Category Archives: Constitution

Democracy? Or Liberal Democracy?

Back in the Ice Age, when I was a high-school English teacher, I spent some time in my classes discussing the sometimes subtle differences between the definitions and connotations of words.

America’s political discussions would benefit from a similar focus.

What brought this to mind was a “guest essay” in the New York Times, discussing the importance of distinguishing between actual democracies and states that have edged–albeit through popular vote–into autocracy. Here is the crux of the essay:

In a report published in March, the Swedish research organization V Dem posits that “the level of democracy enjoyed by the average global citizen in 2020 is down to the levels last found around 1990.” In V Dem’s judgment, the elected autocracy — a political regime in which democracy is reduced to the unconstrained power of a majority — is today’s most common regime type. India, Turkey and Hungary are exemplars. These new authoritarians are very different from their Cold War-era relatives, which were often military regimes. They cross the borders between democracy and authoritarianism almost as frequently as smugglers cross state borders.

Many of today’s new non-democracies are in fact former democracies. And in many of these countries, citizens voted for authoritarian populists specifically in the hope of making democracy work for them. The government’s supporters in electoral autocracies like India and Hungary or electoral democracies like Poland, countries that organizations like V Dem and its American counterpart Freedom House countenance as democratic backsliders, will insist that they live in democracies. As of January, the percentage of Indians who trusted Prime Minister Narendra Modi was far higher than the number of Americans or Europeans who trusted their leaders. (To be fair, Mr. Modi’s popularity has taken a serious hit over the past month as Covid-19 has raged across India in large part because of what many describe as the starkest failure of governance since the country’s independence.)

There are a number of implications–and warnings– that might be drawn from this analysis, but what it triggered in my mind was definitional. When we use the term “democracy,” most of us think simply of majority rule. And as the described slide into autocracy illustrates, majorities can endorse very repressive measures and elect very unqualified and/or evil people.

A while back, I read a book by Fareed Zakaria (the title now escapes me) in which he drew a very important–even profound–distinction between “democracy” and “liberal democracy.” A system of flat-out majority rule can be every bit as tyrannical as a system empowering an emperor; what America has (if we can keep it) is majority rule constrained by the Bill of Rights, a liberal democracy which limits the sorts of government actions that a majority of our citizens can endorse.

These constraints–and the reasons for them–are widely misunderstood, but they protect our individual liberties.

The Bill of Rights puts certain matters beyond the regulatory power of the state. Your neighbors cannot vote to make you a Baptist or Unitarian, they cannot send government censors to your local library, and they cannot deny equal civil rights to populations they might wish to marginalize or oppress. In effect, the Bill of Rights is meant to limit the nature of decisions that government can make, even when a majority of citizens would like for government to impose those decisions on everyone.

The dictionary definition of “democracy” is “a system of government by the whole population or all the eligible members of a state, typically through elected representatives.” When most Americans hear “democracy,” however, the connotation is really “liberal democracy”–majority rule with constraints that safeguard individual freedom.

Unfortunately, that assumption elides a very important distinction between “pure” democracy and limited/liberal democracy, and that distinction matters. A lot.

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The Shadow Docket

When Senator Tim Scott gave the GOP’s rebuttal to President Biden’s address to Congress, one of his complaints was that the President hadn’t re-opened the nation’s schools. He evidently assumed that America’s widespread lack of civic knowledge would obscure the inconvenient fact that Presidents have no authority over public schools.

It’s called federalism, Senator. Look it up.

Speaking of civic knowledge, I have frequently cited a poll from a couple of years ago that found–among other, multiple deficits of civic knowledge–that only 26% of Americans could name the three branches of government. Although the survey didn’t ask the question, I’m reasonably certain that even fewer understand why the Founders opted for separation of powers–or why they wanted to insulate the judicial branch from the wrath of the electorate.

Both the legislative and executive branches are elected, and thus accountable to voters. (We’ll leave for another day’s discussion the gerrymandering and voter suppression tactics that have substantially eroded that accountability. We’re talking theory now.) The federal judiciary wasn’t just unelected, it was appointed subject to Senate confirmation–and once appointed, judges serve for a lifetime. The theory–the hope–was that judges would rule on the basis of their understanding of the Constitution, and would not need to worry about losing their job if that understanding was contrary to the desires of the public.

Right or wrong–and sometimes they would be wrong– those rulings would be based upon the judge’s honest and informed evaluation of the merits of the argument.

Thanks to politicians like Mitch McConnell, that ideal of dispassionate and informed rulings meted out by  judges insulated from partisan pressure has been breached, perhaps irreparably. The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system. (I’m not a fan of sports analogies, but I’ll suggest one: if an umpire is believed to be “in the pocket” of Team A, fans of Team B aren’t going to respect his calls.)

The ultimate “fix” for the current situation is unclear, but while lawyers, legal scholars and political figures squabble, we have increasing evidence that the current Supreme Court is ignoring precedent in favor of partisan ideology. A recent New York Times op-ed by a law professor from the University of Texas shone a light on the Court’s use of its little-understood “Shadow Docket.”

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

Reasonable minds will disagree on this new standard for free exercise claims. But a far more glaring problem with the court’s decision is that it wasn’t an appropriate moment to reach it.

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

The term “shadow docket” was coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed. Indeed, Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo. And the more substantive work that the justices carry out through such (usually) unsigned and unexplained orders, the more the “shadow docket” raises concerns about the transparency of the court’s decision making, if not the underlying legitimacy of its decisions.

In fact, the author tells us that this ruling was the seventh time since October that the justices have issued an emergency injunction — and that all of them have blocked Covid restrictions in blue states on religious exercise grounds.

If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.

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Testing The Current Court

The worst “hangover” from four years of Trump is undoubtedly the composition of the country’s federal courts–including but not limited to the Supreme Court. Granted, Trump–who wouldn’t know a legal principle if he fell over one–wouldn’t have known how to stuff the courts with rightwing ideologues; Mitch McConnell is the villain. But Trump enabled him.

In a recent column for the New York Times, Linda Greenhouse explained the troubling implications–and predictive value– of an upcoming Supreme Court case.

The case that the Supreme Court heard this week about a California law granting union organizers access to private farms has been described as a labor case, which it marginally is. It has also been described as a case about property rights, which it definitely is. But what makes Cedar Point Nursery v. Hassid one of the most important cases of the current term is the question it presents for the newly configured court: whether, after years of disappointment, the political right may finally be able to take the Supreme Court for granted.

The case is being brought by the Pacific Legal Foundation, and as Greenhouse reports, Pacific group is using Cedar Point–a company that grows strawberries– and another employer that packs and ships citrus fruit and grapes, as “stalking horses for its long-running project to elevate property rights.”

The case involved union access to agricultural workers. The California law being challenged had been passed during Cesar Chavez’s drive to organize the state’s farmworkers. It limited the ability of the union to approach workers in the field to periods before and after the working day and to three hours on 120 days of a year.

Greenhouse focused in on an illuminating–and to lawyers, startling–exchange between the lawyer and Justice Kavanaugh. Kavanaugh referred to a 1956 case that balanced employers’ property rights agains union organizing rights, and noted that–under that test–Pacific would “prevail”–it would win its case. The lawyer for Pacific “rejected out of hand” that potential path to victory.

Pacific isn’t interested in just winning its case. It wants to change the law.

The Pacific Legal Foundation doesn’t want a balancing test. It wants a categorical rule — referred to throughout the argument as a “per se rule” — that any entry by a union onto private land, if authorized by the state, is a “taking” of private property in violation of the Fifth Amendment’s Takings Clause (“nor shall private property by taken for public use, without just compensation”). Any entry at all.

So let me ask you this,” Justice Amy Coney Barrett said to Mr. Thompson. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied.

Barrett clerked for former Justice Scalia, who championed an expansion of the categories of government action that count as a “taking.”  The Fifth Amendment requires government to compensate property owners for takings, and there has long been an effort to turn regulations–especially environmental regulations–into compensable takings subject to that Amendment.

If you have a wetland on your property and regulations impede your ability to develop it, for example, the government would have to “compensate” you.

Until a 1992 case, Lucas v. South Carolina,  courts had defined takings as the physical occupation of private property, usually via eminent domain.

Government actions that didn’t “take” private property in the literal sense, but simply limited its use in certain ways, were regarded as “regulatory takings,” with the private and governmental interests being weighed against one another to determine whether compensation was required…

When a regulation “declares ‘off-limits’ all economically productive or beneficial uses of land,” Justice Scalia wrote for the court, “compensation must be paid to sustain it.”

Ever since, the Pacific Legal Foundation has argued for the adoption of what Scalia called a “categorical” taking.

That was the war that resumed at the Supreme Court this week, and that history explains why, from the Pacific Legal Foundation’s point of view, anything short of total victory is beside the point.

Greenhouse notes that whether the court buys Pacific’s theory will tell us a great deal about the success of McConnell’s effort to refashion the courts.

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The Winners Write The History

I get Heather Cox Richardson’s daily letter. Richardson is a history professor, and one of the voices trying to restore accuracy to the largely incomplete lessons we’ve been taught about how and why we find ourselves where we are.

A couple of days ago, her letter made me think of the old adage about history being written by the victors–something that is evidently as true of policy arguments as it is of warfare.

Richardson was reacting to the mass shootings in Boulder and  Atlanta, and she proceeded to lay out a history of gun control in the United States, much of which I had not known.

The Second Amendment to the Constitution is one simple sentence: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” There’s not a lot to go on about what the Framers meant, although in their day, to “bear arms” meant to be part of an organized militia.

As the Tennessee Supreme Court wrote in 1840, “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

So how did the “original intent” of the Amendment get twisted into a personal right to own weapons? Evidently, thanks to a similar twisting of the NRA.

The NRA was established in the late 1800s “to improve the marksmanship skills of American citizens who might be called on to fight in another war, and in part to promote in America the British sport of elite shooting.”

By the 1920s, rifle shooting was a popular American sport. “Riflemen” competed in the Olympics, in colleges and in local, state and national tournaments organized by the NRA… In 1925, when the secretary of the NRA apparently took money from ammunitions and arms manufacturers, the organization tossed him out and sued him.

Times have certainly changed.

The early NRA distinguished between law-abiding citizens who should have access to guns, and criminals and mentally ill people who should not. In 1931, it backed federal legislation to limit concealed weapons, prevent possession by criminals, the mentally ill and children, to require all dealers to be licensed, and to require background checks before delivery. It endorsed the 1934 National Firearms Act, and other gun control legislation.

But in the mid-1970s, a faction in the NRA forced the organization away from sports and toward opposing “gun control.” It formed a political action committee (PAC) in 1975, and two years later elected an organization president who abandoned sporting culture and focused instead on “gun rights.”

Richardson tells us that the NRA “embraced the politics of Movement Conservatism,” a movement opposing business regulations and social welfare programs. Movement Conservatives also embraced the myth of the heroic American cowboy, a White man standing up to the “socialism” of the federal government while dominating Black and Native American people.

In 1972, the Republican platform had called for gun control to restrict the sale of “cheap handguns,” but in 1975, as he geared up to challenge President Gerald R. Ford for the 1976 presidential nomination, Movement Conservative hero Ronald Reagan took a stand against gun control. In 1980, the Republican platform opposed the federal registration of firearms, and the NRA endorsed a presidential candidate—Reagan– for the first time.

After Reagan was shot, the  NRA spent millions of dollars fighting the Brady Bill; after it passed, the organization financed lawsuits in nine states to strike it down.

Richardson also points out that until 1959, every single legal article on the Second Amendment concluded it wasn’t intended to guarantee individuals the right to own a gun. In the 1970s, legal scholars funded by the NRA began arguing that the Second Amendment did exactly that.

The organization got its money’s worth. In 2008, the Supreme Court declared that the Second Amendment protects an individual’s right to keep and bear arms.

The unfettered right to own and carry weapons has come to symbolize the Republican Party’s ideology of individual liberty. Lawmakers and activists have not been able to overcome Republican insistence on gun rights despite the mass shootings that have risen since their new emphasis on guns. Even though 90% of Americans—including nearly 74% of NRA members— recently supported background checks, Republicans have killed such legislation by filibustering it.

The good news is that the NRA is currently imploding. Perhaps the loss of its ability to spend mountains of money will allow Congress to pass responsible gun control legislation–and if it’s no longer the policy “winner,” we may get a more accurate history.

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The Founders And The Filibuster

Among the many forgotten lessons of America’s past is the abysmal failure of the nation’s first constitution, the Articles of Confederation. Thanks to the widespread absence of effective civics instruction, much of the public is unaware of the very existence of America’s first effort at nation-building, let alone the reasons that initial effort failed.

The Articles had numerous flaws–mostly attributable to the reluctance of the colonies to cede authority to a central government. Probably the best-known weakness of that first effort was the inability of the new central government to levy taxes. The central government could ask for revenues–for example, monies to retire debt amassed during the Revolutionary War–but if a state didn’t want to pay, it didn’t pay, and the federal government could do nothing about it.

The lack of a dependable revenue stream wasn’t even the worst of it. Under the Articles, any changes to the structure or operations of government needed a unanimous vote of the 13 colonies–and most other policies required the concurrence of a super-majority. Those provisions made governing impossible. When the Founders met in Philadelphia to replace the fatally-weak Articles with the Constitution, changing that unworkable super-majority requirement was  high on their “to do” list.

What we know of that history and the Founders’ antagonism to government by super-majority should inform our approach to the current iteration of the Senate filibuster.

Ezra Klein recently hosted Adam Jettleson, a longtime Senate staffer, on his podcast, and reported their conversation in a column for the New York Times. Jettleson pointed out that one of the biggest misconceptions about the filibuster is the idea that it promotes bipartisanship.

In fact, it does the opposite because it gives the party that’s out of power the means, motive and opportunity to block the party that’s in power from getting anything done. And when the party that’s in power doesn’t get anything done — when voters see nothing but gridlock from Washington — they turn to the party that’s out of power and try to put them back in office.

Republicans are well poised to take back majorities in both the House and Senate — all they need is a handful of seats to do so. So they have every rational, political incentive to block Biden from achieving any victories. A program that would cut child poverty massively would be a huge victory for Biden. And the ability for Biden to pass it on a bipartisan basis would be a huge victory for his campaign promise to restore bipartisanship and unity.

Jettleson reminded listeners that the Framers had anticipated this very situation. They identified this huge drawback with supermajority thresholds in 1789, when they had direct firsthand experience with the Articles of Confederation.

In Federalist 22, Alexander Hamilton addresses this misperception head-on. He says, “What at first sight might seem a remedy,” referring to a supermajority threshold, “is in reality a poison.” You might think it would cause compromise, but really what it does is it provides an irresistible temptation for the party that’s out of power to make the party in power look bad.

As Klein observed, bipartisanship is something the majority wants, but the minority has no incentive to give–something  Mitch McConnell certainly understands. During the first years of the Obama administration, McConnell knew he could win the majority back by sabotaging its ability to govern–that the majority party will inevitably get the blame for gridlock, no matter how unfair that may be.

The mischief being done by the current iteration of the filibuster has become obvious. It continues to prevent the Senate from functioning properly–for that matter,  as Jettleson documents in his recent book, “Kill Switch,” it pretty much keeps the Senate from functioning at all.

A mountain of evidence suggests that it is long past time to get rid of the filibuster.

The question, then, is why Democratic senators like Joe Manchin and Kyrsten Sinema continue to defend it.

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