Category Archives: Constitution

Alabama: Why Judges Shouldn’t Be Elected

He’s baaack!

Roy Moore, the infamous “Ten Commandments” theocrat, is serving a second stint as Alabama’s chief justice. Moore was first elected to that position in 2000, but was removed after refusing to move a Ten Commandments monument he had installed at the entrance to the courthouse. Carved into a five ton boulder. In a July 2003 ruling, the appeals court compared Moore’s actions to the

“position taken by those southern governors who attempted to defy federal court orders during an earlier era,” citing the actions of former governors Ross Barnett of Mississippi and George C. Wallace of Alabama in trying to block campus integration and protest marches during the height of the civil rights movement.

“Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case,” the appeals court wrote.

In November 2003, the state ethics panel unanimously voted to remove Moore from the bench. He was reelected in 2012, narrowly defeating a candidate who didn’t join the race until August after Democrats disqualified their original candidate. (What was that old saying?–you can’t beat something with nothing.) When it became apparent that he’d won, he told supporters

“Go home with the knowledge that we are going to stand for the acknowledgment of God.”

Now, Moore has told the state’s probate judges–who evidently issue marriage licenses in Alabama– to ignore a federal judge’s ruling that same-sex marriages could proceed, and a majority of them have been complying.

Interestingly, Alabama does not require probate judges to have any sort of legal education. It’s also one of thirteen states where probate judges are elected in partisan primaries and general elections.

The U.S. Constitution made federal judges independent precisely in order to avoid this sort of assault on the rule of law. Congress and the Executive Branch are supposed to answer to the voters; courts of law are supposed to answer to the Constitution.

In best-case scenarios, judicial elections give rise to the appearance of impropriety– did campaign contributions influence the administration of justice? In the worst-case scenarios, judicial elections give you a Roy Moore.

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Quotes From The Founders of Our “Christian Nation”

One of the many things Thomas Jefferson was known for was creating his own version of the bible: he famously excised all of the metaphysical portions, leaving only the moral teachings. (This may be why, when he was running for President, opponents warned that  he would order the burning of all bibles if he were to be elected.) I thought about that recently, when I came across a collection of quotations about religion and religious liberty from Jefferson and America’s other founding fathers. I was familiar with most, but not all of them. Of those I hadn’t previously seen, I particularly liked this one from Jefferson, taken from a letter he wrote to one Peter Carr in 1787:

“Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.”

Ben Franklin was more blunt. In Poor Richard’s Almanac, in 1758, he wrote

“The way to see by faith is to shut the eye of reason.”

Although not technically a Founder, Thomas Paine was an enormously influential figure in Revolutionary America, and a reliable critic of religion and religious establishments; in The Rights of Man, he wrote

“Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law. Take away the law-establishment, and every religion re-assumes its original benignity.”

In 1776, in The American Crisis, he made his disdain for “faith-based” reasoning even clearer, writing

“To argue with a man who has renounced the use of reason is like administering medicine to the dead.”

(Explains the problem with several current members of Congress, the General Assembly and most of Texas….)

Madison frequently weighed in on the side of reason and the need to separate church from state. In his often-quoted letter to William Bradford, he wrote

“Christian establishments tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”

There are many similar quotes from the architects of our Constitution, easily found in textbooks, history books or a cursory visit to Doctor Google. This nation’s founders tended to agree with Gallileo that “man is not obliged to believe that the same God who has endowed us with senses, reason and intellect intends us to forgo their use.” However avid our current culture warriors may be about rewriting American history, it’s impossible to ignore the continued relevance of these sentiments. In fact, in view of the current push for explicit religious “liberty” to discriminate against LGBT folks, another Jefferson quote (from A Bill for Establishing Religious Freedom) seems especially apt:

“Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

You tell ’em, Tom!

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America is Doomed…

Before the incident–and attendant snark–went viral, no fewer than three friends had sent me news items about Kirby Delauter, a Frederick County (Maryland) Council Member, who threatened to sue a local journalist named Bethany Rodgers for … wait for it… using his name without permission in a newspaper article.

Think about that for a minute: this jerk is an elected official. Presumably he (a) took an oath to support a Constitution he clearly has never read; (b) was sufficiently active politically to have encountered media previously and perhaps even noted its role and mission.

I know it doesn’t seem possible that there is an elected official dumber than Louie Gohmert, but Councilor Delauter appears to have pulled off that dubious distinction.

Civic deficit, anyone?

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The GOP, Andy Borowitz and Immigration

Predictably, Congressional Republicans and their faux constitutionalist echo chamber are screaming that the President’s recent immigration order exceeded his authority.

It didn’t.

Congress has given the Executive branch wide discretion over deportation priorities and as both conservative and liberal legal authorities have confirmed, the President  is exercising that discretion in a manner consistent with Congressionally-endorsed policies such as family unification. As legal scholar Walter Dellinger pointed out:

There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year under the resources provided by Congress is somewhere around 400,000. Congress has recognized this and in 6 U.S.C. 202 (5) it has directed the secretary of homeland security to establish “national immigration enforcement policies and priorities.” In the action announced tonight, the secretary has done just that, and the president has approved.

In other words, Congress has never supplied funding sufficient to deport more than a small number of the undocumented, and the President–every President–has been given the discretion to decide who among those living here illegally should be targeted. And every President has exercised that discretion. As a comment on Andrew Sullivan’s blog put it,

As there is an existing, bipartisan agreement that some 96.5% of the undocumented population will be allowed to remain here (i.e., the “how many” question), Obama’s executive action asks only: which undocumented immigrants should populate the 400,000 who are deported?

The question is not whether Obama should increase the number of undocumented immigrants (he isn’t), but whether he should apply severely limited resources in a targeted fashion (e.g., new arrivals, criminals, etc.) or indiscriminately (e.g., a law abiding mother of a U.S. citizen-child)? And, is Obama plausibly “tearing up the Constitution” if he deports the only number of people he can (about 400,000), but prioritizes who should be deported within such Congressionally imposed constraints?

The answer to that question is self-evident. The GOP should be embarrassed to be making the hysterical, ahistorical and factually-inaccurate assertions that are currently filling the airwaves–but this isn’t your father’s GOP and in case you haven’t noticed, this particular President is  (in the eyes of the Republican base) by definition illegitimate.

Sometimes, when logic and fair play are clearly not going to carry the day, satire is all we have left. (I’m laughing because otherwise, I’ll cry.)  Andy Borowitz has been on a roll lately, and with respect to our current kerfuffle over the President’s immigration Executive Action, he has hit a home run/touchdown/nerve. I’m quoting the whole thing, because it’s just too good–and too true– to truncate:

WASHINGTON (The Borowitz Report)—Senate Majority Leader Mitch McConnell unveiled his party’s long-awaited plan on immigration on Wednesday, telling reporters, “We must make America somewhere no one wants to live.”

Appearing with House Speaker John Boehner, McConnell said that, in contrast to President Obama’s “Band-Aid fixes,” the Republican plan would address “the root cause of immigration, which is that the United States is, for the most part, habitable.”

“For years, immigrants have looked to America as a place where their standard of living was bound to improve,” McConnell said. “We’re going to change that.”

Boehner said that the Republicans’ plan would reduce or eliminate “immigration magnets,” such as the social safety net, public education, clean air, and drinkable water.

The Speaker added that the plan would also include the repeal of Obamacare, calling healthcare “catnip for immigrants.”

Attempting, perhaps, to tamp down excitement about the plan, McConnell warned that turning America into a dystopian hellhole that repels immigrants “won’t happen overnight.”

“Our crumbling infrastructure and soaring gun violence are a good start, but much work still needs to be done,” he said. “When Americans start leaving the country, we’ll know that we’re on the right track.”

In closing, the two congressional leaders expressed pride in the immigration plan, noting that Republicans had been working to make it possible for the past thirty years.

As McConnell would say, “A-Yup.”

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I See Ignorant (Elected) People

Fair-minded Americans have welcomed the recent wave of court decisions striking down bans on same-sex marriage. The LGBT community and its allies have been positively euphoric.

Of course, the homophobes and those who pander to them have had a somewhat different reaction.

Here’s the thing: people who don’t approve of gay people, or whose religious beliefs somehow require them to see gays as sinners and same-sex marriage as an abomination, are entitled to those beliefs. It’s a free country. And elected officials are entitled to disapprove of judicial decisions, although they are not free to disregard them. All of these debates over what is best for the country, what constitutes fair play, what discrimination looks like…all of the cacophony that surrounds social change is both predictable and within the bounds of democratic deliberation.

Abject ignorance is not.

Which brings me to Jan Brewer, Governor of Arizona, and her rant in the wake of court rulings that invalidated her state’s ban on same-sex marriage.

“It is not only disappointing, but also deeply troubling, that unelected federal judges can dictate the laws of individual states, create rights based on their personal policy preferences and supplant the will of the people in an area traditionally left to the states for more than two hundred years.

 Simply put, courts should not be in the business of making and changing laws based on their personal agendas. It is not the role of the judiciary to determine that same-sex marriages should be allowed.”

Sorry, Governor Brewer, but your civic ignorance is showing. Courts are absolutely “in the business” of “supplanting the will of the people” when that will violates the Constitution. As I pointed out on this blog yesterday, the Founders of this country created an independent federal judiciary (one that was not elected) and provided those judges with lifetime tenure, because judges were supposed to be responsive to the Constitution and the rule of law—not to the electorate.

Congress and the Executive branch were supposed to respond to majority preferences; the judiciary, however, was supposed to safeguard individual and minority rights and to ensure that the other branches did not violate the Constitution in their eagerness to pander to popular passions.

I have repeated this basic premise of American constitutional law over and over—in my columns, my blogs and my classrooms. Let me do so again.

The Bill of Rights answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these and other very personal matters—we individuals decide these things for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves, free of interference by government scolds.

The Bill of Rights also limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. A majority of your countrymen cannot vote to make you a Baptist or an Episcopalian; they don’t get to vote on your reading materials or your political opinions or your choice of a life partner.

People who don’t understand the most basic operation of our system—like Arizona’s Governor Brewer, or Indiana’s Mike Pence—misunderstand and misrepresent court decisions that uphold the right of individuals to live their lives as they see fit without sacrificing their right to equal treatment under the law.

The fact that we keep electing people like this is what I find “deeply troubling.”

Same-sex marriage doesn’t threaten the republic. What threatens the republic is the election of people who are totally ignorant of the Constitution they are sworn to uphold.

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