Category Archives: Constitution

The GOP Ditches Property Rights

For those of us who used to belong to a very, VERY different Republican Party, the most bewildering–and infuriating–feature of the cult that has replaced it is its blatant hypocrisy. A political party that used to favor free trade, fiscal prudence, individual liberty and property rights has cheerfully abandoned its devotion to those–or for that matter, any– principled approaches to civil liberties.

Granted, rational folks in both parties understood that your liberties aren’t absolute, and that concern for the public good–public health, national security and other social requirements– will necessarily constrain your ability to do whatever you want whenever you want. But once upon a time, the arguments between serious folks tended to be about specifics: when is it legitimate for government to limit certain liberties?

Thanks to the devolution of the Republican Party, virtually all of its once-sacrosanct principles have become disposable.

Free trade? When Donald Trump decided to impose tariffs–long considered unthinkable by the Grand Old Party–the cult jettisoned its prior beliefs and embraced them.

Fiscal prudence? These days, fiscal responsibility–not necessarily balancing the budget (the preference of a fringe unwilling to understand why such a constraint could be dangerous) but a commitment to imposing taxes to pay for government programs is long gone. The party that recoiled from Democrats’ perceived willingness to “tax and spend” became the party opposed to any and all taxes, especially on those most able to pay them. If the government really has to “do stuff,” today’s GOP favors”borrow and spend”–put it on the national credit card and let the next generation pay for it.

Individual liberty? That principle has been rewritten too. Now, it’s highly selective. Republicans are all for your “liberty” to act in ways with which they agree. They believe you should have the “liberty” to ignore public health mandates and decide for yourself whether to wear a mask (i.e., the “liberty” to infect your neighbor), but they remain adamantly opposed to a woman’s liberty to control her own body. They support your liberty to communicate racist sentiments, but not your liberty to voice your disapproval of those sentiments–that’s “cancel culture.”

And of course, they support the liberty of anyone and everyone to “pack heat,” but oppose even the most reasonable constraints to protect public safety.

And what about property rights? The GOP long defended property rights, arguing (I believe properly) that the government that can confiscate your property poses a danger to other civil liberties. After all, if the government can infringe your property rights in retaliation for the exercise of  your right to freedom of speech or religion, how likely are you to exercise those rights?

Apparently, property rights are also old school. As an article from The Week put it, the GOP no longer believes a man’s cruise ship is his castle.

“Texas is open 100 percent,” Gov. Greg Abbott (R) said in a Twitter video Monday, “and we want to make sure you have the freedom to go where you want without limits.” To that end, Abbott said, he signed a law banning any business or government entity in the state from requiring documentation of a COVID-19 vaccination or recovery for entry (commonly called vaccine passports).

Abbott cast the legislation as a bold strike for freedom, but it’s nothing of the sort — not in the sense the American right has traditionally understood the term, anyway. Though it may be said to enhance consumer choice, it is a betrayal of private property rights, which have long been core to visions of small government in the United States.

The article quotes James Madison’s 1829 address, in which the father of our Constitution explained “that the rights of persons, and the rights of property are the objects for the protection of which Government was instituted. These rights cannot well be separated.”

Abbott begs to differ. Evidently, Texan business owners have no right to determine what happens on their property. Abbott isn’t the only Republican governor to  ignore property rights. Florida’s Ron DeSantis has banned vaccine passports, including those required by cruise ships departing from Florida.

Ironically, as the article notes, reliance on property rights allowed  the right to win many battles purportedly over religious liberty.

On questions like whether Catholic employers should be made to pay for employees’ birth control, whether conservative bakers should be forced to bake for a gay wedding, or whether Christian adoption agencies should be required to place children with same-sex couples, the right’s religious liberty position has long been buttressed by property rights: If you own the business, the argument goes, you should be able to make these calls as your conscience directs.

These days, however, only when your conscience points you in a GOP-approved direction.

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Constitutions And The Future

One of the academic listservs in which I used to participate was devoted to law and courts-both in the U.S. and internationally. Discussions contained a healthy dose of constitutionalism. I say I “participated,” but I mostly lurked–reading the commentary posted by notable scholars in the field, and learning a lot.

One fascinating exchange a year or so ago was triggered by discussion of a case brought by a group of  American children who claimed that government’s inadequate measures to combat climate change deprived them of their implied constitutional right to a livable environment. The case was thrown out by the liberal Ninth Circuit in January of 2020, and someone posted a question to the listserv, asking whether there were any constitutions around the world that would have been more protective of what the questioner termed “inter-generational equity.”

It turned out that more than 50 constitutions have such “inter-generational equity” clauses. Responses also linked to several “protection of the environment” clauses among the 166 currently-in-force constitutions that say something about that topic. 

As if to emphasize the salience of the issue, it was during the listserv discussion that the German Federal Constitutional Court decided a case in which it rejected the then-current plans of the German government to meet climate targets. The decision obligated the German government to rework its plans, and commence planned measures sooner, if not immediately, so as to avoid putting the burden of meeting environmental targets on future generations.

The press release of the Court (in English) is here.

As one scholar opined:

The decision invoked the duty to protect positive rights as part of the obligation to protect negative rights. Or, less abstractly, the decision argues that the only way to protect a negative right (the right to life, toward which the state has the obligation to refrain from interference) is to also protect positive rights (the right to health and the positive side of the right to life, both of which oblige the state to engage in affirmative protection). Other courts have understood the protection of positive rights as necessary for the protection of negative rights like this – particularly courts in the global south like India, Colombia and South Africa – but it has not been so common for global North courts to make this link. This is a huge leap for Germany.
The decision explicitly engages in the intertemporal assessment of rights protection. It weighs the burden on the liberty of people in the future when tough climate goals will kick in against the liberty of those in the present who give themselves a break by putting hard decisions off. And the Court finds that the current government assesses this balance wrongly by not leveling out the burden across generations. The Court therefore defends the intertemporal protection of liberty. Again, a first.

Lest you think that the German Federal Constitutional Court has taken a great leap off into judicial activism in defending against climate change, however, it’s important to note the language of the Basic Law with which they are working. Article 20A of the constitution says the following:

“Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”

In short, the German constitution explicitly requires the state to engage in intertemporal assessment (“mindful of future generations”) and also that the state has an affirmative duty to protect the “natural bases of life.” The Federal Constitutional Court was giving life, so to speak, to this provision and not inventing a right to environmental justice out of thin air. That said, the reasoning of the Court is nonetheless remarkable, especially if the two principles I mentioned above are going to become basic principles of interpretation with regard to other rights as well.

How would American constitutional interpretation change if our courts were required to take intergenerational justice into consideration?

Somehow, I find it hard to believe that our so-called “right to life” Justices would recognize such measures as a necessary consequence of their piously declared “reverence for life,” a reverence that apparently terminates at birth. 

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Democracy? Or Liberal Democracy?

Back in the Ice Age, when I was a high-school English teacher, I spent some time in my classes discussing the sometimes subtle differences between the definitions and connotations of words.

America’s political discussions would benefit from a similar focus.

What brought this to mind was a “guest essay” in the New York Times, discussing the importance of distinguishing between actual democracies and states that have edged–albeit through popular vote–into autocracy. Here is the crux of the essay:

In a report published in March, the Swedish research organization V Dem posits that “the level of democracy enjoyed by the average global citizen in 2020 is down to the levels last found around 1990.” In V Dem’s judgment, the elected autocracy — a political regime in which democracy is reduced to the unconstrained power of a majority — is today’s most common regime type. India, Turkey and Hungary are exemplars. These new authoritarians are very different from their Cold War-era relatives, which were often military regimes. They cross the borders between democracy and authoritarianism almost as frequently as smugglers cross state borders.

Many of today’s new non-democracies are in fact former democracies. And in many of these countries, citizens voted for authoritarian populists specifically in the hope of making democracy work for them. The government’s supporters in electoral autocracies like India and Hungary or electoral democracies like Poland, countries that organizations like V Dem and its American counterpart Freedom House countenance as democratic backsliders, will insist that they live in democracies. As of January, the percentage of Indians who trusted Prime Minister Narendra Modi was far higher than the number of Americans or Europeans who trusted their leaders. (To be fair, Mr. Modi’s popularity has taken a serious hit over the past month as Covid-19 has raged across India in large part because of what many describe as the starkest failure of governance since the country’s independence.)

There are a number of implications–and warnings– that might be drawn from this analysis, but what it triggered in my mind was definitional. When we use the term “democracy,” most of us think simply of majority rule. And as the described slide into autocracy illustrates, majorities can endorse very repressive measures and elect very unqualified and/or evil people.

A while back, I read a book by Fareed Zakaria (the title now escapes me) in which he drew a very important–even profound–distinction between “democracy” and “liberal democracy.” A system of flat-out majority rule can be every bit as tyrannical as a system empowering an emperor; what America has (if we can keep it) is majority rule constrained by the Bill of Rights, a liberal democracy which limits the sorts of government actions that a majority of our citizens can endorse.

These constraints–and the reasons for them–are widely misunderstood, but they protect our individual liberties.

The Bill of Rights puts certain matters beyond the regulatory power of the state. Your neighbors cannot vote to make you a Baptist or Unitarian, they cannot send government censors to your local library, and they cannot deny equal civil rights to populations they might wish to marginalize or oppress. In effect, the Bill of Rights is meant to limit the nature of decisions that government can make, even when a majority of citizens would like for government to impose those decisions on everyone.

The dictionary definition of “democracy” is “a system of government by the whole population or all the eligible members of a state, typically through elected representatives.” When most Americans hear “democracy,” however, the connotation is really “liberal democracy”–majority rule with constraints that safeguard individual freedom.

Unfortunately, that assumption elides a very important distinction between “pure” democracy and limited/liberal democracy, and that distinction matters. A lot.

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The Shadow Docket

When Senator Tim Scott gave the GOP’s rebuttal to President Biden’s address to Congress, one of his complaints was that the President hadn’t re-opened the nation’s schools. He evidently assumed that America’s widespread lack of civic knowledge would obscure the inconvenient fact that Presidents have no authority over public schools.

It’s called federalism, Senator. Look it up.

Speaking of civic knowledge, I have frequently cited a poll from a couple of years ago that found–among other, multiple deficits of civic knowledge–that only 26% of Americans could name the three branches of government. Although the survey didn’t ask the question, I’m reasonably certain that even fewer understand why the Founders opted for separation of powers–or why they wanted to insulate the judicial branch from the wrath of the electorate.

Both the legislative and executive branches are elected, and thus accountable to voters. (We’ll leave for another day’s discussion the gerrymandering and voter suppression tactics that have substantially eroded that accountability. We’re talking theory now.) The federal judiciary wasn’t just unelected, it was appointed subject to Senate confirmation–and once appointed, judges serve for a lifetime. The theory–the hope–was that judges would rule on the basis of their understanding of the Constitution, and would not need to worry about losing their job if that understanding was contrary to the desires of the public.

Right or wrong–and sometimes they would be wrong– those rulings would be based upon the judge’s honest and informed evaluation of the merits of the argument.

Thanks to politicians like Mitch McConnell, that ideal of dispassionate and informed rulings meted out by  judges insulated from partisan pressure has been breached, perhaps irreparably. The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system. (I’m not a fan of sports analogies, but I’ll suggest one: if an umpire is believed to be “in the pocket” of Team A, fans of Team B aren’t going to respect his calls.)

The ultimate “fix” for the current situation is unclear, but while lawyers, legal scholars and political figures squabble, we have increasing evidence that the current Supreme Court is ignoring precedent in favor of partisan ideology. A recent New York Times op-ed by a law professor from the University of Texas shone a light on the Court’s use of its little-understood “Shadow Docket.”

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

Reasonable minds will disagree on this new standard for free exercise claims. But a far more glaring problem with the court’s decision is that it wasn’t an appropriate moment to reach it.

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

The term “shadow docket” was coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed. Indeed, Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo. And the more substantive work that the justices carry out through such (usually) unsigned and unexplained orders, the more the “shadow docket” raises concerns about the transparency of the court’s decision making, if not the underlying legitimacy of its decisions.

In fact, the author tells us that this ruling was the seventh time since October that the justices have issued an emergency injunction — and that all of them have blocked Covid restrictions in blue states on religious exercise grounds.

If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.

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Testing The Current Court

The worst “hangover” from four years of Trump is undoubtedly the composition of the country’s federal courts–including but not limited to the Supreme Court. Granted, Trump–who wouldn’t know a legal principle if he fell over one–wouldn’t have known how to stuff the courts with rightwing ideologues; Mitch McConnell is the villain. But Trump enabled him.

In a recent column for the New York Times, Linda Greenhouse explained the troubling implications–and predictive value– of an upcoming Supreme Court case.

The case that the Supreme Court heard this week about a California law granting union organizers access to private farms has been described as a labor case, which it marginally is. It has also been described as a case about property rights, which it definitely is. But what makes Cedar Point Nursery v. Hassid one of the most important cases of the current term is the question it presents for the newly configured court: whether, after years of disappointment, the political right may finally be able to take the Supreme Court for granted.

The case is being brought by the Pacific Legal Foundation, and as Greenhouse reports, Pacific group is using Cedar Point–a company that grows strawberries– and another employer that packs and ships citrus fruit and grapes, as “stalking horses for its long-running project to elevate property rights.”

The case involved union access to agricultural workers. The California law being challenged had been passed during Cesar Chavez’s drive to organize the state’s farmworkers. It limited the ability of the union to approach workers in the field to periods before and after the working day and to three hours on 120 days of a year.

Greenhouse focused in on an illuminating–and to lawyers, startling–exchange between the lawyer and Justice Kavanaugh. Kavanaugh referred to a 1956 case that balanced employers’ property rights agains union organizing rights, and noted that–under that test–Pacific would “prevail”–it would win its case. The lawyer for Pacific “rejected out of hand” that potential path to victory.

Pacific isn’t interested in just winning its case. It wants to change the law.

The Pacific Legal Foundation doesn’t want a balancing test. It wants a categorical rule — referred to throughout the argument as a “per se rule” — that any entry by a union onto private land, if authorized by the state, is a “taking” of private property in violation of the Fifth Amendment’s Takings Clause (“nor shall private property by taken for public use, without just compensation”). Any entry at all.

So let me ask you this,” Justice Amy Coney Barrett said to Mr. Thompson. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied.

Barrett clerked for former Justice Scalia, who championed an expansion of the categories of government action that count as a “taking.”  The Fifth Amendment requires government to compensate property owners for takings, and there has long been an effort to turn regulations–especially environmental regulations–into compensable takings subject to that Amendment.

If you have a wetland on your property and regulations impede your ability to develop it, for example, the government would have to “compensate” you.

Until a 1992 case, Lucas v. South Carolina,  courts had defined takings as the physical occupation of private property, usually via eminent domain.

Government actions that didn’t “take” private property in the literal sense, but simply limited its use in certain ways, were regarded as “regulatory takings,” with the private and governmental interests being weighed against one another to determine whether compensation was required…

When a regulation “declares ‘off-limits’ all economically productive or beneficial uses of land,” Justice Scalia wrote for the court, “compensation must be paid to sustain it.”

Ever since, the Pacific Legal Foundation has argued for the adoption of what Scalia called a “categorical” taking.

That was the war that resumed at the Supreme Court this week, and that history explains why, from the Pacific Legal Foundation’s point of view, anything short of total victory is beside the point.

Greenhouse notes that whether the court buys Pacific’s theory will tell us a great deal about the success of McConnell’s effort to refashion the courts.

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