Tag Archives: Constitution

The Right Kind Of Culture War

When we come across references to “culture war,” most of us–whatever our political orientation– immediately think of issues raised by the political right. (I tend to envision the fundamentalist Christian Right.) However we picture the culture warriors, the battles being fought are almost always focused on so-called “family values” (women’s reproductive autonomy, homosexuality, etc.) and a “law and order patriotism” that is performative and superficial–a stubborn “my country right or wrong” approach. Plus, of course, a generous dollop of racism/White Supremacy.

Jennifer Rubin deconstructs those issues in a recent column for the Washington Post.

Republican cultural memes are galling. The GOP has made a national issue out of something that does not exist: teaching critical race theory in public schools. Republicans claim to be on the side of the police and the military, but members of the MAGA cohort have regularly scorned Capitol and D.C. police officers who defended them on Jan. 6, smeared the military as “woke,” and even called the chairman of the Joint Chiefs of Staff, Gen. Mark A. Milley, a “pig” and “stupid.” Republicans claim to be “real” Americans but make traitors (e.g., Confederate generals, Ashli Babbitt) into martyrs.

But Rubin goes beyond a critique of these Rightwing tropes, arguing that a neglect to respond to Republican demagoguery and descent into anti-American authoritarianism equates to a failure to defend the ideal of multiracial democracy. She wants to see the rest of us move to reset and redefine America’s culture war.

Rubin wants Democrats, especially, to “flip the script”– to campaign on “democratic values,” and to point out that Republicans have become a party defending violent thugs and traitors.

Democrats defend the Constitution, which conservative “originalists” used to claim as their own, while Republicans support the man who sought to overturn the election (“just say the election was corrupt + leave the rest to me” he told the Justice Department, seeking pretext for his Jan. 6 gambit).

Her basic charge (which is accurate) is that Republicans who continue to echo Trump’s “big lie” or who voted not to certify election results, or who pretend that January 6th was not an insurrection, are  behaving in ways that are anti-American.

Whose side was my opponent on? Why wouldn’t he/she vote to investigate the worst domestic terrorist attack in decades? Republicans have never been shy about challenging Democrats’ patriotism, and here Democrats actually have grounds to call out Republicans for refusing to both defend the Constitution and respect the votes of their own constituents. Democrats should also challenge their opponents to pledge to accept election results even if they lose and denounce any threat of violence to overturn the will of voters.

In a paragraph that really resonated with me, Rubin also advocated for policies to shore up civic knowledge. She suggests the establishment of a “democracy corps” that would pay young people “to set up civics programs, teach media literacy, serve as poll workers and engage in other pro-democracy activities.” She urges Democrats running for state and local office to endorse mandates for civics instruction in grades K-12.  And she quite properly advises them to call out the racists and crackpots trying to get schoolteachers to stop teaching about the Ku Klux Klan and the Rev. Martin Luther King Jr.

The bottom line–as Rubin obviously recognizes–is the danger in allowing the Right to define the terms of America’s culture wars. There’s an old saying among lawyers to the effect that “he who frames the issue wins the debate.” Those of us who reject the Right’s stance on its issues do so because we understand their positions to be contrary to what this country and its constitution are all about–in a word, we find the misogyny, racism, homophobia and the rest to be profoundly anti-American.

Rubin is absolutely right when she argues that we need to do more than just reject that anti-Americanism. We need to wage our own culture war on behalf of the democratic norms and equal civic status required by the  Americanism we embrace.

Those of us who recognize and accept the American Idea need to enlist–it’s a war worth fighting.

Oh Texas…

In the years before 2016, when I needed an  example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are proper defendants to a lawsuit. (What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.

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.