Category Archives: Constitution

Majority Rule?

Humans have a lot of trouble communicating, and language–which developed to facilitate that communication–frequently gets in the way. (A quote attributed to Talleyrand seems apt: he supposedly opined that “language was given man to conceal his thoughts…”)

Take the word “democracy.” These days, virtually every opinion column, every political speech or tweet or meme centers on threats to American democracy, but a recent New York Times column by Jamelle Bouie reminded me that Republicans and Democrats have rather different approaches to what the term means in American governance.

Bouie’s column didn’t address that longstanding difference–he was talking about how far Congress is from the dictionary definition, which is “majority rule.” He began by pointing out that a Senate majority favors raising the debt limit, protecting citizens’ right to vote, reforming policing…measures that are widely popular and that need to get done.

With a simple majority, in other words, Democrats could secure the full faith and credit of the United States, restore to strength the most important voting rights law in U.S. history and make progress on a critical issue for millions of Americans. They might also, if they have the votes, make it easier for workers to organize a union and, separately, codify Roe v. Wade into federal law.

Of course, the Senate does not run on 51 votes. Instead, members must assemble a supermajority to do anything other than appoint judges, confirm nominees and pass certain spending bills. Pretty much everything else must go through a protracted and convoluted process that makes a mockery of the Senate’s reputation for debate and deliberation.

It would be easy for me to write another jeremiad against the filibuster. I can’t say I’m not tempted. But I also have nothing left to say. Its problems are as well documented as anything could be, and the main argument in its favor — that a counter-majoritarian chamber already structured by equal state representation needs an additional supermajority requirement to protect the “rights” of a partisan minority — does not withstand serious scrutiny.

Of course, Bouie is absolutely correct–if the matters he lists are supposed to reflect majority opinion, as most Americans suppose. As I used to tell my students, the Bill of Rights prohibits American government from invading fundamental liberties, even when a majority approves of that invasion–but other matters, policy matters, are supposed to reflect the will of the majority.

Actually, even before the GOP lost its mind, Republican political orthodoxy rejected that explanation. I can’t count the number of times I heard  that “The United States isn’t a democracy, it’s a republic,” as if those were diametrically-different systems. That we are a republic is technically true: we elect Representatives and Senators to make decisions on our behalf. But this repeated insistence that we are not a democracy but a republic wasn’t evidence of a desire for grammatical precision–it was thinly-veiled paternalism. What those delivering that lecture meant was that we vote to select our “betters,” who are thus empowered to decide what’s best, irrespective of the expressed desires of those voters.

There is, again, a measure of truth to this. We hope that the people we elect will inform themselves of the nuances of policies and support those they believe are in the national interest, especially when their constituents lack sufficient context or technical knowledge to inform their preferences. But as I look back on those discussions, there was a strong whiff of “father knows best” to them. The electoral process–properly crafted (!!)–would put superior people (okay, white Christian males) in office, and they’d run things. Their way.

After all, America isn’t really a democracy…

Not all Republicans believed this, of course. The party once had  thoughtful, responsible people in it. Bouie quoted the very Republican Henry Cabot Lodge who wrote the following in 1890:

“If a minority can prevent action, the majority, which is entitled to rule and is entrusted with power, is at once divested of all responsibility, the great safeguard of free representative institutions.”

Democracy or democratic republic, in all but a few areas where fundamental liberties are at stake, the majority is entitled to rule. And right now, thanks to gerrymandering, the filibuster, vote suppression and demography, a distinct and shrinking minority continues to prevent actions desired by significant majorities.

We’ve suffered a (mostly) bloodless coup.

 

A Link And A Prayer…

Tonight, Monday, October 4, at 7:30 p.m. I will be on a panel (via Zoom–link below) discussing the impending threats to reproductive choice, from Texas to Mississippi.

https://us06web.zoom.us/j/96415122645

Here’s the description, and for those who want to “attend,” the information for RSVPing:

Rabbi Dennis Sasso hosts a conversation regarding reproductive rights after the controversy related to the abortion laws in Texas. Rabbi Sandy Sasso will moderate the conversation and share the Jewish perspective with guests Dr. Leigh Meltzer, Obstetrics & Gynecology Physician at IU Health, and Emerita Professor of Law and Public Policy Sheila Kennedy. R.S.V.P to jgoldstein@bez613.org or (317) 253-3441.

For those who would like to see the discussion but can’t make tonight’s Zoom presentation,I’m told the session will be recorded, and will be available on the Congregation’s You Tube channel. (Who knew congregations had You Tube channels!)

My brief introductory remarks mostly reiterate points I’ve previously made on this blog, but in case any of you have missed my “take” on Texas, etc., I’m pasting a rough draft below. I anticipate a fairly lively discussion following the introductory remarks from the three of us.

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There are three things we need to understand about the context of today’s legal debates over abortion—one philosophical, one historical, one sociological.

Liberal democracies are grounded in the libertarian premise that we are all entitled to make our own moral choices unless we are harming the person or property of someone else. In order to be considered legitimate in a diverse liberal democracy, legislation banning or requiring certain behaviors on moral grounds should reflect widespread public consensus—That’s why the First Amendment’s religious liberty clauses, properly understood, forbid government from imposing the religious beliefs of some Americans on others.

When it comes to abortion, that consensus does not exist.

Historically, the “pro life” movement was not, as popular mythology suggests, a reaction to Roe v. Wade. It wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Objecting to abortion was seen as “more palatable” and more likely to motivate religiously conservative Christian voters than the actual motivation, which was denial of tax exemptions for the segregated schools established following the decision in Brown v. Board of Education.

Those origins persist. Sociological research confirms that Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. Research also confirms that people active in the “pro life” movement are much more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of the gender hierarchy they support.

The history and research go a long way toward explaining why it is so difficult to have evidence-based, logical discussions about abortion and birth control with anti-choice activists. The issue isn’t really abortion.

What is far less well understood, however, is that the consequences of upholding Texas’ law—if, in fact, the Court eventually does that—would be devastating, and would extend far beyond the issue of abortion. (Thus far, as you know, the Court has simply punted—it hasn’t ruled on the constitutionality of the law.)

A decision to allow the empowerment of culture war vigilantes would achieve a longstanding goal of so-called “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the interference of the federal government.

Such a decision would effectively approve a federalism on steroids, and—I am not engaging in hyperbole here—the effective unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protections against unreasonable search and seizure..

Texas’ law strikes a terrifying blow against that principle.

Let me explain why this law created private vigilantes. The idea is that by enlisting private citizens to enforce the law the state can avoid challenges to the bill’s constitutionality. The theory is that, since the state itself won’t be directly involved in enforcing the law, state officials won’t be proper defendants to a lawsuit.

Why does that matter?

What far too many Americans don’t understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors. If there hasn’t been state action–government action– there hasn’t been a constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues and from all political perspectives. As Lawrence Tribe recently warned, California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. In law school, I remember studying a 1948 case involving racially-restrictive deed covenants. Those covenants were between private parties, but the Court found state action present because those private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. That case is still good law.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

The bottom line is that, if successful, this effort would empower zealots of both the right and left.  This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence. Even a more conventional overruling of Roe –a distinct possibility in a case pending from Mississippi—would invite unintended consequences. We can discuss those during Q and A.

Finally, as many of you know, my longstanding preoccupation has been with civic literacy—with the failure of so many Americans to understand their own government. The pandemic has given us a glaring illustration of that ignorance; we have officials and pundits insisting that they have the right to control their own bodies, that government can’t tell them to be vaccinated. Ironically, most of the people making this argument are anti-choice—in other words, they are claiming a right for themselves that they are unwilling to extend to others. But it isn’t only the glaring hypocrisy; they are also wrong. Government has a duty to prevent citizens from harming others, and the Court has recognized the right to mandate vaccination for at least 100 years. A woman who aborts is not a threat to her neighbors; a citizen who refuses to wear a mask or be vaccinated is such a threat–and the law recognizes the distinction even if too many Americans don’t.
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Laugh? Or Cry??

To pick up a newspaper today is to enter wacko world, where right-wingers’ fears (those “Others” are voting! That means the election is rigged!!) and their obsessions with sex (it’s dirty! protect the children!) are bursting out all over.

I recently stumbled across this report from the Daily Beast, and you really need to read it to believe it. An essay from The Guardian by Arwa Mahdawi captured my reaction:

The latest absurd example of conservative cancel culture comes to us courtesy of Moms for Liberty, a rightwing advocacy group who are trying to dictate what books Tennessee public school kids can read. I don’t know if any of these moms own a dictionary, but they might want to look up the definition of “liberty”. And then they might want to change their name to Moms for Thought Control.

The moms have been very methodical: they’ve sent the Tennessee Department of Education a detailed spreadsheet outlining their complaints about the books being foisted on their children. It makes for unintentionally hilarious reading. A book about Galileo is “anti-church.” A book about seahorses contains too many details about the mating rituals of seahorses. A book about Native Americans is “divisive” and “paints white people in negative light.” A book about Ruby Bridges, the first Black child to integrate an all-white public elementary school, is “divisive.” (Racists love using the word “divisive”, have you noticed? How dare you bring up slavery and segregation! You’re being divisive!) A book about Greek mythology is a little too “graphic and scary”. A book about Martin Luther King contains “photographs of political violence”. The whole thing reads like the unhinged ravings of a book club from hell.

It’s hard not to laugh at this exercise of attempted “cancellation”–especially since one of the many accusations leveled at liberals is that it is the Left that has developed “cancellation culture.” But ultimately, it isn’t funny. It actually is representative of what passes for today’s right wing philosophy.

As Mahdawi points out, this attempts to dictate (okay, censor) the Tennessee curriculum is part of the Right’s frantic effort to rewrite American history. You can see that obsession in the sudden discovery of and opposition to Critical Race Theory (which none of its opponents can define. To them it just means anything that is less than complimentary about white people). Mahdawi notes that at least eight Republican states (including Tennessee) have introduced laws restricting how race can be taught in public schools this year and nearly 20 additional states have introduced or plan to introduce similar legislation

Far from being a kooky fringe group, Moms for Liberty are part of a very well-coordinated culture war. Whether it’s abortion or CRT, the playbook is always the same. The rightwing media whips up outrage; deliberately vague laws are passed off the back of that outrage; advocacy groups diligently weaponize these laws at a local level. “We are seeing what appear to be coordinated efforts to challenge books, not purely based on the content of the individual book, but based on the fact that they teach history from a particular viewpoint,” an executive from the National Coalition Against Censorship, told The Daily Beast. “We’re also seeing entire lists of books being challenged, as opposed to individual titles.”

So what’s the moral to this story? Essentially, it’s that you shouldn’t underestimate the right. It’s very easy to laugh at a bunch of rightwing moms clutching their pearls over sexy seahorses – but there’s nothing funny about the systemic, organised way in which conservatives are trying to rewrite history and restrict freedom of speech.

The real threat comes from the tendency of rational folks to dismiss these efforts–to chuckle, shake our heads and ignore it, because “it can’t happen here.” Depending upon your definition of “it,” it can happen here–as we learn more about the Trump effort to overturn the election, we learn how close that effort came and how much lasting damage it did to America’s democratic norms. We may not be quite ready to sew Hester Prynne’s “A” on women’s shirts, but we keep edging closer, and there are active movements to deny LGBTQ citizens a lot more than bakery products, among other efforts to return us to the 1950s. Or before.

These people may be nuts, but in the absence of a robust and determined protection of our rights, lunatics can be very effective.

 

Voter Turnout

A good friend and former colleague of mine moved back to Canada a few years ago, to accept a prestigious position. (I say “back” because he was originally from Canada. He’d married a U.S.Citizen, obtained joint citizenship, and for many years was a highly respected bioethicist at U.S. institutions of higher education.) We continue to correspond, and in the wake of Canada’s recent election, he sent me a column from a Canadian newspaper, bemoaning that election’s low turnout.

He also sent the results of a Google search for turnout percentages in both the U.S. and Canada. (You know what’s coming, don’t you??) Here’s a portion of his message:

I did find it charming that the article bemoaning low Canadian turnout (which this year was a historical low at ~58%) is still significantly higher than in the US. 
 
Apart from the Trump v Hilary election in 2016 when it was 50%, the last time US voter turnout was above 50% was in 1912 if I am reading the charts correctly. 
 
Worth pondering, eh?

The newspaper article quoted Canadian political observers on the possible reasons for what the Canadians considered “depressed” turnout. The pandemic was one possibility, and attitudes about the need for this particular election were also mentioned. But the observation that really struck me was this one:

“We’ve historically had really high trust in our democratic institutions, in our election process … and I think that the challenges that they faced in this election are going to take some time to rebuild confidence in our elections.”

That prompted me to consider just where we are in today’s U.S. If turnout depends upon trust in the integrity of the electoral system, what can we expect in the wake of the GOP’s Trumpian assault on that integrity?

If a decision to vote requires trust– trust that one’s vote will count, trust that the election is being honestly run, trust that there is a meaningful difference between the candidates for office, trust that the people who’ve earned your vote will do their best to follow through on their promised agendas–what happens when a significant portion of the GOP believes, in the face of all evidence to the contrary, that voter fraud is rampant and the 2020 election was rigged?

It isn’t just trust in the administration of elections–trust in government has been steadily ebbing in the US. The evidence goes well beyond our pathetic voter turnout figures. If that meant that we could count on a direct correspondence between low turnout and the distrust that has led to virulently anti-government sentiment, we might expect a lot of Republicans to stay home in 2022 and 2024 (and from my perspective, that would be a very good thing).

But of course, it’s never that simple.

One of the regular readers of this blog sent me a You Tube interview between a scholar with the Humphrey School of the University of Minnesota and  Stan Greenberg, the former Yale professor who’s been a Democratic pollster pretty much forever. Greenberg explained Trump’s 2016 win by pointing out that his racist appeal had generated turnout from people who’d never before voted—and according to his research, those previous non-voters remain engaged.

Evidently, they do have trust–trust that the current iteration of the GOP will protect White Christian dominance.

One of the oldest and truest rules of politics is that turnout is everything. It doesn’t matter how many Americans agree with party A or party B–as the saying goes, the only poll that matters is the one on Election Day.

The only way to ensure robust turnout of voters for what is currently the only sane party is for the Democrats to pass their agenda–especially the expansive infrastructure bill and the voting rights bill–and demonstrate that government can work, that Democrats can be trusted, that the right to participate in democratic deliberation via the ballot box can be protected.

To be clear, I’m not saying the Democrats are right about everything, only that they are currently the only sane option. We are truly at an inflection point, and constitutional government is in the cross-hairs.

Meanwhile, the Earth keeps warming, the GOP is now entirely the party of the batshit crazies, and I am very afraid that the Democrats will be unable to control their circular firing squad.

The world my grandchildren will inherit looks very scary….

 

 

Speaking Of The Constitution…

September 17 is Constitution Day. This year, it fell on Yom Kippur, so the University of Evansville moved its celebration to the following week. That celebration included a talk by yours truly, and with your indulgence (it’s long!) I’m posting it below.

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The goal of Constitution Day is to further understanding of America’s legal framework. That’s a more important goal that we tend to recognize. I sometimes encounter people who don’t think civic ignorance matters. I disagree— I would argue that the consequences of living in a system you don’t understand are negative– not just for the health and stability of America’s democratic institutions, but for individuals. After all, if you don’t know how your government works, or who is supposed to do what, you are at a decided disadvantage when you need to negotiate the system. (If you take your zoning problem to your Congressperson, or your Social Security problem to your mayor, at best, you’re going to waste a lot of time.)

Today, however, I want to focus on some of the ways in which low civic literacy divides us as Americans and harms us as a nation.

Let me begin with an observation. What we call “political culture” –including the public conversations that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And in case you somehow failed to notice, I’m really old. There are lots of theories about what has led us to this rather unfortunate place—from partisan gerrymandering to increasing tribalism to fears generated by rapid social change—and during Q and A, we can talk about the different ways those elements and others contribute to the political nastiness we see all around us. But I want to begin tonight’s conversation by considering a different villain.

I want to suggest that our current inability to engage in productive civic conversation is largely an outgrowth of declining trust in our social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are going to make our representative democracy work—but in order to trust government, we have to understand what it is and isn’t supposed to do—we have to understand how the people we elect are supposed to behave. We need a common, basic understanding of what our particular Constitutional system requires.

If I say this podium is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use—for that matter, we’re each likely to think the other person is nuts. That’s what happens when we live in different realities.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires. But by and large, those aren’t the things Americans are arguing about, and they aren’t the things I’ll be talking about tonight.

My years in academia were spent studying how Constitutional values apply within our increasingly diverse culture, the ways in which constitutional principles are meant to connect people who have very different backgrounds and beliefs, and how allegiance to those Constitutional values makes us into Americans.  My research convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of the history and philosophy of our country—is absolutely critical to our continued ability to talk to each other and to our ability to function as Americans, rather than as members of disconnected tribes competing for power and advantage. My research has also convinced me that the civic knowledge we need is in very short supply.

Let me share a story from my own experience. When I taught my undergraduate class in Law and Public Policy, I began with the structure—the architecture–of our particular legal framework, how that framework limits what laws we can pass, and how “original intent” guides the application of Constitutional principles to current conflicts. I would usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’d laugh and then we’d discuss how the Founders’ beliefs about freedom of expression should guide today’s courts when they are faced with efforts to censor communication mediums the founders could never have imagined. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

Now, it’s tempting to dismiss that as anecdotal, to consider that student an embarrassing outlier–but let me share with you just a tiny fraction of available research. For several years, around Constitution Day, the Annenberg Center has conducted surveys measuring what the public knows about the Constitution. A couple of years ago, more than a third of those surveyed (37 percent) couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could name all three branches of government. That is actually down from 2011, when a still-pathetic 36% could name them.

Other research tells us that fewer than half of 12th graders can define federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. It goes on and on–there’s much more data, all depressing.

And it matters.

If you think about it, the choices originally made by those who designed our Constitution have shaped a distinctive American culture. Those choices have shaped our beliefs about personal liberty, and our conceptions of human rights. They have framed the way we allocate social duties among governmental, nonprofit and private actors. In short, those initial Constitutional choices created a distinctively American worldview.  We don’t have to agree with all of those choices, but if we don’t understand what they were, or why they were made, or how they make America distinctive, we can’t fully understand the world we live in.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced?

In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” The most revolutionary element of the American Idea was that it based citizenship on behavior rather than identity—on how you behave rather than who you are.

Now, obviously, the founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, as enduring as the bulk of their work has proven to be, we all recognize that the system they established wasn’t perfect, nor was it sufficient for all time.

Take that issue of “original intent.” There are those who believe that the role of the courts is to look only at the world the founders inhabited in order to understand what they intended, and to apply the rules as they would have been applied in that world. That view of the judicial function arguably misreads both history and the founders’ expressed intentions. In any event, it’s impossible. We can’t think like people who lived in 1787. And even if we could, whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s?

More to the point, constitutions are by definition statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are endorsed. Our inquiry, properly understood, must be to identify the principle or value the founders wanted to protect, and protect it to the best of our abilities in a rapidly changing world. The question isn’t: What did James Madison say about pornography on the internet? The question is: how do we apply this principle James Madison enunciated –the importance of protecting citizens’ communications from government censorship—to forms of communication Madison could never have imagined?

The great debates between the Federalists and Anti-Federalists were about the proper role of government. We are still having that debate. We have enlarged our notion of citizenship since the constitutional convention to include women, former slaves and non-landowners, but the framework remains the same. The overarching issue is where to strike the balance between government power and individual liberty.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty? How do we balance government’s duty to exercise authority and enforce order against the individual’s right to be secure in his person and free in his conscience? The founders answered that question by carving out, in the Bill of Rights, things the government was forbidden to do.

As I used to tell my students, the Bill of Rights does not give us rights. The founders believed we have “natural rights” by virtue of being human; the Bill of Rights was meant to keep government—not your boss, not your mother– from infringing upon those natural rights.

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and who we should be permitted to love. We see groups on the political left shutting down speech with which they disagree, and advocating “cancellation” of materials they find offensive. Both groups want to use the power of government to impose “goodness” on the rest of us. The problem is, they want to be the ones who get to define goodness. If they had even a rudimentary civic education, they would know that the Constitution absolutely prohibits them from doing so. In our system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong, so long as—and this is an important caveat—so long as they are not harming the person or property of someone else.

The definition of individual liberty that emerged from the philosophical and scientific period we call the Enlightenment—the definition that was embraced by America’s Founders– is sometimes called the Libertarian Principle: it’s the belief that individuals have the right to make their own moral and personal choices—the right to “do their own thing”—until and unless they harm the person or property of someone else, and so long as they are willing to give an equal liberty to others.

Now, we can argue about what constitutes harm, and when the majority, acting through government, is entitled to step in and keep people from doing something. But we can’t take the position that “Freedom is for me, but not for you.”

When people are ignorant of constitutional history, when they fail to understand that the central constitutional issue is the use and abuse of the power of government, they confuse support for constitutional rights with support for unpopular uses of those rights. The issue is who gets to decide what books you read—not the merits of the books you choose. You get to decide what God you worship, or whether you worship at all; government doesn’t get to make that decision for you.

The central issue for civil libertarians is when and under what circumstances government is entitled to compel our individual behaviors or infringe our personal liberties. When people don’t understand that, when they don’t understand when government can properly impose rules and when it can’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive—even destructive. We’re back to arguing whether this podium is a table or a chair.

And that’s evidently where we are when it comes to government’s authority during a pandemic. More on that in a minute.

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when large numbers of people don’t trust that our elected officials are obeying those norms, when elected officials act to undermine the Constitution and democratic decision-making, our government doesn’t function properly. Right now, America is facing some very troubling attacks on essential democratic institutions, and those attacks are further undermining public trust in government.

In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds as Americans, and learn how to bridge our differences. When we allow powerful partisans to rewrite our history, pervert our basic institutions, and distort the rule of law, we undermine the American Idea and erode the trust needed to make our democratic institutions work.

And that brings me back to the pandemic, which in a sane world would be in the rear-view mirror.

Our ability to defeat the Coronavirus continues to be hindered by fights over a pretty fundamental governance issue: what’s the proper balance between government’s obligation to protect its citizens and the individual’s right to autonomy, or self-governance?

How much latitude does the Constitution give government to limit our individual rights in order to protect the common good– in this case, our health and lives? What is the extent of our civil liberties in the time of a pandemic? How does the Constitution limit or authorize the various government efforts to keep us safe and control the pandemic?

One of the most visible—and increasingly contentious—of those concerns involves federalism. Federalism, as I’m sure you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the division of responsibility between the federal government and the states in a pandemic?

In previous situations involving threatened pandemics, there has been much more voluntary cooperation and coordination, so a number of these federalism questions simply didn’t arise. When Donald Trump was President, however, he disclaimed responsibility for tasks that he insisted were state responsibilities, even though they had previously been handled by the federal government. Given America’s very uneven response to the COVID-19 pandemic, and the increasing politicization of decisions that should properly be made nationally, in consultation with doctors and epidemiologists, I would argue that America should place primary responsibility for pandemic response on the federal government. The Constitution, however, is silent on that subject.

People who are resisting government efforts to control the pandemic—whether that government is local, state or federal– insist that the Constitution protects their right to ignore government mandates. Citizens have protested city and state orders requiring masks and social distancing. Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and even to the treatment of Jews during the holocaust. (I will tell you that—as a Jewish American—I find that assertion incredibly offensive.)

My own reaction to these assertions is based on both the Constitution—which, as the Supreme Court affirmed during the Smallpox epidemic, clearly allows such measures –-and on logic, or more properly, the lack thereof. Government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places; laws prohibit you from speeding and ignoring red lights. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and multiple other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty.

So much for masks. What about the shutdowns, the “stay-in-place” orders that were issued before we had a vaccine? For that matter, what if government requires that you be vaccinated?  Ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly Constitutional—and until recently, were considered uncontroversial.

Here’s the distinction: the Bill of Rights restrains government from exceeding its legitimate functions. We need to remember what those legitimate functions are. We have government in order to keep the strong from hurting the weak, the predatory from taking advantage of the helpless, and the stupid, selfish and/or misinformed from spreading a deadly disease.

There are certainly areas of legal ambiguity. What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions, or challenging the use of cellphones for “contact tracing,” which has been met with considerable alarm from privacy advocates.

Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on in-person public gatherings. Thus far, Court decisions in those cases have been inconsistent.

Then there are incarcerated persons. At what point do the elevated risks in confinement rise to the level of “cruel and unusual punishment”?

Finally—and more consequential– there’s the conflict between Free Speech and the massive amounts of misinformation and outright propaganda polluting our information environment. The First Amendment limits government’s ability to do much about that. As a free speech purist, I am very leery of encouraging government censorship, but it is impossible to ignore the reality that disinformation is a huge problem without much of a constitutional solution.

A fascinating—albeit unsuccessful case– raised an increasingly important First Amendment issue: can sources of disinformation be held liable? In Washington League for Increased Transparency and Ethics v. Fox News, the plaintiff alleged that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the virus in its television news broadcasts and by minimizing the danger as COVID began to explode into a pandemic. The non-profit that brought that suit argued that First Amendment doesn’t give media outlets the right to endanger the public by disseminating false and deceptive communications in the stream of commerce.

The lawsuit accused Fox of behavior that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” Fox was essentially being accused of shouting “There’s no fire; stay in your seats” when, in fact, there was a fire. The court dismissed the lawsuit, citing Justice Anthony Kennedy’s statement in a different suit to the effect that “falsity alone may not suffice to bring the speech outside the First Amendment” and “the statement must be a knowing or reckless falsehood.” It is very, very difficult to prove that false statements are being made “knowingly.” People genuinely believe unbelievable things.

Bottom line: If America is going to combat disinformation, it will need to be through education. If that is the case—and I believe it is–it reinforces the observations I made earlier about the importance of civic literacy.

Courses in logic would help, too…..
Thank you.