Category Archives: Constitution

I Guess It Can Happen Here–In Fact, It’s Beginning

The reports from Portland have been more than frightening.

Armed men in unmarked camouflage uniforms have been jumping out of unmarked vans and arresting–kidnapping might be a more accurate word–peaceful protesters.  Thus far, they have subsequently been letting them go, but only after a demonstration evidently intended to terrify and disorient.

Trump insists that he is sending “troops” to Portland to “help” local officials quell violence. Presumably, he is signaling to his cultish base that he’s a “strong leader”able to take on (nonexistent) violence in America’s cities, perpetrated by “those people”–and not so incidentally, distracting from the mounting death toll caused by his mismanagement of the Covid-19 pandemic.

There has been considerable blowback.

Local officials insist that they can handle any incidents arising from the protests–and note that the activities were subsiding until the appearance of these storm troopers. Portland’s mayor has demanded that he withdraw these forces, evidently part of Homeland Security. The Governor of Oregon has demanded that he withdraw them. The Oregon Attorney General and the ACLU have sued. 

The House Judiciary Committee issued a statement questioning the legal basis for this use of force.

Frankly, it is not at all clear that the Attorney General and the Acting Secretary are authorized to deploy federal law enforcement officers in this manner. The Attorney General of the United States does not have unfettered authority to direct thousands of federal law enforcement personnel to arrest and detain American citizens exercising their First Amendment rights. The Acting Secretary appears to be relying on an ill-conceived executive order meant to protect historic statues and monuments as justification for arresting American citizens in the dead of night. The Administration’s insistence on deploying these forces over the objections of state and local authorities suggest that these tactics have little to do with public safety, but more to do with political gamesmanship.

The blowback has even included self-identified moms, wearing yellow shirts, helmets and masks. Reportedly, several hundred women, calling themselves the Wall of Moms, formed chains between the officers and the protesters. 

This resistance–and the very negative press coverage–has evidently not deterred the administration. According to Huffington Post, 

The Trump administration is preparing to roll out a plan this week to send military-style federal assault squads already in Portland, Oregon, into other cities, warned White House chief of staff Mark Meadows, who only named locations with Democratic mayors.

Attorney General William Barr is “weighing in on that” with acting Homeland Security Secretary Chad Wolf, Meadows said Sunday on Fox News.

“You’ll see something rolled out this week, as we start to go in and make sure that the communities — whether it’s Chicago or Portland or Milwaukee or someplace across the heartland — we need to make sure their communities are safe,” he added.

All three cities named are run by Democrats.

President Donald Trump also indicated that federal squads would likely target cities run by the party that opposes him. He said on “Fox News Sunday” that “violence” was on the increase in “Democrat-run cities.”

Yesterday, there were reports of similar activities in Columbus, Ohio.

This is eerily reminiscent of Hitler’s SA.

The SA — Sturmabteilung, meaning ‘assault division’ — also known as the Brownshirts or Storm Troopers, was a violent paramilitary group attached to the Nazi Party in pre-World War Two Germany.the SA functioned as a ‘security’ force at Nazi rallies and meetings, using threats and outright violence to secure votes and overcome Hitler’s political enemies.

The Germans who objected were obviously unable to mount an effective resistance to the use of extra-legal thugs to subdue Hitler’s political enemies. 

 Americans have long believed “it can’t happen here.” We’re now testing that belief.

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The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

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Religion, Vouchers And The Court

I was sitting at my desk Wednesday when the news alert came across my screen. The New York Times was reporting on the most recent decisions being handed down the Supreme Court.

I will comment on the truly offensive decision in Little Sisters of the Poor tomorrow. Today, I want to address the decision allowing religious schools to discriminate in employment.

Here’s the lede:

The Supreme Court ruled on Wednesday that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches.

The vote was 7 to 2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The court has been active in considering the relationship between church and state, generally siding with religious groups. It has ruled in recent years that a state must let a church participate in a government aid program, that a war memorial in the shape of a cross could remain on public property and that town boards may start their meetings with sectarian prayers. Last week, it said state programs that provide scholarships to students in private schools may not exclude religious schools.

The new cases considered another aspect of the church-and-state divide — what role the government can play in regulating religious institutions.

I have my reservations about several of these cases–not to mention my suspicions about the religious and ideological perspectives of the more conservative Justices–but I actually don’t disagree with this one.

What I do disagree with–strongly–is those “state programs that provide scholarships to students in private schools.”

I have written before about voucher programs. Not only have I blogged about them, but I’ve written academic articles explaining the multiple reasons these programs were ill-conceived to begin with, and  pointing out that–in addition to the substantial harms they have caused– they have failed to deliver the benefits they promised (they now have been functioning long enough to permit assessment).

They are also a scam. 

How wasteful/counterproductive is our state’s largesse to private (mostly religious) schools? Let me count the ways: the promised improvement in student achievement did not materialize; badly-needed funds are being diverted from the public schools that most Hoosier children still attend; taxpayers are subsidizing discrimination (schools getting millions of dollars are discharging teachers and counselors for the “sin” of being in same-sex marriages); and there are no requirements that recipients of vouchers teach civics.

In addition to all that, lack of oversight has facilitated a massive rip-off of Hoosier taxpayers. Doug Masson wrote a scathing summary of that problem last year after Chalkbeat reported on fraudulently inflated enrollment numbers at Indiana’s then-virtual schools.

Doug also succinctly summed up the actual motives of voucher supporters. The real impetus for voucher programs wasn’t the purported one: to allow poor children to escape failing schools. It was–and remains–threefold: to weaken teacher’s unions, subsidize religious institutions, and redirect public education money to cronies.

Also, a reminder: vouchers do not improve educational outcomes. I get so worked up about this because the traditional public school is an important part of what ties a community together — part of what turns a collection of individuals into a community. And community feels a little tough to come by these days. We shouldn’t be actively eroding it.

In Indiana, far from excluding religious schools from the nation’s largest voucher program, well over 90% of the schools receiving vouchers paid for by our tax dollars are religious. Some of those schools allow religious dogma to influence what they teach– creationism rather than science, for example– and a number discriminate against teachers and students on the basis of their theologies.

So here’s where I agree with the Court: if your church or mosque or synagogue wants to ensure the “purity” of your doctrine, fine. The Free Exercise Clause–as I read it, and as the Court has now read it–says okay. You don’t have to hire or retain employees who violate your religious tenets.

But as I read the Establishment Clause, your religious institution doesn’t get to do those things with my tax dollars.

So the Catholic Archdiocese gets to exclude trans kids from Catholic schools, and fire excellent teachers and counselors for the “sin” of same-sex marriage. Fine–but not with my tax dollars.

The case that was wrongly decided was Zelman versus Simmons-Harris. In that intellectually dishonest 2002 ruling, the Court pretended that the tax dollars going to vouchers were really being paid to parents, who would then exercise “independent choice.” That has never been the case.

There is now a substantial body of research confirming that vouchers are bleeding resources from our public schools (without improving student performance), eroding civic identity, benefitting religions in violation of the Establishment Clause, and– as a bonus– crippling teacher’s unions.

I’m all for letting churches and religious schools practice what they preach. However, I am adamantly opposed to having taxpayers foot the bill.

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Guns And Protests

The pandemic, the economy and the Black Lives Matter Protests have dominated news coverage the past few months, joined by politics as the Presidential campaigns begin in earnest–but although long-simmering public policy debates have received less attention, that doesn’t mean those issues have gone away.

Which brings me to one of America’s longest, nastiest and most intractable standoffs: guns.

In January, Bartholomew County, Indiana’s gun rights activists asked that county’s commissioners to declare Bartholomew County a Second Amendment “sanctuary.” According to The Republic, the local newspaper, 

The group, called the Bartholomew County Indiana 2A United Sanctuary, has sent a draft of a proposed ordinance to the Bartholomew County commissioners, Bartholomew County Sheriff’s Department and Columbus Mayor Jim Lienhoop, said Chris Imel of Ladoga in Montgomery County. Imel is the group’s organizer and a former Bartholomew County deputy coroner, serving in 2017.

As of mid-afternoon Tuesday, the private social media group had 4,471 members on Facebook. Imel said he created the Facebook page a week ago.

The group believes the “sanctuary” is necessary to prevent the enforcement of certain gun control measures that–in their opinions– violate the Second Amendment.

The measures that they assert “violate the 2d Amendment” include emergency protection orders, enforcement of gun background checks, and Red Flag laws. (Indiana’s Red Flag law allows authorities to disarm people who pose a danger to themselves or others; such laws typically include due process provisions allowing gun owners to retrieve their weapons through the courts if they can demonstrate they are mentally competent.)

The Bartholomew County Indiana 2A United Sanctuary group claims the proposed ordinance would allow local officials to “refuse to cooperate with state and federal firearm laws” perceived to violate the Second Amendment to the U.S. Constitution, including any future proposed restrictions on clip capacity, silencers, bump stocks, bayonet mounts, among other items, according to the proposed ordinance.

In other words, the desired “Sanctuary” would direct law enforcement in the county to ignore pretty much any state law limiting firearms in any way. (It did make an exception for federal law.)

The Bartholomew gun group  is not, unfortunately, just an isolated group of rural Hoosiers who don’t understand how laws work. They have lots of company.

As of Jan. 7, more than 418 counties, cities and towns in 21 states have passed Second Amendment sanctuary ordinances, including locations in Illinois, Colorado, New Mexico, Washington and Virginia, according to Gun Owners of America, a gun-rights group.

On Friday night, Jennings County officials signed a resolution stating the county is now a Second Amendment sanctuary. There is no indication that the resolution signed in Jennings County was approved by any county or city councils or boards before it was signed by the sheriff and others, including Rep. Jim Lucas, R-Seymour.

If the sweep of this “Wild West” movement isn’t unsettling enough, the Brookings Institution recently issued a report titled “How Covid-19 is Changing the Gun Debate.

Starting in mid-April, anti-COVID-19 lockdown protestors stormed and shut down everything from statehouses to Subway restaurants with assault weapons and pipe wrenches. These protests are being framed around gun rights and free speech issues. Protests are allegedly about fully re-opening the economy following state-sanctioned shutdowns. Protestors appear to perceive that quarantine measures to keep them safe and reduce the spread of COVID-19 are violations of their civil liberties. In turn, they act out their frustrations through expressions of their 1st and 2nd Amendment rights. Anti-lockdown protests have now occurred in 31 states across the country and gun sales surged to nearly 2 million in March.

Not only have gun sales surged, but according to the report, they’ve surged in liberal states–despite the fact that the armed lockdown protestors are clearly Trump supporters. The researchers were unable to tell whether this data represents purchases by liberals (arming to protect themselves in the upcoming civil war?) or by conservatives living in liberal states (adding to their burgeoning armories?)

America is currently experiencing the simultaneous effects of the worst aspects of our cultural history: deeply-ingrained racism, an inadequate social safety net, a radical individualism that disdains even the slightest appeal to the common good, and the celebration of anti-intellectualism.

The racist and anti-intellectual elements gave us Trump–and his heavily-armed base.

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The Pandemic And The Constitution

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)

What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…

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