Author Archives: Sheila

I Guess Consistency IS The Hobgoblin Of Little Minds…

Surprise! Indiana’s pathetic Attorney General evidently has come around to a view long expressed by civil libertarians and Planned Parenthood.

Rokita has joined members of the General Assembly in defending citizens’ right to control their own bodies. According to multiple media sources, he has issued a (non-binding) opinion in support of that position, which was admirably articulated by Martinsville Representative Peggy Mayfield:

Hoosiers should have the right to make healthcare decisions that best suit their families, their personal medical circumstances, and a broad interpretation of their religious beliefs – a concept that we’re disappointed to see Indiana University has rejected.”

The genesis of this remarkable turnaround–not just by our desperate-for-attention AG, but from a number of firmly anti-choice legislators–was Indiana University’s decision to require students and employees to be vaccinated in order to return to in-person instruction. In an opinion that most lawyers–and several members of the General Assembly–described as “a reach,” Rokita is claiming that a  bill passed during the last legislative session prohibits the University from doing so.

I will leave the legal arguments to practicing lawyers (noting only that IU is advised by some pretty excellent legal experts and that I have never heard Rokita described as a particularly skilled lawyer) , but I can’t restrain myself from focusing on the unbelievable hypocrisy displayed by that quoted position and Rokita’s pious support for the “fundamental liberties” protected by the Bill of Rights.

The statement that Hoosiers should have the right to make healthcare decisions that best suit their families and religious beliefs is, without a doubt, correct. It is precisely the point of the pro-choice position, which I will note is not a “pro-abortion” position. The issue is not what decision is made–it is who has the authority to make it.

In both cases–pregnancy termination and vaccination–the decision should rest with the individual involved.

That does not mean that institutions like IU cannot act to protect the lives and health of their students and employees; it means that individuals who choose not to be vaccinated and who do not fall within permitted exceptions to IU’s policy may choose not to attend–just as women who make a personal medical choice inconsistent with the teachings of a particular religious institution may find themselves unwelcome there.

In neither case should state or federal government agencies or legislative bodies get involved. They certainly may not make those decisions for those individuals.

What is particularly ludicrous about this sudden concern for an individual’s right to control of his or her own body– coming as it does from rabidly “pro life” folks– is that it is so inconsistent with their willingness to trample those same constitutional protections in order to appeal to constituencies displaying absolutely no regard for the protection of personal autonomy.

Ironically, Indiana University’s decision to require vaccinations is self-evidently a “pro life” decision. The University is following the science and acting to protect the life and health of the University community. (Of course, the people they are protecting have already been born, which evidently makes a difference…)

When Ralph Waldo Emerson wrote: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines,” the point he was making was that only small-minded people refuse to rethink their prior beliefs.

Perhaps Indiana’s Attorney General isn’t as small-minded as he has seemed? Perhaps he is re-evaluating and rethinking his belief that government should get to decide what  citizens–including female citizens– can do with their bodies?

Or, on the other hand, perhaps he is simply too dim to recognize the inconsistency of the various positions he chooses to take in the course of his constant political pandering.

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When Good Ideas Get Bad Slogans

Among so-called “woke” Americans, certain verities seem obvious–so obvious, in fact, that it becomes easy to believe that most other people see things the same way, and to dismiss folks who fail to agree as dishonest or racist. As a result, they downplay or entirely ignore the need to educate and communicate, a need they often denigrate as “PR,” with the result that they often end up undermining support for the reforms they want to see.

Perhaps the most vivid example of this phenomenon was the slogan “Defund the Police,” which gained currency after the murder of George Floyd. A March USA Today/Ipsos Poll found that voters opposed “defunding the police” 58-18.

When most Americans hear “defund,” they hear only “take money away.” They don’t hear “change funding formulas to supplement policing with social services so that police can be freed up to focus on actual criminal behavior.”

The repeated use of that unfortunate phrasing allowed a variety of political candidates– Republican and Democrat alike–to reinforce a number of widely accepted misconceptions about crime and policing. The Brookings Institution recently addressed seven of those misconceptions, which it called myths.

 The most obvious–and intellectually dishonest– was the assertion that “defunding” really meant “abolish.” Granted, the “defund” language was misleading, but only the most partisan observers actually thought the movement wanted to eliminate policing.

More understandable–if equally incorrect–was the belief that reducing the presence of police would usher in an increase in social disorder.

Another misconception is that police forces are what maintains order. However, studies have found that the best tools to establish peaceful societies are equity in education and infrastructure. Indeed, research shows that lack of education and illiteracy are some of the most significant predictors of future prison populations.

When it addressed the notion that police protect society from violence, the Brookings article included some rather shocking (at least to me) data. Evidently, research shows that 70% of robberies, 66% of rapes, 47% of aggravated assaults, and 38% of murders go unsolved each year–a rather daunting catalogue of police performance.

Research also rebuts the belief that spending money on community programs wouldn’t affect crime rates; the article links to studies demonstrating–among other things– that individuals who receive a quality education are less likely to become involved in the criminal justice system.(interestingly, the article also notes that police officers who have had more education are less likely to be the recipient of misconduct complaints.)

And although there is a widespread belief that police work is primarily focused on crime prevention, that also turns out to be a misconception.

There is minimal evidence that police surveillance results in reduced crime or prevents crime. For instance, research showed 90% of the people that were stopped in the NYPD’s controversial stop and frisk program were not committing any crime. While it is true that police do apprehend individuals that violate the law, this is one of several components of their responsibilities.

Finally, the article debunks the notion that “Defund the Police” was simply an emotional response to the appalling sight of a police officer killing George Floyd.

Some opponents of cutting police budgets view the movement as an emotional response to police misconduct rather than a well-thought-out campaign. However, a study with 60 years of data indicates that increases in spending do not reduce crime. Which begs the question, how is 60 years of a failed objective any better? Yes, the movement gained attention because of tragic events in 2020, but the evidence supporting the movement is based on hard data and proven methods.

Police reform is long overdue,  and we have had thousands of opportunities to make the appropriate changes. In 2020, the murder of George Floyd garnered national attention that has caused many to take a long, hard look at our democratic systems, cultural identities, and the necessary steps towards equal protection. We do know that more traditional policing is not the answer.

Those in the legal community who have long been aware of the research and the problems with current police culture were appalled by the “defund” slogan, knowing that–rather than calling attention to mountains of data and the necessity of different approaches–it would only antagonize police and frighten the public, rather than communicating the need to alter a currently ineffective approach to public safety.

People who really want change rather than an opportunity to pontificate understand that language matters.

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Constitutions And The Future

One of the academic listservs in which I used to participate was devoted to law and courts-both in the U.S. and internationally. Discussions contained a healthy dose of constitutionalism. I say I “participated,” but I mostly lurked–reading the commentary posted by notable scholars in the field, and learning a lot.

One fascinating exchange a year or so ago was triggered by discussion of a case brought by a group of  American children who claimed that government’s inadequate measures to combat climate change deprived them of their implied constitutional right to a livable environment. The case was thrown out by the liberal Ninth Circuit in January of 2020, and someone posted a question to the listserv, asking whether there were any constitutions around the world that would have been more protective of what the questioner termed “inter-generational equity.”

It turned out that more than 50 constitutions have such “inter-generational equity” clauses. Responses also linked to several “protection of the environment” clauses among the 166 currently-in-force constitutions that say something about that topic. 

As if to emphasize the salience of the issue, it was during the listserv discussion that the German Federal Constitutional Court decided a case in which it rejected the then-current plans of the German government to meet climate targets. The decision obligated the German government to rework its plans, and commence planned measures sooner, if not immediately, so as to avoid putting the burden of meeting environmental targets on future generations.

The press release of the Court (in English) is here.

As one scholar opined:

The decision invoked the duty to protect positive rights as part of the obligation to protect negative rights. Or, less abstractly, the decision argues that the only way to protect a negative right (the right to life, toward which the state has the obligation to refrain from interference) is to also protect positive rights (the right to health and the positive side of the right to life, both of which oblige the state to engage in affirmative protection). Other courts have understood the protection of positive rights as necessary for the protection of negative rights like this – particularly courts in the global south like India, Colombia and South Africa – but it has not been so common for global North courts to make this link. This is a huge leap for Germany.
The decision explicitly engages in the intertemporal assessment of rights protection. It weighs the burden on the liberty of people in the future when tough climate goals will kick in against the liberty of those in the present who give themselves a break by putting hard decisions off. And the Court finds that the current government assesses this balance wrongly by not leveling out the burden across generations. The Court therefore defends the intertemporal protection of liberty. Again, a first.

Lest you think that the German Federal Constitutional Court has taken a great leap off into judicial activism in defending against climate change, however, it’s important to note the language of the Basic Law with which they are working. Article 20A of the constitution says the following:

“Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”

In short, the German constitution explicitly requires the state to engage in intertemporal assessment (“mindful of future generations”) and also that the state has an affirmative duty to protect the “natural bases of life.” The Federal Constitutional Court was giving life, so to speak, to this provision and not inventing a right to environmental justice out of thin air. That said, the reasoning of the Court is nonetheless remarkable, especially if the two principles I mentioned above are going to become basic principles of interpretation with regard to other rights as well.

How would American constitutional interpretation change if our courts were required to take intergenerational justice into consideration?

Somehow, I find it hard to believe that our so-called “right to life” Justices would recognize such measures as a necessary consequence of their piously declared “reverence for life,” a reverence that apparently terminates at birth. 

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Forgiveness

One of the problems inherent in all public policy discussions is the degree to which various aspects of our communal lives are connected–and the even greater degree to which those connections are unseen and/or under-appreciated.

As an example, a recent study from the Brookings Institution detailed the multiple ways in which student loan debt affects Americans, and illustrates the way lack of understanding of those connections distorts discussion of proposals to forgive at least some portion of it.

There is one element of student debt that is widely understood, of course–its size. In the last quarter of 2020, the Federal Reserve calculated the national student debt at $1.7 trillion, spread across 45 million borrowers. That is a monumental amount, and a monumental burden on both the borrowers and the economy.

Research suggests that forgiveness of some or all of that burden would prompt a variety of economically consequential behaviors–everything from eating out more frequently to  making large purchases that the level of debt currently doesn’t permit: houses, cars, appliances and furnishings. Respondents to one survey also cited returning to school, and saving more for emergencies.

In a study cited by Brookings,

Higher amounts of student debt forgiveness were associated with other investment behaviors like starting a business or savings for a down payment on a home, as well as a willingness to spend more on entertainment….

These results [of the study cited] show two things. First, they show how extensively student debt affects debt holders. The responses to this experiment indicate that student debt is strongly influencing decisions that can have large implications for household economic stability (e.g., emergency savings) and mobility (e.g., saving for a down payment on a home, starting a business). In addition, student debt may be altering the structure of families themselves. Roughly 7 percent of respondents reported that they would be more likely to get married (results not shown) or have children if their student debt were forgiven, indicating that this debt burden is affecting even fundamental decisions about debt holders’ life trajectories.

Second, these results show that the level of student debt forgiveness matters. In particular, setting a student debt forgiveness target too low may not lead to broad-based changes in households’ economic behaviors. However, setting a student debt forgiveness amount at a point where the average debt holder would have more than a quarter of their debt forgiven may yield large changes in savings behaviors, human capital investments (e.g., returning to school), and business starts, without leading to large changes in labor supply.

It is undisputed that even a modest amount of debt forgiveness would remove what is currently a large drag on the economy. There are, obviously, other considerations: many people who have dutifully paid off their loans object to what they see as unfairness of giving later-comers relief that was unavailable to them. Others argue that any forgiveness should prioritize low-income borrowers, and avoid “bailing out” higher income folks.

Going forward, my own preference would be to replace the current, complicated student loan environment with a program that pays for at least two years of college in return for a year or two of military or civic service (a la Americorp).

Whatever the policy approach, we need to recognize that debt of 1.7 trillion dollars constitutes an enormous drag on Amreica’s economic growth. It isn’t simply an impediment to business formation–it prevents many individuals from taking lower-paying but gratifying jobs in the nonprofit sector– and it is a significant fiscal and psychic burden to individuals. It has become unsupportable.

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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.

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