Tag Archives: Constitution

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.

 

Truth And Consequences

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No wonder our government is broken.

Proving Woodward’s Point

As I said yesterday, anyone who has watched this deeply dysfunctional President has come to the same conclusions Woodward attributes to Trump’s staff. But thanks to the very low levels of civic literacy in this country, it may not be apparent to everyone how profoundly his proposed actions violate the most basic of our constitutional premises.

A couple of examples from the Washington Post:

President Trump has long derided the mainstream media as the “enemy of the people” and lashed out at NFL players for kneeling during the national anthem. On Tuesday, he took his attacks on free speech one step further, suggesting in an interview with a conservative news site that the act of protesting should be illegal.

Trump made the remarks in an Oval Office interview with the Daily Caller hours after his Supreme Court nominee, Brett M. Kavanaugh, was greeted by protests on the first day of his confirmation hearings on Capitol Hill.

“I don’t know why they don’t take care of a situation like that,” Trump said. “I think it’s embarrassing for the country to allow protesters. You don’t even know what side the protesters are on.”

I rather doubt that the Daily Caller’s reporter asked the appropriate question: Are you aware that the First Amendment to the Constitution specifically protects the ability of citizens to “petition their government for redress of grievances?” (The Daily Caller is a  website founded by conservative pundit Tucker Carlson and Neil Patel, former adviser to former Vice President Dick Cheney. Hence my assumption the reporter didn’t confront the President.)

It doesn’t really matter. Since Trump has given exactly zero evidence of ever having encountered the Constitution–let alone understanding it–I’m sure a reference to the First Amendment would have fallen on deaf ears.

In another Post column, David Von Drehle addressed the President’s utter contempt for the rule of law.

Here’s a question I never expected to ask:

Should law enforcement officials ignore crimes committed by their friends and associates?

I grew up thinking the answer was a simple no. The figure of Justice, with her scales in one hand and her sword in the other, wears a blindfold to symbolize her impartiality. Carved in stone over the doors of the Supreme Court are the words: Equal Justice Under Law.

As I got older and saw a few things, I came to understand that justice, as meted out by humans, is imperfect. Yet the principle of the matter — the goal for which we should aim and the standard by which we should measure — remains the same. Impartiality. Equality. Fairness.

So why am I asking?

On Labor Day, the president of the United States used Twitter to express precisely the opposite idea.

Von Drehle was referring to Trump’s angry eruption at the indictment of “two very popular Republican Congressmen.” He clearly believes that the role of the Justice Department is political, that since both he and Sessions are Republican, the department should protect Republican wrongdoing.

I don’t know what’s worse–that Trump would have such an uniformed view of what “law” means, or that he was willing to tweet his ignorance for the whole world to see. As Von Drehle concluded,

Nineteenth-century orator Robert Green Ingersoll once wrote, “Nothing discloses real character like the use of power.” In his pity for Paul Manafort, convicted tax cheat; in his hatred for truth-telling “rats” and “flippers”; and now in his assertion that the law should exempt his political allies, Donald J. Trump is disclosing his.

Sixty percent of us, plus or minus, noticed.

The Real Constitutional Crisis

As anyone who reads my blogs and columns–or who has ever been a student in one of my classes–can attest, I have respect bordering on reverence for the American Constitution. But it is becoming painfully clear that some of the governing mechanisms required by that founding document no longer serve us. The Constitution was crafted, after all, to address the concerns of a very different age.

The dysfunctions of the system have been accelerating for some time, culminating in today’s parody of responsible government.

A recent article in Commentary Magazine focused on the undeniable fact that Congress is broken;

It is hard to avoid attributing every dysfunction of the moment to Donald Trump’s peculiar mix of reckless talk and often feckless action. But judged on a scale of institutional breakdown, the presidency—even this presidency—is not our biggest problem….

The budget process has never been so hobbled. Not only did we come close to an unprecedented government shutdown during single-party control of Congress and the presidency, but this year has also marked the first time in the four-plus decades since the modern budget process was created that neither chamber has even considered a budget resolution.

And the trouble didn’t start in just the past few years. Presidential hyperactivity in recent decades has masked a rising tide of dysfunction—giving us policy action to observe and debate while obscuring the disorder that was overtaking our core constitutional infrastructure. It kept us from facing what should be an unavoidable fact: Congress is broken.

As the author points out, whatever measure you apply–legislation passed, public approval, member satisfaction, even just committee work or each house’s ability to live by its own rules–will lead you to the same conclusion. And while there are many reasons for the institution’s abject failure to perform, the Constitutional language is among them.

The Constitution gives the Congress powers but not responsibilities. The president is required to execute the laws and tasked with responding to changing world events on the country’s behalf. The courts have to consider cases and controversies put before them and apply the laws accordingly. But while the general scope and reach of the Congress’s authorities are laid out in Article I, the institution is not really told what it must do within that scope. That’s because the assumption was that Congress would naturally seek to control things and run as far and as hard in pursuit of power as the Constitution allowed, so that only boundaries were needed.

As everyone who has studied the Constitutional Convention knows, the Framers worried most about the legislature (the “most dangerous branch”), and the prospect that it would run rampant.

Today’s Congress simply defies that expectation. It suffers from a malady the framers never quite imagined when they thought about politics: a shortage of ambition. Members are certainly eager to retain their offices, but they seem oddly indifferent to using those offices.

The article goes on, and I encourage you to click through and read it, but even though I think much of the analysis is accurate, I also think it is incomplete. The fecklessness of our current political class is also fostered by other structural defects required or permitted by the Constitution: the Electoral College and the primary authority of state governments for elections and redistricting, to name just two.

The problem is, if Americans were to engage in a redesign of the Constitution–if efforts to hold another Constitutional Convention (an effort currently underway) were to succeed–it is almost certain that the damage done would vastly outweigh any improvements. The people most eager to rewrite our national charter are precisely the people who shouldn’t be allowed near it. It isn’t just the theocrats and the “states rights” bigots, worrisome as they are, but well-meaning folks who have very limited understandings of economic and social realities–the “balanced budget” advocates and libertarian opponents of regulation and social welfare programs, among others.

Legal structures are inevitably reflective of deep-seated cultural assumptions, and cultural changes come slowly. Until such time as an effort to modernize the Constitution can be undertaken in a less politically toxic, uninformed and polarized environment–undertaken by civically-literate, knowledgable and public-spirited “renovators”–the best we can do is “eject and elect.”

We need to eject from Congress the sorry excuses who are currently failing to act responsibly, and we need to elect people who are willing and able to discharge their responsibilities.

We need to vote as if our futures depend upon it. Because they do.