Justice Souter

David Souter died earlier this month.

When George H.W. Bush nominated him to the Supreme Court, I watched the confirmation hearings on television. I saw a brilliant, thoughtful jurist. His purported “evolution” on the high court bench didn’t surprise me; his jurisprudence remained grounded in precedent and reverence for what I call the American Idea.

A few years after he retired from the Court, I was fortunate enough to attend a small conference on civic literacy at Harvard Law School, convened by then-Dean Martha Minow. Both Souter and Sandra Day O’Connor participated, and I was especially impressed by Souter’s remarks. I asked him if he would allow a copy to be published in the Journal of Civic Literacy –a publication of the Center I’d established at IUPUI (now IU-Indy). He graciously agreed. That was in 2013, and his observations have become even more pertinent.

Here they are.

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Dean Minow: Nearly three years ago, Justice Souter gave a truly extraordinary commencement address here at Harvard, upon receiving an honorary degree. In his exploration of the tensions among the values embodied in the United States Constitution, he offered deep insights into important decision making by the Supreme Court and equally conveyed the hard work that is necessary to advance the values of democracy and freedom, individual rights, and democratic participation. We are so touched and honored by your participation here today, which I know reflects your admiration and affection for your colleague, Justice O’Connor, and also your deep abiding commitment to this subject [civics]. Why does it matter to you so much?

Justice Souter: I’ve come by stages, I guess, to the answer. I’ll take you through the stages. By the way, I should issue two disclaimers to begin with. The first is, we are talking about civics and I’m going to talk in terms of civics. But, you cannot have civics without history. So, I might just as well be making the argument for history. The second disclaimer is, I don’t mean to take positions in the pedagogy controversy. I don’t know how to teach, I don’t know where the proper midpoint is between interactive learning and book learning and participatory exercises and so on. I’m not taking a position there. Maybe with one exception, and that is, if you’re going to test in math and reading you better test in civics or it’s going to be a poor child of the curriculum.

On the question why I think it matters, as I’ve said, I’ve come to my feelings by stages and the first stage was set by Justice O’Connor at a series of conferences she and Justice Breyer sponsored in Washington, provoked by the concern for the independence of the courts. The judiciary at the time was under a lot of attack and almost from the beginning the thing we learned there was the degree of civic illiteracy. We learned the statistic, which I believe is still true today, that there are only about a third of the people in the United States who can name the three branches of government. And the lesson that everyone learned was that without some knowledge of the structure, without, frankly, some constitutional knowledge, the value of an independent judiciary is a value that makes no sense. Independent from whom? From what? Well, we know the answer. The rest of the government, etcetera.

But, the first point of focus that came to me was that without a bedrock grounding in a lot of fundamentals that my own generation did learn as kids, constitutional values will frequently make no sense because there is no context for them.

The second stage of thinking why this subject of civics matters has come as a result of the recent calls for constitutional amendment and constitutional change, which we have been getting from all corners. There have been calls for an amendment in response to Roe v. Wade, calls for an amendment in response to the Citizens United campaign contribution limitation decision, calls for change in response to the possibility of a disparity between the Electoral College vote and the popular vote, and so on. It’s pretty obvious that someone who has no idea of what we have in the Constitution to start with is in no position to make any kind of critical judgment about what we might change, whether we ought to change it, and if so what change we ought or ought not to make. Ignorance is no foundation for constitutional thinking but, like it or not, we are being asked as a country to engage in constitutional thinking. None of it may in fact lead to a formally proposed amendment, let alone a convention, but who knows. So, I guess the second point in my feeling was about what is at stake: simply the need for a foundation for critical judgment on the part of citizens.

But finally, I’ve come, to a third, umbrella position, which certainly subsumes the two stages that I’ve already mentioned. And I will warn you right now that my ultimate line is like the remarks of several other people here this morning. Let me make my point this way. The American constitutional system is in effect a constant exercise in balancing, and perhaps a precarious balancing, between two very fundamental tendencies in American society and American political organization: the tendency to fragment into pursuit of individual interests and the tendency to pull together.

I could spend a long time this morning, which I won’t, simply cataloging what seems to me the growing force of the former sort, the centrifugal tendencies that pull us apart. Just think about these.To begin with, the very nature of the United States as it has developed is a conglomeration of fragmenting tendencies. We do not have a national religion. We do not have a homogenized national private culture, as distinct from political culture. We are in fact an amalgamation. We are a patchwork. We are a nation of immigrants, and people remember where they came from, whether they look back one generation or fourteen. There is a disuniting tendency built into the very nature of the United States, and it’s not going to go away. And I don’t suppose there’s anyone who wants it to go away entirely. I don’t.

Number two, there is great force in a philosophical tenant that we like to think of as ours. It’s not a coincidence that Ralph Waldo Emerson was an American. Consider the notion of Emersonian individualism, Emersonian self-reliance. They feed a kind of admirably atomistic tendency that I suppose can be called a widely shared character, a powerful element of our scrambled culture.

Number three, we are living at a time when the class divide in the United States is growing larger and the possibility of bridging that class divide is in fact shrinking. We are at a point now where the spread of wealth disparity is greater than it has been for over a century. And it is now a very unfortunate fact of life in the United States that social mobility is greater in a number of European countries than it is in this one. Parents in the United States cannot assume that their children have a real opportunity to be better off than they were.

Number four, there is an increasingly apparent divisiveness inherent in current developments in the news media. You can cherry-pick the news you want on the device that you hold in your hand. A substantial portion of the country is not even exposed to the breadth of traditional newspapers.

And, finally, I’ll stop by simply echoing what others have said about the growing tendency toward cynicism about the processes of government for which there is a very good foundation. Too many people are realistically looking upon government as basically a clash between a public interest and more powerful interests, exerting power through lobbies financed by huge amounts of money, with the names of the people behind them being to a great extent undisclosed. These are conditions, historical and contemporary, that drive us apart and tend to disunite us. What have we got pulling on the other side? By and large, what we have pulling on the other side is an adherence to an American Constitutional system. The American Constitution is not simply a blueprint for structure, though it is that. It is not merely a Bill of Rights, though it is that, too. It is in essence, a value system, a value system that identifies the legitimate objects of power, the importance of distributing power, and the need to limit power by a shared and enforceable conception of human worth.

That value system is the counterpoise to the divisive tendencies that are so strong today, and civic ignorance is its enemy. It is beyond me how anyone can assume that our system of constitutional values is going to survive in the current divisive atmosphere while being unknown to the majority of the people of the United States. So, what is driving me right now is simply the indispensability of our increasingly unrecognized and ignored constitutional value system. Without it, there is no chance of overcoming, of surviving the polarization that everyone decries. It is only in the common acceptance of that value system that at the end of the day, no matter what we are fighting about, no matter what the vote is in Congress or the State House or the town meeting, we will still understand that something holds us together.

Ultimately, what is driving me in working for the renewal of civic education is the need to share the threatened aspirations that should mark us as people who belong together as a nation.   

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Indeed.
 
 

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Where We Are

Donald Trump opposes the “invasion” of immigrants.

Well, not all immigrants–just Brown or Black ones. Perhaps you have somehow missed the administration’s daily efforts to reverse the progress of women and people of color, but there’s no way to miss the racism of his recent exemption of (properly pale) folks from his otherwise unremitting war on immigration–his grant of refugee status to “persecuted” White folks from South Africa. According to our racist and demented Chief Executive,  White South Africans should be welcomed while dark-skinned people escaping actual persecution–and dark-skinned people already living in the U.S.–should be excluded.

Per the linked New York Times report:

Mr. Trump has halted virtually all refugee admissions for people fleeing famine and war from places like Sudan and the Democratic Republic of Congo. But he has created an expedited path into the country for Afrikaners, a white ethnic minority that created and led the brutal apartheid regime in South Africa.

The refugee process often takes years. But only three months have passed from the time Mr. Trump signed an executive order establishing refugee status for Afrikaners to the first cohort making its way to America.

As I have often written, and as any sentient American knows, Trump’s appeal to his MAGA base is rooted in racism. Some wealthy Americans probably voted for further tax breaks and the ability to evade government oversight, but the devotion of his MAGA voters was and is firmly based upon his none-too-veiled promises to put “those people” in their place.

Unfortunately, people who embrace racist tropes are also likely to misinterpret–or entirely miss– numerous other aspects of the world they inhabit. It’s doubtful whether most of the fearful and angry folks who cast their ballots for an ignorant buffoon understood that they would get a demented puppet controlled by the authors of Project 2025, or that his profound ignorance would destroy the robust economy left by his predecessor.

But here we are.

In a recent newsletter, Robert Hubbell described our current civic/governmental landscape. He began by reporting on the most recent violation of the Emoluments Clause–the fancy airplane being gifted to Trump by Qatar (a country that has supported Hamas to the tune of 1.8 billion dollars and for whom Pam Bondi, our current Attorney General, once lobbied, for a hefty $115,000 a month.)

He then turned to the recurring question that arises as evidence of corruption mounts: how does he get away with it?

The short answer is that Trump has neutralized the guardrails of democracy that would prevent behavior violating US criminal laws and constitutional provisions.

First, the US Supreme Court has immunized Trump from the criminal laws of the US (in Trump v. US). In the normal course, the DOJ would investigate and prosecute Trump under the the US criminal code.

Second, Trump has immunized himself from impeachment and conviction by engineering a hostile takeover of the Republican Party. In the normal course, Congress would impeach, convict, and remove Trump from office.

Third, Trump has neutered Congress, which could stop his corruption through legislation, oversight, and investigations.

Finally, Trump has corrupted, compromised, or destroyed the DOJ, FBI, and the system of inspector generals and independent agencies.

All in one hundred days! But as Hubbell notes, Trump didn’t do all those things alone. He had help weakening the guardrails of democracy–the damage he’s done has been “enabled and assisted by a corps of cultural war shock troops who believe in white supremacy, Christian nationalism, and antisemitism.”

Trump remains in control of about one-third of the electorate–the segment of the population that has embraced White supremacy and Christian nationalism. But as Hubbell reminds us, a third is not a majority. It is not enough—or should not be enough–to turn America into a country governed by a White Christian Taliban. 

The outcome of this very fraught time in our national story depends on the rest of us.

I wish there were a better, easier answer than saying that years of protesting in the streets and showing up at town halls and ballot boxes will be needed to get us out of this mess. But here we are. The only question is, “What are we going to do about it?” For me, the answer is, “Exactly what we have been doing, only louder, more frequently, and in greater numbers.”

No new leader will emerge who can miraculously save us. We cannot hope for a “deus ex machina” end to our current national story.

It’s up to us.

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The Brazen Corruption…

One thing about life under an autocracy: it spawns a particular kind of black humor. Among the various telling memes and cartoons making the rounds, one especially has captured (at least in my mind) the essence of our current situation. The cartoon shows Nixon and Trump; Nixon is famously saying “I am not a crook.” Trump is saying “I am a crook. So what?”

I think that sums up how far we’ve traveled–and in what direction.

I’m willing to believe that some of our former Presidents have been less than honest. But those who failed to meet social expectations of honor and virtue did work to hide their bad behaviors–to deny dishonesty or venality, to appear to be the sort of leaders Americans had the right to expect. Trump doesn’t bother.

Most of us who find this administration horrifying have focused upon the damage being done to the federal government and  Constitution, and on the out-and-proud racism and misogyny motivating so much of that damage. Only recently has the media turned to what has been the elephant in the room: the immense corruption that Trump makes no effort to hide.

In the Contrarian, Norm Eisen recently addressed the enormity of that corruption.

As a former White House Ethics Czar, I have been stunned by the sheer number of ethics issues afflicting Donald Trump’s first 100 Days. But Trump and his cronies’ ethics violations have been overshadowed by his other frequent and flagrant transgressions. For example, in his first term, there was heavy mainstream media attention from day one of his selling hotel rooms to foreign governments and the like. This time around, not so much–although they have been a steady theme here on The Contrarian and for the Democracy Movement.

This should be a national scandal, which is why I co-authored this major report on Trump’s crypto corruption. It is the single most profound Presidential conflict of the modern era: a POTUS who has almost 40% of his net worth in his crypto ventures, at the same time as he is regulating the digital currency industry–and, for good measure, has substantial foreign government cash pouring into those ventures!

Eisen is not alone in highlighting the unprecedented corruption. Senator Mark Kelly–among others–recently blasted what he called Trump’s “corruption in broad daylight.”

Kelly is one of the sponsors of what is called the “End Crypto Corruption Act,” which would prohibit the president, vice president, senior executive branch officials, members of Congress and their immediate families from issuing, endorsing or sponsoring crypto assets, such as meme coins and stablecoins.

As Kelly put it in a news release, “Trump is cashing in on his presidency and making millions from his own crypto coins — this is corruption in broad daylight. I’m supporting this bill to make it illegal for the President and other government officials to make a profit from crypto assets. It’s time to put a stop to this.”

A number of other lawmakers and media outlets have reported on what can only be called Trump’s open invitation to bribe him. The most egregious example: he has invited the 220 largest holders of his personal $TRUMP “memecoin” to a dinner at which the top 25 will get “exclusive access” to the president.

As the official in charge of crypto policy for the Securities and Exchange Commission during the Biden administration put it, “This is really incredible. They are making the pay-to-play deal explicit.”  The executive director of Citizens for Responsibility and Ethics was even more blunt.

“I’m not sure we ever saw anything as blatant as this meme coin dinner. This is over the top — even for Trump — because while the practice of putting money in his pocket and subsequently gaining access to the presidency is far from new, it is more shameless than it has ever been.”

The entire Trump crime family is participating in the grift. Several media outlets have reported that an Abu Dhabi state-backed investment firm is making a $2 billion investment in the Trump family’s crypto venture, World Liberty Financial– the latest example of a foreign entity making a major investment in a Trump family business. Anyone who thinks that such an “investment” doesn’t give that foreign entity leverage with the administration is smoking something strong.

As the extent of the Trump corruption becomes more widely known, the question will be whether it matters to the MAGA cultists. After all, they are getting exactly what they voted for: an administration promoting White Christian nationalism.

Thus far, there’s no evidence that they care about the honesty or competence of those they’ve elected, or about the America the Founders bequeathed us.

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Ends And Means

In governance, there are two basic questions: What and How. Our current political polarization is between the MAGA/Project 2025 ideologues who are focused on the “what,” and those of us who are intent upon protecting a Constitutional order prescribing “how.”

If there is one clear distinction between western constitutional systems, including ours, and the various dictatorships and theocracies around the globe, it is the formers’ emphasis on process. Indeed, we might justifiably characterize our Bill of Rights as a restatement of your mother’s admonition that how you do something is just as important as what you choose to do. Sometimes, more so.

The ends do not justify the means is an absolutely fundamental American precept.

This emphasis on process–the means– is widely acknowledged by political scientists. Whatever their other debates, there is a shared recognition that the American approach to legitimate governance is procedural.  We are a nation of laws that are meant to govern how we go about ordering our common lives.

Some twenty-plus years ago, Rick Perlstein made a point about the political parties that has only gotten more apt.

We Americans love to cite the “political spectrum” as the best way to classify ideologies. The metaphor is incorrect: it implies symmetry. But left and right today are not opposites. They are different species. It has to do with core principles. To put it abstractly, the right always has in mind a prescriptive vision of its ideal future world—a normative vision. Unlike the left (at least since Karl Marx neglected to include an actual description of the “dictatorship of the proletariat” within the 2,500 pages of Das Kapital), conservatives have always known what the world would look like after their revolution: hearth, home, church, a businessman’s republic. The dominant strain of the American left, on the other hand, certainly since the decline of the socialist left, fetishizes fairness, openness, and diversity. (Liberals have no problem with home, hearth, and church in themselves; they just see them as one viable life-style option among many.) If the stakes for liberals are fair procedures, the stakes for conservatives are last things: either humanity trends toward Grace, or it hurtles toward Armageddon…

For liberals, generally speaking, honoring procedures—the means—is at the very core of being “principled,” of acting with legitimacy. For conservatives, fighting for the desired outcomes—the ends—and, if necessary, at the expense of procedural niceties, is the definition of “principled.”

In a constitutional democracy, the franchise is first among the means. Democrats generally understand our system to be one in which citizens demonstrate their preference for “ends”–for policies–at the ballot box; accordingly, they believe that the more extensive the turnout, the more legitimate the ensuing legislative mandate.

Republicans–focused on ends–disagree. As the late New Right founding father Paul Weyrich once put it, “I don’t want everybody to vote. Elections are not won by a majority of the people. They never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.” 

Over the years, that difference between ends and means has become institutionalized within the two political parties. In states with Republican Attorneys general or Secretaries of State, like Indiana, those officials work to squeeze as many minority voters from the rolls as possible.  Republican state legislatures gerrymander to the greatest extent possible,  disenfranchising thousands of urban and liberal voters. (And yes, Democrats gerrymander too, but demonstrably much less.)

These moves strike Americans who were raised with the admonition that “it isn’t whether you win or lose, but how you play the game” as “dirty pool.” But they make all kinds of sense to people who believe they are trying to save civilization from hurtling toward an Armageddon where “those people” will replace the good White Christian men that God wants in charge.

Those True Believers represent a very significant element of the MAGA base. They don’t necessarily include the party overlords, but those pooh-bas recognize that their hold on power depends upon playing to the base’s beliefs. Today’s Republican officeholders agree with Machiavelli, who said “We ought to see clearly that the end does justify the means…If the method I am using to accomplishes the goal I am aiming at, it is for that reason a good method.”

The Trump administration–with its attacks on due process, habeas corpus and the rule of law itself– is making the difference impossible to ignore.

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About That War On Education…

I know, I know–those of you who follow this blog are tired of my periodic rants about MAGA’s war on public education. But the evidence–which keeps accumulating–is overwhelming.

A state’s economic development is critically dependent on the existence of an educated workforce, and Indiana’s legislature continues to demonstrate that most of its members don’t know what an education is, or how it differs from job training. Worse still, they have consistently attacked the state’s public school system, establishing voucher programs to siphon tax dollars from schools established to serve children from all backgrounds in order fund religious schools serving distinct tribes.

Voucher schools (which, as I always have to emphasize, are different from charter schools) were promoted as a way to allow poor children to escape “failing” public schools. They were sold on the premise that they would improve educational outcomes. Those improvements didn’t come; indeed, research after a number of years shows that public school outcomes are superior. (Private schools catering to the children of wealthy parents do perform well, but most of those schools don’t accept vouchers.)

Given all the evidence that vouchers do not improve educational outcomes, drain our public schools of critically-needed resources, and have an enormous negative budgetary impact in a state where legislators keep telling us we don’t have funds to continue summer food programs for children or medical care for the poor, Hoosiers might wonder why our GOP overlords continue to expand the program.

The Indiana Citizen recently answered that question. The Citizen interviewed Josh Cowen, a researcher who initially had viewed vouchers positively, but who–thanks to his research– has become an outspoken critic of the programs. I have been reading Cowen’s 2024 book “The Privateers: How Billionaires Created a Culture War and Sold School Vouchers,” and I recommend it. It describes how Christian nationalists and wealthy libertarians joined forces to “push vouchers from a fringe idea to the conservative mainstream.”

The report began by acknowledging the research:

Studies of statewide programs in Indiana as well as Louisiana and Ohio, found what Cowen describes as “some of the largest academic declines on record in academic research,” comparable to the impact on learning of Hurricane Katrina and COVID-19, which dramatically lowered test scores by disrupting students’ lives and keeping them out of schools for extended periods of time.

For Christian nationalists, Cowen said, vouchers amplify their ability to use K-12 schools to promote a version of Christianity marked by alignment with right-wing politics, a hostility toward reproductive freedom, LGBTQ+ rights and racial justice initiatives, and, in some cases, a literal interpretation of the Bible, including the biblical creation story.

Private school vouchers are a huge part of the Christian nationalist long-term strategy, the idea that this kind of specific, right-wing interpretation of Christianity should dictate public policy and the law. These folks believe that education, from birth to adulthood, is absolutely key to the idea of, to quote Betsy DeVos, advancing God’s kingdom on earth. She laments that, in her words, public schools have displaced churches as centers of community. She sees vouchers as a cure for that.

Cowen points out that, unlike groups like Catholics that have long prioritized religious education, Christian nationalists have a very specific hostility to public schools.

It really gets back to this idea that public schools reflect this diverse, multicultural, pluralistic society in the United States. To the extent that these people don’t want a diverse, multicultural, pluralistic society, they really don’t want children spending eight hours a day in an environment that educates them to value those things.

Given their inability to claim better educational outcomes, Indiana legislators now argue that parents know best how their children should be educated. But as Cowen notes, if parental choice was really the motive, the state would require private schools to tell parents how they perform– to disclose student test scores and other relevant data. Instead, policymakers “have bent over backward, whether in Indiana or elsewhere, to make sure parents know as little as possible” about voucher school performance. There’s a reason for that.

Over the last decade, as vouchers have gotten bigger in Indiana and elsewhere, when you ask how private schools funded by vouchers are doing compared to public schools, the results are dreadful.

In Indiana, over 90% of voucher students spend our tax dollars at religious schools–and we know very little about what they are teaching. As Cowen says, “If the argument is that parents should have the right to teach their kids creationism, instead of science, I would say, “OK, fine, but not on the taxpayer dime.”

Read the article–or better yet, buy the book.

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