Author Archives: Sheila

The Fourteenth Amendment

Here is the talk I will be delivering to the Danville Unitarians this morning. It’s longer than my usual posts, so–unless you feel the urge to visit or revisit the 14th Amendment– feel free to skip it!

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Thanks to our current political environment—and especially to an argument that Section 3 of that Amendment requires barring Donald Trump from the ballot—we’ve seen an explosion in references to the 14th Amendment to the U.S. Constitution. But the 14th Amendment has been incredibly important for a long time, for reasons having nothing to do with Section 3. Together with the 13th and 15th Amendments, the 14th is credited with strengthening and “reframing” the Constitution and Bill of Rights. Together, they are frequently referred to as our Second Founding.

It’s presumably due to that current interest that I was asked to talk about the 14th Amendment today, so you will get the equivalent of my class lecture on the subject. I apologize in advance…

The 13th Amendment, as you undoubtedly know, outlawed slavery, and the 15th forbid abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” Together with the 14th, they are the Reconstruction Amendments.

Of the three, the 14th Amendment is the lengthiest and most ambitious. Thanks mainly to the Equal Protection clause, it is now considered to be a part of the Bill of Rights.

The first Section is the one with which most of us are familiar; It reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Congressman who drafted the 14th Amendment, John Bingham, was very clear that his intention was to make the Bill of Rights binding on the states. Most Americans don’t realize that, prior to passage of the 14th Amendment, the Bill of Rights limited only the federal government. Bingham insisted that his language—“privileges and immunities” encompassed the entire Bill of Rights, and made them binding upon the states, and the contemporaneous arguments for and against passage tended to focus on that stated outcome.

Nevertheless, after the 14th Amendment was passed, it took the Supreme Court a number of years and a collection of discrete cases to apply most of the constraints of the Bill of Rights against state and local government actors, a process called (for some reason) incorporation.

Prior to passage of the 14th Amendment, state and local officials could “establish” religions, prevent you from exercising your right to speak freely, engage in blatantly discriminatory behaviors and other activities that violated the first 8 Amendments of the Bill of Rights.

An important clause in Section One established birthright citizenship—which has recently become something of a flashpoint for the considerable number of racists and self-defined “patriots” who want to close America’s borders and prevent the children of immigrants from becoming American citizens. Since most, if not all of the people arguing against birthright citizenship are not descended from Native Americans, the hypocrisy is rather noticeable.

The Second Section of the Amendment is historically interesting, but generally obsolete—it forbids denying the right to vote to any “of the male inhabitants” of a state who have reached the age of 21 and are citizens. Since passage of that language, we’ve extended the vote to women and lowered the voting age to 18.

The Third Section of the 14th Amendment is the one that has recently become relevant to the current election cycle. It reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Supreme Court of the State of Colorado concluded that the language of Section 3 precludes Donald Trump from appearing on Colorado’s ballot. That decision is on appeal to the U.S. Supreme Court, which will now have to decide to affirm or reject Colorado’s analysis–whether Section 3 bars Donald Trump from appearing on all the nation’s presidential ballots. It certainly seems straightforward; in order to evade the clear language of Section 3, the Court would have to find that the President wasn’t an “officer” of the United States, or that the provision isn’t what lawyers call “self-executing”—that is, that it requires Congress to pass a bill to make it operative. Neither argument passes the smell test. The Court could also find that Trump didn’t engage in insurrection, a finding which would be equally unpersuasive. Given the Justices’ performances at the oral argument on this case, I think we can safely assume that they will find a way to duck the clear implications of the Constitutional language.

Finally, Sections 4 and 5 confirm the validity of the national debt and authorize Congress to enforce the provisions of the 14th Amendment by “appropriate legislation.”

The most important operation of the 14th Amendment—at least in my opinion—is that it constitutionalized the Declaration of Independence’s promise of freedom and equality. Scholars refer to the Reconstruction Amendments as America’s “Second Founding,” because passage of the 13th, 14th and 15th Amendments transformed the nation’s charter from what was really an aggressively pro-slavery document into one that prohibited chattel slavery; it changed it from a document that was silent on the Declaration’s call for equality to one that granted equal citizenship to everyone born on American soil; and it changed the Constitution from a charter that stood aside while state governments abused individual rights to one that protected these rights against state government abuses.

A constitutional insistence on “equal protection of the law” effected a fundamental change in American politics and society. As historian Eric Foner has explained, no state gave Black people full legal equality before the Reconstruction era and the 14th amendment. Supreme Court decisions over the last century – outlawing racial segregation, decreeing “one person, one vote”, and many others – have rested on the 14th amendment. Foner and many other historians think the 14th Amendment should be seen as a form of “regime change” — an attempt to change the United States from a pro-slavery regime, which is what we had before the Civil War, to one based on equality, regardless of race. That’s a pretty fundamental change. Historian Heather Cox Richardson has written that the 14th Amendment established the power of the federal government to defend civil rights, voting, and government finances from a minority that had entrenched itself in power in the states and from that power base tried to impose its ideology on the nation.

The Fourteenth Amendment prevents government from denying citizens the “equal protection of the laws.” What constitutes “Equal Protection” can be complicated, because governments need to classify citizens for all kinds of perfectly acceptable reasons. For example, the law draws distinctions between children and adults, between motorists and pedestrians, and between smokers and non-smokers, and those classifications don’t run afoul of the 14th Amendment.

The Equal Protection doctrine is intended to prevent government from imposing inappropriate classifications; those based on criteria that are irrelevant to the subject of the law, or that unfairly burden a particular group.  The general rule is that a government classification must be rationally related to a legitimate government interest. A requirement that motorists observe a speed limit is clearly a classification related to government’s legitimate interest in public safety. A law that imposed different speed limits on African-American and Caucasian drivers just as clearly would be illegitimate.

Complicating it further, although laws can be discriminatory on their face (for example, a law saying only white males can vote); these days, laws meant to discriminate are usually crafted to achieve that result by design. That is, they are drawn to look impartial on their face, but to have a discriminatory effect. A rule that all firefighters must weigh over 180 pounds would prevent many more women from being firefighters than men, despite the fact that weight is not an indicator of the ability to handle a fire hose or climb a ladder.

There are also situations in which genuinely neutral laws are applied in a discriminatory fashion. The phrase “Driving While Black” grew out of statistics showing that some police officers were disproportionately stopping black motorists for speeding.

The courts will look more closely at classifications that burden constitutional rights, or disadvantage members of groups that have historically been subject to discrimination. Lawyers call that process of taking a closer look “heightened” or “strict” scrutiny.

The Equal Protection doctrine is intended to prevent government from disadvantaging individuals and minorities of whom majorities may disapprove. Equal Protection guarantees—like all the other provisions in the Bill of Rights—  apply only to government actions. Civil Rights statutes address private-sector discrimination. Here in Indiana, for example, our civil rights statutes don’t forbid discrimination on the basis of sexual orientation or gender identity, so unless you live in a city or town with a civil rights ordinance, private companies in your town can fire people for being gay, and restaurants can refuse to sell pizza to someone perceived to be gay.

Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. American laws are supposed to be based upon a person’s civic behavior, not her gender, race or other identity. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are entitled to full civic equality.  That guarantee of equal civic rights has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. As we are seeing, it has also motivated a considerable backlash from people who see equality for “those people” as an attack on their “rightful” social privilege.

Critics of Equal Protection often argue that equality and liberty are at odds: that an individual’s liberty includes the right to dislike or disapprove of others and that true liberty would include the right to act on those negative opinions. What the 14th Amendment says, in essence, is: fine. Dislike Black people, or Jews or Gays. Don’t invite them to dinner. Tell your daughter not to date them. But you may not ask government to pass rules that discriminate against them or that prevent them from  participating as equals in the political system or civil society.

With that, I will conclude this admittedly very superficial description of the 14th Amendment. I’m happy to answer questions!

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Attacking Education

Indiana’s terrible legislature is–as usual– considering several terrible bills. One of those is a thinly-veiled attack on Hoosier higher education.

Senate Bill 202 would establish government oversight of tenure and promotion for all faculty teaching at the state’s public universities. The bill would require those institutions to “deny, limit, or terminate continued employment to faculty if certain conditions related to free inquiry, free expression, and intellectual diversity are not met.”

The author of S.B. 202 wasn’t taking any chances that a classroom discussion violating his quixotic definition of “intellectual diversity” might go unchallenged; SB 202 also establishes a reporting system encouraging students and employees to file complaints against any faculty member they feel is failing to meet the new pro-conservative conditions. It also adds two additional alumni representatives to university boards of trustees.

The Indianapolis Star has published an opinion piece that describes the bill and its likely effects: the departure of competent faculty and an enforced intellectual conformity, a la DeSantis’ Florida. The article reported on the real motives of the bill’s supporters and the political dishonesty involved.

The bill is similar to proposals advanced in other majority-Republican state legislatures — in Florida, Iowa, Louisiana, North Carolina, North Dakota, and Texas — that seek to establish political oversight of tenure and promotion procedures, curriculum planning, and student services at public institutions of higher learning. Such initiatives are part of a concerted effort to curb the expansion of diversity, equity, and inclusion policies and programs that many colleges and universities across the country have adopted.

Sen. Spencer Deery, R-Lafayette, the bill’s author, has cited partial and unspecified polling data in a number of press reports that purport to show 46% of right-leaning students not feeling welcome to express their views on college campuses in Indiana. In fact, no such Gallup survey results exist.

The figure of 46% does, however, show up in a 2022 study conducted by political science professors at the University of North Carolina (and much cited by conservative advocacy groups) that seems to confirm Deery’s worries. But that study only surveyed students across eight institutions in the UNC system (and even there, with a sample size of 500 students, a mere 2.5% of the student population), not in Indiana.

Of course, as the author notes, even if a more rigorous survey produced the same results, S.B. 202 wouldn’t alleviate the problem. Instead, it would turn Indiana’s campuses into incubators of political correctness and intellectual conformity and would replace the scholarly and professional basis for employing faculty with political litmus tests.

The article ends with a pertinent question: why is a political party that holds a supermajority in the state legislature, the governorship, both U.S. Senate seats, and 7 out of 9 seats so alarmed by the prospect of actual education on the state’s college campuses?

I think we all know the answer to that question.

All available polling and research confirms that the more educated voters are, the more likely they are to vote, and the more likely they are to vote Democratic.

Here in Red Indiana, any threat education poses to GOP dominance will be delayed, thanks to gerrymandering and the lack of a mechanism to overcome it (not to mention the ongoing “brain drain” that sends our brightest graduates to states more congenial to that pesky diversity and inclusion), but our legislative overlords are looking down the road. The rural districts that reliably send MAGA Republicans to the Statehouse are emptying out, and even in the hinterlands, some of Indiana’s small towns are showing signs of dreaded culture change–welcoming immigrants and other “diverse” town-folks.

Several political observers have noted that MAGA Republicans are prone to projection–that when they hurl an accusation at Democrats or “Never Trump” Republicans, they are usually accusing their targets of behavior of which they themselves are guilty. Senate Bill 202 is an effort to indoctrinate students attending the state’s institutions of higher education; anyone who has been paying attention is aware that Republicans have been insisting that teachers, librarians and professors are “indoctrinating” students by introducing them to subversive “liberal” ideas.

The problem is, indoctrination is the antithesis of genuine education.

Educated individuals can recognize complexity, live with ambiguity, and discuss, negotiate and compromise with people who disagree with them. Today’s MAGA voter rejects complexity, is terrified by ambiguity, doesn’t understand the concept of negotiation and refuses to compromise. To be a MAGA Republican means to believe in a black and white universe threatened by any rapprochement with fellow-citizens who differ.

Education and intellectual inquiry are the enemy. Hence S.B. 202.

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Defining Our Terms

A recent headline asked the wrong question. The TIMES headline read “America’s Becoming Less Religious. Is Politics to Blame?”

The correct question is: has politics become religion?

The article begins with statistics. It quotes results from Gallup, Pew, and PRRI, showing that the percentage of Americans who identify with any religion is in steady decline, “as are those who believe in God, the devil, Heaven, Hell, or angels; who say religion is a very important part of their life; maintain membership in a church or synagogue; or attend church regularly.”

The article proceeds to examine the possible causes of that decline.

Economic prosperity and functional governance (both wonderful things) can weaken our felt need for religious resources. For example, much of what religious institutions historically provided America’s citizens—education; counseling; support for the needy; marriage options; entertainment; and explanations for how the world works—are increasingly provided by the state and the market. Church participation has become more optional, just one more activity middle-class families do in the suburbs—or not.

Another factor is simply the inevitable consequence of living in an increasingly cosmopolitan, multiracial democracy where liberal values of tolerance are celebrated. Diverse neighborhoods, schools, and civic institutions force us to confront the reality that there are wonderful people out there who don’t share our religious beliefs. Our children will be friends with one another, maybe even spouses. Rising generations find the divisive dogma of many religious groups increasingly strange, if not offensive.

There is another explanation that the article explores: politics.

For the past few decades, sociologists and political scientists have demonstrated across multiple studies that as Christianity has become increasingly aligned with right-wing conservatism and the Republican Party, Americans who might have otherwise identified as Christians on surveys are now identifying as “nothing in particular” or “none.” The conclusion many seem to be drawing is “If this is what it means to be religious, count me out.”

We see quite a bit of that reaction on this site. And as the article notes, that reaction is mirrored by political conservatives, who have become increasingly likely to identify with religion because they see it identifying them as Trump supporters–actually (although the article doesn’t explicitly acknowledge it) as White Nationalists. White Americans identifying as “White Evangelical,” see the label itself as meaning “pro-Trump MAGA conservative.”

The article assumes that “This is another way that politics has driven secularization”– that the association between right-wing politics and religion driving young progressives away from religion is also secularizing religious folks. It compares the former phenomenon to the resurgence of Russian Orthodoxy in Putin’s Russia, where the number of Russians who identify with Russian Orthodoxy has grown, but the growth doesn’t reflect a rise in religious practices like church attendance and prayer. Instead, it reflects a rise in nationalistic fervor, ethnocentrism, and a fondness for the old Soviet Union and Stalin.

And that brings me back to my long-ago interpretation of Soviet Communism, which I saw not as an economic theory–at least, not primarily–but as a religion, a belief system.

The linked article is interesting, and as far as it goes, informative and factual. But it doesn’t grapple with what I see as the most important question, namely what is religion? I’d define it as a belief system based in faith rather than on demonstrable fact– a belief system that elevates certain values and behaviors on the basis of convictions that are simply not subject to empirical confirmation.

How is a belief that White Christians are superior beings entitled to pre-eminence in American life any less “religious” than a belief in the existence of heaven or hell?

You can undoubtedly come up with numerous examples of what we usually call “ideological” beliefs. What the studies cited in the linked article really demonstrate is that–at least in today’s contentious culture– “religion” and “ideology” have become virtually indistinguishable. And that’s a problem, because what we have come to call “culture war” is really a debate about whose belief system should be imposed on everyone else.

Political scientists tell us that laws are legitimate when they are agreed to by majorities of citizens holding very different world-views: for example, Americans of virtually all beliefs agree that murder, robbery and rape are wrong, and should be punished. (Although we still debate the definitions of even those terms.)

Americans aren’t really getting “less religious,” but they are admittedly getting less traditionally religious. Political ideologies have morphed into a different kind of religion. One is grounded in respect for pluralism and equal liberty of conscience. The other is intent upon protecting what they believe to be their god-given superior social status.

Compromise seems unlikely.

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Age And Skill

I am so sick of the focus on Joe Biden’s age. In the interests of transparency, I will admit to being two years older than the President. I do forget names and dates more frequently than I used to (although I never had much of a memory), but then, like Biden, I have a lot more material to remember and a lot more experience to draw on than younger folks do.

Some people are senile at 50. Some never are. My grandmother, who died just two months before her 100th birthday, was mentally coherent to the end. My husband is 91 and still sharp (so is Willy Nelson, who’s also 91 and still performing). Donald Trump, who is a mere four years younger than Biden, seems to have been born with dementia. (Trump has always been incoherent, so his followers evidently haven’t noticed the extent to which he is visibly continuing to decline.)

The people trying to defeat Biden by claiming he is age-impaired are people who have no persuasive argument with his performance and are desperate to find something–anything–they think will work. The Democrats who are publicly panicking over the issue–or worse, insisting he should allow someone else to run– are providing them aid and comfort. The truth is, Joe Biden has been a great President. (My middle son says Biden is the first person he’s voted for who has exceeded his expectations.)

I thought about the issue of performance when I viewed a powerful ad run by a candidate for U.S. Senate in North Dakota, of all places, sent to me by a (formerly Republican) friend who pointed out that the picture painted by this particular candidate is applicable everywhere, not just in the state of North Dakota. I am going to shorten this post in an effort to encourage you to click through and watch it, because it is a powerful indictment of the “wolves” who have hollowed out America’s middle class and who are attacking Biden because, under Trump, they will be able to continue preying on America.

Joe Biden has done more than any President since FDR to combat the wolves and shore up the middle class, to grow America “from the middle out,” as he likes to say. If the linked video speaks to you, you are a Biden voter! (If, on the other hand, you are throwing your lot in with the wolves, you are clearly a MAGA person…)

Let me be clear (as if I haven’t been!). Given the choice Americans will in all probability face at the ballot box, I will vote for Joe Biden. I would vote for him even if he was in a coma. The only genuine issue with his age isn’t senility–he is clearly in possession of his faculties, and his superior performance as President has been enhanced by the depth of his knowledge and experience and the connections he’s developed over the years that have allowed him to surround himself with highly competent people.  The only downside of his age is an actuarially increased possibility of death sometime during the next four years– and a Kamala Harris Presidency would still be infinitely preferable to the disaster–for America, for democracy, for world peace–that Trump represents.

Watch the video.

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Evidently, The GOP War On Cities Isn’t Limited To Indiana

When the Indiana legislature is in session, residents of urban areas don’t feel safe–and there is ample reason for our angst, as this blog has repeatedly documented.  A sad side effect is currently playing out in the Indianapolis City County Council, where the Democratic majority is trying to quiet one Counselor’s expressions of anger over the arrogance of a legislator who says he knows best what sort of transit city folks are entitled to. The Democratic caucus is evidently worried that open resistance will make the legislature even harder to deal with.

The bottom line, of course, is that Hoosiers–both city dwellers and rural folks–are absolutely helpless to influence our legislative overlords. Thanks to extreme gerrymandering, legislators in Indiana choose their voters, not the other way around, and Indiana lacks the ability to mount referenda or initiatives. We are truly subjects, not citizens.

There’s no mystery about why.

Our Red state legislature makes war on the cities that provide virtually all of the tax dollars they spend–the cities that are demonstrably the economic engine of the state–because cities are where Democrats live and vote.

It turns out that Indiana is not the only retrograde Red state engaging in these tactics. According to a recent article in The American Prospect, Republican-led states have now taken to blocking liberal cities from even thinking about legislating on behalf of their residents.

There’s nothing historically novel about America’s politics dividing along urban vs. rural or cosmopolitan vs. parochial lines. One has to go back a full century, however, to find a time when the nation’s political fault lines ran so clearly along the city/country divide as they do today.

“Those people” tend to live in cities, and they tend to vote Democratic.

 In the 1920s, cities were too Catholic and Jewish and freethinking for the countryside’s Protestant traditionalists, and new urban-based media (radio, movies) brought the taint of the new to rural communities whose susceptible young people were lighting out for the cities. Today, culture wars and economic conflicts also play out largely along urban/rural lines. Of the top 35 cities in America by population, only four have Republican mayors, and one of those, Eric Johnson of Dallas, Texas, was elected as a Democrat and switched parties in 2023.

State level lawmakers may not be the brainiest of people, but a number of them have figured out that–as the saying goes–there’s more than one way to skin a cat.

Since Republican legislatures and governors can’t stop city residents from electing Democrats, however, they’ve devised a whopper of a Plan B: negating majority rule in those areas by denying those cities the right to enact any laws or promote any policies that run counter to the preferences of the governor and the legislature.

The article lists a number of examples. North Carolina’s legislature nullified a Charlotte ordinance protecting LGBTQ rights. When the city of Birmingham passed a municipal minimum-wage statute, the Republican state legislature outlawed municipal minimum-wage laws.

More recently, majority-Black and majority-Democratic Jackson, Mississippi, has had a crime problem, so the Republican Mississippi state legislature responded by enacting a law that stripped criminal trials from the jurisdiction of Jackson courts and established a new group of courts, with judges to be appointed by the state’s Republican chief justice. When Democratic Nashville established a civilian review board for its police, the Republican legislature and governor passed a law that banned civilian review boards. The underlying racism in such preemptions is never very far from the surface. The Republican neo-Dixiecrats who dominate Southern legislatures can no longer keep Blacks from voting, but they’ve found a way to keep Blacks, in the cities where they constitute clear majorities, from governing.

And of course, there’s always Texas.

In the past, the state had enacted laws to stop municipalities from creating local ordinances that protect tenants facing eviction and to stop cities and counties from regulating fracking within their boundaries. Last summer, however, the Texas legislature passed and Gov. Greg Abbott signed into law HB 2127, which its sponsors gloatingly called the “Death Star” bill for local governments. The law prohibits municipalities from enacting local ordinances that go beyond any state laws that deal with agriculture, business and commerce, finance, insurance, labor, natural resources, occupations, and property.

The sweeping law negated local statutes like those that Dallas and Austin had enacted to require employers to give water breaks to construction workers in torrid summers. It further forbade cities from enacting any such ordinances that climate change or conscience might require. It’s so broad that it’s not clear just what kind and how many local laws and regulations it would negate.

Knowing that Indiana isn’t alone really doesn’t give me any comfort.

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