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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, November 16, 2009

Governmental Duty To Affirmatively Act (Our Right To Have Them Do So)

And Also: I'm not quite sold about the move, but a NY Daily News columnist was a (to quote him) "dummy" to ridicule the move as just plain moronic. As to the 'Boys, well happy for the Packers, but it sort of gives the Giants more hope than they probably deserve.


The special election for an upstate NY House seat in the end played out how the Constitution provision involved suggests it should. House seats are ultimately about local issues, and though it is not compelled by the text, the district system of selecting them highlights that. The Conservative Party outsider was not really concerned about local issues, and had a now infamous session with local press that highlighted this. Really, this is not surprising -- a third party candidate is focused on their issues. Problem for the Republicans was that events overwhelmed things.

Meanwhile, the Republican Party candidate (a state legislator) had some real social liberal bona fides (pro-choice, supportive of same sex marriage). She was not a kneejerk party ideologue sort. Rachel Maddow how her on and didn't ask her about such things (what about the health care bill?). But, and an endorsement from a pro-choice group highlighted the fact, she could well have been an asset as a sane voice in the Republican caucus. There appears to be some. Instead, someone some fear is a Blue Dog sort won. The Republican, who endorsed him, very well might feel comfortable in that caucus.
I say public life with no reference to the incumbency of political office. By the public life of an American citizen I refer to his life as a sovereign; to his constant participation in the active government of his country; to the continual study and decision of political issues which devolve upon him whatever may be his occupation; and to his responsibility for the conduct of national and State affairs as the primary law-making, law-construing, and law-executing power, no matter whether or not he is personally engaged in the public service as policeman or President, as any State official whatever, member of Congress, Chief-Justice of the United States, or a humble justice of the peace. In republics official stations are servitudes. The citizen is king.

The context of this quotation, by a late 19th Century member of Congress, can be found in my discussion here as well as this law review article ("Education, Equality and National Citizenship") cited there. The article is an interesting one, underling how originalism and history is not really the enemy of the liberal point of view -- "originalists" tend to have a slanted view of things that often enough is a shallow view of the complexities of the situation. For instance, if Justice Harlan was so right in Plessy, why don't conservatives support his dissent in the Civil Rights Cases? They do realize St. Harlan also supported laws against interracial sex, right?

The discussion highlights the importance of education to citizenship and therefore the duty (and power) of both the states and the feds to secure some baseline of adequate education for all. Equality does cover social, civil and political affairs (the original view leaned toward accepting social inequality and separation, thus Harlan treated public accommodations different from public schools). But, Goodwin Liu's (author of the article) focus is on citizenship, which does not require equality as such in all these categories (though sometimes, yes) while requiring some basic floor.

Government's role in education underlines that the state has long been considered to be important here. Getting the feds involved -- even with a national university which Madison desired -- was a harder nut to crack. Liu focuses on the duty of Congress in this area, one that reflects original understanding and Harlan's discussion in his dissent to the Civil Right Cases. In passing, Liu also suggests some basic health care is necessary as well, something I go into more detail here. Such a duty suggests that Congress has the power to carry it out, using various methods including the tax/spend power, interstate commerce and Section Five of the 14A.

As I note in my health care discussion there and elsewhere, such a duty in my view also implies (basically by definition) a right. If the government has a duty to do something, even if it has some discretion (e.g., police services), we have the right to it. If the duty is somewhat open-ended, it might be harder to obtain the right by lawsuit. It might even seem a bit inchoate to really be a "right." But, I disagree. As Liu notes, the Constitution is not just about negative rights against the state. It includes some duty (right) to positive dare I say affirmative action. The recent discussion on speech outdoors (Timothy Zick) covers an example -- who but the government can truly protect our ability to publicly protest? This requires action.

Conservatives concerned about property rights can tell you about the importance of governmental action to secure such rights. Some just are a bit selective about taking this to an equitable and logical conclusion.