All posts by Sheila

Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816.  Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

 

 

 

The Echoes Of History

I just finished reading The Ku Klux Klan in the Heartland, James H. Madison’s deeply researched and very readable account of Indiana’s history with the KKK. To say it was sobering would be a considerable understatement.

Madison, an Emeritus Professor of History at Indiana University, is often referred to as the “Dean” of Indiana historians, and this recent book, published by IU Press, is a good example of his meticulous approach and his ability to place historical events in a larger context. He cautions us that the malcontents who currently affiliate with the Klan and other white nationalist organizations are very different from those in the broad-based movement that included thousands of “good Indiana citizens” in the 1920s–a movement that effectively took over the state’s political establishment for a time.

Times change, but sometimes less than we might hope. After reading the diatribe Becky shared in yesterday’s comments, I was especially struck by its echoes in Madison’s description of the Klan’s 1920s appeal:

In churches, town halls, and public parks, Hoosiers heard the warnings. People not like us were tearing down our religion and our country. Enemies were rising up. The Klan could identify them. The Klan could show 100 percent Americans who they should fear and how they should fight.

I don’t want to overstate the case. We really have come a long way from the hysteria of the 1920s, and the susceptibility of enormous numbers of Americans to fear and hatred of “others.” But as Trump devotees remind us, an uncomfortable percentage of Americans still respond to messages of division, threats of  displacement, and hostility to people they perceive as different from themselves.

I grew up in Indiana, but Madison’s book expanded considerably on what I’d known about Klan dominance in the state. I’d heard about the passage of a state law authorizing sterilization of people deemed “defective,” but I was totally unaware that our first state constitution denied African-Americans the right to vote, or that its replacement in 1851 (affirmed by a large vote) “excluded African-Americans from taking up residence in the state.”

I knew that the Klan had been active in Indiana politics, but I was surprised to read an excerpt from a New York Times article reporting that the “Indiana Klan had a machine that made [New York’s] Tammany seem amateurish,” and depressed by assertions that “85% of the [Republican] party were Klan members.”

I was also largely unaware of the degree of anti-Catholic fervor the Klan tapped into–although I do recall a couple of people telling me in 1960 that Catholics were stockpiling firearms in church basements, and that if John F. Kennedy won the election, the Catholics would mount a take-over. (I thought those people were nuts. It didn’t occur to me that such a myth was widespread, but evidently it was.)

It was impossible to read this history without discomfort, or without hearing its echoes in today’s fringe precincts. Madison pointed out, for example, that the  Klan constantly whined, consistently characterizing white Protestants as “victims” and seeing any and all social change as a descent into immorality, crime and godlessness. I had been unaware of the Klan’s considerable role in pushing for Prohibition, its suspicion of public libraries (!), and its savvy use of that new communication device called radio. “This new technology helped create the imagined community of like-minded Americans separated by distance.”

And I’d known nothing about the Klan’s “aggressive” education agenda–bills to require (Protestant) Bible reading in the public schools, to allow the state to approve all textbooks in both public and parochial schools, and ensure that curricula advanced “patriotism and Americanism.” (Where have we heard that lately?)

I recommend the book.

As Santayana warned, those who don’t know their own history are doomed to repeat it.

 

 

Our Allies No Longer Trust Or Respect Us, And Our Enemies No Longer Fear Us…

Today, I am ceding my digital space to the 780 retired Generals, Admirals, Senior Noncommissioned Officers, Ambassadors and Senior Civilian National Security Officials who recently signed this letter supporting Joe Biden for President. Feel free to share it.

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To Our Fellow Citizens:

We are former public servants who have devoted our careers, and in many cases risked our lives, for the United States. We are generals, admirals, senior noncommissioned officers, ambassadors, and senior civilian national security leaders. We are Republicans, Democrats, and Independents. We love our country. Unfortunately, we also fear for it. The COVID-19 pandemic has proven America needs principled, wise, and responsible leadership. America needs a President who understands, as President Harry S. Truman said, that “the buck stops here.”

We the undersigned endorse Joe Biden to be the next President of the United States. He is the leader our nation needs.

​We believe that Joe Biden is, above all, a good man with a strong sense of right and wrong. He is guided by the principles that have long made America great: democracy is a hard-won right we must defend and support at home and abroad; America’s power and influence stem as much from her moral authority as it does from her economic and military power; America’s free press is invaluable, not an enemy of the people; those who sacrifice or give their lives in service of our nation deserve our respect and eternal gratitude; and America’s citizens benefit most when the United States engages with the world. Joe Biden will always put the nation’s needs before his own.

​Those who have served know empathy is a vital leadership quality – you cannot do what is best for those you lead if you do not know their challenges. Joe Biden has empathy born of his humble roots, family tragedies and personal loss. When Americans are struggling, Joe Biden understands their pain and takes it upon himself to help.

​We believe America’s president must be honest, and we find Joe Biden’s honesty and integrity indisputable. He believes a nation’s word is her bond. He believes we must stand by the allies who have stood by us. He remembers how America’s NATO allies rushed to her side after 9/11; how the Kurds fought by our side to defeat ISIS; and how Japan and South Korea have been steadfast partners in countering North Korean and Chinese provocations. Joe Biden would never sell out our allies to placate despots or because he dislikes an allied leader.

​While some of us may have different opinions on particular policy matters, we trust Joe Biden’s positions are rooted in sound judgment, thorough understanding, and fundamental values.

​We know Joe Biden has the experience and wisdom necessary to navigate America through a painful time. He has grappled with America’s most difficult foreign policy challenges for decades, learning what works – and what does not – in a dangerous world. He is knowledgeable, but he also knows that listening to diverse and dissenting views is essential, particularly when making tough decisions concerning our national security. Many of us have briefed Joe Biden on matters of national security, and we know he demands a thorough understanding of any issue before making a decision – as any American president should.

​Finally, Joe Biden believes in personal responsibility. Over his long career, he has learned hard lessons and grown as a leader who can take positive action to unite and heal our country. It is unthinkable that he would ever utter the phrase “I don’t take responsibility at all.”

​The next president will inherit a nation – and a world – in turmoil. The current President has demonstrated he is not equal to the enormous responsibilities of his office; he cannot rise to meet challenges large or small. Thanks to his disdainful attitude and his failures, our allies no longer trust or respect us, and our enemies no longer fear us. Climate change continues unabated, as does North Korea’s nuclear program. The president has ceded influence to a Russian adversary who puts bounties on the heads of American military personnel, and his trade war against China has only harmed America’s farmers and manufacturers. The next president will have to address those challenges while struggling with an economy in a deep recession and a pandemic that has already claimed more than 200,000 of our fellow citizens. America, with 4% of the world’s population suffers with 25% of the world’s COVID-19 cases. Only FDR and Abraham Lincoln came into office facing more monumental crises than the next president.

​Joe Biden has the character, principles, wisdom, and leadership necessary to address a world on fire. That is why Joe Biden must be the next President of the United States; why we vigorously support his election; and why we urge our fellow citizens to do the same.

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​This letter was signed by 780 National Security leaders of both parties, people who served in both Republican and Democratic administrations. You can see the list of signatories here.

 

 

 

A Trillion Here, A Trillion There…

What does the pandemic have in common with income inequality? Both target the same low-income people, and enrich the already-wealthy.

According to Inequality.org, U.S. billionaires have seen their wealth jump over $930 billion since mid-March alone.

If this interminable election season finally ends, and if–as polls suggest is possible (I’m too superstitious to say “likely”)–Democrats take the White House and Senate, that first hundred days is going to be busy. At a minimum, the latest “gift” to the billionaire class, Trump and McConnell’s unconscionable tax act, needs to be reversed. But that’s the minimum.

A September essay in Time Magazine by Nick Hanauer and David Rolf considered just how much that billionaire class has taken from the rest of America.

In this essay, Hanauer and Rolf begin by setting out the extent to which income inequality has hampered America’s ability to deal with the pandemic.

Like many of the virus’s hardest hit victims, the United States went into the COVID-19 pandemic wracked by preexisting conditions. A fraying public health infrastructure, inadequate medical supplies, an employer-based health insurance system perversely unsuited to the moment—these and other afflictions are surely contributing to the death toll. But in addressing the causes and consequences of this pandemic—and its cruelly uneven impact—the elephant in the room is extreme income inequality.

How big is this elephant? A staggering $50 trillion. That is how much the upward redistribution of income has cost American workers over the past several decades.

Hanauer and Rolf go on to explain that the 50 trillion dollar number isn’t some
“back-of-the-napkin approximation.”  A working paper by Carter C. Price and Kathryn Edwards of the RAND Corporation, demonstrated that–had the more equitable income distributions of the three decades following World War II (1945 through 1974) simply held steady–the aggregate annual income of Americans earning below the 90th percentile would have been $2.5 trillion higher in the year 2018 alone. Since 1945, that number is $50 trillion.

That’s $50 trillion that would have gone into the paychecks of working Americans had inequality held constant—$50 trillion that would have built a far larger and more prosperous economy—$50 trillion that would have enabled the vast majority of Americans to enter this pandemic far more healthy, resilient, and financially secure.

Nearly all of the economic growth of the past 45 years was captured by those at the very top of the income distribution. And as Hanauer has repeatedly argued, that extreme disproportion has left millions of Americans with very little disposable income, a situation that hobbles economic growth overall.

It also made us much more vulnerable to the pandemic.

Even inequality is meted out unequally. Low-wage workers and their families, disproportionately people of color, suffer from far higher rates of asthma, hypertension, diabetes, and other COVID-19 comorbidities; yet they are also far less likely to have health insurance, and far more likely to work in “essential” industries with the highest rates of coronavirus exposure and transmission…. Imagine how much safer, healthier, and empowered all American workers might be if that $50 trillion had been paid out in wages instead of being funneled into corporate profits and the offshore accounts of the super-rich. Imagine how much richer and more resilient the American people would be. Imagine how many more lives would have been saved had our people been more resilient.

The article goes through the numbers, including numbers that answer the question “What if American prosperity had continued to be broadly shared?—how much more would a typical worker be earning today? They set out their conclusions in graphs embedded in the article. On average, they concluded that extreme inequality is costing the median income full-time worker about $42,000 a year.

Remember, these calculations would result from keeping former income inequalities static–not engaging in redistribution down, but simply refraining from engaging in redistribution up.

The top 1 percent’s share of total taxable income has more than doubled, from 9 percent in 1975, to 22 percent in 2018, while the bottom 90 percent have seen their income share fall, from 67 percent to 50 percent. This represents a direct transfer of income—and over time, wealth—from the vast majority of working Americans to a handful at the very top.

This situation is bad for the economy, bad for our health and very bad for our democracy. It needs to be reversed.

News And Political Polarization

A couple of days ago, in a comment to that day’s post, Paul Ogden placed considerable blame for America’s current polarization on the media environment we inhabit. He’s right (although I don’t think the “bubble” of rightwing news sources is incompatible with the research showing that  racial animosity motivates many, if not most, Trump supporters.)

Here’s the problem: Thanks to Fox News, Sinclair, Breitbart and thousands of others on and off the web, we don’t have a “marketplace of ideas.” A marketplace contains a wide variety of “goods” openly competing against each other. But research has shown that  those on the right, especially, get almost all of their news from sources that confirm their pre-existing biases. That ideological loyalty, and the decimation of local newspapers (the vestigial Indianapolis Star just announced yet another round of newsroom cuts), has prompted political propagandists to pretend to be local news outlets. The New York Times recently reported on one such effort: a nationwide operation of 1,300 supposedly local sites publishing articles produced by Republican groups and corporate P.R. firms.

The rise of a media ecosystem devoted to active disinformation poses a huge dilemma for people who–like me–tend to be First Amendment purists. I agree with the value judgment implicit in free speech jurisprudence: the circulation of  bad ideas is certainly dangerous, but allowing government to decide which ideas may be circulated would be even more dangerous.

The First Amendment requires government to be content neutral. It forbids government from censoring points of view–as Justice Holmes memorably put it, the Amendment “protects the idea we hate.” But that doesn’t preclude any and all government action.

Last Sunday, in a profoundly important cover story for the Times Magazine, Emily Bazelon considered the problem and some potential solutions. 

Bazelon began with an example, showing how one remark was twisted from its original context into an absolutely false accusation of wrongdoing. She followed that with an important observation: the spewing of falsehoods isn’t meant to win the battle of ideas; it is meant to prevent that battle from being fought.

This takes us back to Paul’s observation about closed media ecosystems. There is no battle between ideas, because they aren’t expressed in the same marketplace. They aren’t contending against contrary opinions–they’re hermetically sealed against them. Scholars at Harvard analyzed hyperlinks of four million articles, and found that the conservative media did not counter lies and distortions, but actively recycled them through other like-minded  outlets.

Bazelon points out the fatal flaw of Citizens United and preceding cases equating money with speech. “By requiring the state to treat alike categories of speakers — corporations and individuals — the Supreme Court began to go far beyond preventing discrimination based on viewpoint or the identity of an individual speaker.”

Bazelon’s article is a lengthy tour de force. I really urge you to click through and read it in its entirety, because it is not limited to a series of examples of disinformation and the damage  caused–she tackles the all-important question: what can we do about it? Are there measures consistent with the First Amendment that can help restore a genuine marketplace of ideas?

Several of the rules currently imposed by European countries would pass constitutional muster here, and regulations we’ve jettisoned could be revived; she points to former rules on diversity of ownership (until the 1980s, FCC rules barred a single entity from owning a TV station and newspaper in the same local market). We can–and should–beef up anti-trust enforcement.

Online, government could require additional disclosures–identifying the producers and funders of election advertisements. And as she notes, there is no legal barrier to increasing the delivery of reliable information. Government could fund nonprofit journalism or create additional public radio and television outlets. At the least, government could condition the existing legal immunity of social media platforms on more effective efforts to counter disinformation.

In her final paragraph, she explains what is at stake.

As we hurtle toward the November election with a president who has trapped the country in a web of lies, with the sole purpose, it seems, of remaining in office, it’s time to ask whether the American way of protecting free speech is actually keeping us free. Hannah Arendt finished her classic work on totalitarianism in the early 1950s, after barely escaping Germany with her life, leaving friends and homeland behind. She was a Jewish intellectual who saw the Nazis rise to power by demonizing and blaming Jews and other groups with mockery and scorn. The ideal subject of fascist ideology was the person “for whom the distinction between fact and fiction (i.e. the reality of experience),” Arendt wrote, “and the distinction between true and false (i.e. the standards of thought) no longer exist.” An information war may seem to simply be about speech. But Arendt understood that what was at stake was far more.

Read it. It’s important.