Category Archives: Constitution

A Perfect Storm

I woke up yesterday to the news that Trump’s Supreme Court–through its “Shadow Docket” and by a five to four margin–had effectively overturned what lawyers call “incorporation”–an odd term for the proposition that the Bill of Rights constrains state and local governments

In a scathing dissent, Justice Sonia Sotomayor wrote: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Actually, it’s worse than that. Much worse.

Not only does the Court’s increasing use of the Shadow Docket raise serious questions about the erosion of the judicial transparency fundamental to the rule of law, the decision to allow Texas’ empowerment of culture war vigilantes achieves a goal long held by “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the pesky interference of the federal government.

As I noted yesterday, approval of Texas’ ploy opens a door to civil strife far removed from the abortion wars. State legislatures can now turn private citizens into “enforcers” of pretty much any goal–and not just conservative ones. The decision effectively approves a federalism on steroids, and the unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protection against unreasonable search and seizure..

This case strikes a terrifying blow against that principle.

I titled this post “a perfect storm” because the Supreme Court’s abandonment of fifty years of precedent is only one of the truly existential challenges we currently face.

It is no longer possible to pretend that climate change is some sort of elitist, liberal theory that can safely be ignored. Fires in California (now threatening Nevada), increasingly powerful hurricanes battering not just Louisiana but causing flooding and chaos all the way to New England, the continuation of “extinctions” threatening to disrupt the global ecology…the list goes on. There are some valiant efforts underway to combat climate change, but the likelihood is that even if those efforts manage to moderate its effects, there will be enormous disruptions of global life–including  famines and massive population movements.

Then, of course, there’s the pandemic. Two pandemics, actually–COVID and insanity. The insanity makes it highly likely that COVID won’t be the last disease to decimate populations around the world.

Speaking of insanity, Leonard Pitts reminds us of the rising tide of rightwing violence.

While it’s unlikely we’ll see regional armies clashing as they once did at Antietam and Shiloh, is it so hard to imagine the country descending into a maelstrom of conservative terrorism, the kind of hit-and-run asymmetric warfare — random bombings and shootings — that rocked Iraq and Afghanistan in the early 2000s? Certainly, the weapons and the sense of grievance are there.

On top of all of this, outdated elements of  America’s legal architecture are impeding our ability to confront these challenges. In a recent, very important paper by Will Wilkinson of the Niskanen Center (I will have much more to say about his paper in future posts), Wilkinson concluded his analysis of what he calls “The Density Divide” with a recitation of the mismatch between America’s population realities and that framework.

As Wilkinson notes, our Constitutional system has a strong small-state bias, “which effectively gives extra votes to topsoil in low-population states.” In a country where 50 percent of voters identify or lean Democratic and 42 percent identify or lean Republican–a Democratic advantage of some 18 million voters– the GOP has erected “an imposing fortification” through gerrymandering, voter ID laws, voter-roll purges…the list goes on.

Wilkinson underscores what many others have said: we desperately need structural reforms and especially strong new legislation protecting voting rights. What he doesn’t say–since his paper was written before the Court’s recent assault on the supremacy of the Constitution–is that such protection must be nationally enforceable.

This “perfect storm” has created a genuinely existential moment. It is no longer possible to ignore the fact that American governance by We the People is teetering on a dangerous edge. The question is: can a nation burdened with a substantial minority of QAnon-believing, MAGA-hat wearing, Ivermectin-ingesting, Confederacy-loving citizens–many if not most of whom are White racially-resentful rural residents empowered by outdated electoral structures– rise to the challenge?

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Be Careful What You Wish For…

Texas, in an excess of zeal to control women’s reproductive choices, has enacted a bill–which, at this writing, has gone into effect–that would essentially undermine America’s understanding of the rule of law.

I’ve posted previously about the analysis of that measure by Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

As they point out, enlisting private citizens to enforce the law is intended to avoid challenges to the bill’s constitutionality. The theory is that, since the state itself will not be directly involved in enforcing the law (unlike under “private attorney general” statutes, only private citizens can bring these suits), state’s officials will not be proper defendants to a lawsuit. What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.

No state action, no constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues. Per Tribe and Vladeck,

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive deed covenants, in which the Court found state action present because private deed restrictions could only be enforced with the participation of judges, clerks and other state officials.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

If successful, this effort would empower the zealots among us, right and left, turning citizens against one another on whatever contentious issues legislators chose. This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence.

However, even a more conventional overruling of Roe invites unintended consequences.

This year, the Supreme Court will review Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. A Court created by Donald Trump is likely to overrule–or eviscerate–Roe v. Wade. If it does so, Republicans may come to rue the day.

Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated. Pro-choice voters, however, will be newly energized–and polling suggests they significantly  outnumber “pro-life” activists.

The de-nationalization of Roe wouldn’t just mobilize pro-choice voters who’ve relied on Roe to protect their rights. It would redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt for reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to help poor women in Red states travel to states 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 “counseling,” and deal with other barriers to the exercise of the currently constitutional right to terminate a pregnancy.

As I have repeatedly noted, the current dominance of the Republican Party doesn’t reflect  American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe gone, purple states–including Texas–will more quickly turn blue.

If Roe goes, the game changes. File under: be careful what you wish for.

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The Right Kind Of Culture War

When we come across references to “culture war,” most of us–whatever our political orientation– immediately think of issues raised by the political right. (I tend to envision the fundamentalist Christian Right.) However we picture the culture warriors, the battles being fought are almost always focused on so-called “family values” (women’s reproductive autonomy, homosexuality, etc.) and a “law and order patriotism” that is performative and superficial–a stubborn “my country right or wrong” approach. Plus, of course, a generous dollop of racism/White Supremacy.

Jennifer Rubin deconstructs those issues in a recent column for the Washington Post.

Republican cultural memes are galling. The GOP has made a national issue out of something that does not exist: teaching critical race theory in public schools. Republicans claim to be on the side of the police and the military, but members of the MAGA cohort have regularly scorned Capitol and D.C. police officers who defended them on Jan. 6, smeared the military as “woke,” and even called the chairman of the Joint Chiefs of Staff, Gen. Mark A. Milley, a “pig” and “stupid.” Republicans claim to be “real” Americans but make traitors (e.g., Confederate generals, Ashli Babbitt) into martyrs.

But Rubin goes beyond a critique of these Rightwing tropes, arguing that a neglect to respond to Republican demagoguery and descent into anti-American authoritarianism equates to a failure to defend the ideal of multiracial democracy. She wants to see the rest of us move to reset and redefine America’s culture war.

Rubin wants Democrats, especially, to “flip the script”– to campaign on “democratic values,” and to point out that Republicans have become a party defending violent thugs and traitors.

Democrats defend the Constitution, which conservative “originalists” used to claim as their own, while Republicans support the man who sought to overturn the election (“just say the election was corrupt + leave the rest to me” he told the Justice Department, seeking pretext for his Jan. 6 gambit).

Her basic charge (which is accurate) is that Republicans who continue to echo Trump’s “big lie” or who voted not to certify election results, or who pretend that January 6th was not an insurrection, are  behaving in ways that are anti-American.

Whose side was my opponent on? Why wouldn’t he/she vote to investigate the worst domestic terrorist attack in decades? Republicans have never been shy about challenging Democrats’ patriotism, and here Democrats actually have grounds to call out Republicans for refusing to both defend the Constitution and respect the votes of their own constituents. Democrats should also challenge their opponents to pledge to accept election results even if they lose and denounce any threat of violence to overturn the will of voters.

In a paragraph that really resonated with me, Rubin also advocated for policies to shore up civic knowledge. She suggests the establishment of a “democracy corps” that would pay young people “to set up civics programs, teach media literacy, serve as poll workers and engage in other pro-democracy activities.” She urges Democrats running for state and local office to endorse mandates for civics instruction in grades K-12.  And she quite properly advises them to call out the racists and crackpots trying to get schoolteachers to stop teaching about the Ku Klux Klan and the Rev. Martin Luther King Jr.

The bottom line–as Rubin obviously recognizes–is the danger in allowing the Right to define the terms of America’s culture wars. There’s an old saying among lawyers to the effect that “he who frames the issue wins the debate.” Those of us who reject the Right’s stance on its issues do so because we understand their positions to be contrary to what this country and its constitution are all about–in a word, we find the misogyny, racism, homophobia and the rest to be profoundly anti-American.

Rubin is absolutely right when she argues that we need to do more than just reject that anti-Americanism. We need to wage our own culture war on behalf of the democratic norms and equal civic status required by the  Americanism we embrace.

Those of us who recognize and accept the American Idea need to enlist–it’s a war worth fighting.

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The Real “Red Scare”

I’m old enough to remember when the “Red Scare” referred to American concerns over the influence of Communism and the power of the USSR.

Today,  I would submit that the term is once again useful, but because it addresses a very different source of threat: red states and the lunatics who’ve been elected by their voters. Here in very red Indiana, for example, we have our Attorney General, Todd Rokita, who recently launched an investigation of Valparaiso University and  the Confucius Institute for…no kidding…promoting Communist propaganda.

Now, I know that there is a spirited debate about Rokita among the people who follow our local politics. His “defenders” attribute his anti-constitutional forays into culture war to his obvious and overweening ambition, rather than mental illness. They see his bizarre positions as strategies intended to play to the increasingly loony GOP base while keeping his name in the news. (He’s already booked himself on Newsmax to discuss his “investigation,” an outlet likely to be more supportive than others  that have covered this clown show, although In his frantic desire for any attention, Rokita, like Trump, apparently doesn’t care if coverage is positive or negative as long as they spell his name right.)

The attorney general’s office declined to tell IndyStar what specific evidence it has supporting the insinuation that Beijing is attempting to brainwash Hoosiers through the Valparaiso University-Confucius Institute relationship, which partially relies on funds from the Chinese government. “We are not able to comment on the specifics of an ongoing investigation,” a spokesperson said.

“The societal and political cost of the Chinese Communist Party infiltrating our universities and K-12 education institutes to indoctrinate our students is incalculable,” the spokesperson said, when asked how much this investigation will cost taxpayers in Indiana. “Comparatively, the cost of our investigation is minimal, but will depend upon the details of the investigation.

Yeah, comparatively…

Some 100 American colleges host Confucius Institutes; IUPUI (where I taught) has had one for several years, although given its lack of prominence on campus, most students have probably never heard of it. It’s one of a wide range of campus organizations intended to introduce students to a diverse set of global cultures. Valparaiso University’s Confucius Institute was founded in 2008 and its website says it “aims at helping Northwest Indiana citizens learn about China and its people and culture and study the Chinese language, and promoting cultural, particularly music, exchange between the US and China.”

But what if Rokita’s paranoia–or pandering– was actually based in fact? What if these Institutes actually were “promoting” a communist philosophy? (Obviously, in Indiana they aren’t doing that very well.) The First Amendment to the U.S. Constitution would protect that activity–something you would like to believe an Attorney General would know. After all, Rokita went to law school and somehow graduated; he also took an oath of office requiring him to pledge allegiance to the U.S. Constitution, which you would like to assume he’d read.

If the government actually had the authority to seek and destroy “propaganda,” sometime in the future a Democrat holding office could launch a similar “investigation” of Fox News or Newsmax…Even a non-lawyer can see the problem.

So why, exactly, is our embarrassing buffoon of an A.G. wasting the resources of his office on an “investigation” of propaganda that he couldn’t shut down even if it existed somewhere other than in his fevered imagination? Here’s a clue: Toward the end of the linked story, it notes that Rokita has also been referring to COVID as the “Chinese virus.”

In order to appeal to the current GOP base, you must whip up fear. Fear of “the other.” Fear of “uppity women” getting control of their own bodies. Fear of scary Black people and that evil Critical Race Theory. Fear of (an undefined) “socialism.” Fear of those Chinese “commies.”

At the end of the day, it really doesn’t matter whether Rokita is as loony as he seems (a la Marjorie Taylor Greene et al), or just pursuing what he considers to be a savvy strategy of appealing to uninformed and loony voters. He’s a prime example of everything that’s wrong with contemporary American politics.

He is “the Red Scare.”

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Majority Rule

Majority rule in our democratic republic is more complicated than we like to think.

For one thing, our particular form of government carves out matters that are specifically insulated from what the Founders called the “passions of the majority”–the individual liberties enumerated and “reserved to the people” by various provisions of the Bill of Rights. For another, in those areas where majority opinion is supposed to count, our mechanism for determining what a majority of citizens really wants  is the vote–and not every citizen entitled to cast a vote does so. (The differences between what popular majorities want and what gets enacted can often be seen by comparing polling and survey research with legislation passed by victorious candidates.)

And don’t get me started on the Electoral College.

Then there’s the distortion regularly provided by media–very much including Twitter and Facebook, etc. We too often assume that the loudest and most persistent voices reflect the opinion of majorities–and that is not a well-founded assumption.

Take, for example, the issue of vaccine mandates.

A recent report by the Brookings Institution’s William Galston suggests that requiring vaccination is a lot more popular than we might imagine if we only listened to the hysterical purveyors of misinformation and conspiracy theories. (Recently, those vaccine deniers were accurately–if intemperately–labeled “assholes” by the Mayor of West Lafayette, Indiana. I don’t know him, but I’m pretty sure I’d really like him.)

Galston did a deep dive into the data. Not surprisingly, he found that unvaccinated Americans were less concerned about COVID than those who’d had the sense to get vaccinated.

In the face of massive evidence to the contrary, more than half of unvaccinated adults regard getting vaccinated as a bigger risk to their health than is getting infected with the coronavirus. Only one in five of the unvaccinated say that the spread of the delta variant has made them more likely to get vaccinated. These data do not support hopes that the recent outbreak will suffice to increase vaccination rates enough to bring the pandemic under control.

The data also reflects surprisingly robust support for vaccine mandates.

Since the beginning in March 2020, government’s response to the pandemic has occasioned intense controversy, much of it along partisan lines. Although the level of conflict remains high, recent events have solidified public support for the most intrusive policy government can undertake—mandatory vaccinations. According to a survey conducted by the Covid States Project, 64% of Americans now support mandatory vaccinations for everyone, and 70% support them as a requirement for boarding airplanes. More than 6 in 10 say that vaccinations should be required for K-12 students returning for in-school instruction as well as for college students attending classes at their institutions. And the most recent Economist/YouGov survey found that more than 60% support mandatory vaccinations for frontline workers—prison guards, police officers, teachers, medical providers, and the military—and for members of Congress as well…

“Solid majorities of every racial and ethnic group support vaccine mandates, as do Americans at all levels of age, income, and education.

The data also supports the growing recognition by sane Americans that the GOP has  devolved into a cult of anti-science, anti-evidence, crazy folks: Only 45% of Republicans support vaccine mandates, compared to 84% of Democrats.

When I sent my children to school, I was required–mandated– to provide evidence that they’d been vaccinated, and thus did not threaten the health and safety of the other children with whom they would be taught. When I was young myself, Americans lined up with gratitude to receive the polio vaccine that would allow them to avoid the alternatives–death, or imprisonment in iron lungs.

When providing for “the General Welfare” requires rules–mandates– a majority of us understand that such mandates not only do not infringe our liberties, but actually give us more liberty–allowing us to go about our daily lives without the danger of infection (or the need to wear a mask).

Vaccine mandates are supported by medical science, by law, by morality, and by a majority of Americans. We periodically need to remind ourselves that “loudest” doesn’t equate to “most”–and that a fair number of the hysterical people shouting about “personal freedom” can’t define it and don’t want their neighbors to have it.

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