Category Archives: Constitution

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.

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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.

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We’re All Becoming Texas

My husband says I’ve been in a bad mood since 2000. I’m entitled.

On Monday, the Republican-led Texas House passed HB 1076 , a bill that would ban state agencies from enforcing any new federal gun laws, including background checks. The self-satisfied know-nothings who voted for this bill are very pleased with themselves.

Talk about embarrassing. Every student who participated in the We the People competition I referenced earlier this week would know better.

I don’t know whether this bit of unconstitutional stupidity is the product of grandstanding or ignorance, but really–how much dumber can state lawmakers get? Granted, Texas is in a league of its own, but there are plenty of other states–largely but not exclusively in the south–where similarly ridiculous measures are being solemnly debated and enacted. (Next-door Louisiana, where several loony laws championed by boy Governor Bobby Jindal have been struck down by the courts is a case in point. And the Indiana General Assembly keeps trying to equal its signal accomplishment–passage of a law in 1897 changing the value of pi.)

Read my lips: nullification runs afoul of the Supremacy Clause. In language even Texas legislators should be able to understand, that means that there is a provision in the U.S. Constitution that says federal laws trump inconsistent state laws. States don’t get to decide which federal laws they’ll obey.

I’m so tired of these posturing morons–and so disappointed in the voters who elected them. Gerrymandering can only explain so much.

America is currently experiencing the “perfect storm”–paranoia and anti-intellectualism have combined to destroy any semblance of rationality.  The adults have left the room; the inmates are running the asylum.

We are left with only self-parody.

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A Constitutional Ethic

At this point in the semester, my undergraduate class is encountering a concept called “the constitutional ethic.” (The term is an organizing theme of the textbook we are using, written by yours truly and colleague from Minnesota.)

So what do we mean by “constitutional ethic”? How does such an ethic differ from our usual understanding of ethical behaviors–i.e., honesty, truthfulness, adherence to the law? If the constitutional ethic is “over and above” personal ethics, in what way is it more or different? And how can I describe that difference in language that is accessible to undergraduates?

Here’s what I plan to explain to my class:

As we’ve been discussing, the Constitution is the basis of America’s legal system; as it has operated over the years, it has shaped a distinctive value system and legal culture, a framework within which we make policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. (For example, policymakers need to understand not just that we are a government of checks and balances, but why our system was constructed that way.)

At its most basic, adherence to the Constitutional Ethic requires public officials to act in ways that are consistent with these basic systemic structures, and to avoid acting in ways that would undermine them.

Some examples might “flesh out” the concept.

Respect for due process guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence.

Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize GLBT people, or refuse them access to the institutional benefits enjoyed by heterosexual citizens.

Respect for one of our most fundamental rights–the right to vote, to participate equally in our democracy–imposes an ethical obligation to refrain from vote suppression tactics of the sort we saw during the last election.

Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which we disapprove.

It really isn’t complicated. It’s just increasingly rare.

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