Category Archives: Constitution

Facing Up To The Challenge?

As protests continue and the “President” (note quotation marks) continues to unravel, I am seeing some hopeful signs of a national awakening. I’ve previously noted that–in contrast to the 60s–there is enormous diversity in the crowds that have taken to the streets demanding justice, and fortunately, most of the media is highlighting that diversity.

Media (with the predictable exception of Fox) is also taking care to note that much of the chaos and looting is attributable to the efforts of white nationalist “race war” agitators and opportunistic hoodlums, not the protestors. They are also covering the backlash against Trump’s clumsy, militarized crackdown on peaceful protestors in order to clear the path for his ludicrous (and arguably sacrilegious) “photo op.”

Particularly gratifying are the signs of a welcome–if belated–pushback by the military.

A retired colleague of mine sent me a copy of the letter issued by Mark Milley, Chair of the Joint Chiefs of Staff (a letter which Milley copied to what appears to be the entire military establishment). The letter began by reminding recipients that every member of the military takes an oath to protect the Constitution and the values embedded within it–values that include the belief that all people are born free and equal and entitled to “respect and dignity.” He also referenced respect for the First Amendment’s Free Speech and Assembly clauses.

Milley’s letter came at approximately the same time that General Mattis–finally!–spoke out:

“When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution,” Mattis said in a statement published in The Atlantic.

“Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens —much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.”

As these military men pointedly noted, their allegiance is to the Constitution–and by implication, not to the wannabe dictator occupying the Oval Office.

As reassuring as these reactions have been, I’m pinning my hopes for meaningful change on signs that unprecedented numbers of white Americans are ready to confront the realities of America’s social structures–ready to genuinely consider the longstanding effects of systemic racism and the dramatically-different realities experienced by white and black Americans.

A former student of mine has a once-in-a-while blog; I was struck by his most recent post, just a few days ago. He began by saying that, as “a privileged white male, I have been struggling with what I can add to the critical dialog on race during these turbulent times.”

He went on to take issue with the statement  that there is “only one race, the human race.”

While a beautiful sentiment, and a biological fact, for a white person to say that “there is only one race” discounts—in most settings—the lived experience of black and brown folk and shuts down any authentic conversation on race.  As one of my favorite writers on the subject, Dr. Robin DiAngelo explains in her lecture Deconstructing White Privilege,

“To say that we are all the same denies we have fundamentally different experiences. While race at the biological level is not real, race as a social construct based on superficial features is very real with significant consequences in people’s lives. The insistence that “we are all one” does not allow us to engage in that social reality.”

The entire post is worth reading, especially for his observation– only now beginning to be widely understood–  that racism is not (just) a moral problem; it is “a system of unequal social, cultural, and institutional power.” As he writes, so long as racism is seen as an individual moral failing, the structures and institutions designed to maintain white supremacy will remain in place.

About those structures…

It’s absolutely true that, as many defenders of the status quo like to say, laws can’t change what is in people’s hearts. What that facile truism fails to recognize is that laws do change behaviors, and that, over time, changing behaviors changes hearts.

Consider the effects of Loving v. Virginia, the case that struck down laws against miscegenation. One big difference between now and the 60s has been the increase in interracial marriages. Those unions haven’t simply allowed people who love each other to wed; they’ve educated–and changed– extended families, co-workers and friendship circles. 

The fire this time isn’t a repeat of the 60s. This time, more minds are open. This time, we can do better.

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Protecting The Privileged

The composition of the U.S. Supreme Court is a key area of dispute between Republicans and Democrats. I share the concern, but for rather different reasons than most of the people vocally involved in this debate.

It’s clear that Trump’s cult will sacrifice fundamental fairness and a competent (or even barely functional) federal government in return for reversal of Roe v. Wade.  I have increasingly come to file that possibility under “be careful what you wish for”–not only would abortion still be available in blue (and probably purple) states, but the backlash would be profound; it’s hard to think of any other ruling that would activate more more opponents of the fundamentalist cult that is today’s GOP.

My concerns with the Supreme Court are grounded in its less obvious and more dangerous retreat from the civil liberties jurisprudence of the Warren Court. The current Court’s most predictable bias can be seen a steady stream of decisions favoring the rich and powerful over the poor and disenfranchised.

A recent book by Adam Cohen–Supreme Inequality— is one of the emerging discussions of that bias. An article in Time Magazine by Cohen outlined the book’s central thesis–the conservative Court’s  “deep and abiding sympathy” for the rich. That sympathy is a hugely consequential change from the 1960s, when the Warren Court protected the rights of the poor–from welfare recipients’ right to due process to poor defendants’ right to appointed counsel in criminal cases.

As Cohen documents, however, for the past 50 years, “the Court’s sympathies have been the reverse: on one legal doctrine after another, it has expanded the rights of wealthy individuals and corporations.”

After the Warren Court, Nixon was able to appoint conservatives who shaped the Court we have today. Cohen provides striking examples of the consequences.

One of the first groups the new conservative Court came to the rescue of was rich children, or at least children in wealthy school districts. There was a growing consensus among lower federal courts, state courts, and law professors that the Equal Protection Clause required states to equalize spending between rich and poor school districts. In 1973, however, the Court, by a 5-4 vote, declared that Texas, and other states, had the right to spend more money on children in rich districts than children in poor ones.

As a result of that decision, today there are gaping disparities in school spending nationwide. An analysis of funding in Pennsylvania a few years ago found that one wealthy district spent more than three times as much as the state’s lowest-spending district. In the aggregate, these disparities mean that children from wealthy families across the country begin life with greater educational opportunities, and a better chance at success later on.

Other decisions that elevate the interests of the privileged over others include Citizens United and its forerunners–rulings that gave rich people and corporate “people (!)” a disproportionate voice in American politics.

Cohen isn’t the only person to notice. This week, James Dannenberg resigned from the Supreme Court Bar in a letter to Chief Justice John Roberts that has been widely published. Dannenberg has been a member of that bar since 1972. His letter compares the current Supreme Court, with its solicitude for the rights of the wealthy, privileged and  comfortable, to the widely-reviled Lochner court of the early 20th century that favored big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.

Dannenberg pulled no punches.

You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

When a respected member of the Supreme Court bar questions the Court’s commitment to the rule of law, it’s an ominous sign.

The question is, as always, what should we do?

We should certainly think very seriously about the recommendation by legal scholars that the number of Justices be increased–a recommendation that long preceded the current administration.

And most obviously, we need to vote blue up and down the ticket, to ensure that people who will be elevated to the court in the future are “throwbacks” to the Warren Court, rather than pro-plutocrat right-wingers.

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A New Normal?

Given the daily headlines highlighting the incompetence and corruption of the Trump Administration, an assertion that America will not and cannot “go back” to a normal Presidency isn’t exactly welcome.

But that was the premise of an essay in Politico Magazine  a couple of weeks ago.

President Donald Trump has spent three years incinerating a group of practices commonly lumped together under the nebulous category of “norms and traditions,” causing the chattering class to worry that he’ll “destroy the presidency,” “undermine American democracy,” “erode” our institutions with each break with precedent or decorum. There are also those, including presidential candidate Joe Biden, who insist that things can go back to normal when Trump is gone. Either in January 2021 or January 2025, these optimists hope, America will experience a restoration of these timeless customs.

Here’s the problem: Many of these “presidential norms and traditions” that Trump has left by the wayside aren’t timeless at all; they’re actually quite new. They grew up alongside and in reaction to the expansion of both the federal state and the presidency—a process that began in the early 20th century but gained steam from the 1930s onward. With the growth of what Arthur Schlesinger Jr. called the “imperial presidency,” each occupant of the Oval Office has left his imprimatur on the development of what we think of as normative presidential conduct.

In other words, these norms emerged as a response to America’s changing needs.

Noting that America has changed dramatically over the 200+ years of its existence, and that  those changes require corresponding adjustments in governance is the sort of otherwise obvious observation that gives self-styled “originalists” fits. They like to believe that “living constitutionalism” is just judge-made law, unmoored from constitutional foundations. In reality, living constitutionalism is the rational application of “original intent,” because it requires safeguarding the original values that animated our Constitution and Bill of Rights in situations that the Founders could never have anticipated.

Our challenge is to decide which of the numerous norms being trashed by Trump are needed to protect those foundational values, and thus must be restored.

The article points out that many of the behaviors we think of as long-established– congressional oversight mechanisms and restrictions on FBI and CIA political activity, for example–are relatively new, prompted by the criminal abuses of the Nixon Administration.

All of which is to say, the idea of independent agencies staffed by nonpartisan career public servants, free of political interference, is a very recent development. Once unraveled, it is not certain to be reassembled.

New, however, is not the same thing as unimportant.

The takeaway is not that certain traditions lack value. On the contrary, it’s pretty reasonable to expect that presidents not misdirect law enforcement and civilian officials to do their political bidding, that presidents be transparent with the media, and that courts remain free of political influence. The point, rather, is that these norms were not timeless features of our system. They emerged over 50 or so years in response to excesses that accompanied the growth of the federal state and in response to a popular sense that citizens required greater visibility into, and accountability from, federal officeholders whose purview grew enormously in the modern era.

As I read through the article, I was anticipating some sort of prescription for how we might re-institute the norms that have clearly proved their importance. I didn’t get it. The article ended by noting that “broken eggs can’t be mended.”

Perhaps we can’t fix broken eggs, but we can–and must–fix America’s federal government.

Once Trump is gone–and I fervently hope that departure occurs sooner rather than later–we need to take a step back and decide what rules, systems, and cultural expectations are essential to advancing–and perhaps finally beginning to live up to– American values and ideals.

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An Important Test For The Court

In the three-plus years that Donald Trump has occupied the Oval Office–I deliberately didn’t say “has been President” because in any rational sense, he has not fulfilled that function–longstanding norms of American governance have been turned upside down.

Nowhere have the deviations from expectations been more worrisome than in the courts.

For years, legal scholars have debated whether this or that issue should be settled through litigation or by electoral politics. But I am aware of no credible argument that the courts should be divested of their independence and turned into supine tools of the executive branch.

Our idiot President recently called upon Supreme Court justices who disagree with him to recuse themselves–displaying not only his trademark contempt for constitutional checks and balances, but his embarrassing ignorance of American constitutionalism. That contempt and ignorance would not ordinarily be worthy of note–every day, the insane tweets and verbal diarrhea bear ample witness to both–except for a case that is making its way to the Supreme Court.

A recent article by Nancy LeTourneau at Washington Monthly pointed to the disquieting reason for Trump’s unprecedented assault on the Supremes. She begins her analysis by pointing to a truly telling statistic:

Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.

As she notes, the Trump administration’s response to these failures has been to appeal directly to the Supreme Court–to ask the Court  to expedite emergency relief from the injunctions of the lower courts. Le Tourneau quotes one legal scholar to the effect that Trump has gone to the Supreme Court with such a request 24 times in less than three years– compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined.

Trump has no understanding of the legitimacy concerns raised by such petitions, of course. He actually believes that any criticism of him or his administration should be grounds for recusal, criticism and vilification. And he has other concerns as well.

The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.

In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration.  Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.

All of these issues have prompted Trump’s defensive and unPresidential behavior. But even more significant is a case  that could require him to release his tax returns.

From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.

Here, then, is a critical test of the Court’s independence. Will Trump’s appointees behave like the grateful tools he clearly believes they are? Will they demonstrate allegiance to Trump, or to the Constitution?

The answer to that question will tell us whether we retain a system based–however insecurely–on the rule of law.

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Scalia Was Right

Well, that’s a headline I never thought I’d write!

Not that I always disagreed with Antonin Scalia; he was pretty good on free speech, for example. But overall, I found his jurisprudence intellectually dishonest, and his “originalism” disingenuous–especially because he was smart enough to know it.

What makes the headline particularly ironic, is the fact that my initial reaction to the decision he authored in Employment Division v. Smith was that it was wrong. It was certainly widely criticized.

In that case, members of a Native American Church, who were counselors at a private drug rehabilitation clinic, were fired because they had used peyote–possession of which was a crime under Oregon law– as part of a religious ceremony.  The counselors filed a claim for unemployment compensation with the state, but the claim was denied because their dismissal was deemed work-related “misconduct.” The Oregon Courts of Appeals reversed, finding the denial an infringement of their religious liberty, and the Oregon Supreme Court agreed. The state then appealed to the Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime.

Scalia ruled that the denial of unemployment benefits was proper because the law against peyote use was a “law of general application.” That is, it hadn’t been passed as an effort to target Native American religious practices, but as part of a legislative effort to combat drug abuse generally. The fact that a law of general application inadvertently hindered a religious practice might be unfortunate, but that didn’t make its enforcement unconstitutional.

Because the law’s application in this case so obviously–and in the opinion of most people, unnecessarily– punished a longstanding religious ritual, the decision generated considerable outrage, and if memory serves, prompted passage of the Religious Freedom Restoration Act, requiring the Courts to apply a more rigorous judicial standard in such cases. (This was not the infamous Indiana version.)

On reflection, however, I came to the conclusion that Scalia was right.

Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry? To take an obvious extreme, we have laws against murdering babies; should the ritual sacrifice of her newborn in accordance with a sincere religious belief exempt the parent from punishment?

If not, when should religious belief trump civil law?

We are once again having this debate, as a result of the tension between laws intended to ensure civic equality and religious dogmas that label certain others “sinners.”

The Washington Post recently reported on one such conflict.

The Supreme Court on Monday added a major case to its docket this fall to decide who prevails when a group’s religious beliefs conflict with a city’s attempt to eliminate discrimination.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from same-sex couples who want to take care of children. The case will be heard in the term that begins in October.

The Third District Court of Appeals ruled for the city, holding that it was not targeting the Catholic agency in enforcing its policy prohibiting the city from doing business with entities that discriminate.

The case is being seen as a major test of whether the Court will reconsider precedents, especially the precedent established in Employment Division v. Smith, to the effect that generally applicable laws that don’t intentionally target religious groups are constitutionally enforceable.

It will be interesting to see the reaction of those politicians and pundits who continue to laud Scalia for his convoluted opinions privileging religion as “tradition.”

But then, for all those who counted themselves Scalia fans, it was all and always about results–not consistency.

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