Public Policy and Governance – Page 66

Omens

Readers of this blog frequently send me articles I am unlikely to have seen; often, those are from their local papers (where such papers still exist). I keep the ones I find interesting in a file, and from time to time, I review them. Often, the saved articles no longer seem relevant, but sometimes, the opinions expressed and predictions made are even more meaningful than when I first saw them.

That was the case with “Early Warning Signs,” an essay from the Madison, Wisconsin Capital Times. Published in March of 2021, the essay began

You’ve likely grown numb to daily outrages by the Republican Party of Donald Trump. You’ve given up hope that at some magical moment, when some line is crossed, masses of educated, intelligent people who identify as Republicans will gently slap their foreheads and say enough is enough.

Enough of the lies about stolen elections, the denial of facts and the rejection of expertise. Enough with a party that has morphed from being about personal responsibility and limited government to one primarily about grievance.

The author then looked back, to see whether incidents” that seemed innocuous at the time” might actually have been “harbingers of catastrophic dysfunction.” He identified three: the vast number of threats to the life of then-candidate Obama that required Secret Service protection much earlier than had been the case with previous Presidential candidates; John McCain’s choice of Sarah Palin as his running mate; and the rise of Rush Limbaugh and “hate radio.”

The volume of threats against Obama–then a little-known Senator–was very clearly prompted by the racism and racial grievance that has become far more visible since his Presidency.

Here in 2021, one can see the direct line from there to a party whose white supremacist faction carries Confederate flags, including inside the U.S. Capitol during the Jan. 6 insurrection. Is it any wonder that after eight years of fury about a Black man being president that those boiling with racial hatred would come to worship a racist like Trump?

The choice of Palin–and especially the GOP base’s response to that choice– was the moment when it “became OK for a politician to just exalt in ignorance.” The author quoted Obama’s recent book:

“What became abundantly clear as soon as Sarah Palin stepped into the spotlight was that on just about every subject relevant to governing the country she had absolutely no idea what the hell she was talking about,” he wrote.

“I noticed from the start that her incoherence didn’t seem to matter to the vast majority of Republicans; in fact, anytime she crumbled under questioning by a journalist, they seemed to view it as proof of a liberal conspiracy.”

Like they did with Ronald Reagan years earlier, Republicans said the self-described “hockey mom” had “good instincts” and would grow into the job, Obama wrote. “It was, of course, a sign of things to come, a larger, darker reality in which partisan affiliation and political expedience would threaten to blot out everything.”

As the essayist noted, it’s a straight line from Palin to Trump and to Marjorie Taylor Greene and her ilk.

With his choice of a third omen, the writer echoed my frequent lament about the sea-change in America’s media environment, a change foreshadowed by the emergence of Rush Limbaugh. As he noted, Limbaugh sounded “Trumpian 25 years before Trump became president.”

Limbaugh introduced a formula for ratings success that many others would ape: giving voice to the cultural grievances of older, uneducated White guys. After the creation of Fox News–which was specifically and very consciously aimed at the anger of that same demographic–it became acceptable to openly express, and defend, ignorance, racism, homophobia and misogyny.

And so here we are.

There may have been other signs, other omens we missed, but it’s hard to argue with the three chosen by this writer. That, of course, leads me to wonder what omens we are currently missing.

The overturning of Roe is clearly one of those–but will it trigger a return of respect for women’s autonomy, or a march toward Gilead?

The revelations of the January 6th Committee could prompt a return to serious, democratic governance–or fail to halt the next coup effort by proponents of the Big Lie.

The astonishing overreach of the Supreme Court’s hobbling of the EPA (not to mention the ability of all executive branch agencies to issue regulations) could generate environmental energy–or be a harbinger of planetary doom.

That’s the problem with omens–you can’t tell where they’re pointing until after the fact.

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History Versus Mythology

Speaking of history…

Over the past few years, I’ve read a lot of American history–most of which I hadn’t encountered in high school or college history classes. (One unfortunate result is that I no longer get goose bumps when I hear the national anthem; the people opposing the teaching of accurate history aren’t entirely wrong about its potential to dampen jingoism…)

Accurate history can be depressing, but grown-ups can deal productively with the gap between the country’s values and aspirations and our past failures to live up to them. As I argued yesterday, understanding actual history allows us to address the inaccurate mythologies that continue to warp contemporary political discourse.

In a recent essay for The Conversation, my friend Pierre Atlas–a political scholar, gun owner and NRA member who stresses he hasn’t donated to the organization since 1997– examined effects of widely-accepted myths about the Old West on today’s policy debates. I encourage you to click through and read the article in its entirety, but I’m sharing passages I found particularly illuminating.

Pierre began by recognizing the partisan divide over “gun rights” and the effect of that divide on the recently passed–and widely hailed–“bipartisan” gun legislation.

In the wake of the Buffalo and Uvalde mass shootings, 70% of Republicans said it is more important to protect gun rights than to control gun violence, while 92% of Democrats and 54% of independents expressed the opposite view. ..

In order to attract Republican support, the new law does not include gun control proposals such as an assault weapons ban, universal background checks or raising the purchasing age to 21 for certain types of rifles. Nevertheless, the bill was denounced by other Republicans in Congress and was opposed by the National Rifle Association.

What is the wellspring of this widespread gun fetish?

My analysis finds that gun culture in the U.S. derives largely from its frontier past and the mythology of the “Wild West,” which romanticizes guns, outlaws, rugged individualism and the inevitability of gun violence. This culture ignores the fact that gun control was widespread and common in the Old West…

Americans have owned guns since colonial times, but American gun culture really took off after the Civil War with the imagery, icons and tales – or mythology – of the lawless frontier and the Wild West. Frontier mythology, which celebrates and exaggerates the amount and significance of gunfights and vigilantism, began with 19th-century Western paintings, popular dime novels and traveling Wild West shows by Buffalo Bill Cody and others. It continues to this day with Western-themed shows on streaming networks such as “Yellowstone” and “Walker.”

Historian Pamela Haag attributes much of the country’s gun culture to that Western theme. Before the middle of the 19th century, she writes, guns were common in U.S. society, but were unremarkable tools used by a wide range of people in a growing nation.

Pierre explores the effects of gun-makers’ PR campaigns, which romanticized guns and their role in the settling and taming of the West. Contrary to that invented mythology, he found that–while gun ownership was common– actual gunfights were rare, and that many frontier towns “had strict gun laws, especially against carrying concealed weapons.”

As UCLA constitutional law professor Adam Winkler puts it, “Guns were widespread on the frontier, but so was gun regulation. … Wild West lawmen took gun control seriously and frequently arrested people who violated their town’s gun control laws.”

“Gunsmoke,” the iconic TV show that ran from the 1950s through the 1970s, would have seen far fewer gunfights had its fictional marshal, Matt Dillon, enforced Dodge City’s real laws banning the carrying of any firearms within city limits.

Pierre notes that NRA hardliners are willing to accept gun violence as an inevitable side effect of a free and armed but violent society. Their opposition to new gun reforms as well as the current trends in gun rights legislation – such as permitless carry and the arming of teachers – are but the latest manifestations of American gun culture’s deep roots in highly inaccurate frontier mythology.

Wayne LaPierre, executive director of the National Rifle Association, the country’s largest gun rights group, tapped into imagery from frontier mythology and American gun culture following the Sandy Hook massacre in 2012. In his call to arm school resource officers and teachers, LaPierre adopted language that could have come from a classic Western film: “The only thing that stops a bad guy with a gun is a good guy with a gun.”

Recent studies actually show that giving those “good guys” concealed carry permits is linked to 13-15 percent higher violent crime rates–and accurate history confirms that the only thing that can stop a bad guy with a gun is rational gun regulation.

Those shoot-em-up Westerns were fun when we were children, but it’s past time for Americans to grow up.

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A Concise Diagnosis

In an aside in a recent column about the January 6th hearings, Jennifer Rubin really summed up the current crisis (or more accurately, crises) in American governance.

Trump utterly failed the country; his successor is stymied by a radicalized opposition determined to see him fail. The Senate is gridlocked by a minority party wielding the filibuster to, among other things, preserve voter suppression and subversion laws. The Supreme Court has been overtaken by rank, radical partisans whose decisions cannot be defended on the merits and whose public utterances and tone lack any semblance of “judicial temperament.” We seem stuck because structural advantages for the minority (the Senate, the electoral college, the right-wing Supreme Court) make real reform impossible.

Rubin’s main thrust was the meaning of the very real heroism displayed by poll workers Ruby Freeman and Shaye Moss. (The column was written before the even more impressive bravery displayed by Cassidy Hutchinson this week.)

Unlike a number of the witnesses called by the committee, these two women–mother and daughter–weren’t high-ranking members of the administration or Department of Justice, people who might lose a current job but would have little trouble finding new ones. Freeman and Share are ordinary citizens who were doing some of the low-paid jobs essential to the operation of democratic elections. Rubin is certainly correct in lauding the courage they displayed both in doing those jobs accurately and in testifying; her point was that they served the country just as surely as our military does, and that we need civilians “like Ruby Freeman and Shaye Moss in public life if we are to muddle through a dangerous and disturbing period in our history.”

I don’t disagree, but I remain fixated on the quoted paragraph, because it succinctly sums up the challenges we currently face–and their magnitude.

I’ve written several times about the filibuster, and how its current use differs substantially from its historic one. The wrongheaded protection of what the filibuster has become allows a minority of lawmakers– who have been elected by a minority of voters– to veto the demonstrable will of the great majority of American citizens.

I need not reiterate the evidence showing how drastically the current Supreme Court has deviated from what was thought to be settled jurisprudence. To use a term beloved by a former vice-presidential candidate, the Court’s majority has “gone rogue.” To the extent that Americans were relying on the judiciary to protect fundamental rights, the Court’s current majority has signaled repeatedly that such reliance is misplaced–at least, so long as that majority fancies itself a religious tribunal rather than a court of law bound by precedent and serving a theologically and ideologically diverse population.

In the final sentence of that quoted paragraph, Rubin alludes to what has become my most pressing–and depressing– concern: the obsolescence of much of America’s electoral and governing systems.

I doubt we can ever do anything about the fact that electing two senators from every state, irrespective of massive disproportions in population, means that very soon 70% of the Senate will represent 30% of the population. So long as our rogue court continues to protect partisan gerrymandering, lawmakers in both houses will continue to be answerable primarily–indeed, overwhelmingly– to rural Americans. The difficulty of amending the Constitution means we are probably saddled with the Electoral College for the foreseeable future–I don’t hold out much hope that the National Popular Vote Compact will be ratified by states having the necessary 270 electoral votes. (I would love to be wrong!)

The only remedy I can see would be a massive turnout in November repudiating the GOP –turnout large enough to allow Democrats to get rid of the filibuster and pass a number of remedial measures–most importantly, the voting rights act. That law would–among other salutary consequences– outlaw gerrymandering. Congress could also add Justices to the Court, diluting the power of the Court’s radical theocrats.

Are the Democrats perfect? Certainly not. But they’e a thousand times saner than the cult that is today’s GOP. If that cult loses badly enough, it will either be reformed from within, by genuine conservatives like Adam Kitzinger and Liz Cheney, or go the way of the Whigs.

Either way, We the People could then go back to arguing over our policy differences, rather than the survival of the republic.

In a very real way, Rubin was right: America’s future depends on ordinary citizens–those who do their jobs, and especially those who cast their votes to rescue the Constitution and Bill of Rights from the autocrats and theocrats. I’m clinging by my fingernails to the hope that there are enough of those citizens…

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The Supreme Court Has Made Me A Liar

This week, the United States Supreme Court laid waste to 20 years of lectures I gave my students.

I used to explain the importance of stare decisis–the importance of a predictable and stable legal system based on fidelity to the rule of law. I explained that the Founders used lifetime appointments to the federal judiciary to shield judges from political pressures and allow them to engage in dispassionate evaluation of the law and facts of the cases before them. And I emphasized that–while statutes can be passed to confer and protect rights– statutes are much more easily overturned than rights secured by the Constitution.

Mitch McConnell’s Court has proven me wrong on all counts.

Stare decisis? Precedent? What are those to determined judicial ideologues? Mere minor impediments to be brushed away by finding that they’d been wrongly decided and followed.

What about those lifetime appointments? Thanks to a Senate dominated by politicians determined to appoint political cronies, those lifetime appointments have become protection against removal–giving Justices who have clearly subordinated ethics and dispassionate evaluation to political ideology free reign to wreak havoc with the rule of law.

it was appalling enough when the religious tribunal that constitutes today’s Supreme Court majority overruled Roe v. Wade –a fifty-year precedent–using language that clearly signaled the coming of an all-out assault on other rights. That decision followed a victory by the gun lobby that overturned a New York statute that had been in place for over 100 years, and was equally dismissive of the plain language of Justice Scalia’s decision in Heller.

As if the case from Maine requiring vouchers to be spent at religious schools wasn’t a clear enough message that the majority was coming for the Establishment Clause, the Court drove that message home: the tribunal ruled that a public school corporation must allow a football coach to deliver performative prayers on the football field’s 50-yard line–a clear endorsement of religion, and a radical departure from over 100 years of First Amendment jurisprudence. That decision created a hole in Jefferson’s “Wall of Separation” big enough for the Christian Taliban to drive through, and arguably put prayer back in the nation’s public schools.

(More solicitude for religion: the Court ruled that Texas would violate religious freedom if it executed a death row inmate without allowing his pastor to touch him and pray aloud with him. Evidently, killing him didn’t pose any religious problem–or constitute a “pro life” inconsistency…)

But this radical Court didn’t stop with those UTurns in the law. Yesterday, it eviscerated the ability of the EPA to act on urgent environmental threats–again, despite precedents to the the contrary. In yet another 6-3 decision, the Court limited the Environmental Protection Agency’s authority to set standards on climate-changing greenhouse gas emissions for existing power plants. A Guardian editorial said the ruling “means it may now be mathematically impossible through available avenues for the US to achieve its greenhouse gas emissions goal.”

Evidently, these Justices don’t have grandchildren who will have to live in a society upended –or possibly just ended–by climate change.

There were other, less publicized offenses against the rule of law.

Wednesday, the Court dramatically increased the power of states over Native American tribes. That result –a win for Republican officials in Oklahoma–required ignoring the Court’s own 2020 ruling that had recognized an expanded tribal authority. (That particular affront was too much even for Justice Gorsuch, who–for once–departed from the lockstep radical majority.)

In another 6-3 case demonstrating the selective nature of the majority’s concern for life (the concern apparently evaporates at birth) the court found that the Biden administration’s vaccine-or-testing mandate for large employers was not lawful.

The New York Times has a rundown of this appalling session, with additional cases.

This recitation brings me to my final error: telling my students that constitutionally protected rights are more stable than rights protected only by statutes.

Congress can–and must–codify the rights this illegitimate Court has trampled, as well as those it is clearly threatening. It also needs to add Justices chosen by a President who actually won the popular vote. But in order to do those things and take other critical steps, Democrats must win in November, and they must win control of the Senate in sufficient numbers to make Joe Manchin and Kyrsten Sinema irrelevant.

Off-year elections almost always favor the party that doesn’t control the White House. If the GOP wins even one house of Congress this year, it is not hyperbole to say that the Constitution and Bill of Rights are effectively over. Neutered. Irrelevant.

Vote Blue no matter what. We can argue about gas prices after we save the Republic.

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A Way Around

Sane Americans need to vote as if our lives depend upon it, because in a very real sense, they do.

In the meantime…

When the religious warriors on the Supreme Court handed down their decision requiring states that funded private schools to fund religious ones as well– Carson v. Makin– our daughter (who spent 20 years on our local school board) asked whether there was now any way to fashion voucher programs that would prevent most religious schools from getting taxpayer money. Surely good lawyers could devise such a work-around.

Turns out there is. And it’s a tactic that can also be used to blunt some of the most dangerous consequences of the Court’s even-more-radical gun decision. (Unfortunately, I see no comparable “work arounds” for the Court’s horrifying abortion decision.)

Maine shows the way to keep public dollars out of church coffers. In Carson, the Court based its decision on the disparate treatment of religious and nonreligious private schools, so Maine eliminated that disparity–and did so in the best possible way.

What is surprising is how little the 6-to-3 decision in the Maine case, Carson v. Makin, will matter practically. And the reason offers a glimpse of hope for those who worry about a future dominated by the court’s conservative supermajority — including the many Americans troubled by the court’s decision in the gun case, New York State Rifle and Pistol Association v. Bruen.

Let’s start with the Carson case. Anticipating this week’s decision, Maine lawmakers enacted a crucial amendment to the state’s anti-discrimination law last year in order to counteract the expected ruling. The revised law forbids discrimination based on gender identity and sexual orientation, and it applies to every private school that chooses to accept public funds, without regard to religious affiliation.

The impact was immediate: The two religious schools at issue in the Carson case, Bangor Christian Schools and Temple Academy, said that they would decline state funds if, as Maine’s new law requires, accepting such funds would require them to change how they operate or alter their “admissions standards” to admit L.G.B.T.Q. students.

The “fix” to Maine’s law allows religious schools to participate in the program on an equal basis with other private schools–and as an added bonus, ensures that secular private schools with discriminatory practices will also be denied the right to participate.

In an aside, the Court acknowledged that Maine also retains the right to eliminate its voucher program at any point. (Since most voucher programs–like Indiana’s– have failed to improve student outcomes while bleeding the public schools of needed resources, that’s a right I think they should exercise. But I digress.)

As the linked Times essay pointed out, a version of Maine’s tactic can also be adapted to use by the states (all blue) trying to combat gun violence.

Justice Clarence Thomas’s majority opinion made clear that the constitutionality of restrictions is historically “settled” in “sensitive places” such as legislatures, courtrooms and polling locations, and that “modern regulations” may “prohibit” the carry of firearms in “new” places. Given that, states should enact an expansive list of so-called sensitive places where guns may not be carried. Though Justice Thomas did not specify which those might be, during oral arguments in November, several justices pondered that they might include public transportation, crowded venues, university campuses and places where alcohol is served.

Justice Brett Kavanaugh noted in a concurrence joined by Chief Justice John Roberts, moreover, that while states may not impose restrictions that prevent “ordinary, law abiding citizens” from carrying a gun to defend themselves, states can still enact rigorous requirements for a public carry permit, such as stringent background and mental health records checks and completion of regular training courses.

Another promising reform for states to consider would be to require gun owners to possess firearm liability insurance. Not only would such a requirement ensure that victims of gun violence can recover for their losses and “provide financial incentives for responsible arms carrying,” but it also draws strong historical support from a host of 19th century “surety laws” recognized in the court’s opinion.

That last “promising reform” echoes several comments made to this blog.

This guest essay reminds us that–as critical as it is to repair a broken and increasingly illegitimate Court–until that repair can be accomplished, we are not without resources to fight, or at least blunt, the consequences of the Court’s most dramatic departures from constitutional precedent and common sense. We just need lawmakers who understand the need to do so.

That means that the most important thing we can do is remember in November which party is responsible for replacing Justices committed to the Constitution with a religious tribunal–and vote accordingly.

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