That Constitutional Ethic

Thursday, I traveled to Hancock County, to speak at what their community foundation calls a “Collaboration Station.” My assignment was to address–or perhaps commiserate with– local elected and appointed officials who are serving at a time of intense political polarization and hostility–to offer them guidance suggested by relevant academic research.

We covered a lot of ground that isn’t necessary to include in this post, but I think the concluding portion of my presentation is relevant to the discussions that occur here–as well as consistent with the overarching message of the recent No Kings rally–so here’s that portion of my talk.

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Back in 2011, I co-authored a textbook for use in classes on public administration. That textbook was titled American Public Service: Constitutional and Ethical Foundations, and in it, my co-author and I described what we dubbed “The Constitutional Ethic.” We argued that public officials cannot make intelligent policy decisions unless they have a basic understanding of America’s constitutional framework, because government legitimacy and the rule of law require that a government’s operations be consistent with its country’s legal framework.

It was the thesis of our textbook that the U.S. Constitution dictates a very particular approach to public service—that the legal philosophy animating the Constitution and Bill of Rights establishes certain ethical norms. That philosophy starts with the Founders’ belief in limited government. I want to emphasize that—political rhetoric to the contrary–limited government is not the same thing as small government; in our system, government’s authority is supposed to be limited to areas that in our system are deemed properly governmental.

As we wrote in the introduction to that textbook, a public servant’s ability to do a job well depends upon how well that official understands what the relevant rules are, why we have these particular rules rather than others, and why we choose to solve some problems collectively through government action while leaving other problems to individuals and voluntary associations.

Public officials certainly don’t need to be constitutional scholars, but it is necessary that they understand the general principles and values on which this nation built its governing structures, because—as I said before and as I want to emphasize– ethical public service requires performance consistent with those foundational principles and values.

Let me be clear about what that means. Fidelity to our constituent documents requires a basic understanding of the constitutional framework. Public servants in the United States are responsible for discharging their various duties in a manner that is consistent with that framework, consistent with what I sometimes call “the American Idea,” the philosophy that animates our governing and legal structures. That requirement is obviously more or less relevant depending upon your job description—less to a surveyor or engineer, more to law enforcement personnel. But it applies to some extent to all public officials.

I am certainly not the only person to suggest that citizens’ 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, both citizens and political functionaries need to understand what government is and is not supposed to do. We all need to understand how government actors are supposed to behave—in other words, we need to understand what behaviors our particular Constitutional system requires, and what behaviors are inconsistent with that system. (A sound civic education would impart that knowledge; unfortunately, the current emphasis on job skills and STEM has largely displaced citizenship instruction.)

As most of you in this room understand, the choices originally made by this nation’s Founders shaped a very distinctive American culture. Those constitutional choices have shaped our beliefs about personal liberty, and our conceptions of human rights. They’ve framed the way we allocate social duties among governmental, nonprofit and private actors. I think it’s fair to say that those initial Constitutional choices created a distinctively American worldview.

Most Americans fail to understand how incredibly radical the choices made for the then-new United States were for the times. For example, in the new country our Founders established, unlike the situation in countries elsewhere, citizenship wasn’t based upon geography, ethnicity or conquest; instead, it was based 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.” Perhaps the most revolutionary element of the American Idea was that our Constitution based citizenship on behavior rather than identity. An individual’s status and rights depended upon how that individual behaved rather than on who he or she was.

Right now, as you all know, there are elements in American society and government trying to ignore or even reverse that fundamental precept. We’ve had stunning Supreme Court decisions that allow government actors to ignore the 4th Amendment’s requirement of probable cause and to detain people based only upon their skin color or language, and we have numerous political figures who insist that White Christians are the only “real Americans” –and that others are not.

Public officials who are focused on providing basic services usually aren’t tempted to distinguish between members of the public on the basis of their identity—local officials pave streets that everyone drives on, pick up garbage from all the homes in a district, fight fires wherever they erupt and so forth. But many of you do hold positions that allow or even require the privileging of some citizens over others, and making those distinctions on the basis of identity—as some political actors at both the state and national level are encouraging you to do—would  violate both the 14th Amendment’s Equal Protection clause and a foundational American ideal. Disadvantaging or firing people based upon opinions they’ve expressed, as some political actors are advocating, would be a violation of the First Amendment’s guarantee of free speech. Obeying such mandates or similar ones, would violate the Constitutional ethic.

My co-author and I had both practiced constitutional law, and at the time we wrote the textbook, we both held professorships in schools of public affairs. We wrote the book, it was adopted by several schools of public management, and we both went on to pursue other projects. To be honest, I hadn’t revisited that textbook for several years, and when I was preparing for this workshop, I pulled it out again– and I will admit I was startled to read some of the supposedly “far-fetched” examples we’d used that were intended to illustrate the relationship between public administration and the Constitution. We explained, for example, that the Constitution and other authorities in our legal system don’t permit American officials to use U.S. troops to address domestic criminal activity; that the Constitution doesn’t permit censorship as a solution for disfavored political opinions; that the Equal Protection Clause wouldn’t permit the reduction of welfare rolls by refusing to feed Black or Hispanic children, and that substantive due process guarantees prevent government from forcing women either to abort or give birth.

Fourteen years later, some of those examples are no longer so far-fetched.

As we acknowledged in that textbook, the American Idea is not monolithic, and it is constantly contested and evolving, but—as we also insisted– it has real content. It rests on considered normative judgments about the proper conduct of public affairs, and it prescribes an ethic that should dictate the behavior of those engaged in public administration and management—even when it is uncomfortable or even dangerous to do so.

So here’s the bottom line: When push comes to shove—when keeping your heads down is no longer an option— the Constitutional ethic must guide you.

These days, that may not be comforting.

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Real Judges Judge The Supreme Court

Those of us who follow the courts are seeing something unusual. District and appellate federal court judges are criticising a Supreme Court that has lost its constitutional moorings. They are mostly–but not always– expressing those criticisms in civil and restrained language, but the fact that they are publicly criticising at all is really unprecedented. 

Much of the criticism has focused on the Court’s use of its Shadow Docket to empower the Trump administration without bothering to provide legal analyses explaining why the Court is ignoring many of its own long-time precedents. In a recent New York Times article, federal Judges warned of a ‘Judicial crisis’  they attributed to the Supreme Court’s string of opaque Emergency Orders. According to the report, “dozens” of judges shared “concerns about risks to the courts’ legitimacy” as a result of these orders. As the Times noted,

The striking and highly unusual critique of the nation’s highest court from lower court judges reveals the degree to which litigation over Mr. Trump’s agenda has created strains in the federal judicial system.

Other critiques have centered upon the Court’s disregard for what had long been considered binding precedent. I have previously shared widespread concerns sparked by the Dobbs decision–a deeply dishonest analysis that not only overruled the fifty-year precedent established in Roe v. Wade, but called into question the judicial doctrine of Substantive Due Process–a doctrine that restrains government intrusion into citizens’ individual liberties. 

Dobbs was only one example of this Court’s willingness to disregard the foundational separation of church and state, a process that a Hawaiian Judge recently criticised in a scathing opinion. (You really need to read his entire, eloquent screed.)

The Roberts Court casually dismisses the lessons of American and world history, the warnings of prominent early Americans, and the judiciary’s storied legal minds. Bad things happen unless government and religion are completely separated. The Court ditches neutrality and boosts accommodation over the wall. It flirts with the true harms the framers foresaw – coercion, exclusion, and civil strife. It invites state involvement with religion. And it exposes minority faiths and nonbelievers to majoritarian impulses. A snap of a few fingers and accommodation became a constitutional imperative. “[T]he Court leads us to a place where separation of church and state becomes a constitutional violation.” Carson v. Makin, 596 U.S. 767, 810 (2022) (Sotomayor, J., dissenting). Under the Court’s redesign, the Free Exercise Clause backspaced the Constitution’s first words.

The Court’s makeover happened with little mention of the Establishment Clause or Everson. Plus, the Court benched its go-to interpretive method. Suddenly, payments from the public treasury flow to religious institutions to fund religious exercise. The First Amendment had told Americans that public resources can’t support religious activity. For centuries. Yet “[w]hat a difference five years makes” to a hurried Court. 

In contrast to our rogue Supreme Court, the lower courts have overwhelmingly upheld traditional constitutional principles. (An excellent example is this opinion, rendered by a Massachusetts District Court in a lawsuit brought by the AAUP, Harvard and others.) At least one organization that tracks these lawsuits has found that the administration has lost 92% of lower court suits.

Interestingly, an analysis done by a researcher for the libertarian Niskanen Center found that during Trump’s first term, Republican-appointed judges had ruled for him more frequently than their more liberal counterparts, but that this time, those ideological preferences have disappeared. Not only have a huge number of nationwide injunctions against Trump’s unconstitutional efforts been put in place by the lower courts, but the ideological divide has disappeared.   Republican judges–including those appointed by Trump– are ruling against the administration at the same rate as more liberal judges. 

Niskanen’s researcher found that lower courts imposed injunctions in some 90% of the cases–and that legal precedents had clearly required that result. Nevertheless, the Supreme Court has ruled for the administration almost without exception. As the researcher concluded, 

It’s hard to draw any conclusion other than the Supreme Court is doing whatever it can without going too far to advance the broader efforts, especially when it comes to dismantling the existing constitutional order. It’s really quite striking…theSupreme Court has been extremely, extremely, I would say, engaged in helping the administration out in any place it can. And it’s created, there was this article recently just talking about the Civil War within the judiciary. It’s created a lot of tension between the lower course and the Supreme Court as a result because their rulings are basically getting nullified in a way that they had not experienced in the past.

Lower court judges have raised the alarm. It’s past time to address the obvious corruption of the Supreme Court.

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Remember The Golden Mean?

Remember the golden mean?

Aristotle believed that virtue occupies a middle ground between deficiency and excess. He called that middle ground “the golden mean,” and it was a key concept in his philosophy. Courage, for example, can be described as a mean between cowardice (a deficiency of courage) and recklessness (an excess).  Confidence lies between self-doubt and arrogance. Etc.

Inherent in the notion of a golden mean is the recognition that even good things can be taken too far.  The absence of a good quality is a problem we usually recognize, but (despite the adage) we less often understand that you can have too much of a good thing.

I recently came across an article from the Yale Daily News that reminded me of the importance of that golden mean. (I have no idea how I came to read the Yale Daily News….). The argument raised was hardly new; numerous scholars and historians–not to mention political pundits–have faulted America’s culture for an excess of individualism. Indeed, there is an entire philosophy, called communitarianism, built upon the premise that a good society is one in which citizens are “embedded” in the values and norms of their communities, and that the American emphasis on individual rights actually deprives us of the comforts and connections that make for a fulfilled life.

My own reading of communitarian philosophy is that it lies at the “deficiency” end of the spectrum–that the sort of society many of its proponents extol would smother creativity and penalize difference. Protecting individual rights against majority passions was, after all, one of the Founders’ most important and praiseworthy goals.

That said, the author of the linked article and many others who would not choose the degree of “embeddedness” that the communitarians appear to advocate argue that we have gone too far in the direction of excess.

As a matter of political philosophy, we, like many other countries, protect individual rights to protect the people from government overreach and maintain the mixed regime that our exceptionalism presupposes. But our politics and practices go further. They are built on the individual not just as a bearer of rights, but as the sole fundamental unit of society; in this vein, policy ideas are constantly evaluated on the basis of individuality. How does policy X affect an individual’s freedom to express their religion? How does policy Y burden an individual taxpayer?

This individualist mindset, built into the core structure of U.S. governance, is now inseparable from the American identity. I propose that our wholehearted devotion to the individualist perspective goes too far.

As the author points out, governments in much of the rest of the world have come to realize that serving the common good requires a combination of individualism and commitment to community welfare.

In America, we seem to lack the ability to prioritize the common good over individual rights, even when doing so would clearly benefit both individuals and the community. The author provides examples: the U.S. is the only Western democracy (assuming we still are a democracy) that declines to provide its citizens with universal health care. We refuse to prevent the leading cause of death for children and teens, thanks to our devotion to an individual right to bear arms. As he writes,

In America, community safety is understood — like everything else — through this same individualistic filter; the community is nothing more than a loose set of individuals. Therefore, community safety is as simple as putting weapons in the hands of each American so they can protect themselves. The American community as an end in itself is an empty concept.

This is probably not an optimum time to have this discussion–in the U.S. right now, the individual rights that do lie at the heart of the golden mean–free speech, separation of church and state, the right to due process and other protections of the rule of law– are under unremitting attack, an attack mounted primarily by a Christian Nationalist cult, and aided and abetted by a rogue Supreme Court. But it’s worth wondering whether people who were a bit more “embedded” in a system that looked out for their collective welfare–that guaranteed them access to health care, outlawed assault weapons, and provided a more robust social safety net–would be less likely to express their resentments by joining racist cults.

Devotion to the common good is entirely compatible with protection of individual rights. We just need to find the golden mean…

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The Monsters In The Closet

There’s a difference between real monsters and imaginary ones. A recent essay in Lincoln Square made that point–and the further, not-so-obvious point that expending our energies fighting fictitious ones may be less unproductive than we think.

The essay began with the author explaining that he’d gotten a little girl to sleep by pretending to overpower the monsters that–in her imagination–populated her closet. As he wrote, politics works similarly. The monsters may not be real, but they’ll control the process until someone confronts them.

Every election cycle has its own bedtime story. This last one, the 2024 showdown between Donald Trump and Kamala Harris, was no different. It was a close race, and Trump won it on the margins — those tight, swingy counties where a few thousand votes make democracy feel like a coin toss.

And once again, MAGA’s favorite bedtime story was about the monster in the closet. This time, it wasn’t immigrants or caravans or Critical Race Theory — it was transgender Americans.

Anti-transgender political ads flooded the airwaves, built on the same fear-based architecture Republicans have been refining since Nixon. Trump’s campaign made them a centerpiece, hammering the claim that trans athletes were destroying women’s sports and sneaking into bathrooms to terrorize little girls.

The Democrats didn’t waste much time and effort on pushing back, because the party’s polling suggested that relatively few Americans were swayed by these attacks. But as the author noted, Trump didn’t need very many. He didn’t even need 51%. He needed just enough voters to enable him to flip three counties.

As the author wrote, “That’s the Southern Strategy 2.0: Rebrand hate as “common sense,” then sell it as protection.”

In our digital age, lies can become immortal. As some wag has put it, a lie will go halfway around the world while truth is still putting on its pants. In the Wild West that is our current information environment, truth is increasingly irrelevant; repetition is what matters. In the 2024 election, those millions of dollars in targeted anti-trans messaging weren’t intended to move a majority — “just enough voters in just the right ZIP codes.”

The essay puts this strategy in historical context, finding its roots in Nixon’s Southern Strategy. That strategy has now evolved. As the author put it, the dog whistles have become baked into our reflexes. He quoted the strategy’s “prime mover,” Lee Atwater:

 “You start out in 1954 by saying n****, n*****, n*****,”* he said. “By 1968, you can’t say n**** — that hurts you. It backfires. So you start saying stuff like ‘forced busing,’ ‘states’ rights,’ and all that stuff, and you’re getting so abstract now that you’re talking about cutting taxes, and all these things you’re talking about are totally economic things, and the byproduct of them is that Blacks get hurt worse than whites.”*

That wasn’t a slip. It was a strategy. The racism didn’t disappear; it just learned better grammar.

If America’s current political polarization proves anything, it reminds us of the human tribal reflex to divide the world into us and them. Political strategists know that in today’s environment, the use of certain words will trigger predictable responses, and those responses aren’t reasoned — they’re conditioned. “Once fear bonds a group together, logic doesn’t even get a seat at the table.”

The essay argues that Democrats haven’t figured out how to respond to that reality, haven’t recognized that they need to confront political fears, no matter how ridiculous or imaginary those fears may seem, before they metastasize. The monster in the closet doesn’t disappear when you ignore him.

I find that argument persuasive.

What the essay doesn’t tell us, however, is just how the Democrats–and others who see the strategic use of “Othering” for what it is–are supposed to defeat it. In our current information environment, those most likely to be convinced that the monsters are real typically get their “news” from sources that confirm the existence of the monsters in the closet and the threat they pose. In order to evaluate the validity of a proposition, citizens need to hear contending perspectives–and we inhabit a world where millions of people have purposely insulated themselves against evidence that is contrary to their preferred beliefs.

There will always be some percentage of voters who feel the need for someone or something to blame for life’s disappointments, and those voters are perfect targets for the political strategists trying to convince them of the existential threat posed by the monsters in the closet.

I don’t know how we counter that, but we really need to figure it out.

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Trashing The First Amendment

Ten months into the Trump administration, the outlines of America’s cold civil war have become too stark to miss. MAGA is determined to remake the United States into a nation where White Christian Nationalists are legally privileged and in control. And they’re making progress.

The evidence is overwhelming. Masked ICE agents focus on people of color. Trump reportedly wants to “revamp” immigration rules in order to make it easier for Whites and harder for others to enter the country. From day one, the administration has pursued an all-out war on “DEI”–insisting that any effort to level the playing field for previously marginalized folks is really anti-White discrimination. Aided and abetted by a thoroughly corrupted Supreme Court majority, the hits have kept coming: universities prevented from continuing programs even slightly resembling affirmative action, the continued gutting of the Voting Rights Act…

And as we’ve recently seen, the racism motivating MAGA isn’t diminishing; it infuses the GOP’s young activists.

I have previously written about the faux-Christianity that motivates much of this. I particularly recommend Tim Alberta’s book, “The Kingdom, The Power and the Glory.” Alberta is a genuine Christian Evangelical, and his critique is informed by his own deep religiosity. More recently, David French–another committed Evangelical– has described what is happening in thousands of churches as a religious “revolution”–not to be confused with a true revival. In his telling, America is close to a religious revolution, and the difference between that revolution and a true religious revival is immensely important for both church and state.

Decades of scholarship, very much including scholarship by religious organizations, have attributed America’s religiosity–far greater than in other Western Democratic countries–to the fact that the First Amendment requires the separation of church and state. That understanding fails to persuade the MAGA folks who’ve turned religion into a political identity.

The Christian Nationalists who dominate Red state governments reject the First Amendment’s Establishment Clause. They intend to indoctrinate the nation’s schoolchildren, and they aren’t satisfied with mandates to post the Ten Commandments in classrooms. In Texas, they’ve introduced a “revised” and bible-infused English curriculum.

A new state-sponsored English curriculum infused with lessons about the Bible and Christianity could reach tens of thousands of Texas schoolchildren this year.

More than 300 of the state’s roughly 1,200 districts signed up to use the English language arts lessons, according to data obtained by The New York Times through a public records request. Many are rural, and relatively small.

The curriculum was created as several states, including Oklahoma and Louisiana, fought to bring prayer or religious texts like the Ten Commandments into public school classrooms, blurring the line between church and state.

According to the analysis done by the New York Times, the Texas curriculum features content on Christianity, the bible and the life of Jesus. Lessons include the Biblical story of his birth in a Bethlehem manger, New Testament accounts of the angel who described him as the Messiah, and even stories about the miracles he was purported to perform.

Fifth graders examine a psalm in a poetry unit. First-grade students discuss the parable of the prodigal son alongside stories like “The Boy Who Cried Wolf.” Kindergarten children learn in depth about the Book of Genesis in a lesson on art exploration that notes that “many artists have found inspiration for creating art from the words in creation stories in religious books.”

The Times analysis found that Christianity was heavily favored in the lessons. In the materials used in the second grade, for example, “Christianity, the Bible and Jesus are referenced about 110 times. By contrast, Islam, Muslims, the Quran and the Prophet Muhammad are mentioned roughly 31 times in lessons spanning from kindergarten to fifth grade.”

The Times article has much more detail, and it is worth clicking through and reading. The curricular changes were summed up in a quote by David R. Brockman, a Christian theologian and religious studies scholar at Rice University. After he reviewed all of the Texas materials, Brockman concluded that the lessons amounted to Bible study in a public school curriculum, and he worried that the state’s adaptation of its curriculum would send an implicit message to children “that Christianity is the only important religion.”

Well, duh! Of course that’s the message, and it’s intended. In MAGA’s America–a country distant from the one occupied by the rest of us–the only real Americans are lily-White and “Christian.” The rest of us–including genuine Christians–are intruders.

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