Category Archives: Constitution

Ron “Contempt For The Constitution” DeSantis

Yesterday’s blog post noted that Florida man Ron DeSantis is a favorite of the New Right. A recent judicial opinion, striking down one of his many outrageous attacks on the Constitutional rights of Florida citizens explains why.

A federal judge on Thursday halted a key piece of the “Stop-WOKE” Act touted by Republican Gov. Ron DeSantis, blocking state officials from enforcing what he called a “positively dystopian” policy restricting how lessons on race and gender can be taught in colleges and universities.

The 138-page order from Chief U.S. District Judge Mark Walker is being heralded as a major win for campus free speech by the groups who challenged the state.

Among other “dystopian” provisions of DeSantis’ anti-woke law were rules about what university professors could–and could not–say in the classroom. As the Judge noted in his opinion, the law gave the state “unfettered authority to muzzle its professors in the name of ‘freedom.'”

Florida legislators passed DeSantis’ “Individual Freedom Act” earlier this year (a label reminiscent of George W. Bush’s anti-environmental “Blue Skies” Act..). The law prohibits schools and private companies from

leveling guilt or blame to students and employees based on race or sex, takes aim at lessons over issues like “white privilege” by creating new protections for students and workers, including that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.

The judge ruled that such policies violate both First Amendment free speech protections and 14th Amendment due-process rights on college campuses.

The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints,” wrote Walker. “Defendants argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian.”

This particular lawsuit challenged the application of the anti-Woke law to colleges and universities; other pending challenges assert that the law is illegal and unconstitutional when applied to  K-12 schools and to the workplace.

In a column discussing the law and the ruling, Jennifer Rubin noted,

The law, for example, bars discussion of the concept that a person “by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.” During oral arguments, when asked if this would bar professors from supporting affirmative action in classroom settings, attorneys for the state government answered, “Your Honor, yes.”

Walker cited that admission, finding:

Thus, Defendants assert the idea of affirmative action is so “repugnant” that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction. … What does this mean in practical terms? Assuming the University of Florida Levin College of Law decided to invite Supreme Court Justice Sonia Sotomayor to speak to a class of law students, she would be unable to offer this poignant reflection about her own lived experience, because it endorses affirmative action.

The law so blatantly violates the concept of free speech that one wonders if remedial constitutional education should be a requirement for Florida officeholders.

No wonder the so-called intellectuals of the New Right see DeSantis as one of their own. He has consistently used his position and the power of the state to suppress the expression of views he dislikes. Rubin reminds readers of DeSantis’ “don’t say gay” law, his statute banning “critical race theory” in schools and his attempt to fire an elected county prosecutor who criticized his abortion policies. To which I would add his attacks on voting rights and his (successful) gerrymandering efforts.

DeSantis has also regularly flexed his power as governor: excluding media from events, taking public proceedings behind closed doors (including the selection of the University of Florida’s president) and exacting revenge on supposedly woke corporations such as Disney.

DeSantis’s contempt for dissent and his crackdown on critics should not be discounted. This is the profile of a constitutional ignoramus, a bully and a strongman. Voters should be forewarned.

DeSantis, Trump and the New Right sure don’t look anything like the libertarian, limited-government GOP I once knew…The only part of Rubin’s critique with which I disagree is her labeling of DeSantis as a “constitutional ignoramus.” It’s much worse than that.

Unlike Trump, who is an ignoramus, DeSantis knows better. He just doesn’t care.

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Everyone Else Has To Vote

Jennifer Rubin is one of the clearest-eyed columnists around, and as the MAGA movement has demonstrated both its staying power and its ability to mesmerize  and propagandize angry voters, her clarity is welcome.

In a recent column for the Washington Post, Rubin “told it like it is.”

Right-wing pundits and Republican apologists are quick to blame “elites” or “the left” for a failure to respect and recognize the legitimacy of a MAGA movement based in election denial, White Christian nationalism and hostility toward robust democratic elections. It’s a demand for acceptance that is eerily reminiscent of other periods in U.S. history (e.g., the 1850s, the 1920s, the 1950s), which can illuminate the depth of our national problem.

Rubin referenced the eerily similar situation from just before the Civil War. Quoting from Jon Meacham’s recent book on Lincoln, she reminded readers that the South “could hear nothing more — could absorb nothing more — once it was told that the rest of the nation had found its way of life morally wanting. It felt judged, and it hated it.”

Substitute “election denier” for “the South,” and you have a fair approximation of the current state of American politics. Now, one side believes its viewpoint is essential to maintaining its power and its conception of America. It insists its followers can be “seen” only if the rest of us agree with their delusions and conspiracies.

That, of course, is not the way democratic systems work. Of course, the MAGA folks, as we have seen, are more than willing to jettison democracy if that’s what it will take to protect their status as the only “real” Americans–a status that they perceive (correctly) is endangered.

If there is no possibility of principled compromise–after all, how do those of us who occupy a fact-based reality “compromise” with delusion?–what can the rest of America do? Rubin doesn’t pull punches:

Aggravated by declining economic prospects, overwhelmed by the opioid epidemic and utterly divorced from mainstream news sources, they unsurprisingly glob onto conspiracies, hold up former president Donald Trump as their champion and refuse to process any information that conflicts with the victimhood they embrace.

While there are certainly persuadable voters who drift between the parties, one cannot attribute Democrats’ losses in certain areas of the country to “poor messaging” or even a specific policy failure. None of that would make any difference. It’s fantasy to think there is a segment of White male working-class voters eager to vote Democratic if only Democrats had not passed the American Rescue Plan or avoided dealing with bias in policing.

Rubin quite properly scorns the notion that policy differences explain the MAGA movement. The die-hards of MAGA are neither motivated nor mollified by policy. That said, she  also recognizes that the appeal of conspiracies and various bigotries grows in situations of precarity and financial insecurity, which means that efforts to address those problems makes sense. As she notes,it pays political and economic dividends to “draw down the venom” in communities where people feel left behind.

She also recognizes that Democrats running in states with very different political cultures will necessarily run different sorts of campaigns.

The paragraph I found most insightful, however, was this one:

Everyone else has to vote. There is no substitute for high engagement, high turnout and an educated electorate. If 90 percent of the money spent on ads that viewers literally tune out were devoted to organizing on college campuses and other low-turnout environs, the results would be quite different for the pro-democracy, pro-pluralism forces.

Everyone else has to vote.

Before every election, we hear that “this election is the most important in our lifetimes.” This year, that warning rings true.

We can argue about causes of inflation, how to  understand and address crime, how best to combat climate change….and a million and one other truly important issues. But a few short days from now, the ballots we cast will decide questions that are massively more important and fundamental. Next week, Americans will vote to confirm or deny our most basic aspirations–adherence to democratic norms and the rule of law, and affirmation of the legal equality/autonomy of all citizens, irrespective of gender or sexual orientation.

Next week, our choice isn’t between Candidate A and Candidate B. Our choice is between the American Idea and White Christian Nationalism. We can hammer out our policy differences after we save democracy.

Rubin is right: Everyone who isn’t the product of MAGA madness–every American who occupies the messy, imperfect and maddening reality-based community–has to vote.

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Women And The Law

The final part of my “War on Women” argument is mercifully short.

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A Constitutional U-Turn

In addition to the First Amendment’s prohibition against legislating religious doctrine, for the past fifty years Americans have relied upon a constitutional doctrine known as substantive due process, often called the “right to privacy.” That doctrine has strengthened the conviction of most Americans that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

The right to privacy was explicitly recognized in a 1965 case titled Griswold v. Connecticut. The Court was considering the constitutionality of a Connecticut law prohibiting the use of birth control by married couples. (The law also prohibited doctors from prescribing or pharmacists from selling contraceptives.) William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

The majority recognized that a right to personal autonomy was necessary to the enforcement of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment—hence the doctrinal title “substantive due process.” Wherever it resided–in a “penumbra” or the 14th Amendment–a majority of the Justices agreed on its presence and importance.

Procedural due process protects Americans’ right to a fair process—a fair trial or other governmental proceeding. Substantive due process distinguishes between decisions that government has the legitimate authority to make, and decisions which must be left to each individual. In the fifty years since Griswold, the recognition that the U.S. Constitution protects personal autonomy and respects the right of each individual to self-determination has powerfully influenced American culture. Much of the anger over the Supreme Court’s decision in Dobbs can be traced to shock over Justice Alito’s assault on what most Americans had come to consider a bedrock principle:

Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health are an example.) Otherwise, government must leave us alone. Secular and religiously tolerant Americans who had dismissed warnings about growing fundamentalist assaults on that principle, confident that their right to self-determination was secure, reacted to the conservative Christian overtones in Dobbs, justifying an invasion of that right, with predictable shock.

As the foregoing discussion has made clear, different religions—and different denominations within those religions– have very different beliefs about women and procreation, and what amounts to the Court’s elevation of a particular version of Christianity has engendered an enormous and negative reaction. Survey research has confirmed that a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. Large numbers of Americans see the overturning of Roe and cases like Hobby Lobby[ as part of an escalating war on women.

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On November 8th, the American people need to send an unmistakable message to the arrogant theocrats and paternalists on the Court. A massive vote for Democrats–BLUE NO MATTER WHO–will send that message, in three parts: it will be a repudiation of the Court’s current trajectory; a signal that the Court’s legitimacy has dangerously eroded; and it will convey a willingness to make significant changes to the Court’s composition and jurisdiction.

A failure to send that message will be seen as acquiescence to the Court’s retrograde direction, with very negative consequences for all Americans, not just women.

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Speaking Of Power…

The New Republic has a new podcast, titled “How to Save a Country” devoted to ideas about a “new political vision and a new economic vision for the United States.”

A recent introduction began “It’s that time of year, a chill is in the air. Halloween candies hit all the grocery store aisles, and perhaps scariest of all …the Supreme Court is back in session.”

As Michael Tomasky noted,

We could see the last vestiges of affirmative action overturned. We could see a decision that gives state legislatures the power to essentially overturn federal election results. And we might see a more definitive conclusion of the right of business owners to refuse to serve gay customers. You know, the wedding cake question.

The interviewee on this particular episode was Amy Kapczynski, who co-directs both Yale’s Global Health Justice Partnership and its Law and Political Economy Project. She also clerked for both Sandra Day O’Connor and Stephen Breyer–experience that prompted one of the first questions: what was it like to work at the Supreme Court?

Gosh, there’s lots to say about what it’s like at the Supreme Court. It’s the kind of building that when school kids come into it, they often ask whether it’s a church. It’s a very intimidating place. It’s a very intense place to work. It’s a very small and intimate place. I can think of no government agency that has anything like the amount of power that it has with so few people working for it, and it’s a place about which I would say there’s a lot of secrecy. So some of that has been drawn back a little bit recently as we started to see both the leaks of the Supreme Court and also, I think, with more public attention, people realizing how much power the court has and how a concerted majority that’s really not afraid of public reaction can use that power.

I think one of the things that I was fascinated by as a young person going to law school and then working at the Supreme Court, is how people in power think about the power that they hold. And clearly, I think one thing that we’re seeing about the Supreme Court now is that you have a slim majority that’s very, very conservative and that’s very eager to use the power that they have to advance a vision of America that doesn’t look a whole lot like America today. It’s part of the reason they talk so much about 1789.

Kapczynski says we should be prepared for a lot of bad 6–3 decisions (several of which the podcast participants discussed) and that progressives need to think carefully about what we can do and how we can react. She points out that the Supreme Court is not the only body that can interpret the Constitution, and that the view that all Constitutional interpretation must occur there is a relatively modern phenomenon.

There’s a long history that we can look back to where there have been fights about the court, where the court has overreached, and where there have been ways that the public and our political branches have responded that have curbed the court’s power.

And sometimes it happens because the amount of public outcry actually causes those individual people sitting there and reading their newspapers to think, “Well, gosh, maybe we are overstepping, and maybe we’re really going to face the loss of our legitimacy or changing of our composition if we don’t pull back.”

Given the breathtaking arrogance and intellectual dishonesty of Justice Alito and the equally arrogant indifference to ethics displayed by Thomas, I’m dubious that the worst actors on today’s Court will recognize  and dial back their outsized contributions to the Court’s diminished legitimacy…although one can hope.

Kapczynski shares more concrete suggestions for curtailing our rogue Court, and those suggestions bring us back to the issue of power–how it is exercised, and by whom. It also brings us back to the importance of civic education/literacy.

So there are lots of options. All of them require lots of power, right? You need really strong majorities and committed majorities in Washington, so not just the presidency but a stronger majority than we have in Congress and the Senate and so forth to really take those kinds of things forward. And you do need a party and a base that’s more educated about why this is important, that understands the structural power at stake and cares about that.

If those considerable hurdles can be surmounted, Congress can look into the pros and cons of adding justices, imposing term limits and/or restricting areas of jurisdiction.

If Republicans control Congress after the Midterms, of course, none of that will happen.

VOTE BLUE NO MATTER WHO.

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Power To The (Voting) People

Here in Marion County, Indiana, incumbent Prosecutor Ryan Mears has generated Republican criticism for making it clear he will deploy the resources of his office to target serious crime–and that his definition of serious crime doesn’t include smoking a joint or having an abortion. He sees his job as an important part of public safety efforts to protect citizens against crimes like rape, robbery and murder.

Mears is hardly the only prosecutor taking that position. Prosecutors have limited resources, and determining the most effective use of those resources in combatting crime is actually a critical part of the job description.

Right now, a battle taking place in Florida between Governor Ron DeSantis and Prosecutor Andrew Warren is illuminating what happens when an ambitious and autocratic governor pretends not to understand that responsibility.

When Florida’s Republican governor fired the Tampa area’s top prosecutor for defying the state’s transgender and abortion crackdown, Ron DeSantis made it clear that he believes his power as governor supersedes the power of voters.

But now that prosecutor, Andrew Warren, is suing to get his job back, and the twice-elected state attorney tells The Daily Beast this is more than a fight over his employment; it’s about whether a strongman governor can single-handedly toss a democratically elected local official out of office.

Politicians like DeSantis and (clumsier and closer to home, Todd Rokita) have tied themselves to the MAGA/ White Christian Nationalist crusade–since his election, DeSantis has moved to  “ban certain books in schools, halt transgender health care for young people, isolate and bully gay kids, and target transgender athletes in schools.”

Warren makes an important point: if DeSantis can overturn the will of the voters who chose him as prosecutor, what would prevent him from targeting elected school board members who choose to ignore his book bans and crackdowns on gay and transgender kids?

“There’s so much more at stake than my job. This is a fight to stop the erosion of our democracy. It’s to ensure our democracy has meaning, so we have elected officials and not a king, so no governor can steal the people’s vote and silence their voice. Regardless of what party you belong to, your vote matters,” Warren said.

This particular battle started shortly after the Supreme Court stripped women of abortion rights in June, when Warren and other elected prosecutors across the country sought to temper widespread fears about misogynistic crackdowns. Warren signed a joint statement vowing to not “criminalize reproductive health decisions.” DeSantis, seething over what he called a “woke” resistance, announced with much fanfare on Aug. 4 that he was suspending the Hillsborough County state attorney. The executive order accused Warren of “eroding the rule of law” and “encouraging lawlessness.” Warren sued two weeks later in federal court.

So far, the judge in the case has consistently ruled against DeSantis on preliminary matters. He issued an order rejecting the governor’s legal theory, which requires a finding that that public employees’ on-the-job statements aren’t protected by the First Amendment, and also requires a determination that an elected prosecutor is an “employee” of the governor who can be subjected to discipline by that governor/employer.

The judge has made a correct and important distinction between elected officials, and appointed agency employees. DeSantis has the legal authority to target the latter category, no matter how vindictively—as he did to the Health Department researcher who was pressured to resign when she wouldn’t fake COVID-19 data to make Florida look good.

He has no such power over officials who were voted into office.

The lawsuit in Florida and the criticisms being leveled against the numerous prosecutors who have taken positions similar to those taken by Warren and Mears should operate to focus more attention on down-ballot elections. We The People get to choose our local officials, and those officials aren’t beholden to state-wide officeholders–they are accountable to the law and to us.  It behooves us to investigate their positions, priorities and prior performance, and vote accordingly.

Here in Marion County, Indiana, we are fortunate enough to have an incumbent prosecutor who is forthright about where he stands, and candid about the ways in which he intends to deploy the limited resources of his office. For my part, I agree entirely with his priorities and approve of the way in which he has run the office. People who disagree should vote for his opponent. No matter who wins, however, that individual will be accountable to us, the voters–not to the governor and not to Indiana’s current (embarrassing) Attorney General.

They, too, are accountable to We The People.

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