Tag Archives: civil liberties

Allow Me To Repeat Myself…

Constitution, ,

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.

 

 

 

 

 

 

Who Decides?

Public Policy and Governance, , ,

Can you stand a few more observations about the Supreme Court’s birth control decision and women’s reproductive rights in this, the 21st Century?

The amount of disinformation about abortion–and the use of that disinformation by cynical Republican operatives–is fairly widely known. I’ve previously quoted religious historian Randall Ballmer for the actual genesis of the “pro life” movement.

Ballmer points out that it wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Being against abortion was “more palatable” than what was actually motivating the Religious Right, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education.

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.

So much for the “moral outrage” that presumably prompted the movement.  A number of political scientists and sociologists attribute its continued salience to an equally unlovely motive: keeping those uppity women in their place: the kitchen and bedroom. (When women are able to plan their families and manage their reproduction, they can enter the workforce, and if necessary, leave abusive husbands.) 

Those pious concerns about women’s health have always been dishonest; abortion is far safer than childbirth. A recent study reported by the New Yorker further confirms that claims about later regrets or emotional problems following abortion are simply fabrications.

If there was any doubt about the pro-Republican, anti-woman animus motivating attacks on women’s reproductive autonomy, the Supreme Court’s birth control decision should dispel it. 

As both Justice Ginsberg and the New York Times Editorial Board pointed out, between 70,500 and 126,400 women will immediately lose access to no-cost contraceptive services.

The Trump administration has been attacking both the A.C.A. and access to birth control since the moment President Trump took office. On the latter front, its most successful effort before this week was to gut the nation’s decades-old family planning program, called Title X, in an explicit effort to cripple Planned Parenthood. All of the administration’s efforts on this front have most directly affected poor women and women of color.

As Nancy Papas noted, in a trenchant comment to my previous post on the subject, denying women access to birth control makes no sense (unless, of course, your goal is to erect barriers to female equality). Less birth control means more unwanted pregnancies and abortions, more unwanted children (and increased levels of child abuse). Employee health declines; employee absenteeism rises–and more children on a family plan means higher cost health insurance premiums.

There’s another cost that rarely is factored in: these decisions are “exceptions” to the American concept of liberty.

The Bill of Rights is often described as a list of decisions and behaviors that government must respect: individuals have the right to decide for ourselves what books we will read, what–if any–Gods we will worship, who we will marry and whether and how often we will procreate, among other things. The Courts have routinely referred to such decisions as “intimate” and ruled that government interference with them is illegitimate and unconstitutional. Those same Courts have carved out de jure exceptions for abortion, and now, what amounts to a de facto exception for birth control.

Here’s a thought: states with progressive legislatures (not Indiana, unfortunately) should partner with health insurance companies to establish a fund that would provide low-or-no cost birth control for women who work for these anti-woman “religious” companies. The women should apply directly, eliminating the need for the “religious” owners to be “complicit.” (I guess it doesn’t bother them to be “complicit” in worsening the health of women who take birth control medication for reasons other than contraception–but then, logic and honesty aren’t involved in these decisions.)

Here’s another thought: if America had a single-payer system like the 36 countries that pay less for health outcomes superior to ours, government wouldn’t allow employers to impose their religious beliefs on employees who don’t share them.

 

The Pandemic And The Constitution

Constitution, , , ,

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

 

 

The Pandemic And The Constitution

Constitution, , ,

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)

What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…

 

 

The Next Generation

Public Policy and Governance, ,

Amidst the gloom and doom that is today’s political environment, there are rays of hope.

I often tell people that I would turn the country over to my students in a heartbeat. They are inclusive, community-oriented and passionate about fairness and civic equality. (Granted, they have enrolled in a School of Public and Environmental Affairs, so they are arguably a self-selected group.)

In my graduate law and policy class, I give a take-home final. (This is an effort to make up for a difficult in-class midterm, a demanding group project and a 20-page research paper.) The final consists of three questions; students are to choose one of the three and write an essay addressing it.

Unlike that midterm, there are no right or wrong answers. I’m looking for thoughtful responses–answers that tell me that they have considered the strengths and weaknesses of American governance and have formed defensible policy positions.

Two of the questions on this year’s final elicited particularly interesting responses. Here’s one of them:

It is 2020, and you have been elected President of the United States. You are following an administration that has made significant—even monumental—changes to American public policies. Which of those changes would you accept and follow? Which would you change? (I am not looking for exhaustive lists; choose one or two areas to discuss and justify your decision to accept or reject the current administration’s approach.) For each policy you would retain or reverse, explain why it is or is not supportive of the common good and/or consistent with America’s Constitutional values.

The students who chose this question were uniformly critical of the current administration, and very specific in their critiques. They all faulted Trump on environmental policy. Several pointed out that the “Muslim ban” violated the First Amendment. Economic policy and the tax “reform” bill came in for considerable scorn, as did efforts to destroy the Affordable Care Act and failures to enact meaningful gun control or improve immigration policy.

I was particularly struck by essays from students addressing this question:

Earth has been destroyed in World War III. You and a few thousand others—representing a cross-section of Earth’s races, cultures and religions—are the only survivors. You have escaped to an earthlike planet and are preparing to establish a new society. You want to avoid the errors of the Earth governments that preceded you. What institutional choices do you make and why? Your essay should address:The type/structure of government you would create; the powers it will have; the limits on its powers, and how those limits will be enforced; how government officials will be chosen and policies enacted;the social and political values you intend to privilege, and the reasons for your choices.

When I’ve included a similar question in the past, most students have dutifully constructed a government patterned after that of the U.S. This year, there were more creative efforts, some borrowing from European and Canadian models, others proposing “from scratch” governance concepts. Three or four proposed to outlaw political parties, and all of them suggested mechanisms intended to prevent gridlock. A couple included stringent qualifications for holding public office.

All the responses included universal healthcare and other elements of a robust social safety net–including, in one case, a Universal Basic Income. All of them included mechanisms meant to eliminate or vastly reduce the role of money in politics. All of them provided for a rigorous civic education. All of them emphasized and protected the right to vote  (some made Election Day  a holiday, some allowed vote-by-mail and a couple made voting mandatory. One made vote suppression a felony.) All had laws protecting civil liberties and the environment.

All of them described legal systems protective of civic equality, and most suggested policies promoting respect for diversity.

The proposals weren’t uniformly practical, and there wasn’t a lot of space for details in any event, but virtually all of them showed that the writers had genuinely grappled with the question and considered the essential elements of a just society.

Needless to say, all of them came across as more thoughtful and informed than Donald Trump and his swamp.

If this country manages to survive the current administration, we’ll be in good hands.