Tag Archives: Bill of Rights

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.

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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.

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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.

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Federalism On Steroids?

There are many observations we might make about the newest Supreme Court Justice and the travesty of her elevation. Assuming Democratic reluctance to enlarge the Court in a tit-for-tat response to the last 12 years of GOP court packing, one of those observations concerns prospects for federalism and states’ rights.

As Elizabeth Warren noted in a speech opposing Barrett, the nominee carefully refused to answer numerous important questions. She wouldn’t say whether the Supreme Court ruling upholding the right to contraception was correct, or whether the government is entitled to criminalize a same-sex relationship. Despite the applause from Republicans about the size of her family (seven children!), she refused to opine that it’s wrong to separate children from their parents at the border. She called climate change “controversial.” She evaded  many other inquiries, including what should have been considered “softball” questions: whether it’s OK to intimidate voters at the polls, and whether a president has the right to postpone an election.

When she held up that blank notepad she’d brought to the hearing, it was evident that the pristine paper was her reminder to abstain from sharing anything resembling content.

it is likely that Barrett will join Trump’s other regressive Court picks, and rubber-stamp state laws that violate rights we have come to view as American, endorsing a radical federalism allowing the rights of individuals to be defined by the states in which they live.

I’ve previously posted about the demographic shifts we’ve seen and the effects those shifts have had on equal treatment and “one person, one vote.” I’ve previously recommended Bill Bishop’s book The Big Sort, and its analysis of what he called “voting with our feet.” The likelihood of a radical return to “states’ rights” is likely to super-charge that residential apartheid.

States like Indiana already struggle to retain young people–especially educated young people. Red states like ours will rush to take advantage of their new imperviousness to federal constitutional constraints. They won’t just outlaw abortion (and in some states, access to birth control), they’ll expand gun rights, restrict access to health care and eviscerate their already paltry social safety nets. The Court has already declined to interfere with a variety of vote suppression tactics that favor the GOP–everything from gerrymandering, to ballot counting, to poll hours and locations.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until now–they have been forbidden to retract them.

The new approach to federalism–what one might call “federalism on steroids”–will upend that understanding of American citizenship. The extent of your rights will depend upon your state of residence. If the young people with whom I interact are any indication, that’s a situation that threatens to leave a number of red states with a dwindling and aging population.

America has already seen its population shift to urban areas. As the “creative class” (and those who want to employ them) described by Richard Florida increasingly cluster in vibrant municipalities, those urban locations become even more attractive.

Gay families aren’t going to locate in states that refuse to recognize their marriages or parental rights. Women aren’t going to choose locations that allow the government to dictate their most intimate decisions. Few families will want to live in states where gun owners are encouraged to bring firearms everywhere, including schools. (And don’t think this is hyperbole–here in Indiana, we have state representatives who work constantly to legislate that “freedom.’)

States offering universal healthcare (a la Massachusetts) will look awfully good to a lot of Americans.

I wonder: At what point do “states’ rights” and a commitment to expanded “local control” end up creating separate and not-so-equal  parts of what has been one country? At what point will fiscally healthy blue states decide to stop supporting “taker” red states?

When does federalism on steroids translate into secession?

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Are We Americans?

I recently participated in a session of “Cocktail Judaism”—an activity sponsored by Indianapolis congregation Beth El Zedeck for members interested in exploring current issues in the context of Jewish values. The environment is informal; congregants meet at a local restaurant on a weekday evening, and various “experts” are invited to lead the discussion.

On this particular evening, I shared the microphone with my more knowledgeable cousin, Jeff Smulyan, CEO of Emmis Communication. We were asked to facilitate a discussion revolving around a question posed by Rabbi Dennis Sasso: What does it mean to be an American, and how will the answer to that question matter to the 2020 election?

I argued that–at the very least—being American requires understanding, supporting and protecting two essential elements of our country’s version of liberal democracy–majority rule and its libertarian brake, aka the Bill of Rights.

In order to protect the legitimacy of U.S. government, we need to address the escalating assaults on majority rule: Gerrymandering (the practice whereby legislators choose their voters, rather than the other way around); the growth of vote suppression tactics (everything from voter ID laws to the spread of disinformation); the disproportionate influence of rural voters thanks to the operation of the Electoral College; the current (mis)use of the filibuster, which now requires a Senate supermajority to pass anything; and the enormous influence of money in politics, especially in the wake of Citizens United.

In order to protect individual liberty– i.e., the constraints on majority rule required by the Bill of Rights and the 14th Amendment–we need to reinvigorate and protect the libertarian principle that animated the nation’s Founders: the right of all people to live as they see fit, so long as they do not thereby harm the person or property of others, and so long as they are willing to grant an equal liberty to others. That “live and let live” principle doesn’t just  require us to limit government over-reach; it requires that we combat racism, anti-Semitism, homophobia, misogyny, Islamophobia…all of the “isms” that deprive some citizens of equal civic status and that deny them the full expression of their individual liberties.

Understanding and protecting both majority rule and individual rights requires an informed citizenry–and an all-out assault on civic ignorance and apathy.

In response to a question from Jeff, participants indicated their concerns about a wide range of issues: gun control, the environment, health care, reproductive rights, the Supreme Court…an important litany with which we’re all familiar. These are all, admittedly, absolutely critical issues.

That said, I’ve become increasingly convinced that 2020 is about America’s structural and systemic distortions—that our first order of business must be to confront the misuses of power that make fair and productive political debate about substantive issues impossible. These failures of American governance need to be addressed before any of the policymakers we elect will be able to discuss, let alone pass, rational, evidence-based policies.

You can’t drive a car if it’s lost its wheels, and you can’t govern if your institutions have lost their legitimacy.

Unless the systems are fair, no minority of any sort–political, religious, racial, economic–is safe.

America’s Constitution was all about checks and balances and the rule of law. Until we eliminate systemic corruption and return our government to those foundational operating  principles, we aren’t Americans—we’re just an assortment of contending constituencies who happen to occupy the same nation-state.

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