A Perfect Storm

I woke up yesterday to the news that Trump’s Supreme Court–through its “Shadow Docket” and by a five to four margin–had effectively overturned what lawyers call “incorporation”–an odd term for the proposition that the Bill of Rights constrains state and local governments

In a scathing dissent, Justice Sonia Sotomayor wrote: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Actually, it’s worse than that. Much worse.

Not only does the Court’s increasing use of the Shadow Docket raise serious questions about the erosion of the judicial transparency fundamental to the rule of law, the decision to allow Texas’ empowerment of culture war vigilantes achieves a goal long held by “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the pesky interference of the federal government.

As I noted yesterday, approval of Texas’ ploy opens a door to civil strife far removed from the abortion wars. State legislatures can now turn private citizens into “enforcers” of pretty much any goal–and not just conservative ones. The decision effectively approves a federalism on steroids, and the unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protection against unreasonable search and seizure..

This case strikes a terrifying blow against that principle.

I titled this post “a perfect storm” because the Supreme Court’s abandonment of fifty years of precedent is only one of the truly existential challenges we currently face.

It is no longer possible to pretend that climate change is some sort of elitist, liberal theory that can safely be ignored. Fires in California (now threatening Nevada), increasingly powerful hurricanes battering not just Louisiana but causing flooding and chaos all the way to New England, the continuation of “extinctions” threatening to disrupt the global ecology…the list goes on. There are some valiant efforts underway to combat climate change, but the likelihood is that even if those efforts manage to moderate its effects, there will be enormous disruptions of global life–including  famines and massive population movements.

Then, of course, there’s the pandemic. Two pandemics, actually–COVID and insanity. The insanity makes it highly likely that COVID won’t be the last disease to decimate populations around the world.

Speaking of insanity, Leonard Pitts reminds us of the rising tide of rightwing violence.

While it’s unlikely we’ll see regional armies clashing as they once did at Antietam and Shiloh, is it so hard to imagine the country descending into a maelstrom of conservative terrorism, the kind of hit-and-run asymmetric warfare — random bombings and shootings — that rocked Iraq and Afghanistan in the early 2000s? Certainly, the weapons and the sense of grievance are there.

On top of all of this, outdated elements of  America’s legal architecture are impeding our ability to confront these challenges. In a recent, very important paper by Will Wilkinson of the Niskanen Center (I will have much more to say about his paper in future posts), Wilkinson concluded his analysis of what he calls “The Density Divide” with a recitation of the mismatch between America’s population realities and that framework.

As Wilkinson notes, our Constitutional system has a strong small-state bias, “which effectively gives extra votes to topsoil in low-population states.” In a country where 50 percent of voters identify or lean Democratic and 42 percent identify or lean Republican–a Democratic advantage of some 18 million voters– the GOP has erected “an imposing fortification” through gerrymandering, voter ID laws, voter-roll purges…the list goes on.

Wilkinson underscores what many others have said: we desperately need structural reforms and especially strong new legislation protecting voting rights. What he doesn’t say–since his paper was written before the Court’s recent assault on the supremacy of the Constitution–is that such protection must be nationally enforceable.

This “perfect storm” has created a genuinely existential moment. It is no longer possible to ignore the fact that American governance by We the People is teetering on a dangerous edge. The question is: can a nation burdened with a substantial minority of QAnon-believing, MAGA-hat wearing, Ivermectin-ingesting, Confederacy-loving citizens–many if not most of whom are White racially-resentful rural residents empowered by outdated electoral structures– rise to the challenge?

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Be Careful What You Wish For…

Texas, in an excess of zeal to control women’s reproductive choices, has enacted a bill–which, at this writing, has gone into effect–that would essentially undermine America’s understanding of the rule of law.

I’ve posted previously about the analysis of that measure by Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

As they point out, enlisting private citizens to enforce the law is intended to avoid challenges to the bill’s constitutionality. The theory is that, since the state itself will not be directly involved in enforcing the law (unlike under “private attorney general” statutes, only private citizens can bring these suits), state’s officials will not be proper defendants to a lawsuit. What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.

No state action, no constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues. Per Tribe and Vladeck,

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive deed covenants, in which the Court found state action present because private deed restrictions could only be enforced with the participation of judges, clerks and other state officials.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

If successful, this effort would empower the zealots among us, right and left, turning citizens against one another on whatever contentious issues legislators chose. This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence.

However, even a more conventional overruling of Roe invites unintended consequences.

This year, the Supreme Court will review Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. A Court created by Donald Trump is likely to overrule–or eviscerate–Roe v. Wade. If it does so, Republicans may come to rue the day.

Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated. Pro-choice voters, however, will be newly energized–and polling suggests they significantly  outnumber “pro-life” activists.

The de-nationalization of Roe wouldn’t just mobilize pro-choice voters who’ve relied on Roe to protect their rights. It would redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt for reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to help poor women in Red states travel to states where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus “counseling,” and deal with other barriers to the exercise of the currently constitutional right to terminate a pregnancy.

As I have repeatedly noted, the current dominance of the Republican Party doesn’t reflect  American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe gone, purple states–including Texas–will more quickly turn blue.

If Roe goes, the game changes. File under: be careful what you wish for.

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May I Quote You?

As regular readers have probably noticed, the subject-matter with which I engage here is generally prompted by something I’ve read or seen. I do try very hard not to rely on lengthy quotations in these daily blogs–instead, I try to distill the message being conveyed, and to add my own observations/analyses/pontifications.

But sometimes I encounter writing that absolutely begs to be quoted, an argument framed  so perfectly that an attempt to rephrase would be less effective. That’s the case with this essay from The Week, titled “The Republican Pandemic Response Is Breaking My Brain,” by Ryan Cooper. So with your indulgence, I will share more quotes than usual, beginning with his sub-head “Give me horse paste or give me death?”

Cooper began with a recitation of what sentient Americans know: despite the availability of an effective vaccine, the pandemic is getting much worse, especially in several states governed by Republicans.

At the same time, conservative elites are doing their level best to spread the virus as much as possible, even as COVID-19 is killing conservatives by the thousands. It’s willful, malign negligence on a mind-boggling scale…

Yet Florida Gov. Ron DeSantis is still in a ferocious dispute with his state’s school districts about mask mandates, as his state’s pediatric ICU beds are swamped. Texas Gov. Greg Abbott recently issued an (almost certainly unconstitutional) order banning any institution receiving public funds from requiring vaccines. South Dakota recently held the Sturgis motorcycle rally again with the furious support of Gov. Kristi Noem — despite the fact that the state is trailing in vaccination and last year the rally created a pandemic charnel house. Unsurprisingly, cases there are once again shooting through the roof.

Cooper writes that the story currently breaking his brain is the “recent plague of conservatives poisoning themselves with veterinary deworming paste.”

As Jef Rouner explains at Houston Press, the formula is simple and lucrative: raise fear, uncertainty, and doubt about the vaccines with complicated but false arguments that are hard for a layman to untangle, launder extreme claims by interviewing total lunatics, all while recommending unproven miracle remedies the shadowy Big Pharma conspiracy is supposedly suppressing. Then when you get in trouble for spreading antivaccine lies during a global pandemic, scream that you’re being “censored” to get more attention, and watch the subscription numbers jump.

Cooper goes through the reasons sane people would not consume a deworming paste (somehow, he omits noting the inconsistency of “curing” a disease these people insist is a hoax) and points out that deworming paste is “flying off the shelves, some doctor in Arkansas is giving it to prisoners, and calls to poison control centers are skyrocketing across the South. Facebook groups are full of stories of poisoned people suffering severe diarrhea and expelling “rope worms,” which turn out to be almost certainly shreds of intestinal lining.”

Ugh.

The horse paste saga is a perfect window into the conservative mindset that is currently the biggest force fueling the pandemic. The core behavior here is muleheaded, selfish spitefulness, adhered to even at great personal risk. “Freedom” for movement conservatives is entirely one-directional: They get to spray virus fog whenever and wherever they want, and they also get to force you or your kids to not wear a mask.

Because that behavior is so monstrous, there is a large incentive to make up comforting lies about how the pandemic is exaggerated or fake, or the vaccines don’t work — much facilitated by the fact that consuming right-wing media for very long tends to turn your brain into horse paste. Some right-wing voices pushing this line actually believe it, as shown by the lamented dead above. But others are just cynical — Abbott recently came down with COVID, but it turns out he had not only been vaccinated but also had already gotten a booster shot, and was getting daily tests, so had a very mild case.

Finally, because the financial engine of the conservative media complex is tricking gullible retired people into buying brain pills and reverse mortgages, conservatives are easy pickings for cynical and/or deluded grifters hawking snake oil remedies when they do contract COVID after coughing into each other’s face at the Cheesecake Factory to own the libs.

Yet another wave of completely pointless death seems to be motivating a lot of people to finally get vaccinated — but thus far the procrastinators, not the ideological, hard core antivaxxers. Even when Donald Trump tried to argue for the vaccine at a rally in Alabama recently, he was booed. It seems the pandemic will keep burning out of control until just about every conservative vaccine refusenik has gotten COVID. Another few months ought to do it.

We need a cure for crazy. Probably not a vaccine…

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A New Social Contract

Time Magazine recently ran an interview with a top global economist, who has authored a book about what humans owe each other–in other words, about a new or perhaps renewed social contract. Several of her concerns mirror my own; as readers of this blog are aware, my last book, Living Together, was focused on the same question.

The notion of a social contract was first introduced by John Locke and his formulation became a foundation of American law and culture. The U.S. Constitution was heavily influenced by Enlightenment philosophers like Locke, who rejected the divine right of Kings in favor of a belief in a theorized “contract” in which citizens grant government an exclusive right to the exercise of coercive power in return for an obligation to provide for their safety and welfare–the “law and order” required for civilization. Citizens could revoke government’s authority if government failed in its mission or breached the bounds of the contract.

Most European nations have subsequently adopted social contract theories that are considerably more expansive than the version embraced by most Americans. Those versions interpret government’s obligation to provide “social goods” broadly,  including access to healthcare.

Several years ago, I collaborated with colleagues in  on an article intended to probe America’s limited view of the proper role for government in social welfare, and to demonstrate that the Affordable Care Act–and for that matter, single-payer health insurance–really was consistent with Locke’s view of a social contract. (We noted that a deficit of civic knowledge poses a significant barrier to efforts to revisit social contract theory–revisiting a theory is impossible for those who have never visited that theory in the first place.)

Take the contemporary debate over healthcare reform. This fight cannot be understood without recognizing the continued potency of the country’s foundational assumptions, and especially the continued relevance of social contract theory most directly attributed to John Locke. In this paper, we echo arguments made by historians and legal theorists like Daniel Boorstin and Louis Hartz who noted that Americans who may never have heard of Locke or the Enlightenment, have nevertheless internalized Locke’s philosophy in ways that make social inclusion and extensions of the social safety net particularly difficult. In a very real sense, John Locke doomed more comprehensive healthcare reform, at least in the short term, and made it far more difficult to extend unemployment benefits, increase payments under Temporary Assistance for Needy Families (TANF), or raise the minimum wage. If we are to have any success in changing the long term prospects for these and similar reforms, we will need to go beyond the academic, moral, and fiscal arguments, no matter how persuasive some of us find them, and directly engage the need to update and expand our basic understanding of the social contract.

We were writing during the initial debates over the ACA, which we noted was yet another iteration of America’s deeply embedded conflict between Social Darwinism and the Social Gospel.

No matter how logical or effective, programs requiring extensive government involvement, or that include “mandates” of any sort, trigger an almost visceral reaction in those who tend more to Social Darwinism, a belief that “productive” people’s rights are thereby violated, and that such approaches are contrary to freedom, to “real” Americanism. In other words, at a basic—perhaps unconscious—level, many people believe that government involvement in healthcare, or government intervention via provision of a social safety net, is somehow un-American and therefore must be rejected. It does no good to point out how deeply government is already involved in providing a social safety net through Social Security, or in providing health care in particular (e.g., the Veterans Administration which is the largest integrated health care system in the country serving more than 8.75 million Veterans each year) — the issue is emotional, not factual. The passage of Medicare generated cries of socialism, and the New Deal—even in the midst of the Great Depression—was aggressively opposed. It is the rare social program that hasn’t had to contend with accusations of incipient communism.

Our article explored the reasons for that “emotional” response, and those of you with time and temperament to wade through its scholarship can agree or disagree with our analysis, but I think it is fair to say that the underlying issue has become considerably more salient.

Humans around the globe are faced not just with a pandemic, but with the existential threat posed by climate change.  Individuals are powerless to address those threats. Collective action is required, and government is our mechanism for collective action.

A workable social contract requires government to protect individual autonomy, provide a supportive social infrastructure and take decisive action to protect the common good.

I’m convinced John Locke would agree.

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Drawing Lines

Ah, gerrymandering…..

As delayed census information has finally become available, we are witnessing the every-ten-year effort by politicians to redistrict in ways that will favor their parties. Both parties engage in these efforts–but credit where credit is due, Republicans are far better at it. Ten years ago, the GOP’s “Redmap” effort–detailed in the book Rat***ked–-succeeded in delivering far more power to the party than their voters would otherwise have entitled them to.

Gerrymandering–where legislators choose their voters rather than the other way around–has been an American “tradition” since the days of Elbridge Gerry, but with the advent of computers, it has become increasingly precise. I have posted repeatedly about the negative, nefarious consequences of the practice; and I have published academic articles elaborating the damage to democratic governance. None of those articles broke new ground–the negative outcomes of the practice are widely recognized.

Here in very red Indiana, our current legislature–dominated by a Republican super-majority courtesy of gerrymandering–is once again planning to ignore broad grass-roots efforts to ensure that the lines being drawn respect “communities of interest.” In Indiana, that would mean ending the legislature’s decades-old war on urban Hoosier voters.

Even the Indianapolis Star has reported on that war.

The Star looked at the way Indiana’s gerrymandering disproportionately favors rural residents, effectively disenfranchising Blacks living in urban areas of the state.

Oliver, who is Black, lives in a diverse area on Indianapolis’ east side within Senate District 28. But she’s represented by Sen. Michael Crider, who lives in the rural Greenfield area in Hancock County. His community little resembles Oliver’s neighborhood, where nearly half the residents are people of color. Crider, like every Republican Senator and all but one GOP House member in the Statehouse, is white.

The district, in fact, is largely rural land from Fortville to Shelbyville, but jets in finger-like deep into Indianapolis’s east side all the way to the Irvington area. Indy residents note the voting power of their largely Democratic-leaning area is diluted by the rest of the majority rural Republican-leaning district.

One Irvington resident described it in a public redistricting hearing as a “middle finger slipping into the city of Indianapolis.”

It isn’t just Black people who are being disenfranchised–it’s all residents of urban Indiana. And that disenfranchisement has very practical consequences. There is, to take just one example, a connection between gerrymandering and the thousands of potholes residents of Indianapolis dodge every spring.

A majority of Indiana residents live in the state’s metropolitan areas–in cities. But as the Star article noted, thanks to the way our gerrymandered districts are drawn, a majority of policymakers in the Statehouse represent predominantly rural areas. That leads to state distribution formulas that significantly favor rural areas over urban ones.

My husband spent six years as Indianapolis’ Director of Metropolitan Development. His experience with the state’s fiscal favoritism for rural areas angered him when he dealt with it then, and it has continued to be an abiding irritation. But as often as he has fulminated about the unfairness of those distributions, it took me several years to recognize the connection between state distribution formulas and gerrymandering.

When the legislature allocates money for the state’s streets and roads, it is far more generous to the thinly populated rural areas of the state  than to the cities where the majority of Indiana’s citizens live. And that won’t change so long as the state’s districts are drawn to keep the GOP in control–because GOP voters live predominantly in the rural areas of the state, not the cities, which increasingly vote Democratic.

Even a cursory examination of Indiana’s House and Senate districts as currently drawn  illustrates the degree to which urban Hoosiers are unrepresented, the degree to which urban areas have been “carved up” and their “carved up” portions married to larger rural areas in a purposeful effort to dilute the voices and votes of city-dwellers.

So yes–it’s important to reform gerrymandering in order to reclaim “one person, one vote,” and to reverse the damage being done to the country every day by legislators who are far more responsive to rabid rural culture warriors than to the majority of American voters.  But if that goal seems too abstract– if the connection between a “gamed” and dishonest redistricting process and everyday life seems vague–think about the connection between fair and equal representation and those distribution formulas the next time you hit one of Indy’s ubiquitous potholes and bend a rim or flatten a tire.

Think about it again when our public schools are once again shortchanged.

Then tell your state Representative or Senator that you will work tirelessly to defeat any legislator who supports yet another Hoosier gerrymander.

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