Espinoza and state and local budgets

Espinoza v. Montana Department of Revenue has overturned Blaine Amendments in 37 states.  These state constitutional amendments prohibited funding of religious schools with public funds. They were part of opposition to Catholic immigration, which was seen as bringing with it opposition to democratic forms of government.

This opposition was not entirely bigotry, as papal encyclical Mirare Vos did, in fact, condemn democracy, particularly in Italy where Garibaldi was successfully revolting against papal control of the national government. With the Lateran Treaty, the Church ceded the point, although until the Second Vatican Council, freedom of religion was not recognized by the Church itself.

Chief Justice Roberts and the Court returned the favor in Espinoza. The Court ruled that the Blaine Amendments violated the free exercise of religion of parochial schools and rejected the Establishment Clause objecting to providing such funding.

This decision does not mandate funding of Catholic schools. Aside from the now defunct religious justification for such funding, doing so without increasing state and local taxes would result in lower per pupil funding for the current public school system, which unlike parochial schools, cannot charge tuition. Publicly funded parochial schools would, in fact, not be allowed to charge tuition if they received public funds, so without increased taxes, all students would be worse off.

Since the sharp drop in female vocations, sisters and nuns are no longer available to provide cheap labor for low cost parish schools. Catholic schools in poor neighborhoods have already shifted to the Charter School system or have closed unless the students have received public scholarships to attend (which was the question in Espinoza).

Most remaining parish schools now serve wealthier parishes and families. Public funding would allow parish schools to reopen in urban neighborhoods, particularly those in immigrant neighborhoods. This would solve equity questions within the Church, as well as in society as a whole.

For the sake of equity, increased revenue to fund parochial schools must come from the economic class who currently pay private school tuition and provide donor support. More progressive income and property tax rates would be required to fund the migration of students to the parochial system and the ending of tuition in higher income parochial schools. An employer paid subtraction value added tax, which effectively redistributes income within companies rather than in society, is another possible funding source inside of tax reform.

Aside from tax questions, opposition to organized labor in Catholic schools would have to end. Union representation of parochial schools is largely unheard of. The National Education Association support of Roe v. Wade is not the only reason for this opposition (in truth, bishops don't like dealing with unions), but it is the most commonly voiced reason to oppose a union shop.

The reality is that legal abortion is not a legislative issue. Abortion simply cannot be banned by legislative action. As I explained in a separate essay, Right to Life and Women's Bodies Redux, the unborn already have the same constitution right to life as others because pregnant women cannot be executed. The constitutional right to life only addresses execution, not the right to not be murdered. Not being murdered is a right under the social contract, not a basic right.

Basic rights ban government action, positive rights require it. A due process right in the first trimester trigger due process questions on who can be punished for murder (equal protection is a double edged sword - the state cannot punish contract killings and not prosecute mothers nor can it investigate voluntary abortions without investigating all lost pregnancies.

The fight over Roe is largely a fight over who can decide abortion cases. The Alabama abortion law asserts state government supremacy, denying the power of the federal government to decide abortion cases. State government supremacy is rooted in Plessy v. Ferguson. The theory of the case in Plessy was the Orwellian argument that states must be given ultimate authority in enforcing the 14th Amendment.

If Roe falls on such jurisdictional grounds, so does Brown v. Board of Education II (which would also now prohibit racial discrimination in parochial schools) and Plyler v. Doe (which requires that undocumented students receive a public education regardless of immigration status - which would be a plus for urban Catholic schools).

The ultimate irony is that Espinoza is only before the Court because the theory of the case in Plessy was overturned, thus giving the Court jurisdiction to hear Roe. The Church cannot logically claim a right to public funding under one without conceding the power of the federal courts in the other. The stated reason for opposing teachers unions no longer holds water.

If the Church concedes the obvious, that Roe cannot be abolished, it can make a deal with the NEA and seek funding for parish schools. Both could then demand higher taxes to fund the deal, possibly including establishment of a subtraction VAT, which could also be used to radically increase the child tax credit and include it with pay, thus reducing the demand for abortion services. This could be considered a win-win, particularly for lower income households.

A higher minimum wage would also be necessary, both to benefit lower and middle income workers without children and to assure that no one is working simply to collect the child tax credit (which should also be channeled to students, the disabled and to those on public assistance.

June Medical

This is not the first time Chief Roberts 5th vote preserved precedent or law. Remember his vote in the Affordable Care Act repeal case (which you can count on again). Turns out he told the truth in his confirmation hearing. His time on at D.C. Circuit shows his philosophy - of having a bias toward law over policy preferences. 

Biden and Alito joined Kennedy (and not Scalia) in supporting Roe as settled law in Gonzalez v. Carhart. Scalia wanted to use the case, as intended, to end Roe. Alito may have gone squishy in the interim, but Gorsuch should go with what Kennedy would have done.

The Fifth Circuit got spanked. This is bad news for the State of Alabama. Stick a fork in the pro-life movement - it has a lot of explaining to do with its donors and supporters (just as the HRC is running out of agenda because of its win in Bostock).

The pro-life movement, if it wants to "save the babies, needs to double down on supporting (and expanding) the Child Tax Credit (which was enacted by Gerald Ford). Kamala Harris had the best plan on doing this. It is time for the movement to decide whether it is about the unborn or about controlling women's bodies. If you listen to many of its supporters, the latter is obvious.

It is almost time for Biden to have a talk with the Bishops about their affiliation with the GOP on abortion - although he may want to wait until December to have this conversation. They could be a strong ally in getting more money to families through the tax code.

If Trump loses this week on Vance, DB and Mazars, or if the decision is not announced (which means that the Court is respecting Grand Jury secrecy), the GOP either has to cut Trump or die. The Catholic Bishops will suck up to Biden if Trump loses big. December could be very interesting in Biden plays it right.

Will the pro-birth movement jump off the S.S. Trump and work to get Pence the nomination?

Biden needs to start hitting Pence now on both abortion (by endorsing the expansion of the Child Tax Credit proposed by Senator Harris) and about leaving Trump in office when the 25th Amendment was an obvious solution in 2017.

Right to Life and Women's Bodies Redux

The question of the right to life has three parts. Yes, this is legalese but if the right to life movement is asserting a right, it must come to grips with it or their argument falls on emotionalism, the authority of the Church, sexism and Republican partisanship (none of which are valid for the purposes of law or argument).

Part one is the constitutional right to life. The unborn have the same constitutional right to life as anyone else - which is the right to not be executed without due process. Pregnant women are not executed - so that right is already fully in force. The unborn have it under both the 5th and 14th Amendments.

In the law, state governments do not have the power to declare the unborn as persons. Under the 14th Amendment, only Congress can add that interpretation. The black letter law recognizes personhood at birth or the ability to be born (viability). Let us assume that parts two and three can only be accomplished by congressional action. Any assertion of state power as supreme fails in federal court unless Plessy v. Ferguson is made the law of the land in all cases of civil rights and equal protection. This will not and cannot be allowed to happen.

Part two is an equal protection right not to be murdered, that is, if those who are born have a right have murder punished by the state, the unborn must as well. The right to not be murdered is not self-enforcing - without state action, it does not exist. This right assumes that actually having government is a civil right - which our political theory does not recognize. Regardless, it is a question to be considered. 

The right to not be murdered is essentially the right to punish murderers and to have murder investigated. To be in force, the person must be treated as a person. There is a strong civil rights argument for this position paralleling the right to marriage equality and fair treatment at the hands of police. Black Lives Matter is based on this.

What are the justifications for preserving (or outlawing) abortion? Again, we must assume Congress recognizes personhood at conception (not supported by embryology) or gastrulation (which is when the embryo becomes an individual that cannot be split into two persons - that is, if you take a piece off, it will not regrow)?

We could remove the crime of murder from the law. If murder is not a crime, the unborn have no right to assert protection under it. This is an absurd argument, but must be mentioned. The answer, by the way, is no. Without a right not to be murdered, there is not grounds in political theory to have government. Again, government is a contractual right, not a basic human right, although contracts must be fair.

Equal protection for the unborn means equal protection for all of the unborn, not just those who have been aborted. If you punish murder, all murders must be punished according to the same rules. Women who procure abortion must be treated as women who procure the killing of their husbands. Equal protection is a double edged sword. We could end there - as even the pro-life movement concedes that mothers should not be punished. The only way to do that, however, is not to ban abortion.

The right to investigate is the other part of the contractual right to not be murderer. If you investigate abortions, you must investigate all fetal death, including natural miscarriage. If claimed, the assertion ends the investigation. Equal protection rights also apply to providers. This means you cannot selectively investigate Planned Parenthood, no matter how much you want to.

Neither Congress, or voters, will allow the investigation of every miscarriage. Again, we could end the argument here.

Part three is the right of privacy. This is not just the right to not be investigated, but also the right, in general, to have the body politic stay out of women's bodies. The right to liberty is the right to tell the majority it has no power to interfere in the lives of others. It is accomplished by Roe v. Wade and all of the other civil rights decisions which block government action. It IS self-enforcing in that way. Again, we could end here. Most do.

The authority argument in the Catholic Church no longer applies to Catholic politicians. Vatican II included Dignitatis Humanae, the dignity of humans to a right of conscience. The theory that wrong has no rights has been rejected. Civil government need not, indeed cannot, take dictation from Rome. Without specifically acknowledging the doctrine, every Catholic politician from Cuomo, to Biden to me stands on it. 

Asserting this doctrine means that priests cannot deny us communion for supporting legal abortion for pluralistic reasons. Most Catholic politicians do. By the way, appealing to authority is a logical fallacy anyway. It does not hold up in court, just ask the Organization for Marriage, who was humiliated when they asserted doctrine to argue against marriage equality. Again, we can end there. 

Part four is incentives for families. While we cannot demand it of the civil world or of Catholic politicians, it must be part of the Catholic discussion - and Catholic politicians can still go there as a basis for enacting such incentives in civil society. Pope Pius XI sided against capitalism and for social democracy in Casti Connubii 119-122. 

If the free market cannot provide and adequate income, it is up to the government to do so. The free market cannot. Requiring a living wage would doom families with children to the welfare rolls. No one would hire the average parent when an average single person is available. 

Subsistence, which is what we have now with the current Earned Income and Child Tax Credits. Both of which are Republican economic policy, so calling such an approach socialism is an extreme view, even among Republicans. Still, subsistence is not enough.

Vice Presidential contender, Senator Kamala Harris, makes real progress toward adequacy by proposing a $3,000 per year refundable credit. It is still only 25% of what the U.S. Department of Education defines as the real cost of bringing up baby, but it moves in the right direction. If we deliver such a credit through an employer paid value added tax rather than income taxes we can take most families off of the tax rolls and make the credit easy to pay - even providing a subsidy to firms whose credits exceed their tax liabilities.

Conservatives abhor this approach. Their counter is that they do not want to subsidize the sex lives of other people. No truer statement has ever been made, and its damning. The pro-life movement, when all is stripped away, really is about controlling women's bodies. Still, that sound bite needed fleshing out. I just did. Add income adequacy to the sound bite and conservatives have no legs to stand on.

Finally, the social contract also includes giving the government the power to tax. You cannot regulate murder without levying taxes. The question is, what do the taxes fund. They should fund children, not policing sex. Voting "pro-life" is just another form of trumpist bigotry.

Justice v. Populism

In case you missed it, at yesterday's House Judiciary Committee hearing on police violence, Rep. Cedric Richmond ate Matt Gaetz's lunch. It was not a fair fight. Gaetz tried to defend the myth that racism is a thing of the past and Richmond had none of it. The take down was a thing of beauty. Gaetz hides his race blindness in the populism of conservatism, thinking that this is justice. It is not.

Conservatives have been playing the populist v. justice compromise for a long time. The barbarian overthrow of Rome and the resulting dark ages was populism run amok - with the strong dominating the week until feudalism was created to reign in the roaming soldiers, Many consider this period patriarchal, but it may have been more classism then sexism as elite women still had a voice up until the dawn of the 18th Century. (Some of these strong women were among my ancestors, both in the colonies and in England).

After watching a snippet of the Judiciary Hearing last night, I turned over to C-SPAN3 and a lecture by Professor Mary Beth Norton on women in early America, where she talked about her work on this subject. I bought two of the three on Kindle and will send paperbacks to Catie for her birthday as part of her radical education. In Separated by Their Sex, Dr. Norton found that after the Glorious Revolution, a concerted effort was made to tear down high class women.

My take on this is that radicalizing men in for the capitalist era required silencing strong women. For those who are unfamiliar with the history of conservatism, the capitalist class always pits groups against each other so that no one attacks them. See Corey Robin's The Reactionary Mind.

Modern patriarchy is not as old as we thought. Indeed, women with property could vote until Independence in New England. 75 years later, Elizabeth Cady Stanton and Susan B. Anthony organized the Seneca Falls Convention and included abolition on their agenda. Sadly, in another example of not yet, Frederick Douglass won the day in not adding women to the 15th Amendment. Of course, with the end of the Grant Administration, all civil rights for people of color were put on hold for another 75 year.

Women had to wait until the 19th Amendment. About then, the right-wing Democrats went after the Socialists who wanted control of the workplace. FDR threw socialism under the bus to get social democracy. After the War, Joe McCarthy went after the Reds again, showing that alcoholism and conservatism can go hand in hand well. The backlash against the White ideal (including the cultural censorship led by the Catholic Church) gave us civil rights and women's rights. It also saw the end of very progressive taxation in 1965, as JFK's tax cuts took effect.

The GOP took over the mantle of racism, sexism, militarism, law and order and tax and budget cutting. The tax cuts and tax reform of the 1980s were capitalism ascendant. It seems to have no other agenda than capitalism and bigoted populism. Trump is the natural result. Nixon was a setback for them, although some see it as their golden age and still think Nixon got a raw deal.  McCarthyism became Bircherism, Goldwater, Nixon Now, the Reagan Revolution, Judicial Watch, Swift Boat Veterans for Truth, the Tea Party and now MAGA. Same people, different front groups.

In fighting back, we must be united. Black Lives and the mentally ill must both be priorities in police defunding. This week, the LGBTQIA rights to employment (and probably everything else where sex is a protected classification) were won. It is time for the Beloved Community to unite to put teeth in civil rights laws, starting with funding civil rights enforcement properly and changing police culture. Eventually, we must move civil rights from tort law to criminal law.

We must also remember the revolution. Not the limited political revolution, which retains capitalism while building a nice cage for workers. We must instead move to cooperation in all things (work, consumption, finance, human services), leaving capitalism - both private and state - on the ash heap of history. We really can do it all.

On Aunt Jamima, Bernie Sanders and the National Debt

Thank you to the news gods and Lil Scotty for dropping a column into my lap. I was tired of writing about SARS2 and suggesting that perhaps the protesters should target Pence, not Trump. (They still should, now more than ever),

Updating the picture was the wrong choice when it was made. It should have been re-branded "Grandma'" with an old while woman on the label. Bill Maher is going to have a field day with this one. Sarcastic question is, would the sentiment evident now have been protesting that all grandmothers are not white? Maybe not - but it is not a far-fetched idea. I am glad the brand is gone - it was branded in simplistic images - but that was mid-century America - our not so golden years.

We never used the brand.  We were a Bisquick household. Of course, making Bisquick semi-complete (rather than just add water) was market tested. Women did not like to think that they were buying something too easy. Like politics, no one makes marketing decisions (then or now) without running a poll.

Note that at the time, quite a few Black women from the northern migration did do domestic and housekeeping work - also women who did not migrate. There is a reason that "The Help" was a best selling movie. It really happened all across America, although it usually involve no surrogate parenting. My mom was on bed rest because my mother had difficult pregnancies. Without Willie Bea, who cleaned our house while my mom was on bed rest, probably saved both of our lives. As it is, I am on borrowed time, as are my siblings. We were also told to stay out of her way when she came over. Multiple children underfoot makes cleaning efficiently impossible. She was no Aunt Jamima.

Black women have been largely replaced by migrants, first from the Caribbean and Vietnamese women. Nowadays, the housekeepers are Latinex, possibly without documentation and, if so, maybe working under bondage (meaning that they are working off a debt).

Any owed labor situation, from being a West Point graduate, to paying off student loan debt to, to having a work related visa (H-1B, H2A) dependent on performance, to paying off a debt bought from a Coyote are all bondage.

The light should be going on as to why people are so committed to Bernie - it is because they are defacto slaves who see their student debt as unpayable. They have reason for concern. I am 57 and still owe. 

Even high income taxpayers considering owing debt to eventually pay the Social Security Trust Fund to be involuntary servitude. They have no problem with the national debt that they can then turn around and add to their portfolios, but when it is owed to someone else, they start talking about the need to get entitlement spending under control.

Owing a mortgage is seen by many as bondage - because it is. So, how do get stuff when we need it but must pay it back later. Social democracy is a trade that allows capitalists to own workers as long as they pay citizen benefits through being taxed more heavily. Seen that way, it is still a slave bargain. The answer is to replace capitalism with cooperation and mutual ownership.

A final comment on Quaker Oats. My ancestors go back to the Plymouth colony and were members of the Society of Friends. Ralph Allen, who was persecuted for his faith. Mary Dyer was hanged for hers. The Allen family moved to the Disciples of Christ for centuries, however my brother Greg got married in what was essential a Quaker wedding. No one looked like the old white dude on the oats box.

Six to Three, the Bostock Rule and What's Next

History has shown that all Democratic appointees are socially progressive and half of Republicans. Gorsuch, progressive, Kav, conservative. All justices are still Capitalist because the law is capitalist. It is no surprise that Gorsuch votes like his old mentor, Kennedy.

The expected breakdown in most cases (except affirmative action - which is hard to deal with because the laws have not been well written) is 4 on the left, two swingers in the center (Roberts and Gorsuch) and 3 conservatives (and one is the senior member - Thomas).

The 3 conservatives vote that way on process, not results. They believe Congress must break barriers on federal law (not state law - all are fully on board with the 14th Amendment as the vehicle for justice over action by state governments - even Thomas).

Anyone who is looking for Democratic appointees to bring a civil rights law case - especially on state law - needs to start filing those lawsuits. Any organization who waits cares more about fundraising than actually getting change done.

Bostock Rule should be easily applied to all LGBT cases. I cannot see any federal judge not applying it to all cases if it is argued. The Supreme Court will never have to hear another such case. Even the 4th Circuit.

The next frontier is to fund enforcement. The entire Blessed Community needs to get behind this with one voice.

The final frontier is to criminalize discrimination.  - which should be introduced in both houses next year (doing it this year will keep Moscow Mitch in leadership - seeking equality does not mean being stupid). Building the coalition needs to be done now. Announcing such an effort should happen the day after election day.

ENDA and probably the Equality Act are not necessary and raising money for the latter does not pass the smell test. Funding enforcement, however, will attract big money for everyone - because it will take time to build support - but we need to get rid of Trump, Pence and the Senate first. After that, we can go for 60 votes in 2022 and adding teeth.