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David, your point about home rule is well taken, but even in cities with broad home rule, local authority is often quite limited.
Two examples from the city that knows how (but still can’t, as it happens).
California cities have very broad home-rule powers—among the most generous in the nation. But the courts often interpret ambiguous state laws as implicitly preempting local ordinances. San Francisco voters passed a handgun ban by initiative in 2005. Unlike Washington, D.C., which is at least getting the chance to test its ban against the Second Amendment, San Francisco just has its ban invalidated in state court as preempted by a state firearms regulation. The state laws the court relied on are actually silent as to local regulation—they’re laws that establish statewide regulation of firearms. The courts found that these laws occupied the field and implicitly prohibited the local regulation.
Another example of aggressive preemption hobbling local government: San Francisco’s attempt to provide for universal health care for local residents has run into federal preemption problems in court. The city wants to extend its existing coverage provided through SF General Hospital and a network of local clinics to all residents who don’t already have coverage. But it also wants to be sure employers don’t just drop health insurance and dump their employees on the city in response. So it’s added a mandate that most employers either offer coverage or pay a fee to contribute to the city health-care plan. This is not a regulation of employee benefits—the city isn’t making anyone provide health-care benefits. It’s just making those who don’t offer coverage to pay the fee (or better put, it’s making every business pay a fee for local health care and exempting those business that provide coverage for their employees) in order to ward off the free-rider problem. But this initiative is being challenged as preempted by ERISA, which regulates employee benefits and preempts almost any state of local law in the field. Is San Francisco’s ordinance even within the field of employee benefits, or is it just a fee levied on local businesses (which the city is otherwise entitled to levy) coupled with a city-provided service? A broad interpretation of field preemption will kill the city’s health-care initiative.
Now you might think the city has no business trying to mandate universal health care—it’s not really a local issue, right? But consider this: The city already operates a large health-care system because, as a consolidated city and county, it’s responsible for public health care for the indigent. The city discovered that it spent a fortune treating poor people in the ER of SF General for conditions that really should be treated cheaply in routine doctor's-office visits. So it set up a network of free neighborhood clinics to provide preventative and routine care in order to keep those people out of the ER. At this point, the city already has a health-care network in place. But what about people who have jobs and aren’t indigent but who still don’t have health care? When they get really sick, they wind up at SF General, too. So the city wants to cover them in the clinics. This led to the push for universal health care and to the contested employer fees.
I’m not at all certain this is good policy. It’s possible that, as the small-business owners and restaurant owners argue, the mandate will put people out of business and make everyone worse off. Restaurants have gotten together and decided to tack a fee onto every bill to cover the costs of the new health coverage. They want the consumer to know why they’re paying extra for their five-course tasting menu and wine flight. Maybe the extra costs will drive away consumers and put the marginal restaurant out of business. Maybe it will even destroy the foodie culture here and consign us all to have to eat at Red Lobster and Outback. But isn’t this just the kind of local effect we should expect a city to be sensitive to and adjust to? And mightn’t it be a good idea to let a local government experiment with universal health care to give Hillary Clinton and Barack Obama some actual information to work with when they argue about it?
These aren’t home-rule issues, but they are examples of how we hobble our cities from doing what cities ought to do—experiment with new policy ideas that might not occur to legislators or bureaucrats at the state or national level—or might not get past the special interests there.
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Sen. Clinton may or may not be the next Democratic nominee for president. But her candidacy represents to many voters a positive statement in favor of gender equality.
I've cast my lot with Sen. Obama, but if he fails to cross the finish line, I bet it will have less to do with the overheated statements of his pastor or his bowling than with the fact that—however much the Clintons together generate suspicion or should be eliminated on the democratic (small “d”) “no second rides” theory—Mrs. Clinton is still, well, a woman and more than a few citizens (myself included) think having a woman president long overdue.
Why overdue?
Because, frankly, I have three daughters among my five children and it would be salutary if they would be less subject than my wife’s generation to arbitrary gender-based impediments as they reach toward their aspirations. For more than 30 years now, I’ve watched highly talented women law graduates face the same overly rigid law-firm and corporate structure that somehow pretends not to know that many (not all) women have a desire to both practice their chosen profession and parent. I’m all for the free market, but the market has been treating families as if they were a free good, and just as “the tragedy of the commons” despoils the commonly held air and water, corporate elevation of its bottom line over family well-being shortchanges the family—and us all.
Men, of course, too often silently shrug this off as if it were none of their business, perhaps even thinking again silently (since openly would yield a cold stare or litigation) that gender-based distinctions are not arbitrary impediments at all but simply the rational economic calculus applied. Of course, we men know it's darn hard to do parenting and professional work at the same time, which is, of course, why most of us don’t attempt it. So it came as no surprise when, lo and behold, a recent Canadian study by Jean E. Wallace and Marisa C. Young proved the obvious that women with children are less “productive” than women without children.
As I indicate in additional commentary on this study, and as Emily Bazelon has noted, “productive” is in scare quotes because the study measured productivity in accordance with the dreaded billable hour, which persists in making law practice a modern form of well-paid slavery, rather than service—which, digressing just for a moment, the practice might have a chance of becoming yet again were flat or contingent fees the more standard means of law-firm accounting. In any event, apart from the severe damage the billable hour does to the sheer enjoyment of legal work, it is not a perfect measure of productivity, since obviously some people can get a lot more done in a small amount of time than others, and women are often superb multi-taskers.
Confirming as it does that we men are not particularly helpful when it comes to making the family-work balance possible, it’s tempting to hide the Canadian study under the rug. That's not to say that husbands don't lend moral support to our personal spouse's effort at not forgetting those grueling years of law, business or medical training as she is singing the alphabet song for the 15th time or is driven to the edge by the "see and say" machine. Some men—especially guests on Oprah—do this and more. It's just that—if we're honest—kicking doors open for women generally at the office has not been high on our to-do list—what with foreign outsourcing and all. In fact, according to the Canadians, men may be giving family-friendly benefits a bad name. Things like flexible hours were found to have a negative impact on a man's productivity while working at odd hours didn't affect a woman's productivity one whit. Men, it seems, tend to use these flexible hours to goof off, while women use them to finish drafting the merger agreement while waiting interminably in the doctor's waiting room. Second, men with babies at home work overtime. Go figure. Third, even when men attempt to do more of the parenting, they're not that very good at it. The study found that men who have a stay-at-home partner get a lot done, whereas women who have stay-at-home husbands don't receive any particular advantage from it.
None of this is particularly encouraging for those of us who believe the workplace—still dominated by men, of course—has a special obligation to accommodate the needs of the family as an irreplaceable cultural building block. Indeed, one “unexpected”—though perhaps not surprising—finding given the above pattern is that women without children work the hardest of all, including men. It's bad enough that men are seemingly misusing the flex benefits; just think what the male senior partners will rationally deduce when the word gets out that the hardest worker bee in the hive is the childless queen. To quote the researchers themselves, the obvious way for women “to balance work and family is to reduce their family commitments, which may be accomplished by having fewer or no children.” Yes, that's one way, but it is also a prescription for cultural suicide.
We like to think work is for the benefit of men and women and not the other way around. At least, the last time I checked this was the right order of things. The reverse proposition—that we live to rack up billable hours—would be bleak indeed, though that is pretty much the life of a young associate at any major law firm in the United States. To have a chance at getting our priorities straight, I suggest some changes in employment practices, nondiscrimination, and tax law, but would being family-friendly violate Equal Protection?
Possibly to a justice who doesn’t think child-rearing an important or compelling state interest. But who’s in that group? Surely Justices Ginsburg and liberal-thinkers like John Paul Stevens and David Souter wouldn’t want the law to be construed in a way that narrows a woman’s choices. Since under existing law pregnancy (or “pre-birth child care”) cannot be a basis of discrimination against women, why should care delivered “post-birth”? It would make no sense for either Justice Thomas, who flirts with natural law, or Justice Kennedy, who is often its modern source—worrying as he does about the ability of folks to “define their own place in the universe”—to object to giving a public tax subsidy or telling public employers not to discriminate against working mothers. If the limitation extended to private employers, Justice Thomas might drop a footnote telling us again how much he misses the original understanding of the commerce clause, but he has let similar measures go through biting his stare decisis tongue. Those in the law-as-umpire (“just callin’ em as we see ‘em”) group, the chief justice and Justices Scalia and Alito, might raise a judicially-restrained eyebrow at these innovations, but it would be perverse if those who oppose an unfettered abortion right were to go out of their way not to understand the relevant customs and traditions that underlie the “liberty” of the Fifth and 14th Amendments as family-friendly. And if these measures promote a more “active liberty”—and expanding opportunities for women does, one would think (though I confess the whole “active liberty” concept still is a tad elusive)—Justice Breyer should also be satisfied. In any event, any law is certain to be drafted gender-neutrally, using terminology like "primary caregiver" (though everyone will know that category will still mostly be women).
The presidential candidates like to talk about change. It is time we explore new employment relationships that don’t reflect 19th-century attitudes that undervalue home and family to the detriment of us all.
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Plenty of wags have compared Hillary Clinton to a zombie or the Terminator—she claws her way back to her feet and limps on when any mere mortal would be long dead. But the real reanimated corpse of this election is the contemptible question of whether sexism is worse than racism. This crude and divisive inquiry will not die, no matter how many times it is doused with the holy water of common decency and no matter how many times the wooden stake of good sense is driven through its heart. So I’m under no illusions that my attempt here will prove to be a magic bullet.
Judith Shulevitz’s post on "XX Factor" last week was the latest version of this question that I’ve seen (and far from the worst), but this question has become almost obligatory in any race- or gender-conscious discussion of the election. For instance, in her New York Times op ed, Gloria Steinem insists, “I’m not advocating a competition for who has it toughest,” but a scant four paragraphs earlier she declared a winner, asserting that “gender is probably the most restricting force in American life, whether the question is who must be in the kitchen or who could be in the White House.”
I want to convince you that the racism vs. sexism query is one that should never be posed much less dignified with whatever could possibly pass for an answer. It’s conceptualism at its nadir. (It has all of the futility of kids arguing over whether Superman or Spider Man would win in a fight, but with none of the charm.) Worse yet, the question, by its nature, invites the most base form of competition for victim status: Like a bad cultural studies conference where the most subordinated of them all gets to speak first, this question suggests that the people who labor under the more severe type of identity-based oppression somehow, by virtue of their victimization alone, deserve special priority—first question after the keynote, first grab at the coffee and Danish table, maybe even first dibs on our political loyalties.
And while wallowing in the worst of 1990s-style identity politics, it ignores one of the few valuable lessons 1990s identity politics had to teach: namely that social identities are situational and not essential, that how and whether race and gender are important depends on context. Typically when the question has been put, it has evoked some thin one-sided evidence as to why one or the other is worse for Clinton or Obama (Clinton has to put on makeup and worry about the color of her pantsuits/ Obama can’t go on the attack without sounding like a black thug), augmented by a long litany of gender or race grievances that don’t have much to do with the narrow question at hand (slavery, Jim Crow, job discrimination, racial profiling, segregation, the Tuskegee experiment, the Jena 6/ rape, pornography, anti-abortionists, sexual harassment, prostitution, the glass ceiling, lazy and macho husbands, dry cleaners who charge more for blouses than shirts), the sheer tedious length of which is meant to overwhelm all arguments to the contrary, leaving only one conclusion: Sexism (or racism) is worse.
Of course it’s true, as Shulevitz asserts, that “a woman seeking higher office faces obstacles that a man does not face, no matter what the color of her skin.” But this doesn’t suggest that gender is the greater obstacle generally—only that gender poses distinctive obstacles. It’s also true that a black person seeking higher office faces obstacles that a white person doesn’t face, no matter his gender. If (for God knows what reason) we were to take seriously the narrow question—who has it worse, Clinton because of sexism or Obama because of racism?—we’d need to consider all of the racially or gender-specific disadvantages each has experienced and somehow try to compare them.
And there are distinctive advantages to be considered as well: Geraldine Ferraro was right to say that Obama wouldn’t be a front-runner but for his race, but right only in the most banal sense: Candidates for high office are elected, in large part, based on the voter’s perception of their “character,” and that perception is derived in large part from biography; Obama’s includes the fact that he’s black. And of course many people are especially excited about the prospect of a black president. So, too, Hillary Clinton would not be a front-runner but for her gender—plenty of people are excited about her candidacy primarily because of the prospect of a female president. There’s nothing scandalous about this—race and gender are salient in our society, and the symbolism is relevant in a politician. But how could we know “which is worse?” without somehow performing this complex and context-specific cost/benefit analysis? No one has even tried to make such an accounting—and for good reasons—but that’s what one would need to do in order to make any sense of the “which is the greater obstacle” question.
This leads me to suspect that when people ask whether sexism or racism is the greater obstacle in the context of Clinton vs. Obama, what they really care about is whether sexism or racism is the bigger social problem (since the evidence cited so often goes to the latter inquiry and not to the former) and therefore whether it would do more good or be more profound, in some overall cosmic sense of “good” or “profound,” to have a female as opposed to a black president. It’s understandable that someone who has spent her life fighting sexism, like Ms. Steinem or Ms. Ferraro, would find it tempting to pose (and answer) this question. But this is precisely the kind of unresolvable moral question, shot through with self-interest, that epitomizes the worst of late 20th-century identity politics. That kind of question has ruined more potentially successful activist organizations, academic conferences, college seminars, and political movements than all of the agents provocateurs J. Edgar Hoover could have imagined in his soggiest of wet dreams. And it will ruin the Democrats as well if we let it.
One last thing: If it seems that right now the people most insistently posing this unfortunate question are feminists, that’s simply because Hillary Clinton is losing. If Obama were losing, you can be sure you would hear similar carping from racial activists. (Close your eyes, and you can almost hear it now: “The white power structure will always protect its own in the end. …” “Race is still the greatest oppressive force. …” etc., etc.)