Tag Archives: Bill of Rights

After Roe

Happy Sunday! I will be delivering the following “sermon” (via Zoom) at the Danville Unitarian-Universalist Church this morning.

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Thank you for asking me back! I’m gratified.

As you all know by this time, my academic background is law—and more specifically, Constitutional law and the Bill of Rights.

The Bill of Rights, the approach to individual liberty that animates it, and the jurisprudence interpreting it  tell us when government must respect declarations of “my body, my choice.” We’ve been hearing that slogan a lot from the people who are refusing to be vaccinated—and ironically, they’re often the very same people who label themselves “pro life” and vigorously oppose a woman’s right to control her own body.

I’m here to tell you that the anti-vaxxers throwing that slogan around have it exactly backwards.

The Founders who crafted our Constitution and Bill of Rights were influenced by the philosophy of the Enlightenment and by what we call the “libertarian construct”—the belief that we humans have an inborn right  to “do our own thing”—to pursue our own interests, form our own beliefs, and make our own life choices and moral judgments, free of government interference– until and unless we are harming the person or property of someone else, and so long as we are willing to grant an equal right to others.

That approach to human rights requires government to refrain from interfering with citizens’ political or religious beliefs, but it also imposes a governmental duty to protect citizens from harm. Philosophers like Hobbes believed that was a major purpose of government—to keep the strong from taking advantage of the weak, to protect citizens from threats both foreign and domestic. We can certainly quibble over the nature and degree of the harms that justify government action, but if government can protect us from drunk drivers and the dangers of passive smoke, then a dangerous and frequently fatal pandemic is clearly a sufficient basis for government rule-making.

A pregnant woman’s decision to terminate her pregnancy, on the other hand, poses no threat of harm to her neighbors.

Despite the rhetoric—the legal issue is not whether abortion is right or wrong, good or bad. The issue is who gets to make that decision, the individuals involved or the government? In our Constitutional system, decisions about the religion you will follow, the books you will read, the political philosophy you’ll embrace, and many others—are all supposed to be left to the individual. What the courts call “intimate” decisions, like those about who you will marry and whether you will procreate, are to be left up to individual citizens, because they are none of  government’s business.

I agree with the people who point out that the so-called “pro-life” movement is really pro-birth. Most of the legislators who identify themselves with the pro-life label are clearly unconcerned about women’s lives, or about feeding, housing and educating babies once they are born. But I wasn’t asked to speak to the considerable dishonesties of the anti-choice position; I was asked to focus on what will happen if—as most of us anticipate—the Supreme Court eviscerates or overrules Roe v. Wade.

Before that, however, we need to look at the actual origins of the anti-abortion movement.

Noted religion scholar Randall Balmer has documented those origins. It wasn’t until 1979—a full six years after the Court decided Roe v, Wade—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.”

Objecting to abortion was seen as “more palatable” than what was actually motivating them, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education. 

According to Balmer (this is a quote),

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

End quote.

Let me emphasize that. It was rightwing anger about civil rights laws that actually motivated the “Right to life” movement. The Rightwing was savvy enough to recognize that organizing grassroots evangelicals to defend racial discrimination wouldn’t cut it—that they would need a different issue if they wanted to mobilize evangelical voters on a large scale.

The bottom line is that what motivated the Christian Right’s political activism, including but not limited to its opposition to abortion, was racism and defense of racial segregation.

Let’s give credit where credit is due: that tactic has been incredibly successful. Christian Nationalists now own one of America’s two political parties—and I say that as someone who worked hard for the Republican Party for 35 years. Mitch McConnell has achieved the GOP’s fever dream of taking over the Supreme Court, and much as it pains me to say this, with the imminent demise of Roe, we are looking at what is probably the first of many times this Court will roll back individual liberties.

So what now?

If Roe is overruled—or more likely, effectively neutered– there will certainly be some horrendous consequences. But there may also be some unanticipated positives.
We have all come up against the intransigence of the “one issue” anti-choice voters, the people who disagree with Republicans about virtually everything else, but vote Republican because they are “pro life.” Without Roe, I think many of them will abandon the GOP.
Losing Roe will also make it much more difficult to energize a national movement against birth control, which is actually a target of the most rabid anti-choice activists—a significant number of whom are men who want women barefoot, pregnant and back in the kitchen. Bottom line: anti-choice voters have been a mainstay of the GOP–and at the federal level, at least, they will arguably be considerably less motivated.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt to protect reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to make it possible for poor women in Red states to travel to places 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, medically-inaccurate “counseling,” and deal with other barriers to the exercise of what is currently a constitutional right to terminate a pregnancy.

What the de-nationalization of Roe might do–should do–is redirect liberal and pro-choice energies from national to state-level political action. And while there are no guarantees, that could be a huge game-changer.

The current agenda of the Republican Party doesn’t reflect the desires of the American majority–far from it. GOP numbers have been shrinking steadily; some 24% of voters self-identify as Republican. Their electoral success has been due primarily to the 2011 gerrymander, and that was made possible because they controlled a large number of state governments when redistricting took place. More recent GOP vote suppression tactics that have depressed Democratic turnout and disenfranchised Democratic voters have also been facilitated by state-level control. In many states—possibly even Indiana—redirecting voters’ attention to state-level politics could change that.

Without Roe, it is reasonable to predict that the single-issue anti-choice voters that have been a mainstay of the GOP will be less motivated to vote. Pro-choice voters, however, will be newly energized, and polling suggests they significantly outnumber “pro-life” activists. A recent Pew survey has found that 61% of Americans say abortion should be legal in all or most cases, with 27% saying in all cases and another 34% saying in most cases. Only twelve percent of the public says abortion should be illegal in all cases, and only 26% would outlaw it most cases.

In anticipation of the loss of Roe, some states have already seen efforts to protect reproductive rights. A ballot drive has been launched in Michigan. Reproductive Freedom for All’s petition would affirm the right to make pregnancy-related decisions without interference, including about abortion and other reproductive services such as birth control. The groups leading the effort are Planned Parenthood Advocates of Michigan, the Michigan ACLU and an organization called Michigan Voices.

New Jersey has already enshrined abortion rights in state law. Lawmakers in that state bolstered protections for reproductive rights in anticipation of the upcoming U.S. Supreme Court decision, and Gov. Phil Murphy has signed a bill codifying abortion rights into state law. He also signed a second bill that expands insurance coverage for birth control.

Meanwhile, in states like Florida and South Dakota, lawmakers are rushing to impose new restrictions on abortion, anticipating the Court’s acquiescence with much more restrictive rules.

Knowing our Hoosier legislators, I anticipate some pretty dreadful legislation being introduced here. It will require organization and activism in Indiana to derail what the ridiculous pro-gun, anti-vaccine legislators who call themselves “pro life” will try to do.
Indiana will need an enormous uprising—of women, of men who support women, and especially of liberal churches—if we are going to escape replicating the Handmaid’s Tale here in Hoosierland.

 

But I Repeat Myself…

Last Thursday, I delivered the following speech to a Kiwanis group in Northwest Indianapolis. Longtime readers of this blog will recognize the “theme”…It’s also considerably longer than my usual posts, so my apologies.

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Over the past several years, we’ve seen America’s political debates become steadily less civil. Bigotries that were once more or less suppressed—at least, in polite company– are being publicly paraded. Partisanship has overwhelmed reasoned analysis. The death of newspapers and the ubiquity of social media and the Internet have encouraged people to choose their news (and increasingly, to inhabit their preferred realities).

I’m here today to suggest that an enormous amount of this contemporary rancor is a result of civic illiteracy—widespread ignorance of the historical foundations and basic premises of American government.

John asked me to talk a bit about this small book I wrote a couple of years ago–Talking Politics? What You Need To Know Before Opening Your Mouth.. I wrote it because I believe that civic ignorance is a huge, and hugely under-appreciated, element of America’s current dysfunctions.

Voters don’t need to be constitutional scholars, but a basic understanding of the history and structure of American government matters. A lot. Productive civic engagement requires an accurate understanding of the “rules of the game” — especially but not exclusively the Constitution and Bill of Rights– the documents that frame and constrain policy choices in the American system.

Most educated Americans know that our Constitution was a product of the Enlightenment, the 18th Century philosophical movement that gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government. What is less recognized is that the Enlightenment did something else: it changed the way people defined individual liberty.

We’re taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty, and that’s true; what we aren’t generally taught, however, is how they defined that liberty.  Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to make sure their neighbors did likewise.

The Enlightenment ushered in a dramatically different definition of liberty, sometimes called the Libertarian Construct. It’s a version of liberty that insists on the right of individuals to determine their own moral ends and life goals, and their right to pursue those goals free of government interference. People were supposed to be free to “do their own thing,” so long as they were not harming the person or property of others, and so long as they were willing to grant an equal measure of liberty to others.

The post-Enlightenment version of liberty begins with the belief that fundamental rights aren’t gifts from benevolent governments; instead, Enlightenment philosophers and America’s Founders believed that humans are entitled to certain rights just because we’re human– and that government has an obligation to respect and protect those inborn, inalienable human rights.

When we ask the question whether this or that behavior is protected by the Bill of Rights, it’s really important to recognize that the Founders didn’t conceive of the Amendments as grants of rights—they were commitments to protect our human, inborn rights from an overzealous government and what they referred to as the “passions of the majority.”

As I used to tell my students, the Bill of Rights is essentially a list of things that government is forbidden to do. Government cannot dictate our religious or political beliefs, search us without probable cause, or censor our communications, for example—and it can’t do those things even when popular majorities approve. The Founders focused on restraining the power of the state, because in their world, governments were the most powerful entities. That’s why we define civil liberties as freedom from government intrusions. It wasn’t until 1964 that the United States began to pass civil rights laws that prohibited discriminatory behavior by private-sector actors.

I’m constantly amazed by how many Americans don’t understand the difference between constitutional liberties and civil rights, or the anti-majoritarian operation of the Bill of Rights—or, as we are seeing during this pandemic—the legitimate limits of our individual liberties.

Governments create what lawyers call “rules of general application” to protect the common good. Public officials can properly and constitutionally establish speed limits, ban smoking in public places—even require us to cover our genitals when we’re out in public. As Justice Scalia wrote in Employment Division vs Smith, back in 1990, so long as these and hundreds of other laws are generally applicable—so long as they aren’t really sneaky efforts to unfairly target specific groups—they don’t violate the Constitution.

Here’s the thing: the U.S. Constitution as amended and construed over the years guarantees citizens an equal right to participate in democratic governance and to have our preferences count at the ballot box. Those guarantees are meaningless in the absence of sustained civic engagement by an informed, civically-literate citizenry. Let me say that a different way: Protection of our constitutional rights ultimately depends upon the existence of a civically-informed and engaged electorate.

The consequences of living in a system you don’t understand aren’t just negative for the health and stability of America’s democratic institutions, but for individuals as well. There’s a Facebook meme going around to the effect that people who don’t understand how anything works are the people most likely to latch on to conspiracy theories. Whether that’s true or not, it is definitely the case that people who don’t know how government works are at a real disadvantage when they need to navigate the system. (Try taking your zoning problem to your Congressman.) Civic ignorance also impedes the ability to cast an informed vote. Especially at times like these—when official action or inaction can trigger massive protests– citizens need to know where actual responsibility resides.

Today, we are all seeing, in real time, the multiple ways in which civic ignorance harms the nation. As I indicated earlier, what we call “political culture” is the most toxic it has been in my lifetime. (And in case you didn’t notice, I’m really old.) There are lots of theories about how we got here—from partisan gerrymandering and residential sorting, to increasing tribalism, to fears generated by rapid social and technological change. But our current inability to engage in productive civic conversation is also an outgrowth of declining trust in our social and political institutions—primarily, although certainly not exclusively, government. Restoring that trust is critically important —but in order to trust government, we have to understand what it is and isn’t supposed to do. We have to understand how the people we elect are supposed to behave. We need a common understanding of what our Constitutional system requires.

Here’s an analogy: if I say this piece of furniture is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires or prohibits. But by and large, those aren’t the things Americans are arguing about.

In my academic life, I studied how Constitutional values apply within an increasingly diverse culture, the ways in which America’s constitutional principles connect people with different backgrounds and beliefs and make us all Americans.  That research convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of America’s history and philosophy—is absolutely critical to our continued ability to talk to each other, build community and function as Americans, rather than as members of rival tribes competing for power and advantage. Unfortunately, the data shows civic knowledge is in very short supply.

Let me share an illustrative anecdote: When I taught Law and Public Policy, I began with what I like to call the “constitutional architecture,” a discussion of the ways America’s legal framework limits what laws we can pass, and what legal scholars mean when they refer to the importance of the Founders’ “original intent.”

I liked to ask students “What do you suppose James Madison thought about porn on the internet?” Usually, the student would laugh and then we’d discuss how the Founders’ beliefs about free expression should guide today’s courts when they are faced with efforts to censor media platforms the Founders could never have imagined. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

It’s tempting to consider that student an outlier–but let me share with you just a tiny fraction of available research. The Annenberg Center conducts annual surveys measuring what the public knows about the Constitution. Two years ago, 37 percent couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could identify the three branches of government. Fewer than half of 12th graders can define federalism. Only 35% of teenagers recognize “We the People” as the first three words of the Constitution. It goes on and on.

And it matters, because Constitutions address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced? In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” The most revolutionary element of the American Idea was that it based citizenship on behavior rather than identity—on how you act rather than who you are. Initially, as we know, the American Idea only applied to property-owning White guys, but—over a lot of resistance– we have steadily expanded it. (As the ubiquity of cellphone cameras keeps demonstrating, we’re still struggling with that expansion.)

History tells us that the Founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the Founders’ achievement was, we all recognize that the system they established was far from perfect. The great debates between the Federalists and Anti-Federalists were about the proper role of government. We’re still having that debate. The overarching issue is where to strike the balance between government power and individual liberty.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty—or tell you to wear a mask in public?

How would the conversations we are having about vaccination mandates and masks change, if parties to those conversations all understood how our Constitution approaches both the rights of individuals and the duties of government?

In our Constitutional system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong. What they don’t have is the right to harm or endanger others, or the right to deny an equal liberty to people with whom they disagree. Drawing those lines can be difficult; it’s impossible when citizens don’t understand what government has the right to demand. We can—and do—argue about what constitutes harm, and when that harm is sufficient to justify government intervention in personal decision-making.

When people don’t understand when government can properly impose rules and when it can’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether a piece of furniture is a table or a chair.

Like all human enterprises, Governments have their ups and downs. I think most of us will agree that we are in a very “down” period right now. Unfortunately, in the United States, the consequences of “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon an Idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share—at least theoretically– is a set of constitutional values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when we don’t trust that our elected officials are obeying those norms, when we suspect that they are distorting and undermining the underlying mechanics of democratic decision-making, our democracy can’t function properly.

There will always be disagreements over what government should and shouldn’t do. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds, and learn how to bridge our differences. When widespread civic ignorance allows dishonest partisans to rewrite our history, pervert our basic institutions, and ignore the rule of law, we not only undermine the Constitution and the American Idea, we erode the trust needed to make democratic institutions work. Ultimately, that’s why civic ignorance matters, and why I wrote that little book.

It’s a very little drop in a very big ocean…but we can only do what we can do.

I know I rant. Thanks for indulging me.

 

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.

 

I Guess Consistency IS The Hobgoblin Of Little Minds…

Surprise! Indiana’s pathetic Attorney General evidently has come around to a view long expressed by civil libertarians and Planned Parenthood.

Rokita has joined members of the General Assembly in defending citizens’ right to control their own bodies. According to multiple media sources, he has issued a (non-binding) opinion in support of that position, which was admirably articulated by Martinsville Representative Peggy Mayfield:

Hoosiers should have the right to make healthcare decisions that best suit their families, their personal medical circumstances, and a broad interpretation of their religious beliefs – a concept that we’re disappointed to see Indiana University has rejected.”

The genesis of this remarkable turnaround–not just by our desperate-for-attention AG, but from a number of firmly anti-choice legislators–was Indiana University’s decision to require students and employees to be vaccinated in order to return to in-person instruction. In an opinion that most lawyers–and several members of the General Assembly–described as “a reach,” Rokita is claiming that a  bill passed during the last legislative session prohibits the University from doing so.

I will leave the legal arguments to practicing lawyers (noting only that IU is advised by some pretty excellent legal experts and that I have never heard Rokita described as a particularly skilled lawyer) , but I can’t restrain myself from focusing on the unbelievable hypocrisy displayed by that quoted position and Rokita’s pious support for the “fundamental liberties” protected by the Bill of Rights.

The statement that Hoosiers should have the right to make healthcare decisions that best suit their families and religious beliefs is, without a doubt, correct. It is precisely the point of the pro-choice position, which I will note is not a “pro-abortion” position. The issue is not what decision is made–it is who has the authority to make it.

In both cases–pregnancy termination and vaccination–the decision should rest with the individual involved.

That does not mean that institutions like IU cannot act to protect the lives and health of their students and employees; it means that individuals who choose not to be vaccinated and who do not fall within permitted exceptions to IU’s policy may choose not to attend–just as women who make a personal medical choice inconsistent with the teachings of a particular religious institution may find themselves unwelcome there.

In neither case should state or federal government agencies or legislative bodies get involved. They certainly may not make those decisions for those individuals.

What is particularly ludicrous about this sudden concern for an individual’s right to control of his or her own body– coming as it does from rabidly “pro life” folks– is that it is so inconsistent with their willingness to trample those same constitutional protections in order to appeal to constituencies displaying absolutely no regard for the protection of personal autonomy.

Ironically, Indiana University’s decision to require vaccinations is self-evidently a “pro life” decision. The University is following the science and acting to protect the life and health of the University community. (Of course, the people they are protecting have already been born, which evidently makes a difference…)

When Ralph Waldo Emerson wrote: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines,” the point he was making was that only small-minded people refuse to rethink their prior beliefs.

Perhaps Indiana’s Attorney General isn’t as small-minded as he has seemed? Perhaps he is re-evaluating and rethinking his belief that government should get to decide what  citizens–including female citizens– can do with their bodies?

Or, on the other hand, perhaps he is simply too dim to recognize the inconsistency of the various positions he chooses to take in the course of his constant political pandering.

 

 

Democracy? Or Liberal Democracy?

Back in the Ice Age, when I was a high-school English teacher, I spent some time in my classes discussing the sometimes subtle differences between the definitions and connotations of words.

America’s political discussions would benefit from a similar focus.

What brought this to mind was a “guest essay” in the New York Times, discussing the importance of distinguishing between actual democracies and states that have edged–albeit through popular vote–into autocracy. Here is the crux of the essay:

In a report published in March, the Swedish research organization V Dem posits that “the level of democracy enjoyed by the average global citizen in 2020 is down to the levels last found around 1990.” In V Dem’s judgment, the elected autocracy — a political regime in which democracy is reduced to the unconstrained power of a majority — is today’s most common regime type. India, Turkey and Hungary are exemplars. These new authoritarians are very different from their Cold War-era relatives, which were often military regimes. They cross the borders between democracy and authoritarianism almost as frequently as smugglers cross state borders.

Many of today’s new non-democracies are in fact former democracies. And in many of these countries, citizens voted for authoritarian populists specifically in the hope of making democracy work for them. The government’s supporters in electoral autocracies like India and Hungary or electoral democracies like Poland, countries that organizations like V Dem and its American counterpart Freedom House countenance as democratic backsliders, will insist that they live in democracies. As of January, the percentage of Indians who trusted Prime Minister Narendra Modi was far higher than the number of Americans or Europeans who trusted their leaders. (To be fair, Mr. Modi’s popularity has taken a serious hit over the past month as Covid-19 has raged across India in large part because of what many describe as the starkest failure of governance since the country’s independence.)

There are a number of implications–and warnings– that might be drawn from this analysis, but what it triggered in my mind was definitional. When we use the term “democracy,” most of us think simply of majority rule. And as the described slide into autocracy illustrates, majorities can endorse very repressive measures and elect very unqualified and/or evil people.

A while back, I read a book by Fareed Zakaria (the title now escapes me) in which he drew a very important–even profound–distinction between “democracy” and “liberal democracy.” A system of flat-out majority rule can be every bit as tyrannical as a system empowering an emperor; what America has (if we can keep it) is majority rule constrained by the Bill of Rights, a liberal democracy which limits the sorts of government actions that a majority of our citizens can endorse.

These constraints–and the reasons for them–are widely misunderstood, but they protect our individual liberties.

The Bill of Rights puts certain matters beyond the regulatory power of the state. Your neighbors cannot vote to make you a Baptist or Unitarian, they cannot send government censors to your local library, and they cannot deny equal civil rights to populations they might wish to marginalize or oppress. In effect, the Bill of Rights is meant to limit the nature of decisions that government can make, even when a majority of citizens would like for government to impose those decisions on everyone.

The dictionary definition of “democracy” is “a system of government by the whole population or all the eligible members of a state, typically through elected representatives.” When most Americans hear “democracy,” however, the connotation is really “liberal democracy”–majority rule with constraints that safeguard individual freedom.

Unfortunately, that assumption elides a very important distinction between “pure” democracy and limited/liberal democracy, and that distinction matters. A lot.