Category Archives: Constitution

When You Take the Crazy Train….

A recent New York Times column by Linda Greenhouse follows the latest evolution of the Right’s attack on America’s judiciary.

Her introduction is arresting, to put it mildly.

Do you hold Chief Justice John G. Roberts Jr. responsible for the ascendancy of Donald Trump? The thought never crossed your mind? Then you probably haven’t been reading the conservative blogosphere, where Chief Justice Roberts, target of bitter criticism for his failure to vote to dismantle the Affordable Care Act, is now being blamed in some quarters for Donald Trump as well.

Evidently, the Chief Justice’s refusal to rule against the constitutionality of the Affordable Care Act was a “sucker punch,” that robbed the Tea Party of a victory it “expected and deserved.” This defeat on an issue of constitutional interpretation meant–in the twisted “logic” of Tea Partiers–that there is no point relying on the courts.

Greenhouse says the lesson they internalized was “if you want to beat Obama you have to get your own strongman.” Guess who?

Even before the Trump-focused blame game started, Chief Justice Roberts was well on his way to becoming the political right’s favorite punching bag. In a rambling speech on the Senate floor last month, Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, defended the Republican refusal to move forward with President Obama’s nomination of Judge Merrick B. Garland to fill the Supreme Court’s vacant seat. Playing off an observation the chief justice had made shortly before Justice Antonin Scalia’s unexpected death, to the effect that the Senate confirmation process had become unfortunately divisive and political, Senator Grassley said it was the Roberts court itself that was political. “Physician, heal thyself,” he said, and then offered this observation:

Justices appointed by Republicans are generally committed to following the law. There are justices who frequently vote in a conservative way. But some of the justices appointed by Republicans often don’t vote in a way that advances conservative policy.

This is a reprise of an old song: if the Courts don’t rule the way I want them to–if they reach decisions incompatible with my preferences–they are “activist” and illegitimate and we are entitled to undermine both the individuals serving on them and the concept of separation of powers that is at the heart of our system of government.

Most lawyers I know would classify the Chief Justice as pretty conservative; his instincts seem to be to support institutional power, whether corporate or governmental. I have disagreed with several of his decisions, and with his articulation of a judicial philosophy. That said, he is clearly a brilliant lawyer whose jurisprudence falls within a longstanding American legal tradition.

The problem is that much of our current political leadership is unfamiliar with that tradition, ignorant of the role assigned to the Courts, and child-like in the belief that whenever a court renders a decision they don’t like, it must be illegitimate.

The problem is also larger than a bizarre attack on John Roberts. It is even larger than the profoundly damaging attack on the Supreme Court by Senate Republicans who are refusing to allow that body to discharge its constitutional duty of advice and consent.

The problem is, America is currently governed by  petty, uninformed, ahistorical and (in several cases) deranged individuals who have commandeered the Crazy Train and are taking the rest of us with them.

Comments

States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.
Comments

Theocrats or Panderers? It Doesn’t Really Matter…

Politicians at all levels keep giving God a bad name. God doesn’t want LGBT folks to have equal rights, and certainly doesn’t want them to get married, at least to each other. God doesn’t want women controlling our own reproduction. God doesn’t like immigrants, or refugees, or Muslims (wrong God). In Indiana, just ask Mike Pence. Or Marlin Stutzman.

As a recurring Facebook meme puts it, “Isn’t it nice that God hates all the same people you do?”

The Republican presidential contenders are, if anything, worse. Herb Silverman has a great commentary up at Huffington Post.

Recently I wrote about presidential candidate Marco Rubio’s comment that “all the answers are in the Bible” and his remarks to an atheist that our rights could only come from a creator. A number of readers agreed that Rubio’s view made no sense, but they also mentioned that religious views of other candidates are just as bad, or worse. I agree. Rubio has never claimed that God told him to run for president. That alone distinguishes him from current candidates Ted Cruz and John Kasich, and dropout candidates Ben Carson, Mike Huckabee, Bobby Jindal, Rick Perry, Rick Santorum, and Scott Walker.

Of those who dropped out, despite God’s support, Ben Carson remains the most active politically. He is the new national chairman of My Faith Votes, an organization that wants Christians to decide who will be the next president and all national and local leaders.

What’s so ironic about these posturing theocrats is that they also go to great lengths to present themselves as constitutional “originalists” and “strict constructionists,” a facade that requires them to ignore pretty much everything the Founders said and wrote about religion and the meaning of the First Amendment’s Establishment Clause.

Ted Cruz is by far the smartest–and creepiest–of the GOP field. A graduate of Harvard Law, he should know both the history and operation of the First Amendment, but either he missed those classes or he chooses to ignore both the Founders’ own words and 200+ years of constitutional jurisprudence. As Silverman writes,

Fittingly, Cruz launched his campaign at Liberty University, founded by Jerry Falwell. At a National Religious Liberties Conference, Cruz said, “Any president who doesn’t begin every day on his knees isn’t fit to be commander in chief.” In addition to eliminating atheists from presidential consideration, Cruz apparently would also like a prayer test for all candidates. His Religious Liberty Council seems to equate religious liberty with a God-given right to discriminate against gays. Pastor Rafael Cruz, Ted’s father, has served as a surrogate for Ted’s campaign. Pastor Cruz says that there is no such thing as separation of church and state, America is a Christian nation, and the Ten Commandments are the foundation of the Constitution and Declaration of Independence.

No wonder America is seeing the “rise of the nones.” Who in her right mind would believe in or worship the sanctimonious, repellent and vindictive God who motivates these people?

Comments

A Dangerous Road

Yesterday, I was supposed to speak at an event sponsored by Organizing for America, focused on the battle over Antonin Scalia’s replacement on the Supreme Court. Instead, of course, I was in the hospital. Since I hate to let a speech go to waste, here are the remarks I had planned to make.

________________________

The refusal by Senate Republicans to even consider a nominee is dangerous for two reasons. The first reason, obviously, is the need to have a full complement of Justices who will hear and deliberate over the important cases that come before the highest court in the land.

The second reason, however, worries me even more, because the absolutely unprecedented position being taken by Mitch McConnell, Chuck Grassley and the other Senate Republicans represents yet another ratcheting up of the obstruction tactics that the Party of No has engaged in ever since President Obama took office.

This is not the way our system is supposed to work. We don’t elect people so that we can watch them not only refuse to do their jobs but actively throw sand in the gears of government.

Let’s look at what is at stake.

Republicans in the Senate are refusing to participate in the Constitutionally-required process of “advice and consent.” Their argument is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t get to nominate Scalia’s successor.

Of course, that argument ignores the Constitution, which these partisans claim to revere. So much for “strict construction.” But it fails on other grounds as well:

  • Historically, the longest stretch of time between a nomination and a vote has been 125 days. Over 330 days remain in Obama’s term of office.
  • There is absolutely no precedent for this refusal to follow the Constitution. Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President. And even then, they rejected a particular nominee—they didn’t refuse to consider any.

The Republicans’ behavior is thus a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term. If they persist, the Supreme Court will have a vacancy for over a year, and will operate in the interim with only 8 Justices. If the Court splits 4-4, the case sets no precedent, and difficult and divisive issues will remain unresolved.

As troubling as is to see partisan politics affecting the ability of the Court to do its work, what is even more worrisome is the willingness of these Senators to ignore both their constitutional duty and the best interests of the American people in order to demean and diminish a President who was twice elected by large majorities of the American people.

This fixation on sabotaging anything and everything the President does—this unwillingness to support even policies that were originally their own if President Obama proposes them, the refusal to confirm not just a replacement for Scalia, but dozens of lower court judges and agency appointments—is behavior that undermines America’s democratic institutions and calls into question our continued ability to govern ourselves.

This ugly and unpatriotic conduct should be beneath the dignity of members of the United States Senate, but it clearly isn’t.

Although I didn’t plan to say this at the event, it is noteworthy that none of the candidates for the Republican presidential nomination has bothered to counsel against this assault on settled constitutional processes, or express concern that legitimizing this level of animus will make it more difficult for the next President to accomplish anything.

We’re going down a very dangerous road.

Comments

What’s at Stake

Yesterday, the media frenzy was all about Chris Christie’s endorsement of “The Donald.” Of course, there has been something every day–the latest tweet, the most egregious insult, the latest analysis of how someone so manifestly unqualified has managed to get this far…

All of this media attention focused upon Trump–attention that has allowed him to suck all the oxygen out of Republican rooms–has had a number of unfortunate consequences. One of the less remarked of those consequences is that the so-called “establishment” candidates look more reasonable by comparison.

Even Trump can’t make Cruz look sane, but as political observers have pointed out, Rubio and even Kasich are on record taking positions that would have been unthinkable even ten years ago. Paul Krugman recently noted aspects of Rubio’s extremism:

[W]hat I do know is that one shouldn’t treat establishment support as an indication that Mr. Rubio is moderate and sensible. On the contrary, not long ago someone holding his policy views would have been considered a fringe crank.

Let me leave aside Mr. Rubio’s terrifying statements on foreign policy and his evident willingness to make a bonfire of civil liberties, and focus on what I know best, economics.

You probably know that Mr. Rubio is proposing big tax cuts, and may know that among other things he proposes completely eliminating taxes on investment income — which would mean, for example, that Mitt Romney would end up owing precisely zero in federal taxes.

What you may not know is that Mr. Rubio’s tax cuts would be almost twice as big as George W. Bush’s as a percentage of gross domestic product — despite the fact that federal debt is much higher than it was 15 years ago, and Republicans have spent the Obama years warning incessantly that budget deficits will destroy America, any day now.

What Krugman failed to note were Rubio’s extreme social policy positions; for one thing, he proposes outlawing abortion even in the case of rape and incest.

Not to be outdone, the presumably more moderate John Kasich recently defunded Ohio’s Planned Parenthood.

These are the candidates whose hoped-for elevation to the highest office in the land is motivating Mitch McConnell and his Senate colleagues to ignore their constitutional duty to consider an Obama Supreme Court nominee. (“Strict construction,” anyone??)

If the Senate Republicans manage to keep Scalia’s position open, the next President is likely to choose three Supreme Court Justices. If those choices are made by any of these candidates, America will be a very different country in short order. And it won’t be a country that most of us will recognize.

Comments