Category Archives: Constitution

An Excellent Example

Ever since my days as Executive Director of Indiana’s ACLU, I have tried to explain the philosophy behind the First Amendment to well-meaning citizens who simply wanted to shut down those people spreading “bad” ideas, or later, to students who couldn’t understand why people they found hateful (many of whom were, indeed, hateful) were being allowed to peddle their bigotry.

I still remember a hearing held by a City-County Council committee “investigating” the Marion County Library because it allowed minors to access books that the chair of the committee considered inappropriate. (She wasn’t mollified by the fact that the library honored the directives of parents who didn’t want their kids to access certain materials. She explained that a lot of parents weren’t–in her eyes, at least–good parents who would avail themselves of the opportunity to censor their children.)

I don’t know how often I’ve tried to explain that the Bill of Rights–and especially the First Amendment–answers the question “who decides?” The Bill of Rights is a list of things that  government doesn’t get to decide.

I just read one of the very best explanations of that simple rule that I’ve come across. It was written by Wally Paynter, Executive Director of the Tri-State Alliance, in response to folks who want the Evansville Public Library to discontinue its “Drag Queen Story Hour.”

A few quotes:

Some members of the community are trying to limit what library programs are available to the public. It is similar to banning books. As an EVPL patron, I have a choice of what books I read and what programs I attend. However, it is not my right to decide what books other patrons are allowed to read and what programs others are allowed to attend….

Some Christians oppose Santa Claus, stating it takes away from the reason for the season. My pastor does Santa Claus Story Hour at the EVPL locations. Those who oppose the character Santa Claus do not try to stop other parents from bringing their kids to the event. They just don’t take their kids.

The same is true for Halloween. Some Christians oppose the celebration of Halloween. But do we end Halloween events at EVPL, or do we let parents choose what programs to take their kids to?

The letter also calls out the homophobia being expressed during this debate, a reminder that it is all too often marginalized people who are censored. But the most powerful point being made is reflected in the quoted paragraphs: our Constitution protects individual autonomy–the right of each of us to form our own moral, religious and political opinions, to determine what is important in our lives (what philosophers call our telos) and to choose how to live those lives.

So long as we do not harm the person or property of others, and so long as we are willing to respect the same rights for others, we are free to “do our own thing.”

Don’t like that magazine? Don’t read it. Don’t approve of that play? Don’t see it. Think that book is scandalous? Don’t buy it. Don’t approve of drag queens reading books to kids at the library story hour? Don’t take your kids.

In our system, you have the right to decide what you will read, attend and believe. But as Wally Paynter points out, you don’t have the right to decide what other people will read, attend and/or believe.

Live and let live is evidently really hard for some people.

That Pesky Thing Called Reality

There are plenty of reasons to oppose Trump’s “big beautiful wall,” and I’ve listed a number of them in previous posts. Most fall in the category of “if the wall were built, this is why it wouldn’t deter unauthorized immigration or drug trafficking.”

Less attention has been paid to the reasons such a wall won’t ever be built.   

As Elie Mystal recently wrote at Above the Law,

Can all of us lawyers and law students and legal scholars and legal reporters just talk among ourselves for a minute? Can we all just pull up a chair or a stool or whatever bouncy-ball thingy you think is blasting your core right now? Can we just talk as adults and acknowledge that the federal government has ground to a halt over a wall that will never, ever get built?

The reason for Mystal’s confidence can be found in the Fifth Amendment, which–among other things– prohibits government from taking private property without just compensation. That “takings clause” is why states have eminent domain laws.

Opposition to the use of eminent domain for any but the most obviously “public” purposes   has been a staple of Republican ideology, so I’ve been surprised that so few supposed conservatives have raised the issue.

My real life friends know that I’m basically a Republican when it comes to takings. I don’t even put the scare quotes around the term. A whole canon of law has been built up around the Fifth Amendment’s commandment, “nor shall private property be taken for public use, without just compensation.”

 We can debate the finer points: I do not happen to think that Kelo v. New London is the worst Supreme Court decision in the history of mankind, as some conservatives do. … But it isn’t great! And there are conservative justices sitting on the Supreme Court who have figuratively been bred to oppose that decision. Add them to the progressives who will view Trump’s Wall as the bigoted monstrosity that it is, and I think you’re looking at 8-1 decisions against the government in eminent domain cases to build the wall. Only Justice Brett, he of the monarchical theory of executive power, can be reasonably be expected to side with the government on this issue. And even then, we know Kavanaugh seems to like to follow along with whatever the “cool” kids are doing.

The government doesn’t own most of the land on which the wall would be built–it would have to “take” land from those who own it, and people who stand to lose their property to allow construction of the wall will almost certainly go to court. Talking Points Memo recently quoted a Texan whose property is at risk:

The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

“You could give me a trillion dollars and I wouldn’t take it,” said Cavazos, whose land sits along the Rio Grande, the river separating the U.S. and Mexico in Texas. “It’s not about money.”

I couldn’t agree more with Mystal’s concluding paragraph.

I mean, if Trump was saying, “I’m going to shut down the government until Congress funds my matter transporter so I can beam Latinos back to their country of origin,” I feel like the scientific community would be screaming, “The ability to deconstruct and reconstruct living beings at the molecular level does not exist because of limitations imposed by quantum uncertainty!” Similarly, lawyers should be screaming, “The United States government does not have the capability of taking private lands on this scale because of limitations imposed by the Fifth Amendment.”

It’s not just lawyers who aren’t screaming. I wonder why all those conservative Republicans who raise holy hell about property rights and takings are so quiet about the threat to property ownership posed by the bloviator-in-chief.

Blame The Courts

What’s that old saying? The enemy of my enemy is my friend?

 Over at Dispatches from the Culture Wars a few days ago, Ed Brayton actually endorsed a theory offered by Jonah Goldberg.

Both Goldberg’s column and Brayton’s comment on it were offered in the run-up to Trump’s demand that he be given broadcast time to address the nation about the “crisis” at the border. Both predicted that Trump would declare a “national emergency” entitling him to ignore Congress and build his ridiculous wall.

As we now know, during that broadcast Trump simply reiterated his previous, fabricated “reasons” for building the wall. But he has continued to threaten the tactic.

Goldberg noted that such a move would be contrary both to common sense and the rule of law.

Do we really want to establish the precedent that the president can simply declare “It’s an emergency” like some magical incantation and then completely bypass property rights and the will of Congress just so he can fulfill a campaign promise that, if Sam Nunberg is to be believed, began as a consultant’s gimmick to get the candidate Trump to talk about immigration and what a great builder he is?

Moreover, if Trump actually attempted to use the military to seize private land, spending money Congress did not authorize, think of what the news cycle would look like, not from Trump’s perspective but from the perspective of other elected Republicans. Assuming that the Supreme Court or Congress didn’t stop him — a big assumption — would you like to run for office defending hourly images of armed U.S. troops kicking in doors or rolling out concertina wire? Is it beyond imagining that at least one Texas or Arizona rancher would get shot defending his property?

According to Goldberg, the theory then circulating in Washington was that the White House was fully aware that an order of that sort would generate multiple lawsuits and would likely be blocked almost immediately by the courts. That–in their view–would be the best of all possible worlds; it would extricate Trump from a box of his own making. He’d be able to tell his base he’d done everything he could, but his plan for America’s safety had been blocked by those terrible judges.

The reason this scenario seems so plausible is because such a patently illegal declaration would mimic a dishonest and destructive strategy that is pursued with some regularity by legislators at all levels of government. They can pass a bill they know to be unconstitutional, placating the constituents who want it, secure in the knowledge that the courts will bail them out.

I still remember a long-ago conversation with a student in one of my graduate classes, who happened to be a State Representative. He had just voted for a bill requiring schools throughout the state to post the Ten Commandments. I knew he was fully aware that such a law would violate the Establishment Clause, and I asked him why he had voted for something he knew to be unconstitutional. He replied that the “folks back in Mayberry” would be angry if he’d voted no, so he’d decided to “let the courts take the heat.”

There are a number of problems with that strategy. It rewards moral cowardice, and it feeds hostility to the judiciary among people who don’t understand the constitution, the function of the courts, or checks and balances.

And eventually, if Trump and the GOP get their way, pretty soon we won’t have competent, principled judges on the federal bench who are willing to “take the heat” in order to protect the constitution from cynical legislators pandering to constitutionally-illiterate voters.

Revising History? Or Ignorance Of It?

A recent article in the Charleston Post and Courier reported on the results of a poll conducted by Winthrop University. It was pretty disheartening.

The Winthrop University Poll randomly dialed and questioned 969 residents in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia between Nov. 10-20 and Nov. 26-Dec. 2. Results have an error margin of plus or minus 3.15 percent.

The poll found that half of residents either agree or strongly agree that America was founded as an explicitly Christian nation.

Among white evangelicals, three-fourths agreed or strongly agreed with this belief about how the nation was founded.

The immediate question raised by such results is whether these respondents have chosen to ignore what they (presumably) learned in history class  or whether they are simply uninformed. Whatever the answer, the poll results explain a number of things about Southern political culture.

The poll’s director noted that the belief in a Christian founding is central to Christian Nationalism.

“Research has shown that increases in Christian Nationalist beliefs lead to more exclusionary views on immigration and more negative views of multi-culturalism in America,” Huffmon said. “Those who hold these views care more about whether they have a strong leader who will protect their religious and cultural values than whether a leader is individually pious.”

Forgive me if I suggest that the “cultural value” they want to protect is Christian social dominance.

It is virtually impossible to reconcile this belief in a Christian Nation with American history, or with what we know about the origins of America’s constitution–or for that matter, with the plain language of the Constitution and Bill of Rights. It is one thing for Christian fundamentalists to prefer that the country affirm the superiority of their particular creed; it is another thing entirely to falsify history in order to convince themselves and others that the Founders agreed with them.

If these folks have made a conscious decision to falsify history, that’s reprehensible. But it is far more likely that they are ignorant of history, that they’ve never heard of the Enlightenment, or encountered the (then radical) political philosophy that privileged personal autonomy over religious and political beliefs endorsed and imposed by the state.  The widespread belief in Christian nationhood reflected in the poll results is a stark reminder of Americans’ deficit of civic literacy, and the failure of our schools to teach history and government accurately and adequately.

It’s interesting–and telling– that this particular fantasy about America’s founding is almost exclusively a phenomenon of White Christians who consider themselves the only true Americans.

The Rev. Joseph Darby, first vice president for the National Association for the Advancement of Colored People in Charleston, disagreed with claims that the country was intended to be explicitly Christian.

Darby, who also pastors Nichols Chapel AME in Charleston, didn’t mince words in describing Christian nationalists and white evangelical denominations with exclusionary views on immigration and multiculturalism.

“It’s called Christian hypocrisy,” Darby said.

Darby added that the country should not be in favor of one particular religion. Rather, he said politicians and voters should “love God and love others as we would be loved.”

“If the laws reflect that, we’d be one nation under all,” he said. “If you have something that’s exclusively Christian, you’re walking a very slippery, nationalist slope. Everyone in America is not Christian.”

I suspect that White Christian Nationalists are more worried about the threat civic equality poses to their cultural hegemony than they are about America’s spiritual prospects.

Policymakers can’t do much about chosen ignorance, but polls like this should be seen as yet another reason to make civic education a national priority.

Truth And Consequences

I told you so. Over and over. (Okay, I know I’m preaching to the choir here–those who read and respond to this blog aren’t the problem…) But here we go again.

The Annenberg Public Policy Center at the University of Pennsylvania recently conducted a survey of American constitutional knowledge. CNN reported the results, which it dubbed a “bouillabaisse of ignorance.”

  • More than one in three people (37%) could not name a single right protected by the First Amendment.
  • Only one in four (26%) can name all three branches of the government. (In 2011, 36% could name all three branches.)
  • One in three (33%) can’t name any branch of government. None. Not even one.
  • A majority (53%) believe the Constitution affords undocumented immigrants no rights. However, everyone in the US is entitled to due process of law and the right to make their case before the courts, at the least.

“Protecting the rights guaranteed by the Constitution presupposes that we know what they are,” said Annenberg Director Kathleen Hall Jamieson. “The fact that many don’t is worrisome.”

Many definitely don’t. Mountains of evidence confirm Americans’ ignorance of their government.

A 2010 Pew poll asked respondents to name the chief justice of the Supreme Court. Now, I’m not a big fan of these sorts of “trivia” questions–I’m much more concerned that people know what the Chief Justice and the Supreme Court do–but it is nevertheless disheartening when fewer than three in 10 (28%) could answer correctly. That rate compared unfavorably to the 43% who had correctly named William Rehnquist as the chief justice in a Pew poll back in 1986.

Worse– although most of the 72% of people who didn’t name Roberts as the chief justice in 2010 said they didn’t know, eight percent guessed Thurgood Marshall, who was never  chief justice of the Court (and had been dead for 17 years)and 4% named Harry Reid.

In another widely-reported poll, 10% of college graduates thought Judith  Sheindlin–aka “Judge Judy”– was on the Supreme Court, but it was kind of a trick question….

When large numbers of people know absolutely nothing about the way their government is supposed to work, the consequences are grim. As the CNN report duly noted, we’re living with certain of those consequences now.

The level of civil ignorance in the country allows our politicians — and Donald Trump is the shining example of this — to make lowest common denominator appeals about what they will do (or won’t do) in office. It also leads to huge amounts of discontent from the public when they realize that no politician can make good on the various and sundry promises they make on the campaign trail.

I am alternately amused and infuriated by the fact that people who wouldn’t think of choosing a dentist who’d skipped dental school (bone spurs?) and had zero experience working on teeth are nevertheless perfectly willing to turn the government and its nuclear codes over to someone who clearly doesn’t have the slightest notion how government works (or, one suspects, what government is.)

I can only assume that this willingness is the consequence of the voter’s own ignorance of the knowledge and skills required–the “job description.”

In a very real sense, when American voters go to the polls, we are “hiring” for the positions on the ballot. Yet people who would never choose a cleaning lady who didn’t know how  clean a sink or plug in a vacuum cleaner will cheerfully cast their ballots on the basis of a candidate’s attractiveness, partisan affiliation, or belief in the juicy tidbit their neighbor whispered about the opposing candidate’s spouse.

Or the fact that the candidate hates the same people they do.

No wonder our government is broken.