Category Archives: Constitution

Subsidizing Religion

As I noted yesterday, I recently participated in an event sponsored by the Fort Wayne chapter of Hoosiers United for Separation of Church and State. (Hoosiers is part of the umbrella organization Americans United for Separation of Church and State). One of the concerns voiced both by Randall Balmer, the keynote speaker, and several of the panelists whose discussion concluded the event was the growth of educational vouchers, which have proven to be less about education and more about subsidizing religious institutions.

Those of us who have followed the “privatization” movement and the establishment and growth of educational voucher programs will recall that these programs were initially sold as a way to allow poor children to escape “failing” public schools. Unlike wealthier families, these children lacked the wherewithal to escape to the private schools that (we were assured) were doing a better job.

Several years later, the belief that private schools would improve educational outcomes has been pretty thoroughly debunked. But we are only now coming to realize that the real purpose of these programs was to send more of the nation’s children to religiously (and often racially) segregated schools, and to subsidize the already well-to-do.

Permit me to quote from a recent article from Chalkbeat.

Enrollment in Indiana’s Choice Scholarship school voucher program slowed in overall growth for the second year in a row last school year, new data from the state shows, but the number of higher income families using the program increased.

For the first time, more vouchers went to families making more than $100,000 than less than $100,000 this year.

It also turns out that, far from helping children escape “failing” public schools, “the majority of students in the program have never attended a public school.”

In Indiana, as in several other states engaged in siphoning off taxpayer money from public education, in 2025, the legislature authorized vouchers for all Indiana families regardless of income. While that added incentive won’t be in effect until next year, we can already see the effect of the program’s already generous preceding limits.

Approximately 7,000 students from families making more than $200,000 received a voucher in 2025-26, compared to around 5,400 in 2024-25 and 3,700 in 2023-24. More vouchers were also awarded to families in the $100,000-$150,000 and $150,000-$200,000 income brackets than in past years.

The number of vouchers given to students from families making less than $50,000 dropped from 16,000 in 2024-25 to around 12,000 in 2025-26.

And how much money are taxpayers transferring from our public school systems to these predominantly religious schools?

The state awarded $548 million for Choice Scholarships in 2025-26, according to the report, up from $497 million in 2024-225. The 2024-25 amounts were adjusted slightly because some students transferred out of their choice schools before the end of the year. The actual payments were around $491 million, according to this year’s report.

So we Hoosiers paid $491 million dollars to send students to “private” schools, 90% plus of which are religious (and a substantial portion of which are fundamentalist or close). Years of research confirm that those schools are not producing superior academic results; indeed, they are often are producing inferior results. Research also confirms that a number of these religious academies teach creationism rather than science, and use books that distort American history to accord with White Christian nationalist propaganda.

Now, we learn that We The People aren’t just subsidizing religion in contravention of the clear intent of the Establishment Clause, we are also subsidizing the already well-to-do. Let me repeat the central finding of that Chalkbeat report: more vouchers went to families making more than $100,000 than less than $100,000 this year, and 7,000 students from families making more than $200,000 received a voucher in 2025-26.

The underpaid teachers in our underfunded public schools are scrounging for supplies while We the Taxpayers are sending tuition dollars to families that can well afford to send their children to these religious academies. (Indeed, several studies have found that many families receiving vouchers previously had enrolled their children in these schools and had been paying the tuition.)

The Free Exercise clause of the First Amendment absolutely protects the right of parents to send their children to a religious school of their choice. The Establishment Clause–properly read–should prohibit the use of our tax dollars to subsidize that choice.

Public schools are constitutive of a public. In addition to teaching subject-matter, they should be laboratories of democracy–not underfunded and struggling while public dollars subsidize the wealthy and further erode what Randall Balmer accurately calls “America’s Best Idea: Separation of Church and State.”

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The Rule Of Law

Recently, thirty retired and sitting U.S. Judges borded a tour bus and traveled from western Pennsylvania through Ohio and into Michigan. As they traveled, they  handed out pocket constitutions, met with students and addressed a question too many Americans don’t consider: what the rule of law means to our everyday lives. The tour was inspired by a group of Polish judges who had responded to their government’s effort to control the judiciary by putting on their robes and marching through Warsaw. Judges from across Europe had joined them in what became the March of 1,000 Robes.

As two of those American judges wrote in the Guardian, “Our march was not about Democrats or Republicans, nor about defending particular judges or decisions. It was about defending the system that allows legal disagreements to be resolved according to law rather than political power.”

Depending upon how you count them, there are seven elements of the rule of law–elements that are absolutely essential to social functioning.

The first is the most widely known—the one most often cited by scholars and lawyers. That’s the rule that the same laws apply to everyone, that no one is above the law. The importance of equal application of the law to everyone has become obvious during the Trump administration. When elected or appointed officials aren’t restrained by the law, when We the People must obey the law but those in authority need not, the result is corruption, an abuse of authority to enrich those who consider themselves monarchs rather than servants of the people.

The second element is really another version of the first. If the law applies to everyone, then everyone is entitled to equality before the law.  In an ideal “rule of law” system (which I’ll admit we’ve never had), everyone would have equal access to—and equal treatment under– the laws of the land. Some people aren’t “more equal” than others. Under equal and proper application of the rules, an accusation of wrongdoing doesn’t relieve government of its obligation to demonstrate the validity of the accusations in a court of law before it can punish that individual.

The third element is accountability. We the People are entitled to know what our government is doing, and whether it is functioning in a constitutionally appropriate manner. In America, a major element of accountability is built into our constitutional structure—the “checks and balances” that haven’t been functioning properly thanks to Trump, a MAGA dominated legislative branch and a rogue Supreme Court.

The fourth element, as those touring judges remind us, is legal interpretation and application by a fair and independent judiciary. Most of our lower federal courts have been functioning  properly, restraining Trump’s flood of unlawful and unconstitutional executive orders. Unfortunately, our compromised Supreme Court has frequently failed to uphold those lower court decisions.

The fifth element is certainty. Laws must be clear and understandable in order to allow citizens to know what behaviors are expected of them. When you read that a law has been found “void for vagueness,” it’s because some legislative edict has failed to clearly explain what behavior is being banned or required. Legal certainty also requires continuity and predictability—meaning legislators should avoid frequent and dramatic changes in the laws that make it hard for citizens to keep abreast of their responsibilities.

The sixth element is really implied by the others: all citizens must have access to the legal system and the means of redress. All of us are entitled to legal representation and to fair trials presided over by impartial judges.

Finally, the seventh element echoes the protections in America’s Bill of Rights: the rule of law must protect the rights that have been found essential to human liberty—what we call “human rights.” As I used to tell my students, it’s important to recognize that the Bill of Rights doesn’t confer rights on American citizens—it forbids the government from interfering with the inalienable rights that we possess by virtue of our humanity. Those basic rights include freedom of speech and religion, the right to due process, the freedom to go about our lives without arbitrary interference, freedom from excessive, cruel or unusual punishments, the right to trial by jury, and the right to be treated equally by our government…in other words, the right to live under a regime that respects the rule of law.

Insistence on restoration of the rule of law is the essence of the NO KINGS protests. When rights become privileges, those with the power to withhold those privileges are monarchs. Kings.

Absolutely nothing is more anti-American.

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How To Reform The Court

Thanks to the increasingly horrific decisions being handed down by a Supreme Court dominated by ideologues, there’s wide agreement that–once Democrats retake the levers of federal power–Court reform should be among their first imperatives.

Before the ascent of the Roberts majority, there was great reluctance among scholars to endorse what they saw as somewhat drastic proposals to modify the Court. There was, however, broad acknowledgment of growing problems–the lack of sufficient justices to handle increasing numbers of appeals, concerns about aging. ..The recent performance of the court, with its shocking dismissals of longtime precedents, its abandonment of what were thought to be settled jurisprudential standards, and the obvious financial corruption of at least two of its members changed the conversation.

This rogue court has empowered the executive to the detriment of Congress, which–under our Constitution–was supposed to be the first among equals. Representatives of the people were invested with the power of the purse– to tax and spend– and the sole power to declare war. Presidents can veto bills, but Congress can override those vetoes. The Senate has the power to accept or reject treaties made by a president, and can reject nominations for executive or judicial offices. Congress can remove a president through impeachment, but presidents cannot remove members of Congress. 

As Norman Ornstein recently wrote, this allocation of Constitutional powers has been upended by this Court.

In a series of arrogant, ahistorical, anti-Constitutional decisions, the Supreme Court has arrogated to itself the power to defang Congress, undermine democracy, and unleash a corrupt, power-hungry, vindictive president with dictatorial powers (and few, if any, constraints), destroying the delicate checks and balances foundational to our political system.

The question is no longer whether reforms are imperative; the question now is: what should those reforms look like? Ornstein noted several being discussed:  expanding the court to 13 members to represent the 13 circuits (there were only nine when the current court size was set). Term limits are another.

Josh Marshall at Talking Points Memo recently listed the reforms he believes are needed. He agrees with Ornstein that expanding the Court is essential, although he says he’s not sure 13 would be enough, saying “there’s no serious reform that doesn’t first include adding justices because that is the only immediate way to break the corrupt power of the current majority.”

The key additional reform would be to have cases heard by randomly selected panels of judges. So perhaps there are 20 justices on the Court and cases are heard by panels of seven. It’s a bit like how it works on the appellate courts, but there would be no en banc review.

Why would this be good? It’s critical to make the outcome of cases less predictable. At the moment, the right knows they’ve got five or six “sure thing” votes for basically anything they want that isn’t completely absurd on its face. Meanwhile, the corrupt justices know they are entirely insulated from any accountability. This uncertainty about who will hear a case reduces the incentive to game the process with concocted cases. More importantly, I think it creates an incentive for justices to render opinions which are at least facially reasonable and rooted in law and history. Otherwise a different panel might come back a year or two later and just undo your decision.

Marshall also concurs with Ornstein about term limits, or at least a mandatory retirement age. And he says that some mix of  these reforms wouldn’t just provide immediate relief from the current Court’s out-of-control corruption, but would reduce the  incentives to pack the Court “the way the Federalist Society and the GOP did and which got us here in the first place.”

Marshall reminds us that Justices didn’t always stay on the Court until they died. A number left after serving five or six years.

If you’re one of a couple dozen justices and you don’t sit on every case and you’re either term-limited or aged out after a while many won’t want to stay forever. There’s just less incentive. Today an Alito or a Thomas more or less runs the country. If you’re into power, why would you ever leave? The ultimate goal is to reduce the overweening power of the Court and the individual justices which make it up and thus reduce the incentives to corrupt it in the first place.

Of course, nothing will stop this rogue court–or the predictable confirmation of lower-court judges picked by the Federalist Society– as long as the GOP is in control. We the People need to turn out and VOTE.

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I Guess We ARE Exceptional…

For as long as I can remember, political figures have expressed a belief in American “exceptionalism”–the conviction that the United States is inherently unique, exemplary, or morally superior to other nations. The concept originated with the early Puritan settlers who saw America as a “shining city upon a hill.”

The Trump administration’s embarrassing performance is making it exceedingly difficult to continue holding that arrogant belief, but the Pew Research Center has recently published a study that confirms it. In a way.

Researchers compared America to the one hundred and six other democracies around the globe, and found that we stand apart from those other democratic nations in several ways. Eight are particularly salient.

The first is that our Constitution is incredibly difficult to amend–far more difficult than those of other democratic nations. In its 237 years it’s been amended only 27 times, despite the fact that multiple surveys show Americans overwhelmingly favoring significant changes. (There is one democracy whose constitution is even harder to change than ours, the Federated States of Micronesia. It’s a former U.S. trust territory in the South Pacific with about 76,000 inhabitants.)

The second “exception” is our (newly contentious) award of birthright citizenship. Pew tells us that in three other democracies, most children born to noncitizen parents are eligible to become citizens, but they or their parents must formally apply for it, and another 25 limit birthright citizenship to children whose parents are legal residents, whose parents were also born there, or who belong to specific ethnic or religious groups.

I would argue that this “exceptional” stance on citizenship is a reflection of the fact that we are a far more diverse polity than most other countries, and that birthright citizenship has facilitated civic cohesion and economic performance. But it is, indeed, an exception.

The third difference has been far more damaging: no other democracy elects its President the way we do. As Pew reports, the U.S. is the “only country where the people vote for a special body – the Electoral College – whose sole function is to choose the president.” The popular vote for president doesn’t determine the Electoral College winner. As a result,  four times since 1828, someone has become President despite losing the popular vote.

Number four: the way we draw our legislative districts. Pew tells us that only 40 democracies besides the U.S. elect all or even a substantial share of their lawmakers from single-member districts. Most rely on multimember districts or else vote nationwide. Of the democracies that do rely on single-member districts, only the U.S. and Micronesia allow state legislatures to draw the district lines. In most, the main responsibility lies with independent commissions or with national election agencies.

In other words, we’re alone in our enthusiastic facilitation of partisan gerrymandering.

Number five: the 435 voting members of the U.S. House each represent about 802,000 people. That’s a higher “representation ratio” than any other democracy except India, raising the question of just how representative one Representative can really be. Pew tells us that until the 1910s, the number of U.S. representatives grew as the population expanded, but today’s House is the same size it was over a century ago, even though the population has more than tripled.

Number Six: Election Day has been a regular Tuesday since the mid-19th century, when the nation was primarily rural and getting to a polling place could require long trips. As Pew reports, “Sunday was out because many people were in church, and Wednesday was farmers market day.” We haven’t changed this, and as a result, we are one of 28 democracies  holding national elections on non-holiday weekdays. Sixty countries hold elections on weekends, and sixteen others hold elections on weekdays but declare them public holidays.

Number Seven: citizens living in the U.S. capital have no voting representation. People who live in all other capitals get to elect lawmakers just like everyone else. “Not so for the 694,000 residents of D.C., whose lone delegate to Congress can participate in committees but has no vote on the House floor.”

And finally, Number Eight: We have the strictest limit on our national debt–at least theoretically. Only the U.S. and Denmark legally define debt limits in absolute terms–and Denmark’s limit is so far above its actual debt that it’s largely irrelevant. That means the US has to borrow, which means we periodically have to raise the debt limit, a need that facilitates political game-playing, routinely contributes to government shutdowns, and has on occasion brought the country close to defaulting on the national debt.

We could learn from countries with more democratically workable systems–if we weren’t so enthralled by our “exceptionalism.”

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Who Gets To Be “We the People”?

There’s a lot to be said about the Supreme Court’s recent confirmation of the plain language of the 14th Amendment–and most of it has been said in the wake of the decision in Trump v. Barbara, a case that should never have been accepted by the highest court in the nation. Every lower court that heard the argument against birthright citizenship had found the challenge facially unconstitutional; even judges appointed by Reagan and Trump described the contrived arguments as ridiculous and expressed disbelief that the administration had even found lawyers willing to file the case.

The language of the Fourteenth Amendment isn’t vague: “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.” Period.

The fact that four Supreme Court Justices refused to say that an attack on the clear meaning of that language was blatantly unconstitutional should terrify us. (Kavanaugh upheld birthright citizenship because he said the Executive Order ran afoul of a statute–and that Congress could decide to change the statute.) Somehow, the obvious import of constitutional language  sufficient to persuade every other judge who ruled on the matter was insufficient to persuade Alito, Thomas, Gorsuch and Kavanaugh.

I’ve posted before about the enormous practical problems that would arise if birthright citizenship was overruled, but a recent essay in The Bulwark points to an even more foundational issue: Which comes first, the people or the government?

Democracy rests upon the idea that the people come before the government. First comes society, then comes the state. You may recognize this idea from the phrase “That to secure . . . rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Now, maybe that’s a fiction bequeathed to us by Hobbes and Locke and Rawls and the rest of them. Clearly, sometimes states make peoples rather than the other way around. But even if it’s not, ya know, historically and anthropologically true, it’s still a useful idea for understanding the relationship between people and their government. It’s the people’s government—not the government’s people.

As the essay points out, if we were to adopt the dissenter’s position and ignore the clear language of the 14th Amendment, it would fall to “some combination of the legislature and the executive to decide which people born in the United States are citizens and which are not.” When both the legislative and executive branches were under the control of the same party, that party could decide “that citizenship means whatever they want. Only people who own land can be citizens. Or only people who own trucks. Only people who own guns. Only left-handed people. Only the kinds of people who tend to vote for the party in power.”

But even if we’re not talking about a situation where hundreds of millions of people are un-citizened, we are talking about a situation where, over time, the electoral majority could push to ensure that its people are citizens and the people in the electoral minority are not—even if the electoral majority is in the numerical minority.

Four Supreme Court justices are at least open to this kind of theory.

The fact that those four Justices didn’t prevail–that ignoring the clear and unequivocal language of the 14th Amendment was a bridge too far even for John Roberts–is a relief, but the shock of these blatantly anti-constitutional dissents has increased the ranks of the lawyers and legal scholars who insist that this rogue Court must be reformed.

We have watched as ideologues in robes have enabled Trump in his racist pronouncements and financial grifts, allowing him to exert authority no other President has been allowed to exercise, and shielding him from criminal accountability. We have cringed as intellectually-dishonest Justices have ignored and overturned long-standing precedents with which they disagreed, heedless of the consequences. We have discovered that, for years, Thomas and Alito accepted undisclosed gifts and trips from moneyed interests with cases before the Court.

Calling this Court corrupt is not hyperbole.

This Court has done inestimable damage to the very concept of the rule of law. And as we have just seen, four of the current Justices are willing to go even further. (The irony of Justices who claim to be “textualists” ignoring the clear meaning of the constitutional text is gobsmacking…)

There is no longer any persuasive argument for the status quo, because there are no longer any functioning checks and balances.

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