Taking Economic Equality off the Table
Nighol, Gene R., Law and Contemporary Problems
GENE R. NIGHOL [*]
I have a good deal of interest in the topic of this panel, "Clinton Administration and Individual Rights." Given that, it was difficult to choose between the two papers for comment. There is a good deal to agree with in Professor Volokh's effort--particularly the notion that, even in these new arenas, traditional First Amendment concerns have real merit.  It is likely, though, that Professor Volokh and I would set up shop at different places on the slippery side of the slope.
Professor Volokh himself acknowledges that the harassment issues he focuses on have not actually been major sources of attention for the Clinton Administration.  Indeed, it is remarkably hard to believe that one of President Clinton's principal legacies will be that Americans talk less about sex in the workplace than they did before he came to office.
It might have been preferable, therefore, to explore the President's willingness to go along with the Communications Decency Act ("CDA").  Alternatively, we might have delved into the Administration's efforts to defend the CDA in Reno v. that reduced Justice Stevens to sounding like he had borrowed Justice Scalia's word processor. Stevens characterized the government's position as "singularly unpersuasive,"  seriously flawed,  based on "incorrect factual premises,"  reaching "a breadth of ... coverage ... wholly unprecedented,"  and "casting a ... dark shadow over free speech"  in the United States.
We might also productively have criticized the President's hugely unfortunate "don't ask, don't tell" policy.  Even if well motivated, "don't ask" now results in about twice as many exclusions of lesbians and gay men from the Armed Forces as occurred before its implementation.  In stark terms, it tells people who are not unfit to serve their country that they are.  Now, "don't ask" is apparently being applied against a gay, Republican Arizona legislator--effectively punishing him for statements made in open debate, on the floor of the statehouse.  One wonders what Alexander Mieklejohn would have thought of that.  Unlike the harassment strains Professor Volokh decries, the embrace of the CDA and the development and enforcement of "don't ask, don't tell" are clear Clinton Administration policies aimed at dramatically curtailing freedom of expression.
There is also much to applaud in Professor Wax's paper.  She presents powerful arguments, for example, that the brief against government involvement in welfare is overblown.  However, as she indicates, the focus of her effort is to defeat the normative claim that a right to basic economic security should be included in the federal Constitution.  People can accuse President Clinton of many things, and they have, but attempting to privilege and to constitutionalize welfare entitlements is surely not one of them. I am a notoriously bad political pundit, but even I am confident that few political movements in the United States enjoy a more profound and unshakable dormancy than the effort to constitutionalize a right to subsistence welfare. The argument that Professor Wax goes to such profound lengths to defeat, partially based somehow on her reported perceptions of actual popular sentiment, has about as much vitality in American political discourse as the move to establish a monarchy on this side of the Atlantic. It is unlikely that it even rises to the level of a straw man.
In my opinion, it might have been more useful to discuss the President's decisions on welfare reform. More specifically, it would have been interesting to explore the Administration's feverish efforts to defend Governor Pete Wilson's scheme to discriminate against newly arrived California welfare recipients.  The Wilson plan, which relegated welfare candidates who had lived in California less than one year to the amount of funding they could have obtained in their prior state of residence, was thrown out rather unceremoniously by the Supreme Court in Saenz v. …