Category Archives: Constitution

Hamilton County And An Age-Old Story…

Back in 1995, when I was still at Indiana’s ACLU, I wrote a column about a “recurring fantasy” of mine, which I described as follows: a caveman discovers that he can produce drawings of the animals he hunts on the walls of his cave. Excited by the possibilities of his art, energized by the creative act, he produces a drawing–only to have it rubbed angrily off the cave wall by someone in his tribe who declares that the depiction of animal genitalia is indecent.

The first artist encounters the first censor, and a dynamic is born that is with us still!

Here in Indiana, there has been a takeover of the Hamilton County library board by some current descendants of my imagined angry tribesman. (Hamilton County is one of the “doughnut counties” surrounding Indianapolis, which occupies all of Marion County.)The new board immediately moved to “protect” children by requiring the library staff to review all of the books available to teenagers in the Young Adult section (at an estimated cost to the taxpayers of $300,000 ). Reports are that, out of the 1,859 physical books examined thus far, 1,385 have been moved from the Young Adult section to the Adult or General section.

One of the book moved was John Green’s best-selling “The Fault in Our Stars,” and Green sent–and publicized– an appropriately outraged message to the Board, triggering a national outcry, and a local petition to “Stop Censorship at Hamilton East Public Library.” (When I last looked, that petition had garnered some 3500 signatures.) As I write this, the turmoil has resulted in the (welcome) replacement of the library board’s president, a strong supporter of “protecting” children from reading  about things they can easily access on the internet and elsewhere.

The insistence that this exercise has been in furtherance of “parental rights” is equally ridiculous; a genuine concern for parental rights would respect the rights of all parents to determine what materials their children can access–not the right of some parents to determine what everyone else’s children can read.

No one said these people are smart. Just rabid.

I confess that I have never been able to understand the frantic need of so many of our fellow-citizens to control the habits and behaviors of the rest of us–habits and behaviors that do not affect them.

Nat Hentoff once wrote that the human animal’s urge to censor is stronger than its sex drive. In my days with the ACLU, I dealt regularly with folks who were absolutely convinced that they knew better than you and me what books we should read, what art we should see, and what musical lyrics the government should allow us to hear.

For those of us who believe that ideas matter, that literature and art are intensely important activities through which humans explore ideas, censorship poses a threat to our most important values. The government that can determine which ideas are worthy of consideration– and/or the age at which we should be allowed to consider them– is a government with power over the most important of all human functions–the power of the intellect.

In my long-ago fantasy, the caveman and his critic take their respective arguments to the leader of the cave clan. The censor insists that he and his friends find the drawing indecent, and argues that allowing smut in the cave will debauch the children and undermine the clan’s community standards. Another member argues the case for the artist: a society unwilling to consider all ideas will never leave the caves, will never reach the stars. A society willing to be ruled by the fears of the many will be deprived of the genius of the few.

In my dream, the leader considers the arguments and rules in favor of freedom of artistic expression. Civil liberties are born.

That, of course, was my fantasy. It remains to be seen whether civil liberties–not to mention common sense– will prevail in Hamilton County….Or, for that matter,  elsewhere in Indiana.

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A Cost/Benefit Analysis

Freedom of the press isn’t just implied in the First Amendment’s Free Speech clause, although that clause clearly extends to the media. According to historians, the country’s founders wanted to explicitly protect press information-gathering, because democratic processes depend on an informed electorate.

That understanding–that constitutional principle–is what makes a police raid on a Kansas newspaper so appalling. (When a reader first alerted me to this, I was certain there had to be more to the story–that the initial reports must have been wrong. I was the one who was wrong.)

As NPR has reported:

The small-town Kansas newspaper raided by police officers on Friday had been looking into allegations of misconduct against the local chief just months ago, according to the paper’s publisher, raising further concerns about the law enforcement officers’ motives.

The Marion, Kansas police department confiscated computers, cell phones and a range of other reporting materials from the office of the Marion County Record — the sole local paper in a small city of about 2,000 residents. Officers spent hours in the newsroom. It also seized material from one of its journalist’s homes. Eric Meyer, the publisher and co-owner of the newspaper, said his 98-year-old mother passed away the day after police raided her house, where Meyer was staying at the time. He said he believes the stress from the raid contributed to her death.

The background to the raid is particularly telling: the Record had conducted “routine background checks” just before police chief Gideon Cody took office. That “routine check” was evidently informed by anonymous tips the paper received after it ran a story about his candidacy for the police chief position.

Cody was sworn in as Chief in June, after retiring from the Kansas City Police Department in late April. Meyer was quoted as saying that “It was alarming, to say the least, the number of people who came forward, and some of the allegations they made were fairly serious. We were simply looking into the question.”

When a reporter asked Cody to comment on the allegations, Cody threatened to sue the paper, and the department stopped providing routine information to the newspaper. And then,

County magistrate judge Laura Viar signed a search warrant on Friday morning, authorizing the Marion police department to raid the Record. The warrant cites suspected “identity theft” of a local restaurant owner as the reason for the raid.

On Friday, just after the raid, the Record requested access to the probable cause affidavit — the document that would outline why the judge saw reason to authorize the raid — from the Marion County District Court.

But the court’s written response, reviewed by NPR, indicates that document may not exist.

There’s more, and it will undoubtedly all come out as other media outlets investigate the threat posed to press freedom by this episode. But what is especially troubling is that this bit of official thuggery comes at a time when local newspapers are disappearing. 

As an article in the Atlantic noted, local newspapers don’t just serve democracy–they also save tax dollars. The article cited a story in the Salt Lake Tribune, revealing that San Juan County, Utah, had paid a single law firm hundreds of thousands of dollars in lobbying fees. The story also reported that the firm had overcharged the county, the poorest in the state, by $109,500. Embarrassed, the firm paid the money back.

That one story retrieved for taxpayers a sum that was triple the reporter’s annual salary. As the author of the article noted, funding local news would more than pay for itself.

In addition to providing citizens with the information needed to make democracy work, in addition to the tax dollars saved when government is under the eye of media watchdogs, local newspaper reports feed community , especially in rural areas. A recent article from the Washington Post focused on that function.

At a time when hooligans have hijacked the national discourse with disinformation and paranoia, the Rappahannock News operates in a calmer place where the slow rhythms of rural life are newsworthy — and where, regardless of political views, its readers are unified by a powerful sense of community… 

Similar newspapers once bound together communities everywhere. A century ago, The Post, too, carried items on the humdrum comings and goings of local residents. Though the news became impersonal in big cities, community papers continued to be at the core of rural and small-town America.“

As a Local News Initiative official puts it, local news organizations are the glue that hold the community together. When there’s a void of local news, people revert to the blue and red echo chambers and national news sources that confirm their own belief sets, and it aggravates partisanship.”

That Kansas sheriff obviously doesn’t care.

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The Roberts Court

Linda Greenhouse is an astute observers of the U.S. Supreme Court, so when I see her byline on an article, I read it carefully. Last Sunday, she provided an 18-year overview of the Roberts Court,— providing readers with a chilling description of what Americans have lost since John Roberts assumed the position of Chief Justice.

Greenhouse noted that the just-completed term was in many respects the capstone of Roberts’ 18-year tenure. As she writes,

To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

When Roberts joined the Court, Greenhouse says there was a “robust conservative wish list.” She then enumerates the items on that wish list:  overturning Roe v. Wade, reinterpreting the Second Amendment in order to turn gun ownership into a constitutional right, the elimination of race-based affirmative action in university admissions, the elevation of religion within the legal landscape (Greenhouse doesn’t say it, but what was wanted was the elevation of Christianity–not just “religion”)–and a drastic reduction of federal agencies’ regulatory power.

Despite the fact that William Rehnquist, the prior Chief Justice, was a committed conservative, the Court had not accomplished a single one of those goals. Greenhouse describes the case decisions that had failed to accomplish that conservative wish list– establishing precedents that would seem to preclude their realization.

That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

t’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

Lawyers point out that the major questions doctrine was invented out of whole cloth; it is certainly nowhere to be found in the Constitution or prior case law. Greenhouse notes its utility to a rogue Court: “how to tell a major question from an ordinary one? No surprise there: The court itself will decide….it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.”

You really need to click through and read the entire essay, because Greenhouse does a masterful job of explaining the disingenuous reasoning that allowed the Court’s majority to impose its reactionary policy preferences while ignoring “settled” law.

The web designer case was among the most egregious:

The court has created a religious opt-out from compliance with laws that govern the commercial marketplace…. [Gorsuch’s] opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.

But none of those precedents are relevant, because none involved discrimination by a commercial entity.

The essay concludes that the Court “has become this country’s ultimate political prize…  from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.”

Absent a Blue wave in 2024, it will only get worse.

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Who Should Vote?

I have an old, ratty t-shirt that says “Corporations are not people.” It dates back to the (in)famous exchange between a heckler and Mitt Romney, in which Romney–then the Republican candidate for President–proclaimed that “Corporations are people, my friend.” Needless to say, that declaration didn’t win him many votes. After all, corporations don’t vote.

At least, not in most places. Yet.

A reader of this blog recently sent me a CBS News article about a Delaware town planning to extend the franchise to “corporate citizens.”

Seaford, a town of about 8,000 on the Nanticoke River, amended its charter in April to allow businesses — including LLCs, corporations, trusts or partnerships — the right to vote in local elections. The law would go into effect once both houses of Delaware’s state legislature approve it.

The proposal has rekindled a debate over how much power corporations should have in local government, with fierce opposition from civic interest groups who say businesses already wield too much influence over politics.

“It was very shocking to see this attempt to have artificial entities have voting rights,” said Claire Snyder-Hall, executive director of Common Cause Delaware, a watchdog group.

Delaware is probably the most “corporate-friendly” state in the U.S., with business laws so favorable to the corporate form that the state boasts more than 1.8 million entities registered there. According to the linked article, companies outnumber human residents by nearly two-to-one.

This effort would seem to be the flip side of the widespread efforts to suppress the votes of human citizens. Whatever the merits  of the proposal (admittedly, I’m at a loss to identify those), allowing artificial persons to cast ballots would dilute the votes of actual people. I assume that’s the goal–giving the ballot to corporations would certainly tilt the playing field further in the direction of the communities’ business interests.

In all fairness, when human voters fail to show up at the polls, they bear considerable responsibility for their subsequent loss of voice. What’s that phrase? Use it or lose it…

Legislators have cast the change as a fix for low turnout in municipal elections and a way to attract business owners to the community.

“These are folks that have fully invested in their community with their money, with their time, with their sweat. We want them to have a voice if they choose to take it,” Seaford mayor David Genshaw told local station WRDE. Genshaw cast the deciding vote in a split City Council decision on the charter amendment in April, according to The Lever.

According to Delaware Online, there are 234 entities, including LLCs, trusts and corporations, headquartered in Seaford — a significant number for a town where an April election only garnered 340 votes.

It appears that other Delaware towns already allow corporations to vote, with results that might have been predicted:

In 2019, it was revealed that a single property manager who controlled multiple LLCs voted 31 times in a Newark, Delaware, town referendum, an incident that led Newark to amend its rules. And residents in Rehoboth Beach in 2017 beat back a proposal to allow LLCs to vote.

Delaware has long been noted for being “corporation friendly,” but until I read this particular news item, I didn’t realize just how friendly. The state allows owners of LLCs to stay anonymous. It relieves businesses of the “burden” of paying corporate income taxes. And as every business lawyer knows, the vast majority of corporations headquartered in Delaware– including two-thirds of Fortune 500 companies– don’t have a physical presence there.

American laws do consider corporations “people” for certain very specific purposes–doing business in the corporate form encourages economic activity that benefits us all. If you start a business and it goes broke, your personal assets can be protected from the business’ creditors. Without that protection, many fewer businesses would be formed. And–giving Romney credit for what he evidently meant in that infamous exchange–corporations are indeed formed, managed and owned by real people.

But in a society where the economic gap between the haves and the have-nots is uncomfortably large and continuing to grow–a country where legal structures already favor those with money and status– giving the already-privileged an extra tool to cement and augment their already significant advantages doesn’t seem like a particularly good idea.

The preamble to the Constitution of the United States begins with “We the People.” I’m pretty sure the Founders didn’t intend that “people” reference to include corporations.

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The Court Plays ‘Let’s Pretend’

This rogue Supreme Court no longer shocks me; at this point, I’m numb with disbelief.

The day after overturning affirmative action for Black students (while leaving preferences benefitting Whites intact), the Court didn’t simply ignore decades of  precedent, it went even further afield, ignoring a constitutional rule against issuing “advisory opinions” in order to privilege a “sincere” religious belief.

Robert Hubbell addressed the constitutional principle:

Friday, the Court’s reactionary majority issued opinions in two cases that did not include a constitutional prerequisite to the Court’s jurisdiction—that the issue to be decided presents an actual “case or controversy.” That requirement is set forth plainly and simply in the Constitution. You can look it up.

Instead, the reactionary majority ignored the absence of jurisdiction and proceeded to issue decisions in fake controversies because they can. Looking for deeper meaning is pointless. The reactionary majority has reduced the rule of law to brute force in the service of religious nationalism.

In the days before the Court issued its opinion in 303 Creative, multiple media outlets had confirmed that the entire “case” was bogus. As Heather Cox Richardson explained, not only was the  online business non-existent, the “complaint” had been manufactured.

Smith claims she wants to start the business because “God is calling her ‘to explain His true story about marriage.’” She alleges that in 2016, a gay man approached her to make a website for his upcoming wedding, but yesterday, Melissa Gira Grant of The New Republic reported that, while the man allegedly behind the email does exist, he is an established designer himself (so why would he hire someone who was not?), is not gay, and married his wife 15 years ago. He says he never wrote to Smith, and the stamp on court filings shows she received it the day after she filed the suit.

The Guardian quoted him:

“I can confirm I did not contact 303 Creative about a website,” he said. “It’s fraudulent insomuch as someone is pretending to be me and looking to marry someone called Mike. That’s not me.

“What’s most concerning to me is that this is kind of like the one main piece of evidence that’s been part of this case for the last six-plus years and it’s false,” he added. “Nobody’s checked it. Anybody can pick up the phone, write an email, send a text, to verify whether that was correct information.”

So here we have a case that is entirely prospective, with a fact situation that is falsified–yet radical Justices were so eager to undermine government’s ability to protect marginalized populations from discrimination that they were willing to ignore a basic constitutional principle. As Hubbell correctly notes, the “decision authorizes American business owners to discriminate against LGBTQ people. Period. It is a first step, taken in bad faith and wrapped in lies.”

Richardson reminds us that segregation used to be defended as a deeply-held religious belief.

The widely criticized Court withheld issuance of its most indefensible decisions to the last, and the shameful and dishonest holding in 303 Creative was only one. The Court also ignored a clear lack of jurisdiction in the student loan forgiveness case. The actual party in interest—the corporation that serviced the student loan debt—had refused to file suit. Roberts ruled that the state of Missouri could assert the interests of a party not before the Court –a party that claimed no injury. 

The lack of jurisdiction wasn’t the only problem with that case: constitutional analyst Ian Millhiser wrote that the “decision in Biden v. Nebraska

is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as ‘major questions’ which has no basis in any law or any provision of the Constitution.”

The majority’s repeated dishonesty is simply stunning. Norman Ornstein said it best:

It is not just the rulings the Roberts Court is making,” he tweeted. “They created out of [w]hole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.

The arrogance is breathtaking.

Many Americans will undoubtedly cheer these wildly improper decisions because the results accord with their own policy preferences. That is very short-sighted; the Supreme Court was not created to be a super-legislature, and– as a colleague from my ACLU days used to warn– poison gas is a great weapon until the wind shifts.

Robert Hubbell is right: “The time for hand wringing and half-steps has passed. Real people have lost real liberties—starting with Dobbs and ending 303 Creative. If we do not stand up to protect them with every ounce of our will, we deserve what’s coming.”

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