New York Times
Sunday Magazine
January 15, 2006
What Is a Living Wage?
By JON GERTNER
If It Happened in Baltimore, Maybe It Can Happen Anywhere
For a few weeks in the summer of 1995, Jen Kern spent her days at a table in the Library of Congress in Washington, poring over the fine print of state constitutions from around the country. This was, at the time, a somewhat-eccentric strategy to fight poverty in America. Kern was not a high-powered lawyer or politician; she was 25 and held a low-paying, policy-related job at Acorn, the national community organization. Yet to understand why living-wage campaigns matter - where they began, what they mean, and why they inspire such passion and hope - it helps to consider what Kern was doing years ago in the library, reading obscure legislation from states like Missouri and New Mexico.
A few months earlier, she and her colleagues at Acorn witnessed an energetic grass-roots campaign in Baltimore, led by a coalition of church groups and labor unions. Workers in some of Baltimore's homeless shelters and soup kitchens had noticed something new and troubling about many of the visitors coming in for meals and shelter: they happened to have full-time jobs. In response, local religious leaders successfully persuaded the City Council to raise the base pay for city contract workers to $6.10 an hour from $4.25, the federal minimum at the time. The Baltimore campaign was ostensibly about money. But to those who thought about it more deeply, it was about the force of particular moral propositions: first, that work should be rewarded, and second, that no one who works full time should have to live in poverty.
So Kern and another colleague were dispatched to find out if what happened in Baltimore could be tried - and expanded - elsewhere. As she plowed through documents, Kern was unsure whether to look for a particular law or the absence of one. Really, what she was trying to do was compile a list of places in the U.S. where citizens or officials could legally mount campaigns to raise the minimum wage above the federal standard. In other words, she needed to know if anything stood in the way, like a state regulation or court decision. What she discovered was that in many states a law more ambitious than Baltimore's - one that didn't apply to only city contractors but to all local businesses - seemed permissible.
Whether a wage campaign was winnable turned out to be a more complicated matter. In the late 1990's, Kern helped Acorn in a series of attempts to raise the minimum wage in Denver, Houston and Missouri. They all failed. "It wasn't even close," she says. In the past few years, though, as the federal minimum wage has remained fixed at $5.15 and the cost of living (specifically housing) has risen drastically in many regions, similar campaigns have produced so many victories (currently, 134) that Kern speaks collectively of "a widespread living-wage movement."
Santa Fe has been one of the movement's crowning achievements. This month the city's minimum wage rose to $9.50 an hour, the highest rate in the United States. But other recent victories include San Francisco in 2003 and Nevada in 2004. And if a ending bill in Chicago is any indication, the battles over wage laws will soon evolve into campaigns to force large, private-sector businesses like Wal-Mart to provide not only higher wages but also more money for employee health care.
Read on ... click here.
_______________
mp
Sunday, January 15, 2006
Is a Living Wage a Moral Issue? What Does "Catholic Legal Theory" Say? What Does the Economic Data Really Show?
The Pressure to Cover
Yale law prof Kenji Yoshino's work on "covering" has found an impressive new platform in today's New York Times magazine. If you haven't read the basic thesis, here's a taste from the opening:
When I began teaching at Yale Law School in 1998, a friend spoke to me frankly. "You'll have a better chance at tenure," he said, "if you're a homosexual professional than if you're a professional homosexual." Out of the closet for six years at the time, I knew what he meant. To be a "homosexual professional" was to be a professor of constitutional law who "happened" to be gay. To be a "professional homosexual" was to be a gay professor who made gay rights his work. Others echoed the sentiment in less elegant formulations. Be gay, my world seemed to say. Be openly gay, if you want. But don't flaunt.
I didn't experience the advice as antigay. . . . I took my colleague's words as generic counsel to leave my personal life at home. I could see that research related to one's identity - referred to in the academy as "mesearch" - could raise legitimate questions about scholarly objectivity.
I also saw others playing down their outsider identities to blend into the mainstream. Female colleagues confided that they would avoid references to their children at work, lest they be seen as mothers first and scholars second. Conservative students asked for advice about how open they could be about their politics without suffering repercussions at some imagined future confirmation hearing. A religious student said he feared coming out as a believer, as he thought his intellect would be placed on a 25 percent discount. Many of us, it seemed, had to work our identities as well as our jobs.
Substitute a few words, and this could serve as an introductory essay for the religious lawyering movement. For our purposes, the question will be whether this project would create space within the academy for religion only to the extent that it is tied to claims of personal identity and non-mainstream paths of self-creation, or would it also make room for religion as a set of truth claims? In any event, it's worth reading.
Rob
Saturday, January 14, 2006
"Alito and the Catholics"
First Things editor Joseph Bottum has this piece, "Alito and the Catholics: The Decline of an Institution and the Rise of its Ideas," in the Daily Standard. In the essay, he explores the possibility of a "connection between the rising rhetorical influence of Catholicism and the declining political influence of the Church." And, he raises the
interesting question whether the leading evangelicals would grant Catholicism its current role if Catholics still had the kind of ethnic-voter unity they used to show. We may be seeing the emergence of one of those uniquely American compromises: A Catholic philosophical vocabulary is allowed to express a moral seriousness the nation needs, on the guarantee that the Catholic Church itself will not much matter politically.
The Catholic clergy's particular sins, especially against children, produced a shame that is deep and well-deserved, and through their class-action suits, the victims are about to strip away the endowment left by five generations of ethnic believers. The bricks-and-mortar Catholicism of the last hundred years--the intense desire of all those hard-working immigrants to build a visible monument of parishes, schools, hospitals, and orphanages--may well have disappeared by the time the total damage is calculated.
He also discusses the recent New York Times op-ed by David Brooks, "Losing Alitos":
"By the late 1960s," Brooks noted,
cultural politics replaced New Deal politics, and liberal Democrats did their best to repel Northern white ethnic voters. Big-city liberals launched crusades against police brutality, portraying working-class cops as thuggish storm troopers for the establishment. In the media, educated liberals portrayed urban ethnics as uncultured, uneducated Archie Bunkers. The liberals were doves; the ethnics were hawks. . . . The liberals thought an unjust society caused poverty; the ethnics believed in working their way out of poverty.
Friday, January 13, 2006
"No soul left behind"
I took advantage of Rick’s recommendation and read John Breen’s and Michael Scaperlanda’s new article. It made me do a lot of thinking and praying about those who enter public life, particularly those called to legislative, administrative, and judicial responsibilities. After reading John’s and Michael’s draft, I concentrated on a couple of phrases: “freedom of the autonomous self” as modified by a word the authors sometimes used (“exaggeration”) and the “disorder of liberty run amok.” I wondered if I had witnessed any of this during the past week watching segments of those asking questions during Judge Alito’s confirmation hearings. I have reached one conclusion regarding the role of pastors and bishops in my reflection: there is a great deal of work to be done teaching those members of the Catholic community, or who say they are a part of it, who turn to the exaggerated freedom of the autonomous self and promote a world where order and “liberty run amok” seem compatible. A great deal could be said here about legal reasoning and the rule of law, but I shall defer until my presentation at the St. John’s symposium in March. Here I shall focus on the pastoral duties of those with teaching responsibility in the Church. There is a lot of work to do if this past week’s broadcasting of the Alito hearings is a reliable gauge. I may be in a minority, but I saw some prominent Catholics conduct themselves in often questionable ways. I wonder about their souls. Will the human law insulate them from the divine law? I wonder some more. But, if there is any legitimate concern emerging from my reaction, it has a clear solution: the teaching of the Church and the duty to see that it is properly understood by its members, the People of God. I was struck with a peculiar coincidence as I watched a group of people, many professing to be Catholic, who legislated a law a few years ago commonly known as “No Child Left Behind.” From what I witnessed on the web video streaming of the Judiciary Committee proceedings, I saw several souls responsible for the promulgation of that law putting into question their own future… and I thought, no soul should be left behind, either. Pastors and bishops who are in charge of the care of these souls have a lot of work ahead of them if no soul is to be left behind. RJA sj
Defending the Culture of Life (and Beating Rush Hour)
The ongoing battle over our society's definition of personhood has expanded to your local courtroom legislative chamber traffic lane. (HT: CT)
Rob
Valuing Community in a Cost-Benefit World
Elizabeth Brown continues our conversation regarding New Orleans' redevelopment plan in light of subsidiarity; she questions my skepticism of the utility of a straight cost-benefit analysis when it comes to the redevelopment of the Ninth Ward given that such analysis is legally required:
Since they are required to undertake cost-benefit analyses, how should FEMA or the state and local officials calculate the “cultural cost” of the Ninth Ward? It was originally a cypress swamp and was not settled until after the Civil War. It was the last part of New Orleans that was settled. Even in 1950, only half of the Lower Ninth Ward was developed. The ward grew until 1965 when it was flooded by Hurricane Betsy. Many residents and businesses left after that hurricane and the area began to decline. Given that the Ninth Ward had been in decline since 1965, should FEMA and state and local officials attempt to take into account the fact that its cultural contributions might have been waning? Given that most of the residents of the Ninth Ward are poor or lower middle class and lacked flood insurance, the majority of residents might never return because they cannot afford to rebuild. Individuals undertake cost-benefit analyses too. If barely half the residents return, how valuable a community will it be to New Orleans? Will it be worth the billions and billions of dollars that it will cost to make the levies protecting it strong enough to withstand a Level 5 Hurricane?
How should FEMA and state and local officials account for the fact that, if brought out, most of the residents of the Ninth Ward probably might simply move to other parts of New Orleans and will enrich their new communities and continue to enrich the city itself? The endowment effect certainly causes people to value what they have (or had) more than it might really be worth. This cognitive bias certainly would support policies like saving the Ninth Ward. Such biases, if they exist, need to recognized and accounted for when undertaking any cost-benefit analysis. New Orleans as a whole might be better off if the former residents of the Ninth Ward were no longer isolated in the Ninth Ward but spread to other parts of the city to enrich other communities.
Again, these are good contributions to any evaluation of the redevelopment plan. A couple of points bear emphasizing: first, the difficulty in assigning a value to the cultural significance of the Ninth Ward underscores the appeal of empowering members of that community to assign value through their decisions whether or not to return and rebuild. I'm not against giving government checks to residents; rather, I'm against giving them government checks and categorically forbidding them from using the check to rebuild in their current neighborhood. Second, New Orleans might be better off if Ninth Ward residents were spread around the city to enrich other communities, but the top-down dispersal of residents is highly problematic. Any such redistribution of social capital should occur bottom-up, through residents' own decision-making.
When the city of Chicago started tearing down public housing projects and pushing residents into other areas of the city and suburbs, I conducted housing-rights seminars for the residents. Many were terrified and/or crestfallen at the prospect of leaving the only community they had known; others couldn't wait to get out. So I'm not suggesting a blanket characterization of how Ninth Ward residents value the preservation of their community. It might be that Ninth Ward residents can't wait to get out of an economically depressed area. Subsidiarity, at least as I interpret it, would want residents to decide for themselves, and the New Orleans proposal allows them to do so, albeit imperfectly. Perhaps the government checks should be reduced for residents who decide to return to the Ninth Ward, shifting a portion (but certainly not all) of the levees' cost to them. There is nothing wrong with seeking to internalize the cost of decision-making in our efforts to empower local decision-makers. But we should be careful that we don't start making the decisions for them.
Rob
John Paul’s debt to Marxism
The Tablet
14/01/2006
John Paul’s debt to Marxism
Jonathan Luxmoore and Jolanta Babiuch
The late Pope is often portrayed as an enemy of the extreme Left, but an unpublished early work, Catholic Social Ethics, reveals that he was much less dismissive of the ideology prevalent in his native Poland than has recently been suggested
When a Polish supplementary tribunal for John Paul II’s beatification began work in Krakow this November, a key task was to examine the late Pope’s pre-papal writings, for the light they threw on his firmness of faith and loyalty to Catholic doctrine.
[To read this interesting piece, click here.]
_______________
mp
Defining "cruel and unusual"
Chronicle of Higher Education
Friday, January 13, 2006
A glance at the current issue of Policy Review:
Defining "cruel and unusual"
The Supreme Court's torturous interpretation of the Eighth Amendment, which bans "cruel and unusual punishment," is an illogical "cop-out" that ignores the amendment's text, writes Benjamin Wittes, an editorial writer for The Washington Post who specializes in legal affairs.
The court's understanding of the amendment, established in a 1958 decision, holds that a punishment is excessive only if it defies "the evolving standards of decency that mark the progress of a maturing society." That view dodges any principled stance, says Mr. Wittes, and invites subjective court rulings by leaving it to justices to gauge America's cultural development. The precedent, "quite simply, suffers from a birth defect," he writes.
Justice Antonin Scalia has voiced the loudest dissent to the "evolving standards" stance, arguing that the amendment should ban only the punitive acts that it outlawed upon its adoption, such as drawing and quartering. He reasons that the 1958 precedent fails to protect the public from future, more brutal generations. Mr. Wittes finds that alternative unreasonable, though, and says it is the type of principled stance that, unfortunately, "gives principle itself a bad name."
"Construing 'cruel and unusual punishments' as strictly as Scalia does is a little like construing the right to keep and bear arms as limited to such 18th-century firearms as muskets," he writes.
Mr. Wittes says the Supreme Court can avoid those jurisprudential black holes by defining "cruel and unusual." Punishment can be a successful deterrent, he writes, but it becomes cruel once it crosses the threshold of senselessness. To avoid arbitrariness, he continues, the court should consider a punishment unusual if it is already illegal in 38 states -- the number required to amend the Constitution.
That interpretation would be more adequate than the court's current precedent, says Mr. Wittes. And while the risks of "judicial impressionism" under this framework are not trivial, he says, "neither are they prohibitive."
The article, "What Is 'Cruel and Unusual'?," is available here.
--Jason M. Breslow
_______________
mp
Thursday, January 12, 2006
The Place of Families
Larry Solum highlights, in his "Legal Theory Bookworm" feature, the new book by Linda McClain, "The Place of Families: Fostering Equality, Capacity, and Responsibility." Here is a description:
In this bold new book, Linda McClain offers a liberal and feminist theory of the relationships between family life and politics--a topic dominated by conservative thinkers. McClain agrees that stable family lives are vital to forming persons into capable, responsible, self-governing citizens. But what are the public values at stake when we think about families, and what sorts of families should government recognize and promote?
Arguing that family life helps create the virtues and character required for citizenship, McClain shows that the connection between family self-government and democratic self-government does not require the deep-laid gender inequality that has historically accompanied it. Examining controversial issues in family law and policy--among them, the governmental promotion of heterosexual marriage and the denial of marriage to same-sex couples, the regulation of family life through welfare policy, and constitutional rights to reproductive freedom--McClain argues for a political theory of the family that embraces equality, defends rights as facilitating responsibility, and supports families in ways that respect men's and women's capacities for self-government.
(Here, by the way, is an interesting debate that McClain had, with Mary Shanley, as part of the Legal Affairs "Debate Club," about whether "the state should abolish marriage.")
McClain believes, among other things that the "government should give more robust economic and social supports to families, reflecting society's interest in helping children grow into capable, responsible members of society and good citizens."
Interestingly, the late Pope seems to have agreed:
"[T]he State cannot and must not take away from families the functions that they can just as well perform on their own or in free associations; instead it must positively favor and encourage as far as possible responsible initiative by families. In the conviction that the good of the family is an indispensable and essential value of the civil community, the public authorities must do everything possible to ensure that families have all those aids- economic, social, educational, political and cultural assistance-that they need in order to face all their responsibilities in a human way."
McClain's book gathers together and integrates interesting work she has been doing, over several years, on the role of civil-society institutions in constituting both autonomous persons and good citizens. Here, for example, is a quote from an earlier article, "The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality," 76 Fordham L. Rev. 1617 (2001):
[G]overnment should pursue a formative project to foster the capacities for self-government, both in the sense of democratic self-government and personal self-government, and that the institutions of civil society also have a proper role to play in fostering such capacities. As a matter of constitutional interpretation, I believe that our constitutional order presupposes that citizens possess the capacities for democratic and personal self-government; its scheme of basic rights and liberties serves to foster and protect the exercise of such capacities. The Constitution permits and depends upon, if not authorizes or even requires, a formative project, even as it places certain limits upon its pursuit.
tend, I think, to take the latter route.
In any event, McClain's work strikes me as important, and worth engaging.
Or, we could say (something like) "families are -- in addition to being communities of persons united by love -- important mediating institutions that, like other such institutions play a crucial checking function on the state and its ambitions, and they provide ideological competition for the state and majoritarian values." (We could also say other things, I realize). Put differently, we could emphasize (in McClain's words) the "formative project" that the Constitution purportedly "permits and depends upon, if not authorizes or even requires"; or, we could instead emphasize the "constraints" that the Constitution (and political theory, and religious freedom, and morality) might place on any such project. I
It seems to me that we can go (at least) two ways, after we observe and agree that families are (among other things) institutions that, like mediating associations of other kinds, help to form persons and to construct the scaffolding of civil society (for more thoughts of mine on this, see, e.g., these two articles): We can say, on the one hand, "yes, families are important, and they do important work in which the public authority has an interest, and so they can and should be regulated in order to ensure that they are constructed and ordered in ways that reflect our public values and that they produce the 'outputs' -- i.e., autonomous, other-regarding persons -- that we want."
"Never Get Out'a the Boat"
Take a look at this essay by MOJ-ers John Breen and Michael Scaperlanda, "Never Get Out'a the Boat": Stenberg v. Carhart and the Future of American Law.
In this short essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law.
The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to "terminate." The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, represents civilization. This contrasts with the jungle, which represents the absence of the moral order that makes social life possible. This absence allows for the exercise of freedom without judgment. Thus, in one scene, the viewer is warned that you should "never get out'a the boat" unless you are prepared to "go all the way."
In the essay, we argue that in Stenberg v.Carhart the Supreme Court "got out'a the boat" and went "all the way." Stenberg held that a state may not ban the procedure commonly known as partial birth abortion. Stated more bluntly, the Court held that the protection of the law does not extend to a child in the process of being born. Incredibly, the humanity of the victim of this procedure is never addressed in the Court's opinion. Here the Stenberg majority differs significantly from the Court in Roe v. Wade, which appeared to struggle with "the difficult question of when life begins." In Stenberg, the Court knows that the life at issue has already begun. Indeed, it is in the process of being born. By licensing the brutal killing of what is undeniably an innocent human being, the Court turns its back on civilization and marches proudly into the jungle.
Plainly, law is an essential component of authentic civilization. Law as such must embody the principle of equal concern and respect for every human being and the principle of ordered liberty. The essay provides examples of how, since the adoption of the 14th Amendment, these principles have been at the heart of American constitutional law. We argue that, with Stenberg, the Court has abandoned the concept of ordered liberty in favor of the concept of liberty as license. Moreover, in adopting what it believes is a maximal conception of human freedom, the Court has undermined the very notion of equal concern and respect. Here we contrast the abortion license with the Court's treatment of the right to free speech as well as its decisions concerning capital punishment.
We conclude the piece by arguing that if the Court truly believes that the benefits of constitutional personhood do not extend to a child in the process of being born, then it is incumbent on the Court to explain why this is so. Indeed, the rule of law demands that the Court explain its now unspoken criteria for constitutional personhood. The piece is especially timely given that three decisions striking down the recent federal ban on partial birth abortion are now making their way to the Supreme Court. Thus, the Court is once again faced with the choice of embracing authentic civilization or promoting barbarism under the appearance of law.
This is powerful stuff. I hope that the piece gets a wide reading, and an appropriate placement for publication. Law review editors: Keep an eye out for it!
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
