Category Archives: Constitution

Deconstructing America

The Founders would be dumbfounded.

Remember what you learned (maybe) in high school government class about the three “co-equal” branches of government? Well, our rogue Supreme Court says that was wrong–that judges should be the imperial, all-powerful arbiters of national life, because they know far better than the experts serving in various government agencies what government can (or really, cannot) do about elements of our common lives like air and water quality, unfair competition…you name it.

I have previously explained what was at stake in a case challenging what is called “the Chevron doctrine.” But Robert Hubbell’s Substack letter explains better than I could the appalling, immensely negative consequences of Friday’s decision over-ruling that doctrine, and I am going to quote liberally from his explanation/diatribe.

You will be able to tell your grandchildren that you lived through a judicial revolution that rewrote the Constitution to suit the financial interests of corporate America and the social agenda of an extremist minority that fetishizes guns, hates government, and seeks to impose their narrow religious views on all Americans. The open question in 2024 and beyond is whether we will reverse that revolution. The first step is to understand the earth-shaking consequences of the Court’s ruling…

The Roberts Court has anointed the judiciary as the ascendant branch of government. The person of the president—not the executive branch—is nearly omnipotent in Roberts’ schema. Congress has been neutered…

The US economy is the largest in the world by a wide margin. That size is attributable in no small measure to (a) the orderly markets and business conditions created by federal regulations and (b) the comparatively corruption-free nature of the US economy (also attributable to federal regulations).

Managing and maintaining the immense US economy is a monumental undertaking. We need regulations that control how and when fish stocks can be harvested, where medical waste can be stored, how thick concrete must be on bridge spans, what type and color of insulation must protect electrical wires, what temperature meat must be kept at when being transported across the country, and what type of information can be collected and stored in a retail transaction.

Multiply those issues by a million, and you will have a vague sense of the complexity and scale of the US economy….

Those millions of regulatory decisions demand broad and deep expertise by career professionals with advanced degrees and years of experience in their field of regulation. That expertise resides in the federal agencies housed in the executive branch under the president..Businesses hate federal regulation because they impose a trade-off: protecting the health and safety of Americans by reducing the maximum profits unrestrained businesses could earn in the short term in an unregulated economy.

The so-called “administrative state” of federal agencies has been wildly successful. It is why all international airline pilots speak English when flying between countries across the globe. It is why the US dollar is the world’s currency. It is why the world’s science, technology, and innovation hubs are located in the US. It is why every Chinese corporation that goes public in China has the goal of transferring from the Chinese stock exchanges to the New York Stock Exchange, Nasdaq, and the Chicago Options Exchange as soon as possible…

As Hubbell writes, Friday’s decision dramatically reduces the power of Congress by requiring that legislation be as specific as an instruction manual. Under Chevron, when Congress directed the Executive Branch to achieve a desired goal, agency personnel with deep expertise in the relevant area would determine how best to reach that goal. If a regulation was challenged, the Court could strike it down if evidence showed it was unreasonable, but absent such evidence, the courts  deferred to the agency’s interpretation.

Hubbell provides an example:

If the Court requires Congress to specify the precise number of salmon that can be taken from the Klamath River each year rather than saying that the NOAA Fisheries Department shall establish fishing quotas to maintain healthy fish populations in inland waterways, Congress’s work will grind to a halt. Members of Congress have neither the time nor expertise to determine a healthy fish population for each inland waterway in the US. In the absence of “the administrative state,” Congress (or the courts) must serve as the regulators of the millions of daily transactions governed by federal regulations.

In the future, when a business challenges a regulation, federal judges rather than agency experts will interpret and apply–or more likely, overturn– the regulation. We’ve seen the arrogance and fact-free behavior of recent, ideologically-driven judicial appointees. 

The Trump judges on the Supreme Court have accomplished things near and dear to the Rightwing heart. In addition to dramatically undermining the liberties protected by the Bill of Rights, they have substantially deconstructed the checks and balances of the Founders’ government structure. They certainly aren’t “originalists” in any sense that matters.

At best, it will take years–generations–to undo the damage. At worst, a Trump win in November and implementation of Project 2025, would foreclose any possibility of enlarging or otherwise restraining this rogue Court and beginning to reverse the enormous damage it has caused.

What is truly terrifying is how few Americans seem to understand the stakes.

This election is a choice between an elderly man who has been an exemplary President but a poor debater and an equally elderly man who, in service to his own monumental ego and his rabid White Christian Nationalist base, is intent upon destroying America as we know it. 

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Federalism And MAGA Lies

I know it’s hopeless to expect anything approaching logic–or constitutional knowledge– from MAGA conspiracy theorists, but I’ll admit I still get surprised by the sheer fact-free idiocy of some of their anti-Biden accusations. In many cases, that idiocy is an outgrowth of what I call “civic illiteracy”–an obvious lack of knowledge of the most basic structures of American government.

Take the MAGA folks who are screaming over Trump’s New York prosecution and subsequent guilty verdicts. Republican partisans–some of whom, as elected officials, should certainly know better–accuse the Biden administration of “weaponizing” the Department of Justice, claiming that President Biden was responsible for both Alvin Bragg’s decision to charge Trump and for the subsequent jury verdict.

Yeah! As the Lincoln Project recently noted, it’s also Biden’s fault you got that speeding ticket!

Anyone who took a high school government class (and actually passed) should know the difference between federal and state jurisdiction. That difference is part of what we call federalism–and it’s foundational to our legal and governmental systems. As I used to explain to my students, the Founders gave us both horizontal and vertical checks and balances: separation of powers (dividing authority among the branches of government–someone should tell Tommy Tuberville), and federalism (dividing authority between federal, state and local units of government).

Federalism is evidently a concept utterly foreign to a large segment of the voting population. As the Washington Post recently reported, a CBS News-YouGov poll tried to figure out just “how many Americans buy into the baseless idea that Biden had something to do with the charges against Trump in Manhattan.

Turns out, it’s 43 percent — and 80 percent of Republicans. Those are the percentages who agree that the charges were brought because of “directions that came from the Biden administration,” rather than merely by “prosecutors in New York.”…

The article debunked several aspects of the claim, and noted

This theory was also firmly rejected in recent weeks by no less than former Trump lawyer Joe Tacopina, who worked on Trump’s defense early in the Manhattan prosecution. He called the idea “silly” and “ridiculous.”

“Joe Biden or anyone from his Justice Department has absolutely zero to do with the Manhattan district attorney office,” Tacopina said in an MSNBC interview, adding, “We know that’s not the case, and even Trump’s lawyers know that’s not the case.”

“People who say that,” Tacopina told MSNBC, “it’s scary that they really don’t know the law or what they’re talking about.”

By Tacopina’s formulation, 4 in 10 Americans have no idea what they’re talking about.

As the article notes, this is hardly the first time Trump’s base has come to believe nonsense, despite a lack of any evidence–and in spite of the fact that believing it requires total ignorance of the structure of their own government.

Believing that the federal government stage-managed a state-level trial also requires a considerable amount of cognitive dissonance, since the GOP has long insisted on an extreme version of “state’s rights.”

In fact, the Republican Party has never quite gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was initiated after passage of the 14th Amendment constitutionalized the principle that the fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but thanks to nationalization of the Bill of Rights, they are forbidden to retract them. (That’s why the theocrats found it necessary to eliminate reproductive freedom from the liberties protected by the Bill of Rights.)

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority.  Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–shouldn’t be one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully. Justice Alito’s dismissal of the substantive due process doctrine is-–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

But that step back didn’t merge state and federal justice systems.

Some of the Republicans who champion “states rights” are happy to ignore the whole concept in order to fabricate a ridiculous–albeit comforting– accusation. Others–probably the majority– are just broadcasting their profound ignorance of America’s basic governance structure.

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How Red is Indiana?

Wow…Just wow.

At the party’s convention on Saturday, Hoosier Republicans rebuffed their gubernatorial candidate’s choice of a lieutenant governor candidate in favor of an out-and-out, well-known Christian Nationalist–despite the fact that Braun, the gubernatorial candidate, had prevailed upon Trump to endorse his less-known-to-be looney choice.

The victory of Micah Beckwith exposed both the current rifts in the party and the degree to which the party faithful have succumbed to extremist culture war and Rightwing grievance.

The GOP’s choice led to yet another “schism”–this time, in my family. While all of us find Pastor Beckwith horrifying, we’re split on whether his selection really reflects the beliefs and bigotries of Indiana citizens. My youngest son thinks this extreme culture warrior is “in sync” with Hoosier voters; I believe his addition to an already terrifyingly extreme GOP ticket will hurt Republicans in November. (My son says he desperately wants to lose our bet on this issue, but he long ago lost faith in Indiana’s electorate.)

What do we know of Pastor Beckwith’s ideology?

We can begin with his statement that his choice by the delegates was “divinely inspired.” Presumably, he is confident that he is God’s choice…Indeed, Beckwith has been a constant voice for his rather unique views of “godliness.” He relishes the fight against “wokeness” and “woke indoctrination”–by which he means genuine education, efforts at inclusion or support for a social safety net–not to mention hysterical opposition to reproductive choice, women’s rights and–of course– church-state separation.

He also opposes freedom to read. Beckwith’s previous public service was as a member of the Hamilton East library board, where his efforts to censor hundreds of books generated a huge blowback from local citizens and triggered an eventual return to previous library policies.

I’m unsure how any of these extreme culture war preoccupations equip him for a position tasked with increasing tourism (!) and supporting agriculture…

Beckwith may be the most extreme example of the state GOP’s lurch to a very unAmerican far right, but he really does fit well with the rest of a state ticket on which Braun is arguably the least scary, which is really saying something. (He at least gives occasional nods toward sanity.) I have posted numerous times about Jim Banks--aka “Focus on the Family’s Man in Washington”–whose culture war positions include support for a national ban on abortion with zero exceptions, unremitting attacks on education, support for permitless carry (because that’s so “pro-life”…) and vicious assaults on trans children, among others.

I’ve posted even more frequently about Todd Rokita, the current occupant of the Attorney General’s office. Rokita has taken every possible opportunity to pander to the far Right of the Republican Party, most (in)famously in his vendetta against the doctor who performed an abortion on a ten-year-old rape victim, charging her with improprieties he knew to be false. He has subordinated his duties as AG to participation in national litigation brought by Rightwing AGs from other Red states, been chastised by the state’s Supreme Court (members of which were selected by Republican governors), and routinely acted in ways to embarrass not just Indiana, but the entire legal profession.

This slate of candidates makes outgoing conservative Republican Governor Holcomb look leftwing by comparison.

So–here we are. As I have previously noted, in November, Indiana voters will choose between a statewide slate of three talented and accomplished women whose credentials are appropriate for the jobs they seek, and whose positions on the issues are mainstream and sensible, and a collection of out-and-proud MAGA misogynists and theocrats. This won’t be an election in which differences are minor. Unlike so many elections in Indiana, it also won’t be an election affected by gerrymandering–even Hoosier Republicans can’t gerrymander a statewide race.

If you agree that most Indiana citizens reject the Neanderthal positions of these misogynist theocrats, you should send McCormick, McCrae and the eventual Democratic AG candidate a few dollars each–giving them the wherewithal to inform Indiana’s voters that Braun, Beckwith, Banks and Rokita are nothing like Indiana’s traditional Republicans.

As my students might have put it– these are scary dudes, and Indiana’s voting public needs to understand just how scary they are.

These four men all reject America’s constitutional values, and I  refuse to believe they reflect the values of Hoosier voters. Despite my son’s contrary views, I am convinced that these “Christian warriors” will only win if the Democrats lack the resources to expose them for what they are: the Christian Taliban.

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Religious War, Modern Version…

As weird as it seems–this is, after all, the twenty-first century– America seems to be in the throes of a religious war. Whatever the actual motives of the self-identified “righteous religious,” today’s culture warriors increasingly hide behind assumed doctrinal pieties.

And they’re suddenly everywhere.

The media is filled with stories about fissures in state-level Republican parties, fights between the GOP’s extreme Rightwingers and its flat-out nutcase “Christian warriors.” Here in Indiana, that schism is illustrated by the GOP’s internal fight over the Lieutenant Governor nomination. Mike Braun, who won the nasty race for the gubernatorial nomination, has picked a no-name, relatively inoffensive Rightwing female, but his choice is being challenged by religious warrior Micah Beckwith.

Noblesville pastor Micah Beckwith’s unconventional campaign for the Republican nomination for lieutenant governor appears to be surging. Several GOP insiders I spoke with believe he will upset Mike Braun’s hand-picked candidate Julie McGuire at the state convention this Saturday.

Braun evidently recognizes that a Beckwith victory will make his already far-Right campaign more difficult, since Beckwith is a proud member of the Christian Taliban. The linked article reported his remarks at gatherings of GOP insiders.

Beckwith told the delegates in both Fort Wayne and Nappanee that it was his belief that America was straying from its Christian principles that motivated him to get into politics.

“I started recognizing something very concerning to me, that the church in America was dropping the ball on stewarding our nation,” he said in Nappanee. “When [the church] started shutting our mouths, the silent majority did a huge disservice to this nation. We became quiet. No wonder we’ve gone off the rails.”

Beckwith blamed America’s problems on a list of issues for which, according to him, the Bible has already provided guidance.

“Isn’t it interesting that all of the political things that are destroying our nation right now are things like marriage, things like abortion, things like parental rights, things like the sovereignty of our borders, things like taxes. But wouldn’t you know, God has said something about all of those issues.”

Evidently, God also told Beckwith to attack Governor Holcomb’s attempt to protect Hoosiers from COVID.

“It was March 15, 2020. I called out COVID exactly what it turned out to be,” he told the delegates in Nappanee. On that day, he said he broadcast a Facebook live video telling people “don’t shut down, don’t lock down, don’t mask up. And I called it out.”

As the linked article notes, 22,450 Hoosiers died from COVID after Beckwith made that video, including 616 residents in his home of Hamilton County. But evidently, that was God’s plan–after all, Beckwith is certain he knows what his God wants…

Unfortunately, the growth of Christian Nationalism isn’t a phenomenon limited to state-level politics. Not only does a rabid (and distinctly unChristian) cohort consistently prevent Congress from functioning, it has infected the nation’s highest court. That infection is most apparent in the person of Justice Alito, who–as Robert Hubbell recently reported–has now “said the quiet part out loud—i.e., that the reactionary majority on the Supreme Court is engaged in a religious battle to return the country to a place of godliness.”

It seems that an enterprising reporter has obtained evidence of what most observers have long surmised.

Lauren Windsor, a progressive filmmaker and political activist, bought a ticket in her own name to the Supreme Court Historical Society dinner that was held on June 3 and carried her cell phone so she could record conversations she held with Justices Samuel Alito and John Roberts.  She’s done it before, posing as a fellow conservative as she recorded conversations with right-wing politicians at public events.  This time, Windsor appears to have been posing as a Christian Nationalist Catholic when she got close enough to Alito at the dinner to ask him a few questions.

While condemning the tactic employed, the New York Times reported the taped conversation,  and Alito’s view that that the nation should return to a “place of godliness.” Several other reports included anti-gay remarks made by his wife. (The taped conversations have since been uploaded to YouTube.)

The utter lack of humility that characterizes these smug “warriors for God” always reminds me of that FaceBook meme–something to the effect that “it’s interesting that God hates the same people they do.”

Historians and legal scholars can rebut these efforts to rewrite American history and undermine the First and Fourteenth Amendments, and theologians can contest the simplistic, dishonest and oh-so convenient approach to belief, but it will be up to voters to reject Christian Nationalists’ drive to deliver social and legal control to White Christian fundamentalists.

Vote Blue. Religious liberty depends on it.

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Can Government Compel Factual Speech?

One of my all-time favorite Supreme Court decisions is West Virginia Board of Education vs. Barnette. That 1943 case was brought by Jehovah’s Witness families whose children had been punished by their public school for a refusal to salute the flag–a refusal based upon their religion, which forbids such a salute as idolatry. Despite the religious basis of their refusal, the case was decided on free speech grounds, with Justice Robert Jackson penning words that would would be repeatedly quoted.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . . We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

The case established the principle that freedom of speech includes freedom from government-compelled speech. Now,  corporations opposed to disclosures mandated by agencies of government, are asserting that principle in order to avoid making required disclosures.

These companies are challenging regulations that require them to disclose emissions or inform the public of other data relevant to consumer and public health protections. They are claiming these regulations are unconstitutional–that they violate the compelled speech doctrine, which they assert protects them from government mandates forcing citizens to say something they disagree with.

Experts say the large corporations using this strategy are undermining efforts to regulate corporate behavior. They say these arguments limit states’ ability to act on matters not covered by federal law — and threaten everything from consumer warnings on toxic products to nutrition labels for restaurant food.

This argument is currently being used to challenge California’s emissions disclosure law, which requires companies doing business in the state to disclose how much pollution they create throughout their supply chain. Challengers argue that such laws unfairly compel them to engage in “controversial speech” — and argue that climate change is still controversial.

Right-wing groups have weaponized this “compelled speech” argument before, using it to defend organizations that refuse to give their employees adequate reproductive health care benefits and support unlicensed pregnancy centers that intentionally mislead their clients. The argument has impeded the government’s ability to investigate financial wrongdoing. Foreign kleptocrats and domestic companies have allegedly exploited this lack of transparency to launder money through real estate investments and shell companies.

Corporations are employing the argument in a wide variety of situations– from concealing the source of online political advertisements, to deterring states from addressing climate change. These efforts are being spearheaded by trade groups intent upon reducing or evading regulation, and the approach includes social media platforms.

A pending decision in the U.S. Supreme Court involving the strategy could decide the future of all social media platforms.

An advocacy group funded by Meta, Google, X (formerly Twitter), and other tech companies challenged a number of laws in Texas and Florida that would regulate how large social media companies control content posted on their sites. The companies argue that choosing the type of content that appears on their platforms is an editorial decision, and therefore protected by the First Amendment.

An amicus brief filed by the Knight First Amendment Institute at Columbia University, an educational organization that researches and promotes freedom of speech, points out that accepting the social media platforms’ argument would make it extremely difficult, if not impossible, for governments to govern user privacy, promote competition, and ensure smooth information exchange.

If the current Supreme Court majority included Justices who shared Robert Jackson’s intellect and ethical probity, rather than corrupt ideologues like Alito and Thomas, we could anticipate issuance of a decision carefully analyzing the difference between compelling the endorsement of beliefs and opinions, and requiring the disclosure of facts –the difference between respecting the integrity of conscience and facilitating the misleading of consumers.

The law often requires drawing intellectually-defensible lines–something the current Court majority seems incapable of understanding–or doing.

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