Category Archives: Constitution

Protecting Article XII

Well, Trump visited central Indiana yesterday, for a fundraiser and rally. It only increased the intense speculation about whether he would add Indiana’s embarrassing Governor to his ticket.

In many respects, they would be a political odd couple, but they do have one thing in common: neither of them appears to have much familiarity with, or regard for, the Constitution.

In his recent meeting with Congressional Republicans, for example, Trump emphasized his readiness to protect America’s Constitution–including Article Twelve.

Of course, there is no Article Twelve.

We probably shouldn’t be surprised; to the extent that this particular candidate has policies, a significant number of them are patently unconstitutional. Trump says he would authorize torture, round up and deport immigrants (no mention of due process, which is evidently not a phrase in the vocabulary of the man who brags that he has lots of “good words”), and he has proposed “passing a law” to eliminate the 14th Amendment’s birthright citizenship provision.

It’s mind-boggling that any citizen of the U.S. knows so little about America’s legal framework that he thinks passing a law can change constitutional mandates. (Even Pence and my least civically knowledgable students know better than that.) The fact that the Presidential nominee of a major political party is so ignorant of the most basic rules that constrain all elected officials–rules that he would be charged with defending and obeying if, God forbid, he should win–is stunning.

I know I am a broken record on the subject of civic literacy, but the ability of a man like Trump to garner 13 million votes in the primaries is at least partially attributable to the fact that too many Americans know little or nothing about the country’s legal framework or governing architecture.

The American Constitution was not handed down by God (although some on the far Right actually have made that claim). There are good reasons to consider amending parts of it, and serious political figures and scholars who advocate for such changes–but no credible source suggests that the Constitution is irrelevant and can simply be ignored.

What separates successful countries from theocracies, autocracies and banana republics is respect for the rule of law. The basic premise of the rule of law is that laws and regulations apply to everyone. It is the obligation of all citizens–including Presidents, Governors, and all other elected officials–to follow the same rules that apply to the rest of us.

Actually, it shouldn’t surprise us that Trump doesn’t understand that. He’s lived his entire life convinced that the rules don’t apply to him, and he’s made it quite clear that, if he should be elected, he won’t let pesky rules or constitutional provisions get in his way.

That attitude and ignorance explains why citizens who are civically literate find the prospect of a Trump Presidency terrifying.



The Right to be Wrong

[This post should really be about Dallas and the two horrific incidents preceding and triggering what happened there. It isn’t, because I am still processing it all. I find myself unable to put my reactions into words right now. Those words will come, but not yet.]

The Des Moines Register recently reported on lawsuits brought against the state and city by churches challenging recent interpretations of Iowa civil rights laws to prohibit church members from making “any public comments — including from the pulpit — that could be viewed as unwelcome to people who do not identify with their biological sex.”

They [the churches] said they are asking the commission to declare that Iowans have a right to speak from church pulpits about biblical teachings on sexuality. The Sioux City church also wants a declaration that Iowa churches are free to follow their religious doctrines in how they accommodate people in restrooms, locker rooms and living facilities.

Unless there is something I’m missing, the actions of the Iowa Civil Rights Commission violate the First Amendment’s Free Exercise Clause. (According to the article, the Commission is evidently denying that the churches are “bona fide” religious organizations–a fairly bizarre position.)

We live in a time of social change. Greater acceptance of LGBT citizens, especially, has led to all sorts of debates about “religious liberty.” (We’ve seen this movie before; in the past, merchants and landlords have claimed “religious liberty” entitled them to refuse service to African-Americans, Catholics and Jews.)

As I have written before, government has the right–indeed, the obligation–to prohibit discrimination in housing, education, employment and public accommodations.

That said, churches and other genuinely religious institutions are not public accommodations, and their right to preach as they see fit, to take positions on public issues informed by their doctrine, is protected by the First Amendment. I might believe–as I wholeheartedly do–that these church folks are wrong about homosexuality (and actually, about a lot of other things) but they have an absolute Constitutional right to their beliefs. They have a right to preach about those beliefs, and to conduct their congregational affairs in a manner that is consistent with their religious doctrines.

It’s particularly unfortunate that the Iowa Civil Rights Commission has taken the position that it can suppress the churches’ religious message, because that position feeds into entirely bogus assertions made by proponents of so-called “Religious Liberty” laws. The Eric Millers and Micah Clarks of this world insist that “secular activists” will force pastors to conduct same-sex weddings, or will outlaw preaching against homosexuality. Constitutional lawyers respond–properly–that churches and pastors are protected against such efforts by the First Amendment.

Overreaching in Iowa just supplies ammunition to those who want laws giving them a wide-ranging right to discriminate. The churches that brought these lawsuits should win–demonstrating that RFRAs and similar measures are unnecessary because the Constitution already protects religious expression.


When You Take the Crazy Train….

A recent New York Times column by Linda Greenhouse follows the latest evolution of the Right’s attack on America’s judiciary.

Her introduction is arresting, to put it mildly.

Do you hold Chief Justice John G. Roberts Jr. responsible for the ascendancy of Donald Trump? The thought never crossed your mind? Then you probably haven’t been reading the conservative blogosphere, where Chief Justice Roberts, target of bitter criticism for his failure to vote to dismantle the Affordable Care Act, is now being blamed in some quarters for Donald Trump as well.

Evidently, the Chief Justice’s refusal to rule against the constitutionality of the Affordable Care Act was a “sucker punch,” that robbed the Tea Party of a victory it “expected and deserved.” This defeat on an issue of constitutional interpretation meant–in the twisted “logic” of Tea Partiers–that there is no point relying on the courts.

Greenhouse says the lesson they internalized was “if you want to beat Obama you have to get your own strongman.” Guess who?

Even before the Trump-focused blame game started, Chief Justice Roberts was well on his way to becoming the political right’s favorite punching bag. In a rambling speech on the Senate floor last month, Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, defended the Republican refusal to move forward with President Obama’s nomination of Judge Merrick B. Garland to fill the Supreme Court’s vacant seat. Playing off an observation the chief justice had made shortly before Justice Antonin Scalia’s unexpected death, to the effect that the Senate confirmation process had become unfortunately divisive and political, Senator Grassley said it was the Roberts court itself that was political. “Physician, heal thyself,” he said, and then offered this observation:

Justices appointed by Republicans are generally committed to following the law. There are justices who frequently vote in a conservative way. But some of the justices appointed by Republicans often don’t vote in a way that advances conservative policy.

This is a reprise of an old song: if the Courts don’t rule the way I want them to–if they reach decisions incompatible with my preferences–they are “activist” and illegitimate and we are entitled to undermine both the individuals serving on them and the concept of separation of powers that is at the heart of our system of government.

Most lawyers I know would classify the Chief Justice as pretty conservative; his instincts seem to be to support institutional power, whether corporate or governmental. I have disagreed with several of his decisions, and with his articulation of a judicial philosophy. That said, he is clearly a brilliant lawyer whose jurisprudence falls within a longstanding American legal tradition.

The problem is that much of our current political leadership is unfamiliar with that tradition, ignorant of the role assigned to the Courts, and child-like in the belief that whenever a court renders a decision they don’t like, it must be illegitimate.

The problem is also larger than a bizarre attack on John Roberts. It is even larger than the profoundly damaging attack on the Supreme Court by Senate Republicans who are refusing to allow that body to discharge its constitutional duty of advice and consent.

The problem is, America is currently governed by  petty, uninformed, ahistorical and (in several cases) deranged individuals who have commandeered the Crazy Train and are taking the rest of us with them.

States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.

Theocrats or Panderers? It Doesn’t Really Matter…

Politicians at all levels keep giving God a bad name. God doesn’t want LGBT folks to have equal rights, and certainly doesn’t want them to get married, at least to each other. God doesn’t want women controlling our own reproduction. God doesn’t like immigrants, or refugees, or Muslims (wrong God). In Indiana, just ask Mike Pence. Or Marlin Stutzman.

As a recurring Facebook meme puts it, “Isn’t it nice that God hates all the same people you do?”

The Republican presidential contenders are, if anything, worse. Herb Silverman has a great commentary up at Huffington Post.

Recently I wrote about presidential candidate Marco Rubio’s comment that “all the answers are in the Bible” and his remarks to an atheist that our rights could only come from a creator. A number of readers agreed that Rubio’s view made no sense, but they also mentioned that religious views of other candidates are just as bad, or worse. I agree. Rubio has never claimed that God told him to run for president. That alone distinguishes him from current candidates Ted Cruz and John Kasich, and dropout candidates Ben Carson, Mike Huckabee, Bobby Jindal, Rick Perry, Rick Santorum, and Scott Walker.

Of those who dropped out, despite God’s support, Ben Carson remains the most active politically. He is the new national chairman of My Faith Votes, an organization that wants Christians to decide who will be the next president and all national and local leaders.

What’s so ironic about these posturing theocrats is that they also go to great lengths to present themselves as constitutional “originalists” and “strict constructionists,” a facade that requires them to ignore pretty much everything the Founders said and wrote about religion and the meaning of the First Amendment’s Establishment Clause.

Ted Cruz is by far the smartest–and creepiest–of the GOP field. A graduate of Harvard Law, he should know both the history and operation of the First Amendment, but either he missed those classes or he chooses to ignore both the Founders’ own words and 200+ years of constitutional jurisprudence. As Silverman writes,

Fittingly, Cruz launched his campaign at Liberty University, founded by Jerry Falwell. At a National Religious Liberties Conference, Cruz said, “Any president who doesn’t begin every day on his knees isn’t fit to be commander in chief.” In addition to eliminating atheists from presidential consideration, Cruz apparently would also like a prayer test for all candidates. His Religious Liberty Council seems to equate religious liberty with a God-given right to discriminate against gays. Pastor Rafael Cruz, Ted’s father, has served as a surrogate for Ted’s campaign. Pastor Cruz says that there is no such thing as separation of church and state, America is a Christian nation, and the Ten Commandments are the foundation of the Constitution and Declaration of Independence.

No wonder America is seeing the “rise of the nones.” Who in her right mind would believe in or worship the sanctimonious, repellent and vindictive God who motivates these people?