Allow Me To Repeat Myself…

In the wake of the Court’s ruling in Dobbs, several pundits have approved of the decision as a “return to federalism.” Earlier this year, I posted about America’s experience with federalism, and obviously, that analysis bears repeating.

The issue, of course, is “Which rules should be nationally-imposed, and which should be left to more local “laboratories of democracy”? Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. But questions about who is entitled to fundamental human rights–and what those rights are–clearly isn’t one of them.

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the extreme federalism of the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of national fragmentation.

The application of the Bill of Rights to state and local governments was meant to establish a national floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Furthermore, modern technology and communication–and the needs of businesses serving a mobile population–have made uniformity imperative even for matters that were properly left to state and local governments in the 1800s.

As I’ve noted previously, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. (It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature. In that sense, it respected federalism.)

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Numerous health officials have addressed the disastrous results of Trump’s decision to leave COVID response to the states. It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?”

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms? It is incomprehensible to me that anyone would choose to leave basic civil liberties up to the states–that, after all, was precisely the “federalism” that led to the civil war.

Certainly, America’s division of jurisdiction among local, state and federal levels of government is still useful–state and federal governments really have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, for example– but we need to recognize that many of our historic assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, as we have seen, it’s an invitation to misconduct.

As a practical matter, federal programs have made a mockery of  the increasingly awkward pretenses of state “sovereignty” where none really exists. Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the myriad other “strings” attached to federal funding that remind state-level agencies who’s really in charge.

If we ever get serious about actually governing again, we should take a hard look at these divisions of responsibility, and recognize that some matters are genuinely local, some require national action, and still others are planetary and must be addressed globally. Climate change is the most obvious.

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights and global threats, a phony and facile “respect for federalism” is both dishonest and suicidal.

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What Can We Do About Fox?

I subscribe to a newsletter from Tom Nichols, a non-crazy conservative who writes for the Atlantic, among other outlets. Nichols recently addressed a problem that pretty much everyone who isn’t crazy recognizes: Fox “News.”

Nichols taught at the Naval War College for 25 years; he worked closely with many American military officers, and he has become increasingly worried about the danger of extremism in the ranks–a situation made worse, in his view, by the fact that Fox is the “default channel in so many military installations.

The overlap between Fox and even more-extreme outlets such as Newsmax and One America News Network, a slew of right-wing internet sites, and talk radio is part of a closed information ecosystem that affects the military no less than it does American society at large. Many years ago, I defended the emergence of Fox as an antidote to the politically homogeneous center-left tilt of the established American media. (Please spare me too much caviling here about media bias back in the Good Old Days; it was less of a menace than conservatives depicted it, but more of a reality than liberals were sometimes willing to admit.)

But things change: Fox is no longer an additional source of news and opinion. It is, instead, a steady stream of conspiracy theories and rage-bait, especially in prime time.

As Nichols explains, there is a significant and important difference between different views held by people who have reached opposing conclusions about various issues and people whose opinions aren’t derived from anything that might remotely be considered evidence or fact.

I am increasingly concerned, however, that what comes from Fox and similar outlets these days is not a “view” so much as an attack on reality itself. As Russian dissident Garry Kasparov has noted, modern propaganda isn’t designed “only to misinform or push an agenda”; it is meant to “exhaust your critical thinking, to annihilate truth,” a good description of how Fox and similar outlets now present their programming… …To watch Fox for an extended amount of time is to go on an excursion into an alternate reality of paranoia and fury, to plunge into a hurricane of anger that shapes views by defying logic and evidence.

I agree. So–I repeat the question with which I’ve been approaching most of the issues of our day: what can/should we do?

Nichols’ response echoes generations of First Amendment case law: the answer to bad speech is more and better speech. More openness, not censorship. Nichols insists that the  answer to an authoritarian challenge cannot be more authoritarianism. (He also dismisses the predictable calls to bring back the Fairness Doctrine–calls from people who clearly don’t understand what that doctrine did and didn’t do. The Fairness Doctrine was a  1949 rule, finally discarded in 1987, that applied ONLY to broadcast channels owned by the government. Ownership allowed government to attach conditions to the lease of those airwaves–attempting to apply it to cable or other privately owned means of communication would violate the First Amendment.)

I used to share with students something I called my “refrigerator theory of Free Speech”–like the forgotten leftover in the back of your refrigerator now covered in green fuzz, suppressed ideas will eventually smell the place up. Put those same leftovers in bright sunlight, and their stench is baked out.  The marketplace of ideas can’t function properly unless there’s verbal sunlight, and freedom of speech requires that We the People participate in that marketplace and produce that sunlight–in this case, more and better speech.

As Nichols says,

No matter how much you don’t like it, you cannot ban, censor, or silence Fox. It’s that simple. You can choose not to watch it and encourage others to do likewise—which can have more impact than you might think. Another possibility is for businesses and institutions to choose neutral programming in common areas such as sports or weather, as military exchanges (stores for military personnel) did in 2019.

He is absolutely right–and that’s what’s so incredibly frustrating. Bottom line, rescuing our democracy necessarily depends upon the efforts of millions of reasonable Americans to combat the hatreds, fears and racial grievances that motivate the members of today’s GOP cult and provide the content of its propaganda arms.

Ultimately, America’s survival as a democratic republic will come down to whether good people–including genuine conservatives–outnumber, outvote and occasionally out-yell the White Nationalists, theocrats and other angry, frightened people who are the target audience of outlets like Fox “News.”

There’s no guarantee those good people will prevail…..and that’s what is so terrifying….

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Perspectives…

During family gatherings, one of my sons often retells the story of a long-ago visit to the Rice Museum in Georgetown, South Carolina, and an accompanying tour guide/docent’s  description of a couple of the displays. (Docent may be an overly grand title; the museum is tiny and its displays are, shall we say, homegrown).Georgetown was the rice capital of the world back in the 1700s, and as we viewed a painting of Black folks working in a rice field, she explained that one of the most egregious injustices of the Civil War was the fact that, when the slaves were freed, plantation owners weren’t compensated for the loss of their property.

In her view, if the government was going to deprive them of the use of their “property,” it had an obligation to reimburse them…

At the time–well over twenty years ago– it was all I could do to keep my son from delivering  some very non-genteel observations about the definition of property. The incident clearly made an impression on him, because every so often he still marvels at the culture that led this otherwise pleasant-seeming woman to view other human beings as the equivalent of cattle and their “appropriation” as tantamount to theft.

I thought about that incident when I read a Talking Points Memo report on a recent Fox “News” segment. Here’s the lede:

Today’s little Fox News gem was a segment on what a huge bummer it is to visit Thomas Jefferson’s Monticello these days, what with all the focus on slavery and what not at what was built as a slave plantation.

A bow-tied, bespectacled guest for the segment was billed hilariously in one chyron as a “recent Monticello visitor.” Turns out there’s a little more to the story.

The bow-tied visitor–one Jeffrey Tucker– complained that even Monticello hadn’t been protected from “this disease of wokeism.” It turned out that Tucker had some history of his own–and that history was illuminating.

One thing about the internet–once something is posted, it is there forever…(I hope that’s true of those deleted Secret Service texts. But I digress.)

A 20-year-old report by the Southern Poverty Law Center about the Neo-Confederate movement had identified Tucker as a founding member of something called the League of the South–a proudly racist organization. He denied being a founder, but he was listed on the League’s Web page as a “founding member,” and he has written for League publications. Furthermore, several League members have lectured at events held by Tucker’s Ludwig von Mises Institute.

As the story from Talking Points Memo concluded,

Tucker’s star turn on today’s Fox segment came just a few days after he served as a named source for a New York Post story headlined “Monticello is going woke — and trashing Thomas Jefferson’s legacy in the process.”

It’s usually a little more difficult to pinpoint the origins of the newest right wing hobbyhorse. Tucker’s presence makes this one easy.

On the right, “going woke” is a current, favorite slur. (A recent, contending meme floating around defines “woke” individuals as people “who didn’t sleep through science and history classes.”)

We all occupy informational and value bubbles. In my bubble, where conversations tend (mostly but admittedly not always) to be based on credible, verifiable evidence,  a recurring discussion revolves around the question “how can any sane person believe [fill in the blank].

It’s one thing to recognize the political lens through which MSNBC and CNN, among others, view events. It is exceedingly misleading to equate that perspective with the out and proud dishonesty of outlets like Fox and OAN. There is a significant difference between a point of view and the constant dissemination of intentional propaganda carefully crafted for, and aimed at, a constituency desperate to confirm belief in a patently false narrative.

Apparently, it would take something like cult deprogramming to dislodge the profoundly racist paradigms through which far too many Americans continue to view the world. We can only hope that most of the Americans who continue to embrace that worldview are elderly and will eventually die off–leaving Fox and its clones with a significantly smaller audience for their deliberate disinformation.

I’m a member of that older cohort, but I’m convinced it’s past time to turn the levers of government over to a younger generation. If my former students were representative, they were far more inclusive, far less credulous, and far more concerned with the common good than my cranky and curmudgeonly generation.

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Republicans Are Coming For Your Birth Control

In the wake of Dobbs, spurred by a clear threat best articulated in Clarence Thomas’ concurring opinion, the U.S. House of Representatives has passed a bill that would guarantee continued access to contraception.

Actually, that sentence is somewhat inaccurate: the Democrats in the House passed the measure; they were able to garner exactly eight Republican votes.

Think about that.

The measure passed 228 to 195, meaning that almost all Republicans refused to protect an unrestricted right to the purchase and use of contraception. Those eight votes represented only slightly more Republican support than two bills that the House passed the prior week, which would have guaranteed access to abortion. Almost all Republicans united in opposition to that measure.

Worse still, the linked article from the Times reports that the contraceptive bill is “almost certain to fail in the evenly divided Senate, where most Republicans are also likely to be opposed.”

Again–think about that. Today’s GOP wants government to be able to control one of the most intimate decisions citizens can make–a decision that is fundamentally private, a decision that is absolutely none of government’s business

“An extreme G.O.P., an extreme Supreme Court, they want to take away your freedom and your control over your own lives,” said Representative Angie Craig, Democrat of Minnesota. “We are in an absurd time.”

She said before the vote that “quite frankly, I’m appalled that we have to vote on this damn bill at all. This is not an extremist issue. This is an extremist G.O.P.”..

Half of the eight Republicans who broke with their party to support the measure are retiring from Congress, including Representatives Anthony Gonzalez of Ohio, John Katko of New York, Adam Kinzinger of Illinois and Fred Upton of Michigan. The remainder — Representatives Liz Cheney of Wyoming, Brian Fitzpatrick of Pennsylvania, Nancy Mace of South Carolina and María Elvira Salazar of Florida — have sought to appeal to moderates and independent voters to bolster their re-election bids.

In Griswold v. Connecticut–a 1965 case–William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” The majority found a right to privacy–the doctrine of substantive due process that was explicitly undermined in Dobbs–in the language of several of the amendments, which Douglas noted would be difficult or impossible to respect without  the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment.

Wherever it resided–in a “penumbra” or the 14th Amendment–they agreed on its presence and importance.

The bottom line–a line virtually all Americans have come to rely upon–is that there is a limit to decisions that government may legitimately make. The very language of that libertarian premise I often quote indicates where that line is to be drawn: We the People have the right to live our lives in accordance with our own moral, ethical and religious beliefs, free of government restrictions, so long as we are not thereby harming the person or property of others, and so long as we are willing to grant an equal right to others.

Government, in other words, has the right–indeed, the obligation–to intervene when our behaviors are harming people who haven’t consented to that harm. Government must leave us alone–in Justice Brandeis felicitous formulation–otherwise. In my far less felicitous framing, the question is: who decides? If my beliefs or behaviors aren’t hurting anyone else, the decision must rest with me.

There can obviously be debates about the nature of harm. (Does a refusal to wear a seatbelt threaten others and justify seatbelt laws? how?) But that isn’t what today’s social issue debates are about. Today’s GOP is a White Nationalist Christian cult, intent upon breaching any right to self-determination that is inconsistent with its twisted theology–a theology not shared–indeed,rebutted– by many genuine Christians.

To the Americans who have relied on their right to direct their own lives for the past fifty years–who have pooh-poohed warnings about the Christian Taliban, confident that their right to self-determination was secure–Congress has sent a message. It can happen here.

In fact, it is happening. Right now.

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Lawyers Are Grieving

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.

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