Category Archives: Constitution

Speaking Of Power…

The New Republic has a new podcast, titled “How to Save a Country” devoted to ideas about a “new political vision and a new economic vision for the United States.”

A recent introduction began “It’s that time of year, a chill is in the air. Halloween candies hit all the grocery store aisles, and perhaps scariest of all …the Supreme Court is back in session.”

As Michael Tomasky noted,

We could see the last vestiges of affirmative action overturned. We could see a decision that gives state legislatures the power to essentially overturn federal election results. And we might see a more definitive conclusion of the right of business owners to refuse to serve gay customers. You know, the wedding cake question.

The interviewee on this particular episode was Amy Kapczynski, who co-directs both Yale’s Global Health Justice Partnership and its Law and Political Economy Project. She also clerked for both Sandra Day O’Connor and Stephen Breyer–experience that prompted one of the first questions: what was it like to work at the Supreme Court?

Gosh, there’s lots to say about what it’s like at the Supreme Court. It’s the kind of building that when school kids come into it, they often ask whether it’s a church. It’s a very intimidating place. It’s a very intense place to work. It’s a very small and intimate place. I can think of no government agency that has anything like the amount of power that it has with so few people working for it, and it’s a place about which I would say there’s a lot of secrecy. So some of that has been drawn back a little bit recently as we started to see both the leaks of the Supreme Court and also, I think, with more public attention, people realizing how much power the court has and how a concerted majority that’s really not afraid of public reaction can use that power.

I think one of the things that I was fascinated by as a young person going to law school and then working at the Supreme Court, is how people in power think about the power that they hold. And clearly, I think one thing that we’re seeing about the Supreme Court now is that you have a slim majority that’s very, very conservative and that’s very eager to use the power that they have to advance a vision of America that doesn’t look a whole lot like America today. It’s part of the reason they talk so much about 1789.

Kapczynski says we should be prepared for a lot of bad 6–3 decisions (several of which the podcast participants discussed) and that progressives need to think carefully about what we can do and how we can react. She points out that the Supreme Court is not the only body that can interpret the Constitution, and that the view that all Constitutional interpretation must occur there is a relatively modern phenomenon.

There’s a long history that we can look back to where there have been fights about the court, where the court has overreached, and where there have been ways that the public and our political branches have responded that have curbed the court’s power.

And sometimes it happens because the amount of public outcry actually causes those individual people sitting there and reading their newspapers to think, “Well, gosh, maybe we are overstepping, and maybe we’re really going to face the loss of our legitimacy or changing of our composition if we don’t pull back.”

Given the breathtaking arrogance and intellectual dishonesty of Justice Alito and the equally arrogant indifference to ethics displayed by Thomas, I’m dubious that the worst actors on today’s Court will recognize  and dial back their outsized contributions to the Court’s diminished legitimacy…although one can hope.

Kapczynski shares more concrete suggestions for curtailing our rogue Court, and those suggestions bring us back to the issue of power–how it is exercised, and by whom. It also brings us back to the importance of civic education/literacy.

So there are lots of options. All of them require lots of power, right? You need really strong majorities and committed majorities in Washington, so not just the presidency but a stronger majority than we have in Congress and the Senate and so forth to really take those kinds of things forward. And you do need a party and a base that’s more educated about why this is important, that understands the structural power at stake and cares about that.

If those considerable hurdles can be surmounted, Congress can look into the pros and cons of adding justices, imposing term limits and/or restricting areas of jurisdiction.

If Republicans control Congress after the Midterms, of course, none of that will happen.

VOTE BLUE NO MATTER WHO.

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Power To The (Voting) People

Here in Marion County, Indiana, incumbent Prosecutor Ryan Mears has generated Republican criticism for making it clear he will deploy the resources of his office to target serious crime–and that his definition of serious crime doesn’t include smoking a joint or having an abortion. He sees his job as an important part of public safety efforts to protect citizens against crimes like rape, robbery and murder.

Mears is hardly the only prosecutor taking that position. Prosecutors have limited resources, and determining the most effective use of those resources in combatting crime is actually a critical part of the job description.

Right now, a battle taking place in Florida between Governor Ron DeSantis and Prosecutor Andrew Warren is illuminating what happens when an ambitious and autocratic governor pretends not to understand that responsibility.

When Florida’s Republican governor fired the Tampa area’s top prosecutor for defying the state’s transgender and abortion crackdown, Ron DeSantis made it clear that he believes his power as governor supersedes the power of voters.

But now that prosecutor, Andrew Warren, is suing to get his job back, and the twice-elected state attorney tells The Daily Beast this is more than a fight over his employment; it’s about whether a strongman governor can single-handedly toss a democratically elected local official out of office.

Politicians like DeSantis and (clumsier and closer to home, Todd Rokita) have tied themselves to the MAGA/ White Christian Nationalist crusade–since his election, DeSantis has moved to  “ban certain books in schools, halt transgender health care for young people, isolate and bully gay kids, and target transgender athletes in schools.”

Warren makes an important point: if DeSantis can overturn the will of the voters who chose him as prosecutor, what would prevent him from targeting elected school board members who choose to ignore his book bans and crackdowns on gay and transgender kids?

“There’s so much more at stake than my job. This is a fight to stop the erosion of our democracy. It’s to ensure our democracy has meaning, so we have elected officials and not a king, so no governor can steal the people’s vote and silence their voice. Regardless of what party you belong to, your vote matters,” Warren said.

This particular battle started shortly after the Supreme Court stripped women of abortion rights in June, when Warren and other elected prosecutors across the country sought to temper widespread fears about misogynistic crackdowns. Warren signed a joint statement vowing to not “criminalize reproductive health decisions.” DeSantis, seething over what he called a “woke” resistance, announced with much fanfare on Aug. 4 that he was suspending the Hillsborough County state attorney. The executive order accused Warren of “eroding the rule of law” and “encouraging lawlessness.” Warren sued two weeks later in federal court.

So far, the judge in the case has consistently ruled against DeSantis on preliminary matters. He issued an order rejecting the governor’s legal theory, which requires a finding that that public employees’ on-the-job statements aren’t protected by the First Amendment, and also requires a determination that an elected prosecutor is an “employee” of the governor who can be subjected to discipline by that governor/employer.

The judge has made a correct and important distinction between elected officials, and appointed agency employees. DeSantis has the legal authority to target the latter category, no matter how vindictively—as he did to the Health Department researcher who was pressured to resign when she wouldn’t fake COVID-19 data to make Florida look good.

He has no such power over officials who were voted into office.

The lawsuit in Florida and the criticisms being leveled against the numerous prosecutors who have taken positions similar to those taken by Warren and Mears should operate to focus more attention on down-ballot elections. We The People get to choose our local officials, and those officials aren’t beholden to state-wide officeholders–they are accountable to the law and to us.  It behooves us to investigate their positions, priorities and prior performance, and vote accordingly.

Here in Marion County, Indiana, we are fortunate enough to have an incumbent prosecutor who is forthright about where he stands, and candid about the ways in which he intends to deploy the limited resources of his office. For my part, I agree entirely with his priorities and approve of the way in which he has run the office. People who disagree should vote for his opponent. No matter who wins, however, that individual will be accountable to us, the voters–not to the governor and not to Indiana’s current (embarrassing) Attorney General.

They, too, are accountable to We The People.

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The Judicial Crisis

Those of us who are, or have been, lawyers have watched the litigation over Trump’s purloined documents with amazement bordering on mystification. Suddenly, the potential consequences of Trump’s appointment of rogue judges are too dire to ignore.

The crises within the federal judiciary aren’t all new. During my years in the academy, I was a subscriber and occasional participant of the Law and Courts listserv–a forum for professors of law and political science. Well before McConnell’s shocking departure from constitutional and democratic norms, or Trump’s nomination of only Federalist Society favorites, scholars had focused on the need to expand the Supreme Court–a need prompted by increased workloads leading to fewer decisions. 

Participants also raised concerns about the increasing politicization of the courts. As an article in Politico recently put it, the widely ridiculed–and clearly political– Cannon ruling

underscores the deep fragility of judicial independence and the extraordinary strains it’s of late experienced. The episode is further a timely reminder that there’s no guarantee that an independent judiciary will survive. Just like other public institutions, American courts can unravel and lose public trust, with no easy way to get it back.

The lifetime appointments of federal judges were intended to shield jurists from political pressure, leaving them free to issue decisions based upon their reading of the law, rather than partisan passions. The Founders seemed not to worry about the possibility of politicized appointments.

As Politico noted,

the drafters of the Constitution assumed that there was little risk of politicized appointments for two reasons. First, they expected the supply of qualified judges to be very limited. Second, they viewed the Senate as a disinterested body, “standing above politics.” Of course, both assumptions quickly foundered with the rise of law schools and national political parties. And the federal judiciary attracted partisan labels as early as 1800. Judicial independence, in short, was compromised early and deeply by the failure of the framers’ guiding assumptions.

Commenters to that Law and Courts listserv also noted the effects of longer lifespans on the federal judiciary, and advocated term limits that would be long enough to shield judges from the immediacy of political repercussions (the preferred term was 18 years) to mitigate concerns over terms stretching into judicial dotage. 

Now, concerns about the state of the judiciary extend well beyond academic discussions.

It is in this context of pervasive skepticism about the quality of American courts that Cannon issued her order. In its details, it confirms and exacerbates skepticism about the idea of an apolitical bench. Even conservative commentators have flagged its sharp swerve from the normal treatment criminal suspects receive based on “irrelevant” considerations about Trump’s “reputation.” Concerns were stoked when Trump’s lawyers “went shopping” for a judge he’d appointed — rather than appear before the magistrate who’d issued the original warrant — and who’s received death threats for his pains from the former president’s supporters. And they flared further when Cannon telegraphed her intention to rule for the president who appointed her even before the Justice Department had filed any papers.

Cannon’s order, then, is troubling not just in isolation as a “deeply flawed” decision on its specific merits. It also should worry because it seems to affirm, and hence accentuate, a larger narrative of fracturing judicial independence.

Jamelle Bouie addressed the issue of a politicized judiciary in a recent New York Times essay. His recommendation echoed that of the scholars on the listserv: expand and reorganize the federal court system.

The practical reason to increase the number of courts and judges is that the country is much larger than it was in 1990, when Congress made its last expansion, adding 11 seats to the circuit court system and 61 seats to the district court system. This was modest compared with a change in 1978, when President Jimmy Carter signed the largest judiciary expansion in history, creating 150 new judgeships and expanding the entire federal bench by more than a third.

In the 32 years since 1990, the United States has grown from a population of roughly 250 million to a population of over 330 million. More people means more legal disputes, more legal disputes means more cases, more cases means more work. And the federal judiciary is swamped. Last year, the Judicial Conference of the United States, a nonpartisan policymaking body for the federal courts, recommended that Congress create 79 new judgeships across existing district and appeals courts.

Congress, and here I mean Democrats, should go further with a court expansion to rival Carter’s. They should create new circuits, new courts and new judgeships. The goal is simple: to account for growth and to deal with the problem of a cohort of hyperpartisan and ideological judges whose loyalty to Trump may outweigh their commitment to the law.

I agree. But it won’t happen if Americans don’t vote Blue No Matter Who this November.

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Originalism And The Second Founding

It’s interesting (okay, infuriating) to note the highly selective “originalism” practiced by  retrograde justices on the Supreme Court. In their professed zeal to mind-meld with the nation’s earliest Founders, they entirely ignore what scholars have called “the Second Founding”–the post-Civil War passage of the 13th, 14th and 15th Amendments.

Ratified in the years immediately following the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote.

Both Justice Ketanji Jackson and Heather Cox Richardson have recently reminded us of that “original” history.

President Andrew Johnson, an unrepentant racist, vetoed the 1866 civil rights bill, claiming–among other things– that it wasn’t race neutral.  It wasn’t–and it wasn’t intended to be. Congress passed it over his veto– and based the Fourteenth Amendment on it.

 The 13th, 14th, and 15th Amendments explicitly give the federal government power to protect individual rights in the states. Scholars like Akhil Reed Amar, who teaches Constitutional Law at Yale, call their passage the “second founding.”

Amar explains that the Reconstruction Amendments shift emphasis somewhat from Madison’s first concern– protecting people from unrepresentative government (see Federalist 51)–to his second: protecting minorities from the tyranny of the majority. The 14th prioritizes “ideals of liberty and equality.” 

Amar and Richardson are two of the many historians and constitutional scholars who define the period following the Civil War as a “reconstruction” or “second founding.” (Amar’s magisterial book The Bill of Rights is subtitled Creation and Reconstruction.) So it is very interesting that today’s self-described “originalists” ignore that reconstruction.

I can see two reasons for that studied avoidance: first, the clear legal meaning of those Amendments, especially the 14th, is inconsistent with their theocratic revisionism; and second, they provide clear historical evidence that Constitutional principles have evolved to meet changing times.

A 2019 article in the New Yorker focused on the work of constitutional historian Eric Foner, who has written extensively on the Reconstruction Amendments. As Foner explains, the issues central to those Amendments remain central to our politics today.

Who should vote? Who should be a citizen? What does equality before the law really mean? But, most important, and without trying to denigrate any other scholar, I lecture a lot about Reconstruction—I lecture in law schools, I lecture in history departments, I lecture to public audiences outside the academy—and I have found that there’s very little knowledge of why the Thirteenth, Fourteenth, and Fifteenth Amendments are important, or what they were trying to accomplish, even in law schools.

Foner points out that, even in the immediate wake of their passage, the Court narrowed  application of the Amendments, arguing–against the evidence–that they hadn’t really effected much change. Foner and other historians disagree.

Many years ago, when I was doing research for a book I was writing, I unearthed  contemporaneous newspaper coverage of the arguments for and against ratification of the Fourteenth Amendment. Those debates confirm Foner’s reading: the Americans who were preparing to vote on their state’s ratification of the Fourteenth Amendment believed it made very substantive expansions to the “privileges and immunities” of citizenship. It was with that understanding that they voted for (or against) ratification.

As one pundit noted during Amy Comes Barrett’s (excessively brief) confirmation hearing: “given that the Constitution was effectively rewritten by the Reconstruction Amendments, it would be great to see a Supreme Court nominee say something like “I will interpret the Constitution as it was understood in 1870.”

In 2004, the Brennan Center issued a paper explaining the real history of the Reconstruction Amendments, and the persistent failure of the Supreme Court to properly respect and interpret them.(The current court is simply a more egregious example of a longtime failure of jurisprudence.)

From the introduction to that paper

The Supreme Court’s recent turn away from civil rights and toward states rights claims legitimacy from a familiar but false history: the Constitution of 1787 carefully preserved the states sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.

None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War … These decisions betrayed Lincoln, who had promised a new birth of freedom at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality… 

Basically, the Court continues to ignore “the widely understood meaning and purpose of those amendments at the time they were ratified.”

We have very selective “originalists”!

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Well, At Least I’m Consistent….

Back in 2012, when I was still teaching, I published an essay in an academic journal. I recently came across it, and realized that–as the midterms approach and the GOP departs further from reality–it’s more applicable than ever, so I’m sharing it.

I titled it The Great Disconnect.

As another election season comes to a close, one lesson is abundantly clear: there is a huge disconnect between the skill sets public offices require and the sales pitches candidates are making.

Campaigns are job applications and the candidates are applicants. We voters are the folks doing the hiring. In order to make informed “hires,” we need to know two things: what competencies the job requires, and which of the “applicants” come equipped with the requisite skills as well as our preferred policy positions.

Is this election for mayor, governor or president? We need someone who understands the relevant administrative structure, who is able to assess and recruit knowledgeable technocrats and aides, who has a good grasp of economic and budgetary issues, tax policies, intergovernmental relations and the mechanics of service delivery. It is highly desirable that the applicant be aware of the competing needs and desires of the diverse constituencies to be served and have an ability to communicate with representatives of those constituencies.

Is this an election to fill a legislative seat? In addition to the skills listed above, a policy background is highly desirable—as is a demonstrated ability to work in a bipartisan way with other legislators and members of the executive branch.

If democratic processes are going to produce satisfactory results, voters need information that allows them to match the qualifications of the candidates to the requirements of the position. Unfortunately, it is impossible to sit through the avalanche of misleading 30-second spots, scurrilous Internet postings or negative direct-mail pieces that flood our in-boxes and snail-mail boxes and not conclude that the task is impossible, and that the American electoral process is badly broken.

There is no dearth of theories about what ails us: too much money, too much rigid ideology, too much partisanship, too many lobbyists, too many pundits and too few real reporters….the list is extensive, and all of the items on that list undoubtedly contribute to the sorry state of today’s politics. But these things would matter less if the electorate were better informed.

Let me just offer a couple of all-too-typical examples. In my state, a Senate candidate is currently airing a spot blasting his opponent—a sitting Congressman—for voting to raise the debt ceiling. This political attack depends for its effectiveness on public ignorance of the difference between a vote to raise the debt ceiling and a vote to add to the national debt. Large bipartisan majorities have raised the ceiling without controversy for many years, because members of both parties have understood that difference.

The national debt is a real problem. Reasonable people can disagree about the mix of “revenue enhancements” (aka taxes) and spending cuts needed to address that problem, how much stimulus is needed to get the economy moving again, and what programs might be cut without harming our still-tenuous recovery from the Great Recession. But only someone with absolutely no understanding of the economic system advocates a reckless act that would make it impossible for the U.S. Government to pay its bills—and only an uninformed voter would respond positively to such advocacy.

A more typical political attack is some variation on the theme that “Congressman X has been in Washington for Y years, but we still have problem Z.” No one who understands checks and balances and the limits on what any individual member of Congress can accomplish is going to take such a charge seriously. The fact that a political candidate believes this to be an effective argument tells us a lot about that candidate’s respect for the intelligence of the average voter.

There is another possibility, of course. It may be that these appeals are not simply cynical ploys based upon perceived public ignorance. It may be that the people who are running for office actually believe their own arguments. In several races around the country, candidates are promising to enact policies that are clearly unconstitutional. Others are promising to achieve economic results that are mathematically impossible. Knowledgeable folks tend to discount these statements as political games candidates play, but in at least some cases, it’s clear the candidates really don’t know any better.

It would be nice if we could simply shrug off the more embarrassing examples of electoral dysfunction, but the quality of our political candidates ultimately affects both the voting public and the public administrators trying to serve that public.

Just as having a crazy boss makes a private-sector worker’s job more difficult, electing people to set policy in areas they don’t understand is a major barrier to public problem solving. If members of the House Science and Technology Committee reject evidence of global climate change (last year, one member reassured a panel of climate scientists that we don’t need to worry because after the flood, “God promised in Genesis that He would not destroy Earth again, and I believe God”), where will we find the human and fiscal resources necessary to combat global warming and reduce carbon emissions? If members of the Texas Board of Education reject evolution and choose creationist textbooks that are then adopted for use throughout the country, how do conscientious science teachers do their jobs? For that matter, where will we find the next generation of competent biologists and doctors?

There are a number of things individuals might do to help clean up the current mess that is our election system. We can visit fact-checking sites to vet campaign pronouncements. We can work to reform the redistricting process. We can sign on to one of the various efforts to reverse Citizens United – the case that opened the money spigot that became the gusher of SuperPac spending. Those of us who are educators must work to raise the levels of civic literacy in this country.

And we all need to withhold our votes from those who run campaigns geared to public passions and popular ignorance.

We need to close the great disconnect.

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