Why Do Gun Rights Trump All Other Rights?

As readers of this blog know, I’m a pretty rabid civil libertarian. But even I know that my right to free speech doesn’t mean I can stomp into your living room to harangue you. My right to free exercise of religion doesn’t include the right to impose that religion on students in my public university classroom. My right to petition my government for a redress of grievances doesn’t translate into a right to march into the legislature when it is in session and disrupt the proceedings.

In other words, the exercise of my rights is conditioned upon my willingness to respect the equal rights of others.

Granted, that little caveat is widely ignored by citizens who are absolutely convinced that they and they alone are in possession of Truth that must be imposed upon others despite the fact that those others may have Truths of their own. Nevertheless, respect for the equal rights of others is a foundational premise of our legal/constitutional system.

Those for whom the Second Amendment is less a statement of rights than a religion just don’t get that. They seem to believe that the Second Amendment trumps all the other provisions of the Bill of Rights. A couple of years ago, the Indiana legislature blithely ignored the rights of employers to determine what safety measures they would require, and passed a measure allowing workers to pack heat in the workplace. Now, a state representative has introduced a bill to allow students–and presumably others–to come armed to campus.

There are sound reasons why IUPUI and other universities do not want guns on campus. We have our share of immature students, troubled students, and far more troubled visitors. (There used to be a self-described “evangelist” who “preached” loudly on the plaza next to my building, calling female students “whores of Babylon” and ranting about various sins he attributed to passersby. I don’t think arming him would have been a great idea.) I know that gun lovers really believe arming students would prevent tragedies like Virginia Tech;  I don’t share their sunny suppositions–my guess is it would be equally likely to increase the bloodshed. But whether I am correct or they are is not the point.

The point is that government should not be able to decide who can come armed into my home, my place of business or my office on campus.

Gun rights activists who are constantly criticizing government over-reach, constantly talking about limited government, ought to take a good hard look in the mirror. Their hypocrisy is showing.

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The Body Politic

Tonight, I’ll chair a Spirit and Place Panel on “The Body Politic” at the Indiana Statehouse. I hope some of you can attend; for those who can’t, here are my introductory remarks.

I’d like to introduce the panel: Eric Meslin is Associate Dean and Director of the Center for Bioethics at the IU School of Medicine; Philip Goff is Associate Dean of Liberal Arts at IUPUI and Director of the Center for the Study of Religion and American Culture; and Louis Galloway is Senior Pastor at 2d Presbyterian Church. I’m Sheila Kennedy, and I teach Law and Public Policy at the School of Public and Environmental Affairs.

So–What is a “body politic”? For purposes of tonight’s discussion, the body politic is best defined as a political community, a collective body of people who share allegiance to a particular government.  Or—as I like to think of it—a body politic is comprised of people who share certain norms and attitudes that have been shaped by their governing philosophy and institutions, people who share a certain Constitutional culture.

Our national motto is e pluribus unum—out of the many, one. That never has meant sameness or homogeneity—Americans have never shared a single religion, national origin, skin color, or even political philosophy. What we have shared is a certain approach to how we live together, an approach that grew out of the Enlightenment and includes a strong belief in the importance of reason, the rule of law, individual rights and political equality. Our political community makes space for all the other communities we participate in: religious communities, professional communities, social communities and so forth. A healthy political community—a healthy body politic—is essential to the health of all our other associations. And right now, the body politic isn’t doing so well.

The question our panel will consider is: what does it take to create and maintain a body politic? Are there things that citizens absolutely have to know, values they absolutely have to share? In a country as diverse as ours, what creates and sustains unum from our pluribus?

In 1987, E.D. Hirsch wrote a book called Cultural Literacy: What Every American Needs to Know. His thesis was that in order to engage in genuine communication, people need to share a basic understanding of cultural allusions—terms like “banana republic” or “academic freedom” or “Achilles heel,” that are used as short-hands to convey certain ideas common to the culture. The person who is unfamiliar with those terms, according to Hirsch, is not genuinely engaged in the conversation. Whether or not you accept Hirsch’s entire thesis, it’s hard to argue with the proposition that we need a shared understanding of basic cultural references in order to communicate. The question is: what is the minimum that Americans need to know in order to sustain a healthy body politic?

These days, if you turn on a “public affairs” television program, listen to talk radio, or attend a lawmaker’s “town meeting,” you are likely to witness the increasing stridence and incivility of what currently passes for democratic discourse.  Our elected officials seem unable to engage with each other in anything approaching a productive and mutually meaningful exchange.  Americans seem increasingly to be talking past, rather than to, each other.

On one hand, it is important to place our current “red state/blue state” hostilities in historical perspective. This country has seen periods of very significant conflict before—the Civil War, prohibition, the civil rights movement, and the turmoil of “the sixties,” to name just a few.  On the other hand, the radical pluralism that characterizes modern life—and the new technologies that bring a certain “in your face” quality to that pluralism—pose challenges that are arguably unlike those of past times.

It’s fairly obvious that the labeling and insults that increasingly dominate our media and politics aren’t communication. Communication doesn’t require an absence of argument or disagreement, but it does require that we actually hear each other, that we argue from the same basic premises or facts, that at some level, no matter how minimal, we be able to acknowledge what it is the other person is saying and understand the basis upon which that person is saying it.

Unfortunately, these days Americans seem to be living in separate realities, unable to participate in the same conversation. And in my own opinion, one of the root causes of that disconnect is a widespread lack of civic literacy and cultural competence.

I study how constitutional values operate within a diverse culture, how those values connect us to people with very different backgrounds and beliefs and make us all Americans.  That research has convinced me that an understanding of the history and philosophy of our country is absolutely critical to our continued ability to function as a body politic. That research has also convinced me that the civic literacy we need is in short supply.

Let me share an anecdote that may illustrate my concern. When I teach Law and Public Affairs, I begin with the way our particular legal framework limits our policy options, and how “original intent” guides our application of Constitutional principles to current conflicts. I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how Madison’s beliefs about freedom of expression should guide courts faced with contemporary issues involving the internet. But a couple of years ago, when I asked a young woman—a junior in college—that question, she looked at me blankly and asked “Who’s James Madison?”

It’s tempting to dismiss this as anecdotal, but there are reams of research confirming widespread civic ignorance. A survey by the Oklahoma Council of Public Affairs recently asked high school students questions about the government. Twenty-eight percent could identify the Constitution as the supreme law of the land; 26% knew what we call the first ten amendments to the Constitution; 27 % could identify the two parts of the U.S. Congress; 10% knew how many justices are on the Supreme Court; and only 43% could name the two major political parties.

There’s more—much more. Only 36 percent of Americans of any age can correctly name the three branches of government. Fewer than half of 12th graders can describe the meaning of federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution.

This is appalling. If you think about it, the choices originally made by the men who designed our constitutional architecture have shaped the culture we live in. They dictate how we think about what’s public and private, our notions of personal responsibility, and our conceptions of human rights. They frame the way we allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices created a distinctively American worldview.  Failure to understand and appreciate those initial decisions is failure to understand the structure of the world we live in; it is failure to understand the context of contemporary politics and policy.

People who have little grasp of American history or the Enlightenment roots of our particular approach to government don’t argue from within our Constitutional Culture. Look, for just one example, at current debates over gay rights. People who disapprove of homosexuality for personal or religious reasons want the government to treat gay people differently. Their arguments are based upon their views of moral behavior, usually as dictated by religious authority. Our constitution absolutely protects their right to believe and to act upon those beliefs in their personal lives—if they don’t like gay people, they don’t need to invite them to dinner; if their churches condemn same-sex marriage, they need not conduct them. But that same Constitution limits the ability of government to tell citizens how to live their lives, and it requires that government treat citizens as equals before the law.

We can argue the morality of homosexuality, or we can argue about the proper role of government in our constitutional system. Both arguments are legitimate, but they are different arguments. When person A says “the Constitution requires X” and person B responds “God doesn’t like that,” we are not having a conversation from within the constitutional culture, and we are not sustaining the body politic. We aren’t having a conversation at all—we’re just yelling past each other.

Tonight’s panel is going to wrestle with a very difficult question: what is the minimum level of knowledge—of civic and other literacy—that we should expect from members of our “body politic”? Citizens don’t need to be constitutional scholars, scientists or historians—but we can’t survive, can’t sustain the necessary cultural norms, unless they share a basic understanding of who we are and where we came from. What is the necessary content of that understanding?

What is the minimum reality we need to share in order to communicate productively and in order to create a constitutional culture?

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Intriguing–and Disquieting–Analysis of Citizens United

A paper delivered at the Law and Society conference I attended raised some interesting points about the Citizens United decision that I haven’t seen elsewhere. While there has been a lot of criticism of the Court’s classification of corporations as people, this presentation asked a more basic (albeit related) question: what was the “speech” that the First Amendment protected?

The author argued pretty persuasively that what the founders intended was protection of an individual right of free expression. Later courts extended that to “expressive association”–meaning the right of individuals to associate with those who share their opinions and values. Thus Political Action committees should have the right to free speech, since the very act of banding together for a political purpose is in furtherance of individual expression.

By extending expressive freedom to corporations and unions formed for very different purposes–where the individuals involved arguably had very different political views–the Court arguably was disrespecting the very individual rights the First Amendment was protecting in favor of a newly created group right. Our system, however, has explicitly rejected recognition of “group rights.” For good or ill, in the United States, only individuals, singly or in expressive association, are “rights-bearing.” Citizens United thus represents a movement toward group rights at odds with the premises of our constitution.

Food for thought.

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Charlie White, the GOP, and the Rule of Law

After the Republicans in the Statehouse passed House Bill 1242, changing the election law in order to avoid the consequences of having run an ineligible candidate, my husband shook his head. “It’s enough to make you ashamed of ever having been a Republican.” This from a man who worked for the GOP for over fifty years–working on campaigns, working at the polls, driving people to vote, and serving in a Republican administration.

We have both bemoaned the radicalization of the party we used to call ours: the mean-spiritedness, the shortsighted focus on tax caps at the expense of public goods, the homophobia and the thinly veiled racism that emerged in the wake of Obama’s election. But HB 1242 is nothing less than an attack on the rule of law.

John Adams famously said that our constitution established the rule of law, not the rule of men. The Founders gave us limited government. That didn’t mean that the size of government was to be limited, as many seem to think. It meant that the same rules have to apply to everyone, that there are limits to the ways in which official power can be used.

Scholars identify eight elements of the rule of law:

  • Laws are necessary, and must apply to all–including government officials.
  • Laws must be published.
  • Laws must be prospective in nature so that the effect of the law may only take place after the law has passed.
  • Laws must be reasonably clear and specific, in order to avoid arbitrary enforcement.
  • Laws must avoid contradictions.
  • Laws cannot require people to do impossible things.
  • Law must stay sufficiently constant through time to allow rules to be understood; at the same time, the legal system should allow for timely revisions when the reasons for the law have changed.
  • Official action should be consistent with the declared rule.

Our sense of fundamental fairness is offended if someone is punished for violating a rule that was passed only after he acted. We would be outraged if a person who violated an existing law managed to get it changed so that he escaped punishment. We might not be able to point to the precise element of the rule of law that had been violated in such cases, but we’d know instinctively that it was wrong.

This over-reach by the Indiana GOP has generated a petition drive, asking Governor Daniels to veto the measure. I don’t hold out much hope, but I signed the petition, and I hope many others will as well.

If the legislature ultimately decides that current laws governing electoral vacancies should be changed, fine. Those new rules can be applied prospectively, to future cases. Changing the rules when they fail to favor you, so as to escape the consequences of your own misbehavior, isn’t just unfair. It isn’t just contrary to the rule of law.

It is unAmerican.

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I Don’t Like This Law So It Must Be Unconstitutional

Yesterday, I spoke to a high school government class, filled with bright high school seniors who have thus far escaped any meaningful encounter with the U.S. Constitution.It came as a surprise to most of them, for example, that the Bill of Rights applies only against government. So we talked a good deal about the limits on government action, and what our government can and cannot require of us.

One of the students asked about the constitutionality of the individual mandate provision of the new health-care reform law.

Now, I’m not a fan of the new law; I would have much preferred a simple “Medicare for All” approach.  But there are a lot of laws I dislike, and a lot that I believe represent poor policy choices. That doesn’t make those laws unconstitutional.

There is absolutely no doubt that government could constitutionally establish “socialized” medicine–whether along the lines of Medicare for All, or another single-payer system funded out of tax revenues. The Affordable Care Act works with private insurance companies–and politically, that’s undoubtedly the only way it could be passed. But in order for the new system to work, everyone must purchase insurance. Opponents claim the government cannot force people to do so.

The bill offers subsidies to people who cannot afford insurance. It exempts people for whom the purchase of insurance would be a financial hardship. It grants other exemptions for American Indians, for those with religious objections, undocumented immigrants, incarcerated individuals, and those living below the poverty level. The rest of us must buy.

Two separate constitutional provisions allow the government to require this: the taxing power and the commerce clause.

The taxing power argument is straightforward: we either buy insurance or we pay a tax. The Commerce Clause gives Congress considerable latitude to craft “rational” means to achieve “legitimate” purposes. Opponents argue that a decision not to buy insurance is “inactivity” and that “inactivity” cannot be taxed or regulated. But as constitutional scholars have pointed out, those who choose to go without insurance–insurance that the government is making affordable for them, even subsidizing for them–are in fact doing something. They are shifting costs to everyone else. As Yale Law Professor Jack Balkin has written, they are making a decision to self-insure. That decision “games” the system and makes it more expensive for everyone else.

The individual mandate is not functionally different from our obligation to pay Social Security and Medicare taxes, or the requirement to carry auto insurance.

At the end of the day, the argument against the mandate–and the Affordable Care Act–is simple, if uninformed: I don’t like this law, therefore it is unconstitutional.