Constitutional Wisdom From Abroad

Jonathan Freedland is a columnist for the British Guardian. He recently attended the London opening of Hamilton, an event that prompted him to reflect upon his prior enthusiasm for America’s Constitution.  As he says, the musical’s idealism “struck a chord.”

In 2018, it will be 20 years since I published a book called Bring Home the Revolution. Begun when I was still in my 20s, it too was an essay in idealism, arguing that the American uprising of 1776 and the constitution that followed in 1787 were a rebellion against a system of government under which we Britons still laboured two centuries later – albeit with an overmighty, overcentralised government in place of the bewigged King George.

The American revolution, I argued, was our inheritance, a part of our patrimony mislaid across the Atlantic. From a written constitution to a system of radically devolved power to the replacement of monarchy with an elected head of state, it was time for us to bring home the revolution that we had made in America.

As Freedland tells it, his homage to our written constitution and its checks and balances came just before a series of somewhat embarrassing U.S. upheavals: the Clinton impeachment, ” hideous, only-in-America” mass shootings, and similar dysfunctions culminating in the election of Donald Trump, who–despite getting fewer votes–defeated “an infinitely more qualified opponent.”

Initially, Freedland says, he responded to these unsettling reminders of our lack of social perfection by reminding himself that he was admiring a founding ideal, not our nation’s flawed reality. But little by little, he has come to recognize some inadequacies in that founding ideal.

It’s time for me to admit my doubts about its core idea – its admiration for the US constitution and system of government. For this first year of the Donald Trump presidency has exposed two flaws in the model that I cannot brush aside so easily.

The first is that Trump has vividly demonstrated that much of what keeps a democracy intact is not enshrined in the written letter of a constitution, but resides instead in customs and conventions – norms – that are essential to civic wellbeing. Trump trampled all over those as a candidate – refusing to disclose his tax returns, for example – and has trampled over even more as president.

Freedland enumerates some of the norms Trump has ignored: refusal to divest himself of his business interests, appointing unqualified family members to high government posts (although, really–how would this unbelievably ignorant and incompetent man even recognize other people’s lack of qualifications?), firing James Comey. Etc. Then he returns to the institutional point:

But this year of Trump has also shown the extent to which the US has an unwritten constitution that – just like ours – relies on the self-restraint of the key political players, a self-restraint usually insisted upon by a free press. Yet when confronted with a leader unbound by any sense of shame – and shamelessness might just be Trump’s defining quality – America is left unexpectedly vulnerable.

Impeachment, of course, is a remedy, but as Freedland (and every other sentient observer) recognizes, nothing will happen so long as Republicans control both houses of Congress.

In 2017 we saw with new clarity that the strength of the US constitution depends entirely on the willingness of those charged with enforcing it to do their duty. And today’s Republicans refuse to fulfil that obligation. They, like Trump, are without shame. This was a fatal oversight by Hamilton, James Madison and their fellow framers of the constitution. They did not reckon on a partisanship so intense it would blind elected representatives to the national interest – so that they would, repeatedly, put party ahead of country. The founders did not conceive of a force like today’s Republican party, willing to indulge a president nakedly hostile to ideals Americans once held sacred.

Ironically, if someone like Trump emerged in England, it would be easier to get rid of him; a parliamentary vote of no confidence is, as Freedland concedes, a lower hurdle than impeachment.

As perceptive as this essay is–and I encourage readers to click through and read it in its entirety–we are inescapably products of our own legal system, a system dependent upon adherence to our own democratic norms. (During the Constitutional debate over the addition of a Bill of Rights, Hamilton was among those making the point that written laws cannot address every possible way in which government can go off the rails.) Standards of behavior, expectations of decorum and propriety, and measures of competence are ultimately cultural artifacts, their breach punished by public opprobrium.

In November, we will see the extent to which America’s “unwritten Constitution” and democratic norms still hold.

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Normalizing Segregation

George Wallace, the former Governor of Alabama,  is most remembered for his defiant opposition to school integration, and his statement “Segregation now, segregation tomorrow, segregation forever!”

Reading about his efforts today, we tend to assign him to the wrong side of history and dismiss him, but I’m beginning to worry  that his statement was more predictive than defiant.

A few days ago, I blogged about some illuminating, if troubling, research into the effects of geography on social attitudes. I’m only a few chapters into The Space Between Us, but it has already confirmed what most of thoughtful people realize: the more physically segregated different populations are, the more wary and distrustful of each other they are likely to be.

And let’s face it; America remains segregated. Especially when it comes to blacks and whites, we worship separately, we live in different city neighborhoods, and sixty-four years after Brown v. Board of Education, our children still attend different schools. The institutional arrangements may have changed, but in far too many cases, the results have not.

A recent Brookings Institution report describes how the charter school movement–despite its best intentions–is accommodating itself to racial segregation.

Charter schools didn’t create segregation, but the charter school movement isn’t helping to end it either.

When Martin Luther King Jr. said, “We must never adjust ourselves to racial segregation,” he wasn’t suggesting that black kids need white kids and teachers in the classroom with them to learn. King was acutely aware that segregation sustains racial inequality in schools and other institutions. Education reform without an explicit attempt to dismantle the sources of inequality isn’t a moon shot toward justice; it is simply a maladjustment to injustice.

Figures available for the 2014-2015 school year disclose that over a thousand of the nation’s 6,747 charter schools had minority enrollment of at least 99 percent.

In the all-charter district of New Orleans… virtually no (less than one percent) white students attend schools that have earned a “D” or “F” performance rating. But 77 percent of white students are enrolled in “A-” and “B-” rated schools, according to a new report by non-profit advocacy group Urban League of Louisiana. It is unthinkable that this situation would be tolerated if the students’ races were reversed. It is clear that segregation, and who gets a quality choice, matters.

In all fairness, the charters are simply replicating–rather than remedying–the separate but definitely not equal status of most public systems.

The average public school is 2.6 percent less white, 1.8 percent more black, 0.9 percent more Hispanic, and 0.3 percent more Asian than its surrounding neighborhood,” according to the study. No surprise there.

The segregated state of our schools helps maintain the inequitable funding that determines families’ educational options. When the government-backed Home Owner’s Loan Corporation developed color-coded maps to sort out who could receive mortgage lending, blacks who lived in the red sections of the map were not given loans. And of course, the most well-resourced schools just happen to be located in the most expensive neighborhoods.

Proponents of charter schools argue that they are actually disrupting school districts that were created to be discriminatory, and that their availability improves poor parents’ options. As the Brookings report concedes, providing children who live in segregated neighborhoods a quality education is an excellent goal (although as the research continues to show, it’s a goal as elusive for most charters as it is for too many public schools–charters offer no magic bullet).

Real reform will require us to pay attention to the sources of educational inequity–and that means addressing social ills like poverty and residential segregation. As the Brookings report put it,

In many cases, school district lines are the more potent Confederate monuments that we still need to take down.

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Compelling Honesty

It’s interesting how many people indignantly wrap themselves in the Free Speech provisions of the First Amendment in order to justify behaviors that–properly understood–aren’t really speech at all.

In all fairness, it can be difficult to distinguish between actions that are intended to communicate a message (protected) from actions that are committed through speech (not protected).

If you describe that cubic zirconium you are selling as an expensive diamond, the fact that your fraud involved the spoken word won’t turn your deception into a free speech issue. On the other hand, if you burn an American flag (assuming it’s yours to burn), you are clearly doing so in order to convey a message. (The content of that message is precisely why people get so angry.)

This little exercise in First Amendment philosophy is an introduction to an interesting case involving Crisis Pregnancy Centers.

Crisis pregnancy centers (CPCs) are pro-life organizations that often offer women incorrect, incomplete or misleading information about their reproductive options.

In response, some localities have passed legislation requiring CPCs to make disclosures to their clients. California, for example, passed the Reproductive FACT Act in 2015. Under this law, CPCs must notify clients of public resources available to prevent or terminate pregnancies. It also mandates that CPCs inform their patients if they are not licensed as a medical facility.

Anti-choice advocates have taken issue with these requirements. The National Institute of Family and Life Advocates has sued California’s attorney general on behalf of CPCs. In November 2017, the U.S. Supreme Court decided it would hear the case.

The question the Court will have to decide is deceptively simple: does requiring Crisis Pregnancy Centers to disclose accurate information that counters or undermines their beliefs violate their First Amendment right to free speech?

At first blush, the idea of requiring speech to be truthful seems like a great idea. (Fox “news” anyone?) In practice, it’s difficult if not impossible to separate opinion from flat-out lying. After all, most lies aren’t as obvious as those constantly being told by Donald Trump and Sarah Huckabee Sanders. In the case of Crisis Pregnancy Centers, however, the intent to mislead is pretty transparent.

A 2016 paper published in the Journal of Pediatric and Adolescent Gynecology found that nearly half of the 85 websites surveyed promoted abstinence-only sexual education. Over 60 percent of these websites provided negative facts about condoms, including minimizing their efficacy and suggesting they break often, and less than 10 percent encouraged the use of condoms to prevent sexually transmitted infections.

A larger examination of 254 CPC websites, published in Contraception in 2014, found that 80 percent provided at least one item of false or misleading information — most commonly, claiming links between abortion and mental health concerns.

A study published in 2017 in Women’s Health Issues focused on the websites of crisis pregnancy centers in Georgia. It reviewed all of the accessible websites of the CPCs in the state and found that more than half had “false or misleading statements regarding the need to make a decision about abortion or links between abortion and mental health problems or breast cancer.” Eighty-nine percent of sites did not indicate that their centers do not offer contraceptives or direct patients to resources where they might find them.

There is considerably more abortion research at the link.

The question that the Justices will have to weigh, however, is unrelated to the issue of reproductive choice–although attitudes about abortion will undoubtedly play an outsized role.

The legal issue to be resolved will apply in areas far removed from reproductive rights. What level of harm to the public justifies government interference with an advocacy organization’s communications? Do the lies being peddled rise to the level of fraud, as in our cubic zirconium example? Or should the risks to the “consumers” of these services be governed by the doctrine of caveat emptor–let the buyer (or in this case, the pregnant woman) beware? Should the imposition of government sanctions require intent–that is, should a finding of culpability require evidence that the people making the false claims know better?

I personally think that organizations willing to lie to women who are already distraught are despicable. But legal analysis must consider the consequences of a decision based upon that sort of emotional reaction.

Can the Supreme Court craft a decision that limits the ability of dishonest folks to prey on vulnerable women, without handing government a cudgel with which to beat the merely opinionated? And if so, what should be the burden of proof?

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No Ice Floes Handy?

According to legend, when their elderly became burdensome, Eskimos put them on ice floes and let them drift out to sea.

If I thought that Trump and his “best people” could read, I’d suspect they were emulating the Eskimos.

A week or so ago, a friend who no longer lives in Indianapolis was in town, and met my husband and me for breakfast. During the “catching up” talk that takes place when old friends haven’t seen each other for a while, we asked him what his wife was doing. He said she’d been working part-time as an advocate for nursing home patients–a position required as a condition of federal grants for nursing home care–but that the Trump Administration had eliminated the requirement, along with a number of other regulations intended to protect the sick and elderly residents of such institutions. So she was looking for another job.

I was pretty incredulous; why would even this benighted administration refuse to protect helpless old folks against the well-documented abuses encountered in numerous substandard nursing homes?

Turned out, however, our friend was right. I saw this article from The Hill not long after our conversation:

The Trump administration is reportedly rolling back the use of fines against nursing homes that have been cited for violations such as neglect or mistreatment.

The move comes after the nursing home industry requested the change in the Medicare program’s penalty protocols, The New York Times reported over the holiday weekend.

The American Health Care Association had argued that inspectors were too focused on finding wrongdoings at nursing homes instead of assisting the facilities.

A 2001 Congressional investigation uncovered reports of serious, physical, sexual and verbal abuse in a third of the nation’s nursing homes. That led to more monitoring and additional regulation. Since 2013, nearly 6,500 nursing homes have been cited  for one or more serious violations. Approximately two-thirds of those were fined by Medicare.

Nevertheless, the personnel installed by Trump at the Center for Medicare and Medicaid Services argued that the regulations and fines were counterproductive.

“Rather than spending quality time with their patients, the providers are spending time complying with regulations that get in the way of caring for their patients and doesn’t increase the quality of care they provide.”

A lawyer from the Center for Medicare Advocacy disagreed, observing that the revised regulations and diminished penalties have “pretty much emasculated enforcement, which was already weak.”

So let’s see….this administration wants tough penalties for street crime and drug use and illegal immigration, because Trump and Sessions say punishment is a deterrent to socially undesirable behaviors. But we don’t need to fine or otherwise punish the owners of nursing homes that mistreat their vulnerable inhabitants. (Sorry–I know the word “vulnerable” has been banned.) We can  gently suggest they desist, and maybe those bedsores will go away by themselves….

The regulations no longer being enforced weren’t imposed by some abstract, rule-happy big government bureaucrat; they were put in place because of evidence that far too many nursing homes were abusing and neglecting their elderly, incapacitated patients, and doing so with impunity.

Someone needs to explain to me just how forbidding elder abuse “gets in the way of quality care.”

Actually, ice floes might be more humane….

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A Warning About The Overton Window

Well, Happy New Year!

The year 2018 is likely to be pivotal for America; in November, we will see whether outrage is sustainable–whether Trump has continued to be embarrassing and dangerous enough to keep large majorities of Americans active in the political resistance.

A lot can change in eleven months. Outrage can be exhausting. Propaganda can change public opinion. Voter suppression tactics can be ramped up. Racism, xenophobia and misogyny can be normalized and justified.

And then there’s this: Vox has recently warned readers about the Overton Window.

“Don’t normalize this” has become a kind of rallying cry during President Trump’s first year in office — a reminder to not get too acclimated to Trump’s norm-breaking and erratic behavior.

But the real danger of the Trump presidency might have less to do with Trump’s abnormality and more to do with how “normal” he makes other Republicans look by comparison.

It’s a timely warning, because let’s face it: next to the antics and ignorance of this Administration, behavior that once would have shocked us seems pretty tame by comparison.

There’s a concept in political theory developed by Joseph P. Overton which suggests that there’s a “window” of acceptable ideas and policy proposals in public discourse. Everything inside the window is normal and expected, while everything outside the window is radical, ridiculous, or unthinkable. And Overton argued that the easiest way to move that window was to force people to consider ideas at the extremes, as far away from the window as possible. Because forcing people to consider an unthinkable idea, even if they rejected it, would make all less extreme ideas seem acceptable by comparison — it would move the “window” slowly in that direction.

A great deal of that damage has already been done.

Trump’s presidency has forced news networks to grapple with conspiracy theories, right-wing trolls, and dishonest government spokespeople — making them a regular fixture of our national political debates. And that grappling has moved the Overton Window in ways that will warp our politics long after Trump’s presidency comes to an end.

This is the phenomenon that allows us to look at seriously radical politicians and fail to recognize how far they are from what used to be the mainstream. It is the sort of “normalization” that allows us to consider Senators and Representatives “moderate,” despite their consistent support for Trump and his warped agenda, simply because they smile occasionally and refrain from throwing verbal feces.

As odious as Trump and his crew of institutional vandals are, our immediate–and imperative– task is to defeat and replace his complicit Congressional enablers. We can’t let the Overton Window diminish our recognition of their culpability.

If there is a massive Democratic wave in November, it will do three things: it will be a stinging repudiation of Donald Trump; it will hasten the day when the GOP returns to its roots and some semblance of sanity; and–counter-intuitive as it may seem–it will also be a wake-up call to Democrats, because it will signal the continued operation of democratic accountability.

We have eleven months to resist normalizing the bizarre. Eleven months to make sure that vote suppression tactics don’t work. Eleven months to recruit, encourage and support good candidates. Eleven months to begin what will be a long process of restoring sanity and responsibility to American government.

What’s that old saying? This is the first day of the rest of our lives…

Happy 2018. Let’s make it count.

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