Category Archives: Constitution

It’s We, The People

Robert Kagan recently published a lengthy excerpt from his recent book  “Rebellion: How Antiliberalism is Tearing America Apart — Again” in the Washington Post.

In it, he dismissed a variety of explanations for the MAGA embrace of Trump–discarding arguments that the movement is a result of rapidly changing technology, widening inequality, unsuccessful foreign policies or unrest on university campuses. Instead, he pinned it on failures of We the People.

It is what the Founders worried about and Abraham Lincoln warned about: a decline in what they called public virtue. They feared it would be hard to sustain popular support for the revolutionary liberal principles of the Declaration of Independence, and they worried that the virtuous love of liberty and equality would in time give way to narrow, selfish interest. Although James Madison and his colleagues hoped to establish a government on the solid foundation of self-interest, even Madison acknowledged that no government by the people could be sustained if the people themselves did not have sufficient dedication to the liberal ideals of the Declaration. The people had to love liberty, not just for themselves but as an abstract ideal for all humans.

Kagan worries that too many of us no longer care about preserving the system the Founders bequeathed us–a system based on the principles of universal equality and natural rights. Preserving that system, he says, “plain and simple, is what this election is about.”

“A republic if you can keep it,” Benjamin Franklin allegedly said of the government created by the Constitutional Convention in 1787. This is the year we may choose not to keep it.

Kagan follows that sentence with an extended recap of what most Americans know–about the intent of the January 6th insurrection, about Trump’s candid announcements of his goals, about the unconscionable failure of the Senate to use impeachment, the mechanism provided by the Founders, to negate the threat of further insurrection. Then he gets to the crux of his argument.

So, why will so many vote for him anyway? For a significant segment of the Republican electorate, the white-hot core of the Trump movement, it is because they want to see the system overthrown. This should not come as a shock, for it is not a new phenomenon. On the contrary, it is as old as the republic. Historians have written about the “liberal tradition” in America, but there has from the beginning also been an anti-liberal tradition: large numbers of Americans determined to preserve preliberal traditions, hierarchies and beliefs against the secular liberal principles of the Declaration of Independence and Bill of Rights. The Founders based the republic on a radical set of principles and assertions about government: that all human beings were created equal in their possession of certain “natural rights” that government was bound to respect and to safeguard. These rights did not derive from religious belief but were “self-evident.” They were not granted by the Christian God, by the crown or even by the Constitution. They were inherent in what it meant to be human.

That paragraph introduced a lengthy historical discussion in which Kagan reminded readers that MAGA is really nothing new. Throughout our history, significant numbers of Americans have rejected the classical liberal foundations of the nation’s constituent documents–and especially the notion of civic equality.

For two centuries, many White Americans have felt under siege by the Founders’ liberalism. They have been defeated in war and suppressed by threats of force, but more than that, they have been continually oppressed by a system designed by the Founders to preserve and strengthen liberalism against competing beliefs and hierarchies. Since World War II, the courts and the political system have pursued the Founders’ liberal goals with greater and greater fidelity, ending official segregation, driving religion from public schools, recognizing and defending the rights of women and minorities hitherto deprived of their “natural rights” because of religious, racial and ethnic discrimination. The hegemony of liberalism has expanded, just as Lincoln hoped it would, “constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of colors everywhere.” Anti-liberal political scientist Patrick Deneen calls it “liberal totalitarianism”….

Kagan reminds us that the fury on the Right against “wokeness” is nothing new. “Anti-liberal movements in America, whether in defense of the White race or Christianity, and more often both together, have always claimed to be suffering under the expanding hegemony of liberalism.”

There is much more, and it is definitely worth reading in its entirety.

Bottom line: MAGA’s Christian Nationalism is nothing new. In November, We the People will either defend our “natural rights” or we will lose them.

Comments

Not Even A Festivus For The Rest Of Us…

Unlike most Americans, I was never a big “Seinfeld” fan, but many of the sitcom’s jokes became widespread–none more than its promotion of “Festivus for the rest of us,” a “celebration” for those who don’t celebrate Christmas.

What brought that mythical holiday to mind was a very unfunny report from Talking Points Memo about America’s growing Christian Nationalist movement, a movement that–if successful–will leave no room for alternate (i.e. nonChristian) holidays. The sub-head really says it all: “From traditional Christian-right figures to secret societies envisioning a ‘national divorce,’ a growing contingent of radical activists is planning for Christian supremacy.”

The report was written by Sarah Posner, a journalist who has covered the Christian Right for two decades.

Over the past three years, I began to more frequently use the term “Christian nationalism” to describe the movement I cover. But I did not start using a new term to suggest its proponents’ ideology had changed. Instead, the term had come into more common usage in the Trump era, now regularly used by academics, journalists, and pro-democracy activists to describe a movement that insists America is a “Christian nation” — that is, an illiberal, nominally democratic theocracy, rather than a pluralistic secular democracy.

To me, the phrase was highly descriptive of the movement I’ve dedicated my career to covering, and neatly encapsulates the core threat the Christian right poses to freedom and equality. From its top leaders and influencers down to the grassroots — politically mobilized white evangelicals, the foot soldiers of the Christian right — its proponents believe that God divinely ordained America to be a Christian nation; that this Christian nation has come under attack by liberals and secularists; and that patriotic Christians must engage in spiritual warfare to rid America of demonic forces, and in political action to restore its Christian heritage. That includes taking political steps — as a voter, as an elected official, as a lawyer, as a judge — to ensure that America is governed according to a “biblical worldview.”

Those of us who occupy a far more secular America have been laboring under the misapprehension that religious wars are things of the past. Those of us who are comfortable in a society formed in large part by changes introduced during the Enlightenment–respect for science and empiricism, belief that governments derive their powers from the people, not from deity–have a hard time recognizing, let alone understanding, a worldview that remains rooted in the 16th Century. But that is the worldview that has spawned today’s politically active megachurches, and what the article calls “culture-shaping organizations like Focus on the Family and the Family Research Council.

These “Christian soldiers” want governance according to their vision of a biblical worldview. They oppose church-state separation, want expanded rights for conservative Christians, are dead-set against abortion and LGBTQ rights, and are extremely hostile to trans people and trans rights. (Here in Indiana, Jim Banks–currently the unopposed Republican candidate for U.S. Senate, often called “Focus on the Family’s man in Washington, is a perfect example of a Christian Nationalist “warrior.”)

Posner and several others have noted the prominence of Christian iconography at the January 6 insurrection, and the growing willingness of MAGA Christians to tolerate, even welcome, virulent racists, anti-Semites and other extremists in their midst. As she writes, “Their entire alliance with Trump is one of sharing political and ideological space with the overtly antisemitic, racist, Islamophobic, nativist extremists he elevated to mainstream status in the GOP.”

Posner describes the various strands within Christian Nationalism, but notes commonalities as well: they “believe they are restoring, and will run, the Christian nation God intended America to be — from the inside.”

They will do that, in their view, through faith (evangelizing others and bringing them to salvation through Jesus Christ); through spiritual warfare (using prayer to battle satanic enemies of Christian America); and through politics and the law (governing and lawmaking from a “biblical worldview” after eviscerating church-state separation). Changes in the evangelical world, particularly the emphasis in the growing charismatic movement on prophecy, signs and wonders, spiritual warfare, the prosperity gospel, and Trumpism, has intensified the prominence of the supernatural in their politics, giving their Christian nationalism its own unmistakable brand.

Every single MAGA politician elected in November will be a foot-soldier for Christian Nationalism. A Trump victory would give them free reign to remake America in accordance with a “Godly” vision–a vision that was expressly rejected by the nation’s Founders.

The world that these Christian Nationalist politicians inhabit (and want to impose upon all of America) is pre-modern, intolerant, anti-science, anti-democracy. It has no room for “the rest of us.”

Comments

Why America Has Minority Rule

As the election season heats up, saving American democracy has become a central preoccupation of those of us who fear a second Trump administration. But even if we are able to turn back the threat posed by MAGA and Trump, we will need to face the fact that America hasn’t been a true democracy–or democratic Republic– for quite awhile (if ever), even if your definition of democratic rule incorporates the limits on majority rule imposed by the Bill of Rights. (I do accept that definition–the Founders created a system that empowered majority decision-making on many things, but limited the power of government when such limits were necessary to protect individual rights. Those are limitations we can live with.)

Other limitations, not so much. Thanks to the composition of the Senate and other obsolete electoral mechanisms, America is currently governed by a (largely rural) minority.

I’ve frequently alluded to that reality, and to both the pressing need to change it and the difficulty of doing so, but as my oldest son noted when he shared a link to a Mother Jones article, “This article provides an excellent overview of the situation.”

He’s right.

The article was abstracted from Ari Berman’s new book, Minority Rule: The Right-Wing Attack on the Will of the People—and the Fight to Resist It, which will be published April 23.  Berman began by quoting a recent speech by President Biden, in which he warned: “We’re living in an era where a determined minority is doing everything in its power to try to destroy our democracy for their own agenda.”

That’s undoubtedly true. But the crisis Biden described—and the choice facing the nation this November—is much older and deeper than Trump. A determined minority has been trying to shape the foundations of American governance for their own benefit since the inception of the republic. For more than two centuries, a fierce struggle has played out between forces seeking to constrict democracy and those seeking to expand it. In 2024, the country is once again immersed in a pivotal battle over whom the political system should serve and represent.

Berman writes that the United States has historically been a laboratory for both oligarchy and genuine democracy, and that understanding that fight requires us to grasp what he calls the “long-standing clash between competing notions of majority rule and minority rights.”

The founders, despite the lofty ideals in the Declaration of Independence, designed the Constitution in part to check popular majorities and protect the interests of a propertied white upper class. The Senate was created to represent the country’s elite and boost small states while restraining the more democratic House of Representatives. The Electoral College prevented the direct election of the president and enhanced the power of small states and slave states. The makeup of the Supreme Court was a product of these two undemocratic institutions. But as the United States has democratized in the centuries since, extending the vote and many other rights to formerly disenfranchised communities, the antidemocratic features built into the Constitution have become even more pronounced, to the point that they are threatening the survival of representative government in America.

I was especially struck by the following paragraph, which succinctly sums up where we find ourselves today:

The timing of our modern retreat from democracy is no coincidence. The nation is now roughly 20 years away from a future in which white people will no longer be the majority. New multiracial coalitions are gaining ground in formerly white strongholds like Georgia. To entrench and hold on to power, a shrinking conservative white minority is ­relentlessly exploiting the undemocratic elements of America’s political institutions while doubling down on tactics such as voter suppression, election subversion, and the censoring of history. This reactionary movement—which is significantly overrepresented because of the structure of the Electoral College, Congress, and gerrymandered legislative districts—has retreated behind a fortress to stop what it views as the coming siege.

The article reinforces what numerous legal scholars and historians have argued, that the compromises the Founders made in the late 1700s–intended to keep the new nation together– are enabling minority rule in 2024, and ripping the country apart in the process. In 1776, there was fear of majoritarian excesses–what many of the Founders called “the passions of the majority.” Today, we face the excesses of a frantic and fanatic minority–a minority empowered by long-ago structures aimed at a very different target.

The article is lengthy, but well worth reading in its entirety. As my son noted, it provides an accurate and comprehensive description of the systemic problems that have hollowed out American democracy and brought us to the current impasse.

Comments

The Pessimism Of The Elites

A while back, in one of Thomas Edsall’s weekly columns for the New York Times , he surveyed a variety of scholars on the question whether America is at a point of no return– whether crises he described as insoluble (cultural and racial conflict; a two-tier economy, one growing, the other stagnant; inequality and economic immobility; and a divided electorate based on educational attainment) taken together, foreshadow the country’s inevitable decline.

The scholars who responded  were uniformly pessimistic.

As one of them wrote, his concerns were based upon the fact that today’s Americans seem to have lost the ability–critically important to democracies– to reform ourselves and correct mistakes.  What worries him most, he wrote, is

the decline in a common American identity. Americans lead increasingly separate and different lives. From “out of many one” no longer applies. This is truly dangerous, as this is a country founded on an idea (rather than class or demographic homogeneity), and that idea is no longer agreed on, much less widely held. I am no longer confident there is the necessary desire and ability to make this country succeed. As a result, I cannot rule out continued paralysis and dysfunction at best and widespread political violence or even dissolution at worst.

Other respondents pointed to economic stresses, especially the enormous gap between the rich and the rest, and profound shifts in cultural values. Pippa Norris, one of America’s most perceptive scholars, focused on the weaknesses inherent in two-party systems, which are most vulnerable to democratic backsliding when voting publics become polarized.

Where there is a two-party system despite an increasingly diverse plural society and culture, where multidimensional ideological polarization has grown within parties and the electorate and where there are no realistic opportunities for multiparty competition, which would serve as a pressure-valve outlet for cultural diversity, as is common throughout Europe.

Norris noted that political systems struggle to provide outlets for “alternative contenders” who reflect the new issue agendas of the Left and Right.

The longer this continues, the more the process raises the stakes in plurality elections and reinforces us-them intolerance among winners and especially losers, who increasingly come to reject the legitimacy of the rules of the game where they feel that the deck is consistently stacked against them.

She ties the grievances of those “losers” to their willingness–eagerness–to accept false claims.

The most plausible misinformation is based on something which is actually true, hence the great-replacement theory among evangelicals is not simply made-up myths; given patterns of secularization, there is indeed a decline in the religious population in America. Similarly for Republicans, deeply held beliefs that, for example, they are silenced, since their values are no longer reflected in mainstream media or the culture of the Ivy Leagues are, indeed, at least in part, based on well-grounded truths. Hence the MAGA grass-roots takeover of the old country club G.O.P. and authoritarian challenges to liberal democratic norms.

Edsall’s column quotes other, equally pessimistic, responses, offering still other analyses of what is undermining America’s unity and sense of purpose. Adding to the “doom and gloom” predictions, a former member of a Republican administration wrote that,

if the G.O.P. wins in 2024 or even wins enough to paralyze government and sow further doubts about the legitimacy of our government and institutions, then we drift steadily toward Argentina-style populism, and neither American democracy nor American prosperity will ever be the same again.

All of the observations quoted in the column are grounded in contemporary realities. They are based upon thoughtful and considered scholarly reviews of vetted data.

But.

There are definitely aspects of our contemporary situation that are new–challenges that previous Americans didn’t face. That said, however, acknowledging that fact is not the same as concluding that these times and challenges are more dangerous or perilous than those we’ve previously faced and overcome. Goodness knows I’m no Pollyanna (as anyone who reads these daily posts can confirm!), but a reasonable acquaintance with American history might help to put our current hostilities into context. One of the reasons to subscribe to the very popular Substack of historian Heather Cox Richardson is precisely because she offers that context, reminding readers that we have emerged from past conflicts that have also threatened to destroy what I insist upon calling “The American idea.”

If–and I grant it’s a big “if”–America comes through the November elections having rejected the MAGA haters and malcontents, the very best thing we can do to heal our fragmented body politic is strengthen education in accurate American history and especially civics.

It’s hard to encourage citizens to embrace “The American Idea” if they don’t know what that is.

Comments

What Is The Comstock Act?

During the recent Supreme Court argument over Mifepristone, Justices Alito and Thomas both raised the possibility that a case brought under the Comstock Act would be stronger than the one being argued. (Legal scholars have noted the multiple deficiencies in the current case, which–had Trump not appointed an intellectually-dishonest extremist to a Texas federal judgeship–would never have reached the Supreme Court.)

What, you may ask, is the Comstock Act?

Back in 1999, I edited “Free Expression in America: A Documentary History” for Greenwood Press. Producing the book required me to identify, reprint and explain documents that told the evolving story of America’s free speech jurisprudence. I began with “Foundations of Liberty”–the Magna Carta, Areopagitica and Cato’s Letters–proceeded through Common Sense, the Virginia Declaration of Rights, the First Amendment and several others, and on through America’s various battles with censorship to the late 1990s.

In a section titled “1900-1950: A Half-Century of Paternalism” I included “Birth Control and Public Morals: An Interview with Anthony Comstock.” I introduced the interview by noting that contemporary readers might come away considering Comstock a caricature. (Even at his most influential, he was widely ridiculed.) Comstock founded the Society for the Suppression of Vice, and he saw vice pretty much everywhere he looked. He campaigned against the publication of “vile books,” which he argued were responsible for “debauching” young men, and it isn’t an exaggeration to say that he considered any publication dealing in any way with sex to be “vile.” He was particularly offended by then-current efforts to provide women with birth control information.

The Act reads as follows:

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” 

The Comstock Act was passed in 1873, and although it hasn’t been explicitly repealed, most lawyers believe that intervening case law has rendered it unenforceable. 

Justices Alito and Thomas are so intent upon banning abortion they have evidently overlooked the sweep of the Act, which would go far, far beyond preventing abortifacients from being mailed. Comstock was intent upon preventing the dissemination of anything and everything he found “vile,” including, in his own words “intemperance, gambling and evil reading.” He classed contraceptives with pornography, and when questioned about that, replied that “If you open the door to anything, the filth will pour in and the degradation of youth will follow.”

Even during his lifetime, Comstock was widely regarded as an unbalanced anti-sex zealot; his Society for the Suppression of Vice was intent upon censoring books, magazines or other materials describing or touching on sex, very much including medical information and information about contraception. (The Comstock Act at one time prevented the mailing of anatomy textbooks to medical students.)

In Comstock’s fanatic view, “Any indecent or immoral use” covered a lot of ground, much of it misogynistic. There’s a reason a recent biography of him is titled “The Man Who Hated Women.”

Trying to resuscitate Comstock’s “zombie law” will raise some interesting legal questions. Can the anti-abortion provisions be severed from the clearly unconstitutional censorship provisions of the Act? Does the prohibition against use of the U.S. mail extend to Federal Express and other private carriers? 

Are Alito and Thomas so desperate to control the lives and reproductive liberties of American women–so desperate to take us back to a time when women were breeding property– that they’re willing to revive Comstockery? 

Comments