New Clear Vision

constructive commentary for the chronically farsighted

Progress, Not Commerce

May 21, 2012 By: NCVeditor Category: Culture, Economy, Jerry Elmer, Politics

Human Rights and Dignity Are Larger than the ‘Jobs Issue’

by Jerry Elmer

On May 7, North Carolina voters, by a margin of over 20 percentage points, approved an amendment to the state’s constitution banning same-gender marriages. In the days leading up to the vote, former President Bill Clinton recorded a robocall to North Carolina voters, urging voters to vote against the proposed constitutional ban. Clinton’s message said, in relevant part, “I’m calling to urge you to vote against Amendment 1 on Tuesday, May 8…. What it will change is North Carolina’s ability to keep good businesses, attract new jobs, and attract and keep talented entrepreneurs. If it passes, your ability to keep those businesses, get those jobs, and get those talented entrepreneurs will be weakened.”

I understand completely why President Clinton framed his argument in terms of jobs. Clinton was trying to think of an argument that would be persuasive, and in today’s economy, economic arguments have weight. Moreover, Clinton’s argument had the added benefit of being factually accurate; states that have enacted marriage equality, such as Vermont and Massachusetts, are benefiting economically from an upswing in marriage tourism. So, Clinton is making a sincere effort to be politically persuasive on a controversial issue — and he is doing so by telling the truth. I get it.

But I think it is wrong. Marriage equality is primarily about human rights and equal rights. There are both ethical and practical dimensions to this. As an ethical matter, we denigrate the importance of a major human rights issue by pretending that it is “just” about money. As a practical matter, we are shortsighted if we try to advocate for marriage equality as a purely economic matter. Would our position on marriage equality change if the economy improved (as it likely will someday)? What about if more states enact marriage equality, so the economic benefits of doing so were diminished for each additional individual state? Of course we wouldn’t stop advocating marriage equality! The practical problem of pretending that marriage equality is merely about jobs and the economy is that, in the end, we are not going to achieve our goal until people believe that marriage equality is the right thing to do. Every time we discuss marriage equality and pretend that it is all about the jobs, we lose an opportunity to persuade people to support marriage equality because marriage is a fundamental liberty.

Of course, the environmental movement makes the same mistake — in spades. Environmental organizations and advocates regularly run away from the fact that life as we know it is threatened by the climate-change emergency; instead, environmentalists emphasize the job-creation benefits of, say, developing renewable energy. The analogy with Bill Clinton’s robocalls is a good one. Environmentalists do this, consciously and deliberately, because they are trying to make effective arguments, arguments that will work. Environmentalists say, correctly and accurately, that the jobs argument is factually correct; thus, they are being honest. But here, too, I think it is wrong – for both ethical and practical reasons. Ethically, it is wrong to pretend that what we are really concerned about is creating good jobs in the energy sector. What we are really concerned about is the climate-change emergency. Practically and pragmatically, we environmentalists miss important opportunities when all we discuss is jobs and the economy. When we do that we are — in our own way, and with the best of intentions — mimicking the error that so much of the mainstream media make by downplaying and understating the seriousness of the emergency.

To listen to some environmentalists tell it, climate change is all about creating green jobs installing solar panels, and not about sea-level rise, drought and famine, and extreme water shortages leading to wars.

All of this puts me in mind of the United States Supreme Court case that affirmed the Civil Rights Act of 1964. The case was Katzenbach v. McClung, 379 U.S. 294 (1964). The Katzenbach in the case name was then-United States Attorney General Nicholas deB. Katzenbach, who recently died at age 90. As Attorney General, Katzenbach argued to uphold the constitutionality of the landmark Civil Rights Act. The case challenging the statute had been brought by Ollie McClung, owner of Ollie’s Barbecue, in Birmingham, Alabama. Ollie McClung’s argument was the essence of simplicity: this is a free country; the government cannot force me to serve people (blacks) if I choose not to do so.

As everyone today knows, the Supreme Court unanimously upheld the constitutionality of the Civil Rights Act. But the majority opinion, written by Justice Tom Clark, did so on the basis of the Commerce Clause! This is what Justice Clark’s opinion said: Ollie’s Barbecue is a family-owned restaurant in Birmingham Alabama, specializing in barbecued meats and homemade pies. It is located 11 blocks from an interstate highway and near a railroad station and a bus station. In the 12 months preceding the passage of the Act, the restaurant purchased approximately $150,000 of food, of which 46%, or $69,683, was meat procured from outside the state. Some of Ollie’s customers were long-haul truckers who came off the nearby Interstate for a meal. Thus, this case is really about interstate commerce, because both the meat served and some of the patrons eating it had come from out of state. The Commerce Clause in Article I, Section 8, gives Congress the right to control interstate commerce. Therefore, the landmark Civil Rights Act is constitutional because this case is all about commerce.

To their credit, Justices Douglas and Goldberg wrote concurring opinions pointing out that the Civil Rights Act was not mainly about commerce (though surely there were economic implications), but rather about human rights. Said Justice Douglas: “A decision based on the Fourteenth Amendment would have a more settling effect, making unnecessary litigation over whether a … particular customer is an interstate traveler.” And Justice Goldberg got right to the point: “The primary purpose of the Civil Rights Act of 1964 … is the vindication of human dignity and not mere economics.”

So too today. Marriage equality is about human dignity, not mere jobs. Reducing carbon emissions is about climate change and its impacts on human communities, not mere economics. Let us not conflate progress with commerce as we engage these issues.

Jerry Elmer is an attorney in Providence, Rhode Island. He was a Vietnam-era draft resister, and was the only convicted felon in his graduating class at Harvard Law School. He is the author of Felon For Peace (Vanderbilt University Press, 2005), which was published in Vietnam as “Toi Pham Vi Hoa Bing” (The Gioi, 2005); this was the first book by a U.S. peace activist ever published in Vietnam.

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