Wednesday, March 25, 2015

The Inquisitor Speaks: A Modest Memo

To: My fellow warriors for collective harmony, social justice, and a brighter future for all
From: Adam Roquet, Associate Executive Inquisitor and Tutor for Indoctrination in Advanced Inquisitorial Methodologies

Dear Colleagues,

In light of our stimulating conversation in the breakroom the other day, I thought I would write up the following memo to summarize my position on this all-important question: What shall we do with our witches? I apologize again if the flecks of quinoa that sprayed from my mouth during our conversation were interpreted by anyone as a microaggression. In the future, I will be sure to swallow before I speak.

In the days of old, inquisitors would burn, strangle, behead, and otherwise terminate the lives of witches. Recollection of that fact--and praise for it having now been discontinued--occasioned our conversation in the first place. While I for one am always glad to recognize the benightedness of the past, I think we should also be wary about throwing out the baby with the proverbial bathwater.

As they understood in Salem, Spain, and elsewhere, witches are a tricky lot. Because their influence can be so problematic, we have to be vigilant. A witch is tainted at the very heart of its being (what more primitive times would call a "soul"), and the Inquisition must be willing to monitor hearts for any sign of witchcraft. A single word can reveal someone to be a witch. What matters is the identity of the witch, not what a witch does. Words, thoughts, actions, feelings--anything can reveal a witch, and we need to be on guard for all.

Technology may be responsible for so much ecological destruction, but it has provided numerous opportunities to our Inquisition. The advent of advanced recording technologies has afforded so many more ways of monitoring the speech and thoughts of witches. The rise of mass media has given us the ability to focus on a single incident of witchcraft and turn the wrath of society against that witch, and the Internet has democratized the Inquisition, providing us with numerous surrogates with which to target and punish. The Internet never forgets, so a witch can never escape its sentence.

However, the very totalizing tendencies of the media combined with a permanent, centralized institution of cultural memory have posed a significant issue about what to do with witches. In the old days, a witch’s perfidy would not necessarily be universally broadcast. If shunned, the witch could go elsewhere. Now, a witch cannot escape once it is found out. So how will a witch live once convicted of witchcraft?

Let us take the following hypothetical: A witch has revealed its problematic core (by saying something problematic, dressing in a problematic way, having a problematic tattoo, liking a problematic book, and so forth), and the full wrath of the Inquisition has been turned against it. It has rightly lost its job or been expelled from its university or its business has been destroyed or whatever. It rightly stands as a beacon of shame and bigotry. It is rightly recognized as the less-than-human scum that it is. So what should be done with our witch?

Shall the witch get a new job? Our Inquisition has surely failed if a witch can get a new job after being terminated from an old one because of its witchcraft. Wickedness has stamped the witch with an indelible mark. Shame should follow the witch wherever it goes (ah, the glories of the Internet!). Who would want to employ this monster? Who would want it as a student? No decent person or socially conscious institution.

Exiled from the marketplace and the public square, the witch will rightly be unable to support itself. Perhaps the witch might turn to its family for financial support. But this again presents a problem for our Inquisition: Nothing--including family ties--should stand in the way of Inquisitorial justice. If its family supports a witch, they should be shunned and attacked, too. Perhaps its family can be blamed for making it a witch. Those who choose to aid a witch, whether family or friends or disinterested bystanders, are guilty of enabling witchcraft.

Exiled from employment and shunned by its family, should the witch get on public assistance? There, we have an ultimate irony: public funds being used to care for someone who is the enemy of the public. Public funds should be used to assist those who are victims of society--not witches.

Some of my esteemed colleagues have held out for the hope of reeducation. They believe that perhaps a witch can redeem itself by bowing before the might of the Inquisition and kissing the toes of the just. According to this theory, a witch’s brain can be cleansed of impure thoughts, and paying sufficient tribute can testify to this cleansing. I fear that reeducation falls short on a few levels. Thankfully, we live in a zero-tolerance age, but holding out the hope of pardon might suggest to potential witches that they could actually have a life after their witchcraft is revealed. That seems to me to be tantamount to encouraging witches. Witches likely have distorted personalities (as some psychologists have shown), so I am very doubtful that they can be saved. Very likely, their witchcraft would only reassert itself in more subtle ways. And besides, why should a “former witch” (if such a thing is even possible) have the opportunities of a true member of the community? While reeducation can show the power of the Inquisition, it might also provide aid and comfort to witches and their allies. The Inquisition is not in the mercy business but the justice one, and justice allows for no half-measures.

So a witch has been denied all hope of employment and of comfort from family and friends. It should have no access to public assistance, and reeducation is a doubtful prospect. The only remaining alternative for a witch (assuming it does not try to adopt another identity) is to live on the streets. While I am second to none in applauding the public immiseration of witches as a tool for instructing the masses, homeless witches could pose a security threat to the innocent. They could also continue to peddle their problematic witchcraft. Moreover, these disgraced witches would, no matter how small their footprints, contribute to the destruction of this earth through their consumption of various ill-gotten goods. (The long-term imprisonment of witches presents similar ecological, financial, and moral costs.)

Therefore, I wonder if the execution of witches might be a practical--and I daresay humane--solution to the problem of witches in the era of our beloved Inquisition. Execution would solve the problem of what to do with undesirable life and it would still provide an edifying spectacle to the nation as a whole. And I cannot see how it would be to the detriment of the Inquisition to offer witches an instantaneous death as opposed to a long twilight of suffering and exclusion. This death need not be burning. I am open to other suggestions, whether beheading or electrocution or lethal injection. Just because a witch is the embodiment of the horrific does not mean that we need to be barbaric in treating it.

A brief trigger warning: what I am about to discuss might shock, offend, and, even traumatize. But we Inquisitors must sometimes face unflinchingly the utmost of malignancies. Some partisans of the atavistic (may they soon perish!) might object to the righteous punishment of witches. They hold that, while we can censure certain actions, we should be wary about exiling people from the public square for their mere words or thoughts--that stamping out evil is different from crushing people. In defense of this position, such partisans argue that we are all fallen beings, that we are all sure to make mistakes, and that understanding is often better than wrath. They claim that what we term witchcraft others might think of as a fair-minded exploration of ideas and that different people might see different things as witchcraft. They suggest that our Inquisition, with its focus on punishing witches, can distract from the broader purpose of doing good and finding the truth (their words, not mine). They think that fear is often an insufficient goad to virtue and that escalating terror is no boon to society. Some of them even argue that tolerance has a positive value (not recognizing that tolerance is simply an acceptance of wrongs).

The preposterousness and perniciousness of such arguments make them beneath all rational regard. In fact, I rather believe that advancing them is a de facto admission that one is a witch. Nothing more need be said about those silly propositions (though much could be said and done to those with the temerity to make them).

Thus, my fellow fighters for justice, I believe that the principles of our Inquisition lead to the conclusion that terminating the lives of witches is the most practical of outcomes. The instant a witch reveals itself with its forked tongue, it should be expunged from the record of human history. Let us never shirk from the obligation to use terror to advance the cause of justice, nor allow doubting scruples to hold back the ambitions of perfection.

Tuesday, March 24, 2015

Taking the Fifth

Today, the Fifth U.S. Circuit Court of Appeals granted the Obama administration a request for an expedited appeal of Judge Andrew Hanen's decision to put an injunction on the president's executive dictates on immigration at the end of last year.  Hanen had put the injunction in place while he worked on his final ruling on the matter.  The Fifth Circuit may or may not decide to stay Hanen's injunction.  The hearing will take place on April 17.  The text of the Fifth Circuit's decision is here.

As Josh Blackman has noted, the Obama administration has now taken to arguing that Hanen's injunction threatens the ability of the president to protect the nation because granting work permits to illegal immigrants is of vital national-security importance.  If it is such a vital interest, the Obama administration needs to explain why it has put off issuing these work permits for years (and also how granting work permits to illegal immigrants specifically advances national security).  Hanen seemed skeptical about claims that national security demands that the president nullify immigration law, so we'll have to see whether members of the Fifth Circuit will be persuaded by the administration's reasoning.

The next few weeks might tell us whether the Fifth Circuit will sign off on a radically empowered executive or whether it will instead put in the hard work of defending the separation of powers.

Friday, March 20, 2015

Taking on the Judiciary

In the New York Times, University of Chicago law professor and former Chief Justice John Roberts clerk William Baude argues that one way the president could get around a negative ruling in King v. Burwell, the pending ACA case, would be to say that the ruling only applies to the plaintiffs.  So, even if the court strikes down subsidies, it would only affect a few people.

Josh Blackman takes apart this claim by looking at the implications of it:
Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials. The implications of this argument are frightening. The executive branches of the states and the federal government could concoct an infinite number of technicalities to explain why a Supreme Court decision is not binding on them. This breach of the separation of powers would trigger a dangerous race to the bottom, where one state after another would find ways to ignore the jurisdiction of the federal courts.
Blackman's remarks remind us of the importance of norms in maintaining a Constitutional balance of powers.  And the decay of those norms could lead to a radically empowered executive, one who is unbound by the courts and the Congress, as well as to a kind of procedural anarchy.

Saturday, March 14, 2015

Constitutional Controversies

At Postmodern Conservative over the past week, Carl Eric Scott has offered a series of intriguing reflections on some possible outcomes for traditional constitutional norms over the short term.  He guesses at what could happen to existing constitutional arrangements under three circumstances: Republican victory, divided government, and Democratic dominance.  Whether you agree with them all or not, these remarks are well worth a read.  He hasn't yet posted his remarks on the third scenario, but here are the essays he has published in this sequence so far:

Tuesday, March 10, 2015

Ready for Hillary?

As a piece of political theater, Hillary Clinton's press conference at the UN today would not exactly garner a standing ovation.  From its scheduling issues to Secretary Clinton's statement and responses to reporters, this conference will likely provoke the media, give more ammunition to Republicans, and cause more doubts among Democratic powerbrokers.

This presser did not exorcise the ghosts of the 90s.  If anything, it conjured them anew by reinforcing preconceptions of the Clintons as secretive, bunkered, and too enamored of legal/ethical gray areas.

Exhibit A for the backlash this presser could generate is the following tweet by the New Yorker's Ryan Lizza:
Perhaps most strikingly, Secretary Clinton said that she did not keep the approximately 30,000 "personal" emails she kept on her private server.  In addition to the questions about the criteria Clinton used to distinguish "personal" from "professional" email, it remains unclear why someone would normally want to delete so many personal emails.

An interesting loophole in Clinton's remarks is her insistence that she never sent any classified email.  But that statement says nothing about whether she sent any sensitive email or whether she received any classified/sensitive email on her account.  Email that she received could still be vulnerable to being hacked by a foreign power.

Clinton laid down a marker: the private email server remains private.  She could be at risk of boxing herself in here.  If she continues to keep it private, she will be perceived as stonewalling.  But if she later hands it over to the public, she will be seen as on the run.

She also insisted that her private email server had suffered no security breaches---though we don't know how she can verify that (or how we can verify her statement).

Already, Clinton has begun to run into trouble regarding potential conflicts between her statements during this presser and some of her earlier remarks.  For instance, Clinton said that she used a single email account because she didn't want to carry multiple devices, but a few weeks ago she seemed to imply that she carried multiple devices.

After a week of refusing to address the homebrew email situation, Clinton has now provoked more questions than there were before.  A key threat facing Secretary Clinton is the fact that this imbroglio could further shake the faith of the Democratic establishment in her.  Despite the media narrative of Clinton as Ms. Establishment vs. Obama the Outsider during the 2008 Democratic primary, many key institutional Democrats were covert opponents of Hillary Clinton (as Game Change documents).  Obama's victory in the primary in part depended upon the Democratic institutional lack of faith in Clinton.

While 2016 had seemed initially like a coronation on the Democratic side, the homebrew email situation, if it continues to grow, could imperil Clinton's standing among many Democrats.  Based on the immediate reaction to this presser, Hillary Clinton has yet to show decisively that she can put this situation behind her and escape the shadows of the past.  And that could politically hurt her.

Saturday, March 7, 2015

Defending Hillary

Over at NRO, I offer a brief outline of seven strategies Hillary Clinton allies will use to defend her private "homebrew" email network.  These include:
But, but the Republicans… (tu quoque). A venerable strategy for avoidance. Argue that the fact that Scott Walker and Jeb Bush had private email accounts means that we should have no questions about Hillary Clinton’s own use of private email. A variant on this approach, advanced by Jennifer Granholm on The Last Word earlier this week, is the claim that Secretary Clinton was following “precedent.” (This argument conveniently sidesteps the differences in positions and their respective legal obligations — especially the fact that her likely GOP rivals for the presidency were not responsible for handling crucial national-security information.)
An aide did it (deflection of responsibility onto the help). Another venerable strategy in politics. Aides are always responsible for all bad things, while principals are responsible for all good ones. Hillary’s a genial grandmother — how could she know anything about a scheme to circumvent federal transparency requirements using a private email server!?
Read the rest here.  And see how many you can spot over the next few days.  Of course, I'd be glad to hear about any strategies that should be added to the list.

Wednesday, March 4, 2015

150 Years Later

One hundred fifty years ago, Abraham Lincoln delivered one of the great speeches of the Republic in his Second Inaugural.  After four years of a horrific war, when brother turned against brother and countryman against countryman, Lincoln spoke.  Hundreds of thousands of Americans had lost their lives.  The Civil War had not yet been won, but it was being won.  Within five weeks, Lee would surrender at Appomattox.  Within six weeks, Lincoln would be dead.  But the Union would be preserved.

Standing against the backdrop of that awful war, Lincoln outlined some of the forces that fueled the war, especially the topic of slavery:
One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease.
But one of the most profound things about Lincoln's address is what it does not explain.  He ponders the mystery of all that bloodshed and the unfathomableness of the spectacle of human suffering.  He wonders at the understanding of a divine purpose in the terrible war:
If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."
The Civil War came, Lincoln says, and he and his fellow countrymen had to suffer through the consequences of that coming.

Lincoln closed the Second Inaugural with a call to continue in the enterprise of the Republic:
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.
The task of defending the Republic is in part the work of striving on: to not succumb to pride or despair, to continue to try, to grow, to care, and to believe.

In the aftermath of the Civil War's bloody flood, Lincoln urged his listeners to set about the business of rebuilding the Union.  It is our obligation to continue that enterprise of civil renewal in the name of freedom, justice, virtue, and happiness.

Tuesday, March 3, 2015

Constitutional Collapse---or Decadence?

Reflecting on Matt Yglesias's warning of an impending constitutional crisis, Dylan Matthews and Ross Douthat both doubt that the U.S. will suffer a presidential coup.  But they each offer their own thoughts about increasing executive power.

Matthews, who is not a fan of the American constitutional system as it currently stands, believes that presidents will increasingly take more power for themselves.
The best-case scenario is that we wind up with an elective dictator but retain peaceful transitions of power. This is where I'd place my bet. Pure parliamentary systems, especially unicameral ones, give high levels of power to the prime minister and his cabinet, and manage to have peaceful transitions nonetheless. The same is true in Brazil, where the presidency is considerably more powerful than it is in the US.
Douthat is a bit more hopeful about the viability of the U.S. constitutional system, but he also fears that both parties in Congress will essentially acquiesce to the system of executive supremacy.  He outlines a case of what he terms "constitutional decadence":
Which is not to say that external events — terror, war, economic crisis — might not intervene and push the system closer to the breaking point. But we’ve had a number of stress tests over the last ten years, and for all the paranoia and political dysfunction they’ve produced, both our leaders and the voting public have tended to circle back to something like the status quo. That status quo may be flawed, sclerotic and corrupt (ahem, Hillary), but the country as a whole seems invested in muddling along with our system in a way that, say, Germans in the Weimar era or Americans during the antebellum crises ultimately were not. So even though what Yglesias is describing is a problem, and potentially a big one, it could easily give us an extended period of what you might call constitutional decadence, rather than ending soon in crisis or collapse.
Instructive is the fact that figures on both the left and the right agree that a kind of evolving executive powergrab is taking place.  Every week, it seems as though the Obama administration is proclaiming a new issue that can be addressed through executive action, whether it is gun control, tax increases, or whatever other policy aim the president has at the moment.  As the courts consider ruling on some of the president's executive actions, they are surely paying attention to this broader structural context.

UPDATE: Leon Wolf raises his own concerns about threats to constitutional norms:
The new reality in America is this – unless Congress is someday composed of two-thirds members of the opposite party of the President (which is an increasingly remote possibility in our increasingly polarized country), the President can from now on do whatever he wants. Only the Supreme Court remains with the power and the will to stop him, and only then when it feels like it or is ideologically opposed to what he has done. The most democratically responsive branch of the Federal Government now exists for the almost exclusive purpose of determining who receives the largest share of the taxpayer money with which the taxpayers are to be bribed for their re-election. Before long the executive branch will be likewise emboldened to act in regular defiance of the judiciary, as it currently is of Congress, and who will stop it then?

Monday, March 2, 2015

Constitutional Renewal---or Doom?

In National Review today, I make a case for the importance of strengthening the civil compact to advance the cause of political liberty.
Conservatives might think of the task of the present as going beyond shrinking the size of the federal government: Instead, it involves the nurturing of those institutions, norms, and principles that make the life of a free republic possible. This nurturing does not relate only to policy or affairs of the state, but politics does play a role in it. Some of the key traits that have helped support the American republic include the respect for our individual dignities as human beings, religious and cultural pluralism and toleration, a vibrant middle class, a sense of accessible opportunity, a respect for past achievements, and a hopefulness for the future. Many of these traits have been challenged in recent years, and many could be strengthened anew.
Serendipitously, Matt Yglesias at Vox makes a rather different case, arguing that American democracy is "doomed."

I'm a bit more optimistic than Yglesias and will (hopefully) have some more thoughts on the matter soon.

Tuesday, February 24, 2015

DHS Scuffle

Since Senate Democrats have filibustered efforts to fund the Department of Homeland Security, Senate Majority Leader Mitch McConnell has agreed to offer a DHS bill that funds the president's executive actions on immigration.  After this vote on DHS funding, Senate Republicans would propose a separate measure targeting the president's actions.

But now Senate Democrats might not even be happy with this turn of events, as Roll Call reports:
In an extraordinary sequence of events, Senate Majority Leader Mitch McConnell offered Democrats exactly what they have been asking for Tuesday — “clean” full-year funding for the Department of Homeland Security. And Minority Leader Harry Reid said “no” — or at least, “not yet.”
McConnell’s offer of such a bill shorn of provisions blocking President Barack Obama’s recent immigration executive orders — which he said could happen quickly with Democratic cooperation — was put on hold by Reid, who said he was waiting to hear Speaker John A. Boehner agree to pass it through the House first.
“We have to make sure that we get a bill to the president,” Reid said. “Unless Boehner’s in on the deal, it won’t happen.”
That could lead to the extraordinary circumstance of Democrats blocking a bill they have insisted on for weeks — though a Democratic aide suggested later Tuesday that Democrats might, in the end, agree to McConnell’s proposal, provided the Kentuckian can get Republicans lined up for a unanimous consent request to vote on a clean bill.
It is unclear whether Senator Reid will go through with his threat to block a vote on a bill he supposedly supports.  What is clearer, however, is the uneasiness of many House Republicans with this plan.  Time will tell whether the House will support a DHS bill that funds the president's executive actions.

Friday, February 20, 2015

GOP Can't Coast

Bill Kristol turns to a recent CNN/ORC poll, which finds that a majority of voters think of Hillary Clinton as representing the future.  No Republican candidate mentioned in this poll equals that number.  This is just one poll and numbers can change, but American presidential elections are often about the future, so this finding should concern Republicans.  As Kristol writes:
It’s of course very early in the 2016 cycle. But it’s never too early for some healthy alarm. Are we the only ones who are struck that many of the leading Republican candidates, whether moderate or conservative, seem to be planning stale and tired campaigns? Hillary will herself, it’s safe to predict, run a stale campaign with tired themes. But the polls suggest she would prevail in a conventional matchup of boring campaigns.
We’re all free to ignore the fire bell in the night, and hope for the best. But it would be a shame to have to explain in November 2016 how the Republican party decided to sleepwalk to defeat.
If conservatives hope to win in 2016, imagination and energy will be crucial.

Tuesday, February 17, 2015

Injunction Junction

Federal judge Andrew S. Hanen has enjoined the Obama administration from implementing its November executive actions on immigration until after he has ruled on the case.  Here's a round-up of some coverage:
  • Josh Blackman analyzes some of the details of Hanen's 123-page ruling.
  • Patrick Brennan suggests that the battle over the constitutionality of the president's executive actions is far from over.
  • Bill Jacobson looks at the implications of this ruling for the DHS funding battle.
  • Senate Democrats seem inclined to continue to block debate on DHS funding.
  • Ilya Somin challenges some parts of Hanen's ruling.
  • The Obama administration plans to appeal.

Thursday, February 12, 2015

Don't Kill the Filibuster over DHS

Because Senate Democrats have continued to filibuster a bill funding the Department of Homeland Security, some House Republicans have called upon Majority Leader Mitch McConnell to "go nuclear" and eliminate the filibuster.  One can understand the desire of members of Congress to strike back at executive overreach, but invoking the "nuclear option" would be a mistake for a few reasons.

First, it would not eliminate the real roadblock, which is President Obama's decision to veto any funding bill that defunds his executive overreach.

Second, going nuclear would violate regular order in the Senate.  If we mean the Senate to be the body of deliberation and consensus that the Founders intended it to be, maintaining a respect for regular order (which requires a 2/3 vote of the Senate to change rules) will be crucial.

Third, the filibuster itself may play a role in maintaining the Senate as an institution of consensus, so jettisoning it would be a risky proposal indeed.

Going nuclear on the filibuster could do grave structural damage to the traditional role of the Senate and would not really help get DHS funded.

At the moment, many Senate Republicans, including the Majority Leader, seem to have no interest in going nuclear.  Rebuilding the Senate after the recent deviations from traditional norms has been a key goal of Senator McConnell, and going nuclear would set that enterprise back considerably.

Monday, February 9, 2015

The Slippery Slope of "Hate Speech"

Edward Schumacher-Matos, NPR's former ombudsman, offers the following thoughts about freedom of expression in his valedictory post:
The French news media may have their ethical standards, but they are not American or sacred universal ones, and they shouldn't be French ones either. The United States has never had absolute freedom of the press. And the framers of the Constitution—I once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University—never intended it to. You wouldn't know this, however, from listening to the First Amendment fundamentalists piping up from Washington to Silicon Valley.
In this case, the competing social and constitutional demand is the control of hate speech in the interests of social cohesion, without which the very idea of a nation is impossible. Look at the sectarian bloodbath that is the Middle East. Or look at the tensions in China, Myanmar, Ukraine, Nigeria, the Balkans, and elsewhere. Nothing guarantees that different peoples can live together, or that nations will remain as we know them.
The United States is the ultimate multi-ethnic, multi-sectarian society. It has sinned mightily against slaves and immigrants, but has managed to hold itself together through imposition by a civil war, an evolving sense of morality, and yes, political correctness in how we treat each other. Laws followed along.
I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and gods. The NPR editors were right not to reprint any of the images.
Leaving aside the question of America's "sins" against immigrants (and whether those "sins" are in any way equivalent to the wrongs done to slaves and their descendants), let us consider Schumacher-Matos's riposte to what he terms "First Amendment fundamentalists."  These remarks are worth considering not only because of Schumacher-Matos's professional stature but also due to the fact that they are representative of a broader worldview.

As a matter historical fact, the U.S. has not always had absolute freedom of the press.  Governments at all levels---federal, state, and local---have taken acts that have suppressed speech.  However, there is a big leap from that historical fact to the theoretical principle that "hate speech" is not and should not be protected by the First Amendment.

Schumacher-Matos seems to operate from the presumption that a government prohibition of certain kinds of inflammatory speech will act as a force for social cohesion, but one could rather claim that free expression and the free exchange of ideas can actually lead to a more tolerant and socially coherent society.  The U.S. has never had a ban on hate speech, yet, over centuries, an increasingly diverse range of individuals have indeed been assimilated into the whole of the American republic.  Free expression---even of ugly sentiments regarding race, religion, and so forth---was also compatible with an integrating society.

In fact, arbitrary government classifications of "hate speech" could inflame rather than soothe social tensions.  It's much easier to feel oppressed and wronged by another group when that group uses the power of government to suppress your expression.  And that brings us to a key challenge to any idea of banning "hate speech": there is no clear limiting principle.  Free-speech law in the U.S. is complicated enough.  Holding to a "hate-speech" exception to free speech would make free-speech law impossibly complicated---so complicated that any exercise of government power to ban "hate speech" would likely seem quite arbitrary.

Schumacher-Matos seems to take for granted that, of course, the cartoons of Charlie Hebdo are "hate speech" unprotected by the Constitution because they "make fun, in often nasty ways, of [various religions'] prophets and gods."  But, if that is so, surely many other works must also be banned: South Park, nearly all of Christopher Hitchens, many George Carlin and Bill Maher jokes, James Joyce's novel Ulysses, much of Nietzsche, numerous tracts by Voltaire, and so on.  To seek to use the law to ban anything that critiques certain sacred figures is to suppress a vast range of works.

Certain critiques of religious figures may indeed be misguided.  Offensiveness for its own sake can often be juvenile, self-indulgent, and tiresome.  Moreover, there is much to be said for courtesy as a civil virtue, as Schumacher-Matos implies.  But none of those considerations nullify the importance of a legal right to free expression.  "Hate speech" may often be ugly, but efforts to ban it can lead to results that are even uglier.

(See Charles C. W. Cooke for more about the dangers of opposition to the right of free speech.)