Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson-– is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.

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Trust And Governance

When I was doing research for my 2009 book Distrust, American Style: Diversity and the Crisis of Public Confidence, I became aware of the considerable amount of data that tied social trust to the functioning of institutions–especially government.

What prompted that research, and the book that emerged, was my considerable skepticism of a widely-read study by Robert Putnam (author of the even-more-widely read Bowling Alone), in which he attributed America’s diminished levels of social trust to our growing diversity. I agreed that the erosion of interpersonal social trust had occurred, but I strongly disagreed about the cause, which I attributed to burgeoning evidence that much of government was untrustworthy.

I also saw the data as manifestation of a “chicken-and-egg” problem: were low levels of trust a cause or consequence of diminished trust in our government?

My research led me to argue that–partly because of the complexities of modern society and partly due to specific attributes of America’s political culture–generalized social trust depends on our ability to trust our social and governing institutions.

Fish rot from the head.

The issues are complicated, and I don’t intend to re-litigate the arguments I made in the book, but one clear lesson I took from my research was that social trust is incredibly important. (One of the reasons the collapse of a truly mass media is so consequential is that the rise of outright propaganda has contributed mightily to the erosion of that trust.)

We see the consequences of low levels of trust–in government, in medical science– in the refusal of too many Americans to get vaccinated, prolonging the COVID pandemic. We see it in the astonishing numbers who believe the “Big Lie” about rigged elections.

What prompted me to think about my former research was an article in the Atlantic, titled “A Trust Recession is Looming Over the American Economy.”

Manufacturer inventories. Durable-goods orders. Nonfarm payrolls. Inflation-adjusted GDP. These are the dreary reportables that tell us how our economy is doing. And many of them look a whole lot better now than they did at their early-pandemic depths. But what if there’s another factor we’re missing? What if the data points are obscuring a deepening recession in a commodity that underpins them all?

Trust. Without it, Adam Smith’s invisible hand stays in its pocket; Keynes’s “animal spirits” are muted. “Virtually every commercial transaction has within itself an element of trust,” the Nobel Prize–winning economist Kenneth Arrow wrote in 1972.

The article focused on the importance of trust to economic performance, and noted a little-remarked element of the remote work necessitated by the pandemic: one study  found that the longer employees were apart from one another during the pandemic, the more their faith in their colleagues fell. The article reported on a number of other studies that found similar “trust erosions” in the workplace.

As companies have gone virtual during the coronavirus pandemic, supervisors wonder whether their remote workers are in fact working. New colleagues arrive and leave without ever having met. Direct reports ask if they could have that casual understanding put down in writing. No one knows whether the boss’s cryptic closing remark was ironic or hostile.

The article reminds us that “Trust is to capitalism what alcohol is to wedding receptions: a social lubricant.”

The economists Paul Zak and Stephen Knack found, in a study published in 1998, that a 15 percent bump in a nation’s belief that “most people can be trusted” adds a full percentage point to economic growth each year. That means that if, for the past 20 years, Americans had trusted one another like Ukrainians did, our annual GDP per capita would be $11,000 lower; if we had trusted like New Zealanders did, it’d be $16,000 higher. “If trust is sufficiently low,” they wrote, “economic growth is unachievable.”

My own research noted the effects of diminished trust on business and the economy, but focused more on the widespread, negative consequences for governance and social amity.

In a complex society, we can no longer rely on gossip and informal interpersonal networks to tell us who is trustworthy and who is not. We rely on our social institutions, especially (albeit not exclusively) government. As I wrote in the book, when government does not function properly–when it intrudes into areas that are inappropriate for government intervention, when it violates the terms of our original social contract, or when it performs its necessary and proper functions in an incompetent or corrupt manner–it undermines social trust and cohesion.

The corruption of the Mitch McConnells and the corruption and incompetence of the Trump administration–aided and abetted by propaganda outlets pretending to be “news” organizations–have decimated the already badly eroded social trust required for democratic governance.

I for one don’t have a clue how to grow it back.

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The GOP (Non) Platform

Speaking of “what’s next”…..(yesterday’s subject)…

What happens when a crazed minority controls important parts of a nation’s government? I worry that we are about to find out just how much worse it can get.

A few days ago, I woke up to news that the GOP is once again competing for office solely on the basis of its ongoing culture war–that the party will not produce a platform in advance of the 2022 midterm elections. According to Heather Cox Richardson,

Senate Republicans will not issue any sort of a platform before next year’s midterm elections. At a meeting of donors and lawmakers in mid-November, Senate Minority Leader Mitch McConnell (R-KY) said that the Republican Party’s 2024 nominee would be responsible for deciding on an agenda. The Republican senators in 2022 will simply attack the Democrats.

That should have been stunning, front-page news–one of America’s two major political parties is asking for our votes based only on what it is against. 

To be fair, it isn’t that Republicans aren’t for anything; they are simply unwilling to be explicit about their obvious, albeit policy-free goal, which is to return the U.S. to the social structures of the 1950s, when women, LGBTQ individuals and people of color were second-or-third class citizens, and White, purportedly Christian males dominated.

Granted, it would be awkward for the party to articulate its actual goal, but there’s another barrier to producing a document that sets forth what today’s GOP stands for–the inability of the crazies who are now at the center of the Republican cult to form any coherent narrative, let alone agree on any specific policy agenda.

True, some of the more obvious, albeit unwritten “planks” in that abandoned platform have been part of GOP dogma for quite some time: repealing women’s reproductive rights, ensuring that every nutcase who wants a weapon can access one, ensuring that industries can misbehave–collude, pollute, spy– without the interference of that pesky government…but others are relatively new, and difficult to explicitly defend.

For example, how do you frame an argument against government’s role in protecting public health? I continue to be gobsmacked by the “freedom warriors” who are literally laying down their lives for the right to refuse a lifesaving vaccine. (Let me be clear: if they weren’t also endangering rational folks, I’d be more than happy to see them thin the ranks of the terminally stupid.)

How do you justify attacks on accurate education without admitting that your motivation is protection of White Supremacy?

Thanks are due to the Williamson County, Tennessee, chapter of Moms for Liberty for once again clarifying what the “critical race theory” (CRT) uproar is really about. We can say until we’re blue in the face that critical race theory is a graduate-level school of thought not taught in K-12 schools, and along comes an anti-CRT group to show that what they really object to is any teaching that shows that racism is or has ever been a real thing.

The group, run by a woman whose children do not attend public school, filed a complaint with the Tennessee Department of Education claiming that some texts being taught to grade-school students violate the state’s new law against teaching about “privilege” or “guilt” or “discomfort” based on race or sex. The texts? Books for second-graders including Martin Luther King, Jr. and the March on Washington and Ruby Bridges Goes to School, along with Separate is Never Equal and The Story of Ruby Bridges.

Lest you think “Moms for Liberty” isn’t racist to the core, the book they recommend to replace “Ruby Bridges” was written by one W. Cleon Skousen, a conspiracy theorist and John Birch Society supporter. It characterizes ‘black children as ‘pickaninnies’ and American slave owners as the ‘worst victims’ of slavery, and claims the Founders wanted to free the slaves but that “[m]ost of [the slaves] were woefully unprepared for a life of competitive independence.”

I could go on, but I’ll spare you.

The good news should be the fact that  GOP craziness and conspiracy-mongering are most definitely a minority phenomenon. Survey research confirms that its delusions and positions are held by a distinct minority– a lot more people than we’d like to believe, but certainly not a majority of Americans.

The bad news is that, thanks to gerrymandering and the filibuster, a wacko minority has seized far more power than a properly operating democratic system would let them wield.

In fact, if Congress cannot pass voting rights legislation, and soon, the crazies and bigots will win.

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What’s Next?

I recently had a disquieting political discussion during an otherwise lovely lunch with my youngest son.

It probably won’t shock readers of this blog to learn that our children and grandchildren are pretty political…and I’m happy to report that they all have developed what I consider to be excellent values. The differences arise from our views of America’s probable future. One son has already moved to the Netherlands, a granddaughter lives in northern England, and this son–our youngest–expects that America’s descent into autocracy and White Supremacy will prompt his children to eventually relocate as well.

Our discussion wasn’t exactly an argument, but we had very different predictions about the likely political fallout when–not if, since we agreed it will happen– the Supreme Court eviscerates or overrules Roe v. Wade. I opined that their “victory” will lead to a reduction in the passion of the pro-fetal-life movement, and energize women who have previously felt protected by Roe. My son disagreed–he sees the anti-choice zealots taking their fervor to state legislatures and–thanks to gerrymandering–tightening their red state control.

I should mention that this son is a lawyer, and a very good one. He knows how to frame and present a convincing argument….Needless to say, I left lunch depressed.

A few days after that conversation, I was a guest on a podcast called Who Gets What–the brainchild of two longtime friends, Morton Marcus and John Guy. After the recording stopped, Morton and I were talking, and he made an observation that I found both fascinating and relevant to the consequences of a reversal of Roe v. Wade.

Morton said he’d been looking for a truly objective, scholarly analysis of the multiple ways in which women’s “liberation”–the growth/emergence of women’s participation in all the “nooks and crannies” of society–has changed that society. As he noted, there’s been a lot written about the subject, but it’s mostly advocacy (pro and con), or focused on relatively small parts of the bigger picture. He’d found no analysis encompassing the truly monumental social changes triggered by the steady expansion of women’s participation in all parts of our society.

Morton’s observation is accurate, at least so far as I can tell–I’m unaware of any scholarship that addresses the entirety of the immense social changes that have occurred as a result of women’s emancipation from the confines of “barefoot and pregnant.”

However one defines the “women’s movement,” however, its power depends on reliable birth control.

Yes, we can look to history and find examples of powerful women; we can point to the suffrage movement and similar efforts to assert or enlarge women’s rights–but real change, I submit, came only with the ability of women to control our reproduction. Only then could we enter fully into workplaces (most of which no longer required brute strength), an entry that gave us another form of choice: the economic means to leave unsatisfactory marriages, or to renegotiate the terms of more agreeable ones.

There’s a reason the people who want to return the U.S. to the social structures of the 1950s are so focused on controlling women’s reproduction. (It isn’t just abortion; if you don’t believe birth control is next, I refer you to the Hobby Lobby case…)

The future of American democracy may well depend upon the extent to which American women understand the far broader implications of a loss of control over their reproductive lives. Yes, there are compelling medical, economic and psychological reasons to allow women to exercise the self-determination men take for granted. Yes, the arguments advanced by pro-fetal-life activists are inaccurate gaslighting. But if women lose control over their bodily integrity, they won’t just lose the momentum that has been building toward their full participation in American society, they’ll do a U turn.

Women’s equality will lose considerable–critical– ground.

I think that–deep down, if not consciously–activists on both sides of the issue understand that this fight is really between continuing inclusion of half the population in the life of the nation, or a return to some version of male social dominance. The question is whether the majority of non-activist women understand the actual nature of the debate, care about continuing their progress toward equal civic participation, and are sufficiently motivated to protect the hard-won improvements in women’s prospects and status.

What happens next–whether my son’s predictions or my own hopes prove accurate–ultimately depends on the answer to that question–and upon who wins those statehouses.

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Feeding The Wrong Wolf

The title of this post refers to a story usually attributed to the Cherokees (although evidently its origins are murky). Commenters to previous posts have occasionally referenced it.

An old Cherokee is teaching his grandson about life:

“A fight is going on inside me,” he said to the boy.

“It is a terrible fight and it is between two wolves. One is evil–he is anger, envy, sorrow, regret, greed, arrogance, self-pity, guilt, resentment, inferiority, lies, false pride, superiority, and ego.”

He continued, “The other is good – he is joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion, and faith. The same fight is going on inside you–and inside every other person, too.”

The grandson thought about it for a minute and then asked his grandfather: “Which wolf will win?”

The old Cherokee simply replied, “The one you feed.”

Like many of you, I’ve loved this parable; it reminds us that we have moral/ethical choices (no matter what psychological researchers tell us…).  What brought it to mind, rather forcefully, was an article from Politico, analyzing the business model employed by cable news channels. Apparently, their practices aren’t all that different from those employed by Facebook. And it isn’t only Fox. All of the cable networks–CNN, MSNBC, etc.– “behave more like political players — emphasizing one side while disparaging the “enemy” — than they do independent news organizations.”

By flattering the perceived political prejudices of their audiences and avoiding a story when the news becomes inconvenient to their agenda, the networks behave like vendors of political entertainment.

There’s nothing immoral or unprofessional, of course, in pursuing a partisan news agenda. There’s a long tradition of partisan, activist journalism in America, starting with the colonial era and extending to today. Abolitionists like Frederick Douglass, labor organizers like John Swinton, naturalists like John Muir and anti-corporatists like Ida Tarbell and Ralph Nader, just to name a few names from the past, reported the news through ideological lenses, and magazines like Mother Jones, Reason, and the National Review continue that practice. But these activist journalists made it apparent where their reporting was coming from. The cable networks, on the other hand, pretend, to use the old Fox slogan, to be “fair and balanced.” By attempting to have it both ways — tilting while at the same time posing as straight news — cable news tarnishes journalism’s good name and needlessly increases viewer tribalism.

I would quibble with the Politico story’s portrayal in degree–“They all do it” elides the rather obvious evidence that Fox “does it” to a far greater degree than CNN or MSNBC. (Confusing fair coverage with false equivalence really isn’t analytic rigor.) But that said, the article raises an issue that has no identifiable solution.

The problem is that, unlike the out-and-out propagandists and liars I posted about yesterday, news anchors–even on Fox– aren’t lying. (The pundits–the Tucker Carlsons and similar “personalities”– are a different matter, and it’s troubling that most viewers don’t recognize the difference between actual news and the wildly distorted commentary they are being fed.) Like all of us, news anchors and reporters can only view the world through their own eyes. Their individual lives and backgrounds inevitably form the context of what they see and report.

Yesterday, I cheered on the growing number of lawsuits against the most egregious propagandists–the individuals and websites trafficking in (sorry for the expletive) obvious bullshit.

The dilemma presented by the “slant” of the cable networks, falls into a different category. For one thing, omitting coverage of events that may be considered unpalatable or inconvenient or simply un-newsworthy isn’t technically lying, although in many cases it certainly is intellectually dishonest. For another, “spin,” intentional or unintentional, is ubiquitous–again, because we all see and filter events through our own world-views.

Saying that we all inevitably see the world through our own eyes isn’t simply another way of saying that we bring our own biases and prejudices to our news consumption. It also involves bringing such knowledge as we may have to bear, which is why I keep harping on the importance of civic education. (If your favorite “personality” is attributing the failure of Congress to pass the XYZ bill to President Biden, for example, it helps if you are aware of the GOP’s constant misuse of the filibuster and a President’s legal inability to do anything about that particular form of obstructionism–or actually, if you just understand that American Presidents aren’t kings.)

The Politico article was troubling, however, because it demonstrated one of the many, many ways in which Americans today are feeding the wrong wolf.

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