Many pundits–including yours truly–throw that term around, assuming readers understand its elements. I think most Americans do recognize one of those elements–the principle that no one is above the law, that the rules apply to everyone, very much including Presidents and lawmakers.
There are other principles that are less-well understood, however, and one of them is specificity. If laws are to be obeyed, they must be explicit. They must describe the behaviors being prohibited (or required) clearly, in terms that allow citizens to fully understand them. When courts strike down laws for being unconstitutional, it is often because those measures have been found to be unconstitutionally vague.
That required specificity is among the many, many things that far too many legislators ignore. Texas comes immediately to mind, but the following example is from Ron DeSantis’ Florida–a state that is beginning to resemble Viktor Orban’s Hungary.
There are more than 500 entries for Florida in PEN America’s ever-expanding list of books banned in American schools. These include what should be obviously innocuous titles like the “Zen Shorts” series by Jon Muth, which are some of the best children’s books available to parents and teachers. This effort to remove books about Black and LGBTQ+ people and characters from schools and libraries is a part of a larger effort to sanitize our country’s history. Like almost all efforts that pass for conservative “policies” these days, citizens of all ages are widely opposed to the bans….
DeSantis and his team of book-banners also highlighted the need to criminally punish teachers or librarians who give out books people like DeSantis deem pornographic. Mind you, our federal government (and Florida itself) already has laws outlining what is and is not considered pornographic. And there are also laws that prohibit books, images, and videos that sexualize minors…
Judd Legum over at Popular Information has gotten his hands on some of the Florida books that have been banned and the stated reasons they were banned. You would be hard-pressed to figure out how the previous statements above have any bearing on the decisions being made about libraries in the Sunshine State.
The article links to PEN’s report on the multitude of books that have been removed from Florida classrooms and it’s as jaw-dropping as you might imagine. The extensive nature of the list is an artifact of an unconstitutionally vague statute–a truly excellent example of a law that violates the specificity required by the rule of law. That’s because, In Florida, while there may be a few books deemed “pornographic,” most of the books that have been banned are attacked under the “how vague can you get” term “inappropriate.”
Rather obviously, my definition of “inappropriate” and yours may differ substantially.
The linked article suggests that the DeSantis Administration finds books depicting racism in negative terms to be “inappropriate.” For example, the Florida Department of Education announced that it rejected 35% of social studies textbooks submitted to them. One of those–a book for 6th to 8th graders– was evidently rejected for containing the following section:
“New Calls for Social Justice
During the 2000s, one effect of an increase in the use or mobile devices and social media was the spread of images of police violence, sometimes deadly, against Black Americans. The deaths of Black Americans outraged many Americans and led to a crowing awareness of systemic racism that permeated the broader society.
In 2013, a new social and political movement called Black Lives Matter formed to protest violence against Black Americans. The movement called for an end to systemic racism and white supremacy.”
Florida’s state education department rejected two new Holocaust-focused textbooks for classroom use, while forcing at least one other textbook to alter a passage about the Hebrew Bible in order to meet state approval…
“Modern Genocides” was rejected in part for its discussion of “special topics” prohibited by the state. The list of such topics includes terms such as “social justice” and “critical race theory,”a phrase that traditionally concerns a method of legal analysis but that Republicans have used pejoratively to refer to discussion of systemic racism in the United States. The department did not clarify which prohibited “special topics” the book included.
Florida evidently considers accurate history and support for civic equality as (equally-vague) “woke” and thus “inappropriate.”
Maybe we should get rid of speed limits and just prohibit “driving too fast.” We can trust the police to decide who’s speeding–right?
Just like we can trust Florida’s current government to decide what’s “inappropriate.”
Last Sunday, as those of you who read my posted “sermon” will recall, I spoke to the Danville Unitarians. At the conclusion of my talk, I engaged in a brief question-and-answer session, and a couple of those questions echoed comments sometimes posted here.
For example, one parishioner asked what one citizen can do about our unrepresentative legislature, given the reality of Indiana’s extreme gerrymandering. It’s a reasonable question, given the lack of mechanisms available–we lack a citizens’ initiative or referendum, and a friend of mine who cares a lot about the issue (and not so incidentally spent several years as a judge on Indiana’s Supreme Court) tells me he sees nothing in the state constitution that might be used to overturn partisan redistricting.
My only answer rests on the fact that the most nefarious result of gerrymandering is vote suppression. Hoosiers who live in House and Senate districts considered “safe” for one party or another (and yes, there are a few safe Democratic districts, thanks to the mechanism known as “packing,” aka cramming as many voters of the “other party” into as few districts as possible) tend to stay home. Why bother to vote, if the result is foreordained?
The voters who stay home are overwhelmingly those of the “loser” party. That’s especially the case in places where the loser party hasn’t bothered to field a candidate.
But here’s the dirty little secret: in a number of those “safe” districts, if there was a massive turnout, the “losers” could win! That’s because, in a number of Indiana’s rural districts, Democrats have failed to go to the polls.
There are two reasons for that.
Reason one: When an acquaintance of mine who ran in one such district went door-to-door, she was astonished by the number of people who expressed surprise that there were Democrats living in the area. Years of being told that they were rare exceptions had beaten them down, and added to the belief that they were rare–and powerless.
Reason two: as another member of the congregation noted, the suburban/bedroom communities around Indianapolis and other urban areas have been growing significantly–and much of that growth comes from young, educated people looking for less-expensive housing and able to work remotely at least part of the time. Given the significant political divide between people with a college degree and those without, it’s fair to predict that many–if not most– of those new residents have more progressive political orientations.
It’s obviously impossible to know how politically significant those two observations are unless many more people vote. So my answer to the young woman who asked that question was: do everything you can to get out the vote. We know is that those engaging in the redistricting process rely upon prior years’ turnout when drawing their district lines. If longtime residents of the “other” party who haven’t previously gone to the polls were suddenly to do so–and if newcomers with different values and concerns join them–a lot of those presumably “safe” districts will no longer be so safe.
There was another question that struck me as important. A young man followed up the previous question with what he characterized as an “expanded version.” What could congregations do? Not as individuals, but as congregations.
It was a great question, because one of the most annoying aspects of our terrible legislature is the serene belief of far too many of its members that God is on their side. (Their God hates the same people they do…) When someone like me–Jewish, atheist, civil libertarian– comes to testify, it’s easy to ignore that testimony.
But when a church lobbies or testifies, it’s a lot harder to dismiss out of hand.
We sometimes forget (as our legislature clearly does) that not all religions–or even all Christian denominations– endorse the punitive doctrines of the fundamentalists who control today’s MAGA Republicans. There are enormous differences–not just between religions, but between denominations of the Christianity that dominates American culture. It’s past time for the many congregations that preach love and acceptance, embrace modernity and equality and care about the “least of us,” to speak up at the Indiana Statehouse.
Loudly.
The day before yesterday, I posted about a Christian legislator who had the guts to challenge a performative Christian lawmaker on biblical grounds. We need more people like that authentically religious legislator, and we especially need more congregations willing to challenge hateful and discriminatory measures at the Indiana Statehouse.
Those are the challenges to which our pathetic lawmakers should have to respond. Not to the “rule of law” and “fair play” people like yours truly, but to the co-religionists they inaccurately claim to represent.
Today, I will be delivering a talk–shared below– to Danville’s UU Congregation, addressing our legislature’s assault on trans children.
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Let me begin this talk by quoting from the introduction of a recent article in the New York Times:
When the Supreme Court declared a constitutional right to same-sex marriage nearly eight years ago, social conservatives were set adrift.\
The ruling stripped them of an issue they had used to galvanize rank-and-file supporters and big donors. And it left them searching for a cause that — like opposing gay marriage — would rally the base and raise the movement’s profile on the national stage.
“We knew we needed to find an issue that the candidates were comfortable talking about,” said Terry Schilling, the president of American Principles Project, a social conservative advocacy group. “And we threw everything at the wall.”
What stuck to that wall was the issue of transgender identity, particularly that of young people. As the article went on to detail, the effort to restrict transgender rights has supplanted same-sex marriage as an animating issue for social conservatives. It has reinvigorated a network of conservative groups, increased rightwing fund-raising and set the Right’s agenda in school boards and state legislatures, including Indiana’s.
Nothing like fear of a demonized “Other” to gin up the troops….
I was asked to address the legal issues triggered by the Indiana General Assembly’s efforts to keep trans children from receiving appropriate medical care. I will do that—but before I do, I think it is critically important to point out that what we are experiencing in the U.S. right now, not just in Indiana, isn’t just an attack on the autonomy of women and the existence of trans people; it’s a political calculation that is also part of a wholesale attack by MAGA partisans on the Bill of Rights and long-settled principles of American jurisprudence.
The purpose of the Bill of Rights was—in Justice Jackson’s immortal words—”to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.” Or, less eloquently, as I used to tell my students, the Bill of Rights answers a deceptively simple question: who decides? Who decides what book you read, what God you worship (or if you do), what politics you endorse, who you choose to marry, whether you choose to procreate…who gets to dictate what philosophers call your telos—the ultimate aims and objectives that you have chosen and that shape your life?
From 1967 to last year, America’s Courts answered that question by upholding a doctrine called substantive due process—often called the individual’s right to privacy or personal autonomy. That doctrine recognizes the existence of an intimate “zone” that governments have no right to enter— a set of personal decisions that must be left up to the individuals involved. That doctrine, first enunciated in Griswold v. Connecticut, recognized the libertarian principle embraced by the nation’s founders.
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 (in other words, 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 someone else, and so long as they were willing to accord an equal liberty to their fellow citizens.
When I was much younger, that principle, and the importance of limiting government to areas where collective action was appropriate—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.
That process requires the use of other inaccurate labels. We’re hearing a lot about “parental rights,” for example—but we sure aren’t hearing about the rights of parents who want to treat their children’s gender dysmorphia or who want their children to have access to a wide range of books, or to be taught accurate history. In MAGA world, parental rights extend only to parents who agree with them. (A more accurate label would be “parental privileges.”)
Indiana’s legislature has now gone home, but before they left, the culture warriors who dominate that legislature passed measures doing irreparable harm to trans children. That same gerrymandered legislature was first in the nation to pass an almost complete ban on abortion after Dobbs was handed down. It was the same legislature that ignored law enforcement warnings and passed “permit-less carry,” and the same legislature that has conducted a years-long effort to destroy public education in Indiana.
I think it’s really important to understand that denying medical care to defenseless trans children isn’t a “stand-alone” position. It’s part of an entire worldview that is anti-choice, pro-gun, anti-immigration, racist, anti-Semitic and homophobic, a worldview that is autocratic and profoundly anti-American. The good news is that it’s a worldview held by a distinct minority of Americans—and that minority has gotten substantially smaller since the recent judicial and legislative assaults on women and LGBTQ+ people. The bad news, of course, is that—thanks to gerrymandering– that minority controls far too many legislative bodies, very much including Indiana’s.)
What is my evidence for the assertion that these are minority positions?
According to a Pew Research Center poll conducted in 2021, before Dobbs, 59% of Americans believed that abortion should be legal in all or most cases, while 39% believed it should be illegal in all or most cases. In a Gallup poll earlier this year—after Dobbs— 35% of Americans said abortion should be legal under anycircumstances, and another 50% said the procedure should be mostly legal, but with some restrictions. Only 13% responded that it should always be illegal. (What’s that old saying? You don’t know what you have until you lose it…)
It isn’t just abortion.
In a 2021 Gallup poll, 56% of Americans said they believe gun laws should be stricter, while 43% said they should remain as they are or be less strict.
In a Pew poll from 2021, 60% of Americans said that immigrants strengthen the country, while 37% said that they burden the country.
In another poll that year, 70% of Americans supported same-sex marriage while only 28% said it should be illegal. That level of support explains why the GOP has shifted its main focus from same-sex marriage to transgender people; the public is less familiar with transgender people, so they can more easily be demonized.
With that background, let me turn to the legal issues. On April 5th, Indiana’s ACLU– joined by the national organization– filed a 47-page complaint challenging the discriminatory and cruel anti-trans measure signed by Governor Holcomb. Let me just read the opening paragraph of that Complaint:
Over the sustained objection and concern of medical professionals, Indiana passed Indiana Senate Enrolled Act 480, effective July 1, 2023, which prohibits transgender minors from receiving what the law labels as “gender transition procedures.” These prohibited interventions are evidence-based and medically necessary medical care essential to the health and well-being of transgender minors who are suffering from gender dysphoria, a serious condition that can lead to depression, anxiety and other serious health consequences when untreated. By denying this medically necessary treatment to minors, the State of Indiana has displaced the judgment of parents, doctors, and adolescents with that of the government. In so doing, the State has intruded on the fundamental rights of parents to care for their minor children by consenting to their receipt of doctor-recommended and necessary care and treatment. This violates due process. Additionally, by singling out for prohibition the care related to “gender transition,” the law creates a facial classification based on sex and transgender status, violating the equal protection rights of transgender adolescents. It also violates their bodily integrity and is fundamentally irrational, which violates due process. And, to the extent that it prohibits the provision of essential services that would otherwise be authorized and reimbursed by Medicaid, the law violates the federal requirements of the Medicaid Act and the Affordable Care Act. It also intrudes on the First Amendment rights of doctors and other practitioners.
Speaking of intrusions on Constitutional rights, the ACLU has also filed two cases challenging Indiana’s abortion ban. The first case argues that the ban violates Indiana’s constitution. In my view, the second case is the really important challenge—it’s based upon religious liberty. Your Unitarian Church—along with several other Christian denominations, the Jewish community, and an assortment of other minority religions– has an extremely important interest in both its argument and outcome.
I’m one of many people who are convinced that abortion bans are prompted by a desire to return women to a subservient status– but those bans are publicly justified by equating a fertilized egg with a human person. As doctors will confirm, that is a religious precept, not a medical one. It’s a belief held by some Christian sects, but it is at odds with doctrinal beliefs held by other Christian denominations and by adherents of other religions. In Judaism, the health of the pregnant woman takes priority over that of the fetus throughout pregnancy, and the fetus does not have equal moral status with the mother until the head emerges from the womb.
If the Indiana Supreme Court upholds the ban, it would be favoring one part of one religion over others—a violation of the First Amendment, and ironically, a violation of Indiana’s version of the Religious Freedom Restoration Act., or RFRA. As you will all recall, that act was passed in order to justify discrimination against LGBTQ+ citizens. (What’s that saying about karma??) I’m relatively optimistic about Indiana’s Supreme Court, since none of its justices appear to be clones of Clarence Thomas or Samuel Alito.
So here we are.
MAGA Republicans are waging culture war against a fundamental premise of American governance—what Justice Brandeis once called “the right to be left alone”—a premise that animates the Bill of Rights and for the past 56 years has been protected by the explicit doctrine of substantive due process—the premise that there are decisions government doesn’t get to make.
I may disagree with your choice of religion or politics or life partner, but my disapproval is irrelevant. Even if a majority of Americans disagree with your choices, in our system, they are yours to make. Absent harm to others, government must “butt out.”
The Indiana legislature’s assaults aren’t just against women or trans people—these assaults should be seen for what they are: an effort to overturn a fundamental principle of American government. And if that effort is successful, it won’t just be trans children who suffer. None of us will have rights that government will be obliged to respect.
Ah, federalism! In the abstract, “laboratories of democracy” and a component of those “checks and balances” the Founders established.
Two hundred plus years later, a mess.
Very few students came into my classes with an understanding of the term or the multiple and often confusing ways in which federalism operates in the 21st Century. (That confusion was clearly shared by the author of a recent Washington Post essay who didn’t seem to understand when state-level prosecutors like Bragg can charge violations of both state and federal laws in a single prosecution. In all fairness, however–as I so often told my students– it depends, and it’s complicated.)
Actually, in addition to gerrymandering, the Electoral College, the filibuster, and the number/ terms of Supreme Court Justices, it’s also past time to revisit and revise the divisions of authority between state and federal governments.
Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority. In recent years, however, we seem to have forgotten about the very negative consequences of government fragmentation that prompted the Founders to establish a strong central government.
Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, 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 (belated) 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.
The need for substantial national uniformity isn’t confined to civil liberties. 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; that body developed 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 had to be 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.
Commerce is hardly the only area where uniformity is desirable and/or necessary. 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. A lot of people died as a result of Trump’s decision to leave COVID response to the states.
I won’t even address the insanity of leaving gun laws to the states in a country as mobile as the U.S.
Then there’s the environment. ( Air and water don’t stay in Indiana.)
The Indiana Capital Chronicle recently reported on efforts by Indiana lawmakers to give the General Assembly power over decisions that are currently left to state agencies staffed with experts who implement state and federal environmental laws— a move that would put Hoosiers’ health and environment in jeopardy.
A sweeping, 54-page amendment was added last week to the administrative rulemaking bill, which additionally seeks to put lawmakers in charge of new pesticide regulations and prevent state environmental regulators from making stricter coal ash rules than federal ones.
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?” .
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 guns, the environment or fundamental rights, not so much…
Among the newsletters I receive is one from historian Heather Cox Richardson, who regularly provides historical context for contemporary issues.
These two paragraphs from a recent newsletter have prompted me to dust off and recycle one of my old classroom lectures.
The right-wing rejection of democracy was on display at a meeting of the Federalist Society in early March. Politico’s Ian Ward covered the meeting. The Federalist Society organized in the 1980s to argue that the civil rights decisions of the past several decades corrupted democracy because liberal judges were “legislating from the bench” against the wishes of actual voters. The society’s members claimed to stand for judicial restraint.
But now that their judges are on the bench, they have changed their philosophy. Last summer, after a Supreme Court stacked with Federalist Society members overturned the right to abortion, voters have tried to protect that right in the states. Now, according to Ward, the Federalist Society appears to be shifting away from the idea of judicial restraint in the face of popular votes and toward the idea that judges should “interpret the Constitution” in ways right-wing Americans support. They are quick to claim that democracy is not the answer: it would result, they say, in the tyranny of the majority.
When I taught Law and Public Policy, we talked a lot about the U.S. Constitution, and the Founders’ approach to that “tyranny of the majority.”
The phrase points to a legitimate concern: if the law is anything a majority of voters say it is at any given time, individual rights are at risk. A majority can vote to disenfranchise a minority, require everyone to attend a particular church, criminalize anti-government sentiments… the list goes on.
It is easy, after 200 plus years, to find fault with our Constitution, and in this blog I have pointed to areas that I think need to be amended or re-construed. But the philosophy with which the Founders approached these very real worries about what they called the “passions of the majority” was (in my view) as close to perfect as possible.
Drawing on Enlightenment scholarship, the Founders distinguished between matters that were properly within the decision-making authority of “the people”–the majority– and matters that were to be protected from the majoritarian passions of those people.
That division was the entire purpose of the Bill of Rights.
In our system, a majority of voters get to select their lawmakers (theoretically, at least, voting for those whose positions they endorse). Those representatives then decide, via legislative majorities, issues ranging from waging war, to taxes, to electoral processes, to the establishment of government agencies…on and on. (And yes, as I periodically point out, this process is currently not working very well…)
The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter. Your neighbors cannot vote to make you attend a particular church or prevent you from reading a particular book; they may not authorize a government functionary to “search and seize” you without probable cause. Etc.
For years, judges and lawyers have debated the range of personal liberties protected against majority disapproval. Was the Bill of Rights to be read as an organic whole, encompassing the “unenumerated” rights retained by the people, or was it to be limited to rights expressly identified? I think the expansive reading is more consistent with the text and the Founders’ original expressed philosophies, but it’s a legitimate debate.
The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.
The American constitutional system was based upon the libertarian principle (libertarianism as properly–and originally–understood). I’ve shared it before; let me share it again: The libertarian principle holds that Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of another, and so long as they are willing to accord an equal liberty to their fellow citizens.
We can argue about the nature of the harms that justify government intervention, but Jefferson had it right: “It does me no injury for my neighbour to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”
The purpose of the Bill of Rights was to erect a boundary between those matters that harm others, which the majority can properly sanction, and the individual, profoundly personal human rights that are simply none of government’s business.
We can argue about where that boundary belongs, but the Federalist Society, MAGA warriors and Christian Nationalists are trying to erase it altogether.
