Category Archives: Constitution

The Crux Of The Problem

The Senate–which has managed to do pretty much nothing during the pandemic (granted, it wasn’t exactly productive in the months before that, either)–is rushing through the process of confirming Amy Coney Barrett to the Supreme Court.

There are many aspects to this unseemly exhibition, but one that has been less remarked upon is the connection between the Senate’s growing problem of disproportionate representation and that body’s importance to the seating of Supreme Court Justices.

A recent post by Nate Silver at FiveThirtyEight.com connected those dots.

Silver says that the constitution of the Senate poses an “enormous problem for Democrats”–not simply because the parties as currently constituted map onto urban and rural representation. (Democrats dominate in cities; Republicans triumph in rural areas.) As he points out,

 because the Senate is responsible for confirming Supreme Court picks, that means the Supreme Court is a huge problem for Democrats too. Sure, Democrats might win back the Senate this year — indeed, they were slight favorites to do so before the Ginsburg news. But in the long run, they’re likely to lose it more often than not.

You can probably grasp intuitively that a legislative body which provides as much representation to Wyoming (population: 580,000) as California (population: 39.5 million) will tend to favor rural areas. But it’s a bigger effect than you might realize, so let’s run some numbers. At FiveThirtyEight, our favorite way to distinguish between urban and rural areas is based on using census tracts to estimate how many people live within a 5-mile radius of you.

Using this metric, Silver broke the country down into four categories: those with fewer than 25,000 people within 5 miles were classified as rural; those falling between 25,000 and 100,000 were exurban; between 100,000 and 250,000 were suburban or small city; and over 250,000 were urban. Using this (somewhat arbitrary) classification system, Silver found that these “buckets” were almost even: 25 percent rural, 23 percent exurban/small town, 27 percent suburban/small city, and 25 percent urban core/large city.

He then looked at the Senate, and– surprise! (no surprise; I’m kidding)– found a major skew to rural areas in that chamber’s representation. It turns out that the Senate has” two or three times as much rural representation as urban core representation … even though there are actually about an equal number of voters in each bucket nationwide.”

And of course, this has all sorts of other downstream consequences. Since rural areas tend to be whiter, it means the Senate represents a whiter population, too. In the U.S. as a whole, 60 percent of the population is non-Hispanic white and 40 percent of the population is nonwhite. But in the average state, 68 percent of people are white and 32 percent are nonwhite. It’s almost as if the Senate has turned the clock back by 20 years as far as the racial demographics of the country goes. (In 2000, around 69 percent of the U.S. population consisted of non-Hispanic whites.)

The post goes through a lot of mathematical calculations, which you can see if you click through, but the bottom line is stark:

the Senate is effectively 6 to 7 percentage points redder than the country as a whole, which means that Democrats are likely to win it only in the event of a near-landslide in their favor nationally. That’s likely to make the Republican majority on the Supreme Court pretty durable.

There is a lot to unpack in this article, beginning with my extreme discomfort with its underlying premise that the Supreme Court is merely another arena for American political partisanship. Granted, judicial philosophy has always been a significant cause of dissension, but it is only in the last few years that the judiciary has effectively been reduced to the status of partisan prize–as a tool for imposing political hegemony through the legal system, rather than a safeguard of fidelity to the Constitution and the rule of law.

What the article does make very clear, however, is the disturbing and undeniable fact of minority rule. White rural Republicans–who are advantaged by the current situation–like to recite that America is a republic, not a democracy, as if that somehow rebuts the fact that a true republic is a representative democracy. (Look it up.)

This situation is at the crux of our national problems. America is currently ruled by an unrepresentative minority–and the effect of that reality includes but is certainly not limited to the GOP’s intentional corruption of the nation’s judiciary.

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Misunderstanding Religious Freedom

It was refreshing to read a New York Times column responding to the recent–and I must say, weird and troubling–ruminations on same-sex marriage issued by Clarence Thomas and Samuel Alito.

The reason I label these “opinions” weird is that they were not dissents, not even concurrences. They were peevish outbursts–not far removed from “get off my lawn” explosions by cranky old guys. I’m unaware of other instances in which Supreme Court Justices used a unanimous and otherwise predictable decision as an opportunity to simply gripe that the world wasn’t going their way.

As David Von Drehle wrote,

It was an odd document, not a dissent; just a four-page grumble about matters that may someday be a problem depending on the facts of unknown future cases. The justices might consider woodworking, because, from the looks of this, they don’t have enough to keep them busy. The statement, which carries no legal weight, is essentially a cry from the heart on behalf of Americans whose religious views condemn same-sex marriage. Fair enough: The freedom to hold beliefs different from those of the mainstream is a cherished aspect of American liberty. But the statement crosses into sophistry by suggesting that religious liberties are somehow infringed if they aren’t privileged above the civil law.

And that, dear readers, is the crux of the matter. The piteous complaints that meet any effort to ensure the civic equality–note the word civic–of Americans who do not conform to their religious beliefs are based upon their conviction that they (and only they) are in possession of Truth, that they (and only they) know God’s Will, and that other citizens should therefore be forced to comply with their beliefs and their bigotries.

Von Drehle notes that the Justices offer no new basis for their opposition: he references Thomas’ 2015 argument that same-sex marriage is not mentioned in the Constitution– and points our the obvious: opposite-sex marriage isn’t mentioned there, either.

Thomas and Alito engage in a profoundly damaging legal error: religious freedom is not the right to impose some people’s beliefs on other citizens.

Far too many Americans define “freedom” as “my right to do what I want, no matter how harmful that may be to my fellow Americans.” We see that distortion in the refusal of “freedom fighters” to wear masks to protect the health of their neighbors.

Our legal system was profoundly influenced by what is sometimes called the “libertarian construct.” That construct provides that we each have the right to “self government”–to live our lives as we see fit, to worship or not, to form and exchange opinions, to go about our business free of official constraint– so long as we do not thereby harm the person or property of a non-consenting other, and so long as we grant an equal right to others.

There are all kinds of good-faith differences of opinion about the nature of the harms that justify government interventions–second-hand smoke? Seat belts? There is no such “gray area” when it comes to our obligation to extend “an equal right to others.”

When the issue is religious liberty, Von Drehle gets it right, and the Justices get it wrong.

By prohibiting establishment of a state religion, the Constitution explicitly bars “courts and governments” from preferring one set of religious views over any other set — or over nonreligious views…

Nor does religious freedom confer immunity from criticism. Religious freedom by its nature implies robust disagreement over strongly held values. Imprecations will be hurled, alas. Names will be called. Devout Christians should appreciate this; indeed, we are called blessed when we’re reviled for the sake of our faith. Furthermore, we’re taught to distinguish between civil and religious authority, and to render due respect to both.

Churches and other religious establishments rightly have certain protections from laws that might compel them to violate their beliefs while conducting their own business. It’s dangerous to confuse that safe zone with a general power to flout the law.

I say AMEN.

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Past Time For These–And Other–Reforms

Americans shouldn’t allow Trump’s COVID diagnosis to become the ultimate distraction from the  electoral choices that face us, or the structural challenges we will face even in the best of electoral circumstances.

The bottom line is that, even If America rids itself of Trump and his GOP enablers, citizens will still have a lot of work to do. We can no longer pretend that our electoral and legal systems are working as intended– for that matter, several are not working at all.

The Democrats, at least, have noticed.

On September 23d, the Washington Post ran an opinion piece authored by several Congressional Democrats, including Adam Schiff and Jerrold Nadler. Noting that Trump was the first President to ignore the reforms passed in the wake of Watergate, they wrote that

With a lawless president in office who acts as if rules are for suckers, political norms for losers and governing for chumps, it is clear we need a new series of reforms to protect our democracy.

On Wednesday, we are introducing such reforms, which we began drafting more than a year ago not only to address the president’s unique abuses, but also to go beyond them to restore accountability, root out corruption and ensure transparency in government for future White House occupants.

The reforms these lawmakers are proposing include amending the pardon power to make it clear that a President cannot pardon himself or his immediate family, adding teeth to the emoluments clause by adding explicit enforcement provisions and enhanced penalties, and increasing financial disclosure rules.

The bill also addresses the need to strengthen accountability and transparency. The op-ed notes that Trump has “obstructed congressional oversight, targeted whistleblowers who speak out against him and fired officials whose responsibility is to objectively investigate wrongdoing in the federal government,” and states the obvious: that  Congress needs access to documents and  the ability to compel testimony from witnesses in order to conduct that oversight. Their bill strengthens Congress’ right to enforce its subpoenas in court, and has other provisions aimed at improving congress’ ability to discharge its duties as  a co-equal branch of government.

The bill also contains measures that are a direct response to Trump’s contempt for the rule of law and for democratic norms:

We must also reclaim Congress’s power of the purse from an overzealous executive branch, increase transparency around government spending and ensure there are consequences to deter the misuse of taxpayer funds. Our bill will prevent the executive branch from using nonpublic documents or secret legal opinions to circumvent Congress and unilaterally enact its agenda behind closed doors. Our bill will impose limits on presidential declarations of emergencies and any powers triggered by such declarations, unless extended by a congressional vote, and require the president to provide all documents regarding presidential emergency actions to Congress.

These and the other reforms enumerated in the bill are welcome and probably overdue. The ability to pass the measure rather obviously depends upon turning the Senate blue on November 3rd.

But here’s my problem.

So long as most Americans don’t understand the rules we already have, or the reasons we have them–so long as they fail to recognize the profound effect legal structure exerts on the mechanics of government, we are ignoring one of the most dangerous threats to ethical and constitutional governance: widespread civic ignorance.

Far too many Americans vote for presidents and governors and mayors without understanding either the skills required for those jobs or–even more importantly–the constraints applicable to those positions. They evidently assume that they are electing temporary kings and queens–people who will take office, issue decrees, and change reality. (Trump’s base, for example, evidently thinks his constant stream of “Executive Orders” all have legal effect, although few do.) Worse, they fail to recognize the ways in which structures that were useful (or at least, less harmful) in the past have distorted the exercise of the franchise and given us a system in which rural minorities and thinly populated states dominate an overwhelmingly urban country.

When you don’t understand how a system works–or why it is no longer working properly–your ability to make informed choices at the ballot box is impaired.

The reforms listed in the linked op-ed are among the many changes we need to make. But a thoughtful discussion of those needed reforms requires a voting public that understands why America’s systems aren’t functioning properly–and what “properly” looks like.

Tomorrow, I will address additional needed reforms.

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The People And The Court

Joseph Margulies has made a counter-intuitive argument at the legal publication Justia. The crux of his opinion is that liberals have misread the Supreme Court’s history, and as a result, have placed far too much reliance on the judicial branch.

As I recall, this was also an argument advanced by Kieth Whittington, a legal scholar, a few years back. As I remember the book–and my memory is definitely hazy– Whittington felt that over-reliance on the courts to protect individual liberties led to flaccid and apathetic political participation.

Justice Ginsburg has given the left a great gift, if it knows how to use it. Finally, and none too soon, the popular infatuation with the Court as the Great Protector of Individual Rights can be laid to rest. We will now see the Court for what it has been for most of its history—a reactionary branch committed to the preservation of wealth and the status quo. With the exception of a brief and unrepresentative period from the mid-1950s to the early 1970s, the Court has not been an agent of progressive change. Quite the contrary, it has been decidedly unkind to claims pressed on behalf of underrepresented minorities and the poor. Outside of two short decades, the Court has been timid and conservative, lending its support for progressive policies only after they have already won widespread approval. By the time the Court managed to recognize a right to same-sex marriage in Obergefell v. Hodges, for instance, it was already the law in 37 states and the District of Columbia

The Court that liberals lionize (or, as Margulies would have it, the myth of the Court that they have constructed) is, as he argues, a product of what he calls “the golden years” that produced cases like Brown v. Board of Education (1954), Roe v. Wade (1973), Miranda v. Arizona (1966) and and Gideon v. Wainwright(1963).

But what so many fail to appreciate is that all the rights and protections established during this period, literally without exception as far as I can tell, have been substantially diluted by the same Court that created them, some nearly to the point of elimination.

It’s hard to disagree with this analysis. The Court has blessed “school choice,” which has accelerated the re-segregation of schools, and has made abortion nearly unobtainable by upholding medically unnecessary and burdensome regulations. Margulies concludes that there is no judicial substitute for the hard work of political activism.

The practice [of taking matters to court] supplants democracy and sidesteps the people. It imagines that there is a substitute for politics, a shortcut that will allow us to achieve an enduring progressive vision without having to engage in the protracted ugliness of partisan politics. We point to past cases because we think it has happened before, but overlook the fact that these decisions did not endure. We put our faith in Oracles who stand atop politics because we are sickened by the emergence of a world in which facts no longer matter, science is ridiculed, and jack-booted racism is on the march. So we look to the Nine for our salvation. But they are not—and in truth have never been—our Saviors.

Win or lose in November, we need to heed this call to arms. Margulies predicts that we will:

As political campaigns well know, nothing motivates a constituency like a sense of threat. After the election of Barack Obama, for instance, the NRA parlayed fear of the new President into “a dramatic increase in membership,” and gun sales surged 60 percent.. ..The same thing happened on the left after the surprise result in 2016. Within months of Trump’s election, membership in the ACLU skyrocketed from around 400,000 to more than 1.8 million and contributions ballooned by $120 million. In the same way, the knowledge that the Court is lost to the left should trigger a groundswell of political and financial support for progressive and liberal candidates, lest the entire architecture of government be controlled by the right. In politics, threat leads to action, and after Friday, the sense of threat has never been so real. The ships have been burned; there will be no retreat to the Court.

Just as [RBG”s] death should invigorate the left, it will enervate the right. Campaigns articulate a vision of success and promise their supporters that all will be right with the world once that goal has been achieved. For the right, success has meant control of the Court. For decades, the right has struggled to achieve a secure majority on the Court, only to suffer one disappointment after another…. Now that victory is at hand, a letdown is inevitable. While threat produces action, victory leads to quiescence.

As my grandmother would have said, “From his mouth [okay, word processor] to God’s ears…”

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RBG

This really has been the year from hell.

Yesterday, I wrote that this year’s election will be an inflection point for America. That observation became infinitely more acute with the news that Ruth Bader Ginsberg had died. Mitch McConnell didn’t even wait for her body to cool before announcing that he would abandon his invented (Trumped-up) position that Justices shouldn’t be replaced during the last year of a presidential term, and would move quickly to replace her with yet another “conservative” Justice.

The quotation marks around conservative are intentional, because what McConnell and his GOP ilk are hell-bent on “conserving” is white Christian male privilege. They certainly aren’t interested in extending or conserving the values embedded in the Constitution.

As I sat down to write this, I thought about a line that Mayor Pete often used during the primaries: “I’m mindful every day that my marriage exists by the grace of one vote on our Supreme Court.” That observation about the importance of the Court isn’t limited to the ruling about same-sex marriage. Women who are able to exercise control over their own reproduction, people in interracial marriages, people who can get health insurance despite having pre-existing conditions–the list of the very concrete ways in which Supreme Court decisions affect all of us is long.

Self-styled “conservatives” like to insist that they are originalists. But the real originalists are those like the indomitable RBG, who are faithful to the values the Bill of Rights was intended to protect. An originalism that insists on limiting the application of those protections to the world inhabited by the Founders would be unworkable (which is why self-proclaimed originalists like Scalia frequently departed from them.) True originalism requires that we look at the values the Founders were trying to protect–our ability to communicate free of government control, freedom from state-imposed religious observance (impelled by respect for the integrity of the individual conscience), our right to “due process of law” and other rights of self-determination. To be a true originalist requires continuing to protect those values and expand their application in a world the Founders could never have envisioned.

Ruth Bader Ginsberg was a champion of that genuine “originalism.” 

So–now we face another hugely consequential “inflection point.” The moral pygmies who obey McConnell will move to replace her with yet another tool of reaction. I was briefly heartened to hear that four Senators (Murkowsky, Collins , Grassley and Sasse) have pledged not to vote for a replacement until after the inauguration; it is likely that Romney will take that same position. If those pledges hold, it’s very good news, but I’m not holding my breath.

Speaking of ifs:

If McConnell succeeds, and if the Democrats take the White House and the Senate, they absolutely must expand the number of Justices on the Court.

That expansion, and a number of other court reforms have been advocated by legal and judicial scholars for several years–not just during our Trump/McConnell nightmare. The reforms should be crafted with one overriding purpose: to remove the judicial system from partisan politics–from being seen as a “prize” to be co-opted by whichever party wins an election– and return it to its intended purpose of dispassionately interpreting the law. As Jill Lepore recently warned, the Court is in danger of becoming an instrument of the executive instead of a check against it. 

Judges will always have their own beliefs, and will always bring those beliefs to their jobs. There will always be Justices with whom we disagree. If the people we elevate to the bench are the best and brightest, however, those disagreements will be principled. McConnell has packed the federal bench with partisan hacks and puppets, many of whom the ABA has found to be unqualified–not just mediocre, but unfit.

Ruth Bader Ginsberg became an icon because she was so superbly qualified, so intellectually powerful, and so obviously a person who exhibited decency, integrity and civility.

If she is replaced with yet another partisan hack, all bets are off.

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