Category Archives: Constitution

Free Speech For Those Who Can Afford It

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.

 

 

 

 

Back To Basics

There is one basic question that every society must answer: what is government for? What is its purpose and what are its proper limits?

Whether you want to call America’s current, vicious civic battles a “culture war,” or an assault by theocrats on the rest of us, one thing is clear: those waging that battle–the “warriors” who are intent upon using the power of the state to impose their beliefs on everyone else–have utterly rejected the libertarian premise upon which American government rests.

Libertarian, in this usage, refers to the nature of liberty, not today’s political ideology.

There is great wisdom in what has been dubbed the “libertarian principle.” Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. That approach rejected notions of monarchy and the “divine right” of kings (the overwhelming authority of the state) in favor of the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.

Government was tasked with protecting that liberty.

The libertarian principle undergirds the U.S. Constitution and Bill of Rights, and its operation has been persuasive world-wide. (If we really wanted to make America great again, we would revisit and revive our allegiance to it.)

Those who crafted America’s Bill of Rights believed that individuals are entitled to basic human rights simply by virtue of being human–and they understood human rights to require respect for individual moral autonomy. The term “limited government” is recognition of that principle–“limited” isn’t a description of size, it is a limit on authority, a limit on the power of the state to invade and disregard the individual’s right to self-determination.

Handing government the power to prescribe citizens’ moral “dos and don’ts” is the antithesis of genuine liberty.  If those in positions of power and authority can prescribe your life choices, and punish any deviation from officially sanctioned personal conduct, you are a subject, not a citizen–and you definitely are not exercising moral choice.

So what role should government play? What is implied by that libertarian construct?

Allow me to restate it: Individuals should be free to pursue their own ends–free to “do their own thing”–so long as they do not harm the person or property of another, and so long as they are willing to accord an equal liberty to others.

Those caveats are important, and they require both action and restraint by government.

One of the most obvious purposes of government is to prevent some people from harming the person or property of others. What constitutes “harm,” of course, can be a contentious matter: does my use of profanity constitute a harm to society? What about pornography? Books with “anti-social” content? “Wrong” religious beliefs? (Contemporary Republicans insist that teaching accurate history constitutes a harm.)

Then, of course, there is that little matter of government’s responsibility for ensuring civic and legal equality….

As difficult as our arguments about the nature of the “harms” that justify government action continue to be, Americans have really balked at that second “so long as”–the one requiring those of us who insist on our own right to self-government to “accord an equal liberty to others.” Far too many of us prefer something along the lines of “liberty for me but not for thee.”

The problem with a system in which only some people have rights is that a government with the power to deny me my rights today can use that authority to deny you your rights tomorrow. Actually, a government with the power to grant and/or withdraw rights isn’t dealing with”rights” at all–it’s doling out privileges, and privileges can be withdrawn when the political environment changes.

As a wise man once told me, we’re equally free, or no one really is. Poison gas is a great weapon until the wind shifts.

 

 

 

The Right To Privacy

What is the constitutional right to privacy, and why is it controversial?

The term “privacy” is part of the problem: when Americans think about privacy, they think about someone peeking through their window, or riffling through their personal documents–invading areas that we all believe to be…well.. private.

That limited notion of privacy is implicated in the Fourth Amendment’s protection of our right to be “secure in our persons, papers and effects.” But the constitution arguably erects a zone of protection around a different and more expansive type of privacy–the protection of individual autonomy, what we might term the individual’s right to “self-government.” That kind of privacy, protected for the past fifty-plus years by the doctrine of substantive due process, bars the government from making decisions that most of us believe are properly the province of the individual citizen.

Those areas are outlined throughout the Bill of Rights.

The First Amendment forbids government from either censoring or requiring our speech or favoring certain theologies or religions–essentially, the First Amendment requires government to respect the individual’s liberty of conscience. The (overwhelmingly forgotten) Third Amendment says government cannot force us to “quarter soldiers” in our homes (a person’s home is her castle…). The Fourth Amendment explicitly requires government to respect our “security” in our persons and effects absent probable cause to invade that security.

The greatly  under-appreciated Ninth Amendment specifically asserts that rights not explicitly enumerated nevertheless are retained by the people.

That language in the Ninth Amendment was intended to address the concerns of those Founders like Alexander Hamilton who worried that the “enumeration” of protected rights in the Bill of Rights might come to be considered exhaustive–that the omission of certain rights from the list would someday prompt self-declared “originalists” to ignore equally important liberties, including those necessary to the realization of the rights that were enumerated. When the Supreme Court ruled that government had no right to decide whether married couples could use contraception, the Court based its ruling on the proposition that a fair reading of the Bill of Rights required recognition of a “penumbra” protecting a zone of privacy–a zone of personal autonomy– that government was bound to respect.

Scholars and pundits like to poke fun at the term “penumbra,” and the language may well have been ill-chosen, but the Court’s insistence that any fair reading of the Bill of Rights requires respect for that enhanced zone of personal privacy was absolutely correct.

Recognition that the Bill of Rights protects personal or “intimate” decisions from government busybodies–the doctrine of substantive due process, or the right to privacy– has been the legal basis for recognition of rights most of us consider fundamental to the fair operation of modern society: a woman’s right to control her own reproduction, the right of competent adults to engage in sexual activity with other consenting adults, the recognition of same-sex marriage…

If today’s Court eviscerates or overrules that doctrine–if it refuses to respect the line between decisions that are properly left to individuals and those that can properly be made by the legislatures of various states, the United States will head down the path of the Taliban. The only difference will be the content of the theology that the state will impose.

Back in the day, when I was Executive Director of Indiana’s ACLU, I used to explain that the Bill of Rights answered a simple question: who decides? Who decides what prayer you say, or if you pray at all? Who decides what book you read, what political ideology you adopt? Who decides whether you marry, and who? Who decides whether you procreate? The whole point of the Bill of Rights was to ensure that government stayed in its lane–that the state refrained from making decisions that were none of governments’ business.

Today’s radical Court is intent upon erasing those lane lines.

No matter what Alito says to the contrary, eliminating the doctrine that has kept government in its lane won’t be limited to issues of reproductive choice. After all, at least four of the radical judges who voted to overrule Roe insisted during their confirmation hearings that it was “settled law.”

To the extent there is a controversy over the Constitutional right to privacy, it is between those who believe government has the right to make our most intimate decisions and those of us who disagree. Today’s Court is on the wrong side of that debate.

 

One More Time…

Can you stand one more post about the Supreme Court’s attack on our fundamental freedoms?

To begin with, when he was asked to comment on Alito’s draft decision, “Mayor Pete” knocked it out of the park. You need to watch this.

Then, in a Facebook Post, my lawyer friend David Honig pointed to Alito’s deeply dishonest “history.”

May I take a moment to comment on one aspect of the shocking dishonesty of Alito’s draft abortion opinion? It’s just one, but it highlights the rest.

Alito and his ilk claim to be “originalists,” wise jurists who look to the meaning of words at the time the Constitution was written, in 1789, to glean their meaning.
One fact first. The 9th Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That means there are rights that aren’t written down, rights that people retain. That would include all the rights, according to an “originalist,” that they held in 1789.

So Alito, in his draft decision, spent paragraphs on the sudden explosion of anti-abortion laws in the mid 19th Century, many decades after the writing of the Constitution, to support his position that abortion wasn’t an existing right to be preserved.

Why would he do that? Why would an “originalist” look, not to the time of the writing of the Constitution, but to a century later, for the very core of the originalist argument?

Because he’s a damned liar.

During Colonial times abortion was quite common. The usual method was actually drinking oil of peppermint, or perhpas black root or cedar root, carefully measured to be enough to cause spontaneous abortion, while not threatening the life of the mother. In English colonies, contrary to Alito’s blatant lie that abortion was illegal from the beginning of Common Law, it was legal until “quickening,” when the fetus could be felt moving.

So my point here isn’t to dive headlong into the abortion debate.

My point is to start the discussion with a fact – the opinion coming down is a lie premised on a lie based on lies.

Whatever you think of abortion, this must color what you think of the Court. The United States Supreme Court has been an actor for good and for ill in our nation over time. The same entity that gave us Plessy vs. Ferguson gave us Brown vs. Board of Education.

But today, that Court is giving us lies in favor of a political, and to some extent religious,* opinion, and doing so boldly and without apology. The end justifies the means, even if it means the United States Supreme Court is a filthy den of liars with as much credibility as the three card monty player on a dingy street corner.

As a man who has spent nearly 40 years working for and believing in the rule of law, while recognizing it is imperfect, the indisputable fact that it is now, from its highest temple, not merely imperfect, but dishonest, is crushing.

Finally, in a footnote, David warns us not to underestimate the degree to which the opinion codifies a conservative version of Christianity as our nation’s one true religion and source of law; as he notes, other religions do not hold the same tenets about abortion that Alito privileges in his dishonest diatribe. Jewish law, for example, considers abortion permissible, as do several Christian  denominations. This Court prides itself on what it calls “religious liberty,” but–as David points out–it is really protecting and elevating one version of Christianity, while ignoring the liberties of those who hold different religious, beliefs.

It’s America’s version of Sharia law.

About That Ciivil War..

Jennifer Rubin’s column on the leak of Alito’s “slash and burn” opinion pretty much summed up where we are: she pointed out that

unelected justices — in some cases appointed by presidents who lacked a popular-vote majority and confirmed by senators who did not represent a majority of the country — would bring to head a battle between a fading racial, religious and political minority and an increasingly diverse, secular country.

Rubin is not the only pundit pointing to the implications of the leaked analysis: this isn’t simply an attack on Roe, or on the right to abortion. This is the culmination of a 50-year effort to reverse the jurisprudence of substantive due process.

As I used to explain to my students, in American law, there are two kinds of due process: procedural and substantive. Procedural due process is–as the name implies–concerned with the fundamental fairness of the legal process. Did an accused person get a fair trial? If the matter was civil, rather than criminal, was the government procedure properly respectful of the individual’s liberty interests and property rights?

Substantive due process, as the name implies, is concern for the substance of a proposed law or government action. Is this an area where government regulation or action is appropriate, or is this a matter that must be left up to the individual to determine?

In other words, in this particular instance, who gets to decide? Government or the individual involved?  The question is not: what should the decision be? The question is: who gets to make the decision?

Ever since the Supreme Court ruled in Griswold v. Connecticut that the legislature had no business deciding whether married couples could use birth control, the doctrine of substantive due process has been applied to limit state intrusion into what the Court has called “intimate decisions.” Those “intimate decisions” include whether and when to have children, who to marry, whether to have consensual sexual relations, and many other choices that contemporary citizens believe are simply none of government’s business.

Alito’s sneering draft sweeps away that distinction. He hands over to state legislatures the authority to invade the most personal and private areas of individual lives, and to decree how those “intimate” lives should be led.

Make no mistake: eviscerating the doctrine of substantive due process, which is what this decision would begin to do, would return the U.S. to a pre-modern version of state authority–to a time when government had the right to impose the religious beliefs of those in power on citizens who do not share those beliefs.

If the leaked draft represents the Court’s ultimate, official decision, it will generate a civil war between the minority of Americans who want to turn back the clock to a time when church and state were joined in authority over citizens’ most personal decisions, and the rest of us.

Why do I characterize what’s coming as “civil war”?

Over the past 50 years, Americans (and for that matter, citizens of other Western democracies) have become accustomed to a legal system that draws a line between permissible and impermissible government actions. We have become accustomed to a culture in which we are entitled to a degree of personal autonomy, to control of the most meaningful, personal aspects of our own lives. In the U.S., polling repeatedly shows that large majorities believe that a woman should be able to control her own body and make her own reproductive decisions, that people of the same sex or different races should have the right to marry, that decisions to use or forgo contraception is none of government’s business.

A minority of paternalistic religious critics have worked  tirelessly to turn back the clock– to return to a time when these decisions were made by the White Christian Males in charge, those Rubin properly characterized as a “fading racial, religious and political minority.” Alito’s draft represents a massive victory for that minority. If it is seen accurately for what it promises–a steady stream of decisions depriving citizens of hard-won rights to live their “intimate” lives as they see fit– I believe furious Americans will launch a civil revolution of massive proportions.

It will be war.