It isn’t just the loss of due process (yesterday’s lament).
The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.
Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.
In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.
The New York Times recently interviewed 50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.
One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”
The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.
The survey found a “collectively grim state of mind.”
All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.
And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.
At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.
Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”
The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.
It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes.
During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.
When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either liberty or property.
The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.
There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.
In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode, Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”
The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.
It isn’t just Supreme Court rulings diametrically opposed to years of precedent.
The Prospect, among other sources, has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.
So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.
We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….
Several media outlets recently reported on a Gallup poll finding that forty-three percent of Americans think the current Supreme Court is “too conservative.” Excuse me, but that finding is an example of a fundamental misperception that infests current American debates, and keeps our political arguments unilluminating and unproductive.
The current Supreme Court is many things, but conservative is certainly not one of them. Indeed, some of the most trenchant criticisms of the entirely corrupt Court majority have come from jurists and scholars with unimpeachably conservative bona fides. For example, J. Michael Luttig–a conservative icon and former judge who consistently issued very conservative opinions when he was on the bench– called the Court’s bestowal of immunity for “official acts” of the President “irreconcilable with America’s democracy, the Constitution, and the rule of law.” Legal scholars, including a number of conservatives, have argued that decisions rendered by the current majority break with centuries of understanding, lack textual support, and undermine accountability.
Several conservatives have warned that the Court is legitimizing a “kingship” rather than a presidency.
The Court’s unprecedented use of the Shadow Docket–historically a mechanism reserved for matters requiring an urgent response–has drawn criticism from across the ideological spectrum. The Court’s majority has used the Docket to issue decisions that lack the sort of legal analysis that lower courts rely upon for guidance, and has issued those decisions without the benefit of briefing or argumentation, lending credibility to the impression that they are operating via prejudice rather than analysis.
In a string of unexplained decisions utterly inconsistent with precedent, the majority has eroded the independence of previously independent agencies and commissions. It has allowed Trump to withhold funds appropriated by Congress, despite the fact that the Constitution explicitly and exclusively grants funding decisions to the legislative branch. It has overturned the longstanding deference of the judicial branch to agency understandings of their own regulations, empowering judges to determine highly technical matters; the majority’s “religious liberty” decisions have significantly eroded the First Amendment’s separation of church and state in favor of a performative and illiberal Christianity, and–perhaps most shocking of all– it has allowed ICE to ignore the probable cause requirement of the Fourth Amendment.
The list goes on.
Words have meanings, or at least they should. A truly conservative Court follows–conserves–legal precedent unless faced with formidable evidence that the precedent is no longer consistent with modern realities. Stare decisis and respect for legal predictability have long been lodestars of the judiciary, including–indeed, especially–conservative members of that judiciary. Evidence of such respect is nowhere to be seen in the Roberts Court; for years, Clarence Thomas has signaled his desire to overturn decisions with which he personally disagrees, and Samuel Alito gave a metaphorical finger to both individual liberty and fifty years of precedent when he authored the Dobbs decision.
Conservatism has been defined as a philosophy of preservation and prudence; conservatives value continuity, social stability, and gradual evolution rather than radical change. Conservatives prioritize respect for institutions, the rule of law and moral and cultural traditions. In contrast, reactionary far right ideologies are fixated on a desire to “reclaim” a mythic past. Reactionaries reject checks and balances; they embrace nativism and define belonging in racial and religious terms rather than civic ones, and they detest the pluralism that defines today’s America.
Where conservatism sees order as compatible with liberty, reactionary and populist far-right movements define order as the suppression of difference.
The problem with labeling our reactionary Court as conservative is that such a label obscures reality. It’s akin to the misuse of other labels like Left-wing and socialism, but it’s arguably more dangerous, because it makes a very real threat–an ahistorical judicial deviation from the rule of law in favor of a very unAmerican authoritarianism– seem like a normal part of America’s ever-shifting political environment. We’ve always had courts and political parties that are properly understood to be more conservative or more liberal, but by mis-labeling this radical Supreme Court as “conservative,” we minimize the extent to which it has deviated from the political and constitutional norms to which both liberal and genuinely conservative courts have adhered.
If this Court was truly conservative, America wouldn’t be in the midst of an authoritarian coup.
I am beginning to think that Trump has “glossies” of John Roberts and a couple of the other Justices in the majority misnamed as “conservative.” (A genuine conservative would conserve precedents–these justices are radical, and in at least two cases–Alito and Thomas–demonstrably corrupt.)
The judges of the lower federal courts–even the ones appropriately labeled conservative–have demonstrated fidelity to the rule of law, and to stare decisis, or precedent. Judges nominated by both Democratic and Republican Presidents, judges nominated by Trump himself, have ruled against our would-be dictator over 80% of the time. They have issued well-researched, thoughtful judgments, clearly explaining the grounds of their decisions, only to be summarily over-ruled in terse, six to three Shadow Docket rulings from the Supreme Court.
Most Americans have never heard of the Court’s Shadow Docket, because–until recently–it has been used very sparingly. The shadow docket has formerly been used in Supreme Court cases requiring immediate decision–things like death penalty stays, injunctions, and other matters requiring urgency. Such urgent matters are thus decided without full briefing, oral argument, or written reasoning. When appropriately used, the Shadow Docket is a legitimate tool of Court jurisprudence, but the increased frequency of these decisions during the Trump administration has raised concerns about transparency and significantly damaged the Court’s legitimacy.
Decisions delivered via the shadow docket lack the detailed analysis that allows lower courts to align their own reasoning with that of the Supreme Court. The increasing frequency of these “stealth rulings” undermines the public’s understanding as well as the legal community’s ability to interpret, apply and conform.
It isn’t just the increased frequency of Shadow Docket use. Far too many of these brief and unsettling decisions have upended longstanding Constitutional rules. Easily the most appalling was the Court’s recent gutting of the Fourth Amendment’s requirement of probable cause. In a 6-3 vote in Vasquez Perdomo v. Noem, the Supreme Court temporarily halted a LA judge’s order that barred “roving patrols” from snatching people off California streets and questioning them based on how they look, what language they speak, what work they do, or even where they happen to be.
Both a Los Angeles federal court and the 9th Circuit Court of Appeals had ruled–in detailed, persuasive decisions– that these actions clearly amounted to illegal racial profiling.
In a stinging dissent, Justice Sotomayor warned that this decision turns Latinos into second class citizens. She wrote “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
A lawyer friend who has been both a prosecutor and a defense attorney, as well as chief of a law enforcement department and a law school professor, reacted with an anguished Facebook post. He began ” The United States of America, a nation of laws, not men, no longer exists. Today the United States Supreme Court, in a 6-3 vote, decided that immigration officers may detain people for no reason other than the color of their skin…The United States Supreme Court approving detention based upon skin color is not just the end of the rule of law, it is the end of the United States as a constitutional democracy, which comes with separation of powers and no person being beyond the law.”
He proceeded to say that he would “surrender my admission to the United States Supreme Court. The admission comes with an oath the Court no longer recognizes, and I no longer recognize it.”
I taught Law and Public Policy to university students for 21 years. Many of those students were criminal justice majors, and along with the rest of the faculty, I emphasized the constitutional imperative of basing arrests on probable cause. We warned students against detaining citizens based upon “hunches” or–worse–identity, and shared the numerous legal cases that underlined that constitutional mandate.
The Court’s decision–contrary to decades of contrary precedent and to the uncontested facts underlying the lower court rulings–a decision delivered via the inappropriate Shadow Docket, was a betrayal not only of their oath, but of America.
If this country survives as a constitutional democracy–no sure thing–the Roberts Court will take a shameful place in history alongside the January 6th insurgents.
Yesterday, I spoke at a gathering in Ft. Wayne, Indiana, sponsored by multiple civic organizations convened by Americans United for Separation of Church and State. Other speakers addressed the growing threat of this unAmerican movement and the multiple ways it is not Christian. I addressed the threat it poses to America’s constitution. My remarks are below.
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I’ve been asked to discuss the multiple ways in which Christian Nationalism is inconsistent with America’s founding documents—especially the First Amendment and the Bill of Rights. It’s always a good idea to define our terms, so let me begin by listing the basic premises of Christian Nationalism—a political movement that my friends in the Christian clergy assure me is anything but authentically Christian.
Christian Nationalists begin with the ahistorical insistence that the United States was founded as a Christian nation, and that one must be a Christian (or– let’s be honest here—a White Christian) in order to be a “true American.” Christian Nationalists reject Church-State separation and believe that civil government should impose their version of “Christian” behavior on all American citizens. That would entail—at a minimum—banning abortion, rejecting same-sex marriage (and for that matter, criminalizing homosexuality), and reinstating patriarchy.
Virtually every tenet of Christian Nationalism is diametrically opposed to the philosophy of the U.S. Constitution and Bill of Rights. I won’t spend time today explaining how the movement distorts and mischaracterizes either Christianity or the actual history of this country. What I will do is “compare and contrast” some of the foundational provisions of America’s constituent documents—and especially the Bill of Rights— documents that reflect what I call “The American Idea”–with the absolutely contrary premises of Christian Nationalism.
What do I mean when I talk about the “American Idea”? What is that Idea, and what were its political and philosophical roots? Where did our Constitutional system come from, and how did it differ from prior beliefs about the nature of government power and authority? Answering those questions does require a visit to the history of America.
A while back, while I was doing research for one of my books, I came across an illuminating explanation of the stark differences between the original settlers who came to this country—those the scholar called the “Planting Fathers”—and the men who would draft our legal system—the men we call the Founding Fathers. As he pointed out, the Puritans and Pilgrims who first came to America had defined liberty—including religious liberty– as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and to use the power of government to ensure that their neighbors did too. But the Founders who crafted our constitution some 150 years later were products of the intervening Enlightenment and they had accepted its dramatically different definition of liberty.
Enlightenment philosophers defined liberty as personal autonomy—an individual’s right to make his or her own moral and political decisions, free of government coercion. In the Enlightenment’s libertarian construction, liberty meant freedom to “do your own thing,” subject to two very important caveats: you could do your own thing so long as you did not thereby harm the person or property of someone else, and so long as you recognized the equal right of others to do their “own thing.” The U.S. Constitution and Bill of Rights are firmly grounded in that Enlightenment understanding of the nature of liberty.
It’s also important to understand that, as a result, America’s constitutional system is largely based on a concept we call “negative liberty.” The Founders believed that our individual rights don’t come from some gracious grants from government; rather, those rights are “natural,” meaning that we are entitled to certain basic rights simply by virtue of being human (thus the term “human rights”), and that a legitimate government is obliged to respect and protect those natural rights. If you think about it, the Bill of Rights is essentially a list of things that government—“the state”—is forbidden to do. For example, the state cannot prescribe our religious or political beliefs, it cannot search us without probable cause, it cannot censor our expression—and it is forbidden from doing such things even when popular majorities might favor such actions. That concept of a limited and constrained government is absolutely antithetical to Christian Nationalism, which seeks to use the power of the state to compel behaviors consistent with their version of Christianity.
Robert P. Jones, chief executive of the Public Religion Research Institute, is among the many scholars who have described why that Christian Nationalist approach is inconsistent with the American system, writing that –and I quote–“A worldview that claims God as a political partisan and dehumanizes one’s political opponents as evil is fundamentally antidemocratic, and a mind-set that believes that our nation was divinely ordained to be a promised land for Christians of European descent is incompatible with the U.S. Constitution’s guarantee of freedom of religion and equality of all.”
The Founders’ view of freedom of religion is incorporated in the First Amendment, which protects religious liberty through the Establishment and Free Exercise Clauses – clauses that, operating together, require the separation of Church and State.
Now, as fundamentalists like to point out, the actual phrase “separation of church and state” doesn’t appear in the text of the First Amendment. What they prefer to ignore is that that the phrase refers to the way the First Amendment’s two religion clauses operate. However, the concept of church-state separation had long preceded its incorporation into the First Amendment. The first documented use of the actual phrase was by Roger Williams, founder of Rhode Island, well before the Revolutionary War. The most famous use, of course, was that of Thomas Jefferson. When Jefferson was President, a group of Danbury Baptists wrote to him asking for an official interpretation of the First Amendment’s religion clauses. Jefferson’s response was that the Establishment Clause and Free Exercise Clause were intended to “erect a wall of separation” between government and religion. What is less often noted is that since Jefferson’s response was official, it was duly confirmed by the then serving U.S. Attorney General before it was transmitted to the Danbury Baptists.
Historians tell us that the Establishment Clause went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church” as inadequate to their intent. The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The courts have uniformly held that this language not only forbids the government from establishing an official religion or state Church but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that prefer religion to non-religion, or for that matter, non-religion over religion.
Meanwhile, the Free Exercise Clause prohibits government from interfering with the “free exercise” of religion. It protects the right of Americans to choose our own beliefs, and to express those beliefs without fear of state disapproval. Read together, the Free Exercise Clause and the Establishment Clause require government neutrality in matters of religion. The Religion Clauses prohibit Government from either benefiting or burdening religious belief.
One way to think about the operation of the religion clauses is that the Establishment Clause forbids the public sector (that is, government) from either favoring or disfavoring religion, and the Free Exercise Clause forbids government from interfering with the expression of religious beliefs in the public square (that is, the myriad non-governmental venues where citizens exchange ideas and opinions.)
When states misuse their authority and play favorites, when they privilege some religious beliefs over others, people who do not share those privileged beliefs are relegated to the status of second-class citizens. Separation of church and state prevents adherents of majority religions from using government to force their beliefs or practices on others, and it keeps agencies of government from interfering with the internal operations of churches, synagogues and mosques.
As to that original purpose of neutrality, I’ve come across few explanations better than the one offered by John Leland. Leland, who lived from 1754 to1851, was an evangelical Baptist preacher who had strong views on the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”
(Leland could hardly have envisioned our current government’s belief that it does have the right to interfere with the principles of mathematics and statistics…But that’s a scary subject for another day…)
The bottom line is that we Americans live in a diverse society, where different religions hold dramatically different beliefs about the matters Christian Nationalists want government to dictate. For example, in several traditions, including my own, abortion is permissible. Nevertheless, here in Indiana, where our legislators routinely ignore the official neutrality required by the First Amendment, lawmakers have passed a law that imposes a belief held by some Christian denominations on members of denominations and faith traditions who do not share those religious beliefs.
It would be a serious mistake to think that Christian Nationalism is only inconsistent with the First Amendment. The racism and misogyny that is built into it also run afoul of the 14th Amendment’s Equal Protection guarantees. The constitutional requirement of equal protection is intended to prevent majorities (or in this case, activist minorities) from using government to disadvantage individuals and minorities of whom they disapprove
Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. In the United States, our laws are supposed to be based upon a person’s civic behavior, not on gender, race or other markers of identity. So long as we citizens obey the laws, pay our taxes, and generally conduct ourselves in a way that does not endanger or disadvantage others, we are entitled to full equality with other citizens. That guarantee of equal civic rights is one of the aspects of American life that has been most admired around the globe; it has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. Christian Nationalism strikes at the very heart of that commitment to civic equality—it would privilege certain citizens over others based solely on their skin color and religious identity. It’s hard to think of anything more anti-American.
The conflict of Christian Nationalism with the Constitution and Bill of Rights isn’t limited to the First and Fourteenth Amendments. There is another incredibly important principle embedded in the Bill of Rights that we are already in danger of losing to the sustained assault of these pseudo-religious fanatics: the doctrine of substantive due process, often called the right to privacy or the right to personal autonomy.
I agree with the numerous constitutional scholars who argue that, although the right to personal autonomy or self-government is not explicitly mentioned, the principle is inherent in the Bill of Rights. That’s because it is impossible to give content to the rights that are specifically enumerated unless we recognize the doctrine of substantive due process –and that impossibility was explicitly recognized by the Supreme Court in 1965, in the case of Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The legislation prohibited doctors from prescribing contraceptives and prohibited pharmacists from filling any such prescriptions. The Supreme Court struck down the law, holding that whether a couple used contraceptives simply wasn’t any of the government’s business; it was not a decision that government was entitled to make
The Court recognized that an individual right to personal autonomy—a right to self-government—is essential to the enforcement of the other provisions of the Bill of Rights. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or in the Ninth or 14th Amendment—the Justices agreed on both its presence and importance.
The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are far outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue is who gets to make that decision—the individual or the government. Allowing any unit of government to decide such matters violates the most fundamental premise of the Bill of Rights and the philosophy that underlies our constitutional system. Yet that is precisely what Christian Nationalists want.
Let me be clear: Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health, or requirements that students be vaccinated before entering a public school classroom are examples.) Otherwise, in the constitutional system devised by the Founders, government must leave us alone.
For a long time, secular and religiously tolerant Americans dismissed warnings about the growing fundamentalist assaults on that principle, confident that their right to self-determination was secure. The conservative Christian reasoning in Dobbs, the case that overturned Roe v. Wade, justified an invasion of that personal liberty, and it was shocking. For the first time in American history, a Supreme Court had withdrawn a constitutional right that had been considered settled for over fifty years.
As polarizing as that decision was, there is still very little understanding of its scope, and the fact that it threatens far more than the health, well-being and self-determination of American women.
In this country, different religions—and different denominations within those religions– have very different beliefs about the status of women and about procreation. What amounts to the Supreme Court’s elevation of a particular version of Christianity has understandably engendered an enormous and negative reaction–a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. What is still not fully appreciated, however, is the fact that Dobbs was more than just an effort to force women to give birth—it was a devastating assault on the American definition of individual liberty, a definition which draws a line between legitimate and impermissible government actions.
If there is no right to privacy—no substantive due process guarantee–if government can force women to give birth, government can move to make interracial or same-sex marriages illegal. It can outlaw birth control. It can forbid divorce. In short, it can decide those “intimate matters” that the Founders and former Supreme Court decisions protected against government over-reach.
So far, my discussion of these issues has been necessarily abstract—a discussion of principles. Let me just conclude by reminding you of the challenge we are facing right here in Indiana, where we have statewide officials who are self-identified Christian Nationalists and who demonstrate daily that they neither understand nor respect the Constitution.
The most obvious example is our Lieutenant Governor, Micah Beckwith, who has pushed the racist White Replacement Theory, compared vaccination policies to Nazi Germany’s treatment of Jews, advocated that brown people crossing the border be shot, and accused the Indy Star, members of the left and Methodist and Lutheran ministers of wanting to cut off the private parts of children. When he served briefly on a library board, he tried to censor and remove books of which he disapproved, and he constantly engages in ugly diatribes against gay citizens. Most recently, he claimed that undocumented immigrants aren’t entitled to due process.
Todd Rokita, Indiana’s embarrassing Attorney General, has hounded and harassed a doctor who legally aborted a ten-year-old rape victim, and is engaged in a wide-ranging vendetta to root out efforts to foster racial and religious inclusion. I won’t go through Jim Banks’ numerous assaults on the American Idea, since as Fort Wayne residents you are undoubtedly already familiar with them. These men are so busy pursing a Christian Nationalist culture war, they don’t have much time to attend to the duties of their offices. They provide an excellent example of what government would be like in a country run by Christian Nationalists—aka, the Christian Taliban.
A country in the thrall of a Christian Nationalist worldview would look nothing like the America that most of us love and want to protect. We live in a dangerous time, but we cannot give in to fear and reaction, and we absolutely cannot allow Christian Nationalists, White Supremacists and other assorted bigots to jettison the legal system that has fostered American progress and been a beacon to oppressed people around the world.
Throughout our history, America has had to reckon with significant numbers of people who never accepted the premises of the system devised by the Founders. There have always been Puritans who–like the Planting Fathers–believed that they should be able to use government to control the lives and behaviors of everyone else. Throughout our history, we have always had to deal with America’s “original sin” of racism. We’ve had dark times. It wasn’t just the Civil War—I’m only one of the many old folks in this room who have lived through the Civil Rights movement, the women’s liberation movement, and the gay rights movement. American liberty has always been a work in progress—and has always been frantically resisted by those who have felt threatened and disoriented by social change. That said, the country has moved—granted, in fits and starts—toward realizing the ideals of liberty and civic equality set out in our constituent documents.
Because I am old, I often think of a folk song that was popular during the great upheavals of the 60’s. It was sung by Peter, Paul and Mary, and the chorus was “don’t let the light go out.” That should be our motto as we face this latest eruption of deeply unAmerican challenges from people who are threatened by diversity and dead-set against equality and inclusion.
