When the ends don’t justify the means.

In this morning’s Baltimore Sun there were dueling op eds on a bill pending before the Maryland General Assembly, SB739/HB949, that would deny state contracts to and pension fund investments in private companies that participate in any international movement that refuses to do business in Israel or its occupied territories.  The op ed by attorney Rachel Roberts capably pointed out that the bill offends the First Amendment and is decidedly un-American in its attempt to suppress political dissent.

I’d like to make another point, and will begin doing so with a question.  The bill’s primary sponsor in the Senate was Democratic senator Bobby Zirkin and in the House it was Democratic delegate Benjamin Kramer, and my question is:  What the hell were they thinking?  Are they trying to prove that the Democratic Party stands for nothing more than the ends justified the means, which seems to be the guiding principle of the Trump administration?  At a time when American values are under attack by a Republican president does the Democrat-controlled General Assembly want to show how little regard it has for the value of individual liberty and free expression?

Today the Maryland General Assembly moved with unusual speed in passing a joint resolution that allows the Maryland attorney general to file suit in order to restrain President Donald Trump from exceeding the constitutional limits of his power without the attorney general first obtaining the permission of the governor.  Now Democrats in the General Assembly are pressing forward with a bill that would exceed the constitutional limits of their own power.  It is a stunning display of hypocrisy.

The bill is aimed at the boycott, divestment, and sanctions (BDS) movement intended to advance the interests of Palestinians.  The primary goal of the movement is to force Israel to comply with United Nations Resolution 242 and other international law that prohibits Israel from resettling occupied territories (the West Bank and Gaza) with its own citizens.

The State of Maryland has no right to punish private companies for refusing to do business with entities businesses in a foreign country on moral or political grounds  Even within the state private businesses are free to do business with whomever they choose subject to prohibitions against racial, religious and other discrimination.

In the last century it was okay for companies to refuse to invest in companies from South Africa in order to pressure the South African government to end apartheid.  Today it is fine for companies to refuse to do business in North Carolina in an effort to persuade North Carolina to repeal a statute restricting LGBT rights.  But it is not okay for a private company to refuse to invest in Israeli companies in the hopes of convincing Israel to conform its settlement policy to international law?  Who gets to pick and choose which course of action is good and which one is bad?

The issue for me is not whether participation in the BDS movement is good or bad.  The issue is whether state officials should be deciding for companies whether it is good or bad.  What’s next?  A ban by a red state legislature on awarding contracts to companies who refuse to book stays in Trump hotels for their employees or refuse to purchase Trump-branded products?  I find it almost unbelievable that the General Assembly is willing to go down this path.

Equally implausible is the willingness of Maryland Democrats to surrender the moral high ground to Mr. Trump.  Mr. Trump justifies his travel ban on the “greater good” of protecting this nation’s security.  Mssrs. Zirkin and Kramer justify the curtailment on individual rights in their bill on the “greater good” of protecting Israel.  I fail to see any moral distinction between the two purported justifications, neither of which pass legal muster.

Although most of the scholarly objection to this type of bill is centered on the First Amendment, it seems to me that there are issues under the Commerce Clause as well.  Maryland has absolutely no authority to regulate the actions taken by private citizens in the course of foreign commerce.  Under the Commerce Clause of the United States Constitution regulation of foreign commerce is the sole responsibility of the federal government.  If the state is not trying to regulate foreign commerce by punishing citizens for actions taken in the course of foreign commerce, then what is it doing?

Democrats may want to try to distinguish themselves from the Trump administration by showing that they are willing to stand up for American values, like the rule of law and its regard for individual liberty.  Or, they can pass SB739/HB949 and affirm that they agree with Mr. Trump that the ends always justify the means, and that respect for the rights of individuals is but a secondary concern.

February 15, 2017


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