Progressives all too willing to cut constitutional corners
WASHINGTON >> Presidential aspirant Beto O’Rourke, in an attempt to be noticed, says tax exemptions should be denied to churches and other institutions that oppose same-sex marriage. O’Rourke’s suggestion, and Massachusetts Sen. Elizabeth Warren’s plan to tax the “excessive” exercise of a First Amendment right, and the NBA’s painful lesson about the perils of moral grandstanding illustrate how progressivism has become a compound of self-satisfied moral preening and a thirst for coercion.
O’Rourke is innocent of originality: Harvard law professor Mark Tushnet recommends a “hard line” against people who deviate from progressivism: “Trying to be nice to the losers didn’t work well after the Civil War” and “Taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”
UCLA law professor Eugene Volokh notes that in 1952 California voters used a progressive device, a referendum, to amend the state’s constitution to deny tax exemptions to certain people despised by the majority — people who advocated the unlawful overthrow of the U.S. government. Fortunately, in 1958, in another case from California (concerning denial of property tax exemptions to veterans who refused to swear an oath not to advocate the unlawful overthrow of the government), the U.S. Supreme Court did its counter-majoritarian duty to protect minority rights, striking down this measure: “To deny an exemption to claimants who engage in certain forms of speech is ... the same as if the state were to fine them for this speech.”
Warren, a policy polymath, has a plan for everything, including for taxing speech that annoys her. The pesky First Amendment (in 2014, 54 Democratic senators voted to amend it to empower Congress to regulate spending that disseminates political speech about Congress) says Congress shall make no law abridging the right of the people “to petition the government for a redress of grievances.” One name for such petitioning is lobbying. Warren proposes steep taxes (up to 75%) on “excessive” lobbying expenditures, as though the amendment says Congress can forbid “excessive” petitioning. Lobbyists are unpopular, and her entire agenda depends on what the amendment was written to prevent — arousing majority passions against an unpopular minority (the wealthy).
“In defeat, defiance” was Winston Churchill’s recommendation. The NBA’s is: When tyrants snarl, grovel. Beijing’s tantrum — great powers do not resemble frustrated toddlers — was detonated by a Houston Rockets employee who tweeted support for Hong Kong protesters. Commissioner Adam Silver, who represents the teams’ owners, took the 2017 All-Star Game away from Charlotte, so horrified was the NBA by a North Carolina law requiring transgender people to use public bathrooms according to the sex on their birth certificates. The NBA’s decision expressed its “longstanding core values,” which are, however, compatible with the NBA having its China training camp in Xinjiang province, where Chinese citizens are in concentration camps that facilitate “re-education.”
There’s strong evidence that China, which has many more people in concentration camps than Hitler had during the 1936 Olympics, is still harvesting organs from live prisoners. The NBA should have done what a congressional letter recommends: suspend activities in China until “government-controlled broadcasters and government-controlled commercial sponsors end their boycott of NBA activities and the selective treatment of the Houston Rockets.”
Unfortunately, however, O’Rourke, Warren and Silver demonstrate the tendency of too many progressives to cut constitutional corners, to despise and bully adversaries, and to practice theatrical but selective indignation about attacks on fundamental American principles, some of which they themselves traduce. Just what we did not need in our dispiriting civic life — additional evidence that there really is no such thing as rock bottom.