Category Archives: Constitution

Beating That Dead Horse

I’m still mulling over that screenshot I referenced a few days ago–the one from the pro-Trump website showing the names and pictures of four people identified as Democratic Senators who were switching to the GOP in protest of the President’s Impeachment.

As you’ll recall, none of them were real Senators–or, probably, real people.

Whoever created that website clearly operated on the assumption that visitors would be  partisans so civically-ignorant that the phony names and stock photos wouldn’t trigger doubts or send them to a fact-checking site.

It was probably a well-founded assumption.

We occupy a fragmented media environment that increasingly caters to confirmation bias.  As I’ve frequently noted, Americans no longer listen to the same three network news shows and read the same daily newspapers; the ensuing intense competition for eyes, ears and clicks has spawned a treacherous information terrain.

A post at The World’s Most Dangerous Beauty Salon, Inc. is enough to curl your hair. (Sorry–couldn’t resist.) It even has graphs showing how Right-wing hoaxes and Trump’s tweeted lies proliferate.

Yesterday I talked about how Trumpists flocked to their latest article of faith that Trump isn’t really impeached because the House hasn’t transmitted the articles of impeachment to the Senate.  There is no basis in law or fact for that belief, but it’s there anyway, virally spreading throughout Trumpland.

Another profoundly stupid message that has evidently convinced those who want to believe: now that Trump is impeached, he’s automatically eligible to run 2 more times.

With rampant propaganda proliferated over social media facts or truth no longer matter.  Worse, Trump’s Twitter account amplifies these lies.  Every time he tweets one of his insults, childish taunts, threats, or lies,  it goes out to millions or users, retweeted thousands of times.  In the hands of an immoral politician like Trump, social media is weaponized for the dark side.  You can see it, but can also measure it.

The above-referenced graphs of Google trend lines show searches for these “facts.”

When I first practiced law, an older lawyer in my firm told me that there is really only one legal question, and that’s “what should we do?” That maxim applies more broadly; it absolutely applies to the absence of what has come to be called “news literacy.”

Every so often, one of my more naïve students asks why the government can’t just pass a law requiring media outlets to tell the truth. As I try to explain, truth and fact are often honestly contested—and of course, there’s the First Amendment. But we aren’t powerless just because government is prohibited from censoring us.

There’s no reason the private sector cannot develop tools to help citizens determine who they can reasonably rely on—and who they can’t. (The current criticism of Facebook for allowing campaigns to post dishonest political ads is based upon that company’s legal and technical ability to eliminate them.)

What if a nonpartisan, respected nonprofit—say the Society for Professional Journalists—developed an analog to the “Good Housekeeping Seal of Approval,” attesting to the legitimacy of a media source? The award of that seal wouldn’t indicate the truth or falsity of any particular article, but would confirm that the organization was one that adhered to the procedures required of ethical, reputable journalists.

It would take substantial funding, of course, to develop and maintain the capacity to monitor the practices and procedures of media outlets claiming to be “news.” And that “seal of approval” wouldn’t mean that any given report wasn’t flawed in some way—genuine reporters are human and make mistakes. But it would allow citizens who actually care about accuracy and evidence-based reporting to be reassured about the journalistic bona fides of sources they encounter.

Those bona fides are important, because in the new information world we all must navigate, each of us is our own “gatekeeper.” The days when editors and reporters decided what constituted verifiable news are long gone.

And that brings me back to the screen shot shared by my friend.

I know I’m beating a dead horse, but propaganda flourishes when only 26% of adults can name the three branches of government, fewer than half of 12th graders can define federalism and only 35% of teenagers know that “We the People” are the first three words of the Constitution. When politicians make claims that are blatantly inconsistent with America’s history and form of government, widespread civic ignorance virtually guarantees the uncritical acceptance of those claims by partisans who desperately want to believe them.

Adequate civic knowledge can’t guarantee that visitors to a website will know fake Senators when they see them–but it’s an essential first step.

Comments

When Should The Majority Rule?

In the wake of Boris Johnson’s victory in the election in the UK, a distinguished scholar of comparative constitutionalism posted a lengthy analysis to a listserv in which I participate. Much of that analysis is technical and of interest mainly to other academics, but I was struck by her opening observation:

Calling the Johnson victory a landslide assumes that the results of nationwide first-past-the-post constituency elections adequately capture public sentiment. Yes, Johnson got an overwhelming majority of seats but he didn’t win even a simple majority of the vote. In fact, it turns out that the Tories were up a mere 1.2% in vote totals over their disastrous 2017 election results – in which they lost their parliamentary majority and had to enter a confidence-and-supply agreement with the DUP. Labour is now being called down and out with the worst election results (measured in seats) since the 1930s because they were 7.8% down from 2017. Compared with the 2015 election, they were only 2% down, hardly the stuff of grand tragedy…

The UK first-past-the-post electoral system is fiendishly sensitive to small vote shifts which can produce seismic effects depending on how they are distributed across constituencies.

Sound like another electoral system with which you’re familiar?

Politicians and pundits will continue their ongoing arguments for and against the Electoral College, and the British are evidently embroiled in similar discussions about the operation of their system, but there is an underlying issue with which we very rarely engage: what sorts of social and legal arrangements ought to be decided by popular majorities, and what sorts ought to be protected from the passions of those same majorities?

Defenders of the Electoral College point to the Founders’ well-documented concerns about those “passions of the majority,” and to their initial reluctance to remit even the choice of Senators to popular vote. Opponents point to evidence that the Electoral College was a concession to Southern states– they would have been severely disadvantaged in a system where the popular vote prevailed, because their slaves wouldn’t count.

Whatever side of that argument you find most persuasive, the question remains: in the 21st Century, which decisions should be made by popular vote, and which should not?

A fair reading of the Founders’ basic approach–buttressed by political philosophers from the Enlightenment to modern times–suggests that they favored some form of majority rule for issues of governance, and protection from the “passions of the majority” for issues of human and/or individual rights.

If we look at the Constitution, we see that laws are to be made by representatives of the people (the reason we call ourselves a representative democracy). Although it is certainly true that those representatives were supposed to vote for legislation based upon their presumed knowledge and personal beliefs, if those votes proved to be inconsistent with the desires of their constituents, the constituents could vote them out. (It’s also worth noting that legislation was supposed to be passed by a simple majority vote of those legislators–something that seems quaint in an era where overuse of the filibuster means we need super-majorities in the Senate to pass pretty much anything.)

If we look at the Bill of Rights, we see a very different standard. Because the Founders believed in “natural rights”–that is, they believed that humans (okay, white male humans) are born with certain “unalienable rights”–they protected the exercise of those rights against the sentiments of popular majorities.

When you think about it, it’s a striking dichotomy.

It is supposed to take a majority of American voters (or states) to choose the people who will run our government. It is supposed to take a majority of lawmakers to pass legislation. But individual citizens are supposed to be protected against the disapproval of those same popular majorities when they are exercising their fundamental rights.

We can–and do–argue about how to define “fundamental rights” and how to ensure that vote totals accurately reflect majority sentiment. But I think it is fair to say that when electoral systems operate to privilege minority parties and candidates over those preferred by majorities, those systems are neither democratically nor constitutionally legitimate.

Comments

Saving The Courts

Yesterday’s post focused on the unending stream of ideologues being elevated to the federal bench under Trump.

Assuming–as even the least optimistic among us must–that massive turnout in  2020 rids us of this ignorant, corrupt and malevolent administration and enough of its feckless enablers to change control of the Senate, how might a new administration rescue the federal courts from the partisanship that is tarnishing both their operations and reputations?

My graduate students have some suggestions.

In the take-home final examination I gave my graduate Law and Public Policy class, the following question was one of three from which they could choose to submit a concluding essay:

Over the past several years, the federal courts, and especially the Supreme Court, have come to be viewed by both political parties as political prizes. Rather than choosing nominees with sterling legal credentials, appointments to the courts have increasingly been based upon the nominee’s perceived political ideology. You have been elected President, and your party controls both houses of Congress. You want to return the courts to their status as respected impartial arbiters of the law. What changes would you make to the composition of the courts, the nomination process or otherwise in order to accomplish this?

I was surprised by the number of students who chose this question, and impressed by the thoughtfulness with which they approached it.

A number advocated Increasing the number of Supreme Court Justices, noting that their number is not mandated by the Constitution and has been changed previously. Most suggested a panel somewhere between 12 and 20.

Another popular proposal was the creation of a nonpartisan advisory committee composed of legal scholars, sitting judges and representatives of the ABA, who would be charged with coming up with–and thoroughly vetting– a slate of candidates from which the President would choose his nominee.Some students suggested analogous processes for the lower courts.

In recognition of the fact that people live far longer these days, several suggested limiting the terms of Supreme Court Justices–making their tenures long enough to remove the threat of political pressure that prompted the Founders to prescribe lifetime terms, but short enough to ensure more frequent turnover.

One student supported implementation of the “Supreme Court Lottery”  advocated by legal scholars Epps and Sitaraman. Under this proposal, “each judge on the federal courts of appeals would also be appointed as an Associate Justice of the Supreme Court.  When cases are heard, an appropriate number of these judges would be chosen at random to sit on the Supreme Court panel.”

Several students noted the need for a process to increase what one called “demographic accountability”–a judiciary that more closely reflects the composition of the population, and suggested ways this might be accomplished.

All in all, the number of students who chose to answer this question and the various suggestions contained in those responses suggests the existence of widespread agreement on at least two things: 1) the courts are in danger of losing legitimacy (perhaps it would be more accurate to say “in danger of continuing to lose legitimacy–a loss that really began to gather steam with the decision in Bush v. Gore) and 2) partisanship and extreme partisan polarization are to blame.

My students are not lawyers. I teach in a school of public affairs, not a law school, so some of the suggested “reforms” were impractical or otherwise fanciful. But the students in my graduate class tend to be older, employed, with families, and they are generally thoughtful and civically-engaged. During the semester, virtually all of them demonstrated deep concerns with the dysfunction, chosen ignorance, and theatrics that have replaced  working governance.

Of course, if the people who didn’t bother to vote in 2016 stay home again in 2020– if the electorate does not come out en masse to evict the criminals, buffoons and fellow-travelers who are running roughshod over America’s ideals and Constitution–  suggestions for reforms will continue to be beside the point.

Comments

Another Stomach-Turning Appointment

While we are all transfixed by the Impeachment process, and by Republicans’ bizarre antics during the House Intelligence and Judiciary Committee proceedings, their Senate counterparts have been busy defiling the federal bench and giving a middle finger to the rule of law by confirming judicial nominees who are demonstrably unfit.

Ed Brayton recently reported on the confirmation of one such specimen: a creationist named Lawrence Van Dyke. Van Dyke is yet another Trump nominee rated “unfit” by the American Bar Association–ratings to which the Administration has responded by discontinuing the practice of asking the ABA for its evaluation of potential nominees.

When you don’t get the answers you want, just stop asking the questions…

In addition to being considered unfit by his legal peers, however, Van Dyke is apparently a real piece of work:

After conducting 60 interviews, the ABA found that VanDyke has a reputation as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” Video of VanDyke lecturing, scolding, and interrupting judges during oral argument while serving as Nevada solicitor general lends credence to that assessment…

VanDyke has a long record as an anti-LGBTQ activist. He wrote in 2004 that marriage equality “will hurt families, and consequentially children and society.” As the solicitor general of Montana, he advocated for the state to join two briefs alleging that legal recognition of same-sex relationships would harm children. The first claimed that prohibiting same-sex marriage promoted “optimal childrearing” because same-sex couples “cannot provide” the optimal “family structure.” And the second asserted that states “may rationally conclude” that “it is better” for parents to have a “biological” connection to their children…

How would you like to be an LGBTQ litigant whose claim was being adjudicated by this gem? As Brayton writes,

Only Trump would have even considered appointing this ignorant dolt to the federal bench. And since the Senate Republicans would confirm a ham sandwich if Trump nominated one, we’re now stuck with this mushhead for a lifetime.

A regular reader of this blog recently sent me an email asking whether Bill Barr could be impeached. As I told her, he could be–and he should be. But so long as Mitch McConnell is in charge of the Senate, he won’t be.

The New York Bar Association recently issued a statement to the effect that, if Barr refuses to recuse himself from the Ukraine investigation, he should resign or, failing that, “be subject to sanctions, including possible removal, by Congress.” It is certainly foreseeable that other bar associations, responding to inappropriate behavior by one of Trump’s questionable judicial appointments, might also call on Congress to issue sanctions– although doing so would raise a very real possibility of judicial retaliation against lawyers with suits pending in that courtroom.

More to the point, calling out judicial misbehavior is useless if the Senate remains in the hands of the same no-integrity Republicans who confirmed these specimens in the first place.

As important as it is to defeat Donald Trump in November, it is every bit as important–actually, it is even more important–to remove Mitch McConnell (aka the most evil man in America) and the Republican majority that has enabled him.

Comments

Bigotry And The Campus

My university–albeit not my campus–recently made the Washington Post, among other national publications, thanks to a longtime business-school professor’s racist, sexist and homophobic posts to social media.

According to colleagues on the Bloomington campus, Eric Rasmusen has voiced these opinions–which he characterizes as “conservative” and “Christian”–for several years.   What apparently triggered the current attention to them was his recent retweet of an article suggesting that women are destroying academia. The ensuing publicity has led to a lively argument over the University’s response, which has been to condemn his opinions in the strongest possible terms while respecting his First Amendment right to express them on his own site.

The current kerfuffle illustrates–among other things– the dishonesty of most conservative criticisms of higher education, especially the charge that conservative faculty members aren’t treated fairly.

More telling, however, is Professor Rasmusen’s clumsy effort to distance himself from the clear implications of his own social media history.

Rasmusen, who has taught at the school since 1992, told the Indiana Daily Student on Wednesday that he only shared a quote he “thought was interesting and worth keeping note of.” He told the student publication that the backlash was surprising, adding, “It seems strange to me because I didn’t say anything myself — I just quoted something.”

In a Thursday interview with Kelly Reinke, Rasmusen said he should be able to quote from an article without agreeing with it in its entirety; he deflected questions that asked him point-blank whether he agreed with the piece.

Since then, Rasmusen has continued to update a personal page “for links concerning the 2019 kerfuffle in which the Woke crowd discovered my Twitter tweets, retweets, and suchlike and got very excited, and my Dean and Provost immediately overreacted.”

If the Professor’s history of racist, sexist and homophobic posts reflects his considered philosophy, why does he seem so reluctant to own that philosophy? (I’ve noticed that a number of individuals who spout truly offensive racist rhetoric nevertheless object to being labeled racist. But that’s an observation for another day…)

The university’s response, in my view, was exactly right. It’s an approach that respects both the First Amendment and the right of students to have their classroom performance fairly and equally evaluated.

Indiana University Provost Lauren Robel did not mince words in a statement to the Kelley School community Wednesday, asserting that Rasmusen had used his social media accounts to push bigoted views for several years. Robel said Rasmusen had previously used slurs to describe women, who he has said do not belong in the workplace and academia. He has similar feelings about gay men, Robel said, because “he believes they are promiscuous and unable to avoid abusing students.”

Robel also said Rasmusen thinks black students are unqualified for attendance at elite institutions and are academically inferior to their white counterparts….

“Ordinarily, I would not dignify these bigoted statements with repetition, but we need to confront what we are actually dealing with in Professor Rasmusen’s posts,” Robel wrote. “His expressed views are stunningly ignorant, more consistent with someone who lived in the 18th century than the 21st.”

She indicated that school officials have been flooded with demands for Rasmusen to be fired in recent days, a request she said the university could not — and would not — adhere to because “the First Amendment of the United States Constitution forbids us to do so.” But, she said, Rasmusen would be in violation of the law and school policy if he acted upon his discriminatory views while grading or making tenure decisions. The school would investigate and address those allegations if they were raised, she added.

The university will ensure that students worried about being treated fairly in Rasmusin’s classes–an understandable concern, given the persistence with which he has voiced his views over the years– have alternative courses available to them, and administrators are requiring him to use a double-blind system for grading so he won’t know whose papers he is evaluating.

Are faculty members who espouse Rasmusin’s particular brand of conservatism rare on elite American campuses? Of course. His views are blatantly inconsistent with academic competence. They are inconsistent as well with the legitimate conservatism that does have a place in academic discourse.

Defending bigotry by calling it “conservatism” is an insult to genuine conservatives. Unfortunately, there’s a lot of that going around…

Comments