Category Archives: Constitution

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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After Roe

Happy Sunday! I will be delivering the following “sermon” (via Zoom) at the Danville Unitarian-Universalist Church this morning.

_________________

Thank you for asking me back! I’m gratified.

As you all know by this time, my academic background is law—and more specifically, Constitutional law and the Bill of Rights.

The Bill of Rights, the approach to individual liberty that animates it, and the jurisprudence interpreting it  tell us when government must respect declarations of “my body, my choice.” We’ve been hearing that slogan a lot from the people who are refusing to be vaccinated—and ironically, they’re often the very same people who label themselves “pro life” and vigorously oppose a woman’s right to control her own body.

I’m here to tell you that the anti-vaxxers throwing that slogan around have it exactly backwards.

The Founders who crafted our Constitution and Bill of Rights were influenced by the philosophy of the Enlightenment and by what we call the “libertarian construct”—the belief that we humans have an inborn right  to “do our own thing”—to pursue our own interests, form our own beliefs, and make our own life choices and moral judgments, free of government interference– until and unless we are harming the person or property of someone else, and so long as we are willing to grant an equal right to others.

That approach to human rights requires government to refrain from interfering with citizens’ political or religious beliefs, but it also imposes a governmental duty to protect citizens from harm. Philosophers like Hobbes believed that was a major purpose of government—to keep the strong from taking advantage of the weak, to protect citizens from threats both foreign and domestic. We can certainly quibble over the nature and degree of the harms that justify government action, but if government can protect us from drunk drivers and the dangers of passive smoke, then a dangerous and frequently fatal pandemic is clearly a sufficient basis for government rule-making.

A pregnant woman’s decision to terminate her pregnancy, on the other hand, poses no threat of harm to her neighbors.

Despite the rhetoric—the legal issue is not whether abortion is right or wrong, good or bad. The issue is who gets to make that decision, the individuals involved or the government? In our Constitutional system, decisions about the religion you will follow, the books you will read, the political philosophy you’ll embrace, and many others—are all supposed to be left to the individual. What the courts call “intimate” decisions, like those about who you will marry and whether you will procreate, are to be left up to individual citizens, because they are none of  government’s business.

I agree with the people who point out that the so-called “pro-life” movement is really pro-birth. Most of the legislators who identify themselves with the pro-life label are clearly unconcerned about women’s lives, or about feeding, housing and educating babies once they are born. But I wasn’t asked to speak to the considerable dishonesties of the anti-choice position; I was asked to focus on what will happen if—as most of us anticipate—the Supreme Court eviscerates or overrules Roe v. Wade.

Before that, however, we need to look at the actual origins of the anti-abortion movement.

Noted religion scholar Randall Balmer has documented those origins. It wasn’t until 1979—a full six years after the Court decided Roe v, Wade—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.”

Objecting to abortion was seen as “more palatable” than what was actually motivating them, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education. 

According to Balmer (this is a quote),

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

End quote.

Let me emphasize that. It was rightwing anger about civil rights laws that actually motivated the “Right to life” movement. The Rightwing was savvy enough to recognize that organizing grassroots evangelicals to defend racial discrimination wouldn’t cut it—that they would need a different issue if they wanted to mobilize evangelical voters on a large scale.

The bottom line is that what motivated the Christian Right’s political activism, including but not limited to its opposition to abortion, was racism and defense of racial segregation.

Let’s give credit where credit is due: that tactic has been incredibly successful. Christian Nationalists now own one of America’s two political parties—and I say that as someone who worked hard for the Republican Party for 35 years. Mitch McConnell has achieved the GOP’s fever dream of taking over the Supreme Court, and much as it pains me to say this, with the imminent demise of Roe, we are looking at what is probably the first of many times this Court will roll back individual liberties.

So what now?

If Roe is overruled—or more likely, effectively neutered– there will certainly be some horrendous consequences. But there may also be some unanticipated positives.
We have all come up against the intransigence of the “one issue” anti-choice voters, the people who disagree with Republicans about virtually everything else, but vote Republican because they are “pro life.” Without Roe, I think many of them will abandon the GOP.
Losing Roe will also make it much more difficult to energize a national movement against birth control, which is actually a target of the most rabid anti-choice activists—a significant number of whom are men who want women barefoot, pregnant and back in the kitchen. Bottom line: anti-choice voters have been a mainstay of the GOP–and at the federal level, at least, they will arguably be considerably less motivated.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt to protect reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to make it possible for poor women in Red states to travel to places where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus, medically-inaccurate “counseling,” and deal with other barriers to the exercise of what is currently a constitutional right to terminate a pregnancy.

What the de-nationalization of Roe might do–should do–is redirect liberal and pro-choice energies from national to state-level political action. And while there are no guarantees, that could be a huge game-changer.

The current agenda of the Republican Party doesn’t reflect the desires of the American majority–far from it. GOP numbers have been shrinking steadily; some 24% of voters self-identify as Republican. Their electoral success has been due primarily to the 2011 gerrymander, and that was made possible because they controlled a large number of state governments when redistricting took place. More recent GOP vote suppression tactics that have depressed Democratic turnout and disenfranchised Democratic voters have also been facilitated by state-level control. In many states—possibly even Indiana—redirecting voters’ attention to state-level politics could change that.

Without Roe, it is reasonable to predict that the single-issue anti-choice voters that have been a mainstay of the GOP will be less motivated to vote. Pro-choice voters, however, will be newly energized, and polling suggests they significantly outnumber “pro-life” activists. A recent Pew survey has found that 61% of Americans say abortion should be legal in all or most cases, with 27% saying in all cases and another 34% saying in most cases. Only twelve percent of the public says abortion should be illegal in all cases, and only 26% would outlaw it most cases.

In anticipation of the loss of Roe, some states have already seen efforts to protect reproductive rights. A ballot drive has been launched in Michigan. Reproductive Freedom for All’s petition would affirm the right to make pregnancy-related decisions without interference, including about abortion and other reproductive services such as birth control. The groups leading the effort are Planned Parenthood Advocates of Michigan, the Michigan ACLU and an organization called Michigan Voices.

New Jersey has already enshrined abortion rights in state law. Lawmakers in that state bolstered protections for reproductive rights in anticipation of the upcoming U.S. Supreme Court decision, and Gov. Phil Murphy has signed a bill codifying abortion rights into state law. He also signed a second bill that expands insurance coverage for birth control.

Meanwhile, in states like Florida and South Dakota, lawmakers are rushing to impose new restrictions on abortion, anticipating the Court’s acquiescence with much more restrictive rules.

Knowing our Hoosier legislators, I anticipate some pretty dreadful legislation being introduced here. It will require organization and activism in Indiana to derail what the ridiculous pro-gun, anti-vaccine legislators who call themselves “pro life” will try to do.
Indiana will need an enormous uprising—of women, of men who support women, and especially of liberal churches—if we are going to escape replicating the Handmaid’s Tale here in Hoosierland.

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Another Reason To Get Rid Of The Electoral College

A few days ago, Heather Cox Richardson–a historian who writes Substack’s popular “Letters from an American”–reported on several aspects of the Trump coup effort. Among the various efforts she itemized was the following

Over the past several days, news has broken that lawmakers or partisan officials in various states forged documents claiming that Trump won the 2020 election. This links them to the insurrection; as conservative editor Bill Kristol of The Bulwark notes, false electoral counts were part of Trump’s plan to get then–Vice President Mike Pence to refuse to count a number of Biden’s electoral votes on the grounds that the states had sent in conflicting ballots.

Interestingly, on December 17, 2021, White House press secretary Kayleigh McEnany told Fox News Channel personality Sean Hannity that in four states there were an “alternate slate of electors voted upon that Congress will decide in January.” McEnany talked to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol yesterday.

Over the past few election cycles, the history and operation of the Electoral College has come under increasing scrutiny. And the more closely this odd element of our electoral process is examined, the more anti-democratic and positively dangerous it looks.

Whether, as several constitutional scholars insist, the Electoral College was a concession to the slave states, or as its defenders contend, it was an effort to give added electoral heft to smaller states–it  It currently undermines democracy and–as Richardson’s report illustrates–facilitates the efforts of those who would overturn the will of American voters.

Structurally, there is a great deal wrong with the Electoral College. For one thing, it substantially advantages white rural voters. Research suggests that–thanks to the current operation of the College– every rural vote is worth one and a third of every urban vote. Small states already have a significant advantage by virtue of the fact that every state–no matter how thinly or densely populated–has two Senators.

No other advanced democracy in the world uses anything like the Electoral College (and as political scientists have noted, there are good reasons for that). And for those who fashion themselves as “originalists,” it’s worth pointing out that our current version of the Electoral College is dramatically different from the mechanism as it was originally conceived and even as it was later amended.

According to law professor Edward Foley, who wrote a book on the subject, the changes made to the College by the Twelfth Amendment in 1804 rested on the assumption that the candidate who won a majority of the popular vote would be elected. Those who crafted the Amendment failed to foresee the emergence of third party candidates whose presence on the ballot often means that the winner of a given state doesn’t win a majority, but a plurality of the vote.

These issues aside, the main problem with the Electoral College today isn’t even the  undemocratic and disproportionate power it gives rural voters and smaller states. It’s the statewide winner-take-all laws, under which  states award all their electors to the candidate with the most popular votes in their state– erasing all the voters in that state who didn’t vote for the winning candidate.

Forty-eight states have winner-take-all rules. As a result, most are “safe” for one party. The only states that really matter in any given federal election are “battleground” states — especially bigger ones like Florida and Pennsylvania, where a swing of a few thousand or even a few hundred votes can shift the entire pot of electors from one candidate to the other.

Winner-take-all has an even more pernicious effect–it disincentivizes voting by people who are in their state’s political minority. If your state is red and you are blue, or vice-versa, it’s easy to convince yourself your Presidential vote is meaningless, because it is.

Winner take all rules are why Democratic votes for President simply don’t count in Indiana and Republican votes for President don’t count in New York. Even if the margin is incredibly thin, the candidate who comes out on top gets all of that state’s electoral votes. If the votes were apportioned instead—if a winner of 51% of the popular vote got 51% of the electoral vote, and the candidate who got 49% got 49%, it wouldn’t just be fairer. It would encourage voters who support the “other” party in reliably red or blue states to vote, because–suddenly– that vote would count.

Joe Biden had to win the popular vote by five percentage points or more — by more than seven million votes — to insure his win in the 2020 election. That’s not only an unfair and undemocratic burden–it’s insane.

Now we learn that–in addition to its multiple anti-democratic effects–the College facilitates cheating. It really needs to go.

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