Category Archives: Constitution

Constitutional Oblivion

I know I’m a broken record when it comes to the appallingly low level of civic literacy in this country, but bear with me for one more installment of “Is it really possible to be that ignorant?” 

Valarie Hodges is an actual, nonfictional member of the Louisiana legislature, which means Louisiana citizens elected her to that body. She enthusiastically supported Governor Bobby Jindal’s school voucher program; however, it turns out that her support rested on the premise that school vouchers could only be used for Christian schools.  As she explained her position,  “I actually support funding for teaching the fundamentals of America’s Founding Fathers’ religion, which is Christianity, in public schools or private schools. I liked the idea of giving parents the option of sending their children to a public school or a Christian school.”

Where to start?

There’s the bad history, of course. While the nation’s founders were all nominally Christian–Protestant, to be more specific–their actual beliefs varied. Some were traditional believers. Many were Deists. Jefferson famously re-wrote the bible to eliminate all the metaphysics (pardon me, Valerie–that means ‘the God stuff’), leaving only the moral instruction. Adams opined that the attribution of divinity to Jesus was a great heresy. Franklin was openly skeptical–and, unlike Valerie–famously tolerant.

Then there’s the Constitution. People we elect to public office take an oath to support the Constitution of the United States. Is it too much to expect that they have some minimal acquaintance with that document?

Read together, the religion clauses of the First Amendment are a prescription for government neutrality in matters of conscience. Government is prohibited from favoring one religion over another, or religion over non-religion. That’s what we mean by separation of church and state–government, even in Louisiana, has to keep its grubby hands out of our souls. From the tenor of her remarks, its safe to assume that Valerie had never encountered references to or explanations of the Establishment Clause or the Free Exercise Clause, and would be surprised to learn that they prohibit teaching Christianity in public schools, let alone authorizing vouchers to be used only in Christian schools.

But finally, there’s reality. Are there no non-Christians in Louisiana? I can understand why there might not be a Buddhist Temple or Hindu shrine close by, but really, are there no synagogues or mosques? Has Valerie ever met an atheist? A Unitarian? Does she watch television or read news on the Internet? It is incredible that she seems never to entertained the possibility of neighbors who do not share her particular beliefs.

I hope–I believe–that Valerie is an outlier, that her incredible ignorance of the law and history and composition of her own country is unrepresentative. But we have a lot of anecdotal and survey data that suggests she isn’t as much of an anomaly as we might hope.

I’m not sure what we do about people like Valerie, or about the people who educate and elect the Valeries of our nation, but several of us at IUPUI intend to find out.

Tomorrow, I’ll explain how.

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Reconsidering ID

I’ve always been reflexively opposed to the notion of a national ID card. Call it the civil libertarian in me, but such an identifier raises visions of police states past and privacy intrusions future. That said, I’ll admit this is not an issue I’ve really thought through–my distaste is more visceral than intellectual.

So I was grudgingly persuaded by Bill Keller’s column in this morning’s New York Times.  Keller’s point of departure was the recent Supreme Court decision that struck down most of the Arizona immigration law, but left intact the right of police to demand “papers” from people being detained for other reasons. As he pointedly asked, “What ‘papers’?” What sorts of identification do any of us carry that proves we are citizens? Wouldn’t employers and police officers be better served by the existence of a standard ID?

Keller acknowledges the privacy concerns.

 “The trick, and I won’t pretend it’s always easy, is to distinguish the reasonable and constructive from the invasive and excessive. We want the sales clerk at the Gap to know our credit card is good, but not to have access to our whole credit history. We want our doctors to share our health histories with one another, but probably not with our employers. We may or may not want retailers to know what kind of books we read, what kind of car we drive, where we are thinking of traveling. We may or may not want those who follow us on the Web to know our real-time location, or our real name.”

“This will not satisfy those who fear that any such mandate is potentially “a tool for social control,” as Chris Calabrese of the A.C.L.U. put it. But the only way to completely eliminate the risks of a connected world is to burn your documents, throw away your cellphone, cancel your Internet service and live off the grid.

As it happens, the proposal I described is already on the table. Senators Charles Schumer and Lindsey Graham included it in their menu for comprehensive immigration reform in 2010. For obvious reasons, they didn’t call it a national ID. They called it an “enhanced Social Security card.”

Like just about everything else, immigration reform is stuck in the mangle of election-year partisanship. And if Congress ever does revert to the business of solving problems, there should be many parts to a humane, sensible immigration bill — including expanded legal immigration and a path to citizenship for many of those already here. But a fraud-proof, limited-use national identification card is an essential part of the package.

Then the Arizona police can go back to doing their real jobs.”

I won’t say his argument entirely persuades me–but it’s undeniably logical, and worth more consideration than I have previously given the matter. Read the whole column, and see what you think.

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I’m Conflicted

A recent decision by the Illinois Attorney General has thrown me into one of those “On this hand…but on the other hand..” internal conflicts.

The Attorney General and another Illinois prosecutor have announced that they will not defend that state’s ban on same-sex marriage against a challenge being brought by couples whose application for marriage licenses were denied. Their reasoning was that they believe the ban to be unconstitutional under the equal protection clauses of both the state and federal constitutions.

I agree with that conclusion, but that doesn’t resolve the conflict.

The duty of an Attorney General is to defend the laws of his jurisdiction. It’s the duty of the judiciary to decide whether those laws are proper. Separation of powers is one of the most fundamental elements of American government, and our courts depend on the adversarial system to sharpen clarify the questions presented. And even criminals and legislators (whose ranks are not always as distinguishable as we might wish) deserve representation. It is the job of Attorneys General to defend laws whether they personally believe those laws are fair or prudent.

On the other hand, criminal prosecutors who proceed with cases against people they know to be innocent violate their oaths of office, and their duty to justice, and we rightly condemn them. They aren’t duty bound to prosecute everyone initially charged with a crime; we expect them to apply their best judgment and to proceed only when there is a substantial likelihood of guilt.

Our elected officials are sworn to uphold the Constitution. When they are convinced that a particular enactment cannot survive constitutional scrutiny, must they spend time and resources defending it? What is the weight of evidence required before such a decision is appropriate?

There are also questions of credibility: wouldn’t the people of Illinois be more likely to accept a decision by a court than one by the state’s chief lawyer?

I agree with the Illinois AG about the ban’s unconstitutionality. I’m not entirely sure I agree with her decision to forgo its defense.

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Disorderly Law

When I read about City-County Councilor Joe Simpson’s arrest last week for “disorderly conduct,” I immediately thought about an incident several years ago involving the then-Legal Director of Indiana’s ACLU.

He had been on his front porch when police descended on the house next door, and he took issue with aspects of their behavior which he believed violated the Constitution. He never left his porch, but he did enter into a verbal exchange with the police, who responded by arresting him for disorderly conduct. Being a lawyer–and an ACLU lawyer to boot–he sued for false arrest. For years thereafter, he liked to say that the City provided the downpayment for his new house.

I don’t know the details of the altercation between Joe Simpson and the police–although I do know that the parallels being drawn between his arrest and past legal problems of other Councilors are ridiculous: surely we can draw a distinction between mouthing off to the police and taking bribes. That said, perhaps his arrest was justified, perhaps not.

My problem is with laws that lack specificity. Laws against “disorderly” conduct and “loitering” are widely recognized as invitations to official abuse. Police are notorious for using these catch-alls to arrest people whose “crime” has been to challenge their authority. As I tell my students, the rule of law requires that laws be written with sufficient specificity and clarity to alert citizens to the sort of behavior that is being proscribed.

It is manifestly unfair to legislate against vague categories of behavior, without defining the elements of that behavior. If the legislature passed a measure outlawing “irresponsible” driving, for example, such a law would fail to provide any meaningful direction to drivers and would vest far too much discretion in traffic police. Instead, we spell out the behaviors we want to prohibit: speeding, texting while driving, failing to wear a seat belt, etc. Policymakers and citizens can agree or disagree about the propriety of those particular prohibitions, but we all know them when we see them.

There is no such clarity with laws against loitering or disorderly conduct.

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What Constitutes “Speech”?

This morning’s news included a report on a Virginia lawsuit brought by sheriff’s deputies alleging retaliatory firing in violation of their free speech rights. They claimed they’d been dismissed for supporting the Sheriff’s (unsuccessful) opponent in a recent election.

The law is pretty clear that public employees do not lose their First Amendment rights simply because they work for government. So long as they exercise those rights on their own time, and avoid behaviors that would compromise the terms of their employment, they cannot be punished for expressing political opinions or otherwise engaging in expressive conduct.

Here, the “conduct” was clicking the “like” button on the opponent’s Facebook page. The question before the court was whether “liking” something on Facebook amounted to Free Speech. The Judge said it didn’t, since no actual words were typed.

The Judge was wrong.

The courts have consistently held that the Free Speech clause of the First Amendment protects the expression of an idea. Marching in a parade, saluting–or burning–a flag, and yes, clicking the “like” button on Facebook, all express agreement and endorsement, and are protected expression. The only reason people want to prevent Nazis from marching is that they get the message, loud and clear. Same with flag burning; the message of disdain for our country is what offends us.

Some messages don’t require words.

The Sheriff obviously thought that “liking” his opponent’s page sent a message. And he evidently understood it.

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