Like most people, I do not know exactly all that is contained in the tax-related proposals that have emerged from the House and the Senate, and I'm not sure what will be in the tax legislation that eventually is enacted and signed into law -- if anything is. (Given that things so rarely get "signed into law" these days, it's hard for me to be confident that anything will be.) These two proposals contain some specifics that strike me as good policy and some that do not. The process that is producing the proposals and that will (perhaps) eventually produce the legislation is, in my view, impossible to admire, but -- again -- I'm afraid it's been a while since our national legislature did much legislating.
My social-media feeds and the commentary I'm reading -- particularly from public Catholics, including bishops -- are largely skeptical, critical, or worse about these proposals. My sense is that some skepticism and criticism are warranted, but also that some of the denunciations are exaggerated, underinformed, and/or overwrought. We'll see.
What, if anything, do "Catholic Legal Theory" or the Church's social-teaching tradition have to say about all this? Judging, again, from my social-media streams, many are confident that the answer is "a lot of very specific things." I don't think that's right. A few thoughts . . .
First, although it's not a distinctively "Catholic" position, it is a position that Catholics and everyone else should endorse that, generally speaking, that law-making should be characterized by "regular order", due consideration, deliberation, and transparency. At present, our federal law-making is not.
Next, I feel confident that the Gospel and the social-teaching tradition do not prescribe any particular mechanisms for political communities' important task of raising the funds necessary to do what political communities ought to do. As I see it, a political community's taxation policies should be seen as, and should function as, a mechanism for that task, and (pretty much) only that task.
Third, this mechanism should function well, not poorly. That is, it should efficiently, justly, and intelligently raise the necessary funds, in ways that do not create counter-productive incentives and wasteful losses, that are constrained by law and due-process norms, and that impose proportionate burdens across the board.
Fourth, political communities should be willing, in normal circumstances (i.e., not war), raise as much money (through taxation and other means) as they want to spend, and should not spend more than they are willing to raise.
With these four points in mind, I'm inclined to think that the taxation mechanism should not be used for policy purposes other than raising funds, although I realize that, in our world, it is used for other purposes (e.g., encouraging and subsidizing home ownership), even though I wish it were not. I'd like to see those other purposes pursued in more transparent and direct ways.
My colleague, Mark Movsesian, has done a short and helpful video for the Federalist Society explaining the basic background and issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, on for oral argument tomorrow at the Supreme Court.
Friday, December 1, 2017
Mark Rienzi and Stephanie Barclay have posted their forthcoming paper, "Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions," on SSRN. Here is the abstract:
In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.
Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.
The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.
Thursday, November 30, 2017
An article in the Nation magazine, by William Greider, discusses on an "autopsy" report on "What Killed the Democratic Party?" The conclusion is that the party left behind working people and unions (and minorities as well) in order to chase big donors by giving them more pro-business policies (and, one might add, cultural progressivism, but the Nation would never see that as part of the disconnect). Sanders, of course, was the messenger of the revolt, and:
Many young people are even to the left of Bernie. A YouGov poll in January 2016 found that 43 percent of people under the age of 30 had a favorable opinion of socialism, versus just 26 percent unfavorable. A recent poll of 18-to-29-year-olds by Harvard University found that a majority of the respondents did not “support capitalism.” This was too much for Representative Nancy Pelosi, the House minority leader. At a postelection town hall, she bolted out of her seat to declare: “I have to say, we’re capitalists—that’s just the way it is.” Maybe it’s time for the Democrats to start a conversation with these young lefties.
People shouldn't forget the line (whoever said it) that anyone who's not a socialist at 20 has no heart and anyone who is a socialist at 30 has no brain. But with that said, the great recession, and the long-term instability in the economy and the job market caused by technological revolution, may well make this young generation more hospitable to government intervention for the long term, not just for the moment.
But why does it have to be "socialism, not capitalism"? The New Deal was understood, and won long-lasting support in part because it was understood, as a means not to replace capitalism, but to preserve it by curbing its excesses--excesses that threatened to lead to destructive unrest. Just how much intervention that requires is, of course, a matter of debate and practical judgment. Maybe the meltdown of 2008 showed the need for a lot more regulation in order in order to restore the fair working of a basic market-based economy. (That conclusion seems consistent, BTW, with the Catholic social tradition's affirmation of the need for a "strong juridical framework" to regulate markets--although I agree that CST principles also could support more limited conceptions of the "strong juridical framework.")
In any event, the argument about saving capitalism and markets still, today, seems to me to be more effective--reaching a far wider range of people--than the argument pining for socialism as an ideal. (To say nothing of remembering all the problems with how socialism has actually worked.)
Wednesday, November 29, 2017
A few days ago, thanks to the good people at the Lumen Christi Institute at the University of Chicago, I was able to participate in a panel/conversation about last year's Trinity Lutheran case with my friends Andy Koppelman and Dan Rodriguez. The video of the event is available here. (As you'll see, the video-producers substituted some bald guy for me but the words and bad jokes were mine.)
Here's a link to the video of the keynote lecture for the second leg of our Tradition Project, given by Sir Roger Scruton on November 2: "Tradition, Culture, and Citizenship."
Sunday, November 26, 2017
Today is the Solemnity of Christ the King. In my experience, preachers in Catholic parishes don't know quite what to do with this Feast. Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should).
And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion. This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."
So . . . Here is a little Solemnity-appropriate reading: Pope Pius XI's Quas Primas. Great stuff. "Viva Cristo Rey!"
UPDATE: More, on Miguel Pro, S.J., here.
