Category Archives: Constitution

As The Legal World Turns….

The news that a symbol supporting the January 6th insurrection had hung outside Justice Alito’s home was stunning. It was so outside everything lawyers have been taught about proper judicial behavior and ethics that anyone who has ever studied the law, or the role of the courts, was incredulous. If there was any doubt about its significance, or the dishonesty of Alito’s attempt to blame his wife, a subsequent report–with photos–shows that Christian Nationalist “Appeal to Heaven” flag, used by January 6th insurrectionists, flew for two months at Alito’s beach house.

As Robert Hubbell writes, “Alito is signaling his partisan allegiance and Christian nationalism. As I wrote yesterday, we should take him at his word. If we do not, he will continue to vote for outcomes and write opinions that are antithetical to the liberties guaranteed in the Constitution.”

It doesn’t really require legal training to understand how profoundly Alito violated norms of appropriate judicial behavior. If a local judge flew a flag supporting one side of a case over which he was currently presiding, ordinary citizens–not to mention the local bar association–would immediately demand removal of both the case and the judge.

I may feel this incredible impropriety more strongly because I approached the teaching of my policy classes through a constitutional lens. I taught my students that the Constitution and Bill of Rights constrain policy choices–that legal precedents determine the boundaries of legitimate government action. I’ve previously explained that Alito’s Dobbs decision threatened far more than reproductive rights–that it undermines a longstanding legal doctrine that draws a line between permissible and forbidden government interventions.

I’m no longer teaching, and I really don’t know how I would handle the reality that “settled” constitutional interpretations are being routinely ignored by Justices on America’s highest court, so I sympathized with the law school professors interviewed on that issue by The New York Times. As one said,

One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means,” he said. “And the degree of difficulty of that proposition has never been higher.”

That difficulty was addressed by the professors interviewed by the Times. As several noted, teaching constitutional law has for many years been based on an underlying premise: 

That the Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity, than in imposing a partisan agenda.

The premise no longer holds today. Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way. 

The mounting concerns of legal scholars are shared on both the political left and right. Michael McConnell is an extremely conservative legal scholar who has criticized the analyses of even the cases that reach his preferred conclusions. He worries that the dishonesty and hypocrisy of these justices is undermining the respect required by the rule of law.

Professor McConnell recalled a recent exchange in one of his classes. “I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand, and he asks: ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.”

As Maya Angelou told us: When someone shows you who they are, believe them.

Alito’s breathtaking breaches of judicial behavior leave no doubt about who he is. He should be impeached.

Comments

Are Remedies Discriminatory?

If I started a nonprofit that provided wheelchairs only to crippled people, would I be discriminating against people who aren’t “mobility-challenged”? 

If I established a mentoring organization to assist kids who were failing math, would I be discriminating against kids who were doing well in math?

What if I started a foundation focused on–and limited to– helping Black women entrepreneurs? Would that amount to discrimination against Whites and men?

The courts are about to answer that last question.

Each of the efforts I’ve described center on helping a population that demonstrably needs a helping hand: people who cannot walk unaided, kids who struggle with math, Black businesswomen disadvantaged by years of discrimination. 

It turns out that the White Wing–aka the Right Wing–strongly objects to efforts to ameliorate that latter disadvantage, seeing such remedial efforts as discrimination against White folks. And our reactionary Supreme Court may well agree with them.

They might be courtroom adversaries, but Arian Simone swears she and the man suing her venture capital firm want the same thing: an America where race does not matter.

The difference is that Simone believes race-specific initiatives like the Fearless Fund are essential to achieving that ideal. Given that Black-owned start-ups secured less than 1 percent of the nation’s VC spending last year, she said, “I can’t stop.”

But the conservative activist driving the lawsuit, Edward Blum, says racial equity is not one-sided. That’s why he insists that the fund’s grant program for Black women is discriminatory, in one of the most-watched civil rights cases since he was on the winning side of the landmark Supreme Court decision that overturned race-conscious college admissions.

In the coming months, a panel on the U.S. Court of Appeals for the 11th Circuit in Florida will decide whether to block the Atlanta-based Fearless Fund from awarding $20,000 grants to Black female-owned businesses while the case is litigated in trial court. The stakes could not be higher, as evidenced by the legal firepower lining up on both sides and the swarm of amicus briefs, illustrating the vastly different interpretations of the nature of discrimination, the role of history in shaping public policy and how civil rights should work in America.

Four years of Donald Trump’s Court appointments have distorted more than just the Supreme Court; two of the three judges on the 11th Circuit panel are Trump appointees, and according to the linked report, have appeared skeptical of the Fund’s argument that its targeted giving is “charitable giving” protected by the First Amendment.

Should Blum’s American Alliance for Equal Rights prevail, the case could have sweeping implications for any race-based initiative in the private sector, particularly grant programs, scholarships and other efforts with monetary benefits, according to observers on both sides of the issue. In less than a year, Blum’s legal nonprofit organization has reached settlements in about a half-dozen cases involving scholarships and fellowships at large law firms, as well as a Texas-based grant program for minority and women entrepreneurs. All agreed to drop racial criteria to resolve the discrimination claims.

The attorney who filed an amicus brief on behalf of the Lawyers’ Committee for Civil Rights Under Law and the NAACP Legal Defense Fund has accused the plaintiffs of “taking the Civil Rights Act of 1866 and trying to turn it on its head, so that it becomes weaponized and undermines efforts to do exactly what the Civil Rights Act was intended to do, which was be remedial and race-conscious.”

The lawsuit is an attack on efforts at remediation. Fearless Fund was established to address what it called “the chasm in venture capital for start-ups run by women of color.”  In 2018, the year the Fund was established, businesses headed by Black women received exactly 1 percent of the $131 billion invested that year. Conservatives argue that targeting investments in an effort to level the playing field is anti-business and–horrors!– meant to promote a “liberal agenda.” The lawsuit is part and parcel of the broader backlash against DEI efforts in higher education and the business world. Civil Rights organizations respond that the Fund’s grant program is a form of charitable giving —  much like organizations that support people of a certain heritage, such as the Sons and Daughters of Italy in America.

As one commentator has written, the case should trouble people who value the independence of American philanthropic institutions– even opponents of affirmative action and DEI. Fearless Fund grants are awarded by a 501(c)(3) nonprofit foundation that should have the right to target its grant program as it chooses.

 Conservatives used to advocate for limits on government intrusion into private behaviors. I guess that was only so long as those private behaviors benefitted White men. 

Comments

A Civics Lesson, Or Why I Love Jamie Raskin

Watching today’s House of Representatives too often reminds me of farce: Marjorie Taylor Greene and her ilk are so lacking in gravitas, so proudly ignorant, so strident as they parade their various prejudices and display their utter unfitness for elective office, the show they put on tends to overpower recognition of their more serious and/or able colleagues.

One of my favorites in that latter group is Jamin Raskin. I’ve followed Congressman Raskin since before he was first elected, actually–many years ago, my husband and I were in Washington, D.C., catching up with former Mayor Bill Hudnut and his wife Beverly. Bev was then in law school, and introduced me to her Constitutional Law professor, who–among other things– shared my obsession with civic literacy, and had produced a book for use by high school government teachers. That professor was Jamin Raskin.

During his tenure in Congress, Raskin has frequently called upon his academic background to explain America to his dimmer colleagues. One of my favorite examples was when he told an excessively pious lawmaker, “When you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible.” (He recently repeated this to Mike Johnson, the current Speaker, who has frequently opined that “the bible comes first, before the Constitution.”)

He taught another lesson when he spoke out against the censure of Congresswoman Rashida Tlaib, who had made remarks that echoed long-time anti-Semitic tropes. In a press release, Raskin–who is Jewish–

urged the House to respect and protect the right to political free speech granted under the First Amendment and the Speech or Debate Clause by not using the House disciplinary process to punish Members’ political speech; warned of the chilling effects that politicizing and weaponizing the House’s censure mechanism would have on the speech of all Members; and noted that, in the history of the House of Representatives, the overwhelming number of censures have been for conduct, like taking bribes, embezzling funds, assaulting other Members, engaging in mail fraud, and having sex with pages, and that the only kinds of speech that have ever been punished have been true threats of violence, fighting words on the floor towards other Members, and incitement to insurrection and secession, none of which are protected by the Constitution and none of which are implicated here.  

Raskin’s legal skills were evident when he managed Trump’s second impeachment.

And recently, when Congressman Glenn Grothman attempted to lecture Raskin on a perceived distinction between a “republic” and a “democracy,” Raskin outdid himself, providing Grothman with a history lesson.

The link is to CSpann, and I urge you to click through and watch Raskin deliver that brief but powerful lesson.

Raskin’s work ethic has been obvious, as he has continued to work during a recent bout with cancer and the unimaginable pain of losing a son to suicide. 

There are undoubtedly other Jamie Raskins in “the people’s House,” with whom I’m unfamiliar. I focus on him because I’ve met him, because he actively defends important constitutional values,  and because his wit and intellect and work ethic have all been particularly impressive, but I am confident that for every MTG, Jim Jordan, Paul Gosar and Jim Banks there are two or three serious elected Representatives trying to do a good job for their constituents at a particularly contentious time.  (The recent bipartisan booing of MTG on the House floor was a welcome indicator that those individuals are as tired of performative politics as I am.)

Perhaps–if and when Americans tire of confusing political gravitas and legislative capacity with celebrity–we will be able to replace the Christian Nationalist “God squad” and other self-important know-nothings with people who are actually familiar with the Constitution and serious about producing legislation to improve Americans’ lives, and strengthen democratic values.

Like Jamie Raskin. 

Comments

It’s We, The People

Robert Kagan recently published a lengthy excerpt from his recent book  “Rebellion: How Antiliberalism is Tearing America Apart — Again” in the Washington Post.

In it, he dismissed a variety of explanations for the MAGA embrace of Trump–discarding arguments that the movement is a result of rapidly changing technology, widening inequality, unsuccessful foreign policies or unrest on university campuses. Instead, he pinned it on failures of We the People.

It is what the Founders worried about and Abraham Lincoln warned about: a decline in what they called public virtue. They feared it would be hard to sustain popular support for the revolutionary liberal principles of the Declaration of Independence, and they worried that the virtuous love of liberty and equality would in time give way to narrow, selfish interest. Although James Madison and his colleagues hoped to establish a government on the solid foundation of self-interest, even Madison acknowledged that no government by the people could be sustained if the people themselves did not have sufficient dedication to the liberal ideals of the Declaration. The people had to love liberty, not just for themselves but as an abstract ideal for all humans.

Kagan worries that too many of us no longer care about preserving the system the Founders bequeathed us–a system based on the principles of universal equality and natural rights. Preserving that system, he says, “plain and simple, is what this election is about.”

“A republic if you can keep it,” Benjamin Franklin allegedly said of the government created by the Constitutional Convention in 1787. This is the year we may choose not to keep it.

Kagan follows that sentence with an extended recap of what most Americans know–about the intent of the January 6th insurrection, about Trump’s candid announcements of his goals, about the unconscionable failure of the Senate to use impeachment, the mechanism provided by the Founders, to negate the threat of further insurrection. Then he gets to the crux of his argument.

So, why will so many vote for him anyway? For a significant segment of the Republican electorate, the white-hot core of the Trump movement, it is because they want to see the system overthrown. This should not come as a shock, for it is not a new phenomenon. On the contrary, it is as old as the republic. Historians have written about the “liberal tradition” in America, but there has from the beginning also been an anti-liberal tradition: large numbers of Americans determined to preserve preliberal traditions, hierarchies and beliefs against the secular liberal principles of the Declaration of Independence and Bill of Rights. The Founders based the republic on a radical set of principles and assertions about government: that all human beings were created equal in their possession of certain “natural rights” that government was bound to respect and to safeguard. These rights did not derive from religious belief but were “self-evident.” They were not granted by the Christian God, by the crown or even by the Constitution. They were inherent in what it meant to be human.

That paragraph introduced a lengthy historical discussion in which Kagan reminded readers that MAGA is really nothing new. Throughout our history, significant numbers of Americans have rejected the classical liberal foundations of the nation’s constituent documents–and especially the notion of civic equality.

For two centuries, many White Americans have felt under siege by the Founders’ liberalism. They have been defeated in war and suppressed by threats of force, but more than that, they have been continually oppressed by a system designed by the Founders to preserve and strengthen liberalism against competing beliefs and hierarchies. Since World War II, the courts and the political system have pursued the Founders’ liberal goals with greater and greater fidelity, ending official segregation, driving religion from public schools, recognizing and defending the rights of women and minorities hitherto deprived of their “natural rights” because of religious, racial and ethnic discrimination. The hegemony of liberalism has expanded, just as Lincoln hoped it would, “constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of colors everywhere.” Anti-liberal political scientist Patrick Deneen calls it “liberal totalitarianism”….

Kagan reminds us that the fury on the Right against “wokeness” is nothing new. “Anti-liberal movements in America, whether in defense of the White race or Christianity, and more often both together, have always claimed to be suffering under the expanding hegemony of liberalism.”

There is much more, and it is definitely worth reading in its entirety.

Bottom line: MAGA’s Christian Nationalism is nothing new. In November, We the People will either defend our “natural rights” or we will lose them.

Comments

Not Even A Festivus For The Rest Of Us…

Unlike most Americans, I was never a big “Seinfeld” fan, but many of the sitcom’s jokes became widespread–none more than its promotion of “Festivus for the rest of us,” a “celebration” for those who don’t celebrate Christmas.

What brought that mythical holiday to mind was a very unfunny report from Talking Points Memo about America’s growing Christian Nationalist movement, a movement that–if successful–will leave no room for alternate (i.e. nonChristian) holidays. The sub-head really says it all: “From traditional Christian-right figures to secret societies envisioning a ‘national divorce,’ a growing contingent of radical activists is planning for Christian supremacy.”

The report was written by Sarah Posner, a journalist who has covered the Christian Right for two decades.

Over the past three years, I began to more frequently use the term “Christian nationalism” to describe the movement I cover. But I did not start using a new term to suggest its proponents’ ideology had changed. Instead, the term had come into more common usage in the Trump era, now regularly used by academics, journalists, and pro-democracy activists to describe a movement that insists America is a “Christian nation” — that is, an illiberal, nominally democratic theocracy, rather than a pluralistic secular democracy.

To me, the phrase was highly descriptive of the movement I’ve dedicated my career to covering, and neatly encapsulates the core threat the Christian right poses to freedom and equality. From its top leaders and influencers down to the grassroots — politically mobilized white evangelicals, the foot soldiers of the Christian right — its proponents believe that God divinely ordained America to be a Christian nation; that this Christian nation has come under attack by liberals and secularists; and that patriotic Christians must engage in spiritual warfare to rid America of demonic forces, and in political action to restore its Christian heritage. That includes taking political steps — as a voter, as an elected official, as a lawyer, as a judge — to ensure that America is governed according to a “biblical worldview.”

Those of us who occupy a far more secular America have been laboring under the misapprehension that religious wars are things of the past. Those of us who are comfortable in a society formed in large part by changes introduced during the Enlightenment–respect for science and empiricism, belief that governments derive their powers from the people, not from deity–have a hard time recognizing, let alone understanding, a worldview that remains rooted in the 16th Century. But that is the worldview that has spawned today’s politically active megachurches, and what the article calls “culture-shaping organizations like Focus on the Family and the Family Research Council.

These “Christian soldiers” want governance according to their vision of a biblical worldview. They oppose church-state separation, want expanded rights for conservative Christians, are dead-set against abortion and LGBTQ rights, and are extremely hostile to trans people and trans rights. (Here in Indiana, Jim Banks–currently the unopposed Republican candidate for U.S. Senate, often called “Focus on the Family’s man in Washington, is a perfect example of a Christian Nationalist “warrior.”)

Posner and several others have noted the prominence of Christian iconography at the January 6 insurrection, and the growing willingness of MAGA Christians to tolerate, even welcome, virulent racists, anti-Semites and other extremists in their midst. As she writes, “Their entire alliance with Trump is one of sharing political and ideological space with the overtly antisemitic, racist, Islamophobic, nativist extremists he elevated to mainstream status in the GOP.”

Posner describes the various strands within Christian Nationalism, but notes commonalities as well: they “believe they are restoring, and will run, the Christian nation God intended America to be — from the inside.”

They will do that, in their view, through faith (evangelizing others and bringing them to salvation through Jesus Christ); through spiritual warfare (using prayer to battle satanic enemies of Christian America); and through politics and the law (governing and lawmaking from a “biblical worldview” after eviscerating church-state separation). Changes in the evangelical world, particularly the emphasis in the growing charismatic movement on prophecy, signs and wonders, spiritual warfare, the prosperity gospel, and Trumpism, has intensified the prominence of the supernatural in their politics, giving their Christian nationalism its own unmistakable brand.

Every single MAGA politician elected in November will be a foot-soldier for Christian Nationalism. A Trump victory would give them free reign to remake America in accordance with a “Godly” vision–a vision that was expressly rejected by the nation’s Founders.

The world that these Christian Nationalist politicians inhabit (and want to impose upon all of America) is pre-modern, intolerant, anti-science, anti-democracy. It has no room for “the rest of us.”

Comments