Category Archives: Constitution

What To Do, What To Do…

I’ve told this story before, but it bears repeating.

I teach my law and public policy classes through a constitutional “lens,” because I am convinced that students must understand America’s fundamental legal framework and philosophy if they are to approach policy proposals with the necessary analytic tools.

I often introduce the Free Speech provisions of the First Amendment with a purposely silly question: “What did James Madison think about porn on the Internet?” Usually, the student I’ve asked will laugh and respond that Madison never encountered the Internet; that then allows us to discuss the expressive values Madison and other Founders were trying to protect, and the ways in which modern courts attempt to protect those values in a world that the Founders could never have envisioned.

But several years ago, when I asked a student that question, she looked at me blankly and said “Who’s James Madison?”

That experience–unfortunately, not an outlier–led to the establishment of the Center for Civic Literacy at IUPUI, (CCL) and research to determine how much Americans really know–or don’t– about the country’s history, economy and legal system, and the political and social consequences of low levels of civic knowledge.

If anyone doubts the corrosive effect of civic ignorance, I suggest watching this year’s political campaigns.

There is clearly little we can do that would immediately improve the abysmal state of public discourse as it is practiced today, but in addition to research into the causes and consequences of civic ignorance, CCL has been working with the League of Women Voters and the Indiana Bar Foundation, among others, to produce materials that we hope will help address the issue going forward.

The Center and the Bar Foundation have published a book called “Giving Civics a Sporting Chance.” The book points to the pervasive social and cultural supports that reward knowledge of sporting events and trivia, and makes the argument that we need to institute similar mechanisms that would reward and increase civic knowledge.

Young Americans who can tell you who threw out the winning pitch in the 1939 World Series are capable of answering equally obscure questions about the Articles of Confederation, but American culture privileges sports knowledge over civic literacy. The book suggests a number of mechanisms for bringing civics “into the sunlight”–from relatively “do-able” measures like increasing participation in the excellent “We the People” curriculum and competition, to “wouldn’t it be wonderful” suggestions for a new GI Bill that would reduce student debt while increasing civic information and engagement.

Information about the book’s availability will be posted to the Center’s website shortly.

Another publication–originally an ebook, but just this month available in paperback--is a mere 36 pages of essential civic information. Titled Talking Politics? What You Need to Know Before Opening Your Mouth, it includes “What everyone should know about the Constitution and American legal system,” “What everyone should know about the American economic system,” “What everyone should know about science,” and “What everyone should know about politics.”

Obviously, all of those subjects cannot be comprehensively covered in 36 pages, but the book provides basic facts and settled definitions that can allow people to argue for their policy preferences more productively and convincingly.

I encourage readers of this blog to examine these two products, and if you find them useful–and I think you will–disseminate them broadly. Discuss the recommendations in “Giving Civics a Sporting Chance”with school curriculum officials. Read Talking Politics in your book club. Whatever.

I think thoughtful Americans of every party and political philosophy will agree that–whatever else America’s current election campaign may signify–the nomination of Donald Trump by a major party could only occur in a country where significant numbers of citizens have no understanding of the way their nation’s government works, or the rules that constrain elected officials.

That nomination should be a wake-up call.

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A Really Important History Lesson

At Dispatches from the Culture Wars, Ed Brayton highlighted a truly important segment from Rachel Maddow’s show, in which she traces America’s history of xenophobia and anti-immigrant hysteria.

Many readers of this blog are familiar with the broad outlines of America’s nativist history–the periodic eruptions of movements like the Know-Nothings and later, the Klan. But in this explanatory segment, Maddow ties these episodes to the nation’s political history in a way that I, certainly, had never considered, and shows how Donald Trump’s increasingly explicit and ugly fact-free rhetoric fits into that history–and what it means for the Republican party and the American two-party system.

No summary of this extraordinary history lesson could do it justice.

Watch it.

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Protecting Article XII

Well, Trump visited central Indiana yesterday, for a fundraiser and rally. It only increased the intense speculation about whether he would add Indiana’s embarrassing Governor to his ticket.

In many respects, they would be a political odd couple, but they do have one thing in common: neither of them appears to have much familiarity with, or regard for, the Constitution.

In his recent meeting with Congressional Republicans, for example, Trump emphasized his readiness to protect America’s Constitution–including Article Twelve.

Of course, there is no Article Twelve.

We probably shouldn’t be surprised; to the extent that this particular candidate has policies, a significant number of them are patently unconstitutional. Trump says he would authorize torture, round up and deport immigrants (no mention of due process, which is evidently not a phrase in the vocabulary of the man who brags that he has lots of “good words”), and he has proposed “passing a law” to eliminate the 14th Amendment’s birthright citizenship provision.

It’s mind-boggling that any citizen of the U.S. knows so little about America’s legal framework that he thinks passing a law can change constitutional mandates. (Even Pence and my least civically knowledgable students know better than that.) The fact that the Presidential nominee of a major political party is so ignorant of the most basic rules that constrain all elected officials–rules that he would be charged with defending and obeying if, God forbid, he should win–is stunning.

I know I am a broken record on the subject of civic literacy, but the ability of a man like Trump to garner 13 million votes in the primaries is at least partially attributable to the fact that too many Americans know little or nothing about the country’s legal framework or governing architecture.

The American Constitution was not handed down by God (although some on the far Right actually have made that claim). There are good reasons to consider amending parts of it, and serious political figures and scholars who advocate for such changes–but no credible source suggests that the Constitution is irrelevant and can simply be ignored.

What separates successful countries from theocracies, autocracies and banana republics is respect for the rule of law. The basic premise of the rule of law is that laws and regulations apply to everyone. It is the obligation of all citizens–including Presidents, Governors, and all other elected officials–to follow the same rules that apply to the rest of us.

Actually, it shouldn’t surprise us that Trump doesn’t understand that. He’s lived his entire life convinced that the rules don’t apply to him, and he’s made it quite clear that, if he should be elected, he won’t let pesky rules or constitutional provisions get in his way.

That attitude and ignorance explains why citizens who are civically literate find the prospect of a Trump Presidency terrifying.

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The Right to be Wrong

[This post should really be about Dallas and the two horrific incidents preceding and triggering what happened there. It isn’t, because I am still processing it all. I find myself unable to put my reactions into words right now. Those words will come, but not yet.]

The Des Moines Register recently reported on lawsuits brought against the state and city by churches challenging recent interpretations of Iowa civil rights laws to prohibit church members from making “any public comments — including from the pulpit — that could be viewed as unwelcome to people who do not identify with their biological sex.”

They [the churches] said they are asking the commission to declare that Iowans have a right to speak from church pulpits about biblical teachings on sexuality. The Sioux City church also wants a declaration that Iowa churches are free to follow their religious doctrines in how they accommodate people in restrooms, locker rooms and living facilities.

Unless there is something I’m missing, the actions of the Iowa Civil Rights Commission violate the First Amendment’s Free Exercise Clause. (According to the article, the Commission is evidently denying that the churches are “bona fide” religious organizations–a fairly bizarre position.)

We live in a time of social change. Greater acceptance of LGBT citizens, especially, has led to all sorts of debates about “religious liberty.” (We’ve seen this movie before; in the past, merchants and landlords have claimed “religious liberty” entitled them to refuse service to African-Americans, Catholics and Jews.)

As I have written before, government has the right–indeed, the obligation–to prohibit discrimination in housing, education, employment and public accommodations.

That said, churches and other genuinely religious institutions are not public accommodations, and their right to preach as they see fit, to take positions on public issues informed by their doctrine, is protected by the First Amendment. I might believe–as I wholeheartedly do–that these church folks are wrong about homosexuality (and actually, about a lot of other things) but they have an absolute Constitutional right to their beliefs. They have a right to preach about those beliefs, and to conduct their congregational affairs in a manner that is consistent with their religious doctrines.

It’s particularly unfortunate that the Iowa Civil Rights Commission has taken the position that it can suppress the churches’ religious message, because that position feeds into entirely bogus assertions made by proponents of so-called “Religious Liberty” laws. The Eric Millers and Micah Clarks of this world insist that “secular activists” will force pastors to conduct same-sex weddings, or will outlaw preaching against homosexuality. Constitutional lawyers respond–properly–that churches and pastors are protected against such efforts by the First Amendment.

Overreaching in Iowa just supplies ammunition to those who want laws giving them a wide-ranging right to discriminate. The churches that brought these lawsuits should win–demonstrating that RFRAs and similar measures are unnecessary because the Constitution already protects religious expression.

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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.

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