Category Archives: Constitution

Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.

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Polluting The Judiciary

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.” In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.

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Us Versus Them: Shithole Edition

When reports of Donald Trump’s “shithole countries” remark hit the media, various  outlets  reported “gasps of disbelief” by Congressional Republicans.

Give me a break. Anyone who is genuinely surprised to discover that Trump is a racist is too stupid to tie his own shoes.

David Leonhardt ticked off  the evidence in his column yesterday for the New York Times:

• Trump’s real-estate company was sued twice by the federal government in the 1970s for discouraging the renting of apartments to African-Americans and preferring white tenants, such as “Jews and executives.”

• In 1989, Trump took out ads in New York newspapers urging the death penalty for five black and Latino teenagers accused of raping a white woman in Central Park; he continued to argue that they were guilty as late as October 2016, more than 10 years after DNA evidence had exonerated them.

• He spent years claiming that the nation’s first black president was born not in the United States but in Africa, an outright lie that Trump still has not acknowledged as such.

• He began his 2016 presidential campaign by disparaging Mexican immigrants as criminals and “rapists.”

• He has retweeted white nationalists without apology.

• He frequently criticizes prominent African-Americans for being unpatriotic, ungrateful and disrespectful.

• He called some of those who marched alongside white supremacists in Charlottesville last August “very fine people.”

• He is quick to highlight crimes committed by dark-skinned people, sometimes exaggerating or lying about it (such as a claim about growing crime from “radical Islamic terror” in Britain). He is very slow to decry hate crimes committed against dark-skinned people (such as the murder of an Indian man in Kansas last year).

Although pundits have previously noted Trump’s racist, barely-veiled “dog whistles” to white nationalists, they have been far more reluctant to say out loud what political scientists (and most sentient beings) have concluded from data about the 2016 electorate: a solid majority of Trump voters were motivated by racial animus.  Racism “trumped” (excuse the pun) recognition of Trump’s ignorance, grandiosity and utter unfitness for office; for those voters, identity politics–aka white nationalism with a side of misogyny– won the day.

Which brings me to the unpleasant but unavoidable subject of “us versus them.”

Scholars who study the history of human interaction tell us that tribalism is hard-wired into the human psyche. There are evolutionary reasons for that, and the consequences aren’t all negative by any means. Our attachments to our families, our “clans” and our countries can promote solidarity, sacrifice and reciprocity.

The problem is the way far too many Americans define “us.”

I know I get tiresome with my constant harping on the need for improved civic literacy and constitutional knowledge, but the reason I believe it is so important that Americans understand our history and philosophy and constituent documents is because allegiance to America’s foundational values is what makes people Americans. It is what creates an overarching “us” out of an assortment of diverse and otherwise unconnected “thems.”

Republicans used to understand that. It was Ronald Reagan who said

You can go to Japan to live, but you cannot become Japanese. You can go to France to live and not become a Frenchman. You can go to live in Germany or Turkey, and you won’t become a German or a Turk.’ But anybody from any corner of the world can come to America to live and become an American.

Donald Trump explicitly appeals to people who don’t understand that, people who have a very narrow definition of “us”– people who define their own identities by the color of their skin, their sexual orientation or religion. They are incapable of seeing people who don’t look just like the image they see in their imaginary mirrors as members of their tribe, as part of “us.”

Fear and ignorance keep them from understanding who “we” really are.

The good news is that we don’t have to fight our hard-wired impulse to see the world in terms of “us” and “them.” We just have to work toward a better, more accurate, more capacious definition of “us” — a definition that includes all Americans, no matter what color, religion, sexuality, gender or other “tribe.”

One we get that right, we can work on defining “us” as humanity….

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Constitutional Wisdom From Abroad

Jonathan Freedland is a columnist for the British Guardian. He recently attended the London opening of Hamilton, an event that prompted him to reflect upon his prior enthusiasm for America’s Constitution.  As he says, the musical’s idealism “struck a chord.”

In 2018, it will be 20 years since I published a book called Bring Home the Revolution. Begun when I was still in my 20s, it too was an essay in idealism, arguing that the American uprising of 1776 and the constitution that followed in 1787 were a rebellion against a system of government under which we Britons still laboured two centuries later – albeit with an overmighty, overcentralised government in place of the bewigged King George.

The American revolution, I argued, was our inheritance, a part of our patrimony mislaid across the Atlantic. From a written constitution to a system of radically devolved power to the replacement of monarchy with an elected head of state, it was time for us to bring home the revolution that we had made in America.

As Freedland tells it, his homage to our written constitution and its checks and balances came just before a series of somewhat embarrassing U.S. upheavals: the Clinton impeachment, ” hideous, only-in-America” mass shootings, and similar dysfunctions culminating in the election of Donald Trump, who–despite getting fewer votes–defeated “an infinitely more qualified opponent.”

Initially, Freedland says, he responded to these unsettling reminders of our lack of social perfection by reminding himself that he was admiring a founding ideal, not our nation’s flawed reality. But little by little, he has come to recognize some inadequacies in that founding ideal.

It’s time for me to admit my doubts about its core idea – its admiration for the US constitution and system of government. For this first year of the Donald Trump presidency has exposed two flaws in the model that I cannot brush aside so easily.

The first is that Trump has vividly demonstrated that much of what keeps a democracy intact is not enshrined in the written letter of a constitution, but resides instead in customs and conventions – norms – that are essential to civic wellbeing. Trump trampled all over those as a candidate – refusing to disclose his tax returns, for example – and has trampled over even more as president.

Freedland enumerates some of the norms Trump has ignored: refusal to divest himself of his business interests, appointing unqualified family members to high government posts (although, really–how would this unbelievably ignorant and incompetent man even recognize other people’s lack of qualifications?), firing James Comey. Etc. Then he returns to the institutional point:

But this year of Trump has also shown the extent to which the US has an unwritten constitution that – just like ours – relies on the self-restraint of the key political players, a self-restraint usually insisted upon by a free press. Yet when confronted with a leader unbound by any sense of shame – and shamelessness might just be Trump’s defining quality – America is left unexpectedly vulnerable.

Impeachment, of course, is a remedy, but as Freedland (and every other sentient observer) recognizes, nothing will happen so long as Republicans control both houses of Congress.

In 2017 we saw with new clarity that the strength of the US constitution depends entirely on the willingness of those charged with enforcing it to do their duty. And today’s Republicans refuse to fulfil that obligation. They, like Trump, are without shame. This was a fatal oversight by Hamilton, James Madison and their fellow framers of the constitution. They did not reckon on a partisanship so intense it would blind elected representatives to the national interest – so that they would, repeatedly, put party ahead of country. The founders did not conceive of a force like today’s Republican party, willing to indulge a president nakedly hostile to ideals Americans once held sacred.

Ironically, if someone like Trump emerged in England, it would be easier to get rid of him; a parliamentary vote of no confidence is, as Freedland concedes, a lower hurdle than impeachment.

As perceptive as this essay is–and I encourage readers to click through and read it in its entirety–we are inescapably products of our own legal system, a system dependent upon adherence to our own democratic norms. (During the Constitutional debate over the addition of a Bill of Rights, Hamilton was among those making the point that written laws cannot address every possible way in which government can go off the rails.) Standards of behavior, expectations of decorum and propriety, and measures of competence are ultimately cultural artifacts, their breach punished by public opprobrium.

In November, we will see the extent to which America’s “unwritten Constitution” and democratic norms still hold.

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Idiocy In Indiana

Sorry for cluttering up your inboxes, but blame the headline and story in the Indianapolis Star. 

Clearly, It isn’t only Washington that is suffering from a surfeit of buffoons.

I ‘m old enough to remember when Harrison Ullmann, then editor of Indianapolis’ alternative newspaper Nuvo, routinely called the Indiana General Assembly “the World’s Worst Legislature.”

And that was before Milo Smith was elected to embarrass Bartholomew County.

Smith, as you may recall, was the legislator who refused to allow the House Elections Committee to even hold a vote on a redistricting bill, killing last session’s effort to reform gerrymandering–and not so incidentally, protecting his own safe seat.

Smith has also been in the forefront of efforts to pass anti-LGBTQ legislation–despite the fact that his own son is gay. There is something truly despicable about a parent actively trying to make his own child a second-class citizen.

Smith’s disdain for bedrock American values like civic equality and liberty have once again come to the fore: he has announced his intent to file a bill that would force the owners of the Indianapolis Colts to refund the admission fee of fans “offended” by players “taking a knee.”

What was it that Forrest Gump always said? “Stupid is as stupid does”?

One of my former students texted me to ask whether this idiotic proposal wouldn’t also be unconstitutional–after all, government would be forcing the team’s owner to infringe players’ rights or lose money. The answer is yes. (My students are required to encounter the Constitution; clearly, Indiana elected officials are not.)

It’s bad enough that this proposal spits on the First Amendment’s protection of every American’s right to protest–to express a political opinion without incurring government’s sanction. Even worse, Smith wants government to penalize the private-sector team owners if they fail to carry his unconstitutional water.

Perhaps he’d like to fine other businesses when their employees took public positions with which others disagreed?

Next November, I’m fervently hoping for a “wave”– voter turnout massive enough to wash away the ignorant and self-important occupants of seats gerrymandered to be “safe.” Milo Smith and his ilk need to be removed from the Indiana Statehouse, and despite the best efforts of those engaged in partisan redistricting, high turnout will turn them out.

Wouldn’t it be nice to have Representatives with at least a nodding acquaintance with the U.S. Constitution and with our most foundational American values?

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