Category Archives: Constitution

About That Ciivil War..

Jennifer Rubin’s column on the leak of Alito’s “slash and burn” opinion pretty much summed up where we are: she pointed out that

unelected justices — in some cases appointed by presidents who lacked a popular-vote majority and confirmed by senators who did not represent a majority of the country — would bring to head a battle between a fading racial, religious and political minority and an increasingly diverse, secular country.

Rubin is not the only pundit pointing to the implications of the leaked analysis: this isn’t simply an attack on Roe, or on the right to abortion. This is the culmination of a 50-year effort to reverse the jurisprudence of substantive due process.

As I used to explain to my students, in American law, there are two kinds of due process: procedural and substantive. Procedural due process is–as the name implies–concerned with the fundamental fairness of the legal process. Did an accused person get a fair trial? If the matter was civil, rather than criminal, was the government procedure properly respectful of the individual’s liberty interests and property rights?

Substantive due process, as the name implies, is concern for the substance of a proposed law or government action. Is this an area where government regulation or action is appropriate, or is this a matter that must be left up to the individual to determine?

In other words, in this particular instance, who gets to decide? Government or the individual involved?  The question is not: what should the decision be? The question is: who gets to make the decision?

Ever since the Supreme Court ruled in Griswold v. Connecticut that the legislature had no business deciding whether married couples could use birth control, the doctrine of substantive due process has been applied to limit state intrusion into what the Court has called “intimate decisions.” Those “intimate decisions” include whether and when to have children, who to marry, whether to have consensual sexual relations, and many other choices that contemporary citizens believe are simply none of government’s business.

Alito’s sneering draft sweeps away that distinction. He hands over to state legislatures the authority to invade the most personal and private areas of individual lives, and to decree how those “intimate” lives should be led.

Make no mistake: eviscerating the doctrine of substantive due process, which is what this decision would begin to do, would return the U.S. to a pre-modern version of state authority–to a time when government had the right to impose the religious beliefs of those in power on citizens who do not share those beliefs.

If the leaked draft represents the Court’s ultimate, official decision, it will generate a civil war between the minority of Americans who want to turn back the clock to a time when church and state were joined in authority over citizens’ most personal decisions, and the rest of us.

Why do I characterize what’s coming as “civil war”?

Over the past 50 years, Americans (and for that matter, citizens of other Western democracies) have become accustomed to a legal system that draws a line between permissible and impermissible government actions. We have become accustomed to a culture in which we are entitled to a degree of personal autonomy, to control of the most meaningful, personal aspects of our own lives. In the U.S., polling repeatedly shows that large majorities believe that a woman should be able to control her own body and make her own reproductive decisions, that people of the same sex or different races should have the right to marry, that decisions to use or forgo contraception is none of government’s business.

A minority of paternalistic religious critics have worked  tirelessly to turn back the clock– to return to a time when these decisions were made by the White Christian Males in charge, those Rubin properly characterized as a “fading racial, religious and political minority.” Alito’s draft represents a massive victory for that minority. If it is seen accurately for what it promises–a steady stream of decisions depriving citizens of hard-won rights to live their “intimate” lives as they see fit– I believe furious Americans will launch a civil revolution of massive proportions.

It will be war.

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From Here To Autocracy

Increasing numbers of Americans are worried about the erosion of democracy. Most of us–this writer included–feel powerless to do much about it; we follow the news, and bemoan what seems like the inexorable drip-drip-drip of melting democratic norms.

One of the most recent drips was the spectacle of GOP incivility and bullying during the Supreme Court confirmation hearings. As I heard the posturing and antics of Cruz, “Miss Lindsey” and others, I couldn’t help recalling Dick Lugar’s explanation of his vote for a Clinton nominee (I no longer recall whether it was Breyer or Ginsberg); although he had  some philosophical differences with the nominee, Lugar said something along the lines of, ” Absent serious and well-founded concerns, a President is entitled to his choice.”

Now, opposition isn’t even grounded in philosophical differences; it is purely partisan–and  manifests itself in ugly and (patently false) “discourse” unworthy of the Senate.

This performative exercise was a taste of what we can expect if the GOP wins control of the Senate. It was just one more “drip” on the road to autocracy.

Some months back, an essay from the Washington Post outlined the “markers” along that road.

Democracy is most likely to break down through a series of incremental actions that cumulatively undermine the electoral process, resulting in a presidential election that produces an outcome clearly at odds with the voters’ will. It is this comparatively quiet but steady subversion, rather than a violent coup or insurrection against a sitting president, that Americans today have to fear most

Five sets of actions fuel this corrosion: limiting participation in elections; controlling election administration; legitimizing and mobilizing social support for methods to obstruct or overturn an election; using political violence to further that end; and politicizing the regular military or National Guard to delegitimize election outcomes.

The essay identified 18 steps to democratic breakdown and indicated how worrisome a threat the authors considered each.

They identified the willingness of the current Supreme Court to validate efforts to restrict voting–and the inability of Congress to pass voting rights protections–is ominous omens, and found state-level efforts to control the administration of elections equally ominous. They described efforts to put officials in place who would be willing to make decisions that subvert election outcomes as one of the most concerning of all actions that contribute to democratic breakdown.

Citizens should also be on the alert for

Governors, state election boards or commissions appoint, or voters elect, chief election officials who are sympathetic to false claims of voter fraud and willing to use their position to undermine confidence in election results, create new voting regulations or interpret election rules to partisan advantage.

We need to keep an eye on the battleground states of Arizona, Nevada, Colorado, Wisconsin, Pennsylvania and Florida, “where Republican candidates who publicly supported partisan audits or other actions to delegitimize the 2020 presidential election are now running for secretary of state or other statewide offices.”

The essay also warned against the “Independent State Legislature doctrine”–a doctrine that would move the country back toward the Articles of Confederation. (It was recently endorsed by creepy Indiana Senator Mike Braun.) That doctrine

interprets the Constitution as enabling legislatures to make final determinations about the outcomes of federal elections. A blueprint for such an effort appears in a memo drafted by attorney John Eastman after the 2020 election to try to convince Vice President Mike Pence that there were legal grounds to overthrow the election results. This would provide social backing for courts ceding power to the states to control elections.

Since the article was focused upon elections, it didn’t explore the multiple other dangers posed by this particular doctrine–including the fact that its adoption would  facilitate elimination of most civil liberty and civil rights protections in states where Republicans control the legislatures.

The essay also wanted readers to be aware of well-funded and organized efforts to draft model laws and file legal briefs that support the engineering of election outcomes; of incidents of overt coordination between law enforcement officers and militia groups; and   politicians voicing support for the use of violence and political intimidation in service of political ends.

Political elites undermine accountability for prior acts of political violence in ways that decrease perception about the costs of future violence. Making statements minimizing the Jan. 6 attack, obstructing efforts to investigate it and failing to punish politicians who supported it would fall into this category, as would punishing those politicians who support investigations.

There’s more. If you want to elevate your blood pressure, click through and read the whole thing.

And do everything in your power to get out the vote–and to protect the mechanisms for counting the votes that are cast.

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Braun: Another Indiana Embarrassment

As if the election of a truly abysmal legislature, courtesy of gerrymandering , wasn’t bad enough, Indiana’s voters keep giving the state hugely embarrassing statewide officials. I have posted several times about Todd Rokita, Indiana’s widely-despised egomaniac Attorney General; currently, it’s intellectually and morally-challenged Senator Mike Braun who is reflecting negatively on Hoosiers.

The Washington Post was one of several media outlets reporting on Braun’s defense of “state’s rights” during the confirmation hearings for Judge Jackson.

Sen. Mike Braun (R-Ind.) said Tuesday that he would be open to the Supreme Court overturning its 1967 ruling that legalized interracial marriage nationwide to allow states to independently decide the issue.
 
Braun — who made the comments during a conference call in which he discussed the nomination of Judge Ketanji Brown Jackson to the Supreme Court — also said he’d welcome the rescinding of several key decisions made by the court in the past 70 years to pass the power to the states.

 Heather Cox Richardson had a historically-grounded response to Braun’s assertion that the country would be “better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.”  As Richardson reminds us, the whole point of the 14th Amendment was to “homogenize” the fundamental rights of American citizens. 

After World War II, the Supreme Court used the Fourteenth Amendment to protect civil rights in the states, imposing the government’s interest in protecting equality to overrule discriminatory legislation by the states. 

Now, Republicans want to return power to the states, where those who are allowed to vote can impose discriminatory laws on minorities. 

Richardson points out that it’s impossible to limit an evisceration of the Fourteenth Amendment to a single issue. If states are empowered to award or deny rights as they wish –if they are free of federal restraints on their ability to strip reproductive rights from women, for example–“the entire body of decisions in which the federal government protects civil rights, beginning with the 1954 Brown v. Board of Education decision ending segregation in the public schools, is illegitimate.”

Voters need to realize that the GOP’s assault on fundamental rights goes well beyond efforts to overturn Roe. Tennessee Senator Marsha Blackburn has challenged  Griswold v. Connecticut, the decision that legalized contraception, and Texas Senator John Cornyn has attacked Obergefell, the decision recognizing same-sex marriage.

Braun and the other Neanderthals in the GOP would undoubtedly cheer such results. Most Americans, not so much. Richardson points out that they are “quite literally” making the same “states’ rights” argument used to justify enslaving people before the Civil War.”

More recently, it is the argument that made birth control illegal in many states, a restriction that endangered women’s lives and hampered their ability to participate in the workforce as unplanned pregnancies enabled employers to discriminate against them. It is the argument that prohibits abortion and gay marriage; in many states, laws with those restrictions are still on the books and will take effect just as soon as the Supreme Court decisions of Roe v. Wade and Obergefell v. Hodges are overturned.

Eviscerating the Fourteenth Amendment provision that prohibits states from withholding the “privileges and immunities” of U.S. citizenship from their citizens would invalidate the existing jurisprudence of Equal Protection, a jurisprudence that requires all states to respect the fundamental rights protected by the Bill of Rights–to “homogenize” them.

Richardson points out that Braun’s desired reversal of Loving v. Virginia would criminalize the marriages of both Judge Jackson and Justice Thomas in certain states.

Braun’s willingness to abandon the right of Americans to marry across racial lines was pointed, since Judge Ketanji Brown Jackson, whose confirmation hearing for her elevation to the Supreme Court is currently underway in the Senate, is Black and her husband is non-Black. The world Braun described would permit states to declare their 26-year marriage illegal, as it would have been in many states before the 1967 Loving v. Virginia decision declared that states could not prohibit interracial marriages. This would also be a problem for sitting justice Clarence Thomas and his wife, Ginni.

Braun is today’s version of  a mainstream Republican, and Richardson revisits a frequently-quoted paragraph written a decade ago by respected scholars Thomas Mann and Norm Ornstein, who concluded

“The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream,” they wrote, “it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

So we’ve seen–and it has only gotten worse.

These days, as the Jackson hearings are painfully illustrating, Republicans have made both civil discourse and  basic, substantive governance virtually impossible.

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State’s Rights

The importance of appointments to the Supreme Court isn’t limited to the issue of abortion, or to questions whether “religious liberty” protects the right to discriminate against gay people or refuse to be vaccinated, even when that “liberty” demonstrably harms others.

Thanks to Mitch McConnell, the Court now has at least four current Justices who appear ready to erase over a hundred years of precedent in order to protect the GOP’s electoral advantages. If the Court ultimately decides to ignore most of the jurisprudence that followed and applied the 14th Amendment, returning the United States to a decidedly ununited  status under the rubric of “states rights,” it won’t take long before we inhabit a country that most Americans won’t recognize.

And that country will not be a democracy, if by “democracy” we mean majority rule limited only by the Bill of Rights.

The Court recently denied efforts by Republicans from Pennsylvania and North Carolina to overturn lower court decisions that found redistricting maps favoring Democrats were fairly drawn. The immediate result was positive (or negative, depending upon your political preferences) and most people didn’t read beyond the headline. If they had, they would have seen a chilling  dissent filed by four right-wing justices who supported the Republicans’ argument that state legislatures have ultimate power to determine their own voting procedures, including the selection of presidential electors.

This–as several commentators have noted–is the old state’s rights argument.

If a state’s legislature can determine who gets to vote, or how votes are to be counted and by whom, states like Indiana that have already been gerrymandered to ensure Republican super-majorities can pass laws that further disenfranchise Hoosiers who disagree with their agenda, no matter how extensive that disagreement may be. (We saw the outlines of that agenda in the recently concluded session; Republicans and police officers opposed the bill that eliminated the requirement of a permit to carry a gun.It passed anyway. And  Republicans in the legislature have already asked the governor to call a special session to outlaw abortion if–or when–this Supreme Court strikes down Roe v. Wade.)

As historian Heather Cox Richardson recently reminded readers, in 1868, it was this very concept of “states rights” that Congress overrode with the Fourteenth Amendment–an amendment that the states subsequently ratified.

As others have noted, with appropriate alarm, at least four of the current Supreme Court justices have confirmed  that they are ready to support this independent state legislature theory. That support requires what one pundit has accurately called  “a radical reading of the Constitution that imbues state legislatures with total control over election and voting rules, and redistricting.” 

The Supreme Court has already denied the federal courts authority to overrule partisan gerrymandering. If it endorses the independent state legislature theory, that would bar state courts from doing so as well.  As the linked article summarized the situation,

f enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections. 

“It is effectively an avenue to free state legislatures from the supervision of state courts, which play a critical check and balance on the power of those legislatures,” Daley added. “All you have to do is look at state legislatures around the country to get a really good sense of what the future would look like if these legislatures are free to enact election law with impunity.”

An embrace of that theory by the Supreme Court would further exacerbate the divisions between Red states and Blue states; as the old saying goes, what’s sauce for the goose is also sauce for the gander. Many years ago, political scientist Theodore Lowi traced the resistance of local political pooh-bas to the 14th Amendment’s application of the Bill of Rights to state and local units of government. The result of that application, of course, was to create an American identity–to assure citizens that they would have the same basic rights if they moved from State A to State B.

Make no mistake: empowering state legislatures under this radical theory wouldn’t simply entrench political parties and eviscerate the 14th Amendment. It would be a retreat in the direction of the Articles of Confederation.

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Did The Founders Get It Wrong? Or Has The World Changed?

This is a hard post to write, because I’ve spent the better part of my adult life–as a lawyer,  as a university professor and (at various times) a columnist– defending and explaining America’s Constitution and Bill of Rights. But I just listened to a fascinating podcast from the University of Chicago’s law school, titled “What are rights?” and the reflections it prompted made me connect some “dots” that I’ve encountered over the years, and ponder questions I’ve ignored or–more accurately–repressed.

In the U.S. Constitution, rights are conceived of as negative. When US was founded, governments were far and away the most powerful threat to individual liberty, and accordingly, the Bill of Rights protected individual rights against government intrusions. (When I was Executive Director of Indiana’s ACLU, I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.)

Other Western democracies don’t necessarily share–or even understand–that  limited and negative conception of constitutional rights. Many years ago, I delivered a paper at a conference in Milan, Italy, that included an analysis of a then-recent Supreme Court case, and an Irish scholar challenged me; he thought my description couldn’t possibly be correct because the American notion of negative constitutional rights was unfamiliar to him.

And that brings me to the podcast that triggered this post. That discussion distinguished between human rights and  constitutional rights.

Placing rights in a country’s constitution requires a significant government infrastructure to enforce them–statutes, courts, the training of those who must police and protect citizens. As a result, as the participants in the podcast noted, we want to be prudent –to constitutionalize only the most important of those human rights.

What is “most important,” of course, depends on the cultural context.

Listening to the podcast sent me back to the Universal Declaration of Human Rights, issued by the United Nations in 1948. That document enumerated what were considered basic human rights at the time–and  it included both negative and positive rights. As the Preamble describes those rights, they include recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family.”

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…

The entire planet is currently watching a government engage in those “barbarous acts,” as Russia continues its assault on Ukraine–an assault that underlines the continued ability of governments to disregard the fundamental right to human and national self-determination.

In today’s world, however, governments are far from the only powerful actors capable of invading the rights of citizens. Multi-national corporations, obscenely rich oligarchs, and angry “tribes” of citizens enraged by loss of privileged status and empowered by “free press” propaganda all pose a significant and growing threat to both human and constitutional rights.

I have become increasingly convinced that a constitution that protects only negative rights–the “right to be left alone”–important as those protections are, is insufficient.

Re-read that paragraph from the Universal Declaration, especially the phrase “freedom from fear and want.” Other Western democracies have constitutionalized positive rights– to education, to health care, and to housing. The Universal Declaration itself includes positive rights, including the right to education, and the right “to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

America’s Constitution and Bill of Rights were major and dramatic innovations for their time. The documents crafted by the nation’s Founders triggered a  philosophical and cultural departure from the then-widespread  belief in the divine right of kings and the concomitant disregard for the rights of common folks.  For the first time, subjects became citizens, and citizens had rights.

We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.

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