Wednesday, December 20, 2017
I just had the chance to read EDPA Judge Beetlestone's opinion explaining the grant of preliminary injunctive relief to Pennsylvania in the Commonwealth's challenge to the overdue conscience protections afforded employers by Interim Final Regulations implementing the ACA and the RFRA. There are problems from beginning to end. But for now I'll focus on a particularly striking example of motivated reasoning in the opinion.
Students of judicial opinions are familiar with the concept of motivated reasoning. The example here, a type known as "biased assimilation," might perhaps even more accurately be described as a motivated _lack of_ reasoning. This is the "tendency to interpret information in a way that supports a desired conclusion. Supporting facts may seem overwhelmingly strong and negating facts may seem automatically weak."
To support a legal conclusion about the harm from unintended pregnancies that will result in the absence of a preliminary injunction, Judge Beetlestone credited an incredible statistic that can be shown to be false for anyone with some curiosity, an internet connection, and the ability to read footnotes.
Here's the sentence that sent me looking: "Eighty five percent of women who do not use any form of contraceptive services and who do not want to become pregnant, become pregnant in one year." Can that really be true? At a minimum, mustn't there be a population constraint of some sort, such as "sexually active women between ages __ and __"? As written, the sentence just can't be right.
The cited source is p. 106 of the Institute of Medicine Report. Sure enough, the table at that page does appear to support Judge Beetlestone's proposition. Table 5.3 is titled "Percentage of U.S. Women Experiencing an Unintended Pregnancy During First Year of Typical Use and Typical Year of Perfect Use, by Contraceptive Method." The first "method" is none, and this carries an 85% chance of "experiencing unintended pregnancy in first year" of both "typical use" and "perfect use."
But isn't there something strange going on here? The table is about "unintended pregnancies" and "contraceptive method," but the statistic is about the use of no method at all. Unfortunately, the citation in the IoM Report is not particularly helpful. It just says: "SOURCE: © 2007 by Contraceptive Technology Communications Reprinted by permission of Ardent Media, Inc." But Google steps in where the IoM authors fell short. I pasted the source material into a google search box and went to the first hit: http://www.contraceptivetechnology.org/. From there I clicked on "The Book," which brought me to a drop-down menu. The first choice was "Take a Peek > Contraceptive Efficacy." That sounded like what I was looking for, so I did take a peek. And I found a table very similar to the one in the IoM Report.
Among other things, this version has footnotes not included in the IoM version. The most important is footnote 4, which is the footnote to the "None" "method" yielding an unintended pregnancy rate of 85% in a year. It turns out that the number is pretty much the opposite of what Judge Beetlestone cited it for. Here's what the footnote says:
The percentages becoming pregnant in columns (2) and (3) are based on data from populations where contraception is not used and from women who cease using contraception in order to become pregnant. Among such populations, about 89% become pregnant within 1 year. This estimate was lowered slightly (to 85%) to represent the percentage who would become pregnant within 1 year among women now relying on reversible methods of contraception if they abandoned contraception altogether. (emphasis added)
The 85% figure is not about unintended pregnancies. The population includes "women who cease using contraception in order to become pregnant."
There are still a lot of unanswered questions about the population at issue (age range, sexual activity, and so on). But there's no need to go any further at this point. The district court's statistic was facially incredible, and a little digging would have easily uncovered the mistake.
It's just one example, to be sure, and just about one part of the opinion. But it has the virtue of being an unarguable error. The best explanation is biased assimilation.
Tuesday, December 19, 2017
There are tens of millions of American citizens who are not natural born, or whose status as natural born is a matter of some dispute. A naturalized citizen like Jennifer Granholm or Arnold Schwarzenegger is plainly ineligible for the presidency, for example, while someone born abroad to an American parent, like Ted Cruz, may or may not be eligible depending on the legal meaning of "natural born." With so many people excluded or placed under a shadow by the "natural born" requirement, there is no particular partisan valence to an amendment that eliminates it. But that kind of valence is inescapable once a proposed amendment appears instrumental to a particular person's candidacy.
One reason to move quickly on eliminating the "natural born" presidential eligibility requirement is to get it done before the amendment can be tied to a particular potential candidate. Examples of how partisan politics can distort perceptions are easy to come by. While the "birther" controversy about Barack Obama was brewing, for example, some were suspicious of attempts to eliminate the "natural born" requirement. Similarly, controversies about Republicans like John McCain and Ted Cruz led to (sometimes justified) accusations of motivated reasoning in dismissing concerns about "natural born" status.
Another reason to move quickly is that the idea is an obvious political winner with virtually no political downside. Politicians whose stances on illegal immigration have led to charges of anti-immigrant bias should be tripping over themselves to get out in front in support of an amendment to remove the last vestige of citizenship inequality. For them, the problem with illegal immigration is that it is illegal. People who follow the rules to become naturalized citizens are in a totally different category from people who haven't followed the rules and have stayed in the shadows as a consequence. Throwing symbolic support behind those who follow the rules is a way of underscoring this aspect of their viewpoint. That the support is largely symbolic does not make it insignificant. Symbolism matters.
Timing also matters. If an amendment to eliminate the "natural born" requirement were to become associated with Democrats before Republicans, that would probably guarantee that it goes nowhere in the present political climate. For too many, it would be viewed as just another mushy Democrat play for the immigrant vote. Interestingly, though, the partisan taint would probably not run in the other direction. If Republicans were to be the first champions of eliminating the "natural born" requirement, it could be attacked as politically opportunistic, to be sure. But the move could also be viewed as clever and perhaps even refreshing among the cynically minded, rather than as soft or devious. The merits of eliminating the "natural born" requirement would be sufficiently attractive to Democrats precisely on the merits that Republican championship of the amendment would not prevent them from also supporting it.
To get the ball rolling, it will be necessary to find the right political champions. Fortunately, that should not be difficult. There have been so many past failures to amend the natural born citizen requirement that the ranks of past proponents provide a natural place to start. And studying the reasons for those failures (apart from the sheer difficulty of the amendment process) can supply some starting insights about what to do differently.
In the back page entry of the January 2018 issue of First Things (available here), Matthew Schmitz argues that Rev. Richard John Neuhaus has been proven right. In a 1996 symposium issue of the magazine focusing on the judicial usurpation of democratic government (here and here), Neuhaus warned of “a growing alienation of millions of Americans from a government they do not recognize as theirs.” That, of course, sounds a lot like the Trump voter of 2016 (a connection that Schmitz does not expressly make) – alienated and doubting the moral legitimacy of the American regime under which he or she lives.
The piece is worth reading. Schmitz cites a recent study that shows that rising numbers of young Americans would welcome a strongman who does not have to "bother with parliament and elections" and who even would support military rule. Surely these statistics would seem to indicate that Neuhaus was, indeed, correct, even if this reaction among the electorate is prompted less by judicial usurpation (as reflected, preeminently, as Neuhaus noted, in the Supreme Court's creation of the abortion license, and more recently in the judicial redefinition of marriage) than it is by the fecklessness and inattention of the political branches.
I would add, however, that those who are abandoning what had been regarded as constituent elements of democratic society (e.g. rights to a free press, free speech, religious freedom, and conscience) are not exclusively or even mostly on the Right (if in fact Trump voters can collectively and meaningfully be described as being on “the Right”). Moreover, the people who question these commitments don't believe that they are abandoning democracy. The students and others protesting at Yale, Missouri, Berkeley and elsewhere don't believe that they are undermining democracy but fulfilling it.
Schmitz quotes Notre Dame's Scott Moore as concluding that Neuhaus was correct to see "the inadequacy of purely procedural commitments for ensuring the legitimacy of government." (This is something about which I have argued at some length. See here). Neuhaus knew, together with Pope John Paul II, that when "the procedural rules of democracy" become "untethered from the substantive truths of democracy" the result is "the end of democracy." But the procedural rules of liberal democracy at least afford the participants within it the opportunity to find their way back to the moral premises upon which all legitimate government is founded. When even these procedural rules are abandoned -- and worse still, abandoned in the name of democracy -- the groundwork for totalitarian rule is truly laid.
Sunday, December 17, 2017
THE CATHOLIC LAWYERS GUILD OF CHICAGO
cordially invites you, your family and other guests to attend its annual
2018 DAY OF REFLECTION
Faith: The Dynamism for Justice and Reconciliation
DATE & TIME:
Saturday, February 24, 2018
8:30am to 4:00pm
LOCATION:
Archbishop Quigley Center
103 E. Chestnut St., Chicago
Fr. Joseph Daoust, S.J., is the superior of the Jesuit community at the Holy Rosary Mission at the Pine Ridge Indian Reservation in Pine Ridge, South Dakota. Fr. Daoust is also the former president of the Jesuit School of Theology at Berkley and former law professor at University of Detroit Mercy College of Law.
More information here.
Friday, December 15, 2017
The constitutional strike-through amendment that I'd like to see adopted as soon as possible is one offered by Congress William Erigena ("Irish-Born") Robinson in 1868. The immediate political context for Robinson was perceived second-class citizenship for naturalized American citizens of Irish descent who had fought for the Union. Robinson's proposed amendment would have removed the "natural born Citizen" requirement for presidential eligibility from the Constitution.
On May 18, 1868, Rep. Robinson introduced a resolution proposing as a constitutional amendment:
That article two, section one, subdivision four, be amended so as to read:
No person except a Citizen of the United States shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.
Assuming that Robinson would have kept the capitalizations of the original (unclear from the Congressional Globe version), this proposed amendment would not have added any language to the Constitution, but would have taken out the words "natural born" and the by-then-obsolete language authorizing non-natural-born citizens who were citizens at the time of ratification. In red-line form, the amendment would be:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
Eligibility to run for President was not the most pressing issue for Irish-American naturalized citizens at the time. The broader context was a form of second-class citizenship abroad. Under the doctrine of perpetual allegiance, Britain was jailing for disloyalty Irish-American naturalized citizens found within Canada, Ireland, and Britain, and the United States government had to be pressed hard to guarantee that naturalized citizens traveling abroad received the same protections as natural born citizens.
Although imprisonment abroad was more practically pressing, the ineligibility of Irish-American naturalized citizens for the office of President was of sufficient significance that Rep. Robinson introduced his amendment.
Coming off a bloody war in which tens of thousands of Irish-born American citizens were killed or wounded, and in which a dozen Irish-born Americans were Union generals, the eligibility exclusion was a reminder that not all citizens were created as equal citizens.
Seen in this light, the motivations for Robinson's amendment are similar to those behind the Twenty-Sixth Amendment, adopted a little over a century later. That amendment guaranteed the right to vote for eighteen year-olds. One of the most prominent arguments for that amendment, in the shadow cast by the Vietnam War, was that those who are old enough to die fighting for the country should not be excluded by their relative youth from being full voting members of the nation.
In future posts, I'll discuss the merits of a renewed attempt now at the "Irish-Born" Robinson Amendment. For now, though, I'll close with a connection to Catholic thought. William Erigena Robinson's middle name was of the same derivation as the name of John Scottus Eriugena. That earlier Irish-born man was "generally recognized to be both the outstanding philosopher (in terms of originality) of the Carolingian era and of the whole period of Latin philosophy stretching from Boethius to Anselm." Not a bad namesake!
