Category Archives: Constitution

An Idea Whose Time Has Definitely NOT Come

Periodically, I come across reports updating progress toward a so-called “Article V” Constitutional Conventions. The last time I looked, twenty-eight states had called for one; only thirty-four are needed.

I’ve shared my concerns about that movement previously–in mid-2014, in a column for the Indianapolis Business Journal, and again, on this blog,  in 2017. The major forces behind this effort to convene what proponents call an “Article V” convention are ALEC and the Koch brothers, which tells you pretty much everything you need to know about the motives of the proponents..

My original arguments against calling such a convention were rooted in history, which tells us that major changes in government rarely reflect the relatively benign and/or limited expectations of people who agitate for that change.

In this case, state lawmakers who favor a new constitutional convention argue that it would allow delegates to devise a framework for reigning in overspending, overtaxing and over-regulating by the federal government and would move the U.S. toward a less centralized federal government. Many of them insist that an Article V convention could be limited to consideration of those goals.

Warren Burger, former Chief Justice of the United States, begged to differ, writing

[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention.  The Convention could make its own rules and set its own agenda.  Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey.  After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.

But even if a convention could be limited, the enumerated goals are Pandora-box wide.

For example, Wall Street bankers argue that financial laws are “overregulation;” if polls are to be believed, most taxpayers view the same rules as barely adequate.

My definition of “overspending” would include the massive subsidies enjoyed by fossil fuel companies and the obscene amounts we spend on the military; yours might be Medicare or farm subsidies. 

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

I could go on. And on. But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes, or even the  predictable influence of well-heeled special interests. The real danger is in calling together a representative group of Americans and asking them to amend a document that few of them understand.

Even bright graduate students came into my classes with little or no knowledge of American history or government. Most had never heard of the Enlightenment or John Locke or Adam Smith. A truly depressing percentage of my undergraduate students were unable to explain what a government is, and had no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

The danger inherent in calling deeply polarized and depressingly under-educated politicians together to “improve” the Constitution should be obvious. Do we really want people like Marjorie Taylor Greene or Paul Gosar—or their Red-state-level clones–deciding how the American Constitution should be changed?

In the years since I first became aware of this effort, I have seen no reason to revisit my original concerns about such a convention. As Common Cause has warned,

With no rules and complete uncertainty about the constitutional process, an Article V convention would cause political and economic chaos. There is no language in the U.S. Constitution to limit a convention to one issue, no guidelines for rules to govern a convention, no rules on who picks the delegates and how they are selected, no guarantee that the American people would be equally represented, and no limits on corporate special interest influence.

I can only imagine what sorts of regulatory changes the Koch brothers hope to make, or what the armies of anti-journalism “Trumpers” would do to the freedoms of speech and press. Proponents of Pence-style “religious freedom” (a/k/a the privileging of fundamentalist Christianity) would see this as a God-given (!) chance to dismantle the Wall of Separation between Church and State.

We should also remind those who see such a convention as their chance to get rid of all those pesky constitutional provisions that keep them from installing a government more to their liking, that they are also at risk. A convention might also end up with participants reflecting  the majority of Americans who think it’s time to get rid of the Second Amendment and the Electoral College, and a great idea to outlaw gerrymandering…

In other words, such a convention would be a monumental crap-shoot.

Comments

A Dishonest Court. A Dishonest Case.

I’ll begin with a warning: This will be a bit longer than my usual post, because I’m livid.

I began to write about 303 Creative v. Elenis, the case brought by a website designer who wants an exemption from Colorado’s civil rights/public accommodation law. She claims her “sincere religious beliefs” prevent her from “endorsing” same-sex marriages, and wants the Supreme Court to exempt her from the law’s non-discrimination requirement. She is asserting that the First Amendment–which among other things  prohibits government from compelling speech–protects “artists” and those engaged in “expressive” work from endorsing behaviors they consider sinful, and  further asserts that the act of providing a wedding website would constitute such endorsement.

Initially, I just intended to argue that framing this conflict as a Free Speech issue is dishonest.

.As David Cole pointed out in the New York Times, 

The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians?

Cole points out that artists don’t have to open businesses in the first place.

Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.

Cole also reminds us that  businesses open to the public are free to define the content of what they sell. “A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.””

The lawsuit frames a website designer as an “artist” who should be exempt from public accommodation laws because her product includes an “expressive” element. As Cole points out, multiple businesses are expressive: interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among others.

I intended to argue that, on the ground of dishonest framing alone, the plaintiff should lose. But then I did some further research, and what I found appalled me.

I already understood that this case had been intentionally  constructed–manufactured– to appeal to our newly theocratic Supreme Court majority. The plaintiff has the same lawyer who brought the bakery case a few years ago raising the same arguments. The Court essentially “punted” on that one, returning it to Colorado without reaching the merits, and this case has clearly been manufactured to try again.

But that isn’t the half of it. Robert Hubbell provides the ugly underside.

It turns out that this case does not involve an actual “case or controversy”—as required by the Constitution.( In the United States, courts are not allowed to issue advisory opinions, only to decide actual, existing conflicts.)

In general, the jurisdiction of federal courts is limited to real disputes in which the plaintiff can show actual injury. (That is a gross oversimplification of a complicated judicial doctrine, but stick with me for a moment!)

 The 303 Creative “controversy” was manufactured by a religious advocacy organization (ADF). The plaintiff is a web design company that might—in the future—offer such services for weddings. But the plaintiff does not yet offer that service, may never do so, and (therefore) has not yet been asked to provide those services to a same-sex couple. Nonetheless, the plaintiff asks the Court for an advisory ruling about its obligations under a Colorado statute prohibiting discrimination on the basis of sexual orientation.

No same-sex couple has ever asked Smith to make them a wedding website; in fact, she has never made a wedding website for anyone. Her work to date focuses on local politicians, dog breeders, contractors, and houses of worship—not celebrations of life events.

Smith one day might be asked to make a same-sex couple’s website, ADF asserted. And when that day comes, she wants the right to say no.

The first question any lawyer–or any law student– would ask is: in the obvious absence of an actual case or controversy, why did the Court agree to hear this case? I’m afraid the answer to that is chilling: because this is a Court with a rogue, theocratic majority intent upon imposing  religious beliefs held by a minority of Americans on the rest of us–intent upon making the U.S. a “Christian nation.”

There’s more. It turns out that the Colorado statute already has language that would allow Smith to refuse to make a custom website for same-sex couples.  Only  if the business offers “off the shelf” website designs for sale to the general public would she be required to sell them to anyone who wants one. This so-called “artist” wants the Court to say that she can refuse to sell a standardized product to same-sex couples.

Let’s get real. If a business owner really, sincerely doesn’t want to work with particular customers,  it is supremely easy to evade nondiscrimination laws. The proprietor can always say something like, “Gee, Mrs. Smith, I am so backed up with orders that I can’t meet your timeline,” or “I’m so sorry, Mr. Jones, but I’m short-handed right now”…there are lots of ways these pious bigots can refrain from “participating in sin” without trumpeting their disdain or trying to change the law to encourage others to discriminate.

I will also note that the use of such all-purpose excuses would allow Smith to deny service to other “sinners”–surely her “sincere” religious beliefs would prohibit sales to adulterers or women who’ve had abortions, or atheists…interesting how these “godly” folks are laser-focused on just one sin…

It’s depressing enough to realize how many “Christian soldiers” are fixated on making life miserable for us “others.” It is absolutely terrifying to realize that the Supreme Court of the United States is controlled by theocrats intent upon eviscerating the wall of separation erected by the First Amendment’s religion clauses in order to enforce their version of “morality” on all  Americans.

Iran has morality police. How’s that working out for them?

Comments

Another “Be Careful What You Wish For”

As regular readers of this blog know, I am firmly convinced that gerrymandering is at the root of many–if not most–of America’s electoral dysfunctions. As a result of that conviction, and my general nerdiness, I have often consulted the Princeton Electoral Innovation Lab and especially its gerrymandering project, run by Sam Wang, a professor of neuroscience at Princeton.

Wang recently authored a very interesting analysis of the likely results of a win for the “independent state legislature” theory, a theory being advanced by Republicans in the upcoming Supreme Court case of Moore v. Harper. 

The GOP argument–dismissed by most legal observers as essentially wack-a-doodle–would re-interpret and greatly expand the effect of constitutional language granting state legislatures authority over elections.That language has always been understood to mean that the legislature passes state election laws, but that, just as with other laws, whatever they pass has to be consistent with their own state constitutions–meaning that those laws can be overturned by a court or vetoed by a governor. Proponents of the Independent State Legislature theory argue that the language  gives absolute authority to state legislatures, and that whatever they pass cannot be overturned by courts or vetoed by Governors.

Given the ideological makeup and ethical deficiencies of our rogue Supreme Court, its acceptance of the case has produced significant angst in the political and legal communities.

Endorsement of the theory would strike a devastating blow against the checks and balances that constrain governmental shenanigans.  Winning the freedom to evade democratic rules–freedom to rig elections– may make the Republicans who are arguing for the theory happy, but Wang shows that if the Court accepts it, it will actually end up benefitting Democrats.

His explanation–accompanied by graphs you should really click through to see, is as follows:

But if the Republicans win in the U.S. Supreme Court, the result on a national scale would almost certainly benefit Democrats. Why? Because outside North Carolina, only swing states and blue states have curbed partisan gerrymandering. In Pennsylvania, New York, Connecticut, Minnesota, New Hampshire, Wisconsin and Virginia, this was done through the intervention of governors or voting-rights-minded state courts; in Arizona, California, Michigan and Colorado, citizen initiatives gave redistricting authority to independent commissions.

One way to see the Democrats’ likely advantage: In the 2020 presidential election, the 12 states where districts were drawn by courts or independent commissions gave 184 electoral votes to Joe Biden and only 15 electoral votes (those from North Carolina) to Donald Trump.

A win for Moore would potentially unleash all those states to redistrict at will. In contrast, in 19 states where Republicans already have legislative control of redistricting, many partisan gains are maxed out, and nothing would change.

Wang’s laboratory analyzed the effects of the Court’s acceptance of arguments being made on behalf of the theory, examining partisan possibilities in each state, and concluded that  “election maps completely controlled by state legislatures would change the overall balance of congressional seats in Democrats’ favor.”

Wang explains that there are two possible analytical paths to a Court endorsement of the Independent state legislature theory.  If they chose the first, it would liberate several Democratic states to gerrymander by removing state court authority. (He points out that just this year, New York courts struck down that state’s pro-Democratic gerrymander.)

Democrats would also gain power if independent citizen commissions were struck down. In 2010, citizens gave an independent commission power over congressional redistricting in deep-blue California, with the support of then-Gov. Arnold Schwarzenegger, a Republican. Since then, Michigan and Colorado, two states now controlled by Democrats, have also formed independent commissions. Striking down these three commissions would give Democrats the ability to draw themselves up to a dozen additional seats.

Both liberal and conservative legal scholars have overwhelmingly argued against the independent state legislature doctrine. As Wang notes, proponents of this very novel theory are “hoping to find a receptive audience in a reactionary and increasingly activist Supreme Court.”

He also observes that–should the Court hand down a decision repudiating the theory–Republicans should consider themselves lucky.

The last time I argued that the GOP should be careful what they wished for, I was predicting  a huge anti-GOP backlash to the over-ruling of Roe v. Wade. The data emerging from the midterm elections–where the anticipated “Red wave” was held to a trickle– confirmed the potency of that response.

I am not rooting for the Court to adopt a ridiculous mis-reading of a Constitutional provision. Such a result would be enormously dangerous; it would dramatically erode American democracy. Gerrymandering doesn’t suddenly become less anti-democratic when it’s being done by my preferred team.

But the result Wang predicts would serve the Rightwing a-holes right…

Comments

Ron “Contempt For The Constitution” DeSantis

Yesterday’s blog post noted that Florida man Ron DeSantis is a favorite of the New Right. A recent judicial opinion, striking down one of his many outrageous attacks on the Constitutional rights of Florida citizens explains why.

A federal judge on Thursday halted a key piece of the “Stop-WOKE” Act touted by Republican Gov. Ron DeSantis, blocking state officials from enforcing what he called a “positively dystopian” policy restricting how lessons on race and gender can be taught in colleges and universities.

The 138-page order from Chief U.S. District Judge Mark Walker is being heralded as a major win for campus free speech by the groups who challenged the state.

Among other “dystopian” provisions of DeSantis’ anti-woke law were rules about what university professors could–and could not–say in the classroom. As the Judge noted in his opinion, the law gave the state “unfettered authority to muzzle its professors in the name of ‘freedom.'”

Florida legislators passed DeSantis’ “Individual Freedom Act” earlier this year (a label reminiscent of George W. Bush’s anti-environmental “Blue Skies” Act..). The law prohibits schools and private companies from

leveling guilt or blame to students and employees based on race or sex, takes aim at lessons over issues like “white privilege” by creating new protections for students and workers, including that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.

The judge ruled that such policies violate both First Amendment free speech protections and 14th Amendment due-process rights on college campuses.

The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints,” wrote Walker. “Defendants argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian.”

This particular lawsuit challenged the application of the anti-Woke law to colleges and universities; other pending challenges assert that the law is illegal and unconstitutional when applied to  K-12 schools and to the workplace.

In a column discussing the law and the ruling, Jennifer Rubin noted,

The law, for example, bars discussion of the concept that a person “by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” During oral arguments, when asked if this would bar professors from supporting affirmative action in classroom settings, attorneys for the state government answered, “Your Honor, yes.”

Walker cited that admission, finding:

Thus, Defendants assert the idea of affirmative action is so “repugnant” that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction. … What does this mean in practical terms? Assuming the University of Florida Levin College of Law decided to invite Supreme Court Justice Sonia Sotomayor to speak to a class of law students, she would be unable to offer this poignant reflection about her own lived experience, because it endorses affirmative action.

The law so blatantly violates the concept of free speech that one wonders if remedial constitutional education should be a requirement for Florida officeholders.

No wonder the so-called intellectuals of the New Right see DeSantis as one of their own. He has consistently used his position and the power of the state to suppress the expression of views he dislikes. Rubin reminds readers of DeSantis’ “don’t say gay” law, his statute banning “critical race theory” in schools and his attempt to fire an elected county prosecutor who criticized his abortion policies. To which I would add his attacks on voting rights and his (successful) gerrymandering efforts.

DeSantis has also regularly flexed his power as governor: excluding media from events, taking public proceedings behind closed doors (including the selection of the University of Florida’s president) and exacting revenge on supposedly woke corporations such as Disney.

DeSantis’s contempt for dissent and his crackdown on critics should not be discounted. This is the profile of a constitutional ignoramus, a bully and a strongman. Voters should be forewarned.

DeSantis, Trump and the New Right sure don’t look anything like the libertarian, limited-government GOP I once knew…The only part of Rubin’s critique with which I disagree is her labeling of DeSantis as a “constitutional ignoramus.” It’s much worse than that.

Unlike Trump, who is an ignoramus, DeSantis knows better. He just doesn’t care.

Comments

Everyone Else Has To Vote

Jennifer Rubin is one of the clearest-eyed columnists around, and as the MAGA movement has demonstrated both its staying power and its ability to mesmerize  and propagandize angry voters, her clarity is welcome.

In a recent column for the Washington Post, Rubin “told it like it is.”

Right-wing pundits and Republican apologists are quick to blame “elites” or “the left” for a failure to respect and recognize the legitimacy of a MAGA movement based in election denial, White Christian nationalism and hostility toward robust democratic elections. It’s a demand for acceptance that is eerily reminiscent of other periods in U.S. history (e.g., the 1850s, the 1920s, the 1950s), which can illuminate the depth of our national problem.

Rubin referenced the eerily similar situation from just before the Civil War. Quoting from Jon Meacham’s recent book on Lincoln, she reminded readers that the South “could hear nothing more — could absorb nothing more — once it was told that the rest of the nation had found its way of life morally wanting. It felt judged, and it hated it.”

Substitute “election denier” for “the South,” and you have a fair approximation of the current state of American politics. Now, one side believes its viewpoint is essential to maintaining its power and its conception of America. It insists its followers can be “seen” only if the rest of us agree with their delusions and conspiracies.

That, of course, is not the way democratic systems work. Of course, the MAGA folks, as we have seen, are more than willing to jettison democracy if that’s what it will take to protect their status as the only “real” Americans–a status that they perceive (correctly) is endangered.

If there is no possibility of principled compromise–after all, how do those of us who occupy a fact-based reality “compromise” with delusion?–what can the rest of America do? Rubin doesn’t pull punches:

Aggravated by declining economic prospects, overwhelmed by the opioid epidemic and utterly divorced from mainstream news sources, they unsurprisingly glob onto conspiracies, hold up former president Donald Trump as their champion and refuse to process any information that conflicts with the victimhood they embrace.

While there are certainly persuadable voters who drift between the parties, one cannot attribute Democrats’ losses in certain areas of the country to “poor messaging” or even a specific policy failure. None of that would make any difference. It’s fantasy to think there is a segment of White male working-class voters eager to vote Democratic if only Democrats had not passed the American Rescue Plan or avoided dealing with bias in policing.

Rubin quite properly scorns the notion that policy differences explain the MAGA movement. The die-hards of MAGA are neither motivated nor mollified by policy. That said, she  also recognizes that the appeal of conspiracies and various bigotries grows in situations of precarity and financial insecurity, which means that efforts to address those problems makes sense. As she notes,it pays political and economic dividends to “draw down the venom” in communities where people feel left behind.

She also recognizes that Democrats running in states with very different political cultures will necessarily run different sorts of campaigns.

The paragraph I found most insightful, however, was this one:

Everyone else has to vote. There is no substitute for high engagement, high turnout and an educated electorate. If 90 percent of the money spent on ads that viewers literally tune out were devoted to organizing on college campuses and other low-turnout environs, the results would be quite different for the pro-democracy, pro-pluralism forces.

Everyone else has to vote.

Before every election, we hear that “this election is the most important in our lifetimes.” This year, that warning rings true.

We can argue about causes of inflation, how to  understand and address crime, how best to combat climate change….and a million and one other truly important issues. But a few short days from now, the ballots we cast will decide questions that are massively more important and fundamental. Next week, Americans will vote to confirm or deny our most basic aspirations–adherence to democratic norms and the rule of law, and affirmation of the legal equality/autonomy of all citizens, irrespective of gender or sexual orientation.

Next week, our choice isn’t between Candidate A and Candidate B. Our choice is between the American Idea and White Christian Nationalism. We can hammer out our policy differences after we save democracy.

Rubin is right: Everyone who isn’t the product of MAGA madness–every American who occupies the messy, imperfect and maddening reality-based community–has to vote.

Comments