Category Archives: Constitution

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.

Comments

Oh Texas…

In the years before 2016, when I needed an  example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

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.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

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.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are 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.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that 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.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.

Comments

The Fourteenth Amendment

Can you all stand another diatribe about our misunderstood Constitution and its history?

Yale Constitutional scholar Akhil Reed Amar has repeatedly made an important–and largely unrecognized–point about the 14th Amendment. That Amendment, which we now consider part of the Bill of Rights, actually revised–or as he says,”reconstructed”–the original Constitution and Bill of Rights.

When I was teaching, I became acutely aware of how few students understood the impact of the 13th, 14th and 15th Amendments. Few came to class knowing, for example, that prior to the passage of the 14th Amendment (and the subsequent Supreme Court cases applying its terms) the provisions of the Bill of Rights had restrained only the federal government. (State governments could–and did–“establish” religions, for example. Massachusetts didn’t “de-establish” religion until 1833.)

Jonathan Bingham, a Republican (how times have changed!)and “one of America’s forgotten second Founders” who sponsored the 14th Amendment, constantly pointed to the Supreme Court ruling that first eight amendments did not “extend to the states.” In his book The Bill of Rights, Amar quotes Bingham saying “These eight articles I have shown never were limitations upon the power of the states until made so by the 14th Amendment.”

Heather Cox Richardson recently provided historical context for the passage of the 14th Amendment.

In 1865, the Thirteenth Amendment to the Constitution had prohibited slavery on the basis of race, but it did not prevent the establishment of a system in which Black Americans continued to be unequal. Backed by President Andrew Johnson, who had taken over the presidency after an actor had murdered President Abraham Lincoln, white southern Democrats had done their best to push their Black neighbors back into subservience. So long as southern states had abolished enslavement, repudiated Confederate debts, and nullified the ordinances of secession, Johnson was happy to readmit them to full standing in the Union, still led by the very men who had organized the Confederacy and made war on the United States.

Northern Republican lawmakers refused. There was no way they were going to rebuild southern society on the same blueprint as existed before the Civil War, especially since the upcoming 1870 census would count Black Americans as whole persons for the first time in the nation’s history, giving southern states more power in Congress and the Electoral College after the war than they had had before it. Having just fought a war to destroy the South’s ideology, they were not going to let it regrow in peacetime.

Richardson reminds us that, despite passage of the 13th Amendment, emancipated Black Americans in southern states could not vote, testify in court or sit on a jury.

In part, the Fourteenth Amendment was a response to the Dred Scott decision, which had declared that Black men “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.” The Fourteenth Amendment rejected that ruling, with specific language stating that  “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

But the Amendment did more than clarify that Black people were citizens.

The amendment also addressed the Dred Scott decision in another profound way. In 1857, southerners and Democrats who were adamantly opposed to federal power controlled the Supreme Court. They backed states’ rights. So the Dred Scott decision did more than read Black Americans out of our history; it dramatically circumscribed Congress’s power.

This was the crux of the “states rights” argument. Under the pre-14th Amendment Constitution, “democracy” was defined by the state–or, as Richardson notes, by those people in a state who were allowed to vote. In other words, white men.

The Fourteenth Amendment gave the federal government the power to protect individuals from state legislative discrimination. It changed the locus of governmental authority in a number of ways, and as we are seeing–as red states send National Guard troops to the border, try to limit federal vaccine efforts, sue repeatedly to overturn the Affordable Care Act, and engage in numerous efforts to circumscribe the ability of the federal government to guarantee equal rights–  that change is still being resisted.

For far too many politicians and jurists, respect for “originalism” is very selective. It stops with ratification of the “original” Constitution in 1788–and ignores everything that has come after, no matter how profoundly what came after altered, limited and/or enlarged what had come before.

Comments

Politics And The Courts

I hate sports analogies, but sometimes, they just fit.

For those of you who are sports fans (I am not one of you), here’s a question: how much would you enjoy watching a game if you knew that the umpire or referee had been bribed, or even just recruited from a group of rabid fans of one of the teams on the field?

The decisions America’s founders incorporated in our constitution haven’t all stood the test of time–exhibit one, the Electoral College–but one that has was their determination that  the judiciary should be protected from political pressure to the extent possible.

There are sound reasons that federal judges are not elected–not “answerable” to the public in the same way that members of the legislative and executive branches are.

When we discussed judicial independence in my classes, I didn’t use the sports analogy; instead, I would pose a different hypothetical: let’s say you live in a small town where you are a party to a lawsuit. Trial is in the local court, where the judge has been elected. What if the lawyer representing the other guy was one of the biggest donors to that judge’s campaign, and is a regular at the judge’s Wednesday night poker get-together? If the judge ruled against you, how likely would you be to believe you’d been judged fairly and impartially?

Or let’s assume a judge is presiding over a high-profile case in which a majority of local folks are emotionally invested. Assume too that controlling law is on the side of the publicly disfavored position–and further assume that the judge is facing re-election. She’s a widow with a mortgage and a couple of kids in college, and she knows that following the law means losing the election.

You get the picture. Even if every judge in these hypotheticals is a paragon of virtue who ignores personal considerations and “calls them like s/he sees them,” public trust in the process would be hard to maintain.

Separation of powers was the division of our government into three branches. Two of those branches were intended to be answerable to public opinion, even public passion. The third was tasked with being an impartial arbiter, insulated from electoral pressure. When judges are wrong–and there are plenty of times they will be–we want them to be wrong because they misread the law, not because they were in thrall to donors or interest groups.

That’s why the constitution requires an appointed judiciary in the federal courts, a decision that has slowed–but certainly not stopped–efforts to politicize America’s court system.

It is admittedly impossible to keep politics completely out of the judicial selection process–especially selections for the Supreme Court. But the problem is far worse in the large number of states that continue to elect their judges. A recent report from Governing Magazine shows just how far state-level politicians (mostly, but not exclusively, Republicans) will go to game the court system.

Last Monday, Republicans in the Louisiana House tried to pass a proposed constitutional amendment to redraw election districts for the state Supreme Court, while adding two seats to it. The effort came up short, but it was just the latest move by a state legislature to try to change how high court justices are elected. Just three days earlier, Illinois Gov. J.B. Pritzker, a Democrat, signed a bill that redraws election districts for his state’s Supreme Court, a move observers believe is aimed at maintaining his party’s 4-3 majority in next year’s elections. And Republicans in Montana and Pennsylvania passed bills in the past year to create districts for their high courts, both of which currently have progressive majorities and whose members are now elected statewide.

The article focused on what it termed “judicial gerrymandering,” and like all gerrymandering, the goal is unearned power. In states across the country, politicians are redrawing their state’s high court election districts in ways that favor their party’s candidates.

Admittedly, there is no way to entirely insulate courts from political pressures. Here in Indiana, where a judicial nominating committee considers candidates for the State Supreme Court and sends three names to the Governor, it’s a given that the ultimate choice will be someone from the Governor’s political party. For that matter, the committee members will be impressed (or repelled) by the identities and politics of the people “lobbying” for particular candidates.

Nevertheless, Indiana’s process significantly attenuates the role played by partisanship. It recognizes that when the umpire is effectively a member of one of the teams on the field, the teams and their fans are all losers.

Comments

The GOP Ditches Property Rights

For those of us who used to belong to a very, VERY different Republican Party, the most bewildering–and infuriating–feature of the cult that has replaced it is its blatant hypocrisy. A political party that used to favor free trade, fiscal prudence, individual liberty and property rights has cheerfully abandoned its devotion to those–or for that matter, any– principled approaches to civil liberties.

Granted, rational folks in both parties understood that your liberties aren’t absolute, and that concern for the public good–public health, national security and other social requirements– will necessarily constrain your ability to do whatever you want whenever you want. But once upon a time, the arguments between serious folks tended to be about specifics: when is it legitimate for government to limit certain liberties?

Thanks to the devolution of the Republican Party, virtually all of its once-sacrosanct principles have become disposable.

Free trade? When Donald Trump decided to impose tariffs–long considered unthinkable by the Grand Old Party–the cult jettisoned its prior beliefs and embraced them.

Fiscal prudence? These days, fiscal responsibility–not necessarily balancing the budget (the preference of a fringe unwilling to understand why such a constraint could be dangerous) but a commitment to imposing taxes to pay for government programs is long gone. The party that recoiled from Democrats’ perceived willingness to “tax and spend” became the party opposed to any and all taxes, especially on those most able to pay them. If the government really has to “do stuff,” today’s GOP favors”borrow and spend”–put it on the national credit card and let the next generation pay for it.

Individual liberty? That principle has been rewritten too. Now, it’s highly selective. Republicans are all for your “liberty” to act in ways with which they agree. They believe you should have the “liberty” to ignore public health mandates and decide for yourself whether to wear a mask (i.e., the “liberty” to infect your neighbor), but they remain adamantly opposed to a woman’s liberty to control her own body. They support your liberty to communicate racist sentiments, but not your liberty to voice your disapproval of those sentiments–that’s “cancel culture.”

And of course, they support the liberty of anyone and everyone to “pack heat,” but oppose even the most reasonable constraints to protect public safety.

And what about property rights? The GOP long defended property rights, arguing (I believe properly) that the government that can confiscate your property poses a danger to other civil liberties. After all, if the government can infringe your property rights in retaliation for the exercise of  your right to freedom of speech or religion, how likely are you to exercise those rights?

Apparently, property rights are also old school. As an article from The Week put it, the GOP no longer believes a man’s cruise ship is his castle.

“Texas is open 100 percent,” Gov. Greg Abbott (R) said in a Twitter video Monday, “and we want to make sure you have the freedom to go where you want without limits.” To that end, Abbott said, he signed a law banning any business or government entity in the state from requiring documentation of a COVID-19 vaccination or recovery for entry (commonly called vaccine passports).

Abbott cast the legislation as a bold strike for freedom, but it’s nothing of the sort — not in the sense the American right has traditionally understood the term, anyway. Though it may be said to enhance consumer choice, it is a betrayal of private property rights, which have long been core to visions of small government in the United States.

The article quotes James Madison’s 1829 address, in which the father of our Constitution explained “that the rights of persons, and the rights of property are the objects for the protection of which Government was instituted. These rights cannot well be separated.”

Abbott begs to differ. Evidently, Texan business owners have no right to determine what happens on their property. Abbott isn’t the only Republican governor to  ignore property rights. Florida’s Ron DeSantis has banned vaccine passports, including those required by cruise ships departing from Florida.

Ironically, as the article notes, reliance on property rights allowed  the right to win many battles purportedly over religious liberty.

On questions like whether Catholic employers should be made to pay for employees’ birth control, whether conservative bakers should be forced to bake for a gay wedding, or whether Christian adoption agencies should be required to place children with same-sex couples, the right’s religious liberty position has long been buttressed by property rights: If you own the business, the argument goes, you should be able to make these calls as your conscience directs.

These days, however, only when your conscience points you in a GOP-approved direction.

Comments