Category Archives: Constitution

Lawyers Are Grieving

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.

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A Concise Diagnosis

In an aside in a recent column about the January 6th hearings, Jennifer Rubin really summed up the current crisis (or more accurately, crises) in American governance.

Trump utterly failed the country; his successor is stymied by a radicalized opposition determined to see him fail. The Senate is gridlocked by a minority party wielding the filibuster to, among other things, preserve voter suppression and subversion laws. The Supreme Court has been overtaken by rank, radical partisans whose decisions cannot be defended on the merits and whose public utterances and tone lack any semblance of “judicial temperament.” We seem stuck because structural advantages for the minority (the Senate, the electoral college, the right-wing Supreme Court) make real reform impossible.

Rubin’s main thrust was the meaning of the very real heroism displayed by poll workers Ruby Freeman and Shaye Moss. (The column was written before the even more impressive bravery displayed by Cassidy Hutchinson this week.)

Unlike a number of the witnesses called by the committee, these two women–mother and daughter–weren’t high-ranking members of the administration or Department of Justice, people who might lose a current job but would have little trouble finding new ones. Freeman and Share are ordinary citizens who were doing some of the low-paid jobs essential to the operation of democratic elections. Rubin is certainly correct in lauding the courage they displayed both in doing those jobs accurately and in testifying; her point was that they served the country just as surely as our military does, and that we need civilians “like Ruby Freeman and Shaye Moss in public life if we are to muddle through a dangerous and disturbing period in our history.”

I don’t disagree, but I remain fixated on the quoted paragraph, because it succinctly sums up the challenges we currently face–and their magnitude.

I’ve written several times about the filibuster, and how its current use differs substantially from its historic one. The wrongheaded protection of what the filibuster has become allows a minority of lawmakers– who have been elected by a minority of voters– to veto the demonstrable will of the great majority of American citizens.

I need not reiterate the evidence showing how drastically the current Supreme Court has deviated from what was thought to be settled jurisprudence. To use a term beloved by a former vice-presidential candidate, the Court’s majority has “gone rogue.” To the extent that Americans were relying on the judiciary to protect fundamental rights, the Court’s current majority has signaled repeatedly that such reliance is misplaced–at least, so long as that majority fancies itself a religious tribunal rather than a court of law  bound by precedent and serving a theologically and ideologically diverse population.

In the final sentence of that quoted paragraph, Rubin alludes to what has become my most pressing–and depressing– concern: the obsolescence of much of America’s electoral and governing systems.

I doubt we can ever do anything about the fact that electing two senators from every state, irrespective of massive disproportions in population, means that very soon 70% of the Senate will represent 30% of the population. So long as our rogue court continues to protect partisan gerrymandering, lawmakers in both houses will continue to be answerable primarily–indeed, overwhelmingly– to rural Americans. The difficulty of amending the Constitution means we are probably saddled with the Electoral College for the foreseeable future–I don’t hold out much hope that the National Popular Vote Compact will be ratified by states having the necessary 270 electoral votes. (I would love to be wrong!)

The only remedy I can see would be a massive turnout in November repudiating the GOP –turnout large enough to allow Democrats  to get rid of the filibuster and pass a number of remedial measures–most importantly, the voting rights act. That law  would–among other salutary consequences– outlaw gerrymandering. Congress could also add Justices to the Court, diluting the power of the Court’s radical theocrats.

Are the Democrats perfect? Certainly not. But they’e a thousand times saner than the cult that is today’s GOP. If that cult loses badly enough, it will either be reformed from within, by genuine conservatives like Adam Kitzinger and Liz Cheney, or go the way of the Whigs.

Either way, We the People could then go back to arguing over our policy differences, rather than the survival of the republic.

In a very real way, Rubin was right: America’s future depends on ordinary citizens–those who do their jobs, and especially those who cast their votes to rescue the Constitution and Bill of Rights from the autocrats and theocrats. I’m clinging by my fingernails to the hope that there are enough of those citizens…

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Let Me Explain This One More Time…

I see that Tucker Carlson has applauded the demise of Roe v. Wade, and characterized the decision as a “return to democracy.” Evidently, someone needs to explain America’s approach to democratic self-rule to Tucker and his constitutionally-illiterate audience.

Democratic systems can take several forms. In a “pure” democracy, where an unrestrained majority rules, voters participate in all government decision-making; the majority is even able to decide who has the right to vote. (I’m unaware of any country with so “pure” a democracy, for obvious reasons.)

America’s Founders didn’t choose that system. (For one thing, their concerns about the “passions of the majority” were well-known.) Instead, they crafted a republic in which voters would choose lawmakers from among the ranks of the thoughtful and knowledgable (!!), and those lawmakers would debate the merits of legislative proposals, negotiate and compromise among the various points of view, and pass well-considered laws.

Then they constrained those lawmakers by enacting a Bill of Rights.

The Bill of Rights–as I have often explained in these posts–is essentially a list of things that American government is forbidden to do, even when a majority of voters approve. Thanks to the Bill of Rights, government cannot censor our communications. It cannot prescribe our prayers (although after the Court’s most recent ruling, it can evidently coerce them) or dictate our reading materials. It cannot search or seize us without probable cause.  It cannot invade our liberties or take our property without due process of law.

Let me reiterate that, for the edification of any Fox viewers who might be lurking: the Bill of Rights limits what popular majorities can authorize government to do. It is a limitation on majority rule–on what the Tucker Carlsons of this world conceive of as democracy. It protects the right of individuals to choose their own political and religious beliefs and follow their own life goals, their own telos, free of government–or majority– interference.

Over the years, the Court has had to interpret the operation of the Bill of Rights–to apply its broad principles and protections to specific situations. Since the 1960s and until this week, the Court has recognized a right to privacy, and has drawn a line between decisions that government can properly make, and those that must be left to the individual. It has based that line on citizens’ right to due process.

There are two kinds of due process: procedural and substantive. Substantive due process (often called the right to privacy) is the doctrine that requires official respect for individual autonomy–the doctrine that forbids government from making decisions that are none of government’s business, “intimate” decisions that under longstanding understandings of the Bill of Rights must be left up to the individual involved.

The existence of that line protecting individual liberty from government interference rests on multiple precedents interpreting the 14th Amendment’s Due Process Clause. 

If the doctrine of substantive due process goes away, those “democratic” state governments so beloved by Tucker Carlson will have the right to prohibit same-sex or interracial marriage, re-criminalize sodomy, and ban the sale and use of birth control…All of those rights and others are in the cross-hairs so long as Republicans can keep their stranglehold on American government via gerrymandering, the Electoral College and other mechanisms  (mechanisms that are all, ironically, exceedingly anti-democratic). 

The decision overturning Roe was deeply dishonest, especially in its discussion about  whether a particular right was historically recognized, but Alito’s distorted history is ultimately irrelevant– a red herring. In order to find that the government has a right to control the reproductive decisions of individual women, the Court had to fatally undermine the doctrine of substantive due process. And when that doctrine is no longer viable, all other personal rights are vulnerable.

Clarence Thomas may have been the only Justice willing to admit to the obvious agenda of this rogue Court, but it is abundantly clear that the other four members of the religious tribunal that now controls the Court share that agenda.

Debates about abortion have always been both superficial and dishonest. “Pro life” has always been a misnomer, since anti-choice policy is blatantly indifferent to the lives of women (and to the lives and welfare of fetuses once they become children). But there needs to be far more recognition that this decision isn’t simply an endorsement of the right of state governments\ to make very bad policy decisions–it is an endorsement of autocracy, of the right of government to invade the most personal precincts of citizens’ lives, and to impose the religious views of those in power on those of us without.

Giving legislators the right to make my most intimate decisions isn’t the Founders’ view of “democracy”– and it sure as hell isn’t mine.

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A Way Around

Sane Americans need to vote as if our lives depend upon it, because in a very real sense, they do.

In the meantime…

When the religious warriors on the Supreme Court handed down their decision requiring states that funded private schools to fund religious ones as well– Carson v. Makin– our daughter (who spent 20 years on our local school board) asked whether there was now any way to fashion voucher programs that would prevent most religious schools from getting taxpayer money. Surely good lawyers could devise such a work-around.

Turns out there is. And it’s a tactic that can also be used to blunt some of the most dangerous consequences of the Court’s even-more-radical gun decision. (Unfortunately, I see no comparable “work arounds” for the Court’s horrifying abortion decision.)

Maine shows the way to keep public dollars out of church coffers. In Carson, the Court based its decision on the disparate treatment of religious and nonreligious private schools, so Maine eliminated that disparity–and did so in the best possible way.

What is surprising is how little the 6-to-3 decision in the Maine case, Carson v. Makin, will matter practically. And the reason offers a glimpse of hope for those who worry about a future dominated by the court’s conservative supermajority — including the many Americans troubled by the court’s decision in the gun case, New York State Rifle and Pistol Association v. Bruen.

Let’s start with the Carson case. Anticipating this week’s decision, Maine lawmakers enacted a crucial amendment to the state’s anti-discrimination law last year in order to counteract the expected ruling. The revised law forbids discrimination based on gender identity and sexual orientation, and it applies to every private school that chooses to accept public funds, without regard to religious affiliation.

The impact was immediate: The two religious schools at issue in the Carson case, Bangor Christian Schools and Temple Academy, said that they would decline state funds if, as Maine’s new law requires, accepting such funds would require them to change how they operate or alter their “admissions standards” to admit L.G.B.T.Q. students.

The “fix” to Maine’s law allows religious schools to participate in the program on an equal basis with other private schools–and as an added bonus, ensures that secular private schools with discriminatory practices will also be denied the right to participate.

In an aside, the Court acknowledged that Maine also retains the right to eliminate its voucher program at any point. (Since most voucher programs–like Indiana’s– have failed to improve student outcomes while bleeding the public schools of needed resources, that’s a right I think they should exercise. But I digress.)

As the linked Times essay pointed out, a version of Maine’s tactic can also be adapted to use by the states (all blue) trying to combat gun violence.

Justice Clarence Thomas’s majority opinion made clear that the constitutionality of restrictions is historically “settled” in “sensitive places” such as legislatures, courtrooms and polling locations, and that “modern regulations” may “prohibit” the carry of firearms in “new” places. Given that, states should enact an expansive list of so-called sensitive places where guns may not be carried. Though Justice Thomas did not specify which those might be, during oral arguments in November, several justices pondered that they might include public transportation, crowded venues, university campuses and places where alcohol is served.

 Justice Brett Kavanaugh noted in a concurrence joined by Chief Justice John Roberts, moreover, that while states may not impose restrictions that prevent “ordinary, law abiding citizens” from carrying a gun to defend themselves, states can still enact rigorous requirements for a public carry permit, such as stringent background and mental health records checks and completion of regular training courses.

Another promising reform for states to consider would be to require gun owners to possess firearm liability insurance. Not only would such a requirement ensure that victims of gun violence can recover for their losses and “provide financial incentives for responsible arms carrying,” but it also draws strong historical support from a host of 19th century “surety laws” recognized in the court’s opinion.

That last “promising reform” echoes several comments made to this blog. 

This guest essay reminds us that–as critical as it is to repair a broken and increasingly illegitimate  Court–until that repair can be accomplished, we are not without resources to fight, or at least blunt, the consequences of the Court’s most dramatic departures from constitutional precedent and common sense. We just need lawmakers who understand the need to do so.

That means that the most important thing we can do is remember in November which party is responsible for replacing Justices committed to the Constitution with  a religious tribunal–and vote accordingly. 

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