Following on my previous post addressing former Congressman Barney Frank’s new memoir, let’s turn to Frank’s view of how America has both progressed and regressed. From the New York Times book review:
As Mr. Frank notes at the outset and conclusion of his book, the most sweeping and unexpected change from the moment he became interested in politics as a boy in Eisenhower-era America is that prejudice toward gay people has plummeted while skepticism toward government has spiked.
He is as troubled by the lack of trust in government as he is elated by the rise of cultural tolerance.
For some of us, this is a win-win (or would be, if the size, scope and cost of government hadn’t soared since the days of JFK under both Democrats and Republicans).
Americans should be skeptical about activist government, because its actions are so often counter-productive if not in fact destructive. Government should be held to the highest bar to prove that its interventions are necessary and the these essential objectives cannot be obtained other than through the coercive force of the state, which is backed by the treat of punishment.
Sometimes, federal intervention meets this standard, as when Washington (all three branches, executive, legislative and judiciary) intervened to put an end to unconstitutional state Jim Crow laws that institutionalized discrimination against African-Americans. But one of the greatest domestic failures of government has been its attempts to end poverty, more often fostering dependency instead of independence, in no small measure by undermining African-American families.
Still not convinced government action should be limited by strict scrutiny? Check out the amicus brief of the Mattachine Society of Washington, D.C., submitted to the U.S. Supreme Court in Obergefell v. Hodges (the consolidated same-sex marriage cases), and prepared with attorneys at McDermott Will & Emery LLP. It uses many recently acquired original source documents to show the long, tragic history of federal and state government animus toward, and persecution of, gay Americans. (For an overview, you can also read the press release.)
Rising distrust toward government? I’m all for it.
10 Comments for “Frank’s Win-Lose Is a Win-Win.”
posted by Tom Scharbach on
The Mattachine brief is one of several that document and illuminate the “culture of animus” that existed and continues to exist in the United States and the laws that resulted/exist as a result of that culture. I would go so far as to suggest that most, if not all, laws treating gays and lesbians differentially are rooted in that culture, with little or no independent rationale.
My view is that the history of cultural animus toward gays and lesbians is so strong, and so deeply rooted, as to support identifcation of gays and lesbians as a “suspect class” to which the “strict scrutiny” test is appliable under the Equal Protection clause, should the Court elect to do so.
However, I note that marriage discrimination has not withstood the “rational basis” test in most of the lower court reviews, and that the rationale for marriage discrimination is so weak that the Court need not identify gays and lesbians as a “suspect class” or apply “strict scrutiny” in order to find that marriage discrimination runs foul of the Equal Protection clause.
In any event, the Court has never identified gays and lesbians as a “suspect class” or applied “strict scrutiny” to laws discriminating against gays and lesbians, and I will be surprised if the Court does so in the 6th Circuit cases. The Court generally does not decide what it need not decide.
posted by Kosh III on
“But one of the greatest domestic failures of government has been its attempts to end poverty, ”
The War on Poverty was never fought effectively–not because of government overreach or whatever but because the Vietnam War consumed all of the money and time of the government.
Nevertheless, I grew up in one of those Appalachian regions so beset with poverty. There is still much poverty because 1) they consistently vote Republican (against their own interests) and 2) there are no jobs–they all ended up in COMMUNIST China or Mexico or wherever.
posted by Houndentenor on
If we really wanted to fight poverty we’d spend the money on education and job training. We’d especially pour the money into K-6 education guaranteeing small class sizes and testing to make sure things like vision problems, dyslexia and other issues that cause children to fall behind in the early grades (and from which most never catch up) are dealt with. Instead we’d rather build prisons to lock up people for marijuana possession and other nonviolent crimes.
We never really fought a war on poverty. Other countries did and they got the results to show for it. We don’t because there’s a political gain in fighting against such things, especially in exploiting racism involved in the attitudes against such programs, even though most of the beneficiaries would be poor white people.
posted by AG on
The more we spend on public education, and the spending keeps going up, the fewer results are shown in terms of any improved achievement. See the Huffington Post (not a rightwing source): “Decades of Increased State Spending on Public Education Yield Scant Results.”
The problem is (and liberals don’t like to hear this) a union-driven education system that favors employment protection for teachers and bureaucrats over student success.
posted by Francis on
If you imagine “right-to-work” laws are going to solve or even alleviate the problem, you are sorely mistaken. You are also ignoring the antics of those “teach the controversy” scheisskopfen who are currently peddling intellectual perversions to our impressionable youth in the name of promoting “critical thinking” (and that’s when they’re not demonising it. Doublethink?)
posted by Jorge on
Government should be held to the highest bar to prove that its interventions are necessary and the these essential objectives cannot be obtained other than through the coercive force of the state, which is backed by the treat of punishment.
Sometimes, federal intervention meets this standard, as when Washington (all three branches, executive, legislative and judiciary) intervened to put an end to unconstitutional state Jim Crow laws that institutionalized discrimination against African-Americans.
I disagree, on both counts.
If you wait for “the highest bar to prove” that you’re being shot at before you duck for cover or return fire, you will die. In a legislative government, there is no excuse for government not to have the power to solve problems and improve conditions by relying on its best judgment–especially when we exist in competition with many other powerful nations. Applying a “strict scrutiny” standard, the same standard by which the judiciary judges laws that discriminate on the basis of race, would prevent the government from taking almost any action at all. Nor do I believe such a high standard is necessary for most laws so long as they can be repealed just as easily. This allows this country to learn from and correct its mistakes, allowing us to perform more ambitious ventures safely.
As for Jim Crow, I think it’s overly facile to assert that everything the government did to end unconstitutional state discriminatory Jim Crow laws was actually necessary to end them, and everything the government didn’t do was not necessary, no matter how carefully you crafted that sentence. That’s basically a statement that between the 1950s and the 1970s, the government was perfect. It was not. It certainly wasn’t perfect in the 1940s when the Supreme Court tried to say “Separate must be equal.” It wasn’t perfect when the judiciary handed down Brown v. Board of Education and the government followed it up with mandatory integration busing. Former Supreme Court Justice Stevens criticizes the decision for not defining an aggressive and enforceable timeline to “with all deliberate speed” even though the Court clearly determined school segregation laws were constitutional. In later decades mandatory school integration busing met fierce opposition and is generally considered to have been a failure. Can both sides be right?
In 1965 the government passed a Voting Rights Act to end discriminatory practices in registering and allowing blacks to vote. Yet it was not done then. Certain provisions were to expire in a certain number of years (Wikipedia states this actually was a 1970 amendment). Well, in the 21st century some people think these provisions still need to be kept and extended for another 25 years while some people think this country is nothing like it used to be. Nobody thinks they got it right in 1965 when they first wrote the law. And that is how it should be. The people should make the immediate decision based on the best information they have, and correct for any mistakes later.
posted by Houndentenor on
Stevens was right. Brown v Board of Ed was handed down in 1954. My hometown did not desegregate the schools until 1969. It did not involve any forced busing as the black and white districts covered the same area. Even the “white flight” area outside of town included a large rural African American population. There were other towns in the area that remained segregated through the mid-70s. The problem for the courts is that they have no way to enforce their decisions. If the executive and legislative branches refuse to cooperate there’s little they can do except issue further rulings. There was serious pushback against the Brown decision and those too young to remember that era are often not aware of what a struggle, even after the decision, it was to get school districts to integrate.
posted by Tom Scharbach on
With respect to extension of “strict scrutiny” standards (compelling government interest, narrowly tailored, least restrictive means) beyond suspect classes, enumerated rights and fundamental rights, we should look — and look hard — before we leap in that direction.
Do we really want to require the government to meet the “strict scrutiny” test in all cases where citizens are treated differentially by laws of general application? Most of the time, the laws make the distinction between classes for a good reason, if not a compelling reason.
Take driving, for example. Do we really want to force the government to show a compelling reason why 16-year-olds are allowed to drive, but 12-year-olds are not? As opposed to a “rational” reason?
And, if I read Stephen’s post correctly, Stephen is proposing to go even further than that, and require laws to meet the “strict scrutiny” test even when equal protection and differential treatment is not involved.
Again using driving as an example, do we really want to force the government to show a compelling reason why speed limits are imposed? Or laws requiring operable headlights/taillights for cars operated at night? Do we really want to force the government to show a compelling reason why people should have to pass a vision test before being issued a license, or why 20-40 (as opposed, say, to 20-100) is the applicable standard?
As applied, “strict scrutiny” is a very powerful judicial weapon. When a law is challenged, and “strict scrutiny” is applied, the law is presumed to be unconstitutional, and the burden of proof falls upon the government to show that the law is constitutional by meeting the “compelling government interest, narrowly tailored, least restrictive means” tests. Studies show that only about 25-30% of the laws challenged survive application of “strict scrutiny” — hence the adage “strict in theory, fatal in fact”.
Because “strict scrutiny” is so powerful a weapon, it should be used sparingly, it seems to me. Applying it wholesale — either within the boundaries of the Equal Protection Clause or more generally — strikes me as poor public policy.
posted by tom Jefferson 3rd on
The “mistrust” in “big government” might be taken more seriously if it wasn’t almost always the pet project of white supremacists, xenophobes, corporate cysts and folks that want freedom and equality for them, but not the “weird” people.
posted by tom Jefferson 3rd on
When dealing with the government itself; We see strict scrutiny as the standard of review pretty rarely.
It is generally limited to explicit Constitutional right/government discrimination based on a citizens race, color or religion. Every thing else is dumped into intermediate or rational scrutiny.
Sex discrimination against women by the government is generally given an intermediate level of scrutiny. It is less than strict scrutiny, but a tougher standard then rational scrutiny.