Yearly Archives: 2018

The Costs of Constitutional Principle

Feb 6, 2018 Mary ZieglerAdd a Comment

The law delivers uneven benefits for the protagonists of Daniel K. Williams’ masterful study of the early decades of the pro-life movement. Williams chronicles the transformation in the 1960s of what had been a religious crusade against contraception and abortion into a secular, rights-based cause that also appealed to some left-leaning Catholics and Protestants. Williams argues that antiabortion activists invested more in legal strategies after the Supreme Court’s decision in Roe v. Wade. Leaders of the movement became preoccupied with a constitutional amendment overturning Roe. Entanglement with law ultimately undercut demands for material benefits that some pro-lifers believed women required to have a real reproductive choice.

Williams first takes readers into the poorly understood years of early pro-life activism when “the campaign against abortion was almost inseparable from the Catholic Church’s fight against contraception.” (P. 4.) By studying the predominantly religious and medical debates that dominated the 1930s and 1940s, Defenders of the Unborn recovers a mostly lost prehistory of the abortion battle. At this time, as Williams shows, debate often turned not on the meaning of the Constitution but on the medical need for abortion and the religious beliefs of those opposed to it. Williams also traces the origins of now-ubiquitous comparisons of abortion and the Holocaust to this period.

As Williams’ story moves into the 1950s and 1960s, the antiabortion movement often relied on law and lawyers. Defenders of the Unborn digs deep into early debates about abortion reform in California when Walter Trinkaus, a lawyer representing the California Conference of Catholic Hospitals, argued that legal disputes should turn on whether the fetus was a person. Although it was far from evident at the time, Trinkaus’ argument would soon come to define those who for the first time identified themselves as part of a social movement.

Defenders of the Unborn offers fresh insights about how an avowedly Catholic cause became a non-denominational and at least partly legal movement. The spread of the birth control pill and growing support for contraception turned the Church’s position on birth control into a major political liability. The story of Sherri Finkbine, a mother who wanted to end a pregnancy after taking a drug known to cause fetal defects, increased public support for abortion, as did a major German Measles epidemic. Losses in states from California to North Carolina convinced abortion opponents that they would have to “sever the ties between the right to life cause and contraception, Church doctrine, and even the Church itself.” (P. 88.)

In response, Father James McHugh, the organizer of what would become the National Right to Life Committee, the largest national antiabortion organization, urged lay Catholics to form independent state and local organizations committed to the rights-based, secular arguments honed by lawyers like Trinkaus. The repeal of abortion laws, together with the spread of graphic images of late abortions, allowed abortion opponents to attract a meaningful number of evangelical Protestants and other non-Catholics. Williams argues that some who tolerated therapeutic abortions felt that “abortion on demand” went too far.

The constitutional framing of the movement’s cause inspired homemakers and professional women, who figured so prominently in the movement’s ranks. Some of these leaders viewed the right to life as a matter that involved rights for women and unborn children: legalizing abortion would deny pregnant women the right to societal support for childbearing and childrearing. Birthright, the pioneering crisis pregnancy center, captured these women’s ambivalence about law. Emphasizing the importance of service provision, Birthright nonetheless primarily argued: “It is the right of every pregnant woman to be a mother, and it is the right of every child to be born.” (P. 154.)

Williams argues that Roe began a new era in antiabortion engagement with the law. At first, pro-life activists believed that “their only hope was a constitutional amendment guaranteeing the right to life from the moment of conception.” (P. 205.) Although some abortion opponents viewed the campaign for the so-called human life amendment as a dangerous distraction, an otherwise fractious movement rallied around the idea of a constitutional solution. As Williams suggests, it would be hard for antiabortion voters to resist voting for a party that endorsed that solution. As the Republican Party stepped up its support for a fetal-protective amendment, abortion foes increasingly marginalized proposals and constitutional arguments that fit poorly in a largely conservative agenda.

Defenders of the Unborn tells the story of how engagement with lawyers and the law inspired and mobilized antiabortion activists at some points while silencing or limiting other advocates. Framing the cause as a fight for the right to life initially allowed Catholic leaders to win the support of those who interpreted the movement’s constitutional rhetoric in surprising and radical ways. In addition to burnishing the movement’s secular image, the very open-endedness of a right to life accommodated many with different political perspectives. While conservatives remained hostile to contraception and non-marital sexuality, left-leaning activists used rights-based arguments in advocating for private and public support for pregnant women, infants, and older children. Student activists pointed to the right to life in questioning both the wisdom and constitutionality of the death penalty and the Vietnam War. Still others saw the right to life as a natural extension of Lyndon Johnson’s War on Poverty or even the fight for welfare rights. Strikingly, many of the activists who effectively deployed constitutional arguments were not lawyers and saw litigation as relatively unimportant.

Williams’ writing is clear and accessible, and he often makes powerful use of the voices of those he studies. Studying the antiabortion movement is no easy feat: many insiders view scholars and journalists with suspicion, and most archival material is found in obscure, far-flung places. Williams goes the extra mile to find crucial documents that will be of use to other scholars. Defenders of the Unborn handles a divisive topic with fairness and insight, and Williams unquestionably makes an original contribution to the study of abortion, forcing readers to rethink the origin story of what has become a leading part of the modern conservative coalition. The book is a must for anyone studying the legal history of abortion.

But Williams argues that the antiabortion movement’s embrace of constitutional ideas and arguments ultimately set a trap sprung by the Supreme Court in Roe. Lawyers for the movement had narrowed the ideas of a right to life championed by grassroots arguments. Instead of demanding material support for pregnant women and children, these attorneys argued for a compelling interest in protecting life that justified sweeping abortion bans. Because Roe commanded so much public attention, grassroots activists concluded that the Court had rejected everything that the movement stood for. On some level, these advocates were right: they opposed abortion, and the justices had legalized it from coast to coast. But in many ways, because the right to life had come to mean so many things, grassroots activists read Roe too broadly, seeing it as a repudiation of arguments made for the protection of women, children, or even the poor.

And the antiabortion movement’s preoccupation with restoring the right to life, Defenders of the Unborn shows us, limited what the cause could stand for, which policies advocates could promote, and which leaders activists could endorse. As Williams recognizes, the reasons for the antiabortion movement’s rightward turn (and narrowing agenda) were complex. Political-party realignment around the abortion issue had not been inevitable. The rise of neoliberalism, with its praise for small government and free markets, made an alliance with the Republican Party more appealing to abortion opponents who believed that presidential elections would ultimately reshape the Supreme Court. The decline of the New Left, the end of the Vietnam War, and the shoring up of support for the death penalty also deprived some abortion opponents of logical allies on the other side of the political spectrum.

But the alienation and heartbreak facing some of the pro-lifers in Williams’ story came from the movement’s relationship to lawyers and the law. Ironically, in Williams’ telling, it was Roe v. Wade, not grassroots abortion opponents, that defined for many in the movement what the recognition of the right to life would mean. As many in the movement focused single-mindedly on a constitutional amendment reversing Roe, the antiabortion movement gradually marginalized many of those who had made the movement successful in the early 1970s. Political scientists, judges, and historians have long wondered how differently the abortion debate might have gone if the Supreme Court had issued a different kind of decision in Roe. Defenders of the Unborn forces us to ask an equally important question: would it have made a difference if abortion opponents defined themselves by something other than a constitutional right to life?

On Fiscal Citizenship: A Cultural History of Tax Law

Jan 11, 2018 Binyamin BlumAdd a Comment

Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.” During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.

This election episode epitomizes the declining relationship among tax, civic identity, and citizenship,¹ which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.

Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.

Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.

But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.

Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”

Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.

Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.