Category Archives: Constitution

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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Wanna Buy a Judge?

Talking Points Memo recently ran an article about mysterious campaign contributions to a candidate for Judge in Missouri:

A month ago, Missouri GOP prosecutor Brian Stumpe had less than $100 on hand in his campaign to unseat Cole County Circuit Court Judge Patricia Joyce, according to the St. Louis Post-Dispatch. Now, just a few weeks later, he has received $100,000 — all of it funneled into his campaign by a national group, the Republican State Leadership Committee, which has spent a total of $200,000 so far in this race for a single state judgeship.

The article went on to speculate about the source of the money and the reasons for this effort to dress a favored candidate in judicial robes.

Whatever those reasons, and irrespective of the identity of the donors in this particular case, this is a perfect illustration of why we ought not elect judges.

There was a reason the Founders did not provide for electing the federal judiciary: judges were supposed to be responsive to the Constitution and the rule of law–not to the electorate. Congress and the Executive branch were intended to respond to the political will (within limits); the judiciary, however, was supposed to ensure that those other branches did not violate the Constitution in their eagerness to pander to popular passions.

An independent judiciary was seen as essential to justice.

There is also the matter of perception. When litigants walk into a courtroom and face a judge who’s won office using partisan campaign contributions, especially in cases with political implications or cases involving politically “connected” adversaries, they can be forgiven for worrying that the judge will be less than dispassionate.

No judge can be completely apolitical; humans have points of view and those worldviews come with them when they are elevated to the bench. But when we can’t trust that the administration of justice is as unbiased as our imperfect efforts can make it, we don’t just undermine respect for a particular judge, we erode respect for the rule of law.

There are a lot of unsavory aspects to our current political environment, but the ability to purchase a judge has to rank up there among the worst.

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Be Careful What You Wish For

Yesterday’s Star had a front page story about state lawmakers who want to call a new Constitutional Convention. Last Sunday, the following Op Ed ran in the Fort Wayne Journal-Gazette. I wrote it in response to a request from that paper’s editorial board, and I suggest several reasons why convening such a Convention would be a mistake.

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Periodically, lawmakers who are frustrated by their inability to change government policies of which they disapprove will propose a shortcut: they’ll reform the system itself, by convening a Constitutional Convention.

Fortunately, these efforts rarely succeed.

Why do I say “fortunately”? Because—like poison gas—system change is only a great weapon until the wind shifts.

When activists clamor for wholesale changes or major revolutions in the status quo, they always assume that the changes that ultimately emerge will reflect their own preferences and worldviews.

History suggests that’s a dangerous assumption.

Indiana Senator David Long wants the states to convene a Constitutional Convention under provisions of Article V that authorize such actions. In response to people who warn that delegates could seize the opportunity to open the proverbial “can of worms” and drastically rewrite the national charter, he insists that the convention could be limited in scope. Even if he is correct in that assertion (and many constitutional scholars think otherwise) the “limited goal” he describes is anything but.

Long wants the convention to devise “a framework for reigning in overspending, overtaxing and over-regulating by the federal government and moving toward a less centralized federal government.” These are very general goals, susceptible to multiple interpretations and almost infinitely malleable.

Right now, for example, Wall Street bankers are protesting post-recession financial “overregulation” that seems eminently reasonable to most taxpayers, if polls are to be believed. Whose definition would prevail?

My definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies, while yours might be Medicare or Medicaid or farm subsidies. Many Americans think we spend too much on the military; others would target Pell grants or foreign aid.

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

In addition to genuine disagreements about such issues, well-financed special interests would undoubtedly see a Constitutional convention as a golden opportunity to influence the process.

But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. There is also a real danger in calling together a group of people and asking them to amend a document that few of them understand.

At the Center for Civic Literacy at IUPUI, we focus on the causes and consequences of what we’ve come to call America’s civic deficit. The data is depressing. Only 36 percent of Americans can even name the three branches of government. Only 21% of high school seniors can list two privileges that United States citizens have that noncitizens don’t. Fewer than a quarter of the nation’s 12th graders are proficient in civics. I could go on—and on.

I see evidence of our civic deficit in my Law and Policy classrooms. Even bright graduate students come with little or no knowledge of American history, episodic or intellectual. Most have never heard of the Enlightenment or John Locke. They certainly haven’t read Adam Smith.

A truly depressing percentage of undergraduates can’t explain what a government is, and they have no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

To his credit, Senator Long is one of the few Indiana legislators who recognize the importance of civics education and who support efforts to remedy the deficit. His efforts in this area are truly praiseworthy, which is why I find his willingness to turn over the task of rewriting our Constitution to people who don’t understand the one we have so puzzling.

Actually, the existing Constitution provides We the People with a remedy for unsatisfactory governance: it’s called elections. If we aren’t angry enough to use the electoral process to throw the bums out, there’s little reason to believe we are ready or able to improve upon the Constitution—and many good reasons to refrain from trying.

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The GOP’s Interesting Hierarchy of Rights

A recent posting to Facebook got me thinking about the language of rights that dominates our political discourse.

Responding to the over-the-top hysteria about 2d Amendment rights that greets even the most reasonable gun proposals–background checks, for example–the poster (a self-identified Republican) noted that the party’s concerns about constitutional rights have become very selective. Only when guns are involved does the party elevate a “constitutional right” over the right to life.

As he noted, Republican lawmakers defend government when it ignores basic human rights and the Geneva Convention, justifying such behaviors by saying the information so gathered may save lives.

The GOP is completely identified with the pro life movement, a crusade purporting to “save the lives of the unborn” by taking rights away from women. (A substantial number even wants to take away the right to birth control in order to “save lives” that have yet to even be conceived. )

In fact, he notes that the party is increasingly willing to ignore all manner of rights–except the right to own a weapon.

Citing the need to protect against a virtually non-existent in-person “voter fraud,” the GOP has spent the past several years trying to take away the right of poor and minority citizens to vote. The GOP  “fought like hell” to keep homosexuals from having the right to marry, and it fights “against any form of right, or laws both human and environmental that will hurt the bottom line of our campaign contributors.” The party refuses even to consider that healthcare might be a right, insisting that it is a privilege.… “Yet this one. This one right above all others we hold sacred. We refuse to bend.”

It’s an interesting–and accurate–perspective.

It’s also profoundly depressing.

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He’s Baaack…

Sometimes, the only reason I see things is that former students send them to me. Unfortunately, the things they send tend to be infinitely depressing.

A few days ago, a former student sent me a link to a story about crazy Alabama Judge Roy Moore. You’ll remember Moore from his previous term as Chief Judge of the Alabama Supreme Court (note to self: never, ever move to Alabama), when he commissioned a five-ton stone engraved with the Ten Commandments and had it installed at the Courthouse door. It was removed after the Federal Courts ruled it a gross and obvious violation of the First Amendment religion clauses–something you’d expect a judge to know.

Moore subsequently ran unsuccessfully for President on a Christian-Theocrat ticket of some sort. Most recently, he ran for–and won–his old seat on Alabama’s high court. (Note to self: remember this example of why we should not elect judges).

So, like Jaws (only more scary), he’s baaack.

Speaking at the Pastors for Life Luncheon, which was sponsored by Pro-Life Mississippi, Chief Justice Roy Moore of the Alabama Supreme Court declared that the First Amendment only applies to Christians because “Buddha didn’t create us, Mohammed didn’t create us, it was the God of the Holy Scriptures” who created us.

Moore had more:

Discussing Thomas Jefferson’s use of “life” in the Declaration of Independence, he said that “when [Jefferson] put ‘life’ in there, it was in the womb — we know it begins at conception.”

He later said the “pursuit of happiness” meant following God’s law, because “you can’t be happy unless you follow God’s law, and if you follow God’s law, you can’t help but be happy.”

And I bet Roy Moore will be happy to explain exactly what God wants. Which just happens to be what Roy Moore–in his twisted little mind–wants.

(Note to self: uncurl from fetal position–it’s bad for the back.)

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