Speaking Of America’s Decline…

As long as we’re talking about the decline of America’s political life, let’s talk about Herschel Walker– a human representation of that decline.

Walker–for those unfamiliar with him, as I happily was until recently–is the Republican candidate for Senate in Georgia. His nomination owes much to America’s obsessions with both sports and celebrity; he was evidently once a good football player.

At least he was good at something…

I can’t describe Walker any better than The New Republic.which headlined the linked story with a question: Is Herschel Walker Running to be the Senate’s Dumbest Liar?

Last month, the two-time All-Pro running back from the University of Georgia won the Peach State’s Republican Senate primary. A rabid right-winger, Walker has fully backed Trump’s claims that the 2020 election was stolen, going as far as to say that Joe Biden didn’t get “50 million votes.” (Biden received more than 80 million.) He has urged revotes in a number of close states, including Arizona, Pennsylvania, and his home state. In chilling fashion, he called on Trump to conduct a “cleansing” of the country in the days leading up to Biden’s inauguration.

Walker is, even by recent GOP standards, an absolute firehose of lies. He’s also, to put it bluntly, absolutely godawful at lying. His deceptions seem to arrive in the news pre-collapsed—they are easily uncovered and incredibly numerous; his falsehoods have been repeatedly revealed over the last several months. At this point the “False Statements” section of his Wikipedia page is longer than the one recounting his ongoing campaign to be Georgia’s next senator.

The article enumerates a number of the lies Walker has peddled. For example, he has boasted that he was proprietor of a food service business that was a “mini–Tyson Foods,” claiming that it employed more than 100 people and generated nearly $100 million in sales. The Atlanta Journal-Constitution reported that the company’s profits were less than $2 million; that Walker didn’t own or run it, but had simply licensed his name to the business; and it had only eight employees.

In February, meanwhile, Walker boasted that “I still have about 250 people that sew drapery and bedspreads for me.” That sounds impressive! There’s just one problem: It isn’t. While Walker has claimed on his website that “[Herschel Walker Enterprises] and Renaissance Hospitality provides major hotels, restaurants and hospitals with custom fabric bedding, drapery and window treatments,” the truth is that Renaissance Hospitality doesn’t exist anymore—it dissolved a year ago. Moreover, Walker didn’t even own the business—a friend did.

There’s lots more. On several occasions, Walker claimed to have worked in law enforcement, although he never did. He has repeatedly railed against single-parent families, especially absent Black fathers.  Small  problem: The Daily Beast initially revealed that Walker has a son, now 10 years old, whom he never sees, and subsequently found others–there are (at least) three children for whom Walker is an absentee father

The portrait that emerges is a pretty simple one: The guy is a liar and a dummy. Walker spouts off in interviews and the campaign trail, inflates his successes, and makes bold claims that are comically easy to disprove. His campaign occasionally acknowledges them or tries to walk them back—it acknowledged the parentage of his son, for instance—but Walker has managed, either by wit or by accident, to keep following the Trump North Star, charging forward, headlong into the next incident. This candidacy is ultimately a test of how much Trump broke our politics—and how much a lesser facsimile of the former president can lie again and again and still succeed in American politics. Perhaps our politics are sturdy enough to survive it. It’s still no fun watching voters have to stomach this sort of stupidity and deceit.

If Walker was just a one-off, that would be dispiriting enough; he is, after all, the nominee of a major party for the Senate of the United States. But he has lots of company. (And let’s be clear, virtually all of the bumbling, moronic, ego-driven narcissists who embarrass America daily come from the once-Grand Old Party. Marjorie Taylor Green, Louie Gohmert, Paul Gosar, Lauren Boebert…In the Senate, you have Tommy Tuberville (who didn’t know there were three branches of government), James Inhofe…and those are just the ones who come immediately to mind.)

Dick Lugar is spinning in his grave.

How did American politics descend from debates over the common good and sound policy–from issues of governance–to today’s version of “let’s make a deal.”? When did celebrity come to be more important than competence, anger and bile more important than intellect, self-aggrandizing bluster more important than verifiable truth?

For those of us who are worried that the country is in decline, the rise of the idiocracy is compelling–albeit depressing– evidence.

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Let Me Explain This One More Time…

I see that Tucker Carlson has applauded the demise of Roe v. Wade, and characterized the decision as a “return to democracy.” Evidently, someone needs to explain America’s approach to democratic self-rule to Tucker and his constitutionally-illiterate audience.

Democratic systems can take several forms. In a “pure” democracy, where an unrestrained majority rules, voters participate in all government decision-making; the majority is even able to decide who has the right to vote. (I’m unaware of any country with so “pure” a democracy, for obvious reasons.)

America’s Founders didn’t choose that system. (For one thing, their concerns about the “passions of the majority” were well-known.) Instead, they crafted a republic in which voters would choose lawmakers from among the ranks of the thoughtful and knowledgable (!!), and those lawmakers would debate the merits of legislative proposals, negotiate and compromise among the various points of view, and pass well-considered laws.

Then they constrained those lawmakers by enacting a Bill of Rights.

The Bill of Rights–as I have often explained in these posts–is essentially a list of things that American government is forbidden to do, even when a majority of voters approve. Thanks to the Bill of Rights, government cannot censor our communications. It cannot prescribe our prayers (although after the Court’s most recent ruling, it can evidently coerce them) or dictate our reading materials. It cannot search or seize us without probable cause.  It cannot invade our liberties or take our property without due process of law.

Let me reiterate that, for the edification of any Fox viewers who might be lurking: the Bill of Rights limits what popular majorities can authorize government to do. It is a limitation on majority rule–on what the Tucker Carlsons of this world conceive of as democracy. It protects the right of individuals to choose their own political and religious beliefs and follow their own life goals, their own telos, free of government–or majority– interference.

Over the years, the Court has had to interpret the operation of the Bill of Rights–to apply its broad principles and protections to specific situations. Since the 1960s and until this week, the Court has recognized a right to privacy, and has drawn a line between decisions that government can properly make, and those that must be left to the individual. It has based that line on citizens’ right to due process.

There are two kinds of due process: procedural and substantive. Substantive due process (often called the right to privacy) is the doctrine that requires official respect for individual autonomy–the doctrine that forbids government from making decisions that are none of government’s business, “intimate” decisions that under longstanding understandings of the Bill of Rights must be left up to the individual involved.

The existence of that line protecting individual liberty from government interference rests on multiple precedents interpreting the 14th Amendment’s Due Process Clause. 

If the doctrine of substantive due process goes away, those “democratic” state governments so beloved by Tucker Carlson will have the right to prohibit same-sex or interracial marriage, re-criminalize sodomy, and ban the sale and use of birth control…All of those rights and others are in the cross-hairs so long as Republicans can keep their stranglehold on American government via gerrymandering, the Electoral College and other mechanisms  (mechanisms that are all, ironically, exceedingly anti-democratic). 

The decision overturning Roe was deeply dishonest, especially in its discussion about  whether a particular right was historically recognized, but Alito’s distorted history is ultimately irrelevant– a red herring. In order to find that the government has a right to control the reproductive decisions of individual women, the Court had to fatally undermine the doctrine of substantive due process. And when that doctrine is no longer viable, all other personal rights are vulnerable.

Clarence Thomas may have been the only Justice willing to admit to the obvious agenda of this rogue Court, but it is abundantly clear that the other four members of the religious tribunal that now controls the Court share that agenda.

Debates about abortion have always been both superficial and dishonest. “Pro life” has always been a misnomer, since anti-choice policy is blatantly indifferent to the lives of women (and to the lives and welfare of fetuses once they become children). But there needs to be far more recognition that this decision isn’t simply an endorsement of the right of state governments\ to make very bad policy decisions–it is an endorsement of autocracy, of the right of government to invade the most personal precincts of citizens’ lives, and to impose the religious views of those in power on those of us without.

Giving legislators the right to make my most intimate decisions isn’t the Founders’ view of “democracy”– and it sure as hell isn’t mine.

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The Rubber Has Hit The Road

Remember that old saying about “when the rubber hits the road”? Its import was that, when the rubber hit the road, it was time to act, to decide…Well, given overwhelming evidence of the GOP’s attempted coup, the neutering of Congress by use of the filibuster, and the morphing of the Supreme Court into a religious tribunal, it’s fair to conclude that the rubber has indeed hit pavement, and a failure to move quickly to recapture the institutions of American life will turn this country into a place most of us won’t want to inhabit.

In the wake of the Court’s ruling in Dobbs, The Guardian was especially blunt. In an article headlined “How the Christian right took over the judiciary and changed America,” it reported–quite accurately-

The supreme court decision in Dobbs v Jackson Women’s Health Organization, which reverses the constitutional abortion rights that American women have enjoyed over the past 50 years, has come as a surprise to many voters. A majority, after all, support reproductive rights and regard their abolition as regressive and barbaric.

Understood in the context of the movement that created the supreme court in its current incarnation, however, there is nothing surprising about it. In fact, it marks the beginning rather than the endpoint of the agenda this movement has in mind.

 At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

Let me just repeat that last paragraph:

At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

How did this happen? How did White Christian Nationalists effectively take over a major political party and the courts? As the Guardian article notes, answering that question requires looking back at the history of the Christian Nationalist movement, and how it “united conservatives across denominational barriers by, in effect, inventing a new form of intensely political religion.”

Christian nationalists often claim their movement got its start as a grassroots reaction to Roe v Wade in 1973. But the movement actually gelled several years later with a crucial assist from a group calling itself the “New Right”.

Among the many things the New Right opposed were feminism and the civil rights movement. One thing that they were not particularly angry about, at least initially, was the matter of abortion rights. A primary concern was that the Supreme Court might end tax exemptions for segregated Christian schools, but they knew “Stop the tax on segregation!” was unlikely to be an effective rallying cry for their new movement. They needed an issue that could be used to unify the various, disparate elements of the New Right, an issue that could draw in the rank and file.

In many respects abortion was an unlikely choice, because when the Roe v Wade decision was issued, most Protestant Republicans supported it. The Southern Baptist Convention passed resolutions in 1971 and 1974 expressing support for the liberalization of abortion law, and an editorial in their wire service hailed the passage of Roe v Wade, declaring that “religious liberty, human equality and justice are advanced by the Supreme Court abortion decision.”

On the other hand, abortion brought conservative Catholics into the movement with conservative Protestants and evangelicals, and allowed the New Right to blame abortion rights for all manner of perceived social ills of the age – especially women’s liberation .”The issue became a focal point for the anxieties about social change welling up from the base.”

In recent decades, the religious right has invested many hundreds of millions of dollars developing a complex and coordinated infrastructure, whose features include rightwing policy groups, networking organizations, data initiatives and media. A critical component of this infrastructure is its sophisticated legal sphere.

 Movement leaders understood very well that if you can capture the courts, you can change society.

And so here we are. The Courts have been captured; the Congress (thanks to gerrymandering and filibuster Joe Manchin) has been neutered. Over 100 state candidates running for the right to count our votes are “Big Lie” proponents.

The rubber has hit the road.  Americans must turn out in massive numbers this November to  dislodge the theocrats and begin the process of reclaiming  America.

All available research shows a majority of Americans strongly opposed to the Christian Nationalists who have assumed control of our no-longer-so-democratic institutions. All voting history shows that a disastrous number of those Americans won’t bother to vote.

If that doesn’t change in November, the America we know is over.

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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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What Can We Do About The Supreme Court?

It’s no longer possible to avoid recognizing the extreme radicalization of the United States Supreme Court.  As an email from the Center for Inquiry accurately characterized the latest ruling, it was “not the act of a secular court but of a religious tribunal.” 

Since the ascension of Mitch McConnell’s hand-picked culture warriors, we have seen a steady stream of decisions laying waste to the legal underpinnings of American liberties. I have written before about the terrifying implications of the abortion ruling,  and why it threatens a much broader array of personal liberties than reproductive autonomy. (In his concurring opinion in Dobbs, Thomas made that threat quite explicit.) The Court has continued its assault on genuine religious liberty, which requires separation of church and state. And its wholesale abandonment of previous precedents on gun legislation–including even the pro-Second-Amendment decision in Heller written by “originalist” Antonin Scalia–is further evidence of a Court majority intent upon rewriting and re-imagining two hundred years of constitutional jurisprudence.

A reader asked me to comment on a report from the Brennan Center proposing changes to the way jurists are elevated to the high court. It is worth emphasizing that the Center issued this paper in 2019, and that it is only one of numerous proposals published during decades of scholarship addressing increasing concerns about the Court’s operations– the analysis was not written as a response to the recent blitz of appalling decisions.

Perhaps the thorniest issue raised by the current operation of the Court involves what the Brennan paper calls “democratic accountability.”

Judicial accountability is different from legislative or executive accountability; the whole purpose of lifetime appointments to the federal bench was to insulate the judiciary from the political passions of the moment–to avoid the sort of “accountability” to political pressure that the other branches  quite properly experience. The Executive and Legislative branches were created to be (more or less) directly answerable to “we the people,” but judges were expected to make thoughtful and considered decisions based on the law and facts as they saw them. (Electing judges, as some states do, is a repudiation of that foundational intent.)

On the other hand, the courts certainly weren’t meant to be untouchable quasi-legislative bodies. (Remember when Republicans screamed about “Judicial Activism” and “Imperial Courts”?) There are several ways to insure appropriate democratic accountability without abandoning the original purpose of lifetime appointments.

As the Brennan report noted,

Two funda­mental flaws in the Consti­tu­tion’s appoint­ment system must be fixed. First, there is no regu­lar­ized system for Supreme Court appoint­ments. Because pres­id­ents can appoint new justices only when a sitting justice resigns or dies, justices are appoin­ted unevenly, so that some pres­id­ents have many appoint­ments, while others have few or even none. In addi­tion, because justices now serve longer on aver­age than their prede­cessors, there are signi­fic­antly fewer appoint­ment oppor­tun­it­ies. These devel­op­ments fray the only formal link between the court and the people — nomin­a­tion by an elec­ted pres­id­ent and confirm­a­tion (or not) by elec­ted senat­ors. In the early days of the repub­lic, when the court was viewed as weak, such defects caused little harm. But today, with the court hold­ing immense power, the lottery appoint­ment system under­mines the court’s consti­tu­tional legit­im­acy and erodes the court’s connec­tion to our demo­cracy.

Second, life tenure permits justices them­selves to stra­tegic­ally time their retire­ments so that an ideo­lo­gic­ally like-minded pres­id­ent can appoint their successor. Recently, this has become the norm. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders. In addi­tion, some justices have remained on the court after a severe decline in their mental or phys­ical capa­cit­ies, in hopes of last­ing until a pres­id­ent who shares their legal and policy pref­er­ences takes office. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders when they wrote the Consti­tu­tion.

In the current system, some pres­id­ents appoint an outsized number of justices, some justices outlive the offi­cials who appointed them by many years, and  justices can time their retirements to ensure the ideo­logy of their successors. Worse still, a majority of Justices on the current Court were appointed by Presidents who had lost the popular vote.

As a result, today’s Court lacks democratic legitimacy. 

Correcting the two flaws described in the linked report would require a constitutional amendment prescribing regular appointments coupled term limits. (Constitutional scholars argue that 18-year terms should be adequate to insulate judges from political pressure.)

Given the daunting barriers to passage of constitutional amendments–not to mention the lengthy timeframe of even successful efforts– several legal scholars advocate enlarging the Court. Changing the number of Justices can be done by statute, and in fact, has been done before. Suggestions for enlarging the Court long preceded the current Court, and were prompted primarily by workload concerns–more recent Courts hand down far fewer decisions than previous ones did.

 The author of the Brennan report dismisses that remedy as too partisan, but–as I noted previously–his paper was written before Amy Coney Barrett joined the Court, bringing to five the number of radical religious culture warriors (with the frequent concurrence of the Chief Justice) intent upon dismantling years of constitutional jurisprudence. And five is enough to get the job done.

If the addition of justices is seen as partisan, so be it. The current Court is a thoroughly partisan religious tribunal–and a clear and present danger to the Republic. Ignoring that fact is not an option.

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