Category Archives: Constitution

How To Disenfranchise A Population

Every American who paid even the least amount of attention in history class is familiar with the phrase “No taxation without representation.” It was a rallying cry during the war for independence, and it has re-entered our national conversation. As economists have pointed out, Trump’s insane tariffs are really taxes on American consumers, taxes that our elected Senators and Representatives did not impose, despite that pesky constitutional provision to the effect that taxation is exclusively within the legislature’s jurisdiction.

Lincoln Square has recently considered the issue from another perspective. The linked essay argues that–thanks to systemic flaws–We the People no longer have representation. Neither the tax burden nor policy decisions are guided by the votes of citizens.

The analysis is persuasive. The essay points out that gerrymandering has diluted representation, that establishment of a 435-member ceiling for the House of Representatives caused representation to continually thin as the population grew, and that the Electoral College allows Presidents to be elected by a minority of voters. Add to that the growing malapportionment of the Senate and a variety of what the essay calls “veto points”–very much including the filibuster–and we have structures that have–little by little– given popular minorities durable governing power without requiring explicit legal disenfranchisement.

I keep thinking of that “frog in boiling water” analogy…

Under Trump, these flaws are being further exploited to permit wildly unpopular and damaging policies (environmental, health, ICE), and what the essay calls “conditional provision of services.” The administration has withheld or delayed delivery of congressionally authorized funds to institutions and programs of which Trump disapproves, and especially to Blue states. Taxation without representation? “When residents of those states continue to pay federal taxes while services are delayed, conditioned, or withdrawn, the resemblance to the original colonial grievance becomes difficult to ignore.”

It’s hard to dispute the author’s assertion that these structural flaws, resulting in minority rule, vote dilution, and conditional governance—have created a legitimacy crisis, and represent “the most serious institutional stress test of the American political system since the Civil War.”

The claim is structural: the United States has long maintained systems capable of separating contribution from control. Minority rule through malapportioned institutions. Vote dilution through engineered districts and capped representation. And—most destabilizing in practice—governance that becomes conditional, where baseline services and administrative capacity are experienced as leverage rather than as citizenship guarantees.

In a weird way, our present situation mirrors that of the Revolution. As the author notes, those participating in the Boston Tea Party weren’t just objecting to a tax. They were objecting to a system in which “representation existed in theory but not in practice.” American victory in the Revolutionary War was followed by the establishment of a system that may have been democratic in aspiration, but was–as the essay asserts– oligarchic in structure, not to mention selectively enforced.

And as the essay reminds us, those undemocratic mechanisms are still with us, albeit in altered form. Gerrymandering has replaced the explicit disenfranchisement of disfavored populations with “engineered outcomes.” The cap on House membership has diluted representation. The Senate is the epitome of minority rule–states with some thirty percent of the population have the same number of Senators as states with seventy percent, while the Electoral College enables presidents to assume office despite losing a majority of the vote.

In other words, while voting has persisted, power no longer follows. As the essay concludes, real representation has become lost within “a dense architecture of veto points capable of absorbing popular dissatisfaction without producing institutional change. Elections became mechanisms of rotation rather than accountability.”

At this point, America’s election outcomes increasingly fail to direct or even influence national policy. We have formal “democratic” participation, but actual power continues to be exercised by a wealthy, entitled and entrenched minority.

When the Trump circus implodes (and thankfully, there are signs that that blessed day is coming), we need to elect true democrats–small d–who will address the structural and systemic flaws that have turned American governance by We the People into a charade, and have once again created a situation in which we have taxation–and policy–without representation.

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The Ten Commandments–Again

Indiana’s terrible legislature is at it again. Lawmakers have advanced revised legislation that would allow — but not require, as in the original proposal — public schools to post the Ten Commandments in school buildings and classrooms.

This effort pops up repeatedly, and each time it passes, it is predictably challenged in Court and found unconstitutional. So rather than writing about the current effort, I just went back into my archives and found what I’d written about previous attempts to force our legislative overlords’ version of religiosity on captive student audiences.

This one was from 1997.

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If I believed passionately that everyone would be better off for reading my religion’s version of the Ten Commandments, what would I do?
I’d probably start by distributing leaflets containing the Ten Commandments everywhere I could–on street corners, at the grocery store, at sports and entertainment events.
I might ask local churches and individuals to erect replicas of the Ten Commandments on their lawns or porches.
I could ask local newspapers to reproduce them; if the papers wouldn’t do so as a contribution, I might try to raise the money to buy a paid advertisement.
I would certainly use the Internet to find others who agreed with me on the importance of widespread distribution, and would engage them in my project.
I might sell t-shirts printed with the Commandments.
I might hold a rally, and bring in people to speak about the importance of the Ten Commandments in their lives.
And of course, I would do my very best to live up to the principles of the Commandments and other great religious precepts. ( “Do unto others as you would have others do unto you” comes to mind; there are many others.)
Every single one of those methods for promoting the Ten Commandments and righteous behavior is constitutionally protected.
If, however, all I really want is for my government to send a message that my particular beliefs are the proper ones, I wouldn’t bother with any of these time-consuming activities. I’d just petition my local officials to post the Commandments so that everyone visiting a public building will know who really belongs in this country and who doesn’t. It will be important that my document appear on government-owned buildings, so it will be very clear what my government approves–and by implication, what (and who) it doesn’t.
Unfortunately for those who wish to be more equal than others, the First Amendment forbids government from issuing such endorsements, just as it would forbid the passage of laws requiring the posting of the Bill of Rights in all churches. The First Amendment protects our right to advocate in the public square, but it forbids us to enlist the help of the 800 pound gorilla– government– aka the public sector.
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I saw no need to revise any of the foregoing…Indiana’s “Christian” soldiers are nothing if not repetitive and predictable.
Of course, our legislative culture warriors aren’t limiting themselves to their love affair with the Cecil B. DeMille version of the  Ten Commandments. Just in case they haven’t intruded into women’s healthcare sufficiently–while incidentally adding to the state’s brain drain and maternity-care deserts, and making it difficult for Indiana businesses to recruit women employees–they are intent upon passing a bill empowering individuals to sue companies that fill prescriptions of abortion-inducing pills.
As usual, these GOP “pro-life” warriors are supporting other measures that rather vividly demonstrate that they are actually  “pro-birth.” Once those babies are born, Indiana isn’t interested in either feeding them or providing them with medical care–Republican bills limiting poor families’ access to Medicaid and SNAP are likely to make it through the legislative process.

And Indiana wouldn’t be a “good Christian state” without a transgender bathroom bill targeting the vanishingly small number of transgender children whose very existence apparently contradicts their narrow and hate-filled theologies.

Forgive me for sounding like a broken record, but if it wasn’t for extreme gerrymandering, it is doubtful that Indiana’s legislature would be dominated by this wildly unrepresentative super-majority. (Polls regularly show that some 55 percent of Indiana voters are pro-choice, for example. And the absence of faux-religious iconography in our public school classrooms rarely if ever makes the list of Hoosier political concerns.)

Most Americans are currently and understandably fixated on resisting the neo-Nazi takeover of our national government, but if and when actual Americans regain control, Hoosiers really will need to do something about our undemocratic and unrepresentative state government.

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Christian Nationalists Are At It Again

At the base of all policy disputes is a foundational question: What is government for? What sort of decisions are properly within the remit of the state, and which must be left to individuals exercising their own beliefs? The nation’s founders answered that question with the Bill of Rights, which is properly read as a list of things that government is prohibited from doing.

Those amendments answer a fundamental question: who decides, and that makes it an impediment to the “Christian” warriors who want to dictate how the rest of us should live. As most Hoosiers are aware, a lot of those warriors– beneficiaries of Indiana’s extreme gerrymandering–have been elected to Indiana’s embarrassing legislature.

You would think–okay, hope–that this year’s short session would curtail efforts to violate citizens’ individual rights, but you’d be wrong. The Indiana Citizen has recently reported on several bills that would, if passed, advance the desires of those “Christian” nationalists for control over Hoosier behaviors.

One of those is SB 88, which has passed out of committee “with all of the committee’s Republicans supporting the bill and the Democrats who were present opposing it.” It will be heard by the full Senate.

The Citizen tells us that the bill’s author, Sen. Gary Byrne, did strip some of the bill’s most controversial elements ahead of the vote, including a requirement that middle school civics courses teach the meaning and significance of “historic” documents like the Ten Commandments, and another that would have restricted how civics teachers could address race, gender identity and issues of inequality.

In its current form, SB 88 would add something called the Classic Learning Test to the list of college entrance exams state colleges and universities are required to accept. (Like the ACT and SAT.) The Classic Learning Test is described as “a conservative-backed standardized exam that emphasizes classical literature and Christian thinkers.”  SB 88 would also expand the statutory definition of “good citizenship” instruction, requiring schools to teach students a version of “good citizenship” that includes graduation from high school, holding a full-time job, and waiting until marriage to have children.

(And here I thought “good citizenship” meant things like civic literacy, jury duty and voting…these days, I’d expand that definition to include protesting and when appropriate, civil disobedience.) As several Democrats noted, the bill would impose (some people’s) moral instruction under the guise of civics education.

The inability of Indiana’s GOP to distinguish between America’s legal structure and their carefully cherry-picked bible lessons is a common hallmark of Christian nationalism. A recent post from Lincoln Square highlights a recent publication from the Heritage Foundation, a follow-up to that organization’s Project 2025.

Do you believe that husbands should be in charge of their wives? Do you think that women who get a divorce ought to be ineligible for government benefits? Are you against gay marriage? Well, I’ve got good news for you!

The Heritage Foundation’s new report, Saving America by Saving the Family: A Foundation for the Next 250 Years, reads like a white Christian Nationalist fever dream.

There are legitimate disagreements among legal scholars about the intent/meaning of several constitutional provisions. There are legitimate disputes over the application of provisions of the Bill of Rights to contemporary realities the Founders could never have envisioned. But there is absolutely no credible scholarship supporting the notion that government should mandate behavior approved by a religious sect–or impose legal sanctions on behaviors that a given religion disapproves.

There is no historical basis for creating an American Christian theocracy.

Most religions–and most non-believers–share broadly-held views that are also moral: against murder, against theft, against aggressions of various kinds. Our government can and does forbid those behaviors–not because they violate some religious tenets, but because they violate the libertarian premise upon which our government was founded. That premise, articulated by Enlightenment philosophers and endorsed by America’s Founders, was simple and profound: Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of someone else, and so long as they are willing to accord an equal liberty to their fellow citizens. Government’s role is to protect our individual liberties while keeping the strong from abusing the weak.

It is not government’s job to prescribe our prayers or to dictate when, how or whether we should procreate, and it’s none of government’s business who we may choose to love. Laws imposing the religious beliefs of these performative “Christians” on the rest of us are unconstitutional and profoundly unAmerican.

Majority members of Indiana’s General Assembly need to take a remedial civics course.

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No Right Without A Remedy

One of the lessons one learns in law school is that there cannot be a right if there is no available remedy.

When you think about it, that makes sense. If I have a right to do X, and you prevent me from doing X, I should be able to sue you. if there is no way to punish you for interfering with my ability to do X, the “right” is non-existent–a fiction.

Which brings me to the Minneapolis murder of Renee Good by ICE officer Jonathan Ross.

A recent essay in the New York Times was co-authored by two giants of the constitutional legal community, Erwin Chemerinsky and Burt Neuborne. In that essay, they addressed the question whether Good’s family has a remedy–whether they can even bring a lawsuit against an ICE officer who shot an unarmed mother of three, muttered “Fucking bitch,” and walked away.

Had Good been shot by a state or local officer, there would be no question. For 150 years, a law known as “Section 1983” has permitted suits against those acting “under color of state law.” The Civil Rights Act of 1871 expressly made it a crime for state or local officers to violate a person’s rights. As the authors note, that act also allows “civil suits for monetary damages or injunctive relief against any state or local employees who, in the course of their work, violate the Constitution or federal laws.”

If a city adopts an ordinance that violates the First Amendment, a citizen can sue the city under Section 1983. If a police officer uses excessive force, which the Supreme Court has held violates the Fourth Amendment, the victim can sue the officer under Section 1983. Section 1983 suits account for a significant part of the workload of federal courts.

When I was Executive Director of Indiana’s ACLU, we routinely brought cases under Section 1983. (A related federal statute that is equally important allows the recovery of legal fees if such a lawsuit is successful–without such a provision, only wealthy people could afford to vindicate their rights.)

Section 1983 only applies to officials acting under the authority of state law. The Minneapolis police officer who murdered George Floyd was sued under that section. But the ICE officer who killed Renee Good is a federal employee–he cannot be sued under Section 1983. And it turns out that there is no federal law authorizing suits against federal officials who violate a citizen’s constitutional rights.

In light of this, in 1971, the Supreme Court came up with a fix of its own: allowing people whose constitutional rights have been violated to sue for monetary damages without needing a federal statute.

In that case, the Court said the plaintiff could sue directly under the Fourth Amendment–and for a decade the court followed that precedent.

But after 1980, the court sharply shifted course. Not once since then has it allowed Bivens suits (as they came to be known) to go forward. In case after case, the court has precluded people whose rights have been violated from suing even when they suffered great injuries….

The Supreme Court repeatedly has said that if Congress wants to authorize such suits, it can enact a law, similar to Section 1983, that allows suits against federal officers who violate the Constitution. Such a law is important to ensure that those whose rights are violated can receive a remedy, including compensation for their injuries. Civil liability is also a crucial way of deterring wrongdoing.

There is no credible argument for continuing this state of affairs. Passage of a law mirroring Section 1983, but for federal officials, would simply level the playing field. There is no reason to exempt federal lawbreakers from rules that apply to their state and local counterparts–no reason to protect federal actors who knowingly violate the constitutional rights of citizens. (It’s important to note that a right to bring suit isn’t a right to win such lawsuits–there are legal and factual defenses available that protect officials against ill-founded accusations.)

As the law now stands, Jonathan Ross may escape liability for an action that would clearly be illegal if he was employed by  local or state police. The absence of a remedy for Good’s family is the absence of a right–in this case, a right not to be murdered by an agent of the federal government. (And it was murder, as anyone who viewed the multiple videos available could clearly see.)

The essay concludes with a call for a “Renee Good Act” that would close this gaping loophole. I can think of few things more appropriate than passing such a law and naming it after Good.

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Whose Originalism?

The embrace of a so-called “originalism” by lawyers and judges who want to turn back the clock has been roundly–and effectively–criticised by legal scholars, who point out that (among other inconvenient facts) America’s Constitution was the product of many Founders, and thousands of citizens participated in the debates over its ratification. Multiple histories confirm that those individuals lacked anything close to an identical understanding of its provisions.

And then, of course, there’s that little problem with the passage of time. Conservative judges may sneer at the concept of a “living Constitution,” but properly understood, that concept simply requires us to apply the values the Founders were trying to protect to new and unanticipated “facts on the ground.”

A question I used to ask my students was intended to illustrate that point; I would ask the class what James Madison thought about porn on the Internet. Rather obviously, Madison was totally unaware of the Internet (also radio, television…most of our current methods of communication). But Madison and other Founders had very firm ideas about the value of free speech and the danger of government censorship–values that found expression in the First Amendment. The courts don’t limit application of the Free Speech clause to newspapers and pamphlets that were like those available when the Bill of Rights was passed–they apply the original principle to our current reality.

As a recent essay in the New Republic put it, originalists argue that the Constitution should be interpreted according to its original meaning, but they fail to ask the more pertinent question: original meaning according to whom?

In the case of the Constitution, the problem isn’t simply that its 55 Framers understood key clauses differently; it’s that the tens of thousands of ordinary Americans who publicly debated the document during the ratification process understood the text to mean different things, too. To paraphrase the historian Jack Rakove, there was never a single original meaning, only original meanings.

Many legal scholars argue (pretty persuasively) that originalism is just conservative politics masquerading as history. But Akhil Reed Amar, a law professor at Yale whose books on the Constitution are among my all-time favorites, is a scholar who argues that adhering to “original meaning” would support a lot of liberal outcomes.

In his latest, Born Equal: Remaking America’s Constitution, 1840–1920, the second in a proposed trilogy on the Constitution’s history, Amar traces the origins of the Reconstruction amendments—the Thirteenth Amendment, abolishing slavery in 1865; the Fourteenth Amendment, establishing birthright citizenship, due process, and equal protection in 1868; and the Fifteenth Amendment, granting Black men the vote in 1870—along with the Nineteenth Amendment, which extended suffrage to women in 1920. His central argument is that these amendments succeeded because their advocates framed them as fulfillments of the nation’s founding texts, above all the Declaration of Independence’s claim that “all men are created equal.” By rooting their arguments in the Declaration and interpreting the Constitution as the Founders supposedly intended, figures like Lincoln—the book’s central hero—emerge as the first true “originalists.”

The New Republic’s essay is lengthy, and engages primarily in a historical critique of Amar’s book. While that historical debate is worth reading, most germane to the current arguments about originalism is its observation that the Founders themselves rejected the belief that the Constitution had a fixed meaning–an argument made by Jonathan Gienapp, in his book Against Constitutional Originalism: A Historical Critique.

The essay concludes with another observation–one that we are re-learning at a time when an American President is dismissive if not contemptuous of any constitutional interpretation or restraint.

It wasn’t originalism that saved the nation or its Constitution, it was a decades-long struggle of ordinary people who knew what no document needed to tell them: They were all born free and equal. Sometimes their efforts were in accordance with the law, but sometimes they were in open defiance. Every time an enslaved person escaped to the North, and every time an abolitionist harbored them, they were flagrantly violating the Constitution. The lesson here can’t be that they should have been more faithful to the Constitution, good originalists like Lincoln. It’s that we should recognize the Constitution’s flaws, think creatively how we interpret it, and make it easier to amend. After all, no one wants another civil war.

Actually, there are elements in MAGA that would welcome another civil war, but the basic observation is sound.

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