Category Archives: Constitution

The Court’s Selective Originalism

Our current Supreme Court is dominated by regressive Justices who insist–as did the late Antonin Scalia–that they reach their conclusions by being “originalists.” Their definition of originalism differs rather substantially from mine–I’m firmly of the conviction that an authentic originalism requires fidelity to the values embraced by the Founders, while they insist that an originalist is bound by the constitutional text as it was understood at the time.

Permit me an example of why this is horse-pucky.

I used to ask my students what James Madison thought about porn on the internet. Obviously, Madison could not have conceived of the Internet–but he had very explicit beliefs about the value of free speech and the need to prevent government censorship. The current majority’s crabbed and dishonest “originalism”–if consistently pursued– would reserve free expression to communication methods in place during Madison’s time. A workable originalism protects speech from government censorship irrespective of the method of its transmission.

Of course, the majority doesn’t apply its version consistently, because it would be unworkable. Instead–as legal scholars have pointed out–they are selective in their application. (At least so far, they haven’t allowed government to censor radio, television, movies, and the internet–none of which the Founders could have envisioned.)

I thought about that very telling selectivity when I read an essay by Thom Hartmann about theocracy and the Dark Ages. I encourage you to read it in its entirety, but the part that struck me–and reminded me of the selectivity of Justices like Scalia, Thomas and especially Alito– were the sections detailing the Founders’ approach to Separation of Church and State.

Hartmann began by quoting extensively from John Adams. Adams was a practicing Christian, but was wary–to say the least– of government efforts to compel religiosity. Among the Adams quotes shared by Hartman was the following:

“Since the promulgation of Christianity, the two greatest systems of tyranny that have sprung from this original, are the canon and the feudal law. The desire of dominion, that great principle by which we have attempted to account for so much good and so much evil, is, when properly restrained, a very useful and noble movement in the human mind.

“But when such restraints are taken off, it becomes an encroaching, grasping, restless, and ungovernable power. Numberless have been the systems of iniquity contrived by the great for the gratification of this passion in themselves; but in none of them were they ever more successful than in the invention and establishment of the canon and the feudal law.”

Hartmann also quoted Jefferson, who wrote in his Notes on the State of Virginia:

“Reason and free enquiry are the only effectual agents against error. … Had not free enquiry been indulged, at the æra of the reformation, the corruptions of Christianity could not have been purged away.”

And he shared an often-cited Jefferson line: 

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

Adams and Jefferson weren’t the only Founders who believed in separating church from state. As Hartmann notes,

George Washington refused to declare himself a Christian; Thomas Paine wrote an entire book embracing atheism; Ben Franklin famously fled Massachusetts as a teenager to escape the censorship and threats of imprisonment by religious leaders.

The essay points out that today’s White Christian Nationalist movement is both ahistoric and anti-American–a conclusion with which credible scholars entirely agree.

So here’s my question, aimed especially at Justice Alito (Thomas is simply corrupt, but Alito seems to be a true theocrat.) If you are really an originalist, bound by that doctrine to decide constitutional debates as the Founders would have understood them, why are you ignoring both the Constitutional text and the substantial contemporaneous evidence of their belief in the importance of Separation of Church and State?  

Hartmann’s essay focused on the Dark Ages, a thousand-year period introduced and maintained by virtue of the close alliance of church and government. He ends with a question:

Will we go down a nationalist religious road similar to that now being followed by Modi in India and Netanyahu in Israel? Could we end up as bad as Iran, Afghanistan, or 17th century New England? Will Republicans trigger a new Dark Age?

Or will we re-embrace the Renaissance and Enlightenment values and ideals of the Founders of this nation and hold to a secular democratic republic?

If the pseudo-originalists on today’s Court prevail, we won’t like the answer to that question.

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A “Faith Based” Future?

I’m not sure when people–okay, mostly Christian people–began using the term “faith-based” to mean “religious,” but like so many other euphemisms being thrown around these days, the term is inaccurate. Many of the earth’s religions aren’t “faith-based,” they are works based, focused upon behavior rather than belief. The term “Judeo-Christian” is a similar contrivance, a term that Christianizes in what may–or may not–have originally been an effort to appear religiously inclusive.

Whatever the original motivation for these terms, Project 2025 makes it quite clear that the “faith” that makes one entitled to call oneself an American is Christianity, and that any lingering “Judeo” part of “Judeo-Christian” is irrelevant.

A report in The Guardian focuses upon that element of Project 2025, using a current discriminatory law in Tennessee as an example of the approach favored by that document. In Tennessee, a Jewish couple who wanted to foster a child were rejected by a Christian state-funded foster care placement agency that informed them it only provided adoption services to “prospective adoptive families that share our belief system”. 

Under First Amendment jurisprudence as it has existed thus far, taxpayer dollars cannot be used to favor some religions over others, or–for that matter–religion over non-religion. (Granted, Justice Alito is probably salivating at the prospect of overturning that long line of precedents…) If Trump is elected, however, and the agenda proposed in Project 2025 begins to be realized, Americans can kiss genuine religious liberty good-bye. 

The predicament facing the Rutan-Rams could become more common under a second Trump administration. Project 2025, a 900-plus page blueprint for the next Republican administration and the policy brainchild of the conservative Heritage Foundation, contains an explicitly sympathetic view toward “faith-based adoption agencies” like the one that rejected the Rutan-Rams, who are “under threat from lawsuits” because of the agencies’ religious beliefs.

Project 2025’s Adoption Reform section calls for the passage of legislation to ensure providers “cannot be subjected to discrimination for providing adoption and foster care services based on their beliefs about marriage”. It also calls for the repeal of an Obama-era regulation that prohibits discrimination against prospective parents and subsequent amendments made by the Biden administration.

According to a professor of theology and religious studies at Villanova University, quoted in the article, the image of family portrayed by Project 2025 is “blatantly exclusionary. The Christian nationalist plan rejects unmarried parents, single parents and LGBTQ+ families.”

Project 2025 is divided into four broad pillars, the first of which is to “restore the family as the centerpiece of American life and protect our children”. A conservative vision of family pervades the document, and the authors call on policymakers “to elevate family authority, formation, and cohesion as their top priority and even use government power, including through the tax code, to restore the American family”.

The plan envisions upholding “a biblically based, social science-reinforced definition of marriage and family”. It would remove nondiscrimination roadblocks governing faith-based grant recipients, such as the agency that denied the Rutan-Rams. The authors argue that “heterosexual, intact marriages” provide more stability for children than “all other family forms”. In addition to calling for the passage of the Child Welfare Provider Inclusion Act, which would allow adoption and foster care agencies to make placement decisions based on their “religious beliefs or moral convictions”, it also calls on Congress to ensure “religious employers” are exempt from nondiscrimination laws and free to make business decisions based on their religious beliefs.

That last paragraph sounds exactly like a speech by Indiana Congressman Jim Banks, currently running for U.S. Senate. Banks–and his clone Micah Beckwith, the Republican candidate for Lieutenant Governor–who represent the core of the MAGA effort to remake the United States into a White Christian theocracy.

Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty and author of a book titled How to End Christian Nationalism, contends that the scale and reach of Project 2025 pose a far greater danger to democracy than a patchwork of state laws.

“What’s different about Project 2025 is the sweeping nature of its plan,” said Tyler. “It would really rewrite the federal government and change policies in so many different areas at once in a way that would hasten our journey down that road to authoritarian theocracy.”

Trump’s effort to distance himself from Project 2025 runs into several inconvenient facts: his choice of a Vice-Presidential candidate who wrote the document’s introduction, the number of cronies who participated in its drafting, and the GOP’s official platform, which echoes several of its themes.

When President Biden says that America’s constitutional democracy is on the ballot in November, he wasn’t engaging in hyperbole.

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San Diego Shames Supreme Court

I’ve previously posted about a number of recent Supreme Court cases that have ignored long-time precedents, cherry-picked history, or otherwise done violence to the philosophical basis of the Constitution and the rule of law. One that I haven’t previously addressed falls into a somewhat different category: it’s just wrong and mean-spirited.

The case–Grants Pass v. Johnson–involved an Oregon city that had passed ordinances prohibiting people from sleeping outside in public using a blanket, pillow or cardboard sheet to lie on, even if those people have no other option, i.e., are homeless.

Those challenging the ordinances relied upon the earlier case of Robinson v. California, which had held that it is “cruel and unusual”  to criminalize a person’s status, but the majority held that Robinson didn’t apply–that the ordinances penalize behavior rather than status. As a result of that analysis, municipalities can do what Grants Pass did, and subject unhoused people to hundreds of dollars in fines and even jail time for sleeping outside, even when the city admittedly lacks enough shelter beds for them.

The decision reversed a far more reasonable opinion by the Ninth Circuit; that Court held that punishing unhoused people for sleeping in public when they have no access to shelter violates the Eighth Amendment’s protection against cruel and unusual punishment.

The ACLU submitted a brief on behalf of the challengers, and issued a statement on the decision.

“It is hard to imagine a starker example of excessive punishment than fining and jailing a person for the basic human act of sleeping,” said Scout Katovich, staff attorney in the Trone Center for Justice and Equality. “As Justice Sotomayor’s dissent powerfully acknowledged, sleep is a biological necessity, not a crime. We cannot arrest our way out of homelessness, and we will continue litigating against cities that are emboldened by this decision to treat unhoused people as criminals.”

The American Civil Liberties Union submitted a friend-of-the-court brief arguing that punishing unhoused people for sleeping outside when they lack access to shelter violates the Eighth Amendment protection against cruel and unusual punishment. As the brief highlights, the original intent and meaning of the Eighth Amendment and its application in more than a century of Supreme Court cases make clear that the government cannot impose punishment that is disproportionate to the crime.

There is obviously a great deal more that can be said about this decision, but the practical reality is that it allows local governments to criminalize a social problem. Allowing municipalities to punish homelessness does absolutely nothing to ameliorate the problem. (For that matter, allowing fines to be assessed is asinine; people who cannot afford a bed don’t have resources to pay fines.)

San Diego takes a very different, and far smarter approach to the issue. People who are unsheltered or living in their cars can access parking lots that have been modified to provide more than just a place to stay.

San Diego currently operates four lots where people living in cars or RVs can park overnight, with access to restrooms, services and treatment.

The H Barracks location adds 190 parking spaces, which will nearly double the capacity of the city’s safe parking program.

It’ll be located on five acres between the airport and Liberty Station, and it would serve the large population of people living in oversized vehicles in the Peninsula area.

 The pet-friendly lot will be open overnight — 6pm-7am — with onsite security, as well as bathrooms and showers, according to the report.

The lots provide onsite services for case management, housing, health care, mental and behavioral health, plus substance-abuse treatment resources, and patrons are prohibited from drug and alcohol use. Registered sex offenders are not allowed.

The Supreme Court’s tone-deaf opinion effectively allowing municipalities to criminalize homelessness is a classic example of hitting people when they’re down. As a matter of law, it is fatally flawed; as a matter of policy, it’s clueless.

Calling homelessness a “behavior” rather than a status suggests that it is chosen–that it represents a decision made by an individual to forego habitation. Allowing local officials to punish unhoused people is simply cruel. As numerous critics of the decision have pointed out, governments cannot punish their way out of homelessness and poverty. What is needed is evidence-based solutions.

Officials in San Diego obviously recognize that. It will be interesting to see whether that city’s innovative approach results in a reduction of the number of homeless, and whether it will develop follow-up measures aimed at more permanent solutions.

Meanwhile, We the People really need to do something about our rogue Supreme Court…

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When Religion Becomes Farce

I don’t know whether to laugh or cry. Or maybe both.

Most of us have seen the news that Louisiana now requires posting the Ten Commandments in that state’s schoolrooms. What I hadn’t seen reported–until this fascinating article from Salon–is that the version to be posted comes not from the Bible, but from Hollywood. Rather than go to any of the biblical texts, Louisiana opted for Cecil B. DeMille’s, taking the version to be posted from  “The Ten Commandments.”

Actually, that shouldn’t be a surprise–Christian nationalists aren’t known for consulting original texts. Or for honesty.

The article is lengthy–and fascinating. It quotes several biblical scholars who have read–and engaged with–the biblical versions. As one scholar says,

The Ten Commandments recounted in Exodus 34 are nothing like the list of crimes most people know. It starts off: “Be careful not to make a treaty with those who live in the land where you are going, or they will be a snare among you.”

As he notes, this version is definitely “not the list of ten commandments which most people are familiar with, but it is the only list in Exodus which is actually called ‘the ten commandments.’” (The article notes that similar legislation passed by the Texas State Senate also uses a version that doesn’t appear in any Bible– a “highly Christianized version” with “Judaic elements removed.”)

The multitude of versions and their disputed authenticity leads to what the author calls the “vexing problem of which form of the Ten Commandments should be forced onto schoolchildren….Wikipedia even offers a chart showing how eight different faith traditions group and number the commandments.” No wonder our MAGA lawmakers opted for the Hollywood version, wildly inaccurate as “The Ten Commandments” was both historically and textually.

Well, if you are going to “edit” the presumed word of God, you might as well make your version support your political ambitions..

Louisiana’s Ten Commandments lawsuit actually disproves the Christian nationalist claim that the Ten Commandments are the basis of America’s moral foundation. One need only compare the text that will go on classroom walls with the text of the Bible. Louisiana lawmakers edited and abridged the biblical commandments to “improve” the Word of God, to make them more moral. Gone is the reference to a jealous God punishing innocent children for the crimes of their parents (Exodus 20:5); the crime of exercising their right to freely worship. Lawmakers used our modern morality to edit the word of their God. Louisiana’s heavily edited commandments undercut the very claim they are supposedly making.

There is, of course, a wide discrepancy between genuine Christianity and Christian Nationalism, as clergy friends of mine keep reminding me. The latter is a thinly-veiled political movement, and it bears less and less similarity to religious belief. As the article notes,

If this were an intellectual debate, we could stop here. But it’s politics, which is full of challenging absurdities. Trump was only a distant spectator to the Louisiana bill, but he’s both a symptom and a super-spreader of the underlying moral abyss. Eight years ago, many evangelical Christians had their doubts about Trump. His running mate, Mike Pence, clearly helped calm, as did “apostle” Lance Wallnau, whose book “God’s Chaos Candidate” compared Trump to the Persian King Cyrus, a “heathen” instrument of God’s will. But now Trump openly compares himself to Jesus and his followers eat it up, while his flagrant violations of the Ten Commandments are shrugged off, at best. Pastors who preach on the Sermon on the Mount, in which Jesus told his followers to “turn the other cheek,” are accused of pushing “liberal talking points.”

In short, Trump has helped catalyze a profound disorientation of Christianity, deep into gaslight territory. By comparison, Louisiana Gov. Jeff Landry is just a garden-variety Republican liar. “If you want to respect the rule of law, you’ve got to start from the original lawgiver,” he said on signing the bill. It’s an obviously illogical claim — you could also start by not nominating a convicted criminal for president — that’s also ludicrous and false in several different ways.

One sociologist is quoted as explaining that Christian nationalism has two goals: to signal to the MAGA base that they are culture warriors fighting “leftism, Marxism, woke-ism, state-sponsored atheism or whatever else scares conservative white Americans;” and as a distraction from Republican policy failures. It’s notable that US News recently ranked Louisiana dead last among all 50 states, and no. 47 in education.

As the article accurately concludes, the Christian nationalist agenda stands for the proposition that America is a Christian nation, and Christians (of the right variety) should control every facet of it.

It’s hard to get more unAmerican than that.

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More On Project 2025

In a weird way, it really doesn’t matter who heads up either the Republican or Democratic national tickets–because this election is rapidly becoming a referendum on the U.S. Constitution and what it means to be an American.

If Republicans win the Presidency and Congress, we are very likely to jettison the Constitution in favor of the provisions of Project 2025. The forces that produced Project 2025 represent the real power structure of today’s GOP; its members see Trump as a convenient “front” because he is ignorant, stupid (those aren’t the same thing) and interested only in garnering attention–thus easily manipulated. Should he be replaced at the top of the ticket, it would either be with someone equally malleable or with a Project 2025 true believer.

Fortunately, the Democrats–unlike the Borg (look it up)–don’t believe that resistance is futile. As Joyce Vance has recently reported, Democrats have created a task force to combat what can accurately be described as an extension of the January 6th coup attempt. The task force has been created by California Congressman Jared Huffman, who described its formation and purpose.

We started by getting leaders from groups across the political spectrum of our House Democratic Caucus to sign on – Progressives, New Dems, CHC, CBC, API, Pro-Choice, Labor, LGBTQ Equality, and, of course, the Congressional Freethought Caucus I co-founded with Jamie Raskin!  From there, several other members signed on, including two from leadership (Joe Neguse and Ted Lieu).  Our ranking Appropriator, Rosa DeLauro, just joined us this week, bringing the Task Force to 15 members, including some of the most effective communicators in Congress.

We’re working closely with experts from more than a dozen leading advocacy groups, including Accountable.US, Democracy Forward, Center for American Progress, ACLU, Protect Democracy, Court Accountability, Americans United for Separation of Church and State, and more.

Our work plan starts with over half a dozen subject matter briefings for Task Force members and staff by the end of August.  We’ve already had the first two:  last week on messaging/communications, including some recent polling on Project 2025, and this week, an ominous briefing on how the various elements of Project 2025 link together in a very strategic attack on democracy and civil liberties.  As we complete these “deep dive” briefings, we’re developing and pushing out messaging materials for Task Force members, outside partner groups, and the media.  In September, we will have a big, congressional hearing-like event where we publicly roll out highlights of the various briefings in conjunction with the outside groups.  The hearing will feature testimony from leading experts and different Task Force members will take the lead in presenting different parts of Project 2025.  We believe this event will get a lot of attention and will distill Project 2025 for the American people in a way that helps them understand how radical and destructive it is, why it must be taken very seriously, and how we can stop it.

After added discussion about the task force plans, Huffman addressed the central issue: what would the enactment of Project 2025 mean for the American experiment?

As Huffman explained, Project 2025 is a sweeping attack on democracy and fundamental American freedoms–an attack on health care and reproductive liberty, social justice, the livability of our planet, and much more.

It aims to systematically dismantle our democratic checks and balances and consolidate unprecedented power in a second Trump presidency.  It’s truly a roadmap to make Trump, already an aspiring dictator, into a real one, and to impose a radical social/religious order on all of us.  It exudes an “any means necessary” philosophy, including the explicit embrace of dystopic authoritarian measures like domestic military deployments, detention camps, mass deportations, an unprecedented political purge of the federal workforce, political weaponization of federal law enforcement, and more.  These are my greatest concerns because they would end American democracy as we know it.

There are certainly other worrisome parts of Project 2025, including dramatically weakening public education (with a goal of ending secular public education), sweeping attacks on the environment and rollbacks of climate action, clear threats to our social and retirement safety net, and privatization schemes and other reckless giveaways to powerful special interests.

Rick Wilson has said that Project 2025 “polls like Ebola,” which explains why Trump is suddenly trying to dissociate himself from it, but Heritage worked with over 100 extreme Rightwing groups that are at the heart of Trump’s political base, along with several of the most loyal (and scary) members of the prior Trump administration –- Mark Meadows, Stephen Miller, Peter Navarro, and several others.

The GOP roadmap that is Project 2025 is breathtakingly clear. Those of us who want to keep the Constitution need to ensure that voters know where that roadmap would take us.

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