Category Archives: Constitution

Legitimacy Cannot Be Stolen

Power can be stolen. Legitimacy must be earned.

I was reminded of the difference by a recent Huffington Post article by Geoffrey Stone. Stone is an eminent Constitutional scholar who teaches at the University of Chicago; I’ve used his texts on constitutional history and analysis both as a law student and more recently as a professor. As he writes,

Throughout my career, I have honored the fundamental role the Supreme Court plays in our system of government. There have, of course, been many Supreme Court decisions with which I’ve disagreed over the years, but I have always respected the essential legitimacy and integrity of the Supreme Court as an indispensable institution in our American democracy.

But now, for the first time in my career, I find myself hesitating. This is not a reflection on the judgment or integrity of any of the current or former justices. It is, rather, a reflection on what the Senate Republicans have done to the fundamental legitimacy of the Supreme Court in the future. By refusing to confirm President Barack Obama’s appointment of Chief Judge Merrick Garland to the Supreme Court, Senators Mitch McConnell, Charles Grassley, and their Republican cronies betrayed our constitutional traditions and undermined a central principle of American democracy. Although they maintained that their unconscionable behavior was “justified” by the fact that the vacancy arose during President Obama’s final year in office, this was a blatantly dishonest assertion. In fact, a long line of presidents have made appointments to the Supreme Court in the final year of their terms, including such historic figures as George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William Howard Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, and Ronald Reagan.

Those of us in the legal community–Republican and Democrat alike–have pointed to this unprecedented obstruction as additional evidence that American government is broken–that it has become deeply dysfunctional.  As Stone notes, this profoundly un-American behavior was based upon “rank partisanship”–the hope that a Republican President would appoint a judge more to their ideological liking.

In the great tradition of “be careful what you wish for,” however, the actions of these Senators will have had a very unfortunate effect: they will permanently  undermine the legitimacy of anyone who ultimately joins the Court.

Their unconscionable behavior will rightly cast severe doubt on the legitimacy of whatever individual President Trump appoints in place of Chief Judge Garland. Every vote that justice casts in the future will be called into question, because that justice will be sitting on the Supreme Court bench because of nothing less than a constitutional coup d’etat. Through no fault of his or her own, that justice will be seen as an interloper who should never have been appointed to the Court.

Stone reminds readers that the last effort to do a political “end run” around a Court was FDR’s “court packing” scheme, a response to the then-Court’s invalidation of progressive legislation intended to ease the Depression. Even though the Democratic base deeply disapproved of the Court’s rulings, however, Democratic Senators rejected Roosevelt’s plan.

Indeed, even Roosevelt’s Vice-President, John Nance Garner, publicly scorned the plan as unprincipled. In short, those Democrats – those principled public servants – understood that even a crisis like the Depression could not justify so craven a distortion of the traditional procedures and practices of government in order to achieve politically desired ends.

It’s hard to find fault with Stone’s concluding paragraph:

As a sign of the moral corruption that now plagues our nation, though, in this instance Senate Republicans, caring more about outcomes than principles, ruthlessly distorted the advice and consent process in order to attain partisan political ends. That this happened is nothing short of disgraceful. Let us not forget their shameful abuse of authority. And let us not forget that President Trump’s first appointment to the Supreme Court will in fact be an illegitimate interloper who has absolutely no business being the decisive vote in critical Supreme Court decisions in the years and decades to come. By this act, Senate Republicans have undermined the credibility and the legitimacy of an essential branch of our national government. Shame on them.

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“Repealing” Roe v. Wade

On 60 Minutes, Donald Trump evidently claimed that “repealing” Roe v. Wade would be a priority.

Among the many, many things our next President does not understand is how government actually works. He may be surprised to discover that Congress–even one dominated by GOP culture warriors–cannot “repeal” a Constitutional right.

That is not to say that Roe is safe, only that it will take several years and some fairly creative judicial legerdemain to completely reverse current case law.

Here is how it will play out.

Trump will have an immediate appointment to the Supreme Court, and may well have one or two others during a four-year term. He has pledged to appoint a social conservative, and that’s a pledge he’s likely to keep. Once a case implicating reproductive choice works its way up to the Supreme Court, that newly conservative Court will take the opportunity to further limit what previous Courts have confirmed: it is a woman’s constitutional right to control her own body. Perhaps the newly constituted Court will reverse Roe outright, perhaps not–but the effect will be the same.

Reversing Roe entirely would leave the legality of abortion up to the individual states. We would go back to the time–a time I vividly remember– when women who could afford to do so traveled to states where abortion was legal, and a significant number of the women who couldn’t afford to do that died in back-alley, illegal operations.

As my friends at Planned Parenthood like to point out, women didn’t begin getting abortions after Roe v. Wade. They just stopped dying from them. 

The only thing prochoice Americans can do to thwart this cynical and theocratic agenda is work tirelessly to prevent their state legislatures from passing new, restrictive measures that are intended to provide the Court with an opportunity to “revisit” the issue. (Here in Indiana, a State Representative has already announced his intention to submit a bill that would criminalize abortions and punish the women and doctors who participated in them. I’m sure theocrats in other states are equally eager to test the anticipated new boundaries.

Given the number of deep red states populated by religious fundamentalists, the odds of defeating all of these throwbacks aren’t good. So while Trump cannot “repeal” reproductive liberty, he can sure eliminate it.

I think the legal terminology is: we’re screwed.

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The Election Was, Actually, Rigged

Among the many ironies of the 2016 election was Trump’s insistence that if he were to lose (and evidently only then), it would be evidence that the election was rigged.

The truth, as numerous election officials pointed out, is that tampering with the vote at polling sites–the only sort of “rigging” Trump would understand– is virtually impossible. Vote suppression is far more common.

That said, the actual “rigging” of American elections is quite legal; in fact, it’s baked into the system. I’ve written extensively about some of the more egregious examples, especially gerrymandering. But partisan redistricting isn’t the only structural element frustrating expression of the popular will.

Almost lost in the coverage of the election’s stunning result was the fact that Hillary Clinton won the popular vote. She lost in the Electoral College, a structural throwback to a different time that has increasingly distorted national elections and failed to reflect the will of the voters as expressed at the ballot box. This is the second time in 16 years that a candidate has won the popular vote only to lose the Electoral College and the Presidency.

Many of the problems with the Electoral College are widely recognized: the outsized influence it gives swing states, the lack of an incentive to vote if you favor the minority party in a winner-take-all state dominated by the other party, and the over-representation of rural and less populated states.

Whatever the original merits of the Electoral College, it operates today to disadvantage urban voters in favor of rural ones. Hillary Clinton’s voters were women, minorities, and educated Whites, and they were disproportionately urban; Trump supporters were primarily less-educated White Christian males, and they were overwhelmingly rural.

In today’s America, cities are growing and rural areas declining. That decline undoubtedly feeds much of the anger and white nationalism displayed by Trump voters. One can be sympathetic to rural concerns without, however, giving the votes of rural inhabitants (already favored by gerrymandering) greater weight than the votes of urban Americans.

In Baker v. Carr, the Supreme Court famously upheld the principle of “one person, one vote.” The operation of the Electoral College violates that fundamental democratic tenet.

The cost of living is higher in cities, and most of us who choose urban life are willing to pay a premium in return for the benefits offered by more cosmopolitan environments. But a reduction in the value of our vote shouldn’t be one of the added costs we incur.

It is time to get rid of the Electoral College.

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Words FAIL

A while back, Juanita Jean posted a news item that goes a long way toward explaining why it has become so difficult to recognize and distinguish between satirical internet sites and those reporting legitimate news.

In fact, she began the post by reciting the steps she’d taken to ensure that this bizarre proclamation was real.

It seems that the oil industry isn’t doing too well in Oklahoma because it doesn’t grow on trees, and since Republicans can’t possibly raise taxes on oil gazillionaires so they pay their fair share, the Governor decided to issue a proclamation in Jesus’ name.

Hold on.  I’m gonna let you read the whole damn thing because I believe, yes, I believe, in the power of crazy on a platter.

Whereas, Oklahoma is blessed with an abundance of oil and natural gas, allowing the state to be a prosperous producer of these valuable resources; and

Whereas Christians acknowledge such natural resources are created by God; and

Whereas the oil and gas industry continues to produce countless opportunities for wealth generation for Oklahoma families; and

Whereas Oklahoma recognizes the incredible economic, community and faith-based impacts demonstrated across the state by oil and natural gas companies; and

Whereas Christians are invited to thank God for the blessing created by the oil and natural gas industry and to seek His wisdom and ask for protection;

Now, therefore, I, Mary Fallin, Governor, do hereby proclaim October 13, 2016, as “Oilfield Prayer Day” in the state of Oklahoma.

As Juanita Jean herownself commented,

Oilfield Prayer Day.  Honey, I have no idea why it wasn’t called “Jesus Give Us Some Magic Money and Pollute Our Air At the Same Time.”  Or even, “Jesus Gives Us Gas The Natural Way.”

What amazes me is that the citizens of Oklahoma elected this person! (Or perhaps, given the language of the proclamation, it might be more accurate to say that the “Christians” of Oklahoma elected her.) I have been preoccupied of late with an effort to understand why voters cast their ballots for people demonstrably unequipped–by reason of ignorance or temperament or ideology– for the positions they seek. I have added Oklahoma to my “perhaps democracy is overrated” list…

I don’t know which is worse: the fact that the Governor evidently thinks her official prayer is needed to alert (a presumably all-knowing) God to Oklahoma’s fiscal problems and persuade Him (Her?)(It?) to improve the business prospects of the fossil fuel industry, or the fact that she is rather obviously unacquainted with the First Amendment of a Constitution that she took a solemn oath to uphold.

Come to think of it, wouldn’t the Christian God take a negative view of failing to uphold a solemn oath?

I truly occupy a different reality from Governor Fallin. (And for that, I give thanks to the Flying Spaghetti Monster….)

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Ballots and Bullshit

Aside from all the (quite appropriate) angst over our Presidential choices and control of the U.S. Senate, voters in my state of Indiana will be faced with important local decisions. On my  ballot (I voted early) there were three important measures, only one of which was (in my opinion) a “slam-dunk.” That was the referendum for a very minor tax increase to support a very major improvement to our city’s terrible mass-transit, and as I have written previously, it deserves our support.

The other two issues require some background, and the ability to cut through spin and propaganda. (Okay, bullshit.)

The first is a state constitutional amendment supported primarily by the NRA, that would make hunting and fishing a constitutional right.

The Journal-Gazette said it best:

First, it’s completely unnecessary. Like the U.S. Constitution, the Indiana Constitution guarantees the right to “life, liberty and the pursuit of happiness.” That covers hunting, fishing and a myriad other activities, as long as those pursuits don’t infringe upon other rights.

Not only does placing hunting and fishing rights alongside such core protections as freedom of speech and religion trivialize the Constitution, it threatens to undermine legitimate laws and regulations. If the right to hunt and fish is needlessly elevated above other kinds of concerns, who knows what kind of bizarre legal challenges to environmental, safety or endangered-species regulations could clog the state’s courts? Judges need to balance freedoms and responsibilities in a broad array of situations – one reason constitutional rights have traditionally been expressed in broad principles rather than narrow specifics.

Finally, there is this not inconsiderable point: No sentient human being can believe that the state of Indiana would actually ban hunting and fishing. From the beginning, this proposal has been a colossal waste of time and energy whose passage could work costly mischief with courts and regulators and trivialize a magnificent document.

Environmental groups opposing the measure also point out that it would make hunting and fishing the “preferred method of wildlife management” in Indiana, placing hunting legally ahead of non-lethal forms of wildlife management (relocation, fencing, contraception, etc.) and threatening to interfere with future efforts to find new ways to manage our wildlife.

And of course, the amendment would be one more nail in the coffin of local control; it would limit the ability of local municipalities to pass their own laws to protect wildlife in their jurisdictions as they see fit.

The second are school board elections. In my district, that has gotten very ugly.

As Abdul recently noted in the Indianapolis Star,

With respect to IPS, the district has come a long way since the dark days of Emperor Eugene White. Long gone are the days of the district spiraling into a fiscal abyss, and a board whose majorities of members were more concerned about employing adults and placating unions than educating children. And if there wasn’t a headline about the state getting ready to take over another failing school, we would have thought we were reading the wrong newspaper.

Looking objectively as to where the district is as opposed to where it was a few years ago, you can only see that progress is being made and things are going in the right direction.

He followed that introduction with objective data confirming the “right direction” assertion. I encourage readers to click through and review that data.

Now, people can differ about change, and everyone who disagrees about particular reforms isn’t a conspiracy theorist. But some are. (This is apparently the season for conspiracy theories.)The incumbents running for re-election–the people who are finally steering the ship in the right direction–are stridently opposed by a couple of “groups.” (The quotation marks are because at least one of these groups appeared pretty much out of nowhere, and has been anything but transparent, so for all we know, it’s three parents pissed off about something.)

Now, I am hardly a dispassionate observer; my stepdaughter serves on the Board, and although she is not one of those running for re-election this year, she has regularly shared Board policies and debates; furthermore, I personally know all the members who are on this year’s ballot. Agree or not with their actions or priorities, but they are good people, earnestly trying to do what is best for IPS children–and they don’t deserve to be called “child molesters” and “pawns of the plutocracy.” They don’t deserve to have their motives questioned and their honesty impugned.

Evidently, 2016 is the year for unhinged conspiracy theories, outright lies, demeaning insults and vulgar language. In my view, people who engage in these sorts of behaviors–from Trump to “Our IPS”–are for that reason alone unfit to serve.

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