Category Archives: Constitution

Houston, We Have a Problem…

In my periodic rants about the state of civic knowledge, I’ve frequently cited the results of a test periodically administered by the Intercollegiate Studies Institute (ISI) as evidence of the American public’s worrisome deficit of civic literacy.

As troubling as that deficit of public knowledge is–as much as it contributes to political polarization and our inability to hold government actors accountable to constitutional standards– another outcome of ISI’s research should really terrify us.

Elected officials’ scores were lower than those of the general public in almost every category.

Of the 2,508 People surveyed, 164 say they have held an elected government office at least once in their life. Their average score on the civic literacy test is 44%, compared to 49% for those who have not held an elected office. Officeholders are less likely than other respondents to correctly answer 29 of the 33 test questions. This table shows the “knowledge gap” for each question: the difference between the percentage of common citizens who answered correctly and the percentage of officeholders who answered correctly.

Think about that for a minute.

Manufacturers don’t hire workers who don’t know how to make the product. Athletes who don’t understand the rules of their sport are soon gone. A lawyer who doesn’t know the rules of procedure and the precedents governing his practice area is likely to get sued for malpractice. Surely we have a right to expect our public officials to have a basic acquaintance with, and understanding of, the Constitution they swear to uphold.

I suppose ISI’s findings shouldn’t come as a shock; those of us who are watching the political spectacle that is the run-up to the 2016 Presidential election have seen plentiful evidence that–even among the people who presume to run for the highest office in the land–a number appear to be woefully ignorant of America’s history, philosophy and constitutional principles.

Perhaps we should test candidates for political office for basic constitutional competence before we allow them to run.

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Arizona and a Sigh of Relief

Among the end-of-term decisions handed down by the Supreme Court was Arizona State Legislature v. Arizona Independent Redistricting Commission. It was an important case–had the legislature prevailed, it would have dealt a near-fatal blow to the ability of good government groups to address the practice of gerrymandering.

Some years back, via a referendum, Arizona citizens struck a blow against gerrymandering by establishing a nonpartisan commission to draw its election maps. The state legislature sued, asserting that language in the Constitution limits the right to regulate national elections to Congress and state legislatures.

In a decision that legislative scholar Tom Mann called “a model of constitutional reasoning,” a divided Court upheld the right of citizens to determine who shall 

…have the ultimate authority over who shall represent them in public office. The majority opinion quotes Madison to powerful effect: “The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but those entrusted with it should be kept in dependence on the people.”

As Richard Pildes wrote in a New York Times Op-Ed,

The main, and best, justification for direct democracy is precisely the need for this kind of check, just as the voters in Arizona exercised, on the self-interested temptations of power when legislators regulate the political process itself.

Direct democracy is hardly a panacea or a pure expression of “the popular will,” whatever that means; voters must be organized and informed, which takes resources and organizational skill. Still, direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.

On Monday the court rightly recognized that, when the Constitution assigned the elections clause power to the “legislatures,” the framers were not making a judgment about whether states could create direct democratic processes as another way to regulate the national election process. Unlike their rejection of popular Senate elections, the framers did not reject popular regulation of elections: They just never considered the idea. To reject it in their name, the court wisely concluded, would have been perverse.

It isn’t easy to rein in the self-interested process of legislative line-drawing under even the best of circumstances; those who have power only surrender that power when they have no choice. Had the Arizona legislature’s challenge succeeded, redistricting reform would be virtually impossible.

File this one under “dodged a bullet.”

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Who’s Talking?

Among the decisions handed down by the Supreme Court at the conclusion of this term was a little-noted one addressing the question whether states that sell specialty license plates can refuse to issue plates with controversial images like the Confederate flag. The ruling itself is less consequential (at least, in my view) that the opportunity if affords for a much-needed lesson in Constitutional analysis.

The First Amendment prohibits government from censoring the speech of its citizens. In the case before the Court, the Sons of Confederate Veterans claimed that Texas’ refusal to issue plates bearing a Confederate flag constituted such censorship.  But the Court could not analyze that claim until it decided what lawyers call a “preliminary” question: who is speaking through that state-issued license plate–the driver or the state?

Justice Steven Breyer, writing for the court’s majority, said that Texas’ program “constitutes government speech” and that the state was “entitled to refuse to issue plates featuring SCV’s proposed design.” Just as the state could not force drivers to espouse a particular message, he said, drivers could not force a state to espouse theirs.

I think the Court got this one right. But it’s amazing how many people don’t understand the importance of determining who’s talking for First Amendment purposes.

Several years ago, plaintiffs sued Indiana’s General Assembly over legislative prayers claimed to violate the Establishment Clause. (The Courts have long allowed what we might term “de minimus” legislative prayers, so long as they are  brief and inclusive; many scholars–including this one–disagree with that admitted exception to the Establishment Clause, but it is what it is.) In Indiana, the prayers had gotten much longer and much more specifically Christian–one pastor, invited to the Speaker’s podium, had led the room in a rousing rendition of “Take a little walk with Jesus.” The District Court ruled that the practice violated the Establishment Clause and must stop, and all hell broke loose, with protestors complaining that religion had been censored.

It hadn’t.

I got several calls from local media, with breathless questions about a group of aggrieved pastors praying together at the back of the chamber–wasn’t that a violation of the Court’s order?

No, it wasn’t.

When a clergyman is invited to pray from the Speaker’s podium, as an official part of the legislative session, that prayer becomes state speech. The Establishment Clause prohibits government from endorsing or sponsoring religion. When individuals gather to pray, the Free Exercise Clause protects them against government interference.

Who is talking, who is praying, who is making the decision–makes all the difference.

The Bill of Rights only restrains government. That makes it pretty important to identify when government has acted.

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Being Poor Isn’t Probable Cause

The Indiana ACLU has filed a lawsuit on behalf of a disabled, indigent Posey County woman who was denied financial assistance because her disabilities prevented her from taking a drug test required by the Black Township Trustee.

A number of courts around the country have held that conditioning benefits on passage of a drug test violates the United States Constitution. (Before these programs were struck down, the states that imposed such tests also found far fewer abusers than would be expected in the general population. That makes sense, since people having trouble affording food are unlikely to have money for drugs. But hey–we all know that poverty is evidence of moral turpitude…)

The lawsuit against Black Township and Lindsay Suits, the Black Township Trustee, was filed on behalf of Mary Neale, a resident of the township. Neale previously received aid from the trustee only after submitting a urine sample and passing a drug test. Last year, however, Neale’s physical disabilities made submitting the sample impossible, so she was unable to apply for benefits.

The ACLU’s lawsuit points out that the Township Trustee’s “policy of requiring applicants for assistance to take a urine drug screen violates the Fourth Amendment to the U.S. Constitution. Further, the trustee’s failure to accommodate Neale’s disability when she sought to apply for assistance violates the Americans with Disabilities Act.”

“The Constitution prohibits this type of suspicionless search and seizure,” said Ken Falk, ACLU of Indiana legal director. “It is wrong to condition the receipt of government benefits on the waiver of fundamental rights that protect all of us.”

The Fourth Amendment requires government actors to have probable cause to conduct a search. Probable cause has been defined as “articulable reasons to believe that a given individual has violated the law.”

Someone needs to explain to the growing ranks of eager-beaver “public servants” that neither poverty nor skin color are probable cause.

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Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

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