Tag Archives: Mississippi

Be Careful What You Wish For

The Supreme Court–newly dominated by a conservative majority–has accepted an abortion case out of Mississippi. It is widely expected that the Court will use that case to further erode a woman’s right to terminate a pregnancy–not explicitly overturning Roe v. Wade, but effectively eviscerating it.

Talking Points Memo considered the likely political effects of that decision, pointing out that, since the justices waited until the end of the current term to say that they would take it up, with a decision likely next June, it can hardly avoid being a front-burner issue in the 2022 election cycle.

Linda Greenhouse sees the decision to accept the case as the “end of the free ride” for anti-choice activists. She began that analysis by listing a number of situations in which state legislation curtailing abortion rights has been struck down by the courts, allowing “pro life” politicians to posture without incurring the electoral wrath of those who disagree.

Her recitation reminds me of a conversation I had with an Indiana legislator several years ago. He was in my graduate Law and Policy Class, and I knew he was aware of First Amendment precedents prohibiting state endorsement of religion, so when he voted to post the Ten Commandments on government buildings, I challenged him. His response was candid: he could vote the way the “folks in Mayberry” (his small town) wanted, keeping them happy, secure in the prospect that the courts would “bail him out.”

Abortion politics has taken a similar path.

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

Greenhouse explains how the Court can effectively demolish Roe without actually and explicitly overruling it, and then considers the politics involved. Her analysis is worth quoting at some length:

It’s a dim memory, but a salient one, that in Mississippi itself, a voter referendum that would have amended the state Constitution to grant personhood status to a fertilized egg was defeated in 2011 by a margin of 58 to 41 percent, despite endorsement by leading politicians and widespread predictions that it would pass. That’s when the anti-abortion forces decided that friendly legislatures were a better bet than the will of the people.

Last fall, in each of four nationwide polls, including one conducted for Fox News, more than 60 percent of registered or likely voters said they did not want the Supreme Court to overturn “Roe v. Wade.” I put the case in quotes because that’s how the pollsters asked the question; although Roe obviously carries strong symbolic meaning, the 1973 decision is in many respects no longer the law.

The question as the polls’ respondents processed it was most likely “Do you want to keep the right to abortion?” And no wonder the answer was yes: nearly one American woman in four will have an abortion. (Catholic women get about one-quarter of all abortions, roughly in proportion to the Catholic share of the American population.) Decades of effort to drive abortion to the margins of medical practice have failed to dislodge it from the mainstream of women’s lives.

For the cynical game they have played with those lives, politicians have not paid a price. Now perhaps they will. Of course, women themselves will pay a heavy price as this new reality sorts itself out, particularly women with low incomes who now make up the majority of abortion patients.

And there’s another price to be paid as justices in the new majority turn to the mission they were selected for. The currency isn’t votes, but something even more important and harder to win back: the institutional legitimacy of the Supreme Court of the United States.

There’s no free ride for the court either.

What Greenhouse doesn’t address is the extent to which the GOP has depended upon both the energy of anti-abortion activists and the relative lack of political activism by pro-choice voters who have assumed that the courts will protect their rights. If Roe is either over-ruled or–as is more likely–eviscerated, it may well shift that dynamic to the detriment of “the folks in Mayberry” and the GOP.

 

 

Krugman Nails It

Paul Krugman wants to know how many of their fellow Americans Republicans are willing to kill in order to “own the libs.” In the wake of actions by Governors in  Texas and Mississippi–essentially eliminating anti-COVID requirements– it’s a fair question.

Krugman also points out–graphically–why mask edicts are not an abrogation of American freedom.

Relieving yourself in public is illegal in every state. I assume that few readers are surprised to hear this; I also assume that many readers wonder why I feel the need to bring up this distasteful subject. But bear with me: There’s a moral here, and it’s one that has disturbing implications for our nation’s future.

Although we take these restrictions for granted, they can sometimes be inconvenient, as anyone out and about after having had too many cups of coffee can attest. But the inconvenience is trivial, and the case for such rules is compelling, both in terms of protecting public health and as a way to avoid causing public offense. And as far as I know there aren’t angry political activists, let alone armed protesters, demanding the right to do their business wherever they want.

As Krugman goes on to point out, the dangerous posturing by self-described defenders of “liberty” is the essence of identity politics.  Although Republicans politicians like to accuse Democrats of playing that game, they limit the definition of “identity” to issues of race and religion–it’s their way of reminding their White Supremicist base that Democrats represent   a citizenry that includes “those people.”

What is motivating this rush to unmask isn’t economics–Krugman points out that the costs of mask-wearing are trivial, and that controlling externalities–taking into account  costs being imposed on others–is Econ 101. As he says,  “if potentially exposing those you meet to a deadly disease isn’t an “externality,” I don’t know what is.”

Of course, we know what’s actually going on here: politics. Refusing to wear a mask has become a badge of political identity, a barefaced declaration that you reject liberal values like civic responsibility and belief in science. (Those didn’t used to be liberal values, but that’s what they are in America 2021.)

This medical version of identity politics seems to trump everything, up to and including belief in the sacred rights of property owners. When organizers at the recent Conservative Political Action Conference asked attendees to wear masks — not as a matter of policy, but simply to abide by the rules of the hotel hosting the meeting — they were met by boos and cries of “Freedom!” Do people shriek about rights when they see a shop sign declaring, “No shoes, no shirt, no service”?

But arguably we shouldn’t be surprised. These days conservatives don’t seem to care about anything except identity politics, often expressed over the pettiest of issues.

There are plenty of problems with mischaracterizing mask wearing as a “freedom” issue, and one of those problems ties back into my constant rants about the country’s low levels of civic literacy.

The United States Constitution does not give anti-maskers the “liberty” they claim.

I will readily admit to being a hard-core civil libertarian.  (I ran Indiana’s ACLU for six years and was routinely criticized when our affiliate sued to protect citizens’ rights to pursue their own moral or personal ends.) But as Krugman’s introductory paragraphs illustrate, and the ACLU has always acknowledged, government retains considerable authority to require or prohibit certain behaviors. We can’t urinate (or worse) in public, or  run around our neighborhoods nude. We can be ticketed for failing to buckle our seatbelts. We can be prohibited from exposing others to the passive smoke emitted by our cigarettes. Governments not only have the right but the affirmative obligation to impose quarantines to protect public health, and they have done so historically to control the spread of diseases like smallpox.

I agree with Krugman that the anti-maskers are playing identity politics. I wonder if they realize that the identity they are claiming is “selfish and ignorant.”

 

States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.

Not So Fast, Mississippi!

Doug Masson sort of summed up the Indiana General Assembly’s current legislative session when he posted “Indiana should change our slogan from “Honest to Goodness, Indiana!” to “Not so fast, Mississippi!”

Our lawmakers are back in session: engaging in childish vendettas against the lone Democrat who won statewide office, ignoring environmentalists and family farmers who oppose creating a constitutional right to use “effective” farming techniques (aka a “right to pollute” measure desired by the big corporate farms),  advancing a “religious” right to refuse service to LGBT customers, exempting charter and voucher schools from ISTEP….the embarrassing list goes on. And on.

Granted, Mississippi has a definite head start. One recent bit of news from the state that keeps “Hoosier” from meaning “bottom of the barrel”: a Justice Court judge in that state has just been accused of striking a mentally challenged young man and yelling, “Run, n—–, run.” (And yes, the elided word is just what you think it is.)

Reading about that incident was appalling enough, but as I read further, I discovered that in Mississippi, the only requirement to be elected judge of a Justice Court is a high school diploma. (There are those in the Indiana legislature who share Mississippi’s contempt for education, although we haven’t taken it quite that far. Yet.) After taking office, the judges are required to take up to six hours of training a year.

Six whole hours. Every year. That should compensate for the lack of college or law school.

It may seem that Mississippi has a lock on the batshit crazy medal–but back home in Indiana, we’re barely at the midpoint of a long legislative session. Don’t count Indiana out.

 

Mississipi–Still Number One

Every once in a while, I worry that voters in Mississippi will grow up, maybe read something other than the bible, and join the 21st Century. That would be really bad for Indiana, since in so many categories, Mississippi  is all that stands between Hoosiers and utter ignominy.

Silly me–I shouldn’t have worried.

Here’s an upcoming ballot initiative from the Magnolia state:

The State of Mississippi hereby acknowledges the fact of her identity as a principally Christian and quintessentially Southern state, in terms of the majority of her population, character, culture, history, and heritage, from 1817 to the present; accordingly, the Holy Bible is acknowledged as a foremost source of her founding principles, inspiration, and virtues; and, accordingly, prayer is acknowledged as a respected, meaningful, and valuable custom of her citizens. The acknowledgments hereby secured shall not be construed to transgress either the national or the state Constitution’s Bill of Rights.

Um–hate to tell you this, Mississippi voters, but saying this language shouldn’t be “construed” as violating the Bill of Rights would be a lot like saying that if I fatally shoot you, that shouldn’t be “construed” as murder.

“Principally Christian and quintessentially Southern….”

Too many Hoosier lawmakers would feel right at home.