Category Archives: Constitution

The Stakes II

A couple of days ago, I considered the stakes of this year’s election choices, and speculated about whether and to what extent the abortion issue will drive both turnout and results. What I failed to explain ( thanks to the word limit I have self-imposed for these daily rants) is why the debate about reproductive choice is in reality about far more than a woman’s right to control her own reproduction, important as that is.

The deeply dishonest Dobbs decision struck at a fundamental premise of America’s Constitution, as we have come to rely upon it– the belief in limited government.

When politicians talk about “limited government,” they generally focus on the size of government, but the U.S. Constitution defines those limits in terms of authority, not size. What is to be limited is the power of government to prescribe certain decisions that should be left to the individual. In the original Bill of Rights, the federal government was forbidden to censor speech, prescribe religious or political beliefs, and take other actions that were invasions of fundamental rights–rights for which early Americans demanded recognition.

Over the years, those limitations on federal government power were imposed on state and local government units, and evolving cultural and social norms prompted a fuller understanding of what sorts of decisions individuals are entitled to make without government interference. I frequently cite what has been called the Libertarian Principle, because that principle undergirds America’s particular approach to government. The principle is simple: Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of someone else, and so long as they are willing to accord an equal liberty to their fellow citizens.

The gender of your chosen mate, your adherence to a non-Christian religion (or your utter rejection of the notion of divinity), your choice to reproduce or not, and a number of other life choices are simply none of government’s business. (As Jefferson is often quoted, such decisions “neither break my leg nor pick my pocket.”)

The Libertarian Principle was central to the original Bill of Rights, and its application has  extended as “facts on the ground”–scientific and cultural–have changed. Ever since 1965, when the Supreme Court handed down its decision in Griswold v. Connecticut– informing the Connecticut legislature that a couple’s decision to use contraceptives was none of government’s business–the belief that there are areas of our lives where government simply doesn’t belong has been absolutely central to Americans’ understanding of liberty.

When I was much younger, the importance of limiting government to areas where collective action was appropriate and/or necessary—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.

It’s critically important to understand that what is really at stake in what we shorthand as the “abortion issue” is that fundamental Constitutional premise. Forcing women to give birth, denying medical care to defenseless trans children or forbidding school children to read certain books are not “stand-alone” positions. They are part and parcel of an entire worldview that is autocratic and profoundly anti-American.

I used to point out that a government with the power to prohibit abortion is a government with the power to require abortion. (As an ACLU friend used to say, poison gas is a great weapon until the wind shifts.)

The issue at the heart of the Bill of Rights–as I interminably repeated to my students–isn’t what decision is made. The issue is who gets to make it. In the government system devised by our Founders, certain decisions are simply off-limits to government. I may disagree with your religious beliefs or political opinions; I may disapprove of your choice of marriage partner or your selection of reading material–but I cannot use the government to countermand your choices and require behaviors more to my liking.

It is that fundamental premise that is at stake in this year’s elections, which will pit the MAGA theocrats and autocrats against those of us who want to preserve America’s hard-won civil liberties and individual rights.

The abortion issue is about so much more than abortion, and I have to believe that, at least at some level, most Americans realize that.

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A Speech Worth Revisiting

It’s probably a sign of just how suspicious I am these days of quotations on the Internet, but when I saw a post on Daily Kos that purported to be a lengthy portion of a speech by Ulysses Grant, I checked with two separate academic sites to confirm its accuracy.

It turned out it was accurate–and prescient.

Grant might have been commenting on our current national woes when he spoke in Des Moines in 1875.

I do not bring into this assemblage politics, certainly not partisan politics, but it is a fair subject for soldiers in their deliberations to consider what may be necessary to secure the prize for which they battled in a republic like ours. Where the citizen is sovereign and the official the servant, where no power is exercised except by the will of the people, it is important that the sovereign — the people — should possess intelligence.

The free school is the promoter of that intelligence which is to preserve us as a free nation. If we are to have another contest in the near future of our national existence, I predict that the dividing line will not be Mason and Dixon’s, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other.

Now in this centennial year of our national existence, I believe it a good time to begin the work of strengthening the foundation of the house commenced by our patriotic forefathers one hundred years ago, at Concord and Lexington. Let us all labor to add all needful guarantees for the more perfect security of free thought, free speech, and free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color, or religion.

Encourage free schools, and resolve that not one dollar of money appropriated to their support, no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that the State or Nation, or both combined, shall furnish to every child growing up in the land, the means of acquiring a good common-school education, unmixed with sectarian, pagan, or atheistic tenets. Leave the matter of religion to the family altar, the church, and the private school supported entirely by private contributions. Keep the church and state forever separate. With these safeguards, I believe the battles which created the Army of the Tennessee will not have been fought in vain.

Grant eloquently addressed what I have called “civic literacy”–the need of a “sovereign people” to be both patriotic and informed. As is clear from the context of his words, Grant’s definition of “patriotic” is very different from the jingoism displayed by today’s MAGA Republicans. True patriotism requires an allegiance to the principles of America’s Constitution and Bill of Rights, an allegiance based upon a proper understanding of those documents and the philosophy that animated them.

Grant was very clearly aware that such allegiance and understanding comes from instruction “unmixed with sectarian, pagan or atheistic tenets”–that such religious precepts must be left to the family, the church and private schools “supported entirely by private contributions.”

An eon ago–in 1980–I was a Republican candidate for Congress. I even won a Republican primary.  Despite the fact that I was pro-choice and pro-gay rights, among other things, I was considered–and considered myself– to be a conservative. Then and now, I believe the proper understanding of that label includes a commitment to conserve the values that Grant enumerated in that long-ago speech.

I continue to believe that labeling today’s GOP “conservative” is a travesty that works to normalize what is a truly frightening and very unconservative approach to politics and American governance.

True conservatism requires a commitment to uphold the individual liberties protected by the Bill of Rights: freedom of speech and press, Separation of Church and State, freedom of conscience and personal autonomy, among others.

I don’t know the proper label for the MAGA fanatics who have taken over what was once my political party. Culture warriors? White Christian Nationalists? Fascists? Today’s GOP is probably a blend of all those, together with a heavy sprinkling of people who are too civically-illiterate to understand how very unconservative–and dangerous– their party has become.

Grant eloquently defended the extension of “equal rights and privileges to all men, irrespective of nationality, color, or religion.” Today’s Republicans would call him “woke,” and angrily reject him (along with Lincoln) as “anti-American.”

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The Enlightenment And The Constitution

Among a number of depressing discoveries I made during two-plus decades of university teaching was the fact that most of my students had never heard of the Enlightenment.

I know, I know–that was just one of many deficiencies students brought to a class on law and public policy…so why do I consider that particular deficit to be especially depressing? Because–as I have repeatedly explained on this site– Enlightenment philosophy caused a significant shift in human understanding. Its philosophers introduced what has become the prevalent–although certainly not universal–worldview of modern  civilization. The Enlightenment introduced western civilizations to science and empirical inquiry, posited the existence of human rights and challenged/toppled belief in the divine right of kings, among many other things.

Perhaps the most concerning aspect of MAGA Republicanism is its wholesale rejection of that Enlightenment worldview. There are several theories about the appeal of MAGA partisanship (I can’t dignify MAGA by suggesting it’s a philosophy–it isn’t. It’s a visceral, tribal scream…)–certainly, racism is a huge factor. But so is a primal fear of modernity, a rejection of the secular civilization that grew out of the Enlightenment.

As I’ve recently written, I tend to see much of today’s political turmoil as a fight between Puritan fundamentalism and Enlightenment modernity, so I was interested in a New York Times book review by Emily Bazelon some months back titled “Speaking Truth to Both Right and Left.” The review focused on two books, one of which–Jonathan Rauch’s Constitution of Knowledge— I’d read. (The other, by George Packer, remains on my “eventual” list…)

Packer and Rauch are here to defend the liberalism of the Enlightenment — equality and scientific rationality in an unapologetically Western-tradition sense. They see this belief system as the country’s great and unifying strength, and they’re worried about its future.

I worry alongside them. A lot.

Packer expresses his deep fear that Americans have lost the “art” of self-government.

He means, with credit to Alexis de Tocqueville, “not just rights, laws and institutions, but what free people do together, the habits and skills that enable us to run our own affairs.” Self-government depends on trust, “which we’ve lost.”

The review notes that Packer’s lens is economic.

He ties his thesis about Americans’ loss of the art of self-government to the inequality that he has covered extensively and intimately in his career as a journalist. “If I had to put it in a single sentence,” he writes, “I would say: Inequality undermined the common faith that Americans need to create a successful multi-everything democracy.” He recognizes that “racism is in our marrow, and enough Americans either celebrate or tolerate this evil that it came within a whisker of gaining a lasting hold on power.” (He’s talking about Trump, though he would recognize that racism has in fact gained such a hold in other ways and times.)

Bazelon outlines what she calls Packer’s “biting” critique of the Left, and ties it to abandonment of the Enlightenment framework and the Left’s focus on subjectivity and “psychological trauma caused by speech and texts.”

Rauch addresses the Enlightenment basis of America’s Constitution more directly.

Rauch’s subject, in “The Constitution of Knowledge,” is the building of human understanding. He takes us on a historical tour of how a range of thinkers (Socrates, Hobbes, Rousseau, Montaigne, Locke, Mill, Hume, Popper) sought truth, came to embrace uncertainty, learned to test hypotheses and created scientific communities. He is astute about the institutional support and gatekeeping that sustains “the reality-based community of science and journalism.” Social media platforms are bad at this because their profits are built on stoking users’ existing rage and spreading lies faster than truth. This is not a new critique, but it’s nice to see Rauch weave it into his larger project.

Rauch describes the danger posed by Rightwing trolling and disinformation, but–like Packer–he also recognizes and criticizes the excesses of the left.

He blames it for cancel culture, defined as firing or ostracizing people for stray comments or social-media posts (some awful, some awkward, some expressing mainstream-until-yesterday views). He writes at helpful length about the difference between criticizing and canceling. “Criticism seeks to engage in conversations and identify error; canceling seeks to stigmatize conversations and punish the errant. Criticism cares whether statements are true; canceling cares about their social effects.”

Bazelon ended her review with a question I find increasingly pertinent: why do so many of today’s Americans reject the Enlightenment values of individual liberty and civic equality? She wanted both Rauch and Packer to “consider why the Enlightenment figures and values they love don’t speak to everyone.”

it’s a very important question.

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Twenty-First Century Puritans

Being out on the ocean prompts reflection… 

When I taught Law and Public Policy, I approached the material through a constitutional lens, because I was–and remain–convinced that a basic understanding of American history and the philosophy that shaped what I call “the American Idea” is critically important for anyone hoping to understand today’s politics.

The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way people today understand and define human rights and individual liberty.

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty.

Puritans saw liberty pretty much the same way current politicians like Mike Pence and Mike Johnson do– as “freedom to do the right thing” as they definied it. That meant their own freedom to worship and obey the right God in the true church, and it included their right to use the power of government to ensure that their neighbors did likewise.

The Founders who crafted the American constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system is based on the Enlightenment concept of liberty, not the Puritan version. It’s an approach we sometimes call “negative liberty.” The Founders believed that our fundamental rights are not given to us by government (nor necessarily “God given” either). Most of them–especially the Deists– believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

That philosophical construct is why–contrary to popular belief–the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human, and it protects them against infringement by an overzealous government. As I used to tell my students, the American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

Most Americans today live in a post-Enlightenment culture. We accept and value science. We understand liberty to mean our right to live our lives free of government control so long as we are not harming others, and so long as we respect the right of other people to do likewise. But there is a persistent minority that has never accepted an Enlightenment worldview, and that minority currently controls the Republican Party. These contemporary Puritans–who, along with their other religious convictions tend to see Black people and non-Christians as unworthy subordinates– use the word “freedom” in the older, Puritan sense of “freedom to do the right thing” as their reading of their holy book defines “the right thing.” They also  believe it is government’s job to make other citizens do the “right thing” –to impose their version of “Godliness” on the rest of us.

These contemporary Puritans are throwbacks to the early American settlers who defined “liberty” as the imposition of the correct religion on their neighbors. The Enlightenment construct of “live and let live”–the notion that each of us should have the right to believe as we wish, the right to follow our own set of moral imperatives (again, so long as we are not harming the person or property of someone else) was utterly foreign to those original Puritans, and it is evidently equally inconceivable to their philosophical descendants.

(Interestingly, these throwbacks to Puritanism never seem to doubt that they know precisely what God wants–that, as a friend once put it, God hates the same people they do. But that’s a phenomenon for a different post.)

If you had told me ten years ago that American government would once again be under the thumb of Puritans, I wouldn’t have believed it. But here we are–with a Speaker of the House of Representatives who is a full-blown Puritan throwback and a Republican Party that has rejected the Enlightenment.

When I have computer problems, I reboot. That usually returns my laptop to working order. Can we reboot America?

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The Root Of The (Political) Problem

I recently read a Persuasion interview with two noted political scientists, Steven Levitsky and Daniel Ziblatt, whose most recent book is The Tyranny of the Minority.  In two of their initial observations, they summed up the roots of America’s political dysfunctions.

Those observations began with America’s constitutional structure:

Our Constitution has always favored rural areas, which represent a minority of the population. For most of our history, that really wasn’t a big problem, because both parties had urban and rural wings; but now, demographic changes have really led us to a position in the 21st century where the Republican Party is primarily the party for rural areas, while Democrats are primarily the party of urban areas. And so this means that our constitutional structure over-represents rural areas, and so it’s no longer necessary at the national level for the Republican Party to win majorities in order to gain power. That has unleashed a set of distorting impacts on our politics that are very dangerous.

Adding to that urban/rural divide is the country’s longtime struggle with racism and the religious roots of White Supremacy.

Our central argument regarding why the Republican Party has sort of gone off the rails in the last 15 years or so is that, in the latter third of the 20th century, the United States changed dramatically and the Republican Party did not. It became an overwhelmingly white Christian party in a much more diverse country at around roughly the turn of the 21st century and that brought two problems. One is that it had a hard time competing for a national majority (and lost the national popular vote in seven of the last eight elections) because it was relying so heavily on white and particularly white Christian votes. And, secondly, a segment of its base grew increasingly threatened; the Republican Party actually did an excellent job of appealing to racially conservative whites over the course of the last third of the 20th century, those who were unhappy with government efforts to enforce civil rights in the last part of the 20th century; and recruited these folks into its party, becoming a more racially conservative party. A primary-winning plurality of the Republican base grew pretty resentful over the visible rise of multiracial democracy in the 21st century. And so the party radicalized.

And so here we are. The entire discussion is worth reading (or listening to–I’m working from the transcription of a podcast, which you can also connect to from the link–but the two preceding paragraphs really focus on the roots of America’s current dysfunctions.

The authors concede that America’s constitutional democracy limits majority rule. Our system constrains majorities from invading the individual liberties protected by the Bill of Rights. But as they also note, without majority rule, there is no democracy. And among important things that ought to be within the reach of majorities is the right to form governments and the right to govern with those majorities.

Levitsky and Ziblatt are quick to point out that–while their book offers suggestions for constitutional amendment–those suggestions are hardly radical. They would align our system somewhat more closely to the systems in Denmark, New Zealand and Finland. And they remind us that

Both Hamilton and Madison strongly opposed the current structure of the Senate in which each state gets equal representation. That was designed because small states insisted on it and threatened even to break up the union if they didn’t get it. That was not part of some sort of far-sighted design of our founders. Madison opposed the Electoral College; it was the second-best solution after other alternatives had been voted down in the convention. And both Hamilton and Madison opposed supermajority rules for regular legislation.

Both George W. Bush and Donald Trump lost the popular vote–Trump by some three million. Levitsky and Ziblatt say it would be “a great day for America if the Republican Party could win power with majorities fair and square.” That would mean we would have two parties committed to the democratic rules of the game. But as Levitsky notes (rather delicately), “the rural bias of our institutions weakens the incentive of the Republican Party to broaden its appeal.”

Their book–which I intend to purchase– wrestles with the question that frequently animates conversations on this blog: Why, after 150 years, has the mainstream center-right party gone off the rails?

You need a theory for that. Our theory focuses on the perception of existential threat faced by some members of a once-dominant ethnic majority that is losing its dominant status. But secondly and more pertinent here is the electoral institutions that dull the incentive of the party to adapt.

Yep.

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