Tag Archives: Constitution

Two Possibilities….

A few days ago, a clearly exasperated reader of this blog asked “the” question–the question I ask myself daily and am unable to answer. He agreed with my “diagnoses” of the myriad  problems we face, but wanted to know what we can do about them. We know what the problems are–what can individuals do to solve them?

If only I had an answer! We’d both feel better.

Not only do I not have a solution to “the question,” I vacillate between two competing analyses of the problems we face. As I have previously noted, I’ve been reading a lot more history lately, in an effort to determine whether we’ve been here before, or whether the severity of America’s divisions is something unprecedented. (That’s another question to which I have no answer…).

As I used to tell my students, it depends–and it’s complicated.

Like many of the people who read this blog, I take the daily letter from historian Heather Cox Richardson, who provides helpful historic context to the issues of the day. Recently, she addressed the question of Trump’s stolen documents, and Senator Lindsey Graham’s threat that holding Trump accountable would be met with violence in the streets.

Richardson pointed out that arguments about the theft of those documents  are arguments about the rule of law–not about contending political opinions. Graham’s threats about gangs taking to the streets is an authoritarian’s argument for the use of violence to overturn the rule of law. Richardson then provided valuable context, noting that resort to violence is not new to this country, citing to  the Reconstruction South–a period during which “white gangs terrorized their Black neighbors and the white men who voted as they did, suppressed labor organization at the turn of the last century, and fed rising fascism in the 1930s”.

Right-wing activists have been an ever-growing threat since the 1990s. Under Trump, rightwing gangs became his troops. But as Richardson reminded us,  even the incidents of domestic terrorism aren’t new.

Such gangs have always operated in the U.S., and they gain power and momentum when they engage in violence and are unchecked. After several years in which they have seemed invulnerable, we are now in a period when, as we learned on Saturday, an armed man in a truck chased Independent Utah senatorial candidate Evan McMullin with a gun after an event in April and forced the vehicle carrying McMullin and his wife into oncoming traffic. That incident echoes one from October 2020, when a bus carrying Biden staffers and volunteers through Texas was harassed by Trump supporters, some of whom appeared to be trying to force it off the road. When the terrified Biden workers called the police, officers allegedly refused to help.

What I take from Richardson and other historians–as well as the upheavals most of us personally experienced in the 1960s and 70s– is the lesson that the times we are living through are not unique. We can take some comfort in the fact that we got through those ugly episodes, and reassure ourselves that we can make it through these times as well.

Or–as a part of my brain whispers–maybe this time really is different.

Previous periods of unrest didn’t occur in the face of the existential threats posed by climate change, and new technologies that facilitate mass murder and Orwellian surveillance. Obsolescent rules weren’t bringing federal governance to a grinding halt…

Ultimately, it doesn’t matter which of these analyses is accurate. Whether we’ve been here before or we really haven’t–we need to find a way out. But the solutions available to us will ultimately depend upon understanding what is happening now, and how unprecedented (or not) our challenges are.

Choose your preferred diagnosis–but neither sparks an epiphany pointing to a cure.

The single thing that each of us can do is to vote, and work to ensure that other rational Americans do likewise. Gerrymandering and vote suppression tactics may win the day– but a truly overwhelming Blue turnout would keep the GOP from furthering its march to fascism, and would begin the long and difficult job of mending American government.

Voting Blue in November won’t be an endorsement of whatever Democrats stand for. The party certainly isn’t above criticism. It is, however, largely sane and pro-democracy.

Conservative Republican Adam Kitzinger recently made the same point.

A Blue vote is a vote for women’s reproductive autonomy, for the civil rights of LGBTQ citizens,   for sensible restrictions on firearms, and for prioritizing the interests of working and middle class Americans. We can–and will– argue about the details of those basic commitments, but only if we defeat the unAmerican cult that stands firmly against them all.

This November, we must vote Blue for America.

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Let Me Explain This One More Time…

I see that Tucker Carlson has applauded the demise of Roe v. Wade, and characterized the decision as a “return to democracy.” Evidently, someone needs to explain America’s approach to democratic self-rule to Tucker and his constitutionally-illiterate audience.

Democratic systems can take several forms. In a “pure” democracy, where an unrestrained majority rules, voters participate in all government decision-making; the majority is even able to decide who has the right to vote. (I’m unaware of any country with so “pure” a democracy, for obvious reasons.)

America’s Founders didn’t choose that system. (For one thing, their concerns about the “passions of the majority” were well-known.) Instead, they crafted a republic in which voters would choose lawmakers from among the ranks of the thoughtful and knowledgable (!!), and those lawmakers would debate the merits of legislative proposals, negotiate and compromise among the various points of view, and pass well-considered laws.

Then they constrained those lawmakers by enacting a Bill of Rights.

The Bill of Rights–as I have often explained in these posts–is essentially a list of things that American government is forbidden to do, even when a majority of voters approve. Thanks to the Bill of Rights, government cannot censor our communications. It cannot prescribe our prayers (although after the Court’s most recent ruling, it can evidently coerce them) or dictate our reading materials. It cannot search or seize us without probable cause.  It cannot invade our liberties or take our property without due process of law.

Let me reiterate that, for the edification of any Fox viewers who might be lurking: the Bill of Rights limits what popular majorities can authorize government to do. It is a limitation on majority rule–on what the Tucker Carlsons of this world conceive of as democracy. It protects the right of individuals to choose their own political and religious beliefs and follow their own life goals, their own telos, free of government–or majority– interference.

Over the years, the Court has had to interpret the operation of the Bill of Rights–to apply its broad principles and protections to specific situations. Since the 1960s and until this week, the Court has recognized a right to privacy, and has drawn a line between decisions that government can properly make, and those that must be left to the individual. It has based that line on citizens’ right to due process.

There are two kinds of due process: procedural and substantive. Substantive due process (often called the right to privacy) is the doctrine that requires official respect for individual autonomy–the doctrine that forbids government from making decisions that are none of government’s business, “intimate” decisions that under longstanding understandings of the Bill of Rights must be left up to the individual involved.

The existence of that line protecting individual liberty from government interference rests on multiple precedents interpreting the 14th Amendment’s Due Process Clause. 

If the doctrine of substantive due process goes away, those “democratic” state governments so beloved by Tucker Carlson will have the right to prohibit same-sex or interracial marriage, re-criminalize sodomy, and ban the sale and use of birth control…All of those rights and others are in the cross-hairs so long as Republicans can keep their stranglehold on American government via gerrymandering, the Electoral College and other mechanisms  (mechanisms that are all, ironically, exceedingly anti-democratic). 

The decision overturning Roe was deeply dishonest, especially in its discussion about  whether a particular right was historically recognized, but Alito’s distorted history is ultimately irrelevant– a red herring. In order to find that the government has a right to control the reproductive decisions of individual women, the Court had to fatally undermine the doctrine of substantive due process. And when that doctrine is no longer viable, all other personal rights are vulnerable.

Clarence Thomas may have been the only Justice willing to admit to the obvious agenda of this rogue Court, but it is abundantly clear that the other four members of the religious tribunal that now controls the Court share that agenda.

Debates about abortion have always been both superficial and dishonest. “Pro life” has always been a misnomer, since anti-choice policy is blatantly indifferent to the lives of women (and to the lives and welfare of fetuses once they become children). But there needs to be far more recognition that this decision isn’t simply an endorsement of the right of state governments\ to make very bad policy decisions–it is an endorsement of autocracy, of the right of government to invade the most personal precincts of citizens’ lives, and to impose the religious views of those in power on those of us without.

Giving legislators the right to make my most intimate decisions isn’t the Founders’ view of “democracy”– and it sure as hell isn’t mine.

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Did The Founders Get It Wrong? Or Has The World Changed?

This is a hard post to write, because I’ve spent the better part of my adult life–as a lawyer,  as a university professor and (at various times) a columnist– defending and explaining America’s Constitution and Bill of Rights. But I just listened to a fascinating podcast from the University of Chicago’s law school, titled “What are rights?” and the reflections it prompted made me connect some “dots” that I’ve encountered over the years, and ponder questions I’ve ignored or–more accurately–repressed.

In the U.S. Constitution, rights are conceived of as negative. When US was founded, governments were far and away the most powerful threat to individual liberty, and accordingly, the Bill of Rights protected individual rights against government intrusions. (When I was Executive Director of Indiana’s ACLU, I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.)

Other Western democracies don’t necessarily share–or even understand–that  limited and negative conception of constitutional rights. Many years ago, I delivered a paper at a conference in Milan, Italy, that included an analysis of a then-recent Supreme Court case, and an Irish scholar challenged me; he thought my description couldn’t possibly be correct because the American notion of negative constitutional rights was unfamiliar to him.

And that brings me to the podcast that triggered this post. That discussion distinguished between human rights and  constitutional rights.

Placing rights in a country’s constitution requires a significant government infrastructure to enforce them–statutes, courts, the training of those who must police and protect citizens. As a result, as the participants in the podcast noted, we want to be prudent –to constitutionalize only the most important of those human rights.

What is “most important,” of course, depends on the cultural context.

Listening to the podcast sent me back to the Universal Declaration of Human Rights, issued by the United Nations in 1948. That document enumerated what were considered basic human rights at the time–and  it included both negative and positive rights. As the Preamble describes those rights, they include recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family.”

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…

The entire planet is currently watching a government engage in those “barbarous acts,” as Russia continues its assault on Ukraine–an assault that underlines the continued ability of governments to disregard the fundamental right to human and national self-determination.

In today’s world, however, governments are far from the only powerful actors capable of invading the rights of citizens. Multi-national corporations, obscenely rich oligarchs, and angry “tribes” of citizens enraged by loss of privileged status and empowered by “free press” propaganda all pose a significant and growing threat to both human and constitutional rights.

I have become increasingly convinced that a constitution that protects only negative rights–the “right to be left alone”–important as those protections are, is insufficient.

Re-read that paragraph from the Universal Declaration, especially the phrase “freedom from fear and want.” Other Western democracies have constitutionalized positive rights– to education, to health care, and to housing. The Universal Declaration itself includes positive rights, including the right to education, and the right “to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

America’s Constitution and Bill of Rights were major and dramatic innovations for their time. The documents crafted by the nation’s Founders triggered a  philosophical and cultural departure from the then-widespread  belief in the divine right of kings and the concomitant disregard for the rights of common folks.  For the first time, subjects became citizens, and citizens had rights.

We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.

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Fraud And Free Speech

A recent report from the Czech Republic made me think of Americans’ widespread misunderstandings about what constitutes the freedom of speech protected by the First Amendment.

The most widespread misunderstanding, of course, arises because too many Americans don’t realize that the Bill of Rights only limits actions by government. If Walmart refuses to carry your book, your private-sector boss forbids politicking on the job, or your racist Facebook diatribe causes people to unfriend you after characterizing you in unpleasant ways, those aren’t violations of the First Amendment. Those are examples of people exercising their free speech rights.

But about that Czech incident…

Prague Morning reported on the arrest of Jana Peterková. Peterkova became the first person to be convicted for spreading misinformation in the Czech Republic. According to court documents, she allegedly posted a false message claiming that several seniors died in a nursing home in Měšice after receiving COVID vaccinations.

Now, it is important to note that Peterkova posted a totally manufactured story. She wasn’t sharing an opinion, or weighing in on a disputed factual situation. She recounted a purportedly personal conversation with someone she identified as an employee of the nursing home in question, and she claimed that person had told her that “the ‘mainstream media’ were ‘silent’ after several elderly people died after receiving the Pfizer COVID-19 vaccine.”

However, the identified employee had not worked at the nursing home since May of 2020.

It is also important to acknowledge that the Czech Republic doesn’t have America’s First Amendment, although it has pretty robust protections for free speech. (Wikipedia says “Freedom of speech in the Czech Republic is guaranteed by the Czech Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Czech Constitution. It is the first freedom of the charter’s second division – political rights.”)

One of the conundrums of America’s free speech jurisprudence is locating the line between  speech–communication–and action. Government may not be able to censor my speech, but it definitely has the right to prohibit and punish a number of my possible actions.

And just as communication can occur through action–silent marches, ripping up draft cards, and burning a flag are all actions meant to send a message–wrongful or criminal behaviors can be accomplished via the spoken or written word.

If I call your telephone every fifteen minutes to berate you for something, that behavior is not protected by the First Amendment. It isn’t communication; it’s harassment–and government can punish harassment.

If I criticize you by publishing a book with manufactured accusations, I’ve committed libel. Government can prohibit libel and slander.

If I sell you a cubic zirconium for much more than it’s worth by convincing you it’s a diamond, I’m not exercising my right to free speech; I’m guilty of fraud. Government can punish fraud.

The problem in these situations isn’t that they’re protected speech; it’s evidentiary.

If a police officer overhears two people planning to rob a liquor store, he doesn’t need to wait until they’re at the store with weapons drawn to move against them–but he’d better be able to demonstrate to a court of law that he knew they were serious–that what he overheard was part of the illegal activity–that they weren’t just playing a game, or kidding around.

In the case from the Czech Republic, the evidence was evidently unambiguous. The information Peterkova transmitted was false and she clearly knew it was false, since she’d invented it.

Most of the propaganda being spewed in today’s U.S. is protected by the Free Speech Clause of the First Amendment. Opinions–no matter how nutty–are protected, and far too much of what passes for journalism in this country today, even in the most credible outlets,  is really the venting of opinions. Even though a number of Faux News pundits and their ilk likely know they are dealing in a manufactured reality, proving to a court that they know they are dealing in falsehoods–at least, in the absence of some inadvertent admission– would be impossible.

Overall, the protection offered by the First Amendment is immensely positive. That said, however, the reality of our time is that “censorship” is no longer accomplished by suppression; today, partisans and culture warriors flood the Information environment with enormous amounts of clickbait and propaganda, intended to “drown out” responsible fact-finding, then use the First Amendment as a shield.

it’s a situation that requires a citizenry able to separate wheat from chaff. Civic and news literacy have never been more important.

Unfortunately, the ideologies that motivate the propaganda in the first place also convince partisans that “truth” is information that confirms their initial biases–and increasingly, that illegal and/or illegitimate action–even insurrection– is protected “free speech.”

it isn’t.

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(Some Of) We The People

I’ve been reading The Words That Made Us, a magisterial history of the origins of the Constitution, written  by Yale Constitutional Law professor Akil Amar. Amar’s previous books include The Bill of Rights and America’s Constitution: A Biography, both of which I read and found enlightening. (For example, in the latter book, Amar documents the extent to which the Amendments passed after the Civil War–especially the 14th–represented a significant reconstruction of the nation’s legal framework.)

This new book is also copiously and carefully documented, and as a consequence, it can be a bit of a slog; on the other hand, I’m encountering a number of heretofore unknown (by me, at least) details about the process that produced our Constitution, and the personal characteristics of the men who fought over it, theorized about it, and negotiated it.

Which brings me to a point on which most of those Founders apparently agreed–sovereignty in the U.S. rests with “We the People.” Not with the individual states, certainly not with Kings or Presidents–but with the people. We can now be critical of the worldview that confined definition of “the people” to free White males, and we should celebrate the later expansion of “the people” to include women and people of color–but we shouldn’t minimize the importance of what was then a truly revolutionary concept of sovereignty.

Interestingly, Amar points out that after the “constitutional conversation” over ratification took place, most colonies eliminated property ownership requirements for voting on the new charter. (Something else I’d previously not known.)

“The people” was–for that time–an inclusive concept.

America today faces a very dangerous tipping point–brought to us by a party, really a cult or cabal–that wants to change the concept of sovereignty and the definition of “people.”

We talk and write a lot about democracy, but what we mean by that term varies. As a number of pundits have pointed out, autocrats around the globe often claim to be “democratically” empowered, because their countries hold “elections.” (Note quotation marks.)

The men who crafted America’s Constitution broadened the then-definition of People, and saw democracy as the authority of those people. Today, faux patriots are engaged in narrowing it.

Gerrymandering carves out particular “people,” whose votes will outnumber and void the voices of others. The Electoral College–which Amar reminds us was an unwise concession to the slave states–operates to nullify the votes of a majority of the people who cast Presidential ballots. And as the Committee investigating  the January 6th insurrection is discovering, a not-insignificant number of elected and appointed Republicans–including Trump– fully intended to mount a coup and overturn an election decided by the people that numerous investigations (and Trump’s own dishonorable Attorney General) confirmed was free and fair.

The introduction to the U.S. Constitution doesn’t say “We (some of) the People.” It doesn’t say–as far too many of today’s faux patriots evidently believe– “We the (White Christian) People.” It says “We the People.”

If sovereignty is to be vested in We the People, all people’s votes must be counted and all people’s voices must be heard. That isn’t happening. (Okay, it’s never really happened, but we have previously moved in that direction.) To the contrary, we’re moving backward, thanks to a well-organized effort to subvert democratic equality and the very idea of “one person, one vote.”

As Barton Gellman reports in the linked article,

For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.

It is past time to reassert the sovereignty of ALL of We the People, and take back the country we thought we inhabited.

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