And the latest associate professor: James B. Stewart is one of the genuine posers of the modern press corps.
That said, it wasn’t Stewart who decided to run this long and pointless report on the front page of today’s New York Times. That decision was made by an editor—an editor who continued to show this newspaper’s oddball news judgment.
Stewart’s report runs 2400 words. It concerns an argument about broccoli and health care—an argument which came center stage when Justice Scalia sampled it during the Supreme Court’s March 27 hearing. Stewart offers the following thought about Scalia’s remark:
STEWART (6/14/12): Since then broccoli has captured the public imagination and become the defining symbol for what may be the most important Supreme Court ruling in decades, one that is expected any day and could narrow the established limits of federal power and even overturn the legal underpinnings of the New Deal.Really? Has broccoli “captured the public imagination” since March 27? Only if you listen to Rush or you watch Fox News—and truthfully, not even then. According to Nexis, this topic hasn’t been mentioned at all in the New York Times since March 31, when Stewart himself last wrote about it.
On Fox, Nexis records exactly four mentions of this topic during that 11-week span.
Stewart’s silly claim to the side, broccoli hasn’t “captured the public imagination” in the months since Scalia spoke. That said, the broccoli argument may end up playing a part in the Court’s upcoming decision. Just look what Akhil Amar told Stewart:
STEWART: Even those who reject the broccoli argument appreciate its simplicity. Whatever the Supreme Court rules, Mr. Rivkin and his libertarian allies have turned the decision into a cliffhanger that few thought possible.Professor Amar seems to agree—the broccoli argument may play a role in the way this thing turns out. For that reason, it would have been interesting to see Stewart examine Amar’s claim—his claim that it’s a horrible argument.
“I have some grudging admiration for them,” said Akhil Amar, a professor of law and political science at Yale and author of a book on the Constitution. “All the more so because it’s such a bad argument. They have been politically brilliant. They needed a simplistic metaphor, and in broccoli they got it.”
In 2400 words, Stewart doesn’t bother doing that. Does the broccoli argument make any sense? People! My dearest darlings! Why should we care about that?
Stewart piddles all about, evading the key, basic point. But if you think his front-page news report is an example of sad-sack journalism, we also recommend yesterday’s fiery op-ed piece, “I’m a Mormon, Not a Christian.”
The column was written by David Mason, a fiery associate professor at Rhodes College in Memphis. Early on, the fiery fellow let us know that he is just extremely tired of all the acrimonious niggling concerning Mormons and Christians:
MASON (6/13/12): I am confident that I am not the only person—Mormon or Christian—who has had enough of the acrimonious niggling from both sides over the nature of the trinity, the authority of the creeds, the significance of grace and works, the union of Christ’s divinity and humanity, and the real color of God’s underwear.Mason has had enough of the acrimonious niggling! Indeed, to show us he’s had enough, he writes an op-ed column about the niggling in the nation’s leading newspaper, a column in which he manages to hit every hot button known to man or talk radio host. He hits the underwear in the passage we’ve quoted, but that’s just one of his cries for attention.
Before the fiery Mason done, Jesus is “a bumpkin carpenter” and Christianity is or was involved in “cannibalism.” Here's the good news: If Christian war against Mormons hasn’t broken out once again, we’ll guess it never will!
Mason’s piece is highly acrimonious. It’s built on nothing but attitude. We humans almost always react when provoked, but does anyone actually care whether Mason, who is a Mormon, considers himself a Christian? We have no idea why the Times would want to run a fiery piece of this type, especially at a time when it might serve to jumble a White House race.
Does anyone on the planet care if the very fiery Mason considers himself to be a Christian? One more question:
With fiery associate professors like this, who needs talk radio hosts?
The look of one person nodding: Yesterday, we discussed Michael Barbaro's report about the "verbal gaffe" war between Obama and Romney. Each hopeful is saying the other rates as "out of touch."
Are these claims working? This is what counts as "evidence" in the world of the New York Times:
BARBARO (6/13/12): On Tuesday morning, [Romney] appeared on ''Fox and Friends,'' where he said the president was ''really out of touch with what is happening across America.''Is Romney's criticism seeping in? Barbaro can pretty much say that it is because he saw one person nodding!
''The president needs to go out and talk to people, not just do fund-raisers, go out and talk to people in the country and find out what is happening,'' Mr. Romney said.
That criticism appears to be seeping in. At the event here, Frank Attkisson, a small-business consultant and local commissioner, nodded in agreement with Mr. Romney during the speech, and afterword said the president's statements about the private sector and the health care law reveal ''his true colors.''
This article by Ronald Dworkin in The New York Review of Books has the best explanation I've come across of why the broccoli argument is illogical:ReplyDelete
After a look at this article, it looks frankly like still another results based argument: Dworkin wants to defend ACA, so rummages up reasons to justify it. He doesn't seem to me any more objective about the Constitutional issues than he claims that the current Supreme Court might be.Delete
At the very least, I don't see how he could possibly make out the claim that the particular line of argument he proposes is obviously correct, and so must be accepted by any objective Supreme Court. If the line of argument is not obviously correct, how can anyone claim that if the Supreme Court rules otherwise, it must be engaging in nothing more than results based reasoning?
Just to add to my point, I really do think that Dworkin is just engaging in hackery at certain critical points of his argument.Delete
For example, he wants to assert that the ONLY reason Federal powers were limited were so that the Federal government could deal with "national" issues (whatever they may be), whereas the states could deal with "local" issues. I can't even begin to understand how he might make out this argument. One of the major motivations behind the Constitution was to limit the powers of the federal government so that it could not become tyrannical as was, say, the government of England at the time (or so it was thought). The basic idea -- at least for many of the Founders -- was that the Federal government should enjoy only explicitly countenanced powers, leaving the rest to the States. The danger of allowing the Federal government essentially free rein over almost all conceivable powers was the prospect of tyranny. Those remaining powers, insofar as they must be or should be exerted by any government, should devolve to the States or even more local governments. Whether or not an issue might be conceived to be "national" is irrelevant to the question as to whether the Federal government is entitled to rule upon it: it must be explicitly granted by the Constitution.
Frankly, I don't see how any honest Constitutional scholar would miss this point.
Dworkin's analysis may not be perfect, and there may be others that are better. But the point here is not whether any of these analyses are right or wrong, it's that none of them can be found in the New York Times -- even in the Times's own front-page story about the broccoli argument! The Times is "covering" this story in the same way it "covers" the presidential race by reporting on the candidates' clothes and hair.Delete
I beg to differ regarding your contention that "One of the major motivations behind the Constitution was to limit the powers of the federal government." On the contrary, after experiencing the lack of power of the federal government under the Articles of Confederation during the Revolution, it was agreed the new Constitution would grant the federal government more powers over the states.
Regarding your notion of tyranny, from the Wikipedia article of the Constitutional Convention: "The delegates also agreed with Madison that the executive function had to be independent of the legislature. In their aversion to kingly power, American legislatures had created state governments where the executive was beholden to the legislature, and by the late 1780s this was widely seen as being a source of paralysis. The Confederation government was the ultimate example of this." The resulting federal government would have checks and balances, consisting of the three separate branches of government, the Executive, Legislature, and the Judicial, which was intended to be the check against tyrannical government.
Your conception, while popular with the Tea Party folk, et alia, is not accurate.
Of course, I could be wrong (but I don't think so).
Well, certainly Dworkin's analysis is a step up from the NY Times' treatment of the broccoli argument, which basically amounts to saying "Broccoli! You're going to talk about broccoli at a time like this! Everybody knows this isn't about broccoli!"Delete
But Dworkin, I think, merely sputters at a higher level. He tries to act as though there isn't any serious Constitutional question at issue. And yet I don't see how he even begins to make out that argument; even if he is right, he is most certainly not OBVIOUSLY right.
And yet he sputters as if he IS obviously right, and the SC, for even entertaining different notions, is obviously wrong.
How does the fact that the constitution granted more power to the federal government negate the claim that limiting the powers of the federal government was an important principle for the founders? Is it possible they could have seen the confederation federal government as too weak, and still believe that the powers of the federal government needed to be limited?Delete
I really don't see how what you describe is inconsistent with what I've said.
The fact that the Articles of Confederation did not give sufficient power to the Federal government hardly implies that the Constitution did not itself intend to rein in the powers of the Federal government. Rather, it was intended to grant the Federal government more explicit powers than had the Articles of Confederation, because those were clearly insufficient.
And I don't see how the powers granted to the executive branch in particular are directly related to this issue. Yes, the split of powers into the three branches of the Federal government are also intended to prevent tyranny. But likewise so was the split of powers between the states and the federal government. And the greatest fear of too much power was, naturally, at its most central level: the federal government.
I didn't expect that my linking to Dworkin's article would trigger such a detailed discussion of his analysis. Not that there's anything wrong with that! But, as so often happens here, Bob's point is being lost, buried under a mountain of tangential comments. I linked to the article simply to show that while the Times fiddles around with fluff, some publications are doing the hard work of examining political and legal positions in terms most people can understand.Delete
I get Bob's point, and appreciate it.Delete
But what's important to see is how an "analysis" like Dworkin's actually serves to try to discredit such things as the "broccoli argument". In my view, that really is the only fundamental point of his argument: that the SC is inexcusably partisan even for entertaining such an argument.
It is because of "analyses" such as Dworkin's that the NY Times feels fully confident it can just dismiss without a thought the broccoli argument -- Dworkin, they imagine, has their back on this. They need only quote his august name, and a contemptuous quote from him, and the deal is done.
But, of course, each side will have its august scholars it can invoke to justify its stand, and its dismissal of its political opponents. And so the argument never really takes place in the larger public sphere -- only snide remarks.
Fair enough, Highly Ad. I get upset when the comments seem to stray so far from what this blog is all about. But I appreciate your response and your bringing the discussion back to the Times.Delete
Mason's screed was published, I imagine, because it fits and even adds to the "Mormons sure are weird" meme that the Times seems think will help Obama.ReplyDelete
"We have no idea why the Times would want to run a fiery piece of this type, especially at a time when it might serve to jumble a White House race."ReplyDelete
I think Bob is just being facetious here, but regardless -- ummmm, yea, that was the whole point of running it.
Also, as a former mormon myself, if, after writing this article, Asst. Prof. Stewart hasn't been released from his church position or at the very least had a stern talking to from his local leaders, I would be surprised indeed.Delete
Whoops, I mean Associate Prof. MasonDelete
By the way, my opinion on the broccoli scenario is, yes, the federal government could require you to buy broccoli, so long as congress reasonably felt it was necessary and proper in the excercise of a legitimate federal power, such as the regulation of commerce among the states or promoting the general welfare. And remember, "constitutionaly permitted" does not necessarily equate to just, good or even non-weird.ReplyDelete
However, a law that required you to not just purchase, but also EAT broccoli would be much more constitutionally problematic, in that it would probably violate a fundamental liberty interest/ violate substantive due process (fundamental right to bodily autonomy-not injest something against your will).
I think the reason the broccoli argument is effective, despite being misleading, is because it intentionally confuses a requirement to purchase a product (reasonable and analogous to the ACA mandate) with a requirement to consume a product (much more problematic on fundamental liberty grounds). Conservatives use the argument "Could the government require you to buy broccoli?" knowing that subconsciously what people hear is "Could the government force you to eat your broccoli?"