Category Archives: Public Policy and Governance

That Constitutional Ethic

Thursday, I traveled to Hancock County, to speak at what their community foundation calls a “Collaboration Station.” My assignment was to address–or perhaps commiserate with– local elected and appointed officials who are serving at a time of intense political polarization and hostility–to offer them guidance suggested by relevant academic research.

We covered a lot of ground that isn’t necessary to include in this post, but I think the concluding portion of my presentation is relevant to the discussions that occur here–as well as consistent with the overarching message of the recent No Kings rally–so here’s that portion of my talk.

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Back in 2011, I co-authored a textbook for use in classes on public administration. That textbook was titled American Public Service: Constitutional and Ethical Foundations, and in it, my co-author and I described what we dubbed “The Constitutional Ethic.” We argued that public officials cannot make intelligent policy decisions unless they have a basic understanding of America’s constitutional framework, because government legitimacy and the rule of law require that a government’s operations be consistent with its country’s legal framework.

It was the thesis of our textbook that the U.S. Constitution dictates a very particular approach to public service—that the legal philosophy animating the Constitution and Bill of Rights establishes certain ethical norms. That philosophy starts with the Founders’ belief in limited government. I want to emphasize that—political rhetoric to the contrary–limited government is not the same thing as small government; in our system, government’s authority is supposed to be limited to areas that in our system are deemed properly governmental.

As we wrote in the introduction to that textbook, a public servant’s ability to do a job well depends upon how well that official understands what the relevant rules are, why we have these particular rules rather than others, and why we choose to solve some problems collectively through government action while leaving other problems to individuals and voluntary associations.

Public officials certainly don’t need to be constitutional scholars, but it is necessary that they understand the general principles and values on which this nation built its governing structures, because—as I said before and as I want to emphasize– ethical public service requires performance consistent with those foundational principles and values.

Let me be clear about what that means. Fidelity to our constituent documents requires a basic understanding of the constitutional framework. Public servants in the United States are responsible for discharging their various duties in a manner that is consistent with that framework, consistent with what I sometimes call “the American Idea,” the philosophy that animates our governing and legal structures. That requirement is obviously more or less relevant depending upon your job description—less to a surveyor or engineer, more to law enforcement personnel. But it applies to some extent to all public officials.

I am certainly not the only person to suggest that citizens’ current inability to engage in productive civic conversation is largely an outgrowth of declining trust in our social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are going to make our representative democracy work—but in order to trust government, both citizens and political functionaries need to understand what government is and is not supposed to do. We all need to understand how government actors are supposed to behave—in other words, we need to understand what behaviors our particular Constitutional system requires, and what behaviors are inconsistent with that system. (A sound civic education would impart that knowledge; unfortunately, the current emphasis on job skills and STEM has largely displaced citizenship instruction.)

As most of you in this room understand, the choices originally made by this nation’s Founders shaped a very distinctive American culture. Those constitutional choices have shaped our beliefs about personal liberty, and our conceptions of human rights. They’ve framed the way we allocate social duties among governmental, nonprofit and private actors. I think it’s fair to say that those initial Constitutional choices created a distinctively American worldview.

Most Americans fail to understand how incredibly radical the choices made for the then-new United States were for the times. For example, in the new country our Founders established, unlike the situation in countries elsewhere, citizenship wasn’t based upon geography, ethnicity or conquest; instead, it was based on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” Perhaps the most revolutionary element of the American Idea was that our Constitution based citizenship on behavior rather than identity. An individual’s status and rights depended upon how that individual behaved rather than on who he or she was.

Right now, as you all know, there are elements in American society and government trying to ignore or even reverse that fundamental precept. We’ve had stunning Supreme Court decisions that allow government actors to ignore the 4th Amendment’s requirement of probable cause and to detain people based only upon their skin color or language, and we have numerous political figures who insist that White Christians are the only “real Americans” –and that others are not.

Public officials who are focused on providing basic services usually aren’t tempted to distinguish between members of the public on the basis of their identity—local officials pave streets that everyone drives on, pick up garbage from all the homes in a district, fight fires wherever they erupt and so forth. But many of you do hold positions that allow or even require the privileging of some citizens over others, and making those distinctions on the basis of identity—as some political actors at both the state and national level are encouraging you to do—would  violate both the 14th Amendment’s Equal Protection clause and a foundational American ideal. Disadvantaging or firing people based upon opinions they’ve expressed, as some political actors are advocating, would be a violation of the First Amendment’s guarantee of free speech. Obeying such mandates or similar ones, would violate the Constitutional ethic.

My co-author and I had both practiced constitutional law, and at the time we wrote the textbook, we both held professorships in schools of public affairs. We wrote the book, it was adopted by several schools of public management, and we both went on to pursue other projects. To be honest, I hadn’t revisited that textbook for several years, and when I was preparing for this workshop, I pulled it out again– and I will admit I was startled to read some of the supposedly “far-fetched” examples we’d used that were intended to illustrate the relationship between public administration and the Constitution. We explained, for example, that the Constitution and other authorities in our legal system don’t permit American officials to use U.S. troops to address domestic criminal activity; that the Constitution doesn’t permit censorship as a solution for disfavored political opinions; that the Equal Protection Clause wouldn’t permit the reduction of welfare rolls by refusing to feed Black or Hispanic children, and that substantive due process guarantees prevent government from forcing women either to abort or give birth.

Fourteen years later, some of those examples are no longer so far-fetched.

As we acknowledged in that textbook, the American Idea is not monolithic, and it is constantly contested and evolving, but—as we also insisted– it has real content. It rests on considered normative judgments about the proper conduct of public affairs, and it prescribes an ethic that should dictate the behavior of those engaged in public administration and management—even when it is uncomfortable or even dangerous to do so.

So here’s the bottom line: When push comes to shove—when keeping your heads down is no longer an option— the Constitutional ethic must guide you.

These days, that may not be comforting.

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Trashing The First Amendment

Ten months into the Trump administration, the outlines of America’s cold civil war have become too stark to miss. MAGA is determined to remake the United States into a nation where White Christian Nationalists are legally privileged and in control. And they’re making progress.

The evidence is overwhelming. Masked ICE agents focus on people of color. Trump reportedly wants to “revamp” immigration rules in order to make it easier for Whites and harder for others to enter the country. From day one, the administration has pursued an all-out war on “DEI”–insisting that any effort to level the playing field for previously marginalized folks is really anti-White discrimination. Aided and abetted by a thoroughly corrupted Supreme Court majority, the hits have kept coming: universities prevented from continuing programs even slightly resembling affirmative action, the continued gutting of the Voting Rights Act…

And as we’ve recently seen, the racism motivating MAGA isn’t diminishing; it infuses the GOP’s young activists.

I have previously written about the faux-Christianity that motivates much of this. I particularly recommend Tim Alberta’s book, “The Kingdom, The Power and the Glory.” Alberta is a genuine Christian Evangelical, and his critique is informed by his own deep religiosity. More recently, David French–another committed Evangelical– has described what is happening in thousands of churches as a religious “revolution”–not to be confused with a true revival. In his telling, America is close to a religious revolution, and the difference between that revolution and a true religious revival is immensely important for both church and state.

Decades of scholarship, very much including scholarship by religious organizations, have attributed America’s religiosity–far greater than in other Western Democratic countries–to the fact that the First Amendment requires the separation of church and state. That understanding fails to persuade the MAGA folks who’ve turned religion into a political identity.

The Christian Nationalists who dominate Red state governments reject the First Amendment’s Establishment Clause. They intend to indoctrinate the nation’s schoolchildren, and they aren’t satisfied with mandates to post the Ten Commandments in classrooms. In Texas, they’ve introduced a “revised” and bible-infused English curriculum.

A new state-sponsored English curriculum infused with lessons about the Bible and Christianity could reach tens of thousands of Texas schoolchildren this year.

More than 300 of the state’s roughly 1,200 districts signed up to use the English language arts lessons, according to data obtained by The New York Times through a public records request. Many are rural, and relatively small.

The curriculum was created as several states, including Oklahoma and Louisiana, fought to bring prayer or religious texts like the Ten Commandments into public school classrooms, blurring the line between church and state.

According to the analysis done by the New York Times, the Texas curriculum features content on Christianity, the bible and the life of Jesus. Lessons include the Biblical story of his birth in a Bethlehem manger, New Testament accounts of the angel who described him as the Messiah, and even stories about the miracles he was purported to perform.

Fifth graders examine a psalm in a poetry unit. First-grade students discuss the parable of the prodigal son alongside stories like “The Boy Who Cried Wolf.” Kindergarten children learn in depth about the Book of Genesis in a lesson on art exploration that notes that “many artists have found inspiration for creating art from the words in creation stories in religious books.”

The Times analysis found that Christianity was heavily favored in the lessons. In the materials used in the second grade, for example, “Christianity, the Bible and Jesus are referenced about 110 times. By contrast, Islam, Muslims, the Quran and the Prophet Muhammad are mentioned roughly 31 times in lessons spanning from kindergarten to fifth grade.”

The Times article has much more detail, and it is worth clicking through and reading. The curricular changes were summed up in a quote by David R. Brockman, a Christian theologian and religious studies scholar at Rice University. After he reviewed all of the Texas materials, Brockman concluded that the lessons amounted to Bible study in a public school curriculum, and he worried that the state’s adaptation of its curriculum would send an implicit message to children “that Christianity is the only important religion.”

Well, duh! Of course that’s the message, and it’s intended. In MAGA’s America–a country distant from the one occupied by the rest of us–the only real Americans are lily-White and “Christian.” The rest of us–including genuine Christians–are intruders.

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What Can Be Repaired? What Can’t?

Just a quick note before today’s post: my husband and I attended the No Kings protest in Indianapolis, and were blown away by the size, composition and positivity of the crowd. (I think my 93-year-old hubby may have been the oldest attendee, but there were lots of older folks–as well as younger and middle-aged ones.) The thousands of attendees were upbeat, entirely peaceful, and the numerous signs they carried weren’t just clever–they were patriotic in the best sense of the word.

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When I try to find cause for optimism, I tell myself that–while the incredible destruction being wreaked by Trump and his merry band of morons, misfits and clowns is horrific–a lot of government systems had become calcified and overly bureaucratic, and that once this despicable crew has left, we can (to use Joe Biden’s term) “build back better.”

Unfortunately, reality then kicks in.

A while back, Thomas Edsall addressed that reality in a New York Times op-ed. The title was “What Can’t Trump Wreck?” and the column distinguished between the kind of damage that can be redressed relatively quickly and the damage that can’t.

Edsall began by reminding readers that Trump’s inhumane cuts to USAID are predicted to result in more than 14.05 million all-age deaths by 2030– a number that includes the death of 4.54 million children younger than age 5 years. Rather obviously,  lives lost remain lost.

We can count the dead. We can assess–at least approximately– the damage done by ICE’s thuggish behaviors– the human costs of its indiscriminate kidnapping, the social costs of its undermining of the rule of law, and the economic losses to farmers deprived of workers to pick their crops.

What we can’t quantify are the immense consequences that flow from a lack of institutional memory and expertise. Edsall quoted Sam Issacharoff, a law professor at N.Y.U., who wrote:

Government stretches the time frame for decision making. Long-term investments, collective needs like roads and defense, these are all matters that require long-term investment and expertise. Experience creates what the Swedish political scientist Bo Rothstein calls “knowledge realism,” the know-how created by experience and repeat efforts.

The dismissal of career experts, the dismantling of long-horizon science projects are examples of what cannot be recreated. What happens if tensions resurface between North and South Korea or between India and Pakistan? Who guides policy if the State and Defense Departments lose their experts? This is something where the next administration cannot simply reopen the spigot and recreate. Expertise is long to create and fast to destroy.

Ordinary citizens are likely to bear the brunt of the administration’s assaults on medical science and research, its destructive incursions into agencies like the National Institutes of Health and the Centers for Disease Control and Prevention, and the withholding of  billions of federal dollars that had been awarded to medical researchers.

 “Federal funding for biomedical research is central to health care innovation,” David Cutler and Edward Glaeser, economists at Harvard, wrote in “Cutting the N.I.H. — The $8 Trillion Health Care Catastrophe,” published in May in The Journal of the American Medical Association. “More than 99 percent of all new drugs approved from 2010 through 2019 had some antecedent research funded by the N.I.H.”

Another study documented the administration’s withholding of financing and undermining of government oversight in multiple areas, including long-term care, scientific research and vaccination policy. The administration’s budget proposals and “Big Beautiful Bill” include severe reductions in health care access, including the outright termination of services for immigrants and gender minorities. Its mass layoffs of scientific and regulatory specialists will be difficult to reverse.

William Galston, a prominent social scientist, weighed in, writing that there has been “irreparable damage” on both the home front and in foreign relations. He cited the “destruction of America’s reputation as the best place in the world for the most promising scientists and innovators of various kinds to conduct research. The evisceration of funding for basic research will be hard to reverse without restoring some bipartisan agreement about the importance of knowledge and expertise. I’m not holding my breath.”

Galston argued that irreparable harm has been done to America’s relations with the rest of the world. Trump hasn’t simply upended the longstanding system of multilateral trade relations that this country created, but he has destroyed the “trust the United States built up over decades as the guarantor of European security, of support for democracy and human rights and provider of global public goods such as freedom of the seas.”

Edsall’s op-ed enumerates a number of areas where rebuilding will be difficult, if it can be done at all, very much including Trump’s assaults on the civil service–from the firing of thousands of workers (many of whom had irreplaceable expertise)  and turning thousands more into “at will” employees, to efforts to politicise the federal workforce in continued defiance of the Hatch Act.

A Senior Fellow at the Brookings Institution called the Trump administration “the political-societal equivalent of a neutron bomb, and predicted that, even if Democrats take over, it will take far more than the next four years to rebuild it.

He isn’t wrong.

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Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

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RIP Due Process

During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.

When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either  liberty or property.

The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.

There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.

In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode,  Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”

The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.

It isn’t just Supreme Court rulings diametrically opposed to years of precedent.

The Prospect, among other sources,  has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.

So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.

We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….

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