Textualist interpretatiion as studied inattention

If judicial governance is worrisome, as I urged in my last post, how can we, and the judges themselves, avoid it? One answer is to agree on a set of interpretive rules, and follow them faithfully. This is a meaningful strategy; law needs to consist, in part, of rules and unhesitating rule-enforcers. I think it's probably also the case that if judges are confident in each other's broad fidelity to a set of neutral rules, they may be more comfortable with the use of more value-driven approaches brought in as threads in the weave, since they know that the threads are not being made the fundamental pattern of the whole effort.

I’m inclined to think that this is what has happened in the Supreme Court’s statutory interpretation jurisprudence. Today the Supreme Court seems to have achieved a measure of comfort with a largely textualist approach to statutory interpretation. Considerations of legislative purpose do get invoked, but rarely as the dominant guide to meaning.

But there is a price, in a certain studied inattention to legislative purpose. The strikingly named case of Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (No. 11-246, decided by the Supreme Court on June 18, 2012), illustrates this problem.

The case was a lawsuit brought by Mr. Patchak to challenge the Secretary of the Interior's acquisition of a piece of land to be held in trust for the Indian Band so that the Band could build a casino there. The land itself is in Michigan, and this was at least the second lawsuit seeking to stop the plan in its tracks; the first was brought by a group called Michigan Gambling Opposition (MichGO), and when that one failed Patchak, a MichGO member, brought this case. But the case amounted to a suit against the United States, and the United States is immune from suit unless it has waived its sovereign immunity, so the  issue before the Court was whether the United States had in fact waived its sovereign immunity to such suits.

As a general matter, the U.S. has waived its sovereign immunity, under the Administrative Procedure Act (APA), for suits “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702. Since Patchak was not seeking money damages (he just wanted a determination that the US did not validly own the land), and since he attacked the Secretary of the Interior's official actions (on the ground that the Band wasn’t recognized as a tribe when the statute authorizing such land acquisitions was enacted), the Court felt that this language covered Patchak, except for one problem. The problem was that section 702 of the APA has an exception: "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." Here, a statute called the Quiet Title Act permits suits against the U.S. to "quiet title" (I'll come back to what "quieting title" is in a moment) – and this Act has an exception, covering suits over "trust or restricted Indian lands,” 28 U.S.C. § 2409a(a).

So one way to approach the case was to ask whether Patchak's suit was a "quiet title" case. If it was, then the "Indian lands" exception applied to it and the case was barred by sovereign immunity. 8 justices agree, for quite persuasive reasons that Justice Kagan describes in her opinion for the Court, that Patchak's suit was not a quiet title action, because those lawsuits are cases in which the person bringing suit has some sort of claim of ownership of the property in question (and wants to "quiet" adverse claims). But Patchak had no such claim; he didn't own the land but just wanted to prevent the United States from taking the land and enabling the Band to put a casino on it.

Only Justice Sotomayor disagreed. She pointed out that:

The majority's conclusion hinges, therefore, on the doubtful premise that Congress intended to waive the Government's sovereign immunity for those like Patchak, who assert an "aesthetic" interest in land ..., while retaining the Government's sovereign immunity against those who assert a constitutional interest in land -- the deprivation of property without due process of law. This is highly implausible. Unsurprisingly, the majority does not even attempt to explain why Congress would have intended this counterintuitive result. (Sotomayor dissent at 8.)

What the majority says about Sotomayor's point is this:

The Band assumes that plaintiffs like Patchak have a lesser interest than those bringing quiet title actions, and so should be precluded a fortiori. But all we can say is that Patchak has a different interest. Whether it is lesser, as the Band argues, because not based on property rights; whether it is greater because implicating public interests; or whether it is in the end exactly the same – that is for Congress to tell us, not for us to tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Government’s ownership of property. (Majority opinion at 14.)

Sotomayor is not quite fair when she says that the majority “does not even attempt to explain why Congress would have intended this counterintuitive result,” for the majority does try both to say that the result isn’t necessarily counterintuitive and that there might be a reason for it (namely that Patchak’s suit, unlike the suit of a putative owner seeking to “quiet” claims against him or her, “implicat[es] public interests”). But it is entirely fair to say that the majority doesn’t assert that this rationale in fact was Congress’ reason for legislating as it did. The majority leaves the question of what Congress had on its mind unresolved, because it concludes that the text is clear.

In short, to embrace the text the majority must cast aside the temptations of inference about Congressional purpose. The result is a sort of willed ignorance. Willed ignorance may often be preferable to imagined understanding – to the kind of adjudication in which judges infer Congress’ veiled purpose, often no doubt discerning a purpose remarkably in concert with the judges’ own values, and then impose that purpose on the language. But at the same time we must accept that the court’s disclaimer of understanding must restrict its ability to enable Congress to accomplish what it actually set out to do. That seems to implicate the concern Justice Breyer -- who here joins the majority -- raised in his dissent in the farmer-bankruptcy case I discussed a few days ago:

I believe it important that courts interpreting statutes make significant efforts to allow the provisions of congressional statutes to function in the ways that ... the elected branches of Government likely intended and for which it can be held democratically accountable.

Nontextual statutory interpretation -- American and South African

One might say that the difference between the two statutory interpretation cases I've recently discussed is the difference between an American jurisprudence obsessed with text and with circumscribing power, and a South African jurisprudence committed to shaping law to transform a nation and therefore determining the meaning of law in light of its purpose rather than its words. And this idea does, indeed, capture an important difference between U.S. and South African law.

But it would be wrong to think that nontextual statutory interpretation is unknown in the United States. Certainly we have a history of such interpretation, dating back to the classic case of Rector of Holy Trinity Church v. United States, 143 U.S. 457 (1892). Holy Trinity asserted -- and not without precedent -- that "[i]t is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers." 143 U.S. at 459. But Holy Trinity has largely fallen from favor in recent years. In an opinion concurring in the judgment (but not in the more free-wheeling majority opinion) in the case of Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989), Justice Kennedy noted that Holy Trinity affirmed that a statute should be interpreted in light of the supposed fact that the United States is a "Christian nation." He responded, 491 U.S. at 474, that "I should think the potential of this doctrine to allow judges to substitute their personal predelictions [sic] for the will of the Congress is so self-evident from the case which spawned it as to require no further discussion of its susceptibility to abuse."

Still, reports of the demise of nontextual reading of statutes in the United States are premature. Broadly speaking, it seems to me that the text fades in significance when the constitutional stakes go up. The more a statute involves constitutional values, the more likely it will be read in light of those values rather than in light of its text.

For a striking recent example, consider Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658 (2009). This is the well-known case from 2009 in which the Supreme Court addressed a decision by the City of New Haven, Connecticut to set aside the results of a test taken by firefighters seeking promotion, a test under which no blacks at all would have been eligible for promotion. New Haven maintained that it could not use the test results because it "had a good-faith belief" that doing so would itself have constituted illegal discrimination against minorities. 129 S. Ct. at 2671. The Supreme Court, however, decided that the city's decision was actually illegal discrimination against those firefighters -- all of them white, except for two Hispanics -- who had done well on the tests.

As the Court explains, the federal statute that bans employment discrimination on the basis of race, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., actually forbids two different kinds of discrimination. One is disparate impact discrimination -- unequal results that lack a justification in "business necessity," whether or not they are themselves the result of purposeful bias. The other is disparate treatment discrimination, which is precisely the result of purposeful bias. Here, New Haven said it had acted in order to avoid the risk of falling into disparate impact discrimination, as it would have if the promotional test it used -- and on which whites did far better than blacks -- was not one that fairly measured applicants' qualifications. But in so doing it in a sense discriminated against the whites who had done well on the test. So the question was -- or at least this was one way to view it -- when is an employer legally entitled to deliberately disadvantage whites in order to avoid discriminating unintentionally against blacks? See 129 S. Ct. at 2674.

The problem was that the statute offered absolutely no express answer to this question. So far as the justices' opinions reflect, Congress never considered the potential for such a conflict arising; quite possibly, as Justice Ginsburg suggested in dissent, 129 S. Ct. at 2699, Congress considered its two prohibitions -- of disparate impact and disparate treatment discrimination -- to be congruent and mutually reinforcing, rather than potentially in conflict with each other. A majority of the Supreme Court seems to have been uncomfortable with the "disparate impact" idea for two decades (a history recounted by the dissent, 129 S. Ct. at 2699, though unmentioned by the majority). But Congress may simply not have seen good faith efforts by employers to avoid disparate impact on minorities as raising any issue at all of disparate treatment of whites.

Whatever the history, however, both the majority and the dissent in Ricci acknowledged the possibility that the two duties -- not to create disparate impact discrimination and not to create disparate treatment discrimination -- could come into conflict. The majority, in an opinion written by Justice Kennedy, decided that an employer could legally disadvantage whites in order to avoid disparate impact discrimination against blacks, but only if it had a "strong basis in evidence" for its claim that unless it did so it would in fact be in violation of the prohibition on disparate impact discrimination. 129 S. Ct. at 2675-76. That was a standard the majority took quite directly from one of its cases construing the equal protection clause of the Fourteenth Amendment (a central constitutional protection against race discrimination) to limit affirmative action. The dissent responded that that test was much too stringent, and that all that should be required was that "[t]he employer must have good cause to believe the device [here, the promotion test] would not withstand examination for business necessity." 129 S. Ct. at 2699.

One could argue about which standard is more appropriate. My point, though, is that the statute didn't say. In prohibiting disparate impact and disparate treatment, the statute ultimately left it to the Supreme Court to say when each of those arose, and how to handle collisions between them. The judges responded by importing their constitutional views into the shaping of the answer. (I should acknowledge that Justice Ginsburg responds to the majority's use of constitutional precedent by saying that "equal protection doctrine is of limited utility." 129 S. Ct. at 2700. But I take that statement less as a suggestion that Title VII should be interpreted without regard to the constitution than as a reflection of the dissenters' view that current constitutional equal protection doctrine is itself problematic. Race discrimination in the United States, it seems to me, is always an issue with constitutional overtones.)

So, too, South Africa's Supreme Court of Appeal brought constitutional considerations directly to bear on the statutory text at issue in the Democratic Alliance case. In doing so, the Supreme Court of Appeal sought to constrain executive power, and it seems clear that its central goal was to find legal tools to combat the danger of corruption in South African public life -- a noble objective. The United States Supreme Court in Ricci used a similar technique to challenge what it saw as the perpetuation of racial division and racial discrimination in the United States -- another noble goal, phrased that way.

But many people see the Ricci case as part of the Supreme Court's rejection of affirmative action and race-conscious remedies for the discrimination against blacks and other minorities that has so deeply injured the United States -- and so they do not see the Court's effort in Ricci as a wise one at all. It might similarly be argued that the Democratic Alliance decision interfered with legitimate executive authority, and that in taking this step, even for the best of reasons, the court imperiled the position of the judiciary in South Africa's polity, potentially with results even worse in the long run than those that might have resulted from the appointment at issue in that case.

These are big issues, and reasonable people can disagree about them. What I want to emphasize is  that when a court reads a statute based on its understanding of constitutional values rather than of the words of the statute, it has taken on a profound responsibility for shaping the nation. If it is clear what the constitution commands, of course, one can fairly maintain that the courts are honoring the fundamental democratic choices of the country by reading them into the less fundamental words of ordinary statutes. But if it isn't clear what the constitution commands -- and sooner or later the constitution's meaning does become a subject of debate and controversy, as for example in the case of the Fourteenth Amendment's equal protection clause in U.S. law today -- then the choices being implemented are no longer necessarily those of the people and may instead be those of the judges. Such choices are, I think, sometimes needed and right. They may also be unavoidable, notably when the statute simply does not answer the question that it has now come to be seen as posing. But it's worth remembering that when such judicial choices are made they take the fate of the nation, to a certain extent, out of the democratic process. 

Two statutory interpretation cases and why they matter: Case 2, from South Africa

The second statutory interpretation case I want to discuss is Democratic Alliance v President of the Republic of South Africa and Others, 2012 (1) SA 417 (SCA 2011; available at the court's website). This case is a decision from South Africa's second-highest court, the Supreme Court of Appeal, issued in December 2011. It addresses a challenge brought by the Democratic Alliance, South Africa's official, and largest, opposition party, against President Jacob Zuma's 2009 appointment of an advocate (barrister) named Menzi Simelane as the National Director of Public Prosecutions (NDPP). The gist of the Democratic Alliance's case was that the questions about Simelane's fitness were so grave, and Zuma did so little to resolve them, that Simelane's appointment was unlawful.


The underlying facts are ... remarkable. They grow out of the gathering political crisis at the end of the presidency of South Africa's second president, Thabo Mbeki, and continue over into decisions made by the man who ousted him and ultimately replaced him, Jacob Zuma. As explained by the Supreme Court of Appeal, President Zuma wanted to appoint Simelane to replace the previous NDPP, Vusumzi Patrick Pikoli. Pikoli had been suspended in 2007 by President Mbeki, who was post-apartheid South Africa's second president until he was pushed from power by Jacob Zuma and his allies later in December of that same year.


Pikoli, as South Africa's chief prosecutor, had contemplated arresting yet another person, Jackie Selebi, who was then the Commissioner of Police. Bridget Mabandla, who in 2007 was serving as Minister of Justice and Constitutional Development  under President Mbeki, instructed NDPP Pikoli to hold off on arresting Selebi while she (Mabandla) decided whether in her opinion an arrest was justified, but Pikoli declined. After the arrest was made President Mbeki suspended Pikoli.


Then Mbeki appointed Dr. Frene Ginwala to head an enquiry (referred to by the court as the Ginwala Enquiry) into Pikoli's fitness to serve. That Enquiry found that Pikoli was fit to serve, but he was ultimately removed from office nevertheless. Subsequently Selebi was convicted of corruption charges, while Pikoli settled his lawsuit challenging his dismissal and was paid 7.5 million rands in the settlement.


Where did Simelane come in? Among other things, it turned out that Simelane, as the senior staff member of the Ministry of Justice and Constitutional Development, drafted the letter in which Minister Mabandla tried to require NDPP Pikoli to hold off on arresting Selebi. Then Simelane participated in preparing the government's submissions to the Ginwala Enquiry, and he himself testified before it. The Ginwala Enquiry report commented very harshly on Simelane's role, saying that his submissions and testimony were "in many respects ... inaccurate or without any basis in fact and law"; that "[h]e was forced to concede during cross-examination that the allegations he made against Adv[ocate] Pikoli were without foundation"; that these allegations "were spurious, and are rejected [as being] without substance, and may have been motivated by personal issues"; and that Simelane had shown "disregard and lack of appreciation and respect for the import for an Enquiry established by the President." (Quotations from the Ginwala Enquiry report, drawn from the Supreme Court of Appeal's judgment at paragraph 24; the bracketed words "[as being]" are included in the SCA's quotation.) And there was more as well, which I don't need to review here.


How had President Zuma made the decision to appoint Simelane despite all this? He answered, in an affidavit, that he relied on the advice of his Minister of Justice and Constitutional Development (Minister Radebe), his own personal knowledge of Simelane, and Simelane's curriculum vitae. Simelane's CV was the only document Zuma had before him. (Judgment, paragraphs 5 and 45.)


The Supreme Court of Appeal concluded that this process was unacceptably thin. Unacceptable by what standard? Here at last we come to the statute in question. Section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998 provides that: 

(1) Any person to be appointed as National Director ... must ...

(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office ....

To interpret this statute, the court looked to the constitutional provision that had mandated the law's enactment, section 179(4) of the Constitution. That section says simply: "National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice."


Emphasizing that the Constitution says that this national legislation must accomplish this end, the Supreme Court of Appeal wrote: 

That is the primary purpose of the Act. It will falter at the starting post if it is not insistent about the qualities the head of the institution must possess in order to lead the NPA [National Prosecuting Authority] on its constitutional path. Section 9(1)(b) must consequently be construed to achieve that purpose.

For that reason, the Court says, it accepts the position of the Democratic Alliance that "at least the following" are required in the appointment process (paragraphs 107, 98):

(a) Obtaining sufficient and reliable information about the candidate's past work experience and performance;
(b) obtaining sufficient and reliable information about the candidate's integrity and independence; and
(c) in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

These are, the Court declares, "the least that 'we the people' can expect and that s 9(1)(b) demands."


I will have more to say about this interpretation in my next post. But I'll close this one by inviting readers to compare the text of the statute, quoted a few paragraphs above, with the court's interpretation. It's clear that we are far from the textualism of the United States case I posted about the other day. That may be cause for concern or celebration, but the distance between the statutory text and the judicial interpretation is profound -- and is a distance traversed by the Court not by parsing the words of 9(1)(b) or even the words of section 179(4) of the Constitution but rather by giving dramatic force to the values the court sees expressed in the constitutional text.

Two statutory interpretation cases, and why they matter: Case 1, from the US

The U.S. Supreme Court's decision in Hall v. United States (No. 10-875, decided May 14, 2012) won't directly affect most Americans. Few of them will ever have occasion to file for bankruptcy as farmer debtors under the sections of the Bankruptcy Code this case construes. Nevertheless the case deserves attention.

To see why, we have to begin with some legal technicalities. Farmer debtors can file for bankruptcy under chapter 12 of the Bankruptcy Code. Bankruptcy does not have to be total ruin. If the court approves a debtor's bankruptcy plan, then the debtor can keep his or her existing assets and pay the debts that led to bankruptcy later, out of future income. But the bankruptcy court won't approve the plan unless "priority claims" are paid in full.

Suppose that, after filing for bankruptcy, the farmer sells some of his or her land (or other "farm assets", to raise money to pay those priority claims. Great -- but there's a catch. The sale produces income, and the income is subject to tax. The case refers to this tax as "postpetitition tax" -- that is, tax incurred from a sale after the filing of the bankruptcy petition. If that postpetition tax due has to be paid regardless of the bankruptcy, then the farmer may run out of money while trying to pay the tax, with the result that the whole plan collapses and the farmer is, in fact, driven altogether out of business.

This prospect troubled members of Congress. The chief sponsor of an amendment to deal with it, Senator Charles Grassley, said in the Senate that: "This isn't sound policy. Why should the I.R.S. be allowed to veto a farmer's reorganization plan? [The Amendment] takes this power away from the I.R.S. by reducing the priority of taxes during proceedings." (145 Cong. Rec. 1113 (1999), as quoted in Justice Breyer's Hall dissent at 5.)

To that end, the amendment, now 11 U.S.C. 1222(a)(2)(A), provides for an exception from the list of "priority claims" -- the claims that must be paid up front and in full to get the plan approved. The exception covers "a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor's farming operation." A claim for taxes on the sale income would seem to fit here perfectly.

So far, so good, right? Unfortunately for the farmers, no. The problem is that this provision makes an exception only from the list of priority claims, so if the taxes the farmer owed on the sale weren't a priority claim in the first place then this statute doesn't get the farmer off the hook. The majority of the Supreme Court concludes (at 2-3) that the only postpetition taxes that the Bankruptcy Code treats as "priority claims" are those owed by the bankruptcy estate. But, says the Court, in bankruptcy cases under chapter 12, "there is no separately taxable estate. The debtor -- not the [bankruptcy] trustee -- is generally liable for taxes and files the only tax return." (Majority opinion at 5.)

That language sounds so broad as to be absurd. If the statute exempts nothing, what is the point of the exemption? But by virtue of another statutory provision prepetition taxes -- that is, evidently, taxes incurred in taxable years prior to the year in which the bankruptcy petition if filed -- do count as priority claims. (See majority opinion at 2; Justice Breyer's dissent at 6.) So the exemption does exempt prepetition taxes and therefore isn't simply meaningless. Actually it also exempts some other taxes as well, referred to in a footnote of the Court's opinion (14 n.8). But it does not exempt the postpetition taxes we've been considering, though these are presumably the taxes most likely to result from transactions that the farmer entered into precisely because of his or her financial distress. Justice Breyer says (at 17) that this interpretation makes "rubble" of the amendment, whose central purpose seems to be pretty completely defeated. 

And yet it may well be that as a matter of careful, word-by-word interpretation of these technical provisions at the intersection of bankruptcy and tax law, the majority is correct. Justice Breyer offers an alternative reading, but he doesn't assert it's compelling in and of itself; at one point, for example, he simply says that “[t]he English language permits this reading.” (At 9.) His argument is that this permissible reading is the right one for a basically nontextual reason – that it does what Congress wanted to do.

So what seems to have happened is this: Congress tried to amend the bankruptcy Code to help farmer debtors, and thought it had done so, but it was wrong. It got tripped up by the difficult provisions of the law it was trying to improve.

What should a court do about this? Justice Breyer concludes his dissent by saying (at 18) that "I believe it important that courts interpreting statutes make significant efforts to allow the provisions of congressional statutes to function in the ways that ... the elected branches of Government likely intended and for which it can be held democratically accountable."

That's a sentiment it's hard to disagree with, but there is something to be said on the other side of this case as well. A law's intentions should be ascertainable from its words, many would argue, or at least from its words as interpreted by clear and established principles of interpretation. One might maintain that reliance on evidence of legislative intentions as revealed in the history of the law's consideration could be one of those principles -- but again many would respond that intentions not embodied in the statute's words are too often obscure, and too subject to manipulation by judges tempted to impute their own ideas to Congress, to be safely relied upon.

Debates like this have been an important part of judges' work over recent decades, and sometimes have been intense. My impression is that today in the U.S., this war is largely over. All judges of the U.S. Supreme Court pay a great deal of attention to the words of statutes today, and to the technical tools of statutory interpretation. There remain disagreements about how far to depart from these methods, but they are more on the margins than at the core.

Within this comparative consensus, or at least truce, the Hall case is an outlier: a case where the goals of fidelity to legislative language and to legislative intention are more or less inescapably opposed. I would favor Breyer's side of the argument, but my main point is that these two central commitments -- to language and intention -- both have valid claims upon us. Indeed, the majority opinion is written by Justice Sotomayor, who more often is aligned with Justice Breyer in opposing the views of the more conservative members of the Court. And because statutory interpretation turns on such fundamental commitments, it actually does matter to all of us.

Life is complex

In a recent newsletter ("Housing: Better Together," SAToday, June 4, 2012), Helen Zille, the leader of the Democratic Alliance (DA), South Africa's principal opposition party, discussed the impact of the country's effort to provide its people with homes. Though the DA and the governing African National Congress (ANC) are locked in fierce partisan combat, Zille was not writing in entirely partisan vein; the points she made, she said, were also recognized by Tokyo Sexwale, the ANC's Housing Minister, and in the ANC's recent housing policies.

Essentially the central fact is this: it is impossible for South Africa to carry out a policy of providing free houses at state expense to all its people who lack proper housing. The need is just too fantastically large. "Given the available budget allocations, and the regulatory environment," Zille writes, "most shack-dwellers will wait more than 30 years for a house." But that's not all. Zille reports that "[i]n one Western Cape housing development, for example, 80% of beneficiaries moved back into shacks within nine months of receiving their new homes." Why? Because it turns out that what people really need is income; given a house, they sell it and use the money to sustain themselves back in a shack.

As a policy matter, these realities suggest the need for a range of efforts essentially to provide less but to have that "less" make more of a difference in people's lives -- for example, to provide building sites ready with basic services such as water, on which people will build their own dwellings with their own resources. Shaping those efforts is an important task, and a very hard one; the fundamental truth is that South Africa is not rich, and its people's needs will be hard to meet for years to come, no matter how wisely its leaders govern.

But the sheer fact that in one community 80% of households given a free house were back in shacks within 9 months deserves some attention in and of itself. It's not an argument against government efforts to achieve a just distribution of wealth in South Africa -- an urgent need. Nor is it an argument against redistribution as an element of those efforts. To some extent it's actually an argument in favor of pure redistribution: just give people the cash and they'll make the decisions on what they need to spend it on. As Zille says, it's far from cost-effective to give people a house so that they can then convert it into cash. It would be better to just write checks. (Which is not to say that writing checks by itself would necessarily be a wise policy either; there are no doubt many ways this approach could go wrong too.)

More important, it's an argument for respecting people's determination to act on their own behalf (their "agency," to use that omnipresent word), and for acknowledging how they will actually go about doing so. If what people need is income, then income is what they will likely seek. They won't remain in the free houses they've been given, unless they can make their lives work in those houses. It's good that they won't -- and it's important to understand that people will seek what they need, even if it isn't what they've been given. But the choices they make may wind up completely frustrating the aspirations of those who sought to help them. And all this is true even if those who sought to help did so with the best will in the world, and moreover in a plausible way -- if, for example, they thought that the way to provide people with housing was to build them houses.

I don't say it's easy to figure out in advance what people will need and do -- just that it's important for anyone seeking to help others to keep this question constantly in mind, and to look for answers that are real rather than ideal. Otherwise, whether we like it or not, we will fail.

The Spear

"The Spear" is a painting. It is, or was, a brutal mockery of South Africa's President Jacob Zuma, who is portrayed posed in an iconic echo of a portrait of Lenin, looking over his shoulder towards the future -- but with his genitals exposed. It's a startling image. And after it came to public attention as part of an exhibit in May 2012 it became the cause of tremendous controversy in South Africa, with one court case aimed at taking it off the gallery walls as an unlawful breach of Zuma's privacy and dignity; another proceeding before the "Film and Publication Board" ultimately resulting in the South African equivalent of an "R" rating -- meaning people under 16 can't be permitted to see it; mass demonstrations that ultimately led the gallery to pull the painting off its walls and website; along the way, two simultaneous defacements of the painting that covered Zuma's face and genitals with obscuring paint; and now, the artist who painted the piece in hiding after threats to his life. (For a chronicle of much of this, see Phillip de Wet, "How Zuma's bid to halt 'The Spear' case was derailed," Mail and Guardian, May 31, 2012. And for the image itself, along with thoughtful discussion by South African constitutional law scholar Pierre de Vos, see "On the President, his penis, and bizarre attempts to censor a work of art," on de Vos' blog Constitutionally Speaking.)

It's very easy to understand why Jacob Zuma and his supporters would have been deeply offended by this painting. The painting can be seen as a ferocious insult, saying (all the more emphatically since without words) that Zuma's sexual appetite has debased his claim to lead South Africa's progress towards a just society. The show of which it was a part was a sustained and equally hostile appraisal of the ANC's governance of South Africa. (I won't explore here, but certainly want to acknowledge, that the same things that make the painting genuinely upsetting for some may have made it a convenient pretext for political maneuver by others.)

But it is not easy to see a basis on which this painting could be suppressed without violating the freedom of speech. Harshly criticizing the ANC is core political speech; if you can't harshly criticize the government you're not living in a democracy. Harshly criticizing the President of the country must be permissible for the same reason. Deliberately telling damaging lies about the President isn't an essential part of free speech -- but the painting's statements were not points of fact but matters of opinion. And it is a fact that Zuma's life invites the charge that he is not a leader but a libertine; as is well known, he stood trial -- and was acquitted -- on a charge of rape that resulted from his having admittedly had sex (while married) with a young woman who was the daughter of a family friend. He has also admitted recently fathering a child out of wedlock. Moreover, it is no exaggeration to say that sexual mores in South Africa are in a crisis, and that male sexual aggression is a major public policy issue; half of South African women can expect to be raped sometime in their lives, according to a recent article by Charlayne Hunter-Gault. To link sex and politics together must be legitimate political expression.

And yet: there is a history to these things. The artist, a longtime opponent of apartheid, is nevertheless white. Zuma is black. In the old days, which aren't so long ago, I understand that whites forced blacks to strip to be examined as part of the elaborate system of apartheid control over black lives. Whites looked down on blacks then, and no doubt part of their prejudice was an array of fantasies about black lust -- and these attitudes probably aren't gone now. (Anne McClintock of the University of Wisconsin describes some of these overtones in "The best way to deal with 'The Spear,'" Mail and Guardian, May 31, 2012.) Indeed, one reason Jacob Zuma might be seen as a libertine, or at least one reason that blacks might think whites took this view, is that he is a polygamist and currently has four wives -- but South African customary law permits polygamy, and so to sneer at Zuma's polygamy is in a sense to sneer at African culture.

And even if we put apartheid altogether to one side, it's possible to imagine other pieces of art like this, and to wonder whether the public figures subjected to them -- however public their lives are, and however ill-chosen some of their actions along the way might have been -- might reasonably feel that these assaults go too far. Some readers may doubt this; perhaps the point is clearest if you imagine similar paintings of female politicians. Add worldwide distribution of the images via the web (as in Zuma's case, and as perpetuated in this case by my link above), and perhaps the point will seem even more forceful.

Could free speech continue without images like this? I think the answer must be yes. A state that outlawed every image portraying someone's genitals without the subject's consent, for example, could still have strong and free political debate, and a rich and diverse and even subversive cultural life.

But could "images like this" be banned without impairing free speech in more sweeping ways? That I doubt. The logic of banning these images would extend to others, potentially many others. Ultimately we would wind up with the idea that what affronts people profoundly is potentially suppressible -- and at that point we don't have freedom of speech.

So I wind up believing that this painting was, indeed, protected free speech. Would it be better, though, if the artist had never chosen to speak in this particular way in the first place? I'm not sure. The events that followed the hanging of the painting do not strike me as a victory for liberty of expression in South Africa, but they were illuminating. To know what is upsetting is important, both to future speakers and artists who may choose to shape their expression to respect others' understandable sensitivities better, and for people as a whole, to know what their fellow citizens actually believe. But like Barack Obama, I would like to see a politics that was kinder and less virulent, and I hope for the same for South Africans.