Category Archives: Constitution

We Need Genuine Christians

Wednesday’s post went into some detail about the competing American cultures identified by David Brooks. Brooks concluded (among other things) that an “autonomy culture” has prevailed over the traditional belief in obedience to an established external authority (aka God). He did acknowledge several of the negative aspects of the latter culture, but the more I’ve thought about his critique, the more I recognized the significant problems he failed to identify.

One obvious problem is that honest religious adherents cannot claim to know with confidence what their particular deity requires. (There’s a popular Facebook meme saying something along the lines of: isn’t it interesting that your God hates the same people you do?)

How many wars have been fought by men trying to prove that their God is bigger and better and more correct than someone else’s?

The bigger problem with Brooks’ description of what is really a culture of subservience is, ironically, theological. My clergy friends– who all exhibit what I consider appropriate moral humility– point out that authentic religious belief requires the freedom to choose.

Forced piety/obedience is inauthentic by definition.

What got me thinking about all this was a recent column by Jennifer Rubin in the Washington Post. Rubin was pointing to Americans’ disinclination to “tell it like it really is.”

It’s not the plague of “polarization” or “distrust,” some sort of floating miasma, that has darkened our society. Bluntly put, we are in deep trouble because a major party rationalizes both intense selfishness — the refusal to undertake even minor inconveniences such as mask-wearing or gun background checks for others’ protection — and deprivation of others’ rights (to vote, to make intimate decisions about reproduction, to be treated with respect.)

What Rubin dubs the “White-grievance industry,” composed of right-wing media, politicians, pundits and think tanks, is enraged over the loss of a society where “far fewer women competed with men in the workplace, White power was largely unchallenged, and diversity was less pronounced.”

Encouraging that rage has required the (mis)use of religion.

Robert P. Jones, CEO of the Public Religion Research Institute, wrote recently in Time about the MAGA formula, ascendant after the United States’ election of its first Black president: “the stoking of anti-immigrant, anti-Muslim, and anti-Black sentiment while making nativist appeals to the Christian right.

”The nostalgic appeal of ‘again,’” Jones observes, “harkens back to a 1950s America, when white Christian churches were full and white Christians comprised a supermajority of the U.S. population; a period when we added ‘under God’ to the pledge of allegiance and ‘In God We Trust’ to our currency.”

Our future as a tolerant, decent society ultimately may depend on White Christian communities’ recovering their moral equilibrium and support for American democracy, and rejecting the movement to turn churches into platforms for QAnon and white nationalism. But we cannot wait for an evangelical reformation.

Rubin and Jones are hardly the first to point out that people purporting to be “bible believing Christians” have perverted the previously understood teachings of that religion to serve political ends. But in the following paragraph, she contrasts that faux Christianity with the behaviors of people who take philosophical and religious teachings and the “norms of civilized societies” seriously:

MAGA voters think everyone else is the problem. As perpetual victims, they feel entitled to ignore the demands of civilized society — e.g., self-restraint, care for actually vulnerable people, pluralism, acceptance of political defeat. Their irritation with mask-wearing gets elevated over the lives of those most susceptible to a deadly pandemic. Their demands to display an armory of weapons mean schoolchildren become targets for acts of mass gun violence. Their religious zealotry, fed by the myth that Christianity is under attack, means poor women cannot have access to safe, legal abortions.

My friends and family members follow a wide variety of religious traditions and none. Virtually all of them– devout and nonbeliever alike–have come to their beliefs via the exercise of personal autonomy–choice. They have examined the teachings of their their own and other religions, adopted those they’ve found persuasive and rejected others.

Several are people I regard as real Christians. They follow a very different Jesus than the John Wayne clone manufactured by political Evangelicals. (For one thing, their Jesus isn’t an ahistorical White guy with blue eyes.) They attend–and in a couple of cases, lead–churches that avoid the moral absolutism buttressed by cherry-picking  bibles that have been translated from their original languages over the years. They respect people who are racially and religiously different, and they understand why authentic religious belief requires separation of Church from State.

They’re the ones I consider “kosher”  Christians, and the ones I know are really, really tired of the White Supremicists who have appropriated –and continue to disgrace–the name.

 

Ah, Federalism…

One of this country’s ongoing struggles has been with the concept of federalism. Which rules should be nationally-imposed, and which should be left to those “laboratories of democracy” lionized by former Supreme Court Justice Brandeis?

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of government fragmentation.

Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. Questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called “the backbone of American commerce.”

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Last March, Talking Points Memo addressed the disastrous results of Trump’s decision to leave COVID response to the states.

From the very start of the Pandemic in the first weeks of 2020 the Trump administration consistently sought to disclaim responsibility for things that would be genuinely difficult and could have challenging or bad outcomes. Push the tough tasks on to others and if it goes badly blame them. This frequently went to absurd lengths as when the White House insisted that states short on ventilators at the peak of the spring surge should have known to purchase them in advance of the pandemic. Over the course of the year Trump spun up an alternative reality in which the US was somehow still operating under the Articles of Confederation in which individual states were responsible for things that have been viewed as inherently federal responsibilities for decades or centuries.

It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” (Someone needs to tell Indiana Senator Braun that interracial marriage is not one of those…).

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights, not so much…

 

 

Shoot-Out In The Fifth-Grade OK Corral

I’m hesitant to post about the most recent mass shooting–this one in a Texas elementary school. After all, what is there to say that hasn’t been said a million times before? As one commentator sadly noted, we’ll now hear Democrats talk about gun control and Republicans talk about mental illness.

Then, of course, there are Republicans like the odious Ted Cruz, who responded to an unspeakable tragedy in his state by asserting that the answer is to arm teachers. Not fewer guns, but more…and in the hands of people who, as a group, are least likely to want to own or brandish weapons.

Rand report looked at the pros and cons of arming teachers, and a fair reading suggested that gun manufacturers would experience the only “pro”–more sales of weapons. (Just what we need….) The relevant paragraph:

Arguments against arming teachers and school resource officers highlight the elevated risk of accidents and negligent use of firearms as more adults in schools are armed. The Associated Press reported, for instance, that there were more than 30 incidents between 2014 and 2018 that involved a firearm brought to a school by a law enforcement officer or that involved a teacher improperly discharging or losing control of a weapon (Penzenstadler, Foley, and Fenn, 2017). This compares with around 20 active-shooter attacks at schools over a comparable period (Cai and Patel, 2019). When even trained police officers have been found to successfully hit their intended targets in just 18 percent of incidents involving an exchange of gunfire (Rostker et al., 2008), critics question whether teachers can be expected to effectively return fire without inadvertently injuring the children they mean to protect (Vince, Wolfe, and Field, 2015). Finally, if teachers are holding guns or engaged in gunfire, it may make the job of law enforcement officers more difficult and dangerous when they arrive at the scene. Officers could mistake the teacher for an active shooter or could themselves be inadvertently shot by the teacher.

If silly things like evidence mattered to today’s GOP, we have mountains of it. I’m not going to bore you with links to the years of studies demonstrating the idiocy of America’s current gun culture–a google search will bring up more research than most of us want or need to read. The Republican mantra, on this issue as with so many, many others is: “don’t confuse me with the facts,” so marshaling those facts and using them as the basis of an argument is doomed before it begins.

The United States is the only modern country where mass murders are a routine experience. (I once met with a delegation from an African country that had only recently emerged from a bloody civil conflict, and was embarrassed to learn that the members of that delegation feared more for their lives on American streets than they had during their own civil unrest. They’d watched the shoot-em-up movies glorifying violence, and read the media reports about our routine carnage…)

Like so many others, I am bone-tired of writing about this insanity. Back in 2017, in a more analytic, less furious mode, I wrote:

There are 300 million guns in this country. We aren’t going to get rid of them–couldn’t if we tried. Furthermore, the vast majority of gun owners are responsible people–hunters, sportsmen, people hoping to protect their homes. It’s true that a significant number of the 30,000 plus gun deaths in America each year involve those responsible owners: suicides, domestic abuse, children accidentally shooting themselves or others. These deaths are tragic, but I’d draw an analogy to highway deaths–we don’t ban or confiscate cars because they can be lethal.

If we continue with the car analogy, however, there are lessons to be learned. We don’t let just anyone drive; in order to get a license you must pass a test. Your license can be revoked if you repeatedly break the rules. Academics study traffic deaths and issue recommendations for making our roadways safer–and legislatures, by and large, take those recommendations seriously. With guns, Congress has prohibited government from funding research on gun violence, and state lawmakers are constantly attacking and rolling back even the most reasonable firearm regulations. Congress even refused to pass a measure that would have prohibited individuals on the no-fly list–-people with demonstrable connections to ISIS–from owning guns.

The history and interpretation of the Second Amendment has been twisted beyond recognition. If self-proclaimed “originalists” are really interested in the original meaning of the Amendment (I have my doubts), they might find this explanation by former Supreme Court Justice John Paul Stevens edifying.

I don’t know whether our legislative “gun nuts” are really as ideological and twisted as they seem (speaking of mental illness…), or whether–undoubtedly like Cruz–just deep in the pocket of the gun lobby.

And I don’t know how or where this ends.

 

 

Free Speech For Those Who Can Afford It

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.

 

 

 

 

Back To Basics

There is one basic question that every society must answer: what is government for? What is its purpose and what are its proper limits?

Whether you want to call America’s current, vicious civic battles a “culture war,” or an assault by theocrats on the rest of us, one thing is clear: those waging that battle–the “warriors” who are intent upon using the power of the state to impose their beliefs on everyone else–have utterly rejected the libertarian premise upon which American government rests.

Libertarian, in this usage, refers to the nature of liberty, not today’s political ideology.

There is great wisdom in what has been dubbed the “libertarian principle.” Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. That approach rejected notions of monarchy and the “divine right” of kings (the overwhelming authority of the state) in favor of the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.

Government was tasked with protecting that liberty.

The libertarian principle undergirds the U.S. Constitution and Bill of Rights, and its operation has been persuasive world-wide. (If we really wanted to make America great again, we would revisit and revive our allegiance to it.)

Those who crafted America’s Bill of Rights believed that individuals are entitled to basic human rights simply by virtue of being human–and they understood human rights to require respect for individual moral autonomy. The term “limited government” is recognition of that principle–“limited” isn’t a description of size, it is a limit on authority, a limit on the power of the state to invade and disregard the individual’s right to self-determination.

Handing government the power to prescribe citizens’ moral “dos and don’ts” is the antithesis of genuine liberty.  If those in positions of power and authority can prescribe your life choices, and punish any deviation from officially sanctioned personal conduct, you are a subject, not a citizen–and you definitely are not exercising moral choice.

So what role should government play? What is implied by that libertarian construct?

Allow me to restate it: Individuals should be free to pursue their own ends–free to “do their own thing”–so long as they do not harm the person or property of another, and so long as they are willing to accord an equal liberty to others.

Those caveats are important, and they require both action and restraint by government.

One of the most obvious purposes of government is to prevent some people from harming the person or property of others. What constitutes “harm,” of course, can be a contentious matter: does my use of profanity constitute a harm to society? What about pornography? Books with “anti-social” content? “Wrong” religious beliefs? (Contemporary Republicans insist that teaching accurate history constitutes a harm.)

Then, of course, there is that little matter of government’s responsibility for ensuring civic and legal equality….

As difficult as our arguments about the nature of the “harms” that justify government action continue to be, Americans have really balked at that second “so long as”–the one requiring those of us who insist on our own right to self-government to “accord an equal liberty to others.” Far too many of us prefer something along the lines of “liberty for me but not for thee.”

The problem with a system in which only some people have rights is that a government with the power to deny me my rights today can use that authority to deny you your rights tomorrow. Actually, a government with the power to grant and/or withdraw rights isn’t dealing with”rights” at all–it’s doling out privileges, and privileges can be withdrawn when the political environment changes.

As a wise man once told me, we’re equally free, or no one really is. Poison gas is a great weapon until the wind shifts.