George Will wants freedom of association ... for conservatives

There's a lot to unpack in George Will's column today about Vanderbilt University's decision to withhold recognition from the Christian Legal Society, a campus group that (naturally, given its orientation) wants to ensure that only Christians can be in its leadership.

I think Will goes wrong by starting to compare apples to oranges. Will must be quoted at length:

In 1995, the Supreme Court upheld the right of the private group that organized Boston’s St. Patrick’s Day parade to bar participation by a group of Irish American gays, lesbians and bisexuals eager to express pride in their sexual orientations. The court said the parade was an expressive event, so the First Amendment protected it from being compelled by state anti-discrimination law to transmit an ideological message its organizers did not wish to express.

In 2000, the court overturned the New Jersey Supreme Court’s ruling that the state law forbidding discrimination on the basis of sexual orientation required the Boy Scouts to accept a gay scoutmaster. The Scouts’ First Amendment right of “expressive association” trumped New Jersey’s law.

Unfortunately, in 2010 the court held, 5 to 4, that a public law school in California did not abridge First Amendment rights when it denied the privileges associated with official recognition to just one student group — the Christian Legal Society chapter, because it limited voting membership and leadership positions to Christians who disavow “sexual conduct outside of marriage between a man and a woman.”

It seems to me that these three cases, though, are entirely consistent. The first two uphold the rights of private organizations to choose their members and their message. The third doesn't change that! The Christian Legal Society still has a right to exist in the California case—it just doesn't have the right to use the college's funds and facilities if it's going to exclude some students from membership. As Justice Ginsburg said in writing for the majority on that case: "In requiring CLS—in com­mon with all other student organizations—to choose be­tween welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress
constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy."

If anything, Vanderbilt has a stronger defense of its policy to deny the CLS the use of its funds and facilities: Unlike Hastings, it's a private university! Surely it, like the parade organizers and the Boy Scounts, has the right to chose its own expressive associations as well! But Will smells the smoke of pernicious progressive plotting:

Although Vanderbilt is a private institution, its policy is congruent with “progressive” public policy, under which society shall be made to progress up from a multiplicity of viewpoints to a government-supervised harmony. Vanderbilt’s policy, formulated in the name of enlarging rights, is another skirmish in the progressives’ struggle to deny more and more social entities the right to deviate from government-promoted homogeneity of belief. Such compulsory conformity is, of course, enforced in the name of diversity.

Shorter Will: Freedom of association is important ... for conservatives. If a private entity wants to exclude gays, he will defend to the death its right to do so. If a private entity wants to exclude a club that excludes gays, though, it's the death of freedom. Such a one-way conception of liberty isn't really liberty at all, is it? The shape of Will's argument is—as Justice Ginsburg suggested—seeking a privileged position for social conservatives under the rubric of seeking parity. That's usually what conservative groups accuse gay rights activists of doing!

It's worth mentioning that Will's column appears the same week as news emerges about Shorter University, a Christian college in Georgia that is now requiring its employees to abstain from pre- and extra-marital sex, including homosexual sex. I don't agree with Shorter University's theology—but it is a private university which takes no state or federal money. So even though I won't be sending my son there, I will defend the college's right to choose its associations. George Will would too, I imagine. He just doesn't apply the same standards in the opposite direction. Which means he's less attached to the liberty he claims to espouse than he is to opposing gays and liberals.

George Will's silly plan for Republican outreach to Latinos

George Will thinks the GOP can capture some of the Latino vote by ... making Puerto Rico a state. He uses his Sunday column to profile Luis Fortuno, the Republican governor of Puerto Rico:

Conservatives need a strategy for addressing the immigration issue without alienating America's largest and most rapidly growing minority. Conservatives believe the southern border must be secured before there can be "comprehensive" immigration reform that resolves the status of the 11 million illegal immigrants. But this policy risks making Republicans seem hostile to Hispanics.

Fortuno wants Republicans to couple insistence on border enforcement with support for Puerto Rican statehood. This, he says, would resonate deeply among Hispanics nationwide.

But why would that be the case? Latinos aren't abandoning the Republican Party over concerns about the citizenship of other Latinos 1,000 miles away from U.S. shores. They're abandoning the GOP because they don't like how Republicans are treating them right here in the lower 48 states. The Arizona immigration-enforcement law, as has been much noted, makes it likely that U.S. citizens and legal immigrants of Latino descent will have to go the extra mile to literally prove themselves to police -- all by virtue of their race.

Making Puerto Rico a state doesn't address those concerns. Using the rationale offered by Will and Fortuno, it frankly smacks of a "some of my best friends are Latinos" tokenism -- we're happy to bring a majority Latino state into the union, it seems, as long as that state can only be reached by plane or boat. Such factors would probably exacerbate the GOP's image problem among Hispanics, and probably deservedly so.

Federalist No. 22: Why the U.S. Senate and Jimmy Stewart both suck

Let's talk about the filibuster.

Back up: There's no discussion of the U.S. Senate or the filibuster by Alexander Hamilton in Federalist 22. Hamilton's wrapping up a long discussion of why the Article of Confederation are a bad way to run the United States -- and while he touches on a few topics here, he spends most of this essay talking about one particular evil: Under the Articles, it's all too easy for a minority of states with a minority of the U.S. population to obstruct the will of the majority.

And what becomes clear is this: If the pre-Constitution U.S. government was unworkable because of such problems, well then: Today's U.S. government is unworkable.

Under the Articles, see, each state -- no matter how thickly or thinly populated -- had an equal voice in the national governance. What's more, it took the consent of two-thirds of the states to pass major legislation: In an era where the United States comprised just 13 states, that meant that five states could block action.

And that, Hamilton huffed, was no way to run a republic.

Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America;3 and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third.

He adds later:

The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. ... When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Here's the thing: Hamilton's critique of the Articles of Confederation is precisely applicable to the United States Senate.

Equal representation for each state, regardless of state size? Montana and New York both have two senators each, even though the population of Montana wouldn't even fill out Manhattan.

And a supermajority requirement for major legislation? That's pretty much the case in the Senate, where 60 votes are required to break a filibuster -- and a filibuster is brought, by one account, against 70 percent of all legislation.

George Will, who likes the filibuster, did the math in February after Scott Brown's election to the Senate:

Liberals fret: 41 senators from the 21 smallest states, with barely 10 percent of the population, could block a bill. But Matthew Franck of Radford University counters that if cloture were blocked by 41 senators from the 21 largest states, the 41 would represent 77.4 percent of the nation's population. Anyway, senators are never so tidily sorted, so consider today's health impasse: The 59 Democratic senators come from 36 states containing 74.9 percent of the population, while the 41 Republicans come from 27 states -- a majority -- containing 48.7 percent. (Thirteen states have senators from each party.)

Enjoyable how Will counts the number of states as a majority, and not the number of voters. As the Senate is currently constructed, though, the minority -- both in the number of senators and in the amount of population they represent -- routinely frustrates the will of the majority.

And Hamilton likened this state of affairs to "poison."

Should he have known that his critique would also be a problem under the new Constitution? Kinda, maybe. After all, the Senate was always proportioned to give each state an equal say. And since any legislation that would pass Congress would have to pass the Senate, it was always going to be the case that more-populated states would be proportionally less powerful in the national governance.

Where Hamilton maybe gets a pass: The filibuster isn't written into the Constitution. It's part of Senate rules, which the Senate itself adopts. Every few years there's talk of abolishing the filibuster, but whoever is in the minority -- sometimes it's Democrats and sometimes its Republicans -- usually starts waxing eloquent about the rights of the minority, and nothing ever comes of it.

And I wonder: Why don't they bring up Hamilton's critique of the Articles of Confederation? And why aren't conservatives like Will -- who seem to think they're more faithful than thou on matters of fidelity to the Constitution and the Founders -- the loudest voices on this? True, Hamilton wasn't directly criticizing today's U.S. Senate, but that doesn't matter. The state of affairs he describes is exactly the same.