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Federalism On Steroids?

There are many observations we might make about the newest Supreme Court Justice and the travesty of her elevation. Assuming Democratic reluctance to enlarge the Court in a tit-for-tat response to the last 12 years of GOP court packing, one of those observations concerns prospects for federalism and states’ rights.

As Elizabeth Warren noted in a speech opposing Barrett, the nominee carefully refused to answer numerous important questions. She wouldn’t say whether the Supreme Court ruling upholding the right to contraception was correct, or whether the government is entitled to criminalize a same-sex relationship. Despite the applause from Republicans about the size of her family (seven children!), she refused to opine that it’s wrong to separate children from their parents at the border. She called climate change “controversial.” She evaded  many other inquiries, including what should have been considered “softball” questions: whether it’s OK to intimidate voters at the polls, and whether a president has the right to postpone an election.

When she held up that blank notepad she’d brought to the hearing, it was evident that the pristine paper was her reminder to abstain from sharing anything resembling content.

it is likely that Barrett will join Trump’s other regressive Court picks, and rubber-stamp state laws that violate rights we have come to view as American, endorsing a radical federalism allowing the rights of individuals to be defined by the states in which they live.

I’ve previously posted about the demographic shifts we’ve seen and the effects those shifts have had on equal treatment and “one person, one vote.” I’ve previously recommended Bill Bishop’s book The Big Sort, and its analysis of what he called “voting with our feet.” The likelihood of a radical return to “states’ rights” is likely to super-charge that residential apartheid.

States like Indiana already struggle to retain young people–especially educated young people. Red states like ours will rush to take advantage of their new imperviousness to federal constitutional constraints. They won’t just outlaw abortion (and in some states, access to birth control), they’ll expand gun rights, restrict access to health care and eviscerate their already paltry social safety nets. The Court has already declined to interfere with a variety of vote suppression tactics that favor the GOP–everything from gerrymandering, to ballot counting, to poll hours and locations.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until now–they have been forbidden to retract them.

The new approach to federalism–what one might call “federalism on steroids”–will upend that understanding of American citizenship. The extent of your rights will depend upon your state of residence. If the young people with whom I interact are any indication, that’s a situation that threatens to leave a number of red states with a dwindling and aging population.

America has already seen its population shift to urban areas. As the “creative class” (and those who want to employ them) described by Richard Florida increasingly cluster in vibrant municipalities, those urban locations become even more attractive.

Gay families aren’t going to locate in states that refuse to recognize their marriages or parental rights. Women aren’t going to choose locations that allow the government to dictate their most intimate decisions. Few families will want to live in states where gun owners are encouraged to bring firearms everywhere, including schools. (And don’t think this is hyperbole–here in Indiana, we have state representatives who work constantly to legislate that “freedom.’)

States offering universal healthcare (a la Massachusetts) will look awfully good to a lot of Americans.

I wonder: At what point do “states’ rights” and a commitment to expanded “local control” end up creating separate and not-so-equal  parts of what has been one country? At what point will fiscally healthy blue states decide to stop supporting “taker” red states?

When does federalism on steroids translate into secession?

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Blog Now Accessible

To all those who contacted me–the problem with access this morning was a technical glitch, and has been fixed by my genius webmaster (aka son).

It has been gratifying to see how many of you cared enough to let me know!!

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Social Capital And Covid-19

Until I entered academic life, I was unfamiliar with the concept of social capital. Human capital is more easily understood; it refers to the skills and knowledge of a given individual. Social capital, on the other hand, refers to the positive and negative qualities of networks, of our human connections to others.

There are two types of social capital: bonding and bridging. Bonding social capital occurs within families, clans and associations such as churches and fraternal organizations, where members–those considered “one of us”–are nurtured and supported. Bridging social capital, on the other hand, fosters relationships between otherwise unrelated groups or individuals who benefit from the networks’ trust, reciprocity, information, and cooperation.

The relationships that characterize  bonding social capital are sometimes referred to as thick, even tribal. The connections formed by bridging social capital are considered thinner, but given the increasing diversity of the American population, bridging social capital is critically important.

Scholarly and media attention to these connections within human societies has grown since the theories were first advanced in the mid-twentieth century, and I was intrigued by an August article in The New Yorker that investigated the connection between COVID-19 transmission and  bridging social capital. 

Now, all general truths about the pandemic are premature. But the empirical results so far seem at least to suggest an intriguing paradox: that places with a great deal of social capital got hit worst by the virus, and then recovered fastest. This is reportedly the case with the secular, social-democratic countries of the European Union, none of them particularly religious, but many of them rich in shared networks of trust.

Evidently, the research showed that people in places who were not socially distanced at the start of the plague–but places with significant amounts of social trust– had an easier time learning to social-distance by its end.

Translated from the academese, people who are used to going out a lot stopped when people they trusted told them that doing so was a good way to get sick. That’s a process familiar to New Yorkers. Cursed by our density and our place as a cosmopolitan crossroads to suffer worst from the plague, our capacity for self-regulation under rational government direction has moved us dramatically forward, or, rather, downward. We had, through nearly all of April, above a twenty-per-cent positive-testing rate; now, by living behind our masks and (mostly) staying out of bars, we have driven the number below one per cent.

 As the author points out, social trust is “earned and banked” over many years of trustworthy governance.

In America, we have been undergoing a kind of four-year experiment in what happens to a country when social trust and social capital are not merely badly maintained but actively corroded…. We have been living a four-year exercise in destroying social trust and replacing it with gangster values: loyalty to the capo at all costs, and vengeance on his competitors and enemies taken at his direction. Instead of converging on obvious truths—the limited but real values of mask-wearing, the confidence that quack cures won’t solve the problem, the necessity of vigilant watchfulness—we are told every day that all empirical arguments are merely, well, masks for clan rivalry.

The results are already clear. The rush to reopen in the so-called red states was motivated partly by commercial impatience but also largely by a kind of irrational rage at the “élitist” social networks that depend on the diffusion of scientific expertise. If instructed that scientific medicine is one more opinion on the spectrum of political grievance, then social distancing and mask-wearing become, like gun control, an imposition on liberty.

Bottom line: the social connections that characterize bridging social capital rely upon trust and reciprocity–and reciprocity itself requires trust. The constant lies of the Trump Administration, the escalating propaganda of right-wing media sources and the dramatic upsurge in conspiracy theories have combined to dangerously erode our levels of public trust–and that trust is absolutely essential, not just to the effective control of a pandemic, but to all social functioning.

The erosion of bridging social capital may explain why so many Americans have retreated into the bonding comforts of their tribal affiliations.

But bonding social capital–nurturing and supportive as it can be- rests on an “us versus them” worldview, and that’s absolutely the last thing we need right now.

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Let Me Count The Ways…

There are all sorts of tactics that have been employed over the years to suppress the votes of “the other guys.” Recently, those efforts have mostly come from the GOP, but historically, both parties have engaged in them–just as both parties do (and continue to) gerrymander when they control a state legislative chamber.

I’ve recently noted that the efforts to cast doubt on voting by mail are partly motivated by the fact that vote-by-mail defeats many of the time-honored ways to suppress minority votes–and provides a paper trail.

One of the least commented methods of suppressing minority votes–and one of the most effective–is felon disenfranchisement. It is widespread–a number of states forbid ex-offenders from casting ballots–and superficially, at least, it’s race-neutral. For citizens unaware of the over-incarceration of African-Americans during America’s drug war (laid out in indisputable terms by Michelle Alexander in The New Jim Crow), felon disenfranchisement is simply a lingering, perhaps overly-harsh “law and order” punishment of those who have broken the law.

Two recent court decisions–one honorable, one definitely not–make the implicit, explicit.

In North Carolina, a court struck down an effort to keep ex-offenders from casting ballots, holding that the state could not disenfranchise citizens who owe fines, fees, and other debts from a felony conviction. As the linked article about the ruling noted,

Many felon disenfranchisement rules, including North Carolina’s, are rooted in overt white supremacy. After Reconstruction, racist Democrats in the state sought to revoke Black citizens’ suffrage. They accomplished this task, in part, through vague criminal laws that stripped convicted felons of their civil rights—then enforced these laws disproportionately against Black people. North Carolina’s current statute is rooted in an 1877 law spearheaded by a representative who later presided over the lynching of three Black men. At the time, Democrats argued that felon disenfranchisement was necessary to stop “the honest vote of a white man” from being “off-set by the vote of some negro.” Its purpose, alongside other Jim Crow measures like the literacy test, was to “secure white supremacy.”

The law continues to work as intended, as documented in an expert report by University of North Carolina professor Frank R. Baumgartner. Today, Black North Carolinians represent 22 percent of adults and 42 percent of the disenfranchised. Black residents are denied the right to vote at three times the rate of white residents in 44 counties. The state’s disenfranchisement regime targets two groups of people: those on probation or parole, and those who’ve completed their full sentence but still owe court debt. Notably, judges may extend an individual’s probation or send them back to prison because they haven’t paid off these fines and fees.

Meanwhile, in Florida, immediately after a majority of citizens voted to overturn that state’s felony disenfranchisement law, Republican legislators passed a measure that limited that disenfranchisement to those who had managed to pay off all court costs. A federal judge ruled that the restriction was an unconstitutional poll tax. But last Friday, an appeals court narrowly overturned that decision.

The court’s 6-4 ruling dealt a significant blow to civil rights groups that have fought to expand the voter rolls with hundreds of thousands of people who had completed prison time and parole for felony convictions. It also undermined what had seemed like a major referendum victory in 2018 and served as another reminder of the decisive role that a slew of legal cases could play before the presidential election.

There are lessons here, for those of us willing to learn them.

First, racial animus dies hard, and it lurks in places we seldom think to look. Second, the competence and integrity of the men and women who occupy the nation’s bench–who act as custodians of the Constitution and defenders of the Rule of Law–is critically important.

And third, the future of both that bench and this nation depends upon massive turnout for “blue no matter who” on (or preferably before) November 3d.

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Add This To The List

A couple of days ago, Trump floated the possibility of postponing the general election “due to the pandemic.” He made the suggestion in a tweet–of course–in which he also took another swipe at vote by mail, which he distinguished from absentee voting. Absentee voting, he tweeted, was fine; vote by mail, however, would lead to massive fraud.

The tweet displayed his usual–monumental–ignorance of its subject-matter.

First of all–and somewhat beside the point–vote by mail is pretty much identical to absentee voting–a method of casting one’s ballot that Trump himself has frequently used. His insistence that it leads to fraud is belied by the fact that some 29 states employ vote by mail for some portion of their elections; Oregon, Washington State and Colorado all have gone completely to vote by mail, and the only result that would account for Trump’s opposition is increased turnout.

Just as the GOP used fabricated hysteria over “voter fraud” to justify Voter ID laws–the real purpose of which is to suppress the votes of poor people and minorities–Trump is frantically trying to drum up mistrust of mail-in ballots.

When it comes to the question of postponing the election, Trump once again displays his total ignorance of the U.S. Constitution–a document I doubt he has ever read or had read to him. Article 2, Section I, gives Congress some leeway in counting Electoral votes; nowhere does the document give the President any authority whatsoever over the timing or conduct of elections.

Moreover, the 20th Amendment requires the President and Vice-President to end their terms at noon on January 20th in the year following the general election. It allows for no leeway. As one wag has pointed out, if we haven’t elected a new President at that point, the Speaker of the House would become President.

President Pelosi would be okay with me.

Throughout his term in office, Trump has obviously believed that Presidents are like kings–that he has unchecked autocratic power. Fortunately, he is often wrong, but as Gary Hart wrote in a recent New York Times Op-Ed, there are far too many times when he’s right. And that should scare the living you-know-what out of us.

In 1975, after public revelations of intelligence abuses concealed from all but a handful of members of Congress, the United States Senate created a temporary committee to study the nation’s spy agencies — something no standing committee had ever attempted.

What came to be known as the Church Committee, after its chairman, Senator Frank Church of Idaho, recommended broad reforms, including the creation of a permanent Intelligence Oversight Committee. Former Vice President Walter Mondale and I are the last surviving members of the Church Committee.

We have recently come to learn of at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances. President Trump alluded to these authorities in March when he said, “I have the right to do a lot of things that people don’t even know about.”

Hart says it’s time for a new select committee “to study these powers and their potential for abuse”, and advise Congress on mechanisms that would provide stringent oversight, if not outright repeal.

What little we know about these secret powers comes from the Brennan Center for Justice at the New York University Law School, but we believe they may include suspension of habeas corpus, surveillance, home intrusion, arrest without a judicial warrant, collective if not mass arrests and more; some could violate constitutional protections.

A number of us have urged immediate congressional investigations concerning what these powers are and why they have been kept secret. Public hearings should be held before the November elections, especially with rumors rife that the incumbent president might interfere with the election or refuse to accept the result if he felt in jeopardy of losing.

Hart asks some very important questions:

Where did these secret powers come from? Where are they kept? Who has access to them? What qualifies as a national emergency sufficient to suspend virtually all constitutional protection? And critically, why must these powers be secret?

If–as every rational American must hope–Joe Biden becomes President in January 2021, a searching examination of these secret powers and the nature of the events that might trigger them needs to be added to the very long list of tasks made imperative by Trump’s corrupt and disastrous Presidency.

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