Category Archives: Constitution

Rejecting “It Depends”

When I was teaching, I had a standard “introduction” lecture that I’ve referred to several times on this platform: I would tell my Law and Public Policy students that, yes, they would find me opinionated, but no, a difference of opinion would not affect their grades–that my goal was not to change their opinions or policy preferences, but to ensure that they left my class using two phrases more frequently than they had before: “it depends” and “it’s more complicated than that.”

In other words, I saw it as my job as a college professor to encourage increased recognition of complexity and ambiguity–to discourage knee-jerk ideology in favor of thoughtful exploration. In my opinion–then and now–education is the process of inquiry. The educated individual is aware of what s/he doesn’t know. Education–again, in my view–is vastly different from rote learning. Teaching is not a process of transmitting “givens” to receptive vessels–it consists of introducing students to the process of critical thinking and dispassionate analysis of what constitutes probative evidence and what doesn’t.

There isn’t a lot of critical thinking–at least, as I describe it– going on in America’s political life these days. I recently came across an essay in the New York Times that helped me understand the roots of the rigidity that permeates our national conversations. It was titled “The 77-Year-Old Book That Helps Explain the MAGA New Right.”

The essay focused on a 1948 book by one Richard Weaver, whose argument–according to the essay–laid the foundation, or basic contours, of the New Right’s closed approach. The book was titled, “Ideas Have Consequences,” an observation that has  become a popular catchphrase on the Right.

Dr. Weaver didn’t have just any old ideas in mind: The ideas he was concerned with were distinctively modern ideas, and the consequences of these ideas were devastating. They had caused nothing less than “the dissolution of the West.”

Weaver’s target was a philosophical concept called nominalism. Nominalism, which Weaver attributed to philosophers like Hobbes, Locke and other Enlightenment thinkers, rejects the existence of absolute truths — including transcendental moral truths. Nominalists rejected Plato’s notion of a universal objective moral reality.

Dr. Weaver insisted that nominalism was the source of all our woes. He wrote that, by challenging the idea of universal objective moral reality, “modern man had succumbed to individualism, relativism, materialism, historicism and politics as will to power.” Weaver–and today’s intellectuals of the Right–insist that, as a consequence, modern thought is inherently corrosive, and that we must restore a “transcendental moral orthodoxy” to our politics.

They seem quite sure that any “moral orthodoxy” will mirror their own “objective” conclusions…

As the essay points out, adopting Weaver’s approach would rather “obviously legitimate the repression of anyone who thinks about truth differently.” We can draw a straight line from Weaver to MAGA’s belief that “heritage Americans”–i.e. White Christians– who evidently are seen as having some sort of genetic access to those immutable “truths,” are the only people who can be “real Americans.”

As the author of the essay notes, there’s nothing wrong or anti-American about holding strong convictions grounded in tradition or religion. But–as she also reminds us– the American system was based upon the Enlightenment belief that “citizens are entitled to shape their own conceptions of the world.”

Genuine conservatives understand and respect the First Amendment’s commitment to the freedom of the individual conscience. They accept that religious freedom means living in a country where different people hold different beliefs, and that a commitment to free speech allows people to voice opinions contrary to their own.

MAGA folks are not conservative.

There’s general understanding that Trump and MAGA are authoritarian, but less recognition of how profoundly unAmerican that authoritarianism is.  MAGA folks approve of Trump’s approach to governing because it is consistent with what the essay calls a “closed philosophical mode” of “radical anti-modernism and moral and political absolutism.”  MAGA’s contempt for liberal democracy is rooted in its belief that they–and only they– are arbiters of Truth, and they see America’s constitutional commitment to pluralism and tolerance as threats to that Truth.

They are incapable of recognizing that discerning a truth (lower case) requires understanding that the world is complicated, and that what constitutes any given truth often depends upon recognizing and accounting for the multiple facts in which that “truth” is embedded.

MAGA folks firmly believe that they are in possession of immutable Truths; the only open question is how they are going to make the rest of us bend to their Truths.

Dialogue with such people is unlikely to be productive.

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I Guess I’m A Domestic Terrorist…

Charlie Sykes says if we’re not alarmed, it’s because we aren’t paying attention.

Granted, paying attention to this corrupt and incompetent administration means constant alarm–my own ranges from moderate concern to abject terror–but Sykes was singling out a recent memo issued by the bimbo who is currently cosplaying as US Attorney General, Pam Bondi.

The memo orders the FBI to “compile a list of groups or entities engaging in acts that may constitute domestic terrorism.”

And who are these “domestic terrorists”? Apparently, anyone engaged in an activity that “paints legitimate government authority and traditional, conservative viewpoints as ‘fascist.”  Bondi proposes to punish such offenses “to the maximum extent permitted by law.” (If she was a minimally-competent lawyer, she’d recognize that the First Amendment prohibits punishing “activities” that are really just beliefs…)

The memo orders the creation of a massive dragnet that focuses on “Antifa.” As sentient Americans know–but the credulous MAGA base evidently does not–Antifa is simply a word meaning “anti-fascist.” (You. know, like the American soldiers who fought in WWII.) There is no “Antifa” organization, nothing comparable to the communist cells that so terrified patriotic citizens back in the Cold War/McCarthyite days. But Bondi’s use of the term accurately signals her obvious goal, which is focused on ideology, not on terrorism as we have historically defined that word.

As Sykes explains (emphases his):

Although the directive mentions the statutory definition requiring acts dangerous to human life, it directs federal law enforcement to investigate individuals whose “animating principle is adherence” to several viewpoints.

And the“extreme viewpoints” and ideological frameworks the Attorney General instructs federal law enforcement to prioritize include? (These are direct quotes)

• Opposition to law and immigration enforcement…

• Extreme views in favor of mass migration and open borders…

• Adherence to radical gender ideology…

• Anti-Americanism…

• Anti-capitalism…

• Anti-Christianity…

• Support for the overthrow of the United States Government…

• Hostility towards traditional views on family, religion, and morality,,,

Sykes accurately describes this as “clowns-with-flamethrowers territory.” and notes that Bondi appears to be quite serious– that she’s providing “heavy hitters  with legal hammers, writing that “The JTTFs [Joint Terrorism Task Forces] shall prioritize the investigation of such conduct.”

Needless to say, an attack that characterizes “antifa” as the cause of domestic terrorism ignores reality and the mountains of data confirming that far-right attacks –especially those from white supremacists–vastly outnumber all other forms of domestic violence. (That documented and fact-based conclusion has now been deleted from the department’s website.)

I am fascinated by Bondi’s list, which certainly establishes that–at least in her opinion–I’m a “domestic terrorist.” I may not own a gun or other weapon (I certainly don’t!) and I may run from anything remotely like a physical confrontation (yes, I’m a big coward), but I am firmly opposed to the current administration’s “immigration enforcement” tactics. I definitely adhere to what MAGA considers “radical gender ideology” (I support same-sex marriage and the right of trans people–including young people–to access appropriate medical interventions). I have a sneaking suspicion that Bondi would consider my strong objections to Trump’s war crimes and pathetic pro-Putin betrayal of Ukraine to be “anti-Americanism.”

I’m equally sure that my disdain for White Christian nationalism and my practice of putting quotation marks around “Christian” to recognize those using the label inappropriately would be sufficient for Bondi to consider me “anti-Christian.”

And I am absolutely hostile to the “traditional views” that have kept women in the kitchen and out of the workforce, LGBTQ+ people in the closet, and dark-skinned folks in servitude. You might call any of these hostilities my “animating principles.”

When I look back at the comments that are routinely posted in response to my daily rants on this site, I have to conclude that most of my readers are “domestic terrorists” too. In fact, if survey research is to be believed, a majority of Americans run afoul of several of the vague descriptions on Bondi’s ridiculous culture-war list.

For that matter, Trump, Bondi and this entire clown car of an administration are the ones guilty of “Anti-Americanism.” Bondi’s list is just additional evidence of that fact.

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Legal Nostalgia

A former student recently needed a copy of the syllabus I’d used in her graduate Law and Policy class back in 2010. When I reviewed it, I was struck by the changes effected by Trump, MAGA, and our current, corrupt Supreme Court majority. I became positively nostalgic for the legal environment of my time in the classrooom–nostalgic for the “black-letter law” and for precedents that were considered settled by my cohort of lawyers and law professors.

In that syllabus, I explained the course as follows:

___________

This course will examine the response of the American legal system, with its historic commitment to individual liberty and autonomy, to the growth of the administrative state and to an increasingly complex social environment characterized by pluralism and professional differentiation. We will discuss conflicting visions of American government and different approaches to public administration, and consider how those differences have affected the formation and implementation of public policy within our constitutional framework. Throughout, we will consider the constitutional and ethical responsibilities of public service—the origins of those responsibilities and their contemporary application.

While relatively few people will become public officials or public managers, all Americans are citizens, and most citizens will participate in the selection of public officials and will take positions on the policy issues of the day. Accordingly, this course is intended to introduce all students to the constituent documents that constrain public action and frame policy choices in the American system. These explorations will inevitably implicate political (although not necessarily partisan) beliefs about the proper role of the state, the health of civil society, and the operation of the market. To the extent possible, these theoretical and philosophical beliefs will be made explicit and their consequences for policy and public sector behavior examined. The goal is to help students understand why certain policy prescriptions and/or public actions attract or repel certain constituencies, and to recognize the ways in which these deeply held normative differences impact our ability to forge consensus around issues of public concern.

In the course of these inquiries, we will consider the implications of the accelerating pace of social change on issues of governance: globalization, especially as it affects considerations of legal jurisdiction; the increasing interdependence of nations, states, and local governmental units; the blurring of boundaries between government, for-profit and nonprofit organizations, and the effect of that blurring upon constitutional accountability; the role of technology; and the various challenges to law and public management posed by change and diversity, including the  impact and importance of competing value structures to the formation of law and policy.

By the end of the semester, students should be able to recognize legal and constitutional constraints on public service and policy formation, and to identify areas where public policy or administration crosses permissible boundaries. They should be able to recognize and articulate the impact of law and legal premises on culture and value formation, and to understand and describe the complex interrelation that results.

_________

During my years on the faculty teaching law and policy, it never occurred to me that I would live in an America where a President and virtually everyone in his administration would find the foregoing paragraphs incomprehensible–where individuals in positions of authority would reject–indeed, be unfamiliar with– the very concept of Constitutional restraints, let alone the existence and importance of civil society and/or competing arguments about the proper role of government.

I certainly wouldn’t have anticipated that so many of the ambitious politicians serving in the House and Senate–men and women presumably concerned for the national interest– would neuter themselves in slavish submission to a man whose ignorance of government and policy and whose intellectual and moral deficits were impossible to ignore even before the emergence of unmistakable dementia.

I would have rejected as fanciful the notion that a duly constituted United States Supreme Court would substitute partisan ideology and Christian nationalism for the rule of law, upending years of settled precedents and thoughtful, considered jurisprudence, not to mention the Separation of Powers that lies at the very heart of our constitutional architecture.

And yet here we are.

Forgive this somewhat whiney post, but coming across my old syllabus has made me nostalgic for the legal world I once inhabited. It wasn’t perfect, but it was infinitely preferable to our current reality, and we need to recover, reinstate, and improve it.

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Federalism

In the United States, states have a long history of being considerably less than united. The Articles of Confederation were so focused on protecting the prerogatives of the individual colonies that they proved unworkable, and were replaced by a Constitution that made its own significant concessions to “states’ rights.”

As the country modernized and experienced increasing economic and social integration, the need for national standards became more obvious. Lawmakers recognized that federal agencies regulating things like health or clean air and water needed to issue regulations that would operate similarly in all the states. The Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws), was created to draft legislation that would bring stability and conformity to state statutory law in areas where such uniformity is seen as desirable and practical. And there is an obvious need for federal law enforcement to enforce its criminal laws nationally.

But there is still room for considerable variation. Justice Brandeis memorably called the states in our federalist system “laboratories of democracy.”

Americans increasingly operate, live and do business in multiple states–a situation that led me to discount the importance of federalism for a long time. (Different laws in different states, after all, caused some very silly situations; before the Supreme Court found same-sex marriage to be a Constitutional right, people who were married in one state weren’t considered married in others.) I focused on the downside and failed to appreciate the upside.

The Trump administration has reminded me of federalism’s importance. Governors like Jay Pritzker in Illinois and Gavin Newsom in California, among others, have illustrated that importance, and a recent article from Vox called federalism a “hidden constraint” on Trump.

So far, the biggest successes against President Donald Trump’s second-term assault on democracy have come not from Congress and the Supreme Court, but more unusual sources: lower-court judges, “No Kings” protests, a Disney+ subscriber boycott, and Trump’s own indiscipline and incompetence.

After the 2025 elections, we can add the states to the list. And in some ways, this avenue of resistance may prove to be the most consequential one.

The article noted that the United States’ federalist system is unusual among backsliding democracies– and that it creates some “major opportunities for institutional pushback” that aren’t possible elsewhere. It also notes the irony of where we are today, since for most of our history, states (especially in the South) “have been places where pockets of authoritarianism could exist in a nationally democratic society.”

Certain of the powers that are, in our system, remitted to the states — very much including control over the administration of elections — are mechanisms through which we can resist this administration’s authoritarian power grab. We can see this most vividly in Trump’s effort to rig the upcoming midterm elections by asking Red states to engage in improper mid-cycle gerrymanders.

Because election administration is almost entirely devolved to the states in the American system, Trump has very limited powers to actually try and rig elections from DC. Instead, gerrymandering at the state level — threatening and cajoling governors and state legislatures into drawing as many safe seats for Republicans as possible — is his best shot at actually stacking the deck in the GOP’s favor in 2026.

As we are seeing, that effort is currently failing. Not only have Blue states “counter-gerrymandered,” but legislators in Red states like Indiana have (at least so far) refused to go along, deferring to the huge majorities of their constituents who disapprove.

As the article points out, would-be autocrats follow a well-worn path that requires consolidating formal power in their own hands and neutering independent checks on their authority. It’s a lot harder to rig elections or prosecute your political opponents when you don’t control the necessary levels of power. True, strong federalism cannot guarantee democracy: (Our history has ample examples of authoritarianism flourishing at local levels) But that system creates “opportunities for contestation” when the national government is moving in an unAmerican direction.

It’s hard to imagine a more unAmerican–not to mention demented– administration than the one we currently have. In just the last week, our mad would-be King has accepted a bribe from Saudi Arabia, authorized extra-judicial killings of Venezuelan fishermen, called for the death of political opponents who had the temerity to remind our troops that they took an oath to defy manifestly illegal orders, and responded to a legitimate question from a reporter by calling her “piggy.”

Given the fact that we have a Congress of eunuchs and a corrupt majority on the Supreme Court, I have a new appreciation for the role of federalism in America’s system of checks and balances.

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The Equal Protection Of The Laws

From day one, the Trump administration has made its disregard for the Equal Protection Clause of the 14th Amendment and its deep-seated racism too clear to ignore. Just a few examples will suffice: the recently-announced intent to limit the number of refugees the country will accept to 7500, while giving priority to White South Africans; directing ICE to stop and harass people based on nothing but skin color; the constant and ferocious attacks on DEI; the ongoing efforts to disenfranchise Black voters…the list goes on. And on. 

The best response to MAGA protests that the racist label is unfair was in a recent headline from The Hill. It read “If MAGA doesn’t want to be labeled racist, it should stop elevating racists.”

Memo to President Trump’s backers: If you want people to stop calling you racist, stop saying and doing racist things. And stop excusing racist posts and rants by leading voices in the MAGA media.

When Nick Fuentes and Tucker Carlson recently ranked among the top five on Spotify’s list of top trending podcasts, it screamed out that racism and antisemitism are not a problem for their MAGA-world fan base.

None of this, of course, surprises those of us who have understood since 2016 where Trump’s support lies. MAGA’s racism has been too glaringly obvious to ignore. But more recently, it seems that MAGA’s animus goes beyond race, gender and religion; the administration is evidently determined to undermine the very concept of Equal Protection–the belief that all citizens are entitled to the equal application of the laws. (For that matter, Trump clearly wants the effective repeal of the entire 14th Amendment–beginning with birthright citizenship, but definitely not ending there.)

The Washington Post has reported on the administration’s most recent assault on the very concept of Equal Protection of the Laws. The administration now wants to deny people who hold different political beliefs a benefit to which they are legally entitled.

Employees of nonprofit organizations that work with undocumented immigrants, provide gender transition care for minors or engage in public protests will have a hard time getting their federal student loans forgiven under regulations advanced Thursday by the Education Department.

The 185-page rule revises eligibility requirements for Public Service Loan Forgiveness, which cancels the education debt of government and nonprofit employees after 10 years of service and 120 monthly loan payments. It will allow the education secretary to disqualify employers — not individuals — who engage in activities the department deems to have a “substantial illegal purpose” on or after July 1 — when the rule takes effect

Current law makes those holding student loans eligible for a federal program offering loan forgiveness if they focus on areas that serve the public good. The law has defined those categories as including careers in education, public health or public interest law. The proposed rule would dramatically change a program that has offered debt relief “to more than 1 million student loan borrowers across more than 20 sectors of the economy.”

The proposed rule was prompted by a Trump Executive Order that designated disfavored nonprofits that should no longer be eligible for government benefits. 

A partial list of those the administration wants to deem ineligible is telling:

Aiding and abetting violations of federal immigration laws.
Supporting terrorism or engaging in violence for the purpose of obstructing or influencing federal government policy.
Engaging in the chemical and surgical castration or mutilation of children in violation of federal or state law.
Engaging in a pattern of aiding and abetting illegal discrimination.

The subjectivity is obvious–and the point. We’ve seen how ICE defines the obstruction of government “policy.” We’ve seen what the administration considers “aiding and abetting” (i.e. offering opinions that are protected free speech). The administration defines medical treatment of transgender children to be “mutilation.”

And of course, the administration takes the position that any effort to level the playing field for minorities amounts to “illegal discrimination” against White Christians.

You can almost hear the mob boss. “Want your student loan forgiven, so you can afford a house or a new car? It would be a shame if all those payments you’ve already made didn’t count…maybe you should change jobs.” 

I doubt that Trump can spell, pronounce or define “arbitrary and capricious” but those terms describe what would result from his efforts to ignore the clear meaning of the 14th Amendment–and for that matter, the rest of the Bill of Rights.  Citizens would no longer have an automatic right to equal treatment–their access to government programs would depend upon the degree to which they are willing to bend the knee.

Like it works in a monarchy…..
 

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