The Idea of Liberty

When I was initially asked to speak, I asked if there was a subject you wanted to hear about.  I was told “Oh, something about liberty.” As my older grandchildren might say, that seemed pretty specific—NOT.

 

When I thought about it, though, I decided that the subtext to the assignment was really something like: We read your columns in the Star, and we want to know where the hell you’re coming from. Which certainly seems fair enough. I get 500 words every two weeks to make my case on a given topic; that barely lets me outline an argument, let alone provide the context within which I’m operating.

 

I am definitely a person with a particular point of view (I know that comes as a huge surprise to those who read my columns…As my husband often says, “tell me what you REALLY think, Sheila”), and that point of view is grounded in my reading of the  U.S. Constitution, the philosophy that animated it, and its assumptions about the essential nature and importance of individual liberty.

 

It is absolutely staggering how little the general public knows about our constitution and Bill of Rights. There are many reasons for that—we don’t do a very good job of teaching civics, or high school government, for one thing, and the media doesn’t do a very good job of covering or explaining constitutional arguments, for another. 

 

I have been amazed, for example, how many of my undergraduate students cannot answer the very basic question “What is a constitution, and how do constitutions differ from statutes?”

 

As I try to explain to them, a constitution is a framework within which a government functions. It limits what government can do. Part of our constitution establishes mechanics and structure: assigning duties, determining who does what, establishing requirements for holding public office—that sort of thing. Some of it, however—especially the Bill of Rights—is a statement of our national values—our American moral code. The Constitution and Bill of Rights establish our national values, and our subsequent policy choices are constrained by those constitutional values, and are supposed to be consistent with them. (Village Pantry example.)

 

Original intent, properly understood, means fidelity to those original values. So, for example, James Madison/internet.

(Story about student who asked “Who’s J.M.?)

 

The men who drafted our constitution were products of the Enlightenment, the 18th century philosophical movement that ushered in great changes in the way people thought about government, science, and the nature of reality. One of the most significant consequences of Enlightenment philosophy was the elevation of the value of individual rights, understood as personal autonomy, or “self-rule.” The Founders wanted to limit the extent to which government can prescribe how we live, or interfere with our right to decide for ourselves what beliefs and goals make our lives meaningful. They were profoundly respectful of the integrity of the individual conscience. They wanted to protect each individual’s right to decide how to live his or her life; that’s why the Bill of Rights is a list of things government is forbidden to do—it sets limits on the power of government, even when that government is acting in accordance with majority desires—perhaps especially when it is.

 

The Founders were especially leery of what they called the “passions of the majority,” and as a result, the Bill of Rights is what lawyers and scholars call a “counter-majoritarian” document. It is a libertarian “brake” on the power of the majority to direct government action.

 

What critics often fail to recognize is that the Bill of Rights is less concerned with outcomes than processes; less concerned with what we decide than it is with who decides it and how.  In our system, we decide for ourselves how to live, what to read, whether to pray and if so, to whom—and we get to make those decisions free of government interference or coercion, so long as we do not harm the person or property of a non-consenting other, and so long as we recognize and honor a similar right for our fellow-citizens.

 

Even when we are careful to define our terms, however, we really can’t understand the Bill of Rights without understanding American history. And if my students are any indication, our high schools  aren’t doing any better at teaching American history than they are at teaching American government.

 

The Founders we all talk about, those we do learn about in American history, were the men who gave us the Declaration of Independence, the Constitution, and the Bill of Rights—the men who created our legal system. But there was another set of Founders: the Pilgrims and Puritans who originally populated the colonies, and the Founding Fathers who drafted the constitution. And those two sets of progenitors lived in very different conceptual universes.

 

The first set, the men that legal scholar Frank Lambert has called the Planting Fathers, came to the colonies for religious freedom, just as we learn in grade school. What we don’t learn is that religious freedom meant something rather different from the religious freedom most of us celebrate today. The Planting Father’s definition of religious liberty was “freedom to do the right thing.” (explain). Puritans like John Winthrop came to America to build a ‘Shining City on the Hill,’ a ‘new Israel.’

 

Religion was intensely important to those original settlers. Most of them believed that God not only wanted them to follow the “right way,” but that He also wanted them to make sure their neighbors were living in accordance with God’s rules as their particular church defined those rules. Most of them took for granted that government would impose religion on its citizens. Religious freedom meant a government that would establish the “correct” religion.

 

Not that there weren’t dissenters even then: the fiery Baptist preacher John Leland was one. Roger Williams was another ardent believer in freedom of conscience. He was expelled from the Massachusetts Bay Colony for his dissenting views, and went on to found Rhode Island, where he insisted that there be no religious test for citizenship. Williams was the first person we know of to use the term “A Wall of Separation between Church and State,” over 150 years before Thomas Jefferson would do so.

 

Those early colonists were products of the Protestant Reformation, the religious upheaval that began when Martin Luther pounded his 95 Theses on the church door. The Reformation brought about a new emphasis upon the individual. The Catholic Church had taught that people needed a “go-between” between themselves and God, and an interpreter to tell them what the bible meant; Luther, however, insisted that each man could approach God—and read the bible—without an intermediary. Over time, that bit of heresy ended up undermining the whole idea of authority—the idea that priests—and Kings—held those positions because God had chosen them, and that disobedience to the King and other civil authorities was therefore the same thing as disobedience to God.  

 

The cultural influence of the Puritans, especially Calvinism, remains strong to this day. Calvin taught that God alone was sovereign, and that he had chosen certain people for salvation and others for damnation.  Calvin also fashioned what has come to be called a “Presbyterian” model of church governance, in which individual congregations elected delegates to a presbytery, or governing body—a democratic organizational model that influenced later American attitudes toward the structures of authority. Calvinism in its various manifestations has been an important influence on American culture—and so has the Puritan view of liberty as the “freedom to do the right thing, and to make sure your neighbor does too.”

 

This is the way that one legal scholar has described the difference between these early Puritans, or “Planting Fathers” and the nation’s Founding Fathers:

 

“In 1639, a group of New England Puritans drafted a constitution affirming their faith in God and their intention to organize a Christian Nation. Delegates from the towns of Windsor, Hartford and Wetheresfield drew up the Fundamental Orders of Connecticut, which made clear that their government rested on divine authority and pursued godly purposes….

 

One hundred and fifty years later, George Washington took another oath, swearing to ‘faithfully execute the office of President of the United States,” and pledging to the best of his ability to “preserve, protect, and defend the Constitution of the United States.” The constitution that he swore to uphold was the work of another group of America’s progenitors, commonly known as the Founding Fathers, who in 1787 drafted a constitution for the new nation. But unlike the work of the Puritan Fathers, the federal constitution made no reference whatever to God or divine providence, citing as its sole authority ‘the people of the United States.’”

 

What had happened in that intervening 150 years was the philosophical movement called the Enlightenment. John Locke, John Stuart Mill, Montesquieu, and other Enlightenment figures had become particularly influential in the colonies. The Enlightenment introduced a new emphasis on rationality, ushered in modern science, and—most important for our purposes today—fashioned a very different definition of liberty: to these philosophers, liberty did not mean “freedom to do the right thing.” It meant freedom to do your own thing, freedom to choose your own ends and live your own life free of government interference, so long as you did not thereby harm anyone else.

 

I don’t think it is an exaggeration to say that American history has involved a continuing tension between the Puritan and enlightenment worldviews—and the very different concepts of liberty they represented. In my most recent book, God and Country: America in Red and Blue (only 16.45 on Amazon.com!!) I explored that history, and its relevance to our current public policy debates and the so-called “culture war.” Let me just share just one example I used in the book:

 

Some of you may remember the incident in 2003, when the federal courts ordered the removal of the five-ton granite Ten Commandments display that had been erected at the entrance to the Alabama Supreme Court by Judge Roy Moore. When the stone was being removed, supporters of Judge Moore rallying in front of the courthouse were interviewed by television reporters. Virtually all of them said that the removal of the monument was an infringement of their “religious freedom.” Not surprisingly, lawyers and civil libertarians found this claim ludicrous; what they saw was a theocrat attempting to use the authority of the state to impose a particular religious perspective at the expense of all others—the absolute antithesis of “religious freedom.”

 

What we need to understand is that neither side was pandering or lying. They looked at the same basic “facts”—a five-ton stone with a carved replica of the Ten Commandments, located at the entrance to the State Supreme Court, and a federal court order to remove it—but they interpreted what they saw in radically different ways. Both sides genuinely believed the other side was willfully ignoring “plain” truths: Moore’s supporters were angry that federal courts would not recognize the “fact” that the United States was a Christian Nation. Civil libertarians found Moore’s position incredible in the face of the First Amendment’s “clear” prohibition of religious establishments—a clarity which, needless to say, eluded Moore’s defenders. The two sides to this conflict might as well have lived on different planets, given their inability to communicate.

 

The constitutional constraints on government don’t just protect religious liberty, of course. The 4th Amendment requires government to have a good reason—an articulable reason, not just a hunch—for searching or seizing someone. Due process guarantees require certain procedures to be followed if government is interfering with your liberty or your property. The Equal Protection doctrine requires government to treat all similarly-situated citizens alike. We can discuss these and other specifics of the Bill of Rights during the Q and A, but one way to think about all of them is as pieces of an effort to level the playing field between relatively powerless individuals and the 500 pound gorilla that is government. (explain)

 

Clearly, I take sides in these debates. Here is my reasoning: the United States is the most diverse nation on earth. We are also one of the most religious and religiously diverse. If we are to live peacefully together, government cannot be allowed to play favorites. There are two arguments for preferring the vision of the Founding Fathers over that of the Planting Fathers: one is philosophical and the other is prudential.

 

Philosophically, I prefer what is sometimes called the “libertarian principle,” the principle that individuals should be able to live as they see fit, free of the interference of government, so long as they do not harm the persons or property of others. You might call it the “live and let live” principle. More authoritarian people will argue that certain private behaviors harm the whole community and that therefore the government should be able to prevent those behaviors. The difficulty is that there is no consensus on what behaviors those are.

 

Prudentially, there is a strong argument to be made that in a diverse country that is becoming increasingly more diverse, there is no practical alternative to state neutrality in matters of conscience. All over the world, countries are fracturing along ethnic and religious lines, as contending factions try to seize power and to privilege their own ethnic group or tribe. Whatever the merits or demerits of the Founding Fathers’ choices, I would argue that their insistence upon limiting the power of the state and subjecting elected officials to the rule of law has kept us from turning into Bosnia or Northern Ireland or more recently, Iraq.

 

As I have already noted, the Founding Fathers were products of the Enlightenment who understood that a government strong enough to protect a man’s property was a government strong enough to expropriate it. They were well aware that a government powerful enough to provide security would be a government powerful enough to threaten that same security. They understood that government needed sufficient authority to be effective, but they insisted on checks and balances to insure that its authority would not be abused. They knew that the legitimacy of government is dependent upon its adherence to constitutional limits and the rule of law. 

 

I used to work for Bill Hudnut, when he was Mayor of Indianapolis—I was his Corporation Counsel, or City Attorney. I think his favorite analogy said it best:  government should be the umpire, not one of the players. Or, as an ACLU friend of mine used to say, “Be careful before you empower the government to impose whatever rules the majority favors at any given time. Remember, poison gas is a great weapon, but only until the wind shifts.”

Our job as citizens is to protect liberty by keeping the poison gas out of the hands of the government.

 

Thank you.

 

 

Smart Government

Every four years, candidates for offices high and low attribute the problems of government to a distressing lack of bipartisanship, and promise that—if elected—they will “reach across the aisle” to “solve real problems.” These promises are so predictable, and so empty, that most of us simply tune them out.

Wonder of wonders, however, a genuinely bipartisan effort is being mounted right now, right here in Indiana, to address what most impartial observers agree is the most significant governance problem we Hoosiers face.

MySmartgov.org has been formed to enact recommendations initially made by the Kernan-Shepard Commission, a bipartisan group of Indiana leaders who studied the structure of Indiana government and issued a report with numerous recommendations in December 2007. As its name suggests, the commission was led by former Governor Joe Kernan and Chief Justice Randall Shepard, who accepted the task at the request of Governor Mitch Daniels.

It is telling that the Commission’s recommendations closely mirrored those made by Gov. Paul McNutt—in 1936.  Never let it be said that Hoosiers rush into anything.

MySmartgov.org proves the old adage that politics makes strange bedfellows. Its most prominent member-supporters, other than the original Commission participants, are the Indiana Chamber of Commerce, the Central Indiana Corporate Community Council, the Indiana Realtors, and the Professional Firefighters Union. Its Executive Director is Marilyn Shultz, formerly the State Budget Director during the Kernan Administration. Even the organization’s blogging is being done by a team consisting of one Republican and one Democrat.

Why is this a big deal? Because Indiana’s inefficient and bloated governing structure is strangling us, driving up property taxes while starving service delivery.

Governing decisions enacted in 1816 and 1851 are still on the books, and as a result, Indiana citizens pay for, and are governed by, more than 10,300 local officials. The state “boasts” 3,086 separate governing bodies, hundreds of which have taxing authority. When we compare Indiana to 11 other states our size, we have more levels of government than all but two of them.

It is this bloated superstructure that makes it nearly impossible to follow through on the other perennial promise of political candidates—the promise to root out waste. Here in Indianapolis, for example, Mayor Ballard is belatedly realizing just how limited his options are. It’s easy to criticise incumbents and demand to know where our tax dollars are going; what too few of those critics understand is that most of the waste is in our governing structures, in overlapping and outmoded units of government. It’s certainly not in service delivery, which has been cut to the bone.

In Indiana, we don’t put tax revenues to work enhancing our quality of life. Instead, we use them to pay for 1008 Township Trustees and other officeholders we no longer need.

In some contexts, bipartisanship is code for retaining the status quo. In this case, however, it is the only way Indiana can progress. Liberal or conservative, Republican or Democratic, we all deserve efficient, accountable government. Smart government.

 

Comments

2008 Election

The American economy has been strained to the breaking point by eight years of reckless fiscal policies. Our international stature has been compromised and diminished by arrogant and unilateral foreign policies. Our government has helped create a global energy crisis, and has done nothing about climate change. You could be forgiven for assuming that those issues are central to the upcoming elections, but I’m going to suggest that war and peace, economic prosperity and even national self-respect are in a very real sense subsidiary to what is truly at stake on November 4th. 

This election is a contest between the past and the future; its outcome will determine whether Enlightenment rationalism or religious fundamentalism prevails. In short, this is the election that will determine who wins the “culture wars.”

There are some arenas where the culture clash is front and center; even James Dobson has said that losing the referendum on same-sex marriage in California would mean that the Christian Right has unambiguously lost the culture war. But the conflict is more consequential than the future of same-sex marriage and gay rights, important as that is. This election will determine who gets to control what America will look like in the 21st century. It is a fight between absolutely incompatible worldviews.

I’d been convinced for some time that this election would be a fateful battle between culture warriors, but the choice of Sarah Palin as John McCain’s running mate confirmed my thesis.  I don’t say this simply because Palin represents everything that is wrong with social conservatives’ ideology, although she does. (She’s anti-choice even in cases of rape or incest, she opposes stem-cell research, she’s anti-gay, and she’s really anti-science—she’s an advocate of teaching creationism in the schools who does not believe that human activities contribute to global warming).

I also don’t say this simply because her social conservatism was more important to John McCain than her absolute lack of any qualification to be a heartbeat away from the Presidency.

I say this because her selection was part and parcel of the way in which culture warriors really see the issue of gender—and by extension, how they see every other issue of diversity, including but certainly not limited to gays and lesbians.

Think about it. Had McCain chosen a male running-mate with Sarah Palin’s resume, the choice would have been laughed off the national stage, dismissed as absolutely unserious. Tim Pawlenty, the equally socially conservative Minnesota governor who was on the McCain short list, was widely criticized for being too insubstantial, for having qualifications too likely to be dwarfed by Biden’s greater experience and gravitas. And Pawlenty looks like a seasoned elder statesman compared to Palen. What, then, did she bring to the table, other than (excuse me) a vagina? And just how cynical—and revealing—does that make this selection?

Here’s the calculus as I see McCain’s folks analyzing it: 1) a lot of women voted for Hillary; 2) social conservatives in the GOP base still aren’t excited by McCain. We can energize the base by choosing one of their own, and as a  bonus, we can pick up disappointed Hillary voters because she’s a woman, and women are interchangeable. Women just want to see someone who looks like them in office, bless their pretty little heads.  It seems genuinely never to have occurred to the McCain camp that for women voters to believe that a candidate “looks like them” might require more than shared secondary sexual characteristics.  At the very least, it means sharing a particular worldview, being a particular kind of woman.

The Christian Right approaches issues of gay equality the same way, by constructing a monolithic “gay agenda” that everyone in the gay community is assumed to share. It is also the way they see African-Americans—and in fact, as one friend of mine remarked, the choice of Palin is based on precisely the same worldview that put Clarence Thomas on the Supreme Court. He’s black, so the black folks should be happy. So what if everything Thomas stands for is in stark contrast to what the vast majority of African-Americans believe? So what if Sarah Palin’s positions are profoundly anti-woman? She’s female. Surely that’s all Hillary’s supporters—and by extension, other women—care about.

It is ironic that, as the Democratic party has moved past tokenism toward genuinely pluralist politics, the Republicans have bought into the worst kind of identity politics. Those differences between contemporary Republican and Democratic worldviews are consequential for all of us.

  • The emerging Democratic philosophy requires that we look at individuals—gay, straight, Christian, Jewish, black or white—and evaluate those individuals on their merits, their talents, their characters. It isn’t that race or religion or gender or orientation becomes irrelevant;  it’s just that those markers of identity aren’t material—they’re just one aspect of this particular human being, and we are grading this human being on the basis of everything he or she brings to the table. Everybody gets to compete on a level playing field, where being gay, female or purple is neither an asset nor a liability. It’s simply a description.
  • The worldview of the right-wingers who control today’s GOP, on the other hand, is paternalistic. It begins by assigning people to categories, by dividing the world into “us versus them.” Members of the group labeled “us” are the elect, the rightful rulers of the universe. Political considerations do, however, require some concessions to the fact that “they” have the right to vote, and so some tokenism is required. (It never seems to occur to those holding this worldview that tokenism is as insulting as outright bigotry. Tokenism assumes that members of those “other” groups are interchangeable, that unlike white Protestant straight males, they are not entitled to be accepted or rejected on the basis of their individual merits.) When you view the political landscape through this lens, you believe every debate must have winners and losers. There is no “win-win.” There is no “live and let live,” because allowing people to live their lives in accordance with any rules other than your own is—by definition—defeat.

At its base, this election is a choice between those two worldviews. It’s a choice between the past—where the color of your skin, the denomination of your church, your gender and/or your sexual orientation determined your place in the social order—and a future where behavior, and not identity, determines how far a person can go.

 

Comments

Constitutional Culture

As Americans prepare to go to the polls, the nation is teetering on the edge of an economic meltdown. If we are to avoid electing someone who will make things even worse—never mind beginning to turn things around—it behooves us to consider how and why we are in this mess.

Permit me to suggest that our current problems—including our economic problems—are rooted in the fact that for the past eight years, we have been governed by an administration that has operated far outside of what I call America’s constitutional culture. As we prepare to say “adios” to the Bush calamity and to choose a new President, we would be well advised to look closely at each candidates’ approach to the constitution, because a willingness to operate within its constraints will tell us much more than the issue papers and campaign promises that are the staples of electoral strategies.

A constitution does many things: in its more pedestrian provisions, it lays down the mechanics of governing—how old must a person be to run for President? How shall the legislature be selected? Those sorts of things. More fundamentally, however, constitutions provide a statement of national values—a moral code governing our necessary civic infrastructure. America’s constitution places a high premium on protecting individual rights by limiting the scope of government power, by the separation of powers, and an insistence on checks and balances and the rule of law. 

For the past eight years, the Bush-Cheney Administration has shown nothing but contempt for those constitutional constraints, and the policies it has favored have been consistent with that contempt.

It’s not just the Patriot Act, NSA spying, or the establishment of the prison at Guantanamo, alarming as those and similar measures have been. It’s not just the careful selection of judges who can be expected to favor the prerogatives of government over the rights of citizens. It’s not just the use of signing statements to circumvent constitutionally prescribed policymaking processes. It can also be seen in the proliferation of no-bid contracts, privatization, cronyism, and lack of regulatory oversight that has precipitated our current financial crisis.  (Make no mistake—the administration’s anti-regulatory fervor is part and parcel of its general disdain for the rule of law, and has been a major contributor to our current economic crisis. Notwithstanding the florid rhetoric from self-proclaimed advocates of the free market, markets cannot function without clear ground rules and impartial umpires willing to enforce those rules.)

Fine, you may say. I agree the people we elect ought to be bound by the rule of law. But what does the constitutional commitment and knowledge of a Presidential candidate  tell me about his or her policies most likely to affect me?

 

Consider the following:

·        A President who understands the First Amendment’s religion clauses will not try to change the laws to incorporate particularistic religious beliefs about abortion, homosexuality or science. That means supporting stem-cell research. It means no Terry Schaivo dramas, no “Defense of Marriage” acts, no creationism in the classroom.

·        An administration respectful of the Fourth Amendment will not  read your email or eavesdrop on your telephone conversations.

·        A President who respects the rule of law, who enforces laws and regulations impartially (and thus prevents the wholesale looting of the treasury by the well-connected) is far less likely to preside over an economy where jobs are lost, homes foreclosed and retirement accounts devalued.

·        A President who understands the philosophy and intent of the Equal Protection Clause of the Fourteenth Amendment will respect diversity and insist upon equal rights for all Americans.

Barack Obama taught constitutional law. He and Joe Biden have given ample evidence that they understand, and are committed to, constitutional principles. John McCain’s embrace of constitutional limits has been spotty, at best; Sarah Palin has given no evidence of ever having read the constitution (or much else).

I am as aware as anyone that this country has often failed to live up to its highest aspirations and constitutional institutions. But the damage done by the Bush Administration has been both systemic and insidious, because it has called those very aspirations into question. It will not be easily repaired.

Political partisans always insist that “this election is the most important ever.” It’s easy to dismiss overheated pronouncements (like my own!) as predictable election-year rhetoric. But as the old sayings go, even paranoids have enemies and even stopped clocks are right twice a day. When Americans go to the polls November 4th, we will be voting for far more than a President. We will be voting to reclaim—or to jettison what is left of–America’s constitutional culture.

 

 

Redefining Sexism

The GOP is playing identity politics with stunning incompetence.

Think about it. Had McCain chosen a male running-mate with Sarah Palin’s resume, the choice would have been laughed off the national stage, dismissed as absolutely unserious. Tim Pawlenty, the equally socially conservative Minnesota governor who was on the McCain short list, was widely dismissed for being too insubstantial, for having qualifications too likely to be dwarfed by Joe Biden’s greater experience and gravitas. And Pawlenty looks like a seasoned elder statesman compared to Palin.

What, then, did this brunette version of Ann Coulter bring to the table, other than her gender and an impressive mean streak?

Here’s the calculus as McCain’s folks apparently analyzed it: 1) a lot of women voted for Hillary; 2) social conservatives in the GOP base still don’t trust McCain. With Palin, we can energize the base, and as a  bonus, we can pick up disappointed Hillary voters because she’s a woman. Women just want to see someone who looks like them in office, bless their pretty little heads.  Plus, we can dismiss the inevitable criticism as sexist.

It seems genuinely never to have occurred to the McCain camp that for women voters to believe that a candidate “looks like them” might require more than shared secondary sexual characteristics. (It isn’t only women, of course. Remember when the right wing thought Alan Keyes would appeal to African-American voters?)

Is misogyny real? Of course it is. Sexists—and racists—operate under a double standard; they demand higher performance, better qualifications, and harder work from members of disfavored groups than they demand from members of their own. (And yes, women and blacks can be sexists and racists under that definition.) Genuine advocates of civic equality don’t want preferential treatment; we want—duh—equal treatment.

What most feminists want is a truly level playing field. We want to be evaluated on our merits. We want to compete on the basis of our competence to do the job at hand. We don’t want either success or failure to be based upon our gender.

Hillary Clinton did face substantial sexism, as her supporters have alleged, but her defeat in the primary was primarily the result of a poorly-run campaign. She lost for many of the same reasons that John Edwards, Joe Biden and Chris Dodd lost. The men and women who supported her never tried to argue that her bona fides or positions should not be scrutinized—they supported her because they genuinely believed she would be the best for the job, not because she had ovaries.

There may be voters who believe that Governor Palin is the most qualified person to be a heartbeat away from the Presidency. Others will welcome her selection as evidence of John McCain’s total capitulation to the far right fringes of the Republican party. The rest of us will wonder what the selection says about John McCain’s judgment—and what it tells us about his promise to “put America first.” And we aren’t all sexists.    

 

           

 

 

Comments