Tag Archives: Bill of Rights

What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. 

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue? 

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.) 

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech,  to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

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Who Decides?

I used to tell my students that the Bill of Rights, read as an organic whole, answers a deceptively simple question: who decides? Not “what decision should be made” but who gets to make it? Who chooses the book you read, the God you do–or do not–worship, the person you marry?

The Bill of Rights draws a line between decisions government can properly make and decisions that, in a free society, must be left to the individual. One of the reasons the Dobbs decision was so shocking was that –suddenly–the government was authorized to enter a zone of intimacy from which it had long been banned; as I have often remarked, the question was never “should abortion be legal or illegal”? The question was (and is) who should decide that question in an individual situation?

America’s raging culture war tends to focus on the extent to which our individual rights are protected from government interference. MAGA Republicans insist that government has the right–the duty!–to determine everything from your reading materials to your reproductive decisions. As many former Republicans have noted, the “war on woke” is really a war on the Bill of Rights, and a sharp departure from what used to be GOP orthodoxy.

This deviation from that past Republican orthodoxy isn’t limited to the usurpation of individual life decisions. The party has also jettisoned its former support for free markets, as Dana Milbank recently documented.

Can you remember when Republicans still believed in the free market?
It was sometime before Donald Trump started routine attacks on the “globalists” of Goldman Sachs and the leaders of large U.S. corporations; before Florida Gov. Ron DeSantis used tax policy to attack the Walt Disney Co. because it dared to disagree with his “don’t say gay” legislation; before congressional Republicans harassed social media companies and book publishers over alleged “censorship” of their views; before they threatened Delta Air Lines, United Airlines and Major League Baseball over their support for voting rights; before they vowed to use federal resources to retaliate against the U.S. Chamber of Commerce for backing a few Democrats; before Republican governors enacted laws overriding private employers’ coronavirus vaccination policies; and before GOP-led states moved to disrupt interstate commerce to block abortion access and morning-after pills.

This week brought the latest evidence that the former party of laissez-faire capitalism has reimagined itself in the image of a Soviet State Planning Committee. Republican lawmakers are now telling investors which businesses they can and can’t invest in — and which investment criteria they will be permitted to consider.

Republicans have taken the culture war to business, in efforts to prevent asset managers from considering “environmental, social and governance” criteria, or ESG, when making their investments. Milbank quoted Utah Attorney General Sean Reyes’ assertion that there is a “conspiracy” of ESG-minded investors.

He was particularly worried that “asset managers who collectively own significant percentages of utilities’ stock are improperly influencing the operations of those utilities.”

Imagine that! The shareholders who own a company are trying to influence its operations! Will nobody rid us of this capitalist menace?

Twenty-five Red State attorneys general have sued to block a federal regulation that allows retirement-plan investors to consider ESG standards. The rule doesn’t mandate that investors do so. It merely gives them the option.

As one Democratic critic of this interference with business decisions points out, these rules block asset managers from

considering whether a car company “is aligned with market expectations and preparing for the shift to electric vehicles,” whether a pharmaceutical company “has exposure to massive lawsuits because of its role in the opioid epidemic” or whether “health-care companies understaff their operations and jeopardize the safety of patients.. ..ESG is simply additional information that investment professionals use to assess risk and return prospects.”

In our current “through the looking-glass” world, Democrats are defending the free market against Republican support for a planned economy that mandates what businesses have to invest in. Shades of Soviet central planning!

When I first became politically active, I was drawn to principles espoused by the then-Republican Party, especially its recognition that individual liberty requires limiting the power of the state. There were and are good faith arguments about where the line should be drawn in a variety of situations (and widespread misunderstandings of what “limited” government means. “Limited” is not the equivalent of “small”–a limited government respects limits on its authority, not its size.)

A government that can dictate your prayers, your reading materials, your reproductive decisions and your business’s approach to investment isn’t just unAmerican–it’s heading toward Soviet-style totalitarianism or Taliban-style theocracy.

In a genuinely free society, the decisions citizens and businesses make are far less important than who has the right to make them.

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The Tyranny Of The Minority

Among the newsletters I receive is one from historian Heather Cox Richardson, who regularly provides historical context for contemporary issues.

These two paragraphs from a recent newsletter have prompted me to dust off and recycle one of my old classroom lectures.

The right-wing rejection of democracy was on display at a meeting of the Federalist Society in early March. Politico’s Ian Ward covered the meeting. The Federalist Society organized in the 1980s to argue that the civil rights decisions of the past several decades corrupted democracy because liberal judges were “legislating from the bench” against the wishes of actual voters. The society’s members claimed to stand for judicial restraint.

But now that their judges are on the bench, they have changed their philosophy. Last summer, after a Supreme Court stacked with Federalist Society members overturned the right to abortion, voters have tried to protect that right in the states. Now, according to Ward, the Federalist Society appears to be shifting away from the idea of judicial restraint in the face of popular votes and toward the idea that judges should “interpret the Constitution” in ways right-wing Americans support. They are quick to claim that democracy is not the answer: it would result, they say, in the tyranny of the majority.

When I taught Law and Public Policy, we talked a lot about the U.S. Constitution, and the Founders’  approach to that “tyranny of the majority.”

The phrase points to a legitimate concern: if the law is anything a majority of voters say it is at any given time, individual rights are at risk. A majority can vote to disenfranchise a minority, require everyone to attend a particular church, criminalize anti-government sentiments… the list goes on.

It is easy, after 200 plus years, to find fault with our Constitution, and in this blog I have pointed to areas that I think need to be amended or re-construed. But the philosophy with which the Founders approached these very real worries about what they called the “passions of the majority” was (in my view) as close to perfect as possible.

Drawing on Enlightenment scholarship, the Founders distinguished between matters that were properly within the decision-making authority of “the people”–the majority– and matters that were to be protected from the majoritarian passions of those people.

That division was the entire purpose of the Bill of Rights.

In our system, a majority of voters get to select their lawmakers (theoretically, at least, voting for those whose positions they endorse). Those representatives then decide, via legislative majorities, issues ranging from waging war, to taxes, to electoral processes, to the establishment of government agencies…on and on. (And yes, as I periodically point out, this process is currently not working very well…)

The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter. Your neighbors cannot vote to make you attend a particular church or  prevent you from reading a particular book; they may not authorize a government functionary to “search and seize” you without probable cause. Etc.

For years, judges and lawyers have debated the range of personal liberties protected against majority disapproval. Was the Bill of Rights to be read as an organic whole, encompassing the “unenumerated” rights retained by the people, or was it to be limited to rights expressly identified? I think the expansive reading is more consistent with the text and the Founders’ original expressed philosophies, but it’s a legitimate debate.

The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.

The American constitutional system was based upon the libertarian principle (libertarianism as properly–and originally–understood). I’ve shared it before; let me share it again: The libertarian principle holds that Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of another, and so long as they are willing to accord an equal liberty to their fellow citizens.

We can argue about the nature of the harms that justify government intervention, but Jefferson had it right: “It does me no injury for my neighbour to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”

The purpose of the Bill of Rights was to erect a boundary between those matters that harm others, which the majority can properly sanction, and the individual, profoundly personal human rights that are simply none of government’s business.

We can argue about where that boundary belongs, but the Federalist Society,  MAGA warriors and  Christian Nationalists are trying to erase it altogether.

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Allow Me To Repeat Myself…

In the wake of the Court’s ruling in Dobbs, several pundits have approved of the decision as a “return to federalism.” Earlier this year, I posted about America’s experience with federalism, and obviously, that analysis bears repeating.

The issue, of course, is “Which rules should be nationally-imposed, and which should be left to more local “laboratories of democracy”? Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. But questions about who is entitled to fundamental human rights–and what those rights are–clearly isn’t one of them.

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the extreme federalism of the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of national fragmentation.

The application of the Bill of Rights to state and local governments was meant to establish a national floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Furthermore, modern technology and communication–and the needs of businesses serving a mobile population–have made uniformity imperative even for matters that were properly left to state and local governments in the 1800s.

As I’ve noted previously, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. (It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature. In that sense, it respected federalism.)

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Numerous health officials have addressed the disastrous results of Trump’s decision to leave COVID response to the states. It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?”

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms? It is incomprehensible to me that anyone would choose to leave basic civil liberties up to the states–that, after all, was precisely the “federalism” that led to the civil war.

Certainly, America’s division of jurisdiction among local, state and federal levels of government is still useful–state and federal governments really have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, for example– but we need to recognize that many of our historic assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, as we have seen, it’s an invitation to misconduct.

As a practical matter, federal programs have made a mockery of  the increasingly awkward pretenses of state “sovereignty” where none really exists. Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the myriad other “strings” attached to federal funding that remind state-level agencies who’s really in charge.

If we ever get serious about actually governing again, we should take a hard look at these divisions of responsibility, and recognize that some matters are genuinely local, some require national action, and still others are planetary and must be addressed globally. Climate change is the most obvious.

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights and global threats, a phony and facile “respect for federalism” is both dishonest and suicidal.

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Let Me Explain This One More Time…

I see that Tucker Carlson has applauded the demise of Roe v. Wade, and characterized the decision as a “return to democracy.” Evidently, someone needs to explain America’s approach to democratic self-rule to Tucker and his constitutionally-illiterate audience.

Democratic systems can take several forms. In a “pure” democracy, where an unrestrained majority rules, voters participate in all government decision-making; the majority is even able to decide who has the right to vote. (I’m unaware of any country with so “pure” a democracy, for obvious reasons.)

America’s Founders didn’t choose that system. (For one thing, their concerns about the “passions of the majority” were well-known.) Instead, they crafted a republic in which voters would choose lawmakers from among the ranks of the thoughtful and knowledgable (!!), and those lawmakers would debate the merits of legislative proposals, negotiate and compromise among the various points of view, and pass well-considered laws.

Then they constrained those lawmakers by enacting a Bill of Rights.

The Bill of Rights–as I have often explained in these posts–is essentially a list of things that American government is forbidden to do, even when a majority of voters approve. Thanks to the Bill of Rights, government cannot censor our communications. It cannot prescribe our prayers (although after the Court’s most recent ruling, it can evidently coerce them) or dictate our reading materials. It cannot search or seize us without probable cause.  It cannot invade our liberties or take our property without due process of law.

Let me reiterate that, for the edification of any Fox viewers who might be lurking: the Bill of Rights limits what popular majorities can authorize government to do. It is a limitation on majority rule–on what the Tucker Carlsons of this world conceive of as democracy. It protects the right of individuals to choose their own political and religious beliefs and follow their own life goals, their own telos, free of government–or majority– interference.

Over the years, the Court has had to interpret the operation of the Bill of Rights–to apply its broad principles and protections to specific situations. Since the 1960s and until this week, the Court has recognized a right to privacy, and has drawn a line between decisions that government can properly make, and those that must be left to the individual. It has based that line on citizens’ right to due process.

There are two kinds of due process: procedural and substantive. Substantive due process (often called the right to privacy) is the doctrine that requires official respect for individual autonomy–the doctrine that forbids government from making decisions that are none of government’s business, “intimate” decisions that under longstanding understandings of the Bill of Rights must be left up to the individual involved.

The existence of that line protecting individual liberty from government interference rests on multiple precedents interpreting the 14th Amendment’s Due Process Clause. 

If the doctrine of substantive due process goes away, those “democratic” state governments so beloved by Tucker Carlson will have the right to prohibit same-sex or interracial marriage, re-criminalize sodomy, and ban the sale and use of birth control…All of those rights and others are in the cross-hairs so long as Republicans can keep their stranglehold on American government via gerrymandering, the Electoral College and other mechanisms  (mechanisms that are all, ironically, exceedingly anti-democratic). 

The decision overturning Roe was deeply dishonest, especially in its discussion about  whether a particular right was historically recognized, but Alito’s distorted history is ultimately irrelevant– a red herring. In order to find that the government has a right to control the reproductive decisions of individual women, the Court had to fatally undermine the doctrine of substantive due process. And when that doctrine is no longer viable, all other personal rights are vulnerable.

Clarence Thomas may have been the only Justice willing to admit to the obvious agenda of this rogue Court, but it is abundantly clear that the other four members of the religious tribunal that now controls the Court share that agenda.

Debates about abortion have always been both superficial and dishonest. “Pro life” has always been a misnomer, since anti-choice policy is blatantly indifferent to the lives of women (and to the lives and welfare of fetuses once they become children). But there needs to be far more recognition that this decision isn’t simply an endorsement of the right of state governments\ to make very bad policy decisions–it is an endorsement of autocracy, of the right of government to invade the most personal precincts of citizens’ lives, and to impose the religious views of those in power on those of us without.

Giving legislators the right to make my most intimate decisions isn’t the Founders’ view of “democracy”– and it sure as hell isn’t mine.

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