Religious Discrimination or Free Exercise?

Eugene Volokh is exercised about a ruling by the Supreme Court of Michigan in a child-custody case, which he characterizes as unconstitutional:

Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution's religious freedom provision:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ... any place of religious worship .... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.

Volokh's real beef is with the Michigan statute (Child Custody Act of 1970), which spells out the "best interest" factors to be considered in child-custody cases. He specifically objects to the italicized portion of section 3(b):

The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any (emphasis added).

I cannot grasp the basis of Volokh's objection. Neither the statute nor (in what I have read) any court's interpretation of it seems to violate the relevant portion of the First Amendment:

Congress [and by incorporation through the Fourteenth Amendment, the States] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....

The Michigan statute wisely gives proper recognition to the importance of religion (among several other factors) in the upbringing of a child. That's all it does.

The clause at issue is not an establishment of religion. It does not force anyone to practice a religion. It simply gives due credit to a parent who continues to raise his or her child in the religion in which the child already was being raised, if any.

The clause at issue does not bar the free exercise of religion. Contrary to what Volokh seems to think, it is not a child's place to dictate his or her religious upbringing. Would Volokh think it good to allow a child to decide (against parental command) to drop out of school at the age of, say, ten? I don't think so. What makes religion different than education? Nothing, except that Volokh finds it objectionable that Michigan's legislature and courts recognize the value of religion in the upbringing of a child.

Volokh, like so many other determined secularists, cannot countenance any governmental act that seems to approve of religion. But, contrary to Thomas Jefferson, there is no "wall of separation" between church and state, as Justice Antonin Scalia reminds us:

The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.... The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “ a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.”... President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,’ ”... thus beginning a tradition of offering gratitude to God that continues today.... The same Congress also reenacted the Northwest Territory Ordinance of 1787,... Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”... And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection.

These actions of our First President and Congress ... were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality.

And they were right.

On Prejudice

I have just finished reading Theodore Dalrymple's In Praise of Prejudice: The Necessity of Preconceived Ideas. Dalrymple's thesis is simple but profound: We cannot (and do not) operate in this world without the benefit of preconceived ideas about how the world works. If we tried to do so, we would be as helpless as babes in the wood.

To state Dalrymple's thesis so baldly is to do a grave injustice to the lucidity, incisiveness, elegance, and ruthless logic of his short book. At the outset, Dalrymple makes it clear that he holds no brief for racial and ethnic prejudice. As he points out: "No prejudice, no genocide." But he adds that

If the existence of a widespread prejudice is necessary for the commission of genocide, it is certainly not a sufficient one. Nor does it follow from the fact that all who commit genocide are prejudiced that all who are prejudiced commit genocide.

Dalrymple spends many pages (fruitfully) eviscerating John Stuart Mill's simplistic liberalism, which holds that that one may do as one pleases as long as (in one's own opinion) one does no harm to others. This belief (itself a prejudice) has led to what Dalrymple calls "radical individualism" -- and it is just that, despite the efforts of libertarian apologists to demonstrate otherwise. Dalrymple offers a spot-on diagnosis of the wages of radical individualism:

What starts out as a search for increased if not total individualism ends up by increasing the power of government over individuals. It does not do so by the totalitarian method of rendering compulsory all that is not forbidden ... but by destroying all moral authority that intervenes between individual human will and governmental power.... "There is no law against it" becomes an unanswerable justification for conduct that is selfish and egotistical.

This, of course, makes the law, and therefore those who make the law, the moral arbiters of society. It is they who, by definition, decide what is permissible and what is not....

Given the nature of human nature, it hardly needs pointing out that those who are delegated the job of moral arbiter for the whole of society enjoy their power and come to thing that they deserve it, and that they have been chosen for their special insight into the way life should be lived. It is not legislators who succumb to this temptation but judges also....

Dalrymple, an admitted non-believer, also slices through the pretensions of Peter Singer and Richard Dawkins, strident atheists both. He exposes their prejudices, which they try to conceal with the language of science and bombastic certitude.

There is much more in this delightful book. I offer a final sample:

In order to prove to ourselves that we are not prejudiced, but have thought out everything for ourselves, as fully autonomous (if not responsible) human beings should, we have to reject the common maxims of life that in many, though not in all, cases, preserve civilized relations. Enlightenment, or rather, what is so much more important for many people, a reputation for enlightenment, consists in behaving in a way contrary to those maxims. And once a common maxim of life is overthrown in this fashion, it is replaced by another -- often, though of course not always, a worse one.

Social norms that have passed the test of time are more likely than not to be beneficial. And, so, we owe them the benefit of the doubt, instead of discarding them for the sake of change, that is, for the sake of new prejudices.

I urge you to buy In Praise of Prejudice, to read it, and to re-read it (as I will do).

Related:
"The Meaning of Liberty" (25 Mar 2006)
"Atheism, Religion, and Science Redux" (01 Jul 2007)

How Attractive Is Your State?

REVISED (02/29/08)

Americans are known for "voting with their feet," that is, for moving to a more congenial locale, often across State lines. The reasons for doing so are many (e.g., being near family, getting away from family, taking a new job, retiring to a warmer climate, retiring to a climate and terrain conducive to winter sports). One of the reasons, of course, is to reduce one's State and local tax burden.

But moves based on tax reasons aren't tabulated in the 2008 Statistical Abstract, Table 31 (Movers by Type of Move and Reason for Moving: 2006), which seems (in my view) to understate the frequency of moves related to climate and retirement. A comparison of the totals in Table 31 with the corresponding totals in Table 33 (Mobility Status of Resident Population by State: 2005) suggests that Table 31 is incomplete, to the tune of about 6 million Americans out of the 45 million or so who change houses, counties, States, and countries every year.

So, it's up to me to quantify the extent to which decisions about interstate moves are influenced by State and local taxes, among other things.

1. Drawing on Table 33 (linked above), I found the rate at which Americans moved from one State to another in 2005. The answer is 2.47 percent. That is, 7.1 million of the 284.4 million Americans age 1 or older in 2005 were residents of a different State in 2004.

2. Every State gains some new residents from other States, but some States are net gainers and others are net losers. To measure a particular State's net gain or loss, I subtracted 2.47 percent (the all-State average) from the percentage of residents who moved into that State from other States. Nevada is at one extreme, with a net gain of 3.07 percent; New York is at the other extreme, with a net loss of 1.24 percent.

3. Overall, there is a negative correlation (-0.399) between net gain and tax burden; the lower the tax burden, the greater the gain. Graphically:

Sources: Net moves = net percentage of a State's population gained from/lost to other States. Net moves are computed at described in the text. Tax burdens for 2004 are from this table, available via this page at the website of The Tax Foundation.

4. Tax policy evidently has a strong effect on decisions to move from State to State. Another quantifiable factor to be accounted for is population. As it turns out, the less populous a State, the greater its attraction:

REVISED PORTION:

5. I took the obvious next step and ran a regression with natural logarithms of tax burden and population as explanatory variables, with this result:

Net population gain or loss (as a decimal fraction of previous year's population) =
-0.049256
-0.027145 x natural logarithm of State + local tax burden (as a decimal fraction)
-0.005241 x natural logarithm State's population (in millions)

The R-squared of the equation is 0.420. The F-test on the regression and the t-statistics on the intercept and explanatory variables all are significant at the 0.995 level of confidence, or better.

In other words, after adjusting for population, a 1-percentage point increase in the tax burden from the mean rate of 10.29 percent yields a net population loss of 0.25 percent.

6. The regression equation, as indicated by its fairly low R-squared, leaves much to be explained by factors other than tax burden and population (the latter of which may be a rough proxy for work and family connections). The difference between a State's actual net gain or loss and the net gain or loss estimated by the equation tells us something about that State's inherent attractiveness (or unattractiveness). For example, the actual net population gain for Arizona is 2.57 percent; the estimated net gain, 0.25 percent. The difference (known as the residual) is 2.32 percent, which is the largest residual for any State. Arizona is therefore (and for obvious reasons, given its climate) an inherently attractive State. At the other end of the spectrum is Michigan, with a residual of -1.19 percent, which makes it the least inherently attractive State (for entirely fathomable reasons, given its economy).

7. So, I have two measures of a State's attractiveness

• overall attractiveness -- net percentage of population gained from or lost to other States

• inherent (natural) attractiveness -- the portion of overall attractiveness that is not explained by taxes or population

What really matters, of course, is overall attractiveness, or the lack thereof. Unsurprisingly, the upper Midwest and Northeast dominate the list of 15 least-attractive States (those with negative values in the left panel of the table below). Inherent attractiveness (the right panel of the table below) is, nevertheless, an interesting property. The difference between overall attractiveness and inherent attractiveness is a good measure of the gain (or loss) in a State's attractiveness because of its tax burden and/or population. Thus:

The two graphs immediately above underscore the importance of taxes and population (that is, the lack thereof) to a State's overall attractiveness.

States that gain or lose significantly (more than a standard deviation from the mean of 0.59%) fall into three categories:

• Less-populous States that make themselves significantly more attractive through below-average tax burdens: Alaska (gain of 2.70%, tax burden of 6.6%), Delaware (1.92%, 8.4%), Montana (1.50%, 9.6%), New Hampshire (1.78%, 8.1%), North Dakota (1.68%, 9.7%), South Dakota (1.86%, 8.7%), and Wyoming (1.79%, 9.7%).

• More-populous States that make themselves significantly less attractive through above-average tax burdens: California (-0.82%, 10.8%), Illinois (-0.11%, 10.5%), New York (-1.07%, 13.5%), Ohio (-0.30%, 11.3%), and Pennsylvania (-0.11%, 10.3%).

• Populous States with below-average tax burdens whose rapid growth seems to be undermining their attractiveness: Florida (-0.19%, 9.9%) and Texas (-0.18%, 9.4%).

How does your State stack up? See for yourself:

Overall attractiveness				Inherent attractiveness
1	Nevada	3.07%	1	Arizona	2.32%
2	Wyoming	2.91%	2	Nevada	2.22%
3	Arizona	2.57%	3	Idaho	1.46%
4	Idaho	2.50%	4	Florida	1.41%
5	Alaska	2.44%	5	Wyoming	1.12%
6	Delaware	1.85%	6	Georgia	1.02%
7	Oregon	1.72%	7	Oregon	1.01%
8	New Mexico	1.64%	8	Hawaii	0.87%
9	Hawaii	1.55%	9	Washington	0.79%
10	Montana	1.52%	10	New Mexico	0.65%
11	Colorado	1.30%	11	Virginia	0.61%
12	New Hampshire	1.28%	12	North Carolina	0.58%
13	Florida	1.21%	13	Colorado	0.57%
14	Arkansas	1.16%	14	South Carolina	0.51%
15	Georgia	1.14%	15	Arkansas	0.51%
16	Washington	1.02%	16	Maryland	0.28%
17	South Carolina	1.01%	17	Utah	0.21%
18	South Dakota	0.99%	18	Montana	0.02%
19	Virginia	0.88%	19	Texas	0.01%
20	Vermont	0.86%	20	Kansas	0.00%
21	Utah	0.83%	21	Maine	-0.03%
22	Tennessee	0.75%	22	Delaware	-0.07%
23	North Carolina	0.71%	23	Vermont	-0.09%
24	Oklahoma	0.69%	24	Tennessee	-0.11%
25	North Dakota	0.62%	25	New York	-0.17%
26	Maryland	0.56%	26	Oklahoma	-0.20%
27	Kansas	0.55%	27	Alaska	-0.26%
28	Maine	0.44%	28	Iowa	-0.28%
29	Iowa	0.38%	29	Missouri	-0.35%
30	Mississippi	0.36%	30	California	-0.36%
31	West Virginia	0.19%	31	Mississippi	-0.37%
32	Missouri	0.11%	32	New Jersey	-0.38%
33	Alabama	0.08%	33	Connecticut	-0.46%
34	Kentucky	0.04%	34	Kentucky	-0.48%
35	Nebraska	0.03%	35	Pennsylvania	-0.50%
36	Rhode Island	-0.13%	36	New Hampshire	-0.51%
37	Connecticut	-0.13%	37	Wisconsin	-0.58%
38	Texas	-0.17%	38	Ohio	-0.59%
39	Indiana	-0.33%	39	Illinois	-0.60%
40	Minnesota	-0.44%	40	Indiana	-0.63%
41	New Jersey	-0.44%	41	Nebraska	-0.63%
42	Wisconsin	-0.60%	42	West Virginia	-0.69%
43	Pennsylvania	-0.60%	43	Minnesota	-0.70%
44	Massachusetts	-0.72%	44	Alabama	-0.85%
45	Louisiana	-0.75%	45	South Dakota	-0.86%
46	Illinois	-0.77%	46	Rhode Island	-0.98%
47	Ohio	-0.89%	47	Massachusetts	-1.02%
48	California	-1.18%	48	North Dakota	-1.07%
49	Michigan	-1.20%	49	Louisiana	-1.16%
50	New York	-1.24%	50	Michigan	-1.19%

The Folly of Centrism

Paul Silver, writing at The Moderate Voice, opines:

Most of us like talk and performance that is moderate in tone and balanced in application. And it is a useful exercise to continually reflect on what we mean by moderate, extreme and balanced.

It seems to me that each issue can be laid out along a spectrum from one extreme to another. e.g. Nationalized businesses on one end and unfettered markets on the other with gradations of regulation in the middle. I am drawn to the gradations in the middle. For me the compelling debate is about what kind of regulation and how much.

Similarly on Taxes: Socialism on one end and Libertarianism on the other with various philosophies of taxation in the middle. For me the attractive debate is about how much taxes are necessary to provide some agreed upon level of wellbeing for our citizens. I think it is a canard to talk about any significant reduction in overall tax burdens. Even with scrupulous management, our Federal budget might only shrink from $3 Trillion to $2.5 Trillion. The real issue is how the burden is shared by those to whom much has been given.

This is political philosophy as an extension of personality. It has nothing to do with moral judgments or the weighing of consequences. It is compromise, for the sake of compromise.

The "middle" has shifted so far leftward since 1929 that Silver cannot imagine a much smaller government, even though we had a much smaller one until the government-caused and government-prolonged Great Depression.

Silver reveals himself not as a "moderate" or "centrist" but as a class-warring socialist when he invokes "those to whom so much has been given." "Those" are, in fact, people who have done much to provide goods and services of value to others. What "those" have has not been given to them; they have earned it. But that matters not to Silver and his ilk, who see income disparities as an excuse for government-enforced theft.

As I say, the "middle" has shifted far leftward.

Quotation of the Day

Hate speech IS free speech. Leftists would be almost completely muzzled otherwise.

John Ray, at Tongue Tied 3

Levant vs. Soharwardy

The infamous case of Ezra Levant takes a new twist. Levant, as you will recall, was the subject of a Canadian human rights complaint filed by Syed Soharwardy because, in 2005, Levant published the Danish cartoons of Mohammed cartoons in Western Standard magazine. (The magazine, once a print and web publication, in now only a web publication.)

A recent article by Soharwardy seems conciliatory enough (he has withdrawn his complaint), but it doesn't address all of Levant's allegations (here) about Soharwardy's vindictive use of Canadian officialdom against Levant. Will the twain ever meet? Stay tuned.

A Thought for Today

Calling oneself a libertarian because one wants to be "left alone" is as shallow as calling oneself an American while secretly hankering to live in a "socialist paradise" like Sweden. Liberty isn't just about being "left alone"; being an American isn't (or didn't used to be) just about living within the geographical boundaries of the United States.

The Real Constitution: I

This is the first installment of an effort to contrast the present, judicial interpretation of the Constitution with its original meaning, section by section and clause by clause. I draw heavily on The Heritage Guide to the Constitution (hereafter Heritage Guide). All quoted passages of the Constitution (including the Bill of Rights and other amendments) are from the version published by the National Records and Archives Administration.

PREAMBLE

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble has no substantive legal meaning, but it is significant because it specifies the Constitution's purposes. The most commonly misunderstood term in the Preamble is "general Welfare," a term which recurs in the Spending Clause of Article I, Section 8. I will deal with the Spending Clause in its turn. As for the Preamble:

The word "Welfare" is crucial: in the eighteenth century the definition of welfare included well-being., but it also and equally encompassed happiness.

The Preamble as a whole, then, declares that the Constitution is designed to secure precisely the rights proclaimed in the Declaration [of Independence]. The Constitution was therefore not the negation of the Revolution; it was the Revolution's fulfillment.

Forrest McDonald, Heritage Guide, p. 46

LEGISLATIVE VESTING CLAUSE

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

(Article I, Section 1)

Much of what Americans and American businesses are permitted to do, under the regime that controls our lives and livelihoods, is determined not by legislation but by regulation. Congress has divested much of its legislative authority to the executive branch, where regulators do the work of legislators:

In 1928, the [U.S. Supreme] Court upheld a statute delegating the the President the power to adjust tariffs to any rate, within a wide range, he found necesary to "equalize the ... differences in costs of production in the United States and the principal competing country." J.W. Hampton, Jr. & Co. v. United States. In that case the Court for the first time set out what remains the governing standard: a "legislative action is not a forbidden delegation of legislative power" if the "Congress shall lay down by legislative act an intelligible principle to which the person or body [to whom power is delegated] is directed to conform."...

[Thus t]he Court found in Whitman v. American Trucking Associations, Inc. an intelligible principle in Congress's directive to the Environnmental Protection Agency to promulgate air quality standards "requisite to protect the public health" with "an adequate margin of safety." Because no standard could eliminate all significant adverse effects to health, the statute effectively delegated to an unelected and unaccountable agency the decision how far our society should go and how many billions of dollars should be spent to reduce the adverse health effects of industrial pollution, a decision that seems quintessentially legislative, but undoubtedly one for which legislators would prefer to avoid responsibility.

Douglas Ginsburg, Heritage Guide, pp. 47-8

See "The Constitution: Myths and Realities".