Category Archives: Constitution

The Right Kind Of Culture War

When we come across references to “culture war,” most of us–whatever our political orientation– immediately think of issues raised by the political right. (I tend to envision the fundamentalist Christian Right.) However we picture the culture warriors, the battles being fought are almost always focused on so-called “family values” (women’s reproductive autonomy, homosexuality, etc.) and a “law and order patriotism” that is performative and superficial–a stubborn “my country right or wrong” approach. Plus, of course, a generous dollop of racism/White Supremacy.

Jennifer Rubin deconstructs those issues in a recent column for the Washington Post.

Republican cultural memes are galling. The GOP has made a national issue out of something that does not exist: teaching critical race theory in public schools. Republicans claim to be on the side of the police and the military, but members of the MAGA cohort have regularly scorned Capitol and D.C. police officers who defended them on Jan. 6, smeared the military as “woke,” and even called the chairman of the Joint Chiefs of Staff, Gen. Mark A. Milley, a “pig” and “stupid.” Republicans claim to be “real” Americans but make traitors (e.g., Confederate generals, Ashli Babbitt) into martyrs.

But Rubin goes beyond a critique of these Rightwing tropes, arguing that a neglect to respond to Republican demagoguery and descent into anti-American authoritarianism equates to a failure to defend the ideal of multiracial democracy. She wants to see the rest of us move to reset and redefine America’s culture war.

Rubin wants Democrats, especially, to “flip the script”– to campaign on “democratic values,” and to point out that Republicans have become a party defending violent thugs and traitors.

Democrats defend the Constitution, which conservative “originalists” used to claim as their own, while Republicans support the man who sought to overturn the election (“just say the election was corrupt + leave the rest to me” he told the Justice Department, seeking pretext for his Jan. 6 gambit).

Her basic charge (which is accurate) is that Republicans who continue to echo Trump’s “big lie” or who voted not to certify election results, or who pretend that January 6th was not an insurrection, are  behaving in ways that are anti-American.

Whose side was my opponent on? Why wouldn’t he/she vote to investigate the worst domestic terrorist attack in decades? Republicans have never been shy about challenging Democrats’ patriotism, and here Democrats actually have grounds to call out Republicans for refusing to both defend the Constitution and respect the votes of their own constituents. Democrats should also challenge their opponents to pledge to accept election results even if they lose and denounce any threat of violence to overturn the will of voters.

In a paragraph that really resonated with me, Rubin also advocated for policies to shore up civic knowledge. She suggests the establishment of a “democracy corps” that would pay young people “to set up civics programs, teach media literacy, serve as poll workers and engage in other pro-democracy activities.” She urges Democrats running for state and local office to endorse mandates for civics instruction in grades K-12.  And she quite properly advises them to call out the racists and crackpots trying to get schoolteachers to stop teaching about the Ku Klux Klan and the Rev. Martin Luther King Jr.

The bottom line–as Rubin obviously recognizes–is the danger in allowing the Right to define the terms of America’s culture wars. There’s an old saying among lawyers to the effect that “he who frames the issue wins the debate.” Those of us who reject the Right’s stance on its issues do so because we understand their positions to be contrary to what this country and its constitution are all about–in a word, we find the misogyny, racism, homophobia and the rest to be profoundly anti-American.

Rubin is absolutely right when she argues that we need to do more than just reject that anti-Americanism. We need to wage our own culture war on behalf of the democratic norms and equal civic status required by the  Americanism we embrace.

Those of us who recognize and accept the American Idea need to enlist–it’s a war worth fighting.

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The Real “Red Scare”

I’m old enough to remember when the “Red Scare” referred to American concerns over the influence of Communism and the power of the USSR.

Today,  I would submit that the term is once again useful, but because it addresses a very different source of threat: red states and the lunatics who’ve been elected by their voters. Here in very red Indiana, for example, we have our Attorney General, Todd Rokita, who recently launched an investigation of Valparaiso University and  the Confucius Institute for…no kidding…promoting Communist propaganda.

Now, I know that there is a spirited debate about Rokita among the people who follow our local politics. His “defenders” attribute his anti-constitutional forays into culture war to his obvious and overweening ambition, rather than mental illness. They see his bizarre positions as strategies intended to play to the increasingly loony GOP base while keeping his name in the news. (He’s already booked himself on Newsmax to discuss his “investigation,” an outlet likely to be more supportive than others  that have covered this clown show, although In his frantic desire for any attention, Rokita, like Trump, apparently doesn’t care if coverage is positive or negative as long as they spell his name right.)

The attorney general’s office declined to tell IndyStar what specific evidence it has supporting the insinuation that Beijing is attempting to brainwash Hoosiers through the Valparaiso University-Confucius Institute relationship, which partially relies on funds from the Chinese government. “We are not able to comment on the specifics of an ongoing investigation,” a spokesperson said.

“The societal and political cost of the Chinese Communist Party infiltrating our universities and K-12 education institutes to indoctrinate our students is incalculable,” the spokesperson said, when asked how much this investigation will cost taxpayers in Indiana. “Comparatively, the cost of our investigation is minimal, but will depend upon the details of the investigation.

Yeah, comparatively…

Some 100 American colleges host Confucius Institutes; IUPUI (where I taught) has had one for several years, although given its lack of prominence on campus, most students have probably never heard of it. It’s one of a wide range of campus organizations intended to introduce students to a diverse set of global cultures. Valparaiso University’s Confucius Institute was founded in 2008 and its website says it “aims at helping Northwest Indiana citizens learn about China and its people and culture and study the Chinese language, and promoting cultural, particularly music, exchange between the US and China.”

But what if Rokita’s paranoia–or pandering– was actually based in fact? What if these Institutes actually were “promoting” a communist philosophy? (Obviously, in Indiana they aren’t doing that very well.) The First Amendment to the U.S. Constitution would protect that activity–something you would like to believe an Attorney General would know. After all, Rokita went to law school and somehow graduated; he also took an oath of office requiring him to pledge allegiance to the U.S. Constitution, which you would like to assume he’d read.

If the government actually had the authority to seek and destroy “propaganda,” sometime in the future a Democrat holding office could launch a similar “investigation” of Fox News or Newsmax…Even a non-lawyer can see the problem.

So why, exactly, is our embarrassing buffoon of an A.G. wasting the resources of his office on an “investigation” of propaganda that he couldn’t shut down even if it existed somewhere other than in his fevered imagination? Here’s a clue: Toward the end of the linked story, it notes that Rokita has also been referring to COVID as the “Chinese virus.”

In order to appeal to the current GOP base, you must whip up fear. Fear of “the other.” Fear of “uppity women” getting control of their own bodies. Fear of scary Black people and that evil Critical Race Theory. Fear of (an undefined) “socialism.” Fear of those Chinese “commies.”

At the end of the day, it really doesn’t matter whether Rokita is as loony as he seems (a la Marjorie Taylor Greene et al), or just pursuing what he considers to be a savvy strategy of appealing to uninformed and loony voters. He’s a prime example of everything that’s wrong with contemporary American politics.

He is “the Red Scare.”

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Majority Rule

Majority rule in our democratic republic is more complicated than we like to think.

For one thing, our particular form of government carves out matters that are specifically insulated from what the Founders called the “passions of the majority”–the individual liberties enumerated and “reserved to the people” by various provisions of the Bill of Rights. For another, in those areas where majority opinion is supposed to count, our mechanism for determining what a majority of citizens really wants  is the vote–and not every citizen entitled to cast a vote does so. (The differences between what popular majorities want and what gets enacted can often be seen by comparing polling and survey research with legislation passed by victorious candidates.)

And don’t get me started on the Electoral College.

Then there’s the distortion regularly provided by media–very much including Twitter and Facebook, etc. We too often assume that the loudest and most persistent voices reflect the opinion of majorities–and that is not a well-founded assumption.

Take, for example, the issue of vaccine mandates.

A recent report by the Brookings Institution’s William Galston suggests that requiring vaccination is a lot more popular than we might imagine if we only listened to the hysterical purveyors of misinformation and conspiracy theories. (Recently, those vaccine deniers were accurately–if intemperately–labeled “assholes” by the Mayor of West Lafayette, Indiana. I don’t know him, but I’m pretty sure I’d really like him.)

Galston did a deep dive into the data. Not surprisingly, he found that unvaccinated Americans were less concerned about COVID than those who’d had the sense to get vaccinated.

In the face of massive evidence to the contrary, more than half of unvaccinated adults regard getting vaccinated as a bigger risk to their health than is getting infected with the coronavirus. Only one in five of the unvaccinated say that the spread of the delta variant has made them more likely to get vaccinated. These data do not support hopes that the recent outbreak will suffice to increase vaccination rates enough to bring the pandemic under control.

The data also reflects surprisingly robust support for vaccine mandates.

Since the beginning in March 2020, government’s response to the pandemic has occasioned intense controversy, much of it along partisan lines. Although the level of conflict remains high, recent events have solidified public support for the most intrusive policy government can undertake—mandatory vaccinations. According to a survey conducted by the Covid States Project, 64% of Americans now support mandatory vaccinations for everyone, and 70% support them as a requirement for boarding airplanes. More than 6 in 10 say that vaccinations should be required for K-12 students returning for in-school instruction as well as for college students attending classes at their institutions. And the most recent Economist/YouGov survey found that more than 60% support mandatory vaccinations for frontline workers—prison guards, police officers, teachers, medical providers, and the military—and for members of Congress as well…

“Solid majorities of every racial and ethnic group support vaccine mandates, as do Americans at all levels of age, income, and education.

The data also supports the growing recognition by sane Americans that the GOP has  devolved into a cult of anti-science, anti-evidence, crazy folks: Only 45% of Republicans support vaccine mandates, compared to 84% of Democrats.

When I sent my children to school, I was required–mandated– to provide evidence that they’d been vaccinated, and thus did not threaten the health and safety of the other children with whom they would be taught. When I was young myself, Americans lined up with gratitude to receive the polio vaccine that would allow them to avoid the alternatives–death, or imprisonment in iron lungs.

When providing for “the General Welfare” requires rules–mandates– a majority of us understand that such mandates not only do not infringe our liberties, but actually give us more liberty–allowing us to go about our daily lives without the danger of infection (or the need to wear a mask).

Vaccine mandates are supported by medical science, by law, by morality, and by a majority of Americans. We periodically need to remind ourselves that “loudest” doesn’t equate to “most”–and that a fair number of the hysterical people shouting about “personal freedom” can’t define it and don’t want their neighbors to have it.

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Oh Texas…

In the years before 2016, when I needed an  example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are proper defendants to a lawsuit. (What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.

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The Fourteenth Amendment

Can you all stand another diatribe about our misunderstood Constitution and its history?

Yale Constitutional scholar Akhil Reed Amar has repeatedly made an important–and largely unrecognized–point about the 14th Amendment. That Amendment, which we now consider part of the Bill of Rights, actually revised–or as he says,”reconstructed”–the original Constitution and Bill of Rights.

When I was teaching, I became acutely aware of how few students understood the impact of the 13th, 14th and 15th Amendments. Few came to class knowing, for example, that prior to the passage of the 14th Amendment (and the subsequent Supreme Court cases applying its terms) the provisions of the Bill of Rights had restrained only the federal government. (State governments could–and did–“establish” religions, for example. Massachusetts didn’t “de-establish” religion until 1833.)

Jonathan Bingham, a Republican (how times have changed!)and “one of America’s forgotten second Founders” who sponsored the 14th Amendment, constantly pointed to the Supreme Court ruling that first eight amendments did not “extend to the states.” In his book The Bill of Rights, Amar quotes Bingham saying “These eight articles I have shown never were limitations upon the power of the states until made so by the 14th Amendment.”

Heather Cox Richardson recently provided historical context for the passage of the 14th Amendment.

In 1865, the Thirteenth Amendment to the Constitution had prohibited slavery on the basis of race, but it did not prevent the establishment of a system in which Black Americans continued to be unequal. Backed by President Andrew Johnson, who had taken over the presidency after an actor had murdered President Abraham Lincoln, white southern Democrats had done their best to push their Black neighbors back into subservience. So long as southern states had abolished enslavement, repudiated Confederate debts, and nullified the ordinances of secession, Johnson was happy to readmit them to full standing in the Union, still led by the very men who had organized the Confederacy and made war on the United States.

Northern Republican lawmakers refused. There was no way they were going to rebuild southern society on the same blueprint as existed before the Civil War, especially since the upcoming 1870 census would count Black Americans as whole persons for the first time in the nation’s history, giving southern states more power in Congress and the Electoral College after the war than they had had before it. Having just fought a war to destroy the South’s ideology, they were not going to let it regrow in peacetime.

Richardson reminds us that, despite passage of the 13th Amendment, emancipated Black Americans in southern states could not vote, testify in court or sit on a jury.

In part, the Fourteenth Amendment was a response to the Dred Scott decision, which had declared that Black men “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens.” The Fourteenth Amendment rejected that ruling, with specific language stating that  “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

But the Amendment did more than clarify that Black people were citizens.

The amendment also addressed the Dred Scott decision in another profound way. In 1857, southerners and Democrats who were adamantly opposed to federal power controlled the Supreme Court. They backed states’ rights. So the Dred Scott decision did more than read Black Americans out of our history; it dramatically circumscribed Congress’s power.

This was the crux of the “states rights” argument. Under the pre-14th Amendment Constitution, “democracy” was defined by the state–or, as Richardson notes, by those people in a state who were allowed to vote. In other words, white men.

The Fourteenth Amendment gave the federal government the power to protect individuals from state legislative discrimination. It changed the locus of governmental authority in a number of ways, and as we are seeing–as red states send National Guard troops to the border, try to limit federal vaccine efforts, sue repeatedly to overturn the Affordable Care Act, and engage in numerous efforts to circumscribe the ability of the federal government to guarantee equal rights–  that change is still being resisted.

For far too many politicians and jurists, respect for “originalism” is very selective. It stops with ratification of the “original” Constitution in 1788–and ignores everything that has come after, no matter how profoundly what came after altered, limited and/or enlarged what had come before.

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