Category Archives: Constitution

Well, I Guess We Know What “Wokeness” Is

If we ever thought the current war on “wokeness” isn’t an effort to dumb America down–to keep the kids from learning about times when the country failed to live up to its principles, to keep them from reading books that might stretch their horizons or (horrors!) make them aware of the existence of folks unlike Ma and Pa–Florida is disabusing us of that error.

Ron DeSantis is updating the old lyrics. Remember “How will we keep them down on the farm after they’ve seen Paree”? In Florida, it’s now “How will we keep them in the GOP after they’ve learned to think?” (Indiana’s legislators are singing along…)

Talking Points Memo has the most recent abomination emanating from the sunshine state.

The Florida statehouse launched another strike in Gov. Ron DeSantis’s “anti-woke” war with a new bill this week aiming to hand more control of school administration over to the governor and his political appointees.

House Bill 999, introduced on Tuesday by Rep. Alex Andrade (R-Pensacola), proposes to give boards of trustees nearly unanimous power over state university faculty hiring, allow professors’ tenure to be reevaluated “at any time,” remove critical race theory and gender studies from college curricula, and bar spending on diversity, equity and inclusion programs.

The bill also digs in on DeSantis’ obsession with shutting down any educational instruction on race and systemic racism, stating that general education courses must not “suppress or distort” historical events, reference identity politics like critical race theory, or define U.S. history in ways that contradict “universal principles stated in the Declaration of Independence.” Instead, the courses must “promote the philosophical underpinnings of Western civilization and include studies of this nation’s historical documents, including the United States Constitution, the Bill of Rights and subsequent amendments thereto, and the Federalist Papers.”

Of course, “suppressing and distorting American history” is precisely what this bill–and the “anti-woke” movement– would do.

DeSantis’ administration has actually threatened teachers that they will be charged with felonies if they allow students to check out unapproved library books. His rejection of an AP African American Studies course for “lack[ing] educational merit” (!!) made national headlines (as did the disgraceful acquiescence of the College Board that “corrected” its curriculum.)

Decisions that are typically made with university presidents and boards of trustees in cooperation with faculty and staff – like setting up core curricula and deciding which departments should close, would be handed exclusively over to the board – members of which are appointed by the governor.

What Daniel Gordon, a historian at the University of Massachusetts, Amherst, and author on academic freedom , finds “particularly striking” about the bill is that it doesn’t require trustees to consult university faculty before hiring new professors. “This contradicts a principle, well established by the American Association of University Professors (AAUP), that [sic] professors in a given discipline have the expertise needed to select a new faculty member in the discipline,” he told TPM. “Math professors are the people best equipped to assess applications for a professorship in math!”

In January, DeSantis announced plans to defund diversity, equity and inclusion programs in every public university in the state.

If these appalling measures were limited to Florida–if this out-and-proud racism and anti-intellectualism were limited to just one arguably deranged office-holder– it would be bad enough. But as the linked article notes, DeSantis’ “anti-woke” proposals are clearly intended to appeal to a “very specific breed of Trump voter as he mulls a 2024 bid.”

We all know what that “specific breed” believes.

DeSantis is evil, but not stupid. He clearly intends to ride the tide of White Supremacy to the White House, and he just as clearly believes that there are enough voters who share his racism, misogyny and homophobia to put him there.

A 1939 article from the Atlantic said it best.

THE early Americans were determined that education should be free from political control. Being liberals in the original and true sense of the term, they believed in the integrity of the individual as opposed to the despotism of the state. This integrity or dignity of the individual was, of course, basic in democracy. Among other things, it implied the right of the citizenry to think independently, to seek truth honestly, and to determine without political interference what should constitute the education of their children….

It was the experienced judgment of these early liberals that education, religion, and the press should be free from political domination. These were the institutions of thought. They had to be untrammeled if the individual was to be free. Hence it came about that early America produced a peculiar system of education, its outstanding characteristic that it was to be supported and controlled by the people, by parents, by citizens — but not by the state.

I guess our Founders were woke.

Comments

Judges And Politics

American government operates through Separation of Powers–what we all (hopefully) learned in school is the division of governance into three branches: the Executive, the Legislative, and the Judicial.

The basic idea was that the legislature would pass laws, the Executive branch would enforce them, and the Judicial branch would ensure that both the laws and the methods of their enforcement were consistent with the Constitution.

It has always been more complicated than that, of course, but it is important to keep that basic framework in mind–especially the fundamental role of the judiciary. That role requires that judges be insulated from partisan politics to the extent possible–that they be free to decide cases on their merits. They may err, but the goal is to put on the bench people who will put aside their personal policy preferences and “call ’em like they (honestly) see ’em.” Even today, most do.

Partisans have always grumbled about the judicial branch. When a court strikes down a politician’s pet legislation, accusations of “judicial activism” are never far behind, and efforts to place partisan ideologues on the bench are nothing new. 

What is new is the degree to which partisans and autocrats are acting to politicize and capture the courts–and not just in the U.S.

In Israel, Netanyahu’s far-right administration has stirred up a hornet’s nest by advancing measures that would allow that administration to control the courts. In Hungary, Victor Orban has tightened his control over that country’s Courts.There are other examples, and they all threaten democratic accountability.

America’s Founders tried to insulate the federal judiciary from political pressure  by granting judges lifetime tenure.(People didn’t live as long back them, and thoughtful critics suggest that terms limited to 18 or so years could achieve the same goal.) Many states also employ judicial selection systems meant to minimize the influence of partisanship and politics –requiring local bar associations to evaluate nominees, and creating bipartisan judicial nominating commissions. These mechanisms do not–cannot–completely remove partisan politics from the process, but they certainly help.

The effort to minimize partisanship on the bench is consistent with the Founders’ effort to create a judicial system meant to check misbehavior by the other two branches. Both the legislative and executive branches were designed to answer to the voters; the judiciary was intended to answer to the Constitution and to keep the other branches tethered to the rule of law. 

Over the years, political activists and ideologues have succeeded in eroding that fundamental distinction between the branches by the simple expedient of judicial elections. 

When judges are elected, partisanship is inevitable. The current campaign for Wisconsin’s Supreme Court should be sufficient to erase any doubt. The candidates  have made no bones about their contending political ideologies:

Officially, the race is nonpartisan, but one candidate is closely aligned with Republicans and the other with Democrats. The state parties and dark-money groups are the biggest spenders in the race.
 
Milwaukee County Judge Janet Protasiewicz shored up Democratic support early in the race and easily rolled through Tuesday’s primary. She has said she backs abortion rights and condemned the election maps as “rigged.”

Conservatives were more bitterly divided, leading to a contentious fight for the other spot on the general election ballot. Emerging from the primary was Daniel Kelly, who was appointed to the state Supreme Court in 2016 by Gov. Scott Walker (R). While campaigning, Kelly — who lost his seat in a 2020 election — has touted his rulings to allow concealed guns on city buses and end the coronavirus lockdown imposed by Gov. Tony Evers (D).

Given how blatantly all four of the run-off candidates trumpeted their very different approaches to the law, it was ironic that conservative Kelly accused liberal Protasiewicz’s of  promising to “set aside our law and our Constitution whenever they conflict with her personal values,” while characterizing  his own ideological preferences as fidelity to the Constitution.

Protasiewicz has rebuffed such attacks, saying she isn’t prejudging cases but letting voters know her values. She has criticized Kelly for his rulings and the endorsement he received in 2020 from Donald Trump.

My interpretations of the Constitution and Bill of Rights are more in line with those of Protasiewicz, so–from an “outcomes” standpoint– I found the runoff election results comforting: (Protasiewicz had 46 percent of the vote, Kelly had 24 percent, and Protasiewicz won areas of the state that are normally heavily Republican.) 

That said, given current levels of American civic literacy and Constitutional knowledge, voters aren’t deciding which judicial candidate’s approach to the law is most consistent with the Constitution. Instead, they are encouraging the judiciary to identify with partisans in the other two branches–to choose a side.

If you don’t think that’s dangerous, think about Orban and Netanyahu.

Comments

The Challenges Of Modern Life

The Supreme Court’s docket this year has two cases that will require the Court to confront a thorny challenge of modern life–to adapt (or not) to the novel realities of today’s communication technologies.

Given the fact that at least five of the Justices cling to the fantasy that they are living in the 1800s, I’m not holding my breath.

The cases I’m referencing are two that challenge Section 230, social media’s “safe space.”

As Time Magazine explained on February 19th,

The future of the federal law that protects online platforms from liability for content uploaded on their site is up in the air as the Supreme Court is set to hear two cases that could change the internet this week.

The first case, Gonzalez v. Google, which is set to be heard on Tuesday, argues that YouTube’s algorithm helped ISIS post videos and recruit members —making online platforms directly and secondarily liable for the 2015 Paris attacks that killed 130 people, including 23-year-old American college student Nohemi Gonzalez. Gonzalez’s parents and other deceased victims’ families are seeking damages related to the Anti-Terrorism Act.

Oral arguments for Twitter v. Taamneh—a case that makes similar arguments against Google, Twitter, and Facebook—centers around another ISIS terrorist attack that killed 29 people in Istanbul, Turkey, will be heard on Wednesday.

The cases will decide whether online platforms can be held liable for the targeted advertisements or algorithmic content spread on their platforms.

Re-read that last sentence, because it accurately reports the question the Court must address. Much of the media coverage of these cases misstates that question. These cases  are not about determining whether the platforms can be held responsible for posts by the individuals who upload them. The issue is whether they can be held responsible for the algorithms that promote those posts–algorithms that the platforms themselves developed.

Section 230, which passed in 1996, is a part of the Communications Decency Act.

The law explicitly states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” meaning online platforms are not responsible for the content a user may post.

Google argues that websites like YouTube cannot be held liable as the “publisher or speaker” of the content users created, because Google does not have the capacity to screen “all third-party content for illegal or tortious materia.l” The company also argues that “the threat of liability could prompt sweeping restrictions on online activity.”

It’s one thing to insulate tech platforms from liability for what users post–it’s another to allow them free reign to select and/or promote certain content–which is what their algorithms do. In recognition of that distinction, in 2021, Senators Amy Klobuchar and Ben Ray Lujan introduced a bill that would remove tech companies’ immunity from lawsuits if their algorithms promoted health misinformation.

As a tech journalist wrote in a NYT opinion essay,

The law, created when the number of websites could be counted in the thousands, was designed to protect early internet companies from libel lawsuits when their users inevitably slandered one another on online bulletin boards and chat rooms. But since then, as the technology evolved to billions of websites and services that are essential to our daily lives, courts and corporations have expanded it into an all-purpose legal shield that has acted similarly to the qualified immunity doctrine that often protects policeofficers from liability even for violence and killing.

As a journalist who has been covering the harms inflicted by technology for decades, I have watched how tech companies wield Section 230 to protect themselves against a wide array of allegations, including facilitating deadly drug sales, sexual harassment, illegal arms sales and human trafficking — behavior that they would have likely been held liable for in an offline context….

There is a way to keep internet content freewheeling while revoking tech’s get-out-of-jail-free card: drawing a distinction between speech and conduct.

In other words, continue to offer tech platforms immunity for the defamation cases that Congress had in mind when Section 230 passed, but impose liability for illegal conduct that their own technology enables and/or promotes. (For example, the author confirmed that advertisers could easily use Facebook’s ad targeting algorithms to violate the Fair Housing Act.)

Arguably, the creation of an algorithm is an action–not the expression or communication of an opinion or idea. When that algorithm demonstrably encourages and/or facilitates illegal behavior, its creator ought to be held liable.

It’s like that TV auto ad that proclaims “this isn’t your father’s Oldsmobile.” The Internet isn’t your mother’s newspaper, either. Some significant challenges come along with the multiple benefits of modernity– how to protect free speech without encouraging the barbarians at the gate is one of them.

 

Comments

Muskets and AR-15s

Correction of  a previous post: I was so astonished by an email from a very reliable friend that I failed to check his assertion that Jim Lucas would be introducing a bill to give gun purchasers a tax credit. It turns out to have been a joke from my friend–plausible thanks to the fact that Lucas is verifiably nuts–but unforgivable on my part for repeating something without checking its accuracy. Mea Culpa.

_______________

I rarely post about America’s fixation with guns–or to be more accurate, the fixation of some Americans with guns. That isn’t because it is unimportant–it’s because I’ve concluded it’s hopeless. Whatever our more rabid gun-lovers are compensating for (use your imagination), the addiction is beyond my ability to address.

I still remember a conversation I had years ago with George Geib. George was a fixture at Marion County GOP headquarters, where–among other things–he trained precinct workers. He was also a longtime history professor at Butler. I had just become Executive Director of Indiana’s ACLU, and asked him to serve on a committee I was forming to try to resolve disputes within the Board on interpretation of the 2d Amendment.

George declined, telling me that “The 2d Amendment gives you a right to carry a musket and powder horn! Period.”

I thought about George’s response when I read a recent newsletter from Robert Hubbell,  discussing the fallout from New York State Rifle & Pistol Association v. Bruen –a Supreme Court decision written by Clarence Thomas. Bruen held that modern gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.”

As Hubbell noted, that test effectively limits the regulation of guns to laws in place in the 18th century.

Unfortunately, the decision limited regulation–not items being regulated–to the 18th Century, rather than following more rational Court precedents in cases involving modern technologies. For example, a few years back (before the Court was captured by rightwing ideologues in robes), the Court was faced with a case requiring an updated interpretation of what constitutes a “search” for 4th Amendment purposes.

In that case, Kyllo v. United States, the Court ruled that the use of a thermal imaging device to monitor heat radiation in or around a person’s home, even if conducted from a across the street, is unconstitutional without a search warrant. (The device allowed police to detect pot growing in the home’s basement.)

In the Founders’ day, a “search” required officials to trespass–to enter the premises being searched. By 2001, when Kyllo was decided, technology allowed police to search from across the street. Was that still a search, requiring probable cause? The Court–quite properly, in my opinion–said yes, in a majority opinion written by that noted “liberal” Antonin Scalia. 

Clarence Thomas, presumably, would now disagree, although he was in the majority in Kyllo.

I define an actual originalist as someone who understands what value the Founders were trying to protect, and proceeds to protect that value in a world the Founders could never have imagined. (I used to ask my students what James Madison thought about porn on the internet.)

Madison and the other Founders couldn’t have foreseen the Internet–or radio, television or movies– but we apply their concerns about freedom from government censorship to those platforms.

It is insane to define “originalism” as refusal to regulate any technology that didn’t exist in the 18th Century.

Thanks to the Court’s surrender to the gun lobby in Bruen,  the reactionary Fifth Circuit Court of Appeals has now invalidated a law that prohibited defendants accused of domestic violence from possessing a firearm during the time the court was engaged in a determination of guilt– even if the court had made a preliminary finding that allowing the defendant access to a firearm presented a risk of violence.

As the link from Vox reports:

 In New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court tossed out the old two-step framework in favor of a new test that centers the history of English and early American gun laws.

Under this new framework, the government has the burden of proving that a gun regulation “is consistent with this Nation’s historical tradition of firearm regulation,” or else that regulation must be struck down. Bruen, moreover, strongly suggests that a gun law must fall if it addresses a “general societal problem that has persisted since the 18th century” and the government cannot identify a “distinctly similar historical regulation addressing that problem.”

Moreover, Bruen said, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”

If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld. The early American republic was a far more sexist place than America in 2023, and it had far fewer laws protecting people from intimate partner violence.

Indeed, until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other,” it was legal in every state for married partners to beat their spouses.

But we can probably ban muskets and powder horns…..

Comments

First It Was Taney

The New Republic recently published a long but incredibly illuminating essay on the Supreme Court.It deserves to be read in its entirety.

The author, Brynn Tannehill, compared the Roberts Court to past Courts that today are widely considered to have decided important cases wrongly–beginning with the Taney Court. In 1857, that Court decided  in Dred Scott that Scott was not a free man, that no Black person could be a citizen of the United States, and that Black people were not entitled to Constitutional protections. As Tannehill says, that decision doomed the country to civil war.

Worse, Taney’s Court effectively eliminated the rights of free states to prohibit slavery on their own territory– relying on the same sort of “originalist” logic used by Justice Alito in Dobbs v. Jackson.

Roger Taney was not the only Chief Justice to preside over a retrograde Supreme Court. Following the Civil War, the Court led by Chief Justice Morrison Waite, “delivered decision after decision that ended Reconstruction.”

In United States v. Reese, the court ruled 7–2 that “racially neutral” voter suppression measures such as poll taxes, literacy tests, and the grandfather clause were constitutional. In United States v. Cruikshank, the Waite court ruled 9–0 that the federal government had no right to arrest the people responsible for the Colfax Massacre, the 1873 Louisiana riot where dozens of Black militiamen were murdered by a white mob. The Waite court also decided unanimously in Minor v. Happersett that women do not have a constitutional right to vote.I

n Elk v. Wilkins, the Waite court ruled 7–2 that being born on U.S. soil did not grant citizenship to Native Americans. The court also upheld miscegenation laws 9–0 in the 1883 case Pace v. Alabama. That same year, a majority struck down the Civil Rights Act of 1875 in The Civil Rights Cases of 1883. Later, in 1896, under Chief Justice Melville Fuller, the Supreme Court enshrined segregation via Plessy v. Ferguson, under the rubric of states’ rights.

Ironically, these decisions were framed as protective of limited government and individual liberty–as Tannehill writes, “freedom in the abstract, but only in the abstract.”

As if to drive this point home, the Roberts court ruled in Shinn v. Ramirez that it doesn’t matter if a person is innocent based on the preponderance of the evidence; so long as procedure was followed, the state can still execute people. Justice in the abstract, and only in the abstract, all over again.

Then there’s the Roberts Court.

It struck down most of the Voting Rights Act . It permitted states to strip Native Americans of their right to vote using the pretext of preventing voter fraud.  Worst of all, the court recognized that partisan gerrymandering is inconsistent with democracy, but declined to do anything about it.

The Roberts Court also seems intent on eviscerating Jefferson’s wall between church and state. It keeps finding that Christian organizations have a right to government money, as well as a “freedom”  to discriminate against LGBTQ people, Jews, and others.

This is freedom in the abstract: Even if Jews and LGBTQ people were allowed to discriminate against Christians, it would have a negligible impact on Christians compared to Christians being permitted to discriminate against groups that make up much smaller percentages of the population. It is akin to saying Christians can only shop at Kroger, and Jews can only shop at Jewish-run businesses: The harm falls disproportionately on the minority groups.

Tannehill reviews several pending cases with potential to upend federalism:

But the real Dred Scott moment will be at hand when red states begin trying to extradite people from the blue states for the crime of getting abortions, providing abortions, or providing transition-related care to transgender people. Deep blue states have been creating haven and sanctuary laws to protect women, doctors, transgender people, and parents of trans youth. Both California and Massachusetts have passed sanctuary laws that would prevent people from being extradited for seeking abortions in their states. Given that eradicating abortion and eliminating health care for trans people have become the top social policy priorities for conservatives, the reaction from powerhouses like the Heritage Foundation has been swift: They see these blue-state moves as a direct threat to their agenda.

Eventually, the Supreme Court will have to decide, are people free once they leave a state like Texas? Or do they remain property of that state forever, even if they leave?

It’s entirely possible that this Court would follow Dred Scott and allow extradition. If so, officials in the “sanctuary” states would be under heavy pressure to refuse to comply.

At that point, federalism, and the Union, are dead, as states refuse to recognize the legitimacy of court decisions, and the comparisons with the Taney court are complete.

You really need to read the entire essay.

Comments