Category Archives: Constitution

Talking the Talk, Avoiding the Walk

Tea Party types love to talk about the Constitution. Evidently, the only thing they like more is evading its requirements.

George W. Bush showed the way. With his aggressive use of signing statements, he avoided that pesky “veto override” problem. (Recall the tactic: he would sign a bill he didn’t like, rather than vetoing it, but he’d issue a signing statement to the effect that he wouldn’t enforce the law if he didn’t feel like doing so. That “veto by another name” avoided an override vote by Congress.  Mission–i.e., end run around the Constitution– accomplished!)

Today’s Congressional zealots are doing George one better. As Robert Reich recently pointed out,

The Constitution of the United States does not allow a majority of the House of Representatives to repeal the law of the land by de-funding it (and threatening to close the entire government, or default on the nation’s full faith and credit, if the Senate and the President don’t come around).

If that were permissible, no law on the books would be safe. A majority of the House could get rid of unemployment insurance, federal aid to education, Social Security, Medicare, or any other law they didn’t like merely by deciding not to fund them.

Like it or hate it, the Affordable Care Act was passed into law by affirmative votes of both Houses of Congress. It was signed (without the crossed fingers of a Signing Statement) by the President, who subsequently ran for re-election on a record that prominently included it and who handily won. Its constitutionality has been upheld by the Supreme Court.  There are not nearly enough votes to repeal it using the proper process.

But none of that matters to the arrogant ideologues who want to circumvent the Constitution they claim to revere by failing to fund the law of the land.

The truth of the matter is, the only Constitutional provision they really care about is (their version of) the Second Amendment.

Comments

History, Cut to Fit

I have often used this blog to complain that Americans know very little about our country’s history and governing structures–not to mention science and economics. A couple of days ago, a friend shared an exchange that once again underscored the point.

One of my friend’s high-school classmates had responded to a Facebook post in which he had saluted Lilly Company’s support for Freedom Indiana, the group formed to fight the effort to constitutionalize Indiana’s existing ban on same-sex marriage. The classmate wrote:
 ”The Constitution is inscribed to articulate inalienable rights we already have by virtue of the Creator. It is not an instrument whereby we are given grant ourselves wishes, no matter how well-intentioned they may be; no matter how noble they may sound.”
Grammatical errors aside, this construction pretty much stands history on its head. As my friend responded:
“What you’re describing here is a theocracy. Because we live in a nation with people of many faiths and people with none, I’m glad we don’t govern ourselves that way. Also, the term “inalienable rights” is from the Declaration of Independence, not the U.S. Constitution. There is no mention of God, Creator, etc. in the U.S. Constitution or the Bill of Rights (except to say “the year of our Lord” near the signatures). Even if you want to talk “inalienable rights” with regard to HJR-6 in Indiana, two of those articulated in the Declaration of Independence are “liberty” and “the pursuit of happiness.” I would suggest that by banning marriage for a subset of our fellow citizens, HJR-6 tramps on both of those “inalienable rights.”
My friend shared this exchange as confirmation that our concerns about widespread civic ignorance are valid. It certainly provides anecdotal confirmation of that concern. But it also raises some disquieting questions.
Would his high-school classmate see the world differently if he understood the history of America’s constituent documents? If he were familiar with Enlightenment philosophy, the writings of Hobbes and John Locke, the separationist beliefs of early religious figures like John Leland or Roger Williams? Or would he stubbornly “cherry pick” history and philosophy to make them conform to his own worldview? After all, it is enormously tempting to sift through biblical and constitutional texts to find support for our own prejudices, and right wing religious literalists aren’t the only people who do so.
Would we be able to communicate with each other more effectively if we shared a common understanding of the system we inherited–if we occupied the same reality? Or are we all so emotionally invested in our personal belief systems that we lack the openness required for genuine communication?
I have used my columns and blog to hammer at the importance of civic literacy, and I have warned of the dangers posed by our “civic deficit.” The establishment of a Center for Civic Literacy at IUPUI was based upon a belief that better civic education will provide us with a common language that will facilitate better communication, that better communication will lead to better policymaking, and that a common understanding of our roots will help ameliorate our toxic politics.
This exchange  between my civically savvy friend and his old high-school classmate reminded me that my premise could well be wrong. It may be that our very human desire to confirm our prejudices– and to deny inconvenient facts that are inconsistent with those prejudices–will always trump evidence contrary to our preferred realities.
Does education matter? Does it make a difference? We have to hope so.
Comments

Singing an Old Familiar Song

Yesterday, I participated in the ACLU of Indiana’s much-lauded “First Wednesday” series. I was on a panel titled “The Constitution: Peruse It or Lose It.”   The program was introduced by ACLU Executive Director Jane Henegar; the moderator was local businessman and owner of the IBJ, Mickey Maurer; the two other panelists were Michael Gordon, who teaches government at Munster High School, and State Senator Brant Hershmann.

Michael Gordon was superb. If we could clone this guy and put a clone in every high school government class, we might beat this civic deficit problem. And this event may have marked the first time I’ve ever agreed with Sen. Hershmann (who opposes any and all gun regulations, and sponsored the ban on same-sex marriage, among other things).

The format was informal, with Mickey goading the panelists (and making an effort to promote fireworks–an effort that failed). Although there were no scripts, we each were allowed a brief opening statement, and I thought I’d share mine.

I know this will seem all too familiar to regular readers, but really–it can’t be said too often!

Only 36% of Americans know we have three branches of government. Why does that freak me out?  Why is civic literacy important?

 This is a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing. Our constitutional values, our history and governing philosophy are ultimately all that Americans have in common.

 Like all human enterprises, governments have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, because this is a country based upon what Todd Gitlin has called a covenant. Americans don’t share a single ethnicity, religion or race. (Culture warriors to the contrary, we never have.) We don’t share a comprehensive worldview. What we do share is a set of values, and when we don’t know what those values are or where they came from, we lose a critical part of what it is that makes us Americans.

 At the end of the day, our public policies must be aligned with and supportive of our most fundamental values; the people we elect must demonstrate that they understand, respect and live up to those values; and the electorate has to be sufficiently knowledgeable about those values to hold public officials accountable. We can’t do that if we don’t know what those values are or where they came from.

 In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When those arguments are between people trying to rewrite history and citizens who don’t know better, we undermine our political institutions and erode social trust.

 At our new Center for Civic Literacy at IUPUI, we intend to research a large number of unanswered questions. What, for example, do citizens need to know? Why have previous efforts to improve civics instruction lacked staying power?  How is civic ignorance implicated in our currently toxic politics?

 At the end of the day, it doesn’t matter if I think the Establishment Clause requires a certain result and you think it requires a different one. What matters is that we both know what the Establishment Clause is, and what value it was meant to protect. It doesn’t matter whether I think Freedom of the Press extends to bloggers and you disagree. It matters a lot that we both know what Freedom of the Press means, and why it was considered essential to the maintenance of trustworthy government.

 Daniel Patrick Moynihan famously said we are all entitled to our own opinions, but not to our own facts. If I think this is a table and you think it’s a chair, we aren’t going to have a very productive discussion about its use. We don’t need citizens who all agree about the implications of our founding decisions, or who even agree with the decisions themselves.

But we desperately need citizens who share an understanding of what those decisions were.

Comments

Democracy and Liberty Continued…

Indiana’s very “Christian” Governor has come out (no pun intended) in favor of letting Hoosiers vote on whether the state should recognize same-sex marriages. He has also disclaimed any intent to discriminate–why bless my grits, honey, he’s all in favor of people choosing their own lifestyles! Surely it can’t be discriminatory to deny civil recognition to non-biblical unions, even if that recognition does carry with it 1030+ rights and privileges.

After all, what’s a little tax inequity among friends?

As a member of Indiana’s legislature assured me the last time I testified against HJR 6 or whatever the number was–there is absolutely no discrimination involved here. The same marriage laws apply to straight and gay people–they can all marry people of the opposite sex.

And rich and poor people alike are prohibited from sleeping under bridges.

The problem with voting on a constitutional amendment that would deny certain people rights that our laws deem to be fundamental is that–in our system, under our Constitution–rights are not subject to the whims of the majority. That’s why they are rights, rather than privileges. No one said it better than Justice Jackson, in West Virginia Board of Education v. Barnette. In my all-time favorite Supreme Court quote, Jackson wrote

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein..The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Presumably, Governor Pence and Brian Bosma both slept through Constitutional Law. Although I have a sneaking suspicion that they might suddenly remember this principle if they faced mean-spirited, politically-motivated efforts to vote on their fundamental rights.

Comments

Inconvenient History

On the 4th of July, the Indianapolis Star had dueling full-page ads, one from the Freedom from Religion Foundation, and another purchased by Hobby Lobby, both focused upon the “real” beliefs of the Founders. Taken together, they were a great example of the perennial battles over separation of church and state.

A post yesterday from Ed Brayton at Dispatches from the Culture Wars points out how much that narrative has changed.

During the arguments over ratification of the Constitution and for a considerable time thereafter, religious folks complained bitterly about the “godlessness” of the Constitution, and made several efforts to amend religion into it. When those efforts failed, they switched tactics, and began to argue that the Constitution established the US as a “Christian nation.”

Brayton quotes Timothy Dwight, a Congregationalist minister and president of Yale, who wrote:

“Notwithstanding the prevalence of Religion, which I have described, the irreligion, and the wickedness, of our land are such, as to furnish a most painful and melancholy prospect to a serious mind. We formed our Constitution without any acknowledgment of God ; without any recognition of his mercies to us, as a people, of his government, or even of his existence. The Convention, by which it was formed, never asked, even once, his direction, or his blessing upon their labours. Thus we commenced our national existence under the present system, without God.”

Historians Isaac Kramnick and Lawrence Moore offered many similar examples in their book The Godless Constitution: A Moral Defense of the Secular State:

If there was little debate in Philadelphia over the “no religious test” clause, a veritable firestorm broke out in the country at large during the ratification conventions in each of the states. Outraged Protestants attacked what they saw, correctly, as a godless Constitution. The “no religious test” clause was perceived by many to be the gravest defect of the Constitution. Colonel Jones, a Massachusetts delegate, told the state’s ratifying convention that American political leaders had to believe in God and Jesus Christ. Amos Singletary, another delegate to the Massachusetts ratification convention, was upset at the Constitution’s not requiring men in power to be religious “and though he hoped to see Christians [in office], yet by the Constitution, a papist, or an infidel was as eligible as they.” In New Hampshire the fear was of “a papist, a Mohomatan [sic], a deist, yea an atheist at the helm of government.” Henry Abbot, a delegate to the North Carolina convention, wamed that “the exclusion of religious tests” was “dangerous and impolitic” and that “pagans, deists, and Mahometans [sic] might obtain offices among us.” If there is no religious test, he asked, “to whom will they [officeholders] swear support-the ancient pagan gods of jupiter, Juno, Minerva, or Pluto?”

As Brayton notes, “attempts were made throughout the 1800s to amend the Constitution to include language expressing the nation’s dependence on God or Jesus (depending on the specific amendment), all of which failed. It was only in the early 20th century that they suddenly reversed themselves and began arguing that the Constitution they had been condemning for more than a century as godless was really a Christian document all along.”

Of course, it is a lot easier to make that argument these days, when so few schools bother to teach–and so few people know–their country’s history.

Comments