Constitution – Page 24 – Sheila Kennedy

But I Repeat Myself…

Last Thursday, I delivered the following speech to a Kiwanis group in Northwest Indianapolis. Longtime readers of this blog will recognize the “theme”…It’s also considerably longer than my usual posts, so my apologies.

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Over the past several years, we’ve seen America’s political debates become steadily less civil. Bigotries that were once more or less suppressed—at least, in polite company– are being publicly paraded. Partisanship has overwhelmed reasoned analysis. The death of newspapers and the ubiquity of social media and the Internet have encouraged people to choose their news (and increasingly, to inhabit their preferred realities).

I’m here today to suggest that an enormous amount of this contemporary rancor is a result of civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government.

John asked me to talk a bit about this small book I wrote a couple of years ago–Talking Politics? What You Need To Know Before Opening Your Mouth.. I wrote it because I believe that civic ignorance is a huge, and hugely under-appreciated, element of America’s current dysfunctions.

Voters don’t need to be constitutional scholars, but a basic understanding of the history and structure of American government matters. A lot. Productive civic engagement requires an accurate understanding of the “rules of the game” — especially but not exclusively the Constitution and Bill of Rights– the documents that frame and constrain policy choices in the American system.

Most educated Americans know that our Constitution was a product of the Enlightenment, the 18th Century philosophical movement that gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government. What is less recognized is that the Enlightenment did something else: it changed the way people defined individual liberty.

We’re taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty, and that’s true; what we aren’t generally taught, however, is how they defined that liberty. Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to make sure their neighbors did likewise.

The Enlightenment ushered in a dramatically different definition of liberty, sometimes called the Libertarian Construct. It’s a version of liberty that insists on the right of individuals to determine their own moral ends and life goals, and their right to pursue those goals free of government interference. People were supposed to be free to “do their own thing,” so long as they were not harming the person or property of others, and so long as they were willing to grant an equal measure of liberty to others.

The post-Enlightenment version of liberty begins with the belief that fundamental rights aren’t gifts from benevolent governments; instead, Enlightenment philosophers and America’s Founders believed that humans are entitled to certain rights just because we’re human– and that government has an obligation to respect and protect those inborn, inalienable human rights.

When we ask the question whether this or that behavior is protected by the Bill of Rights, it’s really important to recognize that the Founders didn’t conceive of the Amendments as grants of rights—they were commitments to protect our human, inborn rights from an overzealous government and what they referred to as the “passions of the majority.”

As I used to tell my students, the Bill of Rights is essentially a list of things that government is forbidden to do. Government cannot dictate our religious or political beliefs, search us without probable cause, or censor our communications, for example—and it can’t do those things even when popular majorities approve. The Founders focused on restraining the power of the state, because in their world, governments were the most powerful entities. That’s why we define civil liberties as freedom from government intrusions. It wasn’t until 1964 that the United States began to pass civil rights laws that prohibited discriminatory behavior by private-sector actors.

I’m constantly amazed by how many Americans don’t understand the difference between constitutional liberties and civil rights, or the anti-majoritarian operation of the Bill of Rights—or, as we are seeing during this pandemic—the legitimate limits of our individual liberties.

Governments create what lawyers call “rules of general application” to protect the common good. Public officials can properly and constitutionally establish speed limits, ban smoking in public places—even require us to cover our genitals when we’re out in public. As Justice Scalia wrote in Employment Division vs Smith, back in 1990, so long as these and hundreds of other laws are generally applicable—so long as they aren’t really sneaky efforts to unfairly target specific groups—they don’t violate the Constitution.

Here’s the thing: the U.S. Constitution as amended and construed over the years guarantees citizens an equal right to participate in democratic governance and to have our preferences count at the ballot box. Those guarantees are meaningless in the absence of sustained civic engagement by an informed, civically-literate citizenry. Let me say that a different way: Protection of our constitutional rights ultimately depends upon the existence of a civically-informed and engaged electorate.

The consequences of living in a system you don’t understand aren’t just negative for the health and stability of America’s democratic institutions, but for individuals as well. There’s a Facebook meme going around to the effect that people who don’t understand how anything works are the people most likely to latch on to conspiracy theories. Whether that’s true or not, it is definitely the case that people who don’t know how government works are at a real disadvantage when they need to navigate the system. (Try taking your zoning problem to your Congressman.) Civic ignorance also impedes the ability to cast an informed vote. Especially at times like these—when official action or inaction can trigger massive protests– citizens need to know where actual responsibility resides.

Today, we are all seeing, in real time, the multiple ways in which civic ignorance harms the nation. As I indicated earlier, what we call “political culture” is the most toxic it has been in my lifetime. (And in case you didn’t notice, I’m really old.) There are lots of theories about how we got here—from partisan gerrymandering and residential sorting, to increasing tribalism, to fears generated by rapid social and technological change. But our current inability to engage in productive civic conversation is also an outgrowth of declining trust in our social and political institutions—primarily, although certainly not exclusively, government. Restoring that trust is critically important —but in order to trust government, we have to understand what it is and isn’t supposed to do. We have to understand how the people we elect are supposed to behave. We need a common understanding of what our Constitutional system requires.

Here’s an analogy: if I say this piece of furniture is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires or prohibits. But by and large, those aren’t the things Americans are arguing about.

In my academic life, I studied how Constitutional values apply within an increasingly diverse culture, the ways in which America’s constitutional principles connect people with different backgrounds and beliefs and make us all Americans. That research convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of America’s history and philosophy—is absolutely critical to our continued ability to talk to each other, build community and function as Americans, rather than as members of rival tribes competing for power and advantage. Unfortunately, the data shows civic knowledge is in very short supply.

Let me share an illustrative anecdote: When I taught Law and Public Policy, I began with what I like to call the “constitutional architecture,” a discussion of the ways America’s legal framework limits what laws we can pass, and what legal scholars mean when they refer to the importance of the Founders’ “original intent.”

I liked to ask students “What do you suppose James Madison thought about porn on the internet?” Usually, the student would laugh and then we’d discuss how the Founders’ beliefs about free expression should guide today’s courts when they are faced with efforts to censor media platforms the Founders could never have imagined. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

It’s tempting to consider that student an outlier–but let me share with you just a tiny fraction of available research. The Annenberg Center conducts annual surveys measuring what the public knows about the Constitution. Two years ago, 37 percent couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could identify the three branches of government. Fewer than half of 12th graders can define federalism. Only 35% of teenagers recognize “We the People” as the first three words of the Constitution. It goes on and on.

And it matters, because Constitutions address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced? In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” The most revolutionary element of the American Idea was that it based citizenship on behavior rather than identity—on how you act rather than who you are. Initially, as we know, the American Idea only applied to property-owning White guys, but—over a lot of resistance– we have steadily expanded it. (As the ubiquity of cellphone cameras keeps demonstrating, we’re still struggling with that expansion.)

History tells us that the Founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the Founders’ achievement was, we all recognize that the system they established was far from perfect. The great debates between the Federalists and Anti-Federalists were about the proper role of government. We’re still having that debate. The overarching issue is where to strike the balance between government power and individual liberty.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty—or tell you to wear a mask in public?

How would the conversations we are having about vaccination mandates and masks change, if parties to those conversations all understood how our Constitution approaches both the rights of individuals and the duties of government?

In our Constitutional system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong. What they don’t have is the right to harm or endanger others, or the right to deny an equal liberty to people with whom they disagree. Drawing those lines can be difficult; it’s impossible when citizens don’t understand what government has the right to demand. We can—and do—argue about what constitutes harm, and when that harm is sufficient to justify government intervention in personal decision-making.

When people don’t understand when government can properly impose rules and when it can’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether a piece of furniture is a table or a chair.

Like all human enterprises, Governments have their ups and downs. I think most of us will agree that we are in a very “down” period right now. Unfortunately, in the United States, the consequences of “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon an Idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share—at least theoretically– is a set of constitutional values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when we don’t trust that our elected officials are obeying those norms, when we suspect that they are distorting and undermining the underlying mechanics of democratic decision-making, our democracy can’t function properly.

There will always be disagreements over what government should and shouldn’t do. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds, and learn how to bridge our differences. When widespread civic ignorance allows dishonest partisans to rewrite our history, pervert our basic institutions, and ignore the rule of law, we not only undermine the Constitution and the American Idea, we erode the trust needed to make democratic institutions work. Ultimately, that’s why civic ignorance matters, and why I wrote that little book.

It’s a very little drop in a very big ocean…but we can only do what we can do.

I know I rant. Thanks for indulging me.

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A Damning Critique

When a noted Constitutional scholar and a retired federal judge jointly issue a damning critique of the current Supreme Court, the particulars of that criticism are worth considering.

Lawrence Tribe and Nancy Gertner have co-authored such an essay for the Washington Post.

Tribe, as Americans who follow such matters know, is a highly respected constitutional scholar who taught at Harvard; Gertner is a retired federal judge. Both served on Biden’s Commission charged with reviewing the operations of the Supreme Court , and both now endorse the (longstanding) scholarship advocating the addition of Justices. Interestingly, they write that they entered the Commission’s deliberations with different preferences for addressing the Court’s declining legitimacy–initially, both had favored term limits but not expansion.

They changed their minds.

After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

In their essay, they explained that their vote in favor of the final report did not signal agreement with all of it, but approval of the process, which they note accurately reflected the complexity of the issue and the diversity of views.

There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates.

In two paragraphs that sum up not just the opinions of these two experts, but–sadly–the all-too-obvious reality of where we find ourselves today, they accurately pinpoint the defects of today’s Court and the impact of those defects on efforts to remedy America’s ills.

But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.

The essay accuses today’s Court of operating to entrench the power of one political party by upholding measures to constrict the vote and deny ballot access to people of color and other minorities, and by “allowing legislative district lines to be drawn that exacerbate demographic differences”–i.e., refusing to hold gerrymandering unconstitutional. And they note that, absent intervention, a Supreme Court that “has been effectively packed” “will remain packed into the indefinite future, with serious consequences to our democracy.”

This is a uniquely perilous moment that demands a unique response.

The concluding paragraphs are worth pondering and– if the political will can be mustered (a critical unknown)–acted upon.

Though fellow commissioners and others have voiced concern about the impact that a report implicitly criticizing the Supreme Court might have on judicial independence and thus judicial legitimacy, we do not share that concern. Far worse are the dangers that flow from ignoring the court’s real problems — of pretending conditions have not changed; of insisting improper efforts to manipulate the court’s membership have not taken place; of looking the other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.

Put simply: Judicial independence is necessary for judicial legitimacy but not sufficient. And judicial independence does not mean judicial impunity, the illusion of neutrality in the face of oppression, or a surface appearance of fairness that barely conceals the ugly reality of partisan manipulation.

Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.

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Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson-– is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.

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Living In Wacko World

There is much that I don’t understand about the Americans who continue to support Donald Trump and the Big Lie. There’s even more I don’t understand about today’s GOP, which looks absolutely nothing like the political party to which I devoted some 35 years.

Here’s a smattering of what I don’t get:

How do these people explain away the hysterical refusal of the Trump mob to testify to Congress or hand over documents? If they have nothing to hide, why would they act this way? From my lawyering days, I still remember the concern of criminal defense lawyers that a client’s failure to testify would be taken by a jury as evidence that the client had something to hide; in fact, there was a standard (and undoubtedly ineffective) jury instruction to the effect that the jury should refrain from making that obvious assumption.
How do they justify the rage and recriminations focused on the few members of the GOP who voted to repair the nation’s decaying infrastructure–especially when Trump tried and failed for four years to have his own “Infrastructure week”? Don’t they drive on our crumbling roads and worry about our failing bridges? How do they explain to themselves and others the GOP insistence that defeating anything President Biden wants is more important than actually getting things that obviously need to be done, done?
What in the world prompts Republicans to threaten “reprisals” for the indictment of Steve Bannon? Bannon was indicted for contempt of Congress. There is no quarrel with the accuracy of the charge: he publicly refused to testify to the committee investigating the January 6th insurrection, and just as publicly refused to provide documents Congress identified. If individuals can ignore Congressional subpoenas, if they can thumb their noses at lawful investigations, we are really in Wild West territory. Yet members of the GOP are warning that Democrats’ efforts to force Bannon to comply “paves the way for them to do the same if they take back the House in 2022.” According to the Washington Post report linked above, “most high-profile GOP leaders have quickly turned Bannon’s indictment into the latest litmus test for loyalty to the former president.”

This is evidently where we are: if the rule of law gets in the way of partisan loyalties, well, the rule of law must go.

What must also go in this world-view is the First Amendment of the U.S. Constitution.

Last week, Trump’s disgraced former national security advisor, former General Michael Flynn, spoke at a “Reawaken America” conference in San Antonio, Texas. (According to multiple reports, the conference was intended to reinforce the Big Lie that the 2020 election was stolen, and to support the argument that vaccine requirements infringe Americans’ liberties.) Flynn told the audience: “If we are going to have one nation under God, which we must, we have to have one religion. One nation under God, and one religion under God.”

The former national security adviser also characterized the investigation into the riot as “the insurrection crucifixion” and likened House Speaker Nancy Pelosi to Pontius Pilate. “This is a crucifixion of our First Amendment freedom to speak, freedom to peacefully assemble. It’s unbelievable,” Flynn said.

Flynn’s speech was one of the more explicit endorsements of what the Rightwing political fringe has clearly wanted–and what respect for the rule of law has impeded–a “Christian” nation. (Actually, a nation ruled by White Christian males.)

This is hardly the first time Flynn gets attention for his statements that seem to go against some of the basic tenets of American democracy. In May, Flynn said at a QAnon conference that a military coup like the one that took place in Myanmar “should happen” in the United States. Flynn was Trump’s national security adviser for less than a month and resigned after it was revealed he lied about conversations with the Russian ambassador to the United States. Flynn twice pleaded guilty to lying to the FBI and Trump pardoned him.

What I don’t get–what I cannot wrap my head around–is how non-mentally-ill Americans (even those who get their “news” from Fox) can look at these and so many other examples of the GOP assault on logic, democracy, reality and the rule of law and tell themselves that they are the behaviors of “true Americans.”

If gerrymandering delivers Congress to the GOP next year, we are going to be living in a very different country than the one in which most of us grew up.

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A Sword Or A Shield?

Religion has been in the news a lot lately, which probably shouldn’t surprise us. When the times we live in are tumultuous–and I certainly think this era qualifies–people cling to and defend their “eternal verities.”

Of course, that raises an interesting question: what, exactly, qualifies as religion? I think the “eternal verity” descriptor gets at something (excuse the phrase) fundamental: an unshakable belief system based largely on faith in matters that are not susceptible to scientific verification. Political ideologies–including tribal bigotries–fall within that definition.

Unshakable and unprovable beliefs, of course, are the source of a great deal of mischief–and often, tragedy. I’ve posted previously about the tensions within evangelical circles, about some Christians’ insistence that Muslims and Jews cannot be “real Americans,” about the ongoing religious debates over reproductive rights, and (more frequently) about the concerns of America’s founders that led to the religion clauses of the First Amendment.

With respect to those concerns, an observation by Barney Frank during a recent interview comes to mind.(I’ve loved Barney Frank ever since he held a Town Hall during the fight over the Affordable Care Act, and responded to a looney-tune woman comparing Obama to Hitler and the ACA to Nazism by asking her “On what planet do you spend most of your time?”)

In the interview, Frank was asked the following question: “Some on the left have expressed concern that the 6-3 conservative supermajority on the Supreme Court could erode LGBTQ rights in the name of religious liberty. Are you concerned at all about this?”

Frank responded with his trademark rhetorical acuity. “Yes I am. They’re not going to undo marriage. But I do worry about entities that get public tax money to perform services—they should not in my judgment be allowed to exclude people because of some religious disapproval of their sexual practices. It’s the sword versus the shield. The shield, in legal terms, is a doctrine that prevents other people from intruding on you. A sword is used to intrude on others. And while religious liberty should be a shield, there are concerns that people might make it a sword.”

That verbal picture–a sword or a shield–is an excellent way to approach the First Amendment, and not simply the religion clauses.

The Amendment was intended to protect an individual’s right to believe pretty much anything (not necessarily to act on those beliefs, however) and to try to convince others to believe those things too. It was also intended to prevent government from getting involved by putting a thumb on the scale, so to speak, or imposing the beliefs of some Americans on others. It was–in Frank’s felicitous phrase–intended to provide individual citizens with a shield and to prevent majorities from using government as a sword.

The problem is, we have millions of people who have “religion” in the sense I defined it above. We have cults, traditional religious affiliations, conspiracy theories, political ideologies of both the Left and Right…in short, we have veritable armies of people convinced of the superior righteousness of their own belief systems. If you need evidence, examine what has been called “cancel culture,” the effort to ostracize people who hold opposing views–not to enter into debate with them, but to shut them down, eject them from the public conversation. (That effort is most definitely not limited to the Left, despite Rightwing efforts to claim otherwise.)

For numerous reasons, the law cannot classify all these systems as religions for purposes of the First Amendment. That practical reality means that the label “religious” does confer a considerable advantage on beliefs that define themselves in that more limited fashion.

When it comes to traditional religion, Pew recently shared a bit of positive news about the sword and shield finding a significant majority of Americans want government to enforce separation of Church and State. I wonder what a similar study would find about our current commitment to Free Speech–especially in light of recent revelations about Facebook and other social media platforms.

What’s that Chinese curse? “May you live in interesting times…”

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