Category Archives: Constitution

RBG

This really has been the year from hell.

Yesterday, I wrote that this year’s election will be an inflection point for America. That observation became infinitely more acute with the news that Ruth Bader Ginsberg had died. Mitch McConnell didn’t even wait for her body to cool before announcing that he would abandon his invented (Trumped-up) position that Justices shouldn’t be replaced during the last year of a presidential term, and would move quickly to replace her with yet another “conservative” Justice.

The quotation marks around conservative are intentional, because what McConnell and his GOP ilk are hell-bent on “conserving” is white Christian male privilege. They certainly aren’t interested in extending or conserving the values embedded in the Constitution.

As I sat down to write this, I thought about a line that Mayor Pete often used during the primaries: “I’m mindful every day that my marriage exists by the grace of one vote on our Supreme Court.” That observation about the importance of the Court isn’t limited to the ruling about same-sex marriage. Women who are able to exercise control over their own reproduction, people in interracial marriages, people who can get health insurance despite having pre-existing conditions–the list of the very concrete ways in which Supreme Court decisions affect all of us is long.

Self-styled “conservatives” like to insist that they are originalists. But the real originalists are those like the indomitable RBG, who are faithful to the values the Bill of Rights was intended to protect. An originalism that insists on limiting the application of those protections to the world inhabited by the Founders would be unworkable (which is why self-proclaimed originalists like Scalia frequently departed from them.) True originalism requires that we look at the values the Founders were trying to protect–our ability to communicate free of government control, freedom from state-imposed religious observance (impelled by respect for the integrity of the individual conscience), our right to “due process of law” and other rights of self-determination. To be a true originalist requires continuing to protect those values and expand their application in a world the Founders could never have envisioned.

Ruth Bader Ginsberg was a champion of that genuine “originalism.” 

So–now we face another hugely consequential “inflection point.” The moral pygmies who obey McConnell will move to replace her with yet another tool of reaction. I was briefly heartened to hear that four Senators (Murkowsky, Collins , Grassley and Sasse) have pledged not to vote for a replacement until after the inauguration; it is likely that Romney will take that same position. If those pledges hold, it’s very good news, but I’m not holding my breath.

Speaking of ifs:

If McConnell succeeds, and if the Democrats take the White House and the Senate, they absolutely must expand the number of Justices on the Court.

That expansion, and a number of other court reforms have been advocated by legal and judicial scholars for several years–not just during our Trump/McConnell nightmare. The reforms should be crafted with one overriding purpose: to remove the judicial system from partisan politics–from being seen as a “prize” to be co-opted by whichever party wins an election– and return it to its intended purpose of dispassionately interpreting the law. As Jill Lepore recently warned, the Court is in danger of becoming an instrument of the executive instead of a check against it. 

Judges will always have their own beliefs, and will always bring those beliefs to their jobs. There will always be Justices with whom we disagree. If the people we elevate to the bench are the best and brightest, however, those disagreements will be principled. McConnell has packed the federal bench with partisan hacks and puppets, many of whom the ABA has found to be unqualified–not just mediocre, but unfit.

Ruth Bader Ginsberg became an icon because she was so superbly qualified, so intellectually powerful, and so obviously a person who exhibited decency, integrity and civility.

If she is replaced with yet another partisan hack, all bets are off.

 

 

 

The Electoral College Versus Democracy

I have posted before–several times–about the anti-democratic elements of the Electoral College. Whatever its origins–whether, as some scholars insist, it was a concession to the slave states, or as defenders contend, it was an effort to give added electoral heft to smaller states–it hasn’t just outlived its initial purpose. It now undermines democracy and national unity.

There is ample evidence that the Electoral College advantages white rural voters–substantially. Research suggests that every rural vote is worth one and a third of every urban vote. Small states already have an advantage by virtue of the fact that every state–no matter how thinly or densely populated–has two Senators.

A recent column from the New York Times emphasizes these disproportions, and points to other, under-appreciated elements of the Electoral College system.These paragraphs outline the crux of the problem

The Electoral College as it functions today is the most glaring reminder of many that our democracy is not fair, not equal and not representative. No other advanced democracy in the world uses anything like it, and for good reason. The election, as Mr. Trump would say — though not for the right reasons — is rigged.

The main problem with the Electoral College today is not, as both its supporters and detractors believe, the disproportionate power it gives smaller states. Those states do get a boost from their two Senate-based electoral votes, but that benefit pales in comparison to the real culprit: statewide winner-take-all laws. Under these laws, which states adopted to gain political advantage in the nation’s early years, even though it was never raised by the framers — states award all their electors to the candidate with the most popular votes in their state. The effect is to erase all the voters in that state who didn’t vote for the top candidate.

Today, 48 states use winner-take-all. As a result, most are considered “safe,” that is, comfortably in hand for one party or the other. No amount of campaigning will change that. The only states that matter to either party are the “battleground” states — especially bigger ones like Florida and Pennsylvania, where a swing of a few thousand or even a few hundred votes can shift the entire pot of electors from one candidate to the other.

Winner-take-all has an even more pernicious effect–it disincentivizes voting by people who are in their state’s political minority. If your state is red and you are blue, or vice-versa, it’s easy to convince yourself your vote is meaningless. (For federal offices, it is.)

The result is that Joe Biden must win the popular vote by a significant margin, or risk losing the Presidency. If Biden wins by five percentage points or more — something that would require winning by more than seven million votes — no problem.

If he wins by 4.5 million more votes than the president? The odds drop to 75%.

Anything less than a 4.5 million vote margin, and Biden’s odds drop “like a rock.” If he wins the popular vote by “only” three million-Hillary Clinton’s margin–we’re looking at a second Trump term.

There is no argument of which I am aware that turns that analysis into a democratically-acceptable result.

I Guess It Can Happen Here–In Fact, It’s Beginning

The reports from Portland have been more than frightening.

Armed men in unmarked camouflage uniforms have been jumping out of unmarked vans and arresting–kidnapping might be a more accurate word–peaceful protesters.  Thus far, they have subsequently been letting them go, but only after a demonstration evidently intended to terrify and disorient.

Trump insists that he is sending “troops” to Portland to “help” local officials quell violence. Presumably, he is signaling to his cultish base that he’s a “strong leader”able to take on (nonexistent) violence in America’s cities, perpetrated by “those people”–and not so incidentally, distracting from the mounting death toll caused by his mismanagement of the Covid-19 pandemic.

There has been considerable blowback.

Local officials insist that they can handle any incidents arising from the protests–and note that the activities were subsiding until the appearance of these storm troopers. Portland’s mayor has demanded that he withdraw these forces, evidently part of Homeland Security. The Governor of Oregon has demanded that he withdraw them. The Oregon Attorney General and the ACLU have sued. 

The House Judiciary Committee issued a statement questioning the legal basis for this use of force.

Frankly, it is not at all clear that the Attorney General and the Acting Secretary are authorized to deploy federal law enforcement officers in this manner. The Attorney General of the United States does not have unfettered authority to direct thousands of federal law enforcement personnel to arrest and detain American citizens exercising their First Amendment rights. The Acting Secretary appears to be relying on an ill-conceived executive order meant to protect historic statues and monuments as justification for arresting American citizens in the dead of night. The Administration’s insistence on deploying these forces over the objections of state and local authorities suggest that these tactics have little to do with public safety, but more to do with political gamesmanship.

The blowback has even included self-identified moms, wearing yellow shirts, helmets and masks. Reportedly, several hundred women, calling themselves the Wall of Moms, formed chains between the officers and the protesters. 

This resistance–and the very negative press coverage–has evidently not deterred the administration. According to Huffington Post, 

The Trump administration is preparing to roll out a plan this week to send military-style federal assault squads already in Portland, Oregon, into other cities, warned White House chief of staff Mark Meadows, who only named locations with Democratic mayors.

Attorney General William Barr is “weighing in on that” with acting Homeland Security Secretary Chad Wolf, Meadows said Sunday on Fox News.

“You’ll see something rolled out this week, as we start to go in and make sure that the communities — whether it’s Chicago or Portland or Milwaukee or someplace across the heartland — we need to make sure their communities are safe,” he added.

All three cities named are run by Democrats.

President Donald Trump also indicated that federal squads would likely target cities run by the party that opposes him. He said on “Fox News Sunday” that “violence” was on the increase in “Democrat-run cities.”

Yesterday, there were reports of similar activities in Columbus, Ohio.

This is eerily reminiscent of Hitler’s SA.

The SA — Sturmabteilung, meaning ‘assault division’ — also known as the Brownshirts or Storm Troopers, was a violent paramilitary group attached to the Nazi Party in pre-World War Two Germany.the SA functioned as a ‘security’ force at Nazi rallies and meetings, using threats and outright violence to secure votes and overcome Hitler’s political enemies.

The Germans who objected were obviously unable to mount an effective resistance to the use of extra-legal thugs to subdue Hitler’s political enemies. 

 Americans have long believed “it can’t happen here.” We’re now testing that belief.

The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. 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 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. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about 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, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      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.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      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 public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff 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.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think 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 mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

 

 

Religion, Vouchers And The Court

I was sitting at my desk Wednesday when the news alert came across my screen. The New York Times was reporting on the most recent decisions being handed down the Supreme Court.

I will comment on the truly offensive decision in Little Sisters of the Poor tomorrow. Today, I want to address the decision allowing religious schools to discriminate in employment.

Here’s the lede:

The Supreme Court ruled on Wednesday that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches.

The vote was 7 to 2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The court has been active in considering the relationship between church and state, generally siding with religious groups. It has ruled in recent years that a state must let a church participate in a government aid program, that a war memorial in the shape of a cross could remain on public property and that town boards may start their meetings with sectarian prayers. Last week, it said state programs that provide scholarships to students in private schools may not exclude religious schools.

The new cases considered another aspect of the church-and-state divide — what role the government can play in regulating religious institutions.

I have my reservations about several of these cases–not to mention my suspicions about the religious and ideological perspectives of the more conservative Justices–but I actually don’t disagree with this one.

What I do disagree with–strongly–is those “state programs that provide scholarships to students in private schools.”

I have written before about voucher programs. Not only have I blogged about them, but I’ve written academic articles explaining the multiple reasons these programs were ill-conceived to begin with, and  pointing out that–in addition to the substantial harms they have caused– they have failed to deliver the benefits they promised (they now have been functioning long enough to permit assessment).

They are also a scam. 

How wasteful/counterproductive is our state’s largesse to private (mostly religious) schools? Let me count the ways: the promised improvement in student achievement did not materialize; badly-needed funds are being diverted from the public schools that most Hoosier children still attend; taxpayers are subsidizing discrimination (schools getting millions of dollars are discharging teachers and counselors for the “sin” of being in same-sex marriages); and there are no requirements that recipients of vouchers teach civics.

In addition to all that, lack of oversight has facilitated a massive rip-off of Hoosier taxpayers. Doug Masson wrote a scathing summary of that problem last year after Chalkbeat reported on fraudulently inflated enrollment numbers at Indiana’s then-virtual schools.

Doug also succinctly summed up the actual motives of voucher supporters. The real impetus for voucher programs wasn’t the purported one: to allow poor children to escape failing schools. It was–and remains–threefold: to weaken teacher’s unions, subsidize religious institutions, and redirect public education money to cronies.

Also, a reminder: vouchers do not improve educational outcomes. I get so worked up about this because the traditional public school is an important part of what ties a community together — part of what turns a collection of individuals into a community. And community feels a little tough to come by these days. We shouldn’t be actively eroding it.

In Indiana, far from excluding religious schools from the nation’s largest voucher program, well over 90% of the schools receiving vouchers paid for by our tax dollars are religious. Some of those schools allow religious dogma to influence what they teach– creationism rather than science, for example– and a number discriminate against teachers and students on the basis of their theologies.

So here’s where I agree with the Court: if your church or mosque or synagogue wants to ensure the “purity” of your doctrine, fine. The Free Exercise Clause–as I read it, and as the Court has now read it–says okay. You don’t have to hire or retain employees who violate your religious tenets.

But as I read the Establishment Clause, your religious institution doesn’t get to do those things with my tax dollars.

So the Catholic Archdiocese gets to exclude trans kids from Catholic schools, and fire excellent teachers and counselors for the “sin” of same-sex marriage. Fine–but not with my tax dollars.

The case that was wrongly decided was Zelman versus Simmons-Harris. In that intellectually dishonest 2002 ruling, the Court pretended that the tax dollars going to vouchers were really being paid to parents, who would then exercise “independent choice.” That has never been the case.

There is now a substantial body of research confirming that vouchers are bleeding resources from our public schools (without improving student performance), eroding civic identity, benefitting religions in violation of the Establishment Clause, and– as a bonus– crippling teacher’s unions.

I’m all for letting churches and religious schools practice what they preach. However, I am adamantly opposed to having taxpayers foot the bill.