Category Archives: Constitution

Federalism On Steroids?

There are many observations we might make about the newest Supreme Court Justice and the travesty of her elevation. Assuming Democratic reluctance to enlarge the Court in a tit-for-tat response to the last 12 years of GOP court packing, one of those observations concerns prospects for federalism and states’ rights.

As Elizabeth Warren noted in a speech opposing Barrett, the nominee carefully refused to answer numerous important questions. She wouldn’t say whether the Supreme Court ruling upholding the right to contraception was correct, or whether the government is entitled to criminalize a same-sex relationship. Despite the applause from Republicans about the size of her family (seven children!), she refused to opine that it’s wrong to separate children from their parents at the border. She called climate change “controversial.” She evaded  many other inquiries, including what should have been considered “softball” questions: whether it’s OK to intimidate voters at the polls, and whether a president has the right to postpone an election.

When she held up that blank notepad she’d brought to the hearing, it was evident that the pristine paper was her reminder to abstain from sharing anything resembling content.

it is likely that Barrett will join Trump’s other regressive Court picks, and rubber-stamp state laws that violate rights we have come to view as American, endorsing a radical federalism allowing the rights of individuals to be defined by the states in which they live.

I’ve previously posted about the demographic shifts we’ve seen and the effects those shifts have had on equal treatment and “one person, one vote.” I’ve previously recommended Bill Bishop’s book The Big Sort, and its analysis of what he called “voting with our feet.” The likelihood of a radical return to “states’ rights” is likely to super-charge that residential apartheid.

States like Indiana already struggle to retain young people–especially educated young people. Red states like ours will rush to take advantage of their new imperviousness to federal constitutional constraints. They won’t just outlaw abortion (and in some states, access to birth control), they’ll expand gun rights, restrict access to health care and eviscerate their already paltry social safety nets. The Court has already declined to interfere with a variety of vote suppression tactics that favor the GOP–everything from gerrymandering, to ballot counting, to poll hours and locations.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until now–they have been forbidden to retract them.

The new approach to federalism–what one might call “federalism on steroids”–will upend that understanding of American citizenship. The extent of your rights will depend upon your state of residence. If the young people with whom I interact are any indication, that’s a situation that threatens to leave a number of red states with a dwindling and aging population.

America has already seen its population shift to urban areas. As the “creative class” (and those who want to employ them) described by Richard Florida increasingly cluster in vibrant municipalities, those urban locations become even more attractive.

Gay families aren’t going to locate in states that refuse to recognize their marriages or parental rights. Women aren’t going to choose locations that allow the government to dictate their most intimate decisions. Few families will want to live in states where gun owners are encouraged to bring firearms everywhere, including schools. (And don’t think this is hyperbole–here in Indiana, we have state representatives who work constantly to legislate that “freedom.’)

States offering universal healthcare (a la Massachusetts) will look awfully good to a lot of Americans.

I wonder: At what point do “states’ rights” and a commitment to expanded “local control” end up creating separate and not-so-equal  parts of what has been one country? At what point will fiscally healthy blue states decide to stop supporting “taker” red states?

When does federalism on steroids translate into secession?

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Let’s Talk About Originalism

Today, the Senate is scheduled to elevate Amy Coney Barrett–a rigid ideologue who has never tried a case– to the Supreme Court. During the fiasco that has substituted for her vetting, we’ve heard a lot about “originalism.”

A while back, a reader of this blog reminded me of Thomas Jefferson’s opinion on originalism, contained in a letter he wrote to Samuel Kercheval on July 12, 1816.  Jefferson wrote

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

The philosophy of “originalism” was popularized by Antonin Scalia, who tended to employ his version of it when he disapproved of those “changes in manners and opinions” and ignore it in the many cases where it was clearly unworkable.

As I have previously explained, there is a version of originalism that does work, that does keep the constitution from being simply what nine people in black robes say it is.

In that version of originalism, courts are required to protect the values and principles that the founders were clearly trying to protect. James Madison could never have anticipated new methods of communication–radio, movies, television, the internet–but he had very clear ideas about protecting expression against government censorship. He, Jefferson and several other Founders also clearly expressed their beliefs in the importance of separating government from religion. Courts today must honor the Founders’ devotion to those and other principles embedded in and protected by the Bill of Rights.

Fidelity to those principles is the only workable and intellectually honest form of originalism, and as Edwin Chereminsky recently pointed out in an editorial for the New York Times, it is definitely not the originalism of Amy Coney Barrett.

Chereminsky is a prominent legal scholar, and Dean of Berkeley’s law school, and he points to the numerous problems with Barrett’s purported “public” originalism–the notion that the constitution must be interpreted to mean what the public thought it meant when it was ratified.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

The Dean points out that rejection of Barrett’s understanding of originalism is anything but new. He quotes the 19th century Chief Justice, John Marshall, who wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Furthermore,

It is a myth to say that an “original public understanding” can be identified for most constitutional provisions because so many people were involved in drafting and ratifying them. In teaching constitutional law, I point to the many instances where James Madison and Alexander Hamilton disagreed about such fundamental questions as whether the president possesses any inherent powers.

Chereminsky makes a point I also make to my classes: how can “original public meaning” guide today’s courts in deciding whether the police can take DNA from a suspect to see if it matches evidence in unsolved crimes, or obtain stored cellular phone location information without a warrant?

The “public originalism” invented by Scalia and embraced by Barrett is an ahistorical cover intended to obscure and justify the judicial activism they profess to deplore–an intentionally dishonest construct allowing judges to favor the privileged and protect the status quo.

Placing Barrett on the Supreme Court dishonors both the Court and the Senators who vote to confirm her.

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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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