Tag Archives: Constitution

Pride Month Musings

June is Pride Month. It wasn’t so long ago that today’s widespread recognition of–and support for– Pride would have been unthinkable. In my adult lifetime, there have been few changes in social attitudes as swift or as welcome as the legal and social acceptance of LGBTQ Americans.

That said, progress inevitably invites blowback. We are particularly seeing it in punitive legislation directed at transgender Americans. But we are also seeing continued opposition to gay equality from the same Christian Nationalists and religious fundamentalists who are determined to ignore America’s history of racism and other bigotries.

The good news is that anti-gay attitudes are far less pervasive among young Americans; in fact, sociologists and scholars of religion attribute much of the exodus by young people from fundamentalist congregations to distaste for their theological homophobia. Among older, conservative, religious Americans, however, LGBTQ citizens still encounter considerable bias–and when sexual orientation is coupled with HIV, no matter how well controlled, considerable stigma.

It’s tempting, during Pride month and especially during the local celebrations and parades, to focus on the considerable progress made by the gay community, and that progress is well worth celebrating. But it’s important to couple the celebration with recognition of remaining challenges.

For that matter, the contemporary lessons to be drawn aren’t  limited to LGBTQ issues.

Over the years, Black Americans, gay Americans, Jewish and Muslim Americans and other minorities have achieved significant legal protections: civil rights and anti-discrimination laws, and (in the case of LGBTQ folks) recognition of same-sex marriage have all gone a long way to level the legal playing field.

Hearts and minds have proved to be a harder nut to crack.

Too many Americans approach issues of inclusion and equality from a “zero-sum” perspective. The fear of “replacement” (more on that in upcoming posts) is an example. The evident calculation is that If “those people” get rights, my rights have been correspondingly diminished. The history of the gay rights struggle provides an excellent example; remember the hue and cry over “special rights”? The argument was that laws requiring equal legal treatment of gay men and lesbians were really an award of “special rights,” and the implication was that straight people didn’t have those “special rights.” 

When the Founders hammered out the U.S. Constitution, one of its most significant breaks with the past was the establishment of a legal system that would evaluate citizens based upon behavior, not social status or identity. Even when America hasn’t lived up to the principles set out in our constituent documents—and we frequently haven’t—the  official American vision has been one of a society in which group identity is legally irrelevant, a society where an individual’s conduct is the only proper concern of government.

In other words, in America, individuals are supposed to be rewarded or punished based upon what they do, not who they are. Race, religion, gender, sexual orientation and similar markers of group affiliation are supposed to be irrelevant to our legal status. No matter how meaningful those affiliations may be to us personally, the government may not award or restrict our rights based upon them.

Although they seem unable to understand or accept it, that basic element of America’s rule of law protects Christian Nationalists as well as members of minority populations.

The larger challenge we face is how to internalize that legal premise. How do we socialize our children into a worldview that sees other human beings as other human beings, and accepts or dismisses them individually, based upon their actions and behaviors–evidence of the content of their characters–not on their skin color, their sexual orientation or their theological preferences.

We have a way to go…

Happy Pride Month.

 

 

 

 

 

 

 

 

The People’s Business

The polarization that characterizes American politics these days begins with very different world-views–and very different beliefs about what government is and what it is for. Those differences used to exist within a “big tent” Republican Party, back when there were still a lot of perfectly sane Republicans. (I still remember those times; I told you I’m old…)

I still remember the telling difference between the rhetoric employed by Mayor Stephen Goldsmith, who liked to refer to citizens as “customers” of government, and the Hudnut Administration that preceded Goldsmith’s. I served in the Hudnut Administration, and although we didn’t borrow from business terminology, I think it’s fair to say that we considered citizens to be  shareholders, not customers.

We understood that citizens are the owners of the government enterprise.

So far, the Biden Administration has taken steps to do the people’s business, to reflect a belief that government should actively pursue the public good as reflected in the desires of a majority of its citizen-owners. As Heather Cox Richardson recently noted, Biden has refused to engage with the craziness and has instead acted on matters ordinary people care about.

Biden is using executive orders to undercut the partisanship that has ground Congress to a halt for the past several years. While Biden’s predecessor tended to use executive actions to implement quite unpopular policies, Biden is using them to implement policies that most Americans actually like but which could never make it through Congress, where Republicans hold power disproportionate to their actual popularity.

According to a roundup by polling site FiveThirtyEight, Biden’s executive actions cover issues that people want to see addressed. Eighty-three percent of Americans—including 64% of Republicans—support a prohibition on workplace discrimination over sexual identification, 77% (including 52% of Republicans) want the government to focus on racial equity, 75% want the government to require masks on federal property, and 68% like the continued suspension of federal student loan repayments. A majority of Americans also favor rejoining the World Health Organization and the Paris climate accords, and so on.

There is, of course, a limit to what can be accomplished by Executive Order. Biden has thus far shown an admirable intent to “stay in his lane”–to restrict his actions to those that can be defended as appropriate to the Executive Branch. But doing the people’s business–fulfilling the numerous needs and demands of government’s “owners”–will require action by Congress.

Congress, unfortunately, is massively dysfunctional.

The current debate in Congress about the filibuster illustrates that today’s partisan divide is between those who believe government is obliged to do the people’s business–to carry out the wishes of the owners of the enterprise– and those who quite clearly believe that their role is to prevent that business from being conducted (unless, of course, the business at hand involves a tax cut that will benefit their donors.)

The nation’s Founders contemplated a Congress that would engage in negotiation and compromise, and would then proceed to pass measures by a simple majority vote–not a super-majority. Today, thanks to the evolution of the filibuster over the years, it takes sixty votes to pass anything, no matter how innocuous.

Of course, the Founders also believed that the people we would elect to Congress would be “the best and brightest”–public-spirited, educated and reasonable men (yes, I know…) who would take their legislative responsibilities seriously. I wonder what they’d think of the gun-toting, conspiracy-believing wackos who are currently walking the halls of the Capitol and warning about fires started by Jewish space-lasers …

Not to get overly partisan here, but those lunatics are all Republicans…..and they have no concept of–or ability to do– “the people’s business.”

 

“No Brainer” Trump…

Several media outlets have reported on Trump’s enthusiastic embrace of a measure to outlaw flag burning. Congresscritters repeatedly introduce these bills, despite the fact that the Supreme Court ruled years ago that flag burning is protected under the First Amendment.

Ed Brayton commented on Trump’s history with the issue.

During the 2016 campaign, Trump said that anyone who burns an American flag — you know, all four of them in the entire country over the last few decades– should be stripped of their citizenship and be put in jail. Now two Republicans have proposed yet another bill to make flag burning illegal and he’s endorsing it on — where else — Twitter:

All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!

Coincidentally, No Brainer is the Secret Service’s code name for him.

You would think that an administration’s Press Secretary would try to intercede to protect freedom of expression, since all media–even rightwing outlets–rely on First Amendment protections to do their jobs. But of course, this is the Trump Administration, which has hired spectacularly dishonest specimens to fill that post. (My favorite description of departing Sarah Huckabee Sanders was penned by Bret Stephens of the New York Times, who wrote that Sanders “combined the sincerity of Elmer Gantry with the moral outlook of Raskolnikov.”)

Since no one currently serving in this administration seems to “get it,” let me see if I can explain the way free speech jurisprudence works in language that thinking people  (a category that rather clearly excludes the current occupant of the White House) can understand.

The Free Speech clause of the First Amendment protects the exchange of ideas against government censorship. All ideas. Even awful ideas. Ideas that piss people off. Government doesn’t get to decide which ideas get transmitted, period. (Your mother, on the other hand, can censor you. So can your boss. The Bill of Rights only restrains government.)

Government can prohibit actions for a whole host of reasons, but it cannot pick and choose among messages. If there is an ordinance banning outdoor burning in dry weather, for example, or laws criminalizing the theft of a flag belonging to someone else, people violating those laws can be punished, because those measures don’t implicate an exchange of ideas. They are what lawyers call “content neutral.”

The rules are different for actions we call “symbolic speech.” These are actions that are clearly intended to communicate ideas. A silent march by Neo-Nazis–or any group of activists– doesn’t require verbal expression to send its message. We get it.

Flag burning offends us precisely because it sends an unmistakable message of disrespect for the country.

Brayton illuminated another common misunderstanding of what the First Amendment  does and does not protect, in a post about a Tennessee police officer who had advocated killing gay people.

Grayson Fritts, the Tennessee sheriff’s deputy/pastor who gave a sermon calling for LGBT people to be put to death, has been given a buyout and allowed to resign rather than be fired. And his boss says that’s because firing him would violate his First Amendment rights. I’m virtually a free speech absolutist, and I can say without hesitation that he is totally wrong….

If he was just a preacher who said that, I’d excoriate him for it but still support his constitutional right to say it. But as a government employee whose job is to administer justice fairly and equally, it’s a clear violation of his oath of office to think that some of the people he is charged with protecting and serving should be murdered by the state because he doesn’t approve of them. There is no free speech issue there.

A zoning administrator handing out religious tracts on the job is violating the terms of her employment, and a President trying to stifle views with which he disagrees is violating the terms of his. Free speech jurisprudence doesn’t protect them.

When elected officials–from the President on down–are abysmally ignorant of the constitution they swear to uphold, we’re in a world of hurt.

A Lesson On The Constitution

Jamin Raskin was a Professor of Constitutional law when I met him, many years ago now. That meeting occurred only because Beverly Hudnut was in his law school class at American University, and introduced us when I was in D.C. Raskin had recognized the Hudnut name from the famous First Amendment case that struck down an Indianapolis ordinance outlawing an ill-defined “pornography”–a case on which I had served as local counsel.

Raskin was an impressive constitutional scholar and teacher, and his subsequent performance as a legislator from Maryland and activist for the National Popular Vote Project has been equally impressive. That’s why his recent Washington Post op-ed on the proper relationship of the executive and legislative branches during the current constitutional crises is well worth reading.

He began by documenting the current–unprecedented– intransigence of the Executive branch:

Constitutional crisis looms, preceded by constitutional illiteracy and confusion, which now hang like a thick fog over Washington. President Trump’s administration refuses to cooperate with any congressional investigations he disfavors, drawing a curtain over the executive branch and blockading our oversight work: His treasury secretary has declinedto produce the president’s tax returns, as demandedby the House Ways and Means Committee under federal statute. His attorney general has refusedto comply with a House Judiciary Committee subpoena for special counsel Robert Mueller’s unredacted report and the evidence underlying his findings, and he has orderedJustice Department official John Gore not to testify before the House Oversight and Reform Committee (without even bothering to assert a legal privilege). Trump is suingHouse Oversight Committee Chairman Elijah Cummings (D-Md.) for seeking documents from one of the president’s accounting firms. And the White House has directedformer counsel Donald McGahn and other witnesses not to appear before Congress. “Congress shouldn’t be looking anymore,” the president-king proclaims. “This is all. It’s done.”

Oversight isn’t the only area where the president thinks he can supersede and supplant Congress. He believes he can declarea national security emergency when lawmakers reject funding for his border wall — and then reprogrammoney Congress has appropriated for other purposes to build the wall behind our backs. And despite the fact that his main job is to “take Care that the Laws be faithfully executed,” as the Constitution’s Article IIprovides, he routinely sabotages the effective administration of the Affordable Care Act (by starvingrecruitment efforts and promoting“junk” plans) and encourages government officials at the border to violate the law on asylum seekers. All this falls outside of his constitutional power.

Raskin then reminded readers (at least those who paid attention in civics class, assuming they had a civics class) of the traditional story we tell ourselves about “co-equal branches” and the operation of checks and balances.

Then he dissents.

But this naive cliche is now the heart of our current troubles. Congress was never designed as, nor should it ever become, a mere “co-equal branch,” beseeching the president to share his awesome powers with us. We are the exclusive lawmaking branch of our national government and the preeminent part of it. We set the policy agenda, we write the laws, and we can impeach judges or executives who commit high crimes and misdemeanors against our institutions. As James Madison observedin the Federalist Papers, “In republican government, the legislative authority necessarily predominates.” Congress is first among equals.

Raskin’s column proceeds by detailing the history and jurisprudence that support his assertion of legislative superiority, and he also illuminates the path by which Presidents have amassed unauthorized powers. I really encourage you to click through and read the column in its entirety.

It’s tempting to think of the president as the main actor in the story of America, because he (or she) is a cast of one. But as the great Rep. Thaddeus Stevens reminded Americans during Reconstruction, “The sovereign power of the nation rests in Congress,” and its members stand around the president “as watchmen to enforce his obedience to the law and the Constitution.”

One of the most disappointing aspects of the travesty that has been triggered by a corrupt and incompetent Executive branch and a President who consistently displays his contempt for the law and his ignorance of even the most basic provisions of the constitution, is the continued refusal of Republicans in the House and Senate to defend the institution and the country they presumably serve.

They should listen to Raskin.And grow some balls.

More Confirmation Of Civic Ignorance

One of the most obvious–and infuriating–characteristics of the Keystone Kop administration that Trump has cobbled together is its utter cluelessness about the government they have been installed to manage.

One of the most consistent complaints I hear from reasonably well-educated Americans is amazement that there is still a base that sees nothing wrong with an Education Secretary who clearly knows nothing about public education, a Secretary of State who consults his bible in order to formulate foreign policy, an EPA Administrator who says we need not worry about climate change for another fifty years…and so on and so on.

Not to mention a President who is clearly unacquainted with any part of the U.S. Constitution and who would be challenged to answer questions on a 6th grade civics test.

Much of the answer is, of course, Trump’s appeal to white nationalists who are willing to support anyone who hates the same people they do. But another, significant part of the explanation is the large numbers of uninformed voters, citizens who have no idea how their government is structured or how it is supposed to operate–who have no clue what the rules might be, and thus are unaware of the (multiple) times when those rules are being broken.

Yes–I am once again going to pontificate about the civic ignorance of far too many American citizens. (And yes, I know it isn’t just civic ignorance–a recent, widely reported poll revealed that 56% of Americans believe that Arabic numerals should not be taught in American schools…it’s hard not to cry.)

When it comes to my persistent distress over civic literacy, however,  I now have the American Bar Association to confirm my rant.

According to a new national poll conducted by the American Bar Association, less than half of the U.S. public knows that John Roberts is chief justice of the U.S. Supreme Court, while almost one-quarter think it is Ruth Bader Ginsburg and 16 percent believe it is Clarence Thomas.

The nationally representative poll of 1,000 members of the American public found troubling gaps in their knowledge of American history and government, as well as constitutional rights. One in 10 think the Declaration of Independence freed slaves in the Confederate states and almost 1 in 5 believe the first 10 amendments of the U.S. Constitution are called the Declaration of Independence instead of the Bill of Rights.

 ABA President Bob Carlson reacted to the survey:

Making sure that people living in America know their rights and responsibilities is too important to leave to chance,” said Carlson. “Moving forward, the ABA’s Standing Committee on Public Education will launch an educational program based on these survey results, to re-acquaint the public with the law and the Constitution.

“We cannot be content to sit on the sidelines as democracy plays out in front of us. For the sake of our country, we all need to get in the game,” he said.

So, what were the findings that shocked officials of the Bar Association? Let’s start with the “good” news:

The U.S. public expresses strong support for freedom of speech. Eighty-one percent of the public agrees that people should be able to publicly criticize the U.S. president or any other government leader and three-quarters agree that government should not be able to prevent news media from reporting on political protests. Fully 80 percent of the public agrees that individuals and organizations should have the right to request government records or information. And 88 percent correctly say that the government does not have the right to review what journalists write before it is published under the First Amendment.

Unfortunately, this strong endorsement of free speech is accompanied by public confusion over what the First Amendment actually protects.

Nearly 1 in 5 said freedom of the press is not protected by the First Amendment and 20 percent said the right of people to peaceably assemble does not fall under the First Amendment. More than half incorrectly think the First Amendment does not permit the burning the American flag in political protest under the First Amendment. The U.S. Supreme Court has struck down laws that forbid flag-burning, ruling first in 1989 that under the First Amendment a person cannot be penalized for such action.

There’s more, of course.

Seventy-eight percent of respondents, for example, knew that the term “the rule of law” means no one is above the law, but fully 15 percent believed  it means “the law is always right.”

The public also demonstrated a lack of basic knowledge about the rights and responsibilities accorded under the Constitution. Less than half know that only U.S. citizens can hold federal elective office, more than 1 in 5 believe only U.S. citizens are responsible for paying taxes and more than 10 percent believe only U.S. citizens are responsible for obeying the law. A little more than 1 in 6 think that due process of law is only available to U.S. citizens. And 30 percent believe that non-citizens do not have the right of freedom of speech.

To view the whole, sad survey, you can download it here.

As for me, I’m going to pour myself (another) drink.