Conservative views: The Stimulus’s Defenseless, Unconstitutional Religious Bigotry

The Stimulus’s Defenseless, Unconstitutional Religious Bigotry. By Robert Alt
Bench Memos/NRO, Friday, February 13, 2009

We all know that there are plenty of policy problems with the stimulus bill, but there is a pretty serious constitutional problem as well. Buried deep in a bill mostly involving itself with spending billions of dollars, Congress takes a moment to explain how $3.5 billion it allocates for renovation of public or private university facilities can’t be spent:

(2) PROHIBITED USES OF FUNDS.—No funds awarded under this section may be
used for—

(C) modernization, renovation, or repair of facilities—

(i) used for sectarian instruction, religious worship, or a school or department of divinity; or

(ii) in which a substantial portion of the functions of the facilities are subsumed in a religious mission; or construction of new facilities.

A moment of fiscal restraint! There’s just one problem: This provision violates the Constitution by singling out groups with religious viewpoints, and denying them access to facilities on the same grounds as other groups. To understand how, it is necessary to focus on the word “used.” If a facility ordinarily open to use by students groups—be it a dorm common area or a classroom—were to be renovated with stimulus funds, the statute on its face would prohibit the religious group from using the space, if the use were for anything that might be construed as sectarian instruction or worship. This is hardly an open question of constitutional law. The Supreme Court has time, and time, and time, and time, and time again not only found that the Constitution’s Establishment Clause does not require such exclusion of religious speech, but that the First Amendment prohibits it on Free Speech and Free Exercise grounds.

Senator DeMint recognized the constitutional error, and sought to amend the stimulus bill to remove the offending language. His first attempt failed, and the reasons offered in opposition ranged from erroneous to irrelevant.

Several critics, including Senator Durbin on the floor, argued that the language only covers buildings used primarily or substantially for religion. This is a plain misreading of the statute, which in section (i) prohibits any use for religious worship. Indeed, because the statute uses a disjunctive “or” to separate subsections (i) and (ii), it is clear that the “substantial portion of the functions” requirement of part (ii) is not necessary to violate subsection (i), which forbids mere use.

The next argument made by Durbin was that language similar to this has been included in education funding bills since the 60s. Why should that matter? The weight of Supreme Court precedent makes clear that an overbroad and discriminatory restriction such as the language in this bill cannot stand. Should the fact that Congress has written unconstitutional language in the past require it to continue to use that unconstitutional language in the future? When the anti-religious language was first used, Congress had an excuse: The Supreme Court had issued rulings which expressed greater hostility to funding that even incidentally touched religion. The Court has since rejected that theory, stating firmly in Rosenberger that “There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.” Congress no longer has an excuse to perpetuate the constitutional error.

Finally, I have heard some opponents claim that the statute would not prohibit religious groups from meeting in common spaces because Supreme Court precedent is well-settled in favor of equal access, and therefore the usual suspects will not bring suit. Leaving aside for one moment the prudence of anti-religious legal challengers, if even the opposition concedes that the law is so well-settled, isn’t that all the more reason to support removing or amending the offending language? To use the “but we won’t sue because we’d surely lose” argument concedes that the language, as written, is unconstitutional. Members of Congress, having taken an oath to support and defend the Constitution, should not be in the business of passing unconstitutional laws.

Windpower, hurricanes and insurance

Windpower: Yet Another Texas-sized Problem (Hurricane Risk). By Robert Bradley
February 14, 2009

Windpower is certainly a candidate for the perfect imperfect energy.

It is uneconomic to produce and more uneconomic to transmit. It is unreliable moment-to-moment (the intermittency problem). It is at its worst when it needs to be at its best (those hot summer days). Its aesthetics are bad. It attracts the worst political capitalists (the late Ken Lay, the current T. Boone Pickens). W. S. Jevons was right in 1865 when he concluded that windpower was unsuitable for the industrial age.

Add another problem that is worse for windpower than conventional electric generation: weather risk.

Lightning strikes and other wind-centric problems have long been described in the trade press, but here is a new one. It concerns an attempt by wind developers in Texas (the state with a stringent wind mandate) to build closer to where the load is. As reported in ClimateWire (subscription) by reporter Evan Lehmann:

Two climate-related ventures — state-subsidized storm insurance and a surge in coastal wind turbine farms — appear to be heading for a showdown in Texas.

The state’s shaky hurricane insurance program might expand its coverage to include private wind farms as hundreds of turbines begin to dot its exposed gulf coastline, igniting concerns that taxpayers could shoulder the cost of replacing a company’s wrecked windmills.

The new problem has surfaced in regard to two projects in Kenedy Country that need coverage from the Texas Windstorm Insurance Association. TWIA does not want to provide this given all the problems it is going through from Ike and may go through again with the next hurricane. The problem: the $3.5 million turbines will partially or completely destruct in a Category 4 or Category 5 hurricane (around 120–130 miles per hour winds and higher).

The annual insurance premium for the coastal wind parks structures is estimated to be between $125,000 and $350,000 per turbine, the article goes on to state.

Yet another reason why windpower is unsuited for the modern energy economy…. it is dispersed and fragile.

Conservative Views: Obama's Lincoln

Obama's Lincoln, by Scott Johnson
February 14, 2009 at 7:41 AM

Serving as America's forty-fourth president, Barack Obama has the singular honor of celebrating the bicenennial birthday of America's greatest president. Obama's bicentennial celebration of Lincoln fits into a motif of Lincolnian reference. Obama has frequently invoked Lincoln. Indeed, he has ostentatiously imitated him, taking Lincoln's route to Washington prior to the inauguration and swearing the oath of office on Lincoln's Bible.

But what does Obama think of Lincoln? The question is surprisingly difficult to answer.

On Thursday Obama gave remarks on Lincoln's bicentennial in the Capitol rotunda. Michael Ruane and David Betancourt covered the event in the Washington Post. Obama struck an uncharacateristically humble note at the opening of his remarks, confessing that he "cannot claim to know as much about his life and works as many of those who are also speaking today."

This note of humility was quickly transformed into a personal tribute expressing a "special gratitude to this singular figure who in so many ways made my own story possible." The medieval scholastics characterized themselves as dwarves standing on the shoulders of giants; they could see more and farther than they, not through any virtue of their own, but rather "because they were carried high and raised up by their giant size." Obama omits any such self-assessment in his tribute to Lincoln, but one wonders: Does Obama think Lincoln great because he made Obama possible?

Obama's brief bicentennial remarks lack any reference to Lincoln's thought or works. Obama refers to Lincoln's approval during the Civil War of continued work on the Capitol dome. At the heart of his remarks Obama asserts:

The American people needed to be reminded, he believed, that even in a time of war, the work would go on; that even when the nation itself was in doubt, its future was being secured; and that on that distant day, when the guns fell silent, a national capitol would stand, with a statue of freedom at its peak, as a symbol of unity in a land still mending its divisions.

It is this sense of unity, this ability to plan for a shared future even at a moment our nation was torn apart, that I reflect on today.

So Obama credits Lincoln with the ability to plan for a collective future. How does this distinguish Lincoln from evil leaders of despotic regimes that have brought hell on earth? Well, Obama explains, even in the midst of war Lincoln was a merciful man. But what idea of America drove Lincoln? Nothing in Obama's remarks provides the hint of an answer.

Crediting Lincoln with "the ability to plan for a shared future" leaves Lincoln at best an incredibly indistinct figure. Seeking to sum up, Obama pretends to touch on "what Lincoln never forgot, not even in the midst of civil war[.]" And what might that be? According to Obama, Lincoln believed "that despite all that divided us - north and south, black and white - we were, at heart, one nation and one people, sharing a bond as Americans that could not break."

Obama to the contrary notwithstanding, Lincoln certainly knew that the Union could be broken and that while some Americans believed that all men were created equal, other Americans rather vigorously disagreed. They thought, for example, that blacks were inferior by nature. Without arguing the point, however, one wonders precisely what bond Obama is talking about. In 2005 Time called on Obama to reflect on Lincoln. In his 2005 column Obama described "what I see in Linconl's eyes." Obama wrote:

In Lincoln's rise from poverty, his ultimate mastery of language and law, his capacity to overcome personal loss and remain determined in the face of repeated defeat--in all this, he reminded me not just of my own struggles. He also reminded me of a larger, fundamental element of American life--the enduring belief that we can constantly remake ourselves to fit our larger dreams.

In other words, finds in Lincoln no fixed idea that explains his understanding or his acts. Lincoln is simply the avatar of a progressive future that is unbounded by the limits of any fixed idea:

A connected idea attracts us to Lincoln: as we remake ourselves, we remake our surroundings. He didn't just talk or write or theorize. He split rail, fired rifles, tried cases and pushed for new bridges and roads and waterways. In his sheer energy, Lincoln captures a hunger in us to build and to innovate. It's a quality that can get us in trouble; we may be blind at times to the costs of progress. And yet, when I travel to other parts of the world, I remember that it is precisely such energy that sets us apart, a sense that there are no limits to the heights our nation might reach.

Obama can honor Lincoln to the extent that Lincoln points to a progressive future that gives rise to the possibility of Barack Obama. In himself, Lincoln is a limited and flawed figure:

[A]s I look at his picture, it is the man and not the icon that speaks to me. I cannot swallow whole the view of Lincoln as the Great Emancipator. As a law professor and civil rights lawyer and as an African American, I am fully aware of his limited views on race. Anyone who actually reads the Emancipation Proclamation knows it was more a military document than a clarion call for justice. Scholars tell us too that Lincoln wasn't immune from political considerations and that his temperament could be indecisive and morose.

Obama seems to have absorbed the critique of Lincoln as a racist and the Emancipation Proclamation as merely utilitarian or meaningless. Anyone familiar with the work of the late Columbia historian Richard Hofstadter can hazard an educated guess about the source of Obama's opinions.

Here we see that the problem with Obama's Lincoln, as with that of so many students today, is not what Obama doesn't know about him; it's what he knows, or thinks he knows, about him.
Harry Jaffa demolishes Hofstadter's essential critique of Lincoln in a few paragraphs of Crisis of the House Divided. Obama seems unfamiliar with the propsition that, in Lincon's (correct) view, the limits of the Emancipation Proclamation were set by the Constitution of the United States. Professor Thomas Krannawitter rightly asked, "what more would Obama have advised Lincoln to do?"

Moreover, Obama's attribution of retrograde racial views to Lincoln is a commonplace among the left that likewise fails upon close scrutiny (which Jaffa also provides). The testimony of Frederick Douglass on this score is powerful as well: "In his company I was never in any way reminded of my humble origin, or of my unpopular color."

In his "More perfect Union" speech last year, Obama essayed the history of race in America. In Obama's telling, Lincoln dropped out of the story:

[W]ords on a parchment would not be enough to deliver slaves from bondage, or provide men and women of every color and creed their full rights and obligations as citizens of the United States. What would be needed were Americans in successive generations who were willing to do their part - through protests and struggle, on the streets and in the courts, through a civil war and civil disobedience and always at great risk - to narrow that gap between the promise of our ideals and the reality of their time.

Lincoln had disappeared. Only the residue of faith in a glorious future somehow remained: "[W]hat we know -- what we have seen - is that America can change. That is true genius of this nation. What we have already achieved gives us hope - the audacity to hope - for what we can and must achieve tomorrow."

Obama's race speech not only dropped Lincoln from the story, it dropped the Declaration of Independence. The Declaration of course stood at the center of Lincoln's thought. Lincoln took his bearings by the Declaration's recognition of "an abstract truth, applicable to all men and all times." Lincoln celebrated the Declaration for "embalm[ing]" the truth there so that "in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression."

Obama's omission of the Declaration was no accident. Professor Krannawitter explains:

Obama, following FDR, rejects the Declaration's principle of equal, individual rights. This explains why in a 2001 radio interview Mr. Obama lamented that the modern Supreme Court had not yet displaced individual rights with a Constitutional defense of group rights and schemes of redistribution of wealth and property. This is exactly how Mr. Obama thinks the Constitution should be understood.

On the occasion of the Lincoln bicentennial, Obama left Lincoln in the shadows. In part, this is because Obama knows so little of him. In part, this is because Lincoln's thought is alien to Obama's own thinking. Professor Krannawitter concludes: "There is no greater student and therefore no greater teacher of American politics than Lincoln. If Obama wants to borrow from Lincoln's legacy, he should first learn from Lincoln."