian principles as fundamental ideas to the founders who wrote the Constitution. If that teacher cited some Bible verses to illustrate those principles, is that legal? The teacher is paid with public taxpayer dollars. Is the government promoting one religion over another?”

Abel argued, “Michael Klarman wrote a book on the founding called Framer’s Coup. At the beginning of the introduction, he cites Madison and Benjamin Rush referring to an ‘Almighty hand’ or the ‘hand of God’ (Source).”

Cain looked skeptical. “Yeah, but they weren’t referring to a specific religion, or even a broad category like Christianity.”

Abel said, “Should a school teacher in a publicly funded institution cite any religion? If the Supreme Court decides that the state can charter religious schools, where does it stop? What if a teacher cited the Koran as embodying the founding principles of the American Constitution?”

Cain smirked. “Not a lot of Muslims in Oklahoma. I could see where Catholics and Protestants would get into a war over this issue. Catholic teaching would stress the Federalist view of government at the founding. More centralized and authoritarian, the one championed by Hamilton. Protestant teaching would stress the anti-Federalist view associated with Jefferson. Decentralized power, more autonomy at the local level.”

Abel argued, “But both of those views could be taught without referencing back to the Bible or the Koran. Religious traditions provoke too much dissent and violence. The founders wanted to stress constitutional principles that bound the thirteen colonies together, not tore them apart. The European powers were already trying to do that. In Federalist #10, Madison noted the conflict of political factions with differing regional interests (Source). He hoped that the Constitution would balance the tension between national and local interests.”

Cain nodded. “Getting back to the issues involved, you’re saying it’s the First against the Fourteenth? The conservative justices and the Catholic charter school use the 14th Amendment to justify their opinion. Liberal justices and the state’s AG office base their arguments on the 1st Amendment.”

Abel smiled. “It’s more complicated. The conservative justices also focused on the free exercise clause in the First Amendment. The Supreme Court has long struggled with the balance between the establishment clause and the free exercise clause (Source). An individual’s free exercise cannot conflict with state interests like public safety and health. As long as a school meets the curriculum requirements, it has satisfied other state interests. Is it not entitled to express its views? If other charter schools can focus on climate change and environmental science, why can’t a school express its religious views?”

Cain sighed. “So the First and the Fourteenth Amendments are bound together in a way.”

Abel nodded. “Remember that in 2015’s Obergefell case, a conservative court decided that same sex couples had a right to marry (Source). Equal protection. That decision angered some conservative religious groups. The conservative justices seem to favor that combination of equal protection and free exercise over a state’s interest in remaining religiously neutral. I think Alito mentioned the Masterpiece Cake Shop case.”

Cain replied, “Yeah, the owner of the shop didn’t want to make a custom cake for a gay couple’s wedding. Against his religious beliefs, he said. The state said he had to serve the public and couldn’t discriminate against a customer because of his religious beliefs. The Colorado Supreme Court agreed. The federal Supreme Court overruled and said that a custom made cake was a form of expression protected under the First Amendment (Source).”

Abel argued, “Yeah, but the state did not fund the cake shop with taxpayer dollars. Alito sees only the context that will support his judicial instincts. He wrote the Dobbs decision overturning Roe, reasoning that the Constitution did not give a woman a right to an abortion because it was not deeply rooted in American tradition (Source). His ‘reasoning’ conveniently left out the fact that the Constitution as written in the 18th and 19th centuries gave women few rights. They were subservient to men. That’s the bubble of reason that Alito lives in.”

Cain sighed. “Well, remember that he’s writing the majority opinion, so its not just his reasoning.”

Abel shook his head. “Basing decisions on ‘history and tradition’ is flawed. It invites the justices to pick and choose only the history and tradition that supports their biases.”

Cain laughed. “Boy, we could spend a few days on that topic. I do think that the conservative justices are opening a can of worms on this one. If they are going to allow states to charter publicly funded religious schools, some state charter board is going to discriminate against a particular religion. The board will cover their tracks for sure, claiming that the applicant did not meet the state’s curriculum requirements. The applicant will file a lawsuit, claiming religious discrimination. This is an activist court issuing decisions based on unclear reasoning.”

Abel interrupted, “Unclear reasoning. You are being generous.”

Cain shrugged. “The lower courts don’t know how to apply that reasoning. Inevitably, more cases will come to the court, and it will clarify its reasoning.”

Abel smirked. “This court will be dominated by this kind of thinking for decades to come. Anyway, let’s move on from court stuff. Last week, we were talking about problems in education. One of the problems we didn’t discuss is the expectations of parents. Mom and dad might expect school instruction for their child to have the same elements as when they went to school. Like multiplication tables in grammar school or some in high school who had to memorize a poem by Shakespeare.”

Cain nodded. “Well, I thought it was reassuring that they are still teaching dangling participles. There was much more focus on rote learning when we were going to school.”

Abel continued, “That rote learning helped kids learn some basic job skills, like how to make change. Today, some might argue that kids rely on the cash register or the computer to do the math for them so why should kids learn basic math skills? I’d argue that, without those basic skills like percentages and such, kids will become easy prey when they grow up. People can dazzle them with fancy figures that they can’t follow and sell them financial products that hurt rather than help them.”

Cain laughed. “They will ask ChatGPT for financial advice, I suppose. They’ll become like the society in the movie ‘Wall-E’ where they are totally reliant on machines for everything. But what kid thinks about investments? That’s far in the future.”

Abel argued, “Maybe at a very young age, you’re right. A month from now is a long time in a young kid’s mind. But there have been good experiments with high schoolers managing stock portfolios.”

Cain replied, “Goes to show that incentives matter. In the search for YouTube subscribers, a kid will rip a favorite album and upload it to YouTube, complete with notes and navigation to each track in the album. The kid will see little money for all that effort because the recording artist will monetize any ad revenue, but just the prospect of getting more subscribers gets the kid to spend that time and effort. We need to apply those lessons to school learning.”

Abel looked doubtful. “Look, there’s stages in brain development. At the risk of herding kids to learn the same thing at the same time, we can’t be teaching calculus to sixth graders.”

Cain argued, “We had our daughter in Montessori school for a few years. She was in a classroom with kids of different ages. She was about seven and heard about fractions, told the teacher she wanted to learn about them and the teacher had one of the older girls show her fractions. We need more innovative teaching methods, not rigid curriculum.”

Abel shook his head. “Some kids really struggle with fractions and decimals and need to be taught by someone with more experience. You know, someone who knows different approaches to help them understand. The fault of ‘new math’ when it was taught in the 1970s and 80s was trying to teach kids about rules and how they affect relationships between numbers. It was too abstract for a lot of kids.”

Cain was equivocal. “Well, there were also kids who were good at memorizing. They had memorized that three-eighths was less than a half without really understanding the concept. I remember one kid in fourth grade, I think. To add two fractions, he cross multiplied them even when they had the same base.”

Abel cocked his head. “What do you mean?”

Cain replied, “Like two-fourths plus one-fourth. He didn’t need to find a common denominator and cross multiply because the two fractions already have the same base, which is four. The kid had found that the cross-multiplication procedure got the right answer, so he used that all the time.”

Abel looked puzzled. “What if the problem involved adding a whole number and a fraction, like four plus a half.”

Cain smiled. “He would convert the whole number to a fraction, like make four into a fraction of four over 1, then go through his procedure. He was so resistant when I tried to show him any method that was quicker. ‘I might get the wrong answer,’ he told me.”

Abel lifted an eyebrow. “You know, I’ll bet a lot of people carry that approach into their adulthood. They resist change, new methods of doing things, or new arguments. If we looked closely, we’d probably see that same rigid approach at parent-teacher conferences and city council meetings.”

Cain laughed. “Or on the Supreme Court. Using the same kind of reasoning in two cases that have critical differences. Some justices ignore the different principles involved, brushing the differences aside as unimportant.”

Abel smiled. “Different species of animal tend to follow a well-worn path in the forest, even if there has been some change to the landscape and there is an easier path down to the river, for instance. Do they take the easier path? No. They use the same rule.”

Cain asked, “How do we teach kids that different rules apply in different circumstances? That’s what English and math are all about. That’s the importance of learning a foreign language. We become aware that other languages have different rules than our native language. It makes us more aware of the rules that structure our native language.”

Abel asked, “So what about a public school teaching comparative religions? The kids would learn that each religion has different beliefs, customs and rules for interpreting our relationship with the infinite, our own mortality, and the society around us. Could a public school teach both Islam and Catholicism?”

Cain looked puzzled. “What about the Jewish faith? Or Evangelical beliefs? A good background in comparative religions is a lot to ask of a 4th grade teacher. I still think that the state needs to steer clear of funding religious instruction.”

Abel sighed. “I think this decision will be important. Last week, you mentioned that a third of Rochester’s public schools are charter. One of the lawyers arguing at the Supreme Court mentioned that all of New Orleans public schools are charter (Source). The state, as a whole, has only 11% charter schools, but it’s a growing constituency (Source).”

Cain laid his napkin on the table next to his plate. “Sometimes I think that these problems persist because we hold onto conflicting principles. We want schools to be like a Swiss army knife, a multi-tool that addresses several problems and we can’t agree on priorities. We want people to be housed but we want to preserve the character of our neighborhoods and that makes it difficult to build affordable housing. We want the state to stay out of religion, but we want to preserve free speech and religious freedom.”

Abel nodded. “Maybe that’s the most persistent problem of all. It’s like we’re sitting on a wagon being pulled by two horses and we have no reins to guide the horses. Hey, I see you’re ready to go. Maybe we could talk about that next week.”

Cain laughed as he stood. “I like that horse analogy. My treat this week. See you next week.”

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Image by ChatGPT in response to the prompt: “draw an image of two ghosts styled like Casper the Ghost getting ready to have a boxing match.”

The Reins of Judicial Power

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July 21, 2024

by Stephen Stofka

This week’s letter is about an alliance of business interests and libertarians alarmed by the growing power of the federal government that emerged during the 1930s Depression and enabled by a shift in judicial interpretation on the Supreme Court. In the following decades, executive agencies expanded their authority by assuming powers held by each of the three branches (Epstein, 2014). The agencies wrote rules like a legislature, administered the rules with or without the assent of the President, and resolved controversies in legal interpretation like the judiciary. When the Court’s decisions challenged the traditions of religious groups, social conservatives joined the coalition.

Social unrest in the 1960s followed by political turmoil and economic stress in the 1970s accompanied a generational shift in power in the Congress. A coalition of civil rights advocates  and environmental activists helped pass legislation in both areas. In the southern states where resistance to federal control was still active a century after the Civil War, voter sentiment began to shift from the Democrat Party to the Republican Party. Extractive industry groups increased their lobbying efforts to check environmental laws that increased their costs or delayed their projects (Kraft, 2022). In the 1970s, environmental activist groups turned to the courts to block industrial developments (Smith, 2022). Many of these controversies occurred in federal district courts where 860 justices with life tenure decided the application of the rules. Business groups recognized the need for judges sympathetic to any judicial philosophy that promoted a diffusion of government power to the states and individual business interests. Large corporations, enjoying many of the legal rights of individual persons since the 19th century, had revenues greater than those of many state governments, allowing big businesses the power to steer state and local policy toward maximizing profits.

A hybrid form of judicial interpretation called textualism/originalism was an effort to develop objective rules of jurisprudence to guide decisions in the lower courts. Textualism focuses on the legislative text while originalism focuses on the history of statutes and the Constitution (Eyer, 2022). Together the rules encourage justices to stay faithful to the text, history and tradition of the law. Six justices on today’s current Supreme Court hold the reins of this team of horses, which sometimes pull in opposite directions. Four decades in development, textualism and originalism have not brought the sought after clarity. Lower courts have sometimes responded with contradictory decisions to recent Supreme Court precedents, resulting in a judicial recycling of controversies in which the Court clarifies an earlier precedent.

As executive agency power expanded in the decades following World War 2, the Supreme Court expanded individual rights in its interpretation of the 14th Amendment. Richard Epstein (2014, p. 121) voices the conservative sentiment when he called this period a “veritable explosion of new rights.” The 1973 Roe v. Wade decision overruled state laws that prohibited abortions at various stages in a pregnancy, determining a right to privacy in the 14th Amendment. Social conservatives, business interests and libertarians formed an alliance of think tanks to limit the expansion of judicial and executive power.

Conservatives decried the Court’s Roe v. Wade decision upon its publication. In an interview late in her life, liberal Justice Ginsburg faulted the reasoning the court gave in that decision. She explained that the decision should have been based on a principle of gender equality clearly stated in the 14th Amendment. The Court’s ruling, based on a presumption of privacy, left the decision vulnerable to repeated attacks by groups of social conservatives. A coalition of religious groups, still angry over the Court’s 1962 decisions banning prayer in schools, now found common cause with business interests angry about the expansion of executive agency power.

For some foundational understanding of this revolution in judicial interpretation, readers will remember that the Bill of Rights was a package of ten amendments submitted to the states for ratification in conjunction with the Constitution. They applied to the federal government and were meant to assuage any concerns that this newly created federal government would impinge on the rights and power of state legislatures and the small number of individual citizens allowed to vote in each colony (Klarman, 2016). The enumerated powers stated in the Constitution was designed to define and contain the powers of the federal government but left unsettled or undefined powers to the states. In the century following ratification, the Court’s rulings gave preferential treatment to state autonomy in controversies over Bill of Rights protections. The Supremacy Clause of the Constitution gave the federal government priority if a federal law contradicted state law, but if there was no federal law resolving a controversy, state law took precedence. Separation of powers included the three branches within the federal government and between the federal government and the states.

For an evolving history of jurisprudence, I will turn to the National Constitution Center, a bipartisan independent organization authorized by Congress to educate the public on the history, text and meaning of the Constitution. They offer a free curriculum of classes on the Constitution for readers who want to expand their knowledge of the controversies related to the Constitution and its Amendments. What follows is a synthesis of a class section on selective incorporation, the Court’s application of protections for individuals to the states law.

Following the passage of the 14th Amendment, several Supreme Court decisions limited its protections against state abuses. In the 1925 Gitlow v. New York decision, the Court held that a state could not violate an individual’s First Amendment rights. In the 1960s the Supreme Court, headed by Chief Justice Earl Warren, further expanded individual rights, reasoning that the due process and equal protections guaranteed by the 14th Amendment made Bill of Rights protections applicable to the states as well as the federal government.

Before the rulings of the Warren Court, individuals had few protections against abuses by state governments. States routinely violated protections against search and seizure contained in the Fourth Amendment, the right to counsel stated in the Sixth Amendment, the protection against self-incrimination in the Fifth Amendment, and the right to free speech in the First Amendment. As I noted last week, a minority of rural voters in some states controlled the legislature through clever districting rules that magnified their representation and interests in the state legislature.

As the court has applied combinations of textualist and originalist interpretation, it has satisfied the wishes of the coalition of social conservatives, business interests and libertarians. Its Dobbs decision overruled the 50-year-old precedent set by Roe v. Wade, pleasing social conservatives. It overruled previous precedent set by the Bakke decision in 1978 that established affirmative action, pleasing business interests and libertarians. In 2008, its Heller decision established an individual right to own a gun, satisfying libertarians. It 2010 Citizens United decision overrules McCain-Feingold limits on corporate political contributions, giving business interests a greater opportunity to influence policy. Social conservatives are hoping that the court’s next term will overturn a right to same sex marriage established by the 2015 Obergefell decision.

Next week I will look at the conflicting priorities in textualist/originalist analysis and how its methodology differs from the more traditional analysis that focuses on the purpose of a law.

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Photo by Jim Strasma on Unsplash

Keywords: civil rights, environmentalism, amendments, Bill of Rights, Supreme Court, textualism, originalism

Epstein, Richard Allen. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

Eyer, K. R. (2022). Disentangling textualism and originalism. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4090893

Klarman, M. J. (2016). The Framers’ Coup: The Making of the United States Constitution. Oxford University Press.

Kraft, Michael E. 2022. Environmental Policy and Politics. New York: Routledge, Taylor & Francis Group.

Smith, Kimberly. 2022. “Environmental Policy In the Courts.” In Environmental Policy: New Directions for the Twenty-First Century, eds. Norman J. Vig, Michael E. Kraft, and Barry George Rabe. Thousand Oaks, CA: SAGE. essay, 137–54.