State’s Rights

The importance of appointments to the Supreme Court isn’t limited to the issue of abortion, or to questions whether “religious liberty” protects the right to discriminate against gay people or refuse to be vaccinated, even when that “liberty” demonstrably harms others.

Thanks to Mitch McConnell, the Court now has at least four current Justices who appear ready to erase over a hundred years of precedent in order to protect the GOP’s electoral advantages. If the Court ultimately decides to ignore most of the jurisprudence that followed and applied the 14th Amendment, returning the United States to a decidedly ununited  status under the rubric of “states rights,” it won’t take long before we inhabit a country that most Americans won’t recognize.

And that country will not be a democracy, if by “democracy” we mean majority rule limited only by the Bill of Rights.

The Court recently denied efforts by Republicans from Pennsylvania and North Carolina to overturn lower court decisions that found redistricting maps favoring Democrats were fairly drawn. The immediate result was positive (or negative, depending upon your political preferences) and most people didn’t read beyond the headline. If they had, they would have seen a chilling  dissent filed by four right-wing justices who supported the Republicans’ argument that state legislatures have ultimate power to determine their own voting procedures, including the selection of presidential electors.

This–as several commentators have noted–is the old state’s rights argument.

If a state’s legislature can determine who gets to vote, or how votes are to be counted and by whom, states like Indiana that have already been gerrymandered to ensure Republican super-majorities can pass laws that further disenfranchise Hoosiers who disagree with their agenda, no matter how extensive that disagreement may be. (We saw the outlines of that agenda in the recently concluded session; Republicans and police officers opposed the bill that eliminated the requirement of a permit to carry a gun.It passed anyway. And  Republicans in the legislature have already asked the governor to call a special session to outlaw abortion if–or when–this Supreme Court strikes down Roe v. Wade.)

As historian Heather Cox Richardson recently reminded readers, in 1868, it was this very concept of “states rights” that Congress overrode with the Fourteenth Amendment–an amendment that the states subsequently ratified.

As others have noted, with appropriate alarm, at least four of the current Supreme Court justices have confirmed  that they are ready to support this independent state legislature theory. That support requires what one pundit has accurately called  “a radical reading of the Constitution that imbues state legislatures with total control over election and voting rules, and redistricting.” 

The Supreme Court has already denied the federal courts authority to overrule partisan gerrymandering. If it endorses the independent state legislature theory, that would bar state courts from doing so as well.  As the linked article summarized the situation,

f enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections. 

“It is effectively an avenue to free state legislatures from the supervision of state courts, which play a critical check and balance on the power of those legislatures,” Daley added. “All you have to do is look at state legislatures around the country to get a really good sense of what the future would look like if these legislatures are free to enact election law with impunity.”

An embrace of that theory by the Supreme Court would further exacerbate the divisions between Red states and Blue states; as the old saying goes, what’s sauce for the goose is also sauce for the gander. Many years ago, political scientist Theodore Lowi traced the resistance of local political pooh-bas to the 14th Amendment’s application of the Bill of Rights to state and local units of government. The result of that application, of course, was to create an American identity–to assure citizens that they would have the same basic rights if they moved from State A to State B.

Make no mistake: empowering state legislatures under this radical theory wouldn’t simply entrench political parties and eviscerate the 14th Amendment. It would be a retreat in the direction of the Articles of Confederation.

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Cheap Speech

Richard Hasen recently had a column–pardon me, a “guest essay”–in the New York Times. Hasen is a pre-eminent scholar of elections and electoral systems; whose most recent book is  “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It.”

In the “guest essay,” Hasen joins the scholars and pundits concerned about the negative consequences of so-called “fake news.”

The same information revolution that brought us Netflix, podcasts and the knowledge of the world in our smartphone-gripping hands has also undermined American democracy. There can be no doubt that virally spread political disinformation and delusional invective about stolen, rigged elections are threatening the foundation of our Republic. It’s going to take both legal and political change to bolster that foundation, and it might not be enough.

Hasen uses the term “cheap speech” in two ways. It’s an acknowledgement that the Internet has slashed the cost of promulgating all communications–credible and not. But it is also recognition that the information environment has become increasingly “cheap” in the sense of “favoring speech of little value over speech that is more valuable to voters.”

It is expensive to produce quality journalism but cheap to produce polarizing political “takes” and easily shareable disinformation. The economic model for local newspapers and news gathering has collapsed over the past two decades; from 2000 to 2018, journalists lost jobs faster than coal miners.

Hasen catalogues the various ways in which that collapse has undermined confidence in American institutions, especially government, and he points out that much “fake news” is not mere misinformation. but” deliberately spread disinformation, which can be both politically and financially profitable.”

Reading the essay, I thought back to Marshall McLuhan’s famous dictum that “the medium is the message.”  Hasen says that even if politics in the 1950s had been as polarized as they are today, it is highly unlikely that those division would have triggered the insurrection of Jan. 6th, and equally unlikely that millions of Republicans would believe phony claims about a “stolen” 2020 election. Social media has had a profoundly detrimental effect on democracy.

A democracy cannot function without “losers’ consent,” the idea that those on the wrong side of an election face disappointment but agree that there was a fair vote count. Those who believe the last election was stolen will have fewer compunctions about attempting to steal the next one. They are more likely to threaten election officials, triggering an exodus of competent election officials. They are more likely to see the current government as illegitimate and to refuse to follow government guidance on public health, the environment and other issues crucial to health and safety. They are comparatively likely to see violence as a means of resolving political grievances.

Hasen buttresses his argument with several examples of the ways cheap speech –and weakened political parties–damage democracy. His litany leaves us with a very obvious question: what can we do? Assuming the accuracy of his diagnosis, what is the prescribed treatment? Hasen gives us a list of his preferred fixes:  updating campaign finance laws so that they apply to what is now mostly unregulated political advertising disseminated over the internet; mandating the labeling of deep fakes as “altered;” and tightening the ban on foreign campaign expenditures, among others.

Congress should also make it a crime to lie about when, where and how people vote. A Trump supporter has been charged with targeting voters in 2016 with false messages suggesting that they could vote by text or social media post, but it is not clear if existing law makes such conduct illegal. We also need new laws aimed at limiting microtargeting, the use by campaigns or interest groups of intrusive data collected by social media companies to send political ads, including some misleading ones, sometimes to vulnerable populations.

He also acknowledges that such measures would be a hard sell to today’s Supreme Court, noting that much of the court’s jurisprudence depends upon faith in an arguably outmoded “marketplace of ideas” metaphor, which assumes that the truth will emerge through counter-speech.

If that was ever true in the past, it is not true in the cheap speech era. Today, the clearest danger to American democracy is not government censorship but the loss of voter confidence and competence that arises from the sea of disinformation and vitriol.

He argues that we need to find a way to subsidize real  journalism, especially local journalism, and that journalism bodies should use accreditation methods to signal which content is reliable and which is counterfeit. “Over time and with a lot of effort, we can reestablish greater faith in real journalism, at least for a significant part of the population.”

I would add a requirement that schools teach media literacy.

That said, how much of this is do-able is an open question.

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Can Human Ingenuity Save Us?

There used to be a television soap opera called–if I remember accurately–“As the World Turns.” Today, an all-too-real soap opera might be called “As the World Burns,” and those of us who believe in science and evidence have no choice but to watch–and worry about what will happen.

It seems increasingly clear that the outcome will depend upon whether we can avert calamity long enough to allow new technologies to moderate climate change and avoid the worst of the predicted outcomes. And promising technologies are being developed.

Just a couple of recent reports give a sense of the various efforts to provide food and energy while reducing global warming. From Fast Company, we learn that

Inside bioreactors in a Vienna-based lab, the startup Arkeon Biotechnologies is reimagining farming: Using a single-step process of fermentation, it’s turning captured CO2 into ingredients for food. Unlike other fermentation processes—such as brewing beer—it doesn’t start with sugars from plants. Instead, the company uses a microorganism with the unique ability to directly transform CO2 into the building blocks for carbon-negative protein.
 
“The unique feature of the microorganism we’re using is that it’s producing all of the amino acids that we need in human nutrition,” says Gregor Tegl, the CEO of Arkeon, which just raised a seed round of $7 million from investors, including Synthesis Capital and ReGen Ventures…. 

Because the fermentation process also works without any inputs like sugar, it can avoid the environmental impact of growing and harvesting crops. “Basically, it has the potential to bypass agriculture,” says Michael Mitsakos, principal at Evig Group. That efficiency will make the amino acids cheaper than what’s on the market now, he says. Arkeon has also calculated that using its bioreactors to produce protein takes 99% less land than traditional agriculture—potentially creating the opportunity for farmland to turn into forests to help fight climate change—and uses 0.01% of the water in traditional farming. Since the production process uses captured CO2 and few other resources, the ingredients are carbon negative.

When it comes to the world’s vast appetite for energy, we are seeing in real time how important it is to divest ourselves of reliance on fossil fuels-and not just to address climate change. If the West no longer needed oil and gas from Russia, one of Putin’s most potent weapons would vanish.  A Ukrainian climate scientist was recently quoted on the connection between climate change and war:

Burning oil, gas and coal is causing warming and impacts we need to adapt to. And Russia sells these resources and uses the money to buy weapons. Other countries are dependent upon these fossil fuels, they don’t make themselves free of them. This is a fossil fuel war. It’s clear we cannot continue to live this way, it will destroy our civilization.”

We are closer to weaning ourselves from fossil fuels– by accessing geothermal energy.

Geothermal energy resources are virtually immeasurable . One estimate is that the heat located just within the first 6.25 miles of the Earth’s surface would yield 50,000 times more energy than the world’s oil and natural gas supplies. If we can tap into it, it’s renewable and nearly free of emissions. The problem has been in reaching it, due to the immense heat encountered in the deep subsurface. (That heat has melted conventional drilling bits, among other things.) New, highly advanced drilling technologies are “pushing the envelope of what can be achieved in conventional drilling operations.”

The linked article describes one such advanced drilling process; an article from Treehugger describes another. 

But Quaise Energy, a startup spun out of the Massachusetts Institute of Technology (MIT) is applying new drilling technology to make it possible to get geothermal energy anywhere. They don’t want to lily dip at 6.5 miles, either, but they want to go down 12 miles to where it is even hotter (930 degrees Fahrenheit) and anywhere in the world—perhaps right next to existing generating plants already attached to the grid.

Rather than using drill bits that will wear out or melt, they drill with microwaves. It vaporizes boreholes through rock and provides access to deep geothermal heat without complex downhole equipment. It’s described as a “radical new approach to ultra-deep drilling.”

Quaise’s long-term plan is to approach power plants running on fossil fuels and offer to drill geothermal fields customized to match their existing equipment. The fields sit on a footprint 100 to 1,000 times less than what’s needed for solar or wind. Once hooked up, it’s basically business as usual: turbines create electricity and feed it to the grid—and our homes, cars, and businesses—via existing infrastructure.

These and multiple other new technologies are enormously promising, but even if most of them come to fruition, their ability to halt planetary warming will take time.

I sure hope we have that time.

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Did The Founders Get It Wrong? Or Has The World Changed?

This is a hard post to write, because I’ve spent the better part of my adult life–as a lawyer,  as a university professor and (at various times) a columnist– defending and explaining America’s Constitution and Bill of Rights. But I just listened to a fascinating podcast from the University of Chicago’s law school, titled “What are rights?” and the reflections it prompted made me connect some “dots” that I’ve encountered over the years, and ponder questions I’ve ignored or–more accurately–repressed.

In the U.S. Constitution, rights are conceived of as negative. When US was founded, governments were far and away the most powerful threat to individual liberty, and accordingly, the Bill of Rights protected individual rights against government intrusions. (When I was Executive Director of Indiana’s ACLU, I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.)

Other Western democracies don’t necessarily share–or even understand–that  limited and negative conception of constitutional rights. Many years ago, I delivered a paper at a conference in Milan, Italy, that included an analysis of a then-recent Supreme Court case, and an Irish scholar challenged me; he thought my description couldn’t possibly be correct because the American notion of negative constitutional rights was unfamiliar to him.

And that brings me to the podcast that triggered this post. That discussion distinguished between human rights and  constitutional rights.

Placing rights in a country’s constitution requires a significant government infrastructure to enforce them–statutes, courts, the training of those who must police and protect citizens. As a result, as the participants in the podcast noted, we want to be prudent –to constitutionalize only the most important of those human rights.

What is “most important,” of course, depends on the cultural context.

Listening to the podcast sent me back to the Universal Declaration of Human Rights, issued by the United Nations in 1948. That document enumerated what were considered basic human rights at the time–and  it included both negative and positive rights. As the Preamble describes those rights, they include recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family.”

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…

The entire planet is currently watching a government engage in those “barbarous acts,” as Russia continues its assault on Ukraine–an assault that underlines the continued ability of governments to disregard the fundamental right to human and national self-determination.

In today’s world, however, governments are far from the only powerful actors capable of invading the rights of citizens. Multi-national corporations, obscenely rich oligarchs, and angry “tribes” of citizens enraged by loss of privileged status and empowered by “free press” propaganda all pose a significant and growing threat to both human and constitutional rights.

I have become increasingly convinced that a constitution that protects only negative rights–the “right to be left alone”–important as those protections are, is insufficient.

Re-read that paragraph from the Universal Declaration, especially the phrase “freedom from fear and want.” Other Western democracies have constitutionalized positive rights– to education, to health care, and to housing. The Universal Declaration itself includes positive rights, including the right to education, and the right “to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

America’s Constitution and Bill of Rights were major and dramatic innovations for their time. The documents crafted by the nation’s Founders triggered a  philosophical and cultural departure from the then-widespread  belief in the divine right of kings and the concomitant disregard for the rights of common folks.  For the first time, subjects became citizens, and citizens had rights.

We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.

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Messaging

A longtime friend–a moderate Democrat–recently sent me the following email (I am pasting it in verbatim.)

A recent headline, “The brand is so toxic Dems fear extinction in rural US” jumped off the page. The article by AP writer Steve Peoples repeated and articulated well what so many of us have thought for several years. Ds do a terrible job of creating a desirable brand. Here, in southern Indiana, where less than 10% of the population has a college degree, Ds use terms like metric tons of CO2, while Rs talk about outrageous price per gallon at the pump. Ds read and quote the NYT and US News and condemn the idea of book police. Rs text why Coach Woodson’s player rotation is wrong. Ds promote the statistical benefits of vaccinations. Rs simply demand that the school kids not have to wear a damn mask.

I am proud to be among the 10% who read the NYT, see benefit in exposure to ideas, think the liberal arts professors are underpaid and still wear my mask into ACE Hardware. But Mr. Peoples is correct. One need only look at Indiana’s 9th congressional district to see clear and irrefutable evidence. We Ds are terrible at branding. We seem doomed to take a licking, and maybe soon stop ticking, to paraphrase John Cameron Swayze.

It’s hard to disagree with the essential point, which is that Democratic “talking points” aren’t connecting to those we think of as “average Americans.” I would also agree with the rather obvious implication of that observation, to wit: Democrats need to fashion messages that would be likely to resonate with the inhabitants of southern Indiana and the country’s rural precincts.

However.

It’s easy enough to cringe at slogans like “Defund the Police” –which not only repelled large numbers of voters, but utterly failed to describe the policy change that was  being proposed.  The persistent complaints about messaging, however, aren’t limited to such examples.

It may be worth taking a step back and examining the roots of that perceived messaging problem–and the extent to which it is and is not about messaging.

As I have previously noted, today’s Democratic Party is not only a far bigger “tent” than the GOP, it is a far bigger tent than it has previously been, thanks to a massive exodus of sane people from what the Republican Party has become. Devising messages that will appeal to all parts of the Democrats’ ideological spectrum–a spectum that spans from relatively conservative GOP refugees all the way to the Democrats who think AOC and Bernie Sanders are insufficiently liberal–isn’t a simple exercise in clever PR.

There is another challenge to the strategists trying to devise messaging that will appeal to “ordinary Americans” who don’t read the New York Times or accept the scientific consensus on climate change or COVID. As those of us who count ourselves among those refugees (in my case, a long-time defector) can attest, there is no messaging that will penetrate the faith-based  cult that is  today’s GOP. Today’s Republican Party is owned by White Christian Nationalists who cheered for Trump and Putin because they were champions for their version of Christianity–pro-patriarchy, anti-LGBTQ, anti-“woke,” etc. They aren’t going to respond to messages from a point of view that is entirely inconsistent with their  hysterical effort to reinstate cultural dominance.

That leaves “messaging” directed to the dwindling numbers of “persuadable.”  I agree that it would be worthwhile to find an approach that would  appeal to those individuals–but I will also point out that any effort to craft such messages should be preceded by research into the reason(s) for their current status. Are they disconnected and disinterested? Disgusted by today’s political reality and loss of civility? Uninformed? All of the above?

I am by no means intending to diminish the importance of messaging. Words matter, and they matter a lot. But given where we are right now–given the substitution of a semi-religious cult for one of our only two major parties–I’d suggest putting all of our resources into  messages and volunteer efforts focused on turning out the substantial majority of voters who already are in broad agreement with Democratic priorities. Polling consistently shows that the elements of Biden’s Build Back Better, for example, are widely popular.

We just have to remember that–given the multiple political and psychological barriers to casting a ballot–messages alone will not get voters to the polls.

And as Paul Ogden periodically reminds us, we also need to make sure that the people counting the votes of those we do turn out are counting them accurately.

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