In response to increasing rights for LGBTQ individuals in the United States, particularly the Supreme Court’s affirmation of the right to same-sex marriage in Obergefell v. Hodges, eleven states have imposed laws or policies permitting child welfare organizations to deny services in accordance with their religious beliefs. These measures generally prohibit the state from “discriminating against” religious child welfare organizations by denying them funding or program participation when they refuse to provide services based on their religious beliefs. This Note provides an overview of these religious exemption laws and ultimately argues that, by requiring government funding of discriminatory child welfare organizations, the laws are unconstitutional under the Establishment Clause. The Note begins by considering relevant details about adoption and foster care systems in the United States. It then turns to the laws and policies in question, discussing their provisions, motivations, and impact. Then, taking two specific laws as examples, it analyzes these laws’ constitutionality, arguing for their invalidity under several approaches to understanding the Establishment Clause. By favoring certain religious viewpoints over others, permitting religion to dictate who receives government benefits and services, and imposing burdens on third parties (particularly LGBTQ prospective parents and youth), religious exemption laws ignore the line between church and state in violation of the Establishment Clause.
It’s John Brown’s birthday today, and I thought it’d be worthwhile to tell an old and largely-forgotten story about an effort to honor the radical abolitionist.
In late May of 1932, the N.A.A.C.P. held its annual conference in Washington, D.C. One day, the delegates made a pilgrimage 66 miles west to Storer College1 in the town of Harper’s Ferry, West Virginia—the site of Brown’s famous 1859 raid—and heard an address from the eminent historian W.E.B. Du Bois, who had a bone to pick with the administration.
“There is a tablet in that chair, a little thing of bronze,” Du Bois told his audience. “It was intended to be put here at Storer College. We are going to take it back with us. I am sorry.”
The chosen place for the memorial tablet was the old firehouse where Brown and his fellow insurgents had made their last stand. It had come to be known as John Brown’s Fort and then stood on the grounds of Storer College.
The tablet bore the inscription above, which Du Bois had written.
This inscription proclaimed a view of the past to which America was not then awake. In so many words, it called slavery a crime of which all of America was guilty. It linked John Brown’s seditious raid, which had sought to seize weapons from the U.S. arsenal in Harper’s Ferry to arm a slave insurrection, with the glorious-but-vague cause of the Union in the Civil War. It called Brown’s execution, counterfactually, a crucifixion, linking his martyrdom with Jesus Christ’s. And it put front and center the role of black Union soldiers in ending slavery, a contribution that white mainstream historians had done so much to efface.
The college had initially welcomed the idea of a plaque, but once they saw Du Bois’s text, they backed out. DuBois read a statement from the N.A.A.C.P. explaining the situation at the end of his speech:
Upon submission of this wording and after the order for the tablet had been placed, the trustees of Storer College expressed a desire that no controversial matter be included in the inscription and that no idea or phrase be used which might give offense to anyone. It was suggested that a tablet bearing the words, “John Brown, 1859 — His Soul Goes Marching On,” would be all that the trustees would wish. The N.A.A.C.P. was unable to agree to such a wording in that it would not express what the Association wished.
In fact, the N.A.A.C.P. had intended, in this small way, to shake up the emerging Lost Cause consensus. One of their purposes in placing the tablet was, the statement said, “to make answer to the new copperheadism2 which has infiltrated into practically all of the writings of contemporary historians regarding the causes of the Civil War, the Reconstruction Period, and the Negro’s part in both of these.”
Du Bois defended every word of his text, and here it is worth quoting him at length:
We have been re-writing recently the history of the United States, and the children here in Storer College and you who are larger children, and the children throughout the United States, are being taught that after all slavery was not evil; that everybody connected with it was good; that every body was trying to to do the right thing; but unfortunately the wrong thing was done; so that all we have to remember is the Right that people wanted to do and not the Wrong they did.
And I was trying to aim a blow at that lie.
I know there are people here at Storer College and round about who believe in the Lost Cause; people who suffered in the Civil War just as much those who won. Nevertheless, their cause was lost, and it ought to have been lost; and it does not make any difference what Daughters of the Confederacy say here or elsewhere, it remains eternally true that you cannot make the defense of human slavery heroic. There is no way in which you can write history so as to make it heroic.
I am not only willing to admit, but I know it to be perfectly true that the guilt was not wholly in the South. There were men in the North who invested in slavery and defended it. The great mass of the people of the North never aimed to abolish slavery. I did not say John Brown was fighting against the guilty South. I said he was fighting against a guilty nation, and the whole nation was indeed guilty.
I come to the second matter concerning which there is even more controversy. I have been reading again the last few days the history of Emancipation—what men said and what men did. As you know and as students in school ought to know, there has been a concerted effort to minimize the part which Negroes themselves took in the emancipation of slaves. Just as an attempt was recently made to praise the few Negroes of Harper’s Ferry who did nothing, so there is a wider attempt to show that after all the slaves loved slavery. Therefore I sought to emphasize, in this inscription, the fact that slaves and persons descended from slaves, fought side by side with John Brown. There were Osborne Perry Anderson, Shields Green, Dangerfield Newby, John A. Copeland, Lewis Sherrard Leary, John Anderson, and Jeremiah Anderson. Two were fugitive slaves, three were free-born sons of slaves and two were grandsons of chattels. Four of them were killed, two of them were hanged, and one escaped; and not only that, but something like seventeen other Negroes of the neighborhood were killed at the time. Thus at least seven slaves and sons of slaves fought with John Brown.
There comes now a matter which is more or less one of sentiment. “Over his crucified corpse.” I might have said “Over his corpse.” Some people have the idea that crucifixion consists in the punishment of an innocent man. That is not crucifixion. The essence of crucifixion is that men are [k]illing a criminal, that men have got to kill him; that he has got to be a criminal; and yet that the act of crucifying him is the Salvation of the World. John Brown broke the law; he killed human beings, not only here at Harper’s Ferry but in Kansas. He intended to kill human beings. That was against the law, and he deserved to have had the law executed upon him; those people who defended slavery had to execute John Brown although they knew that in killing him they were committing the greater crime. It is out of that human paradox that there comes Crucifixion.
Then again, continually we forget or try to forget the black soldiers of the Civil War. They do not march in our current textbooks. I doubt if they march in the textbooks used here at Storer College. But there were two hundred thousand black soldiers that marched in the War that emancipated the slaves and at least one authority says that without them that War could not have been won: and that authority was Abraham Lincoln.
And over that dead body of John Brown four million freedmen also marched, — singing.
I am sorry that Storer College and its trustees and its President did not have the courage to have this memorial left here. I am not sorry for myself. I know about John Brown. I am sorry for these students here and the students that are coming. Because after all it is the Truth, in the long run, that makes us free.
Du Bois’ speech, and the controversy that animated it, were not covered in The New York Times. The paper ran a brief item about the “dedication” of the tablet on page 27 of the next day’s paper, but the reporter either didn’t notice or failed to mention that the memorial had been rejected and wouldn’t be staying in Harper’s Ferry.
Drexel University Thomas R. Kline School of Law; University of California, Berkeley - School of Law, Center for the Study of Law and Society
Date Written: April 30, 2021
Abstract
Hours after taking office, President Joe Biden began dismantling the immigration restrictionist policies of his predecessor. Emphasizing that immigrants “strengthen America’s families, communities, businesses and workforce, and economy”—and that “enforcing the immigration laws is complex and requires setting priorities to best serve the national interest”—the new president and other officials rescinded a raft of Trump-era directives, instituted new interim enforcement priorities reflecting the Biden administration’s own values and principles, and directed a comprehensive, 100-day review of all enforcement policies and practices. To facilitate implementation of those initiatives, officials also ordered a partial, 100-day moratorium on deportation of certain noncitizens with final orders of removal, which nevertheless permitted other enforcement activities to go forward and even allowed removal of individuals covered by the moratorium on an individualized basis.
Republican opponents immediately filed lawsuits challenging these measures, and within days the partial moratorium was blocked by U.S. District Judge Drew Tipton, who had been confirmed by the Republican-controlled Senate on a narrow, party-line vote only months before Biden’s election. In this Article, I examine Tipton’s decrees, which suffer from significant substantive flaws, and the broader significance of this effort to undermine the Biden administration’s immigration agenda. Remarkably, the seeds of this effort were planted in the days and weeks before Biden’s inauguration by the Trump presidency itself. While it is not uncommon for outgoing presidential administrations to attempt to tie the hands of their successors in various ways, the efforts by the outgoing Trump presidency and its allies to stymie the new administration’s immigration agenda have been unusually irregular and aggressive.
The lasting significance of Tipton’s decrees may appear limited, especially with the Biden administration’s first hundred days having come and gone. At another level, however—and especially in the wake of a violent, anti-democratic insurrection evidently fueled in significant part by hostility towards immigrants—Tipton’s decrees constitute a more ominous sign of what may lie ahead. As its first hundred days in office draw to a close, the Biden administration faces a growing number of lawsuits by Republican political opponents that seek to entrench the Trump immigration agenda and effectively deny the Biden administration’s ability to implement its own policies. A federal judiciary significantly transformed during the Trump presidency has become a central arena for this emergent politics of restrictionist entrenchment. By immediately giving even limited effect to the claims against the new administration’s initiatives—and suggesting that he might eventually endorse even broader claims—Tipton’s decrees offer a window into the methods that a judiciary packed with Trump appointees may use as eager, active collaborators in those partisan efforts to undermine the new administration’s policy agenda. The potential implications extend far beyond the fate of the 100-day removal moratorium itself.
Kalhan, Anil, Immigration Enforcement, Strategic Entrenchment, and the Dead Hand of the Trump Presidency (April 30, 2021). 2021 University of Illinois Law Review Online 46 (Biden 100 Days), Available at SSRN: https://ssrn.com/abstract=
When I first met Carol Dana, in the spring of 2018, she told me that she was thinking of getting a parrot. Dana, a member of the Penobscot Nation, one of five hundred and seventy-four Native American tribes recognized by the United States federal government, was attending a small ceremony at the University of Maine’s anthropology museum. She wore her silver hair pulled back from her face, and introduced herself to me as the tribe’s language master, a title, she added, that she wasn’t fully comfortable with. The idea of mastery seemed an imprecise way to describe the fraught relationship she had with the Penobscot words inside her head. Though not fluent, Dana has a better grasp of the language than anyone else on Indian Island, where six hundred of the world’s estimated twenty-four hundred members of the Penobscot tribe live. She admitted to being linguistically lonely. “I’ve been talking to myself in Penobscot for years,” she said. “You need to say it out loud, so your own ears can hear it.” Though she knew that a bird wouldn’t be able to carry on a conversation, she thought that simply hearing Penobscot words spoken at home by another living creature would be better than nothing.
Dana, who is sixty-eight, learned most of what she knows of Penobscot not from her tribal elders but from Frank Siebert, a self-taught linguist who hired her, in 1982, as a research assistant. He was seventy; Dana was thirty. Siebert had grown up in Philadelphia and had been passionate about Native Americans for as long as he could remember—as a child, he had slept with a toy tomahawk in his bed. He, Dana, and a few other assistants worked in a bare office on Indian Island, a mile-wide shallot-shaped island in the middle of the Penobscot River. Dana, who was brought up there, had as a child been forbidden to go to the mainland, and she’d spent her school-age days picking blueberries and mayflowers, building lean-tos, and impaling apples on sticks, throwing them like javelins. In the summer, she and her friends swam in the river; in the fall, they wrestled in the leaves. Siebert, who had moved to Maine permanently about fifteen years before Dana joined him in his work, had no such memories, but together they muttered and scribbled in a language that only a handful of people still spoke.
I first heard about Frank Siebert a year before I met Dana, from Jane Anderson, a legal scholar at N.Y.U. I was interested in the ways in which indigenous knowledge, passed down through many generations and often collectively held, is considered essentially authorless by Western intellectual-property law. Anderson, who is Australian, works with indigenous communities around the world to help solve conflicts over the ownership of ancient ideas. I had come to her with questions about a burgeoning movement in Guatemala to trademark traditional weaving designs, but within an hour I was convinced that I should travel not to Central America but to Maine, which, she told me, was home to a sovereign nation whose language was technically owned by a dead white man who had devised a way to write it down.
The name Penobscot is a mangled rendering of punawuhpskek—or pαnáwαhpskek, in the writing system Siebert introduced—meaning “the place where the rocks clear out.” For more than three hundred generations, the tribe, which once had fifty thousand members, hunted on the banks of the Penobscot River, navigated its waters, and spoke one of the many Eastern Algonquian languages heard along a swath of the northern Atlantic coast—an area that today extends from Nova Scotia to North Carolina. Siebert began studying the Penobscot language in the nineteen-thirties, four hundred years after European explorers arrived. By then, all that was left of the Penobscot territory, which once encompassed half of Maine, was a reservation that included Indian Island, which can be circumnavigated by foot in less than an hour, and some smaller islands along the river. The tribe’s language had nearly disappeared from use. Beginning in the eighteen-eighties, Penobscot children were sent to government-sponsored residential schools, where teachers beat them for speaking anything but English. “Anywhere else in the world, you’re thought to be more intelligent if you’re bilingual—except for us, for some reason,” Dana told me. The strategy, replicated across the country, was effective: more than three hundred indigenous languages were once spoken in the United States; today, linguists worry that within thirty years there will be only twenty. By the middle of the twentieth century, there were just two dozen Penobscot speakers on Indian Island, most of them elderly. When they tried to teach Penobscot to younger members of the tribe, their efforts were met with complaints that there was no use for it anyway.
But Dana loved listening to her grandmother speak the language of her ancestors. Like other indigenous New England dialects, Penobscot does not distinguish between certain commonly used consonants—“B”s and “P”s, for instance, or “Z”s and “S”s. The sonic effect of Penobscot—melodic, gentle, and worn-sounding, almost like singing—is at odds with the language’s structure, which is especially visual, efficient, and kinetic. Single words can express full ideas. Canoe is “that which flows lightly upon the water”; an otter is a “wandering portager”; lunch is “noon eat”; butter is “milk grease”; flower is “something bursting forth into the light.” Dana describes Penobscot words as “little poetic pictures.” Her grandmother was a stoic and remote woman when she spoke in English, but she seemed transformed when laughing and joking and talking with her Native friends. “That’s how language is conveyed,” Dana said. “Around the kitchen table.”
Dana first applied for a job on Siebert’s team in 1979; she told me that she had been frustrated when Siebert gave the job not to her or to another Penobscot person but to a “red-haired woman from Connecticut.” Two years later, Siebert agreed to take Dana on as well; he had her sort through stacks of materials—transcripts of interviews he’d conducted with elders in their homes, journals and notecards scrawled with vocabulary that was written in the orthography he’d developed, which was punctuated with unfamiliar, academic diacritics.
Dana was moved by what she learned. There is no word in Penobscot for “goodbye, ” only the more optimistic “I’ll see you again.” Verbs of motion almost always have prefixes. People don’t just walk or jump. They walk from here or to there; they jump across or out or up. Through syntax and morphology, the language conveys how the speaker relates to the event she is describing: Did she witness it, or does she have only indirect evidence that it occurred? Is it hearsay? Built into the language is the directive to cite one’s sources. When I asked Dana whether she ever felt resentful or embarrassed that she had learned her own language from a white man, she laughed. “Oh, yes, all of that,” she said. “But it didn’t quite feel like I was learning it from him.” It was her ancestors’ language that she was reading, not Siebert’s.
There was no bridge to Indian Island when Siebert made his first trip there, as a twenty-year-old college student, in 1932. The ferry, a flat-bottomed bateau, cost ten cents, round trip. It was August, and the river was low the day he boarded the boat and paid his fare. He asked where he might find someone willing to speak Penobscot with him, and the ferryman pointed toward a honeysuckle-lined path that led through the woods. At the end of the path lived a pious man in his sixties named Louis Lolar. Siebert introduced himself, and Lolar invited him inside. His small home was sparsely furnished; like the other houses on the island, it had no indoor plumbing. The two men sat by Lolar’s woodstove, and Siebert practiced Penobscot until the sun went down. To an English-speaking eavesdropper, the conversation would have sounded a bit like a choir lesson.
Siebert was nearsighted and nearly six and a half feet tall. Everyone thought he looked German. His high-school yearbook had remarked on his “unobtrusiveness and complete disdain (as far as we know) of the female sex.” By the age of fifteen, he had read everything he could find about Native Americans, and had grown so impatient with the limitations of the local public library that he’d begun creating his own private one. His first purchase, in 1928, was a reprint of a seventeenth-century Christian primer written in Wampanoag, a language related to Penobscot. It cost him twenty-five cents. Siebert’s father was a train inspector; his mother, a savvy stock investor. They wanted him to become a doctor, and so he did. It was when he entered medical school, at the University of Pennsylvania, that his double life began.
Siebert took the required courses in biochemistry and immunology, but he spent his free time learning about indigenous North American languages. He took regular trips up the East Coast, to attend lectures at Columbia, with Franz Boas, widely considered the pioneer of modern anthropology, and at Yale, with Edward Sapir, a founder of ethnolinguistics. At the University of Pennsylvania, Frank Speck, an anthropologist specializing in the Algonquian and Iroquoian peoples, nurtured Siebert’s special interest in Penobscot. Speck kept office hours in a book-lined neo-Gothic chapel filled with living snakes and lizards, and was known to shoot arrows from a crossbow into the door. Speck had visited Indian Island in 1907 and collected Penobscot stories from Newell Lyon, a speaker in his seventies. (At the time, linguists called such Native collaborators “informants,” as though in admission that their work involved a kind of treachery.) The stories chronicled the exploits of Gluskabe, a shamanic hunter and trickster whose grandmother, a woodchuck, teaches him how to survive in the wilderness using interspecies statecraft. The Gluskabe stories were passed down in the community like heirlooms. Sometimes one family would take a particular narrative into its care, as if for safekeeping, and another family would have to ask for permission to relay it. In 1918, eleven years after his first trip to Indian Island, Speck published the stories in an academic journal.
In Speck’s office, Siebert memorized Penobscot vocabulary while keeping an eye on a white fox, which hid behind a leaking radiator. To learn the language’s grammar and make his first attempts at a Penobscot orthography, Siebert pored over Speck’s transcriptions of Lyon’s Gluskabe stories, marking up their margins in green and red ink. Like the patients Siebert was learning to treat, the language was frail and suffering. In a letter he sent at that time, he described Penobscot as “nearly dead in all respects.”
Because Rudy Giuliani is a lawyer special rules apply for searching his files. In order to avoid invading confidential attorney-client communications the Department of Justice has asked that a special master be appointed to sort through the materials, putting aside what is irrelevant to its investigation of the former personal attorney of Donald Trump.
When a new National Security Law for Hong Kong went into effect on June 30, 2020, some observers believed it might serve more as a latent threat than an active tool. Many hoped both the Hong Kong government and Beijing might see the enactment of the law itself as a sufficient deterrent, a signal of Beijing’s resolve to turn the page on the widespread public protests in 2019.
Any hopes for restraint have, thus far, been dashed. In the nine months since the National Security Law (NSL) was passed, more than 90 people have been arrested under the new legislation. Though they have been charged with various breaches of national security ranging from inciting secession to terrorism, their primary crime appears to be peaceful criticism of the government. If found guilty, they face prison sentences that could stretch on for years, or even, in some cases, for life. The government has also used the law to reshape Hong Kong’s civil service, to reform the education sector, and to restrict press freedom.
A closer look at the arrests under the NSL or conducted by the newly-created National Security Department (NSD) of the Hong Kong Police paints a clearer picture of how authorities in Hong Kong have implemented the new law, and what they might hope to achieve. The case data, assembled by the Georgetown Center for Asian Law, draws on an extensive review of media reports and interviews with experts who have been closely following the implementation of the law.
Hong Kong’s government has made regular use of the NSL since its first full day as binding law. On July 1, 10 individuals were arrested under the NSL. They had been taking part in protests that day marking the 23rd anniversary of Hong Kong’s reversion to Chinese sovereignty. As of May 3, 92 individuals have been arrested for alleged crimes under the NSL, including 19 individuals who have been arrested for a combination of crimes under the NSL and under other laws. The NSD has also arrested 21 individuals for crimes not covered by the NSL, bringing the total number of cases included in this dataset to 113. These last 21 arrests seem to be in violation of the NSD’s already broad statutory mandate. Launched concurrently with the NSL, the newly formed NSD is tasked with implementing the new law, and does not have clear legal authority to investigate non-NSL crimes.
Can such broad application of the NSL be justified as an appropriately robust response to a legitimate state security threat? The answer seems to be no. We were unable to unearth any information that would justify the radical increase in national security-related arrests and criminal charges since the NSL went into effect. According to publicly-available information on the cases that have emerged thus far, the vast majority of NSL arrests would not be considered national security cases in other rights-respecting jurisdictions.
If we are honest with ourselves, all Catholics should approach the Eucharist in fear and trembling. It is like the words "Thy will be done" in the Lord's Prayer: We say them sometimes without thinking of their dreadful meaning, when we should always ponder the crucified Christ when we utter those words. But we also should approach the Eucharist in hope and confidence. However great our sins, God's mercy is yet greater.
That goes for President Joe Biden too.
I do not know what goes through Mr. Biden's mind when he stands in line for Holy Communion. I suspect that the responsibilities of his office awaken in him a humility that is quite astounding, as he carries burdens most of us can only imagine and that he cannot really share with anyone. If he turns to the Mass for solace or comfort or inspiration or grace, thanks be to God.
In truth, we do not even know how frequently he takes Holy Communion because the press pool is not allowed in the church. On the morning of Biden's inauguration, cameras were permitted at the very beginning of the Mass, to show the assembled political leaders, but the photographers were then escorted out before the Eucharistic canon. The Catholic Mass is never private — the angels are always present! — but Biden has never sought to exploit his attendance for politics. He discusses his religion the way he discusses his parents or his wife, as a necessary part of any effort to explain himself to others.
I do know this: Whatever is going through his mind is a matter for him and his pastor, and his pastor is not Archbishop Joseph Naumann of Kansas City, Kansas, who was quoted in last week's AP story explaining why the U.S. bishops' conference should draft a document that makes it clear Biden should not present himself for Communion.
Archbishop Samuel Aquila of Denver, who was also quoted advocating for the conference to adopt a national policy on the matter, and clearly favoring denial of the sacrament, is not Biden's pastor either. Nor is San Francisco Archbishop Salvatore Cordileone, who issued a pastoral letter on the subject Saturday, a document that exiles important qualifications and elides important facts in its relentless effort to reach the narrowest moral analysis possible.
What is going on? Naumann, Cordileone, Aquila and Olmsted are not stupid men. They know that a bishops' conference has no role in this matter, that Biden is a baptized Catholic, subject to canon law, and that canon law leaves this issue entirely to Biden and his pastor. They know, too, that persisting in this effort will further divide their own organization, pitting bishop against bishop on a highly public issue that is emotionally fraught and involving issues that are easily misunderstood and even more easily enflamed to affect emotional manipulation. They also know that a teaching document requires a two-thirds majority vote, and it is highly doubtful they would achieve that, and such a document requires the approbation of the Holy See, which is even less likely.
IIIt seems obvious to me that this rush to draft a document is the ecclesial equivalent of the effort by Republican officials to cast doubt on results of the 2020 election, an effort to delegitimize Biden in the public's mind.
China gets our attention much more than does India/ But it is not China, but India where the great slaughter of the present moment is taking place. China is practically virus free. When the pandemic began Americans shrugged off the massive isolation hospital built in two weeks in Wuhan, the extreme shutdown orders, etc. `That's what dictatorships do' was the refrain. As we became the epicenter Americans didn't take advice, much less follow orders.
But India under the leadership of Narendra Modi has failed massively. And, as one who lived there fifty years ago for two years, I can tell you that anti-Muslim bigotry and religious obscurantism are the driving force behind Modi's nationalist movement. However bad things are reported to be...it is even worse...a lot worse, as the villages where millions live do not have tests, hospitals, or oxygen.
During a particularly polarising election campaign in the state of Uttar Pradesh in 2017, India’s prime minister, Narendra Modi, waded into the fray to stir things up even further. From a public podium, he accused the state government – which was led by an opposition party – of pandering to the Muslim community by spending more on Muslim graveyards (kabristans) than on Hindu cremation grounds (shamshans). With his customary braying sneer, in which every taunt and barb rises to a high note mid-sentence before it falls away in a menacing echo, he stirred up the crowd. “If a kabristan is built in a village, a shamshan should also be constructed there,” he said.
“Shamshan! Shamshan!” the mesmerised, adoring crowd echoed back.
Perhaps he is happy now that the haunting image of the flames rising from the mass funerals in India’s cremation grounds is making the front page of international newspapers. And that all the kabristans and shamshans in his country are working properly, in direct proportion to the populations they cater for, and far beyond their capacities.
“Can India, population 1.3 billion, be isolated?” the Washington Post asked rhetorically in a recent editorial about India’s unfolding catastrophe and the difficulty of containing new, fast-spreading Covid variants within national borders. “Not easily,” it replied. It’s unlikely this question was posed in quite the same way when the coronavirus was raging through the UK and Europe just a few months ago. But we in India have little right to take offence, given our prime minister’s words at the World Economic Forum in January this year.
Modi spoke at a time when people in Europe and the US were suffering through the peak of the second wave of the pandemic. He had not one word of sympathy to offer, only a long, gloating boast about India’s infrastructure and Covid-preparedness. I downloaded the speech because I fear that when history is rewritten by the Modi regime, as it soon will be, it might disappear, or become hard to find. Here are some priceless snippets:
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“Friends, I have brought the message of confidence, positivity and hope from 1.3 billion Indians amid these times of apprehension … It was predicted that India would be the most affected country from corona all over the world. It was said that there would be a tsunami of corona infections in India, somebody said 700-800 million Indians would get infected while others said 2 million Indians would die.”
“Friends, it would not be advisable to judge India’s success with that of another country. In a country which is home to 18% of the world population, that country has saved humanity from a big disaster by containing corona effectively.”
Modi the magician takes a bow for saving humanity by containing the coronavirus effectively. Now that it turns out that he has not contained it, can we complain about being viewed as though we are radioactive? That other countries’ borders are being closed to us and flights are being cancelled? That we’re being sealed in with our virus and our prime minister, along with all the sickness, the anti-science, the hatred and the idiocy that he, his party and its brand of politics represent?
John Fabian Witt’s American Contagions, a startling feat of synthesis in five short chapters, is intended as a “citizen’s guide to the ways in which American law has shaped and responded to the experience of contagion.” On page 107 of this slender volume, Witt, a professor of law and history at Yale University, in New Haven, Connecticut, poses a question to readers: How did history matter? Readers thus have to share the foundational belief that history does matter to engage with the question of how it matters.
Witt describes the two basic pathways of response to epidemics among the US and other modern nation states. One response, termed “Sanitationist,” is generally associated with liberal reformers like John Snow and looks to formulate policies that eliminate disease from poor environments. The other pathway, “Quarantinist,” has authoritarian tendencies—quarantinists are noted for their assertiveness in controlling the bodies and lives of their subjects.
The first three chapters look at these two pathways as they played out in the US from the colonial era up to the beginning of the twentieth century, and particularly the interplay between (a weak) federal authority and energetic state and local authorities who had no trouble instituting “innumerable public health mandates.” These chapters reveal that many contemporary state lawsuits brought against governors and legislators for mask mandates, shelter-in-place orders, and restrictions on religious gatherings would have never stood a chance in nineteenth-century state courtrooms. For instance, back then, in Michigan—a state no stranger to activism against COVID-19 restrictions—a person could be fined up to $100 for failing to report a loved one with smallpox. Witt locates state public health mandates in the sanitationist camp, as they worked to alleviate conditions that promote disease. Witt also documents a countervailing quarantinist camp in the US during that era, derived from the federal government’s power to impose maritime quarantines. Quarantinist responses in the US, first exercised against German immigrants in Philadelphia after the 1793 yellow fever epidemic and seen in many restrictive immigration laws up through the twentieth century, have most often been associated with exclusion and prejudice. The starkest aspects of quarantinism discussed in early chapters are those directed at the control of Black bodies, starting with the mistaken belief that African Americans were immune to yellow fever and continuing up through the building of the Panama Canal, when Black laborers were housed in tents without mosquito screens and suffered death at a rate four times that of White laborers.
The final two chapters sketch out the changing nature of the two camps of thought. Public health authorities, whom one might have associated with quarantinist ideologies, became something of civil libertarians during the HIV battles of the late twentieth century and Ebola outbreaks in the twenty-first, opposing forced isolation and quarantines of exposed persons because it would drive people underground. The sanitationist camp became identified with pharmaceutical firms because of their ability to gain monopoly control over treatments through the proliferation of patents, thus limiting access to needy populations.
Witt then explores our current circumstances in light of twentieth-century experiences and court decisions. It was thought that after the 1905 Jacobson v. Massachusetts decision, which granted states authority to mandate vaccinations, power would eventually migrate to the federal government. Yet something of the reverse happened: Supreme Court rulings in 1995 and 2012 made it virtually impossible for the federal government to enact any kind of medical mandate. Witt notes that a Congress without the power to compel people to buy health insurance is likely a Congress without the power to mandate shelter-in-place rules or quarantines in the states. More worrisome is the movement among more conservative justices to prioritize the right of religion and religious assembly over other public health concerns, overturning a long tradition of deference to the states with regard to restriction of religious activities during public health emergencies.
Witt’s argument is that our history and legal traditions matter. The split and decentralized nature of public health responsibility led to “awkward” and “bumbling” responses to the COVID-19 pandemic. The quarantinist tradition enshrined in legal structures created gravely disproportionate risks for people of color.
The book closes with the accusation that our legal system has failed us: “A decent society that relies in ordinary times on private property and the market to create and distribute wealth and flourishing must have legal arrangements that are up to the task of providing for basic needs in crisis times,” Witt writes. “Therein lies the ancient Ciceronian idea that the health of the people is the supreme law. American legal rules and institutions utterly failed to enact this moral imperative in the coronavirus emergency.”
Witt makes elegant and cogent arguments for the moral, political, and public health imperative to rethink the relationships between state and federal authority and repair the legal structures that bind the most vulnerable Americans to lives of shorter duration and higher risk. His book is a start in answering a question of another ancient thinker, Hillel the Elder, “And if not now, when?”
Amid the growing calls among conservative Catholics to deny President Joe Biden Communion, San Francisco's Archbishop Salvatore Cordileone has released a new letter calling for public figures who support abortion to be barred from the sacrament.
"Because we are dealing with public figures and public examples of cooperation in moral evil, this correction can also take the public form of exclusion from the reception of Holy Communion," writes Cordileone.
The debate over Biden, the nation's second Catholic president, and his support for legal abortion has continued to mount since his election. Last November, the U.S. bishops formed a controversial working group to discuss the matter, which included plans to draft a document on the reception of Communion. The group was later disbanded with plans for the Communion document taken up by the U.S. bishops' doctrine committee.
One of the most notable Catholics in the San Francisco Archdiocese is Speaker of the House Nancy Pelosi, whom Cordileone has previously criticized on the issue of abortion. Although he has not previously called for her to be denied Communion, he has said Catholics should recover the "idea of worthiness to receive Communion."
Cordileone's 17-page letter is organized in four sections: a discussion on the science behind conception and the medical realities of abortion; a philosophical and theological reflection on formal cooperation with evil; an examination of questions surrounding the reception of Communion; and a final section on Catholics in public life.
