Category Archives: Constitution

Guns And Protests

The pandemic, the economy and the Black Lives Matter Protests have dominated news coverage the past few months, joined by politics as the Presidential campaigns begin in earnest–but although long-simmering public policy debates have received less attention, that doesn’t mean those issues have gone away.

Which brings me to one of America’s longest, nastiest and most intractable standoffs: guns.

In January, Bartholomew County, Indiana’s gun rights activists asked that county’s commissioners to declare Bartholomew County a Second Amendment “sanctuary.” According to The Republic, the local newspaper, 

The group, called the Bartholomew County Indiana 2A United Sanctuary, has sent a draft of a proposed ordinance to the Bartholomew County commissioners, Bartholomew County Sheriff’s Department and Columbus Mayor Jim Lienhoop, said Chris Imel of Ladoga in Montgomery County. Imel is the group’s organizer and a former Bartholomew County deputy coroner, serving in 2017.

As of mid-afternoon Tuesday, the private social media group had 4,471 members on Facebook. Imel said he created the Facebook page a week ago.

The group believes the “sanctuary” is necessary to prevent the enforcement of certain gun control measures that–in their opinions– violate the Second Amendment.

The measures that they assert “violate the 2d Amendment” include emergency protection orders, enforcement of gun background checks, and Red Flag laws. (Indiana’s Red Flag law allows authorities to disarm people who pose a danger to themselves or others; such laws typically include due process provisions allowing gun owners to retrieve their weapons through the courts if they can demonstrate they are mentally competent.)

The Bartholomew County Indiana 2A United Sanctuary group claims the proposed ordinance would allow local officials to “refuse to cooperate with state and federal firearm laws” perceived to violate the Second Amendment to the U.S. Constitution, including any future proposed restrictions on clip capacity, silencers, bump stocks, bayonet mounts, among other items, according to the proposed ordinance.

In other words, the desired “Sanctuary” would direct law enforcement in the county to ignore pretty much any state law limiting firearms in any way. (It did make an exception for federal law.)

The Bartholomew gun group  is not, unfortunately, just an isolated group of rural Hoosiers who don’t understand how laws work. They have lots of company.

As of Jan. 7, more than 418 counties, cities and towns in 21 states have passed Second Amendment sanctuary ordinances, including locations in Illinois, Colorado, New Mexico, Washington and Virginia, according to Gun Owners of America, a gun-rights group.

On Friday night, Jennings County officials signed a resolution stating the county is now a Second Amendment sanctuary. There is no indication that the resolution signed in Jennings County was approved by any county or city councils or boards before it was signed by the sheriff and others, including Rep. Jim Lucas, R-Seymour.

If the sweep of this “Wild West” movement isn’t unsettling enough, the Brookings Institution recently issued a report titled “How Covid-19 is Changing the Gun Debate.

Starting in mid-April, anti-COVID-19 lockdown protestors stormed and shut down everything from statehouses to Subway restaurants with assault weapons and pipe wrenches. These protests are being framed around gun rights and free speech issues. Protests are allegedly about fully re-opening the economy following state-sanctioned shutdowns. Protestors appear to perceive that quarantine measures to keep them safe and reduce the spread of COVID-19 are violations of their civil liberties. In turn, they act out their frustrations through expressions of their 1st and 2nd Amendment rights. Anti-lockdown protests have now occurred in 31 states across the country and gun sales surged to nearly 2 million in March.

Not only have gun sales surged, but according to the report, they’ve surged in liberal states–despite the fact that the armed lockdown protestors are clearly Trump supporters. The researchers were unable to tell whether this data represents purchases by liberals (arming to protect themselves in the upcoming civil war?) or by conservatives living in liberal states (adding to their burgeoning armories?)

America is currently experiencing the simultaneous effects of the worst aspects of our cultural history: deeply-ingrained racism, an inadequate social safety net, a radical individualism that disdains even the slightest appeal to the common good, and the celebration of anti-intellectualism.

The racist and anti-intellectual elements gave us Trump–and his heavily-armed base.

 

 

 

The Pandemic And The Constitution

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; 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 and their utility in ameliorating the threat of contagion.)

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.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…

 

 

Facing Up To The Challenge?

As protests continue and the “President” (note quotation marks) continues to unravel, I am seeing some hopeful signs of a national awakening. I’ve previously noted that–in contrast to the 60s–there is enormous diversity in the crowds that have taken to the streets demanding justice, and fortunately, most of the media is highlighting that diversity.

Media (with the predictable exception of Fox) is also taking care to note that much of the chaos and looting is attributable to the efforts of white nationalist “race war” agitators and opportunistic hoodlums, not the protestors. They are also covering the backlash against Trump’s clumsy, militarized crackdown on peaceful protestors in order to clear the path for his ludicrous (and arguably sacrilegious) “photo op.”

Particularly gratifying are the signs of a welcome–if belated–pushback by the military.

A retired colleague of mine sent me a copy of the letter issued by Mark Milley, Chair of the Joint Chiefs of Staff (a letter which Milley copied to what appears to be the entire military establishment). The letter began by reminding recipients that every member of the military takes an oath to protect the Constitution and the values embedded within it–values that include the belief that all people are born free and equal and entitled to “respect and dignity.” He also referenced respect for the First Amendment’s Free Speech and Assembly clauses.

Milley’s letter came at approximately the same time that General Mattis–finally!–spoke out:

“When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution,” Mattis said in a statement published in The Atlantic.

“Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens —much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.”

As these military men pointedly noted, their allegiance is to the Constitution–and by implication, not to the wannabe dictator occupying the Oval Office.

As reassuring as these reactions have been, I’m pinning my hopes for meaningful change on signs that unprecedented numbers of white Americans are ready to confront the realities of America’s social structures–ready to genuinely consider the longstanding effects of systemic racism and the dramatically-different realities experienced by white and black Americans.

A former student of mine has a once-in-a-while blog; I was struck by his most recent post, just a few days ago. He began by saying that, as “a privileged white male, I have been struggling with what I can add to the critical dialog on race during these turbulent times.”

He went on to take issue with the statement  that there is “only one race, the human race.”

While a beautiful sentiment, and a biological fact, for a white person to say that “there is only one race” discounts—in most settings—the lived experience of black and brown folk and shuts down any authentic conversation on race.  As one of my favorite writers on the subject, Dr. Robin DiAngelo explains in her lecture Deconstructing White Privilege,

“To say that we are all the same denies we have fundamentally different experiences. While race at the biological level is not real, race as a social construct based on superficial features is very real with significant consequences in people’s lives. The insistence that “we are all one” does not allow us to engage in that social reality.”

The entire post is worth reading, especially for his observation– only now beginning to be widely understood–  that racism is not (just) a moral problem; it is “a system of unequal social, cultural, and institutional power.” As he writes, so long as racism is seen as an individual moral failing, the structures and institutions designed to maintain white supremacy will remain in place.

About those structures…

It’s absolutely true that, as many defenders of the status quo like to say, laws can’t change what is in people’s hearts. What that facile truism fails to recognize is that laws do change behaviors, and that, over time, changing behaviors changes hearts.

Consider the effects of Loving v. Virginia, the case that struck down laws against miscegenation. One big difference between now and the 60s has been the increase in interracial marriages. Those unions haven’t simply allowed people who love each other to wed; they’ve educated–and changed– extended families, co-workers and friendship circles. 

The fire this time isn’t a repeat of the 60s. This time, more minds are open. This time, we can do better.

 

Protecting The Privileged

The composition of the U.S. Supreme Court is a key area of dispute between Republicans and Democrats. I share the concern, but for rather different reasons than most of the people vocally involved in this debate.

It’s clear that Trump’s cult will sacrifice fundamental fairness and a competent (or even barely functional) federal government in return for reversal of Roe v. Wade.  I have increasingly come to file that possibility under “be careful what you wish for”–not only would abortion still be available in blue (and probably purple) states, but the backlash would be profound; it’s hard to think of any other ruling that would activate more more opponents of the fundamentalist cult that is today’s GOP.

My concerns with the Supreme Court are grounded in its less obvious and more dangerous retreat from the civil liberties jurisprudence of the Warren Court. The current Court’s most predictable bias can be seen a steady stream of decisions favoring the rich and powerful over the poor and disenfranchised.

A recent book by Adam Cohen–Supreme Inequality— is one of the emerging discussions of that bias. An article in Time Magazine by Cohen outlined the book’s central thesis–the conservative Court’s  “deep and abiding sympathy” for the rich. That sympathy is a hugely consequential change from the 1960s, when the Warren Court protected the rights of the poor–from welfare recipients’ right to due process to poor defendants’ right to appointed counsel in criminal cases.

As Cohen documents, however, for the past 50 years, “the Court’s sympathies have been the reverse: on one legal doctrine after another, it has expanded the rights of wealthy individuals and corporations.”

After the Warren Court, Nixon was able to appoint conservatives who shaped the Court we have today. Cohen provides striking examples of the consequences.

One of the first groups the new conservative Court came to the rescue of was rich children, or at least children in wealthy school districts. There was a growing consensus among lower federal courts, state courts, and law professors that the Equal Protection Clause required states to equalize spending between rich and poor school districts. In 1973, however, the Court, by a 5-4 vote, declared that Texas, and other states, had the right to spend more money on children in rich districts than children in poor ones.

As a result of that decision, today there are gaping disparities in school spending nationwide. An analysis of funding in Pennsylvania a few years ago found that one wealthy district spent more than three times as much as the state’s lowest-spending district. In the aggregate, these disparities mean that children from wealthy families across the country begin life with greater educational opportunities, and a better chance at success later on.

Other decisions that elevate the interests of the privileged over others include Citizens United and its forerunners–rulings that gave rich people and corporate “people (!)” a disproportionate voice in American politics.

Cohen isn’t the only person to notice. This week, James Dannenberg resigned from the Supreme Court Bar in a letter to Chief Justice John Roberts that has been widely published. Dannenberg has been a member of that bar since 1972. His letter compares the current Supreme Court, with its solicitude for the rights of the wealthy, privileged and  comfortable, to the widely-reviled Lochner court of the early 20th century that favored big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.

Dannenberg pulled no punches.

You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

When a respected member of the Supreme Court bar questions the Court’s commitment to the rule of law, it’s an ominous sign.

The question is, as always, what should we do?

We should certainly think very seriously about the recommendation by legal scholars that the number of Justices be increased–a recommendation that long preceded the current administration.

And most obviously, we need to vote blue up and down the ticket, to ensure that people who will be elevated to the court in the future are “throwbacks” to the Warren Court, rather than pro-plutocrat right-wingers.

 

A New Normal?

Given the daily headlines highlighting the incompetence and corruption of the Trump Administration, an assertion that America will not and cannot “go back” to a normal Presidency isn’t exactly welcome.

But that was the premise of an essay in Politico Magazine  a couple of weeks ago.

President Donald Trump has spent three years incinerating a group of practices commonly lumped together under the nebulous category of “norms and traditions,” causing the chattering class to worry that he’ll “destroy the presidency,” “undermine American democracy,” “erode” our institutions with each break with precedent or decorum. There are also those, including presidential candidate Joe Biden, who insist that things can go back to normal when Trump is gone. Either in January 2021 or January 2025, these optimists hope, America will experience a restoration of these timeless customs.

Here’s the problem: Many of these “presidential norms and traditions” that Trump has left by the wayside aren’t timeless at all; they’re actually quite new. They grew up alongside and in reaction to the expansion of both the federal state and the presidency—a process that began in the early 20th century but gained steam from the 1930s onward. With the growth of what Arthur Schlesinger Jr. called the “imperial presidency,” each occupant of the Oval Office has left his imprimatur on the development of what we think of as normative presidential conduct.

In other words, these norms emerged as a response to America’s changing needs.

Noting that America has changed dramatically over the 200+ years of its existence, and that  those changes require corresponding adjustments in governance is the sort of otherwise obvious observation that gives self-styled “originalists” fits. They like to believe that “living constitutionalism” is just judge-made law, unmoored from constitutional foundations. In reality, living constitutionalism is the rational application of “original intent,” because it requires safeguarding the original values that animated our Constitution and Bill of Rights in situations that the Founders could never have anticipated.

Our challenge is to decide which of the numerous norms being trashed by Trump are needed to protect those foundational values, and thus must be restored.

The article points out that many of the behaviors we think of as long-established– congressional oversight mechanisms and restrictions on FBI and CIA political activity, for example–are relatively new, prompted by the criminal abuses of the Nixon Administration.

All of which is to say, the idea of independent agencies staffed by nonpartisan career public servants, free of political interference, is a very recent development. Once unraveled, it is not certain to be reassembled.

New, however, is not the same thing as unimportant.

The takeaway is not that certain traditions lack value. On the contrary, it’s pretty reasonable to expect that presidents not misdirect law enforcement and civilian officials to do their political bidding, that presidents be transparent with the media, and that courts remain free of political influence. The point, rather, is that these norms were not timeless features of our system. They emerged over 50 or so years in response to excesses that accompanied the growth of the federal state and in response to a popular sense that citizens required greater visibility into, and accountability from, federal officeholders whose purview grew enormously in the modern era.

As I read through the article, I was anticipating some sort of prescription for how we might re-institute the norms that have clearly proved their importance. I didn’t get it. The article ended by noting that “broken eggs can’t be mended.”

Perhaps we can’t fix broken eggs, but we can–and must–fix America’s federal government.

Once Trump is gone–and I fervently hope that departure occurs sooner rather than later–we need to take a step back and decide what rules, systems, and cultural expectations are essential to advancing–and perhaps finally beginning to live up to– American values and ideals.