Tag Archives: Constitution

Another Looming Threat

Is it time to re-examine some aspects of the U.S. Constitution? Undoubtedly. Is it incredibly difficult to amend that document in today’s polarized political environment? Yes. Does the undeniable accuracy of those observations support the growing movement to convene a Constitutional Convention?

Absolutely not.

Every so often, a reader will remind me that there is a stealth movement by far-Right activists to call such a convention–a reminder that makes the hair on the back of my neck stand up, because the goals of those ideologues are entirely inconsistent with the values of the U.S. Constitution and Bill of Rights.

A recent article from the Intelligencer explained who those activists are and what they hope to achieve.

On a recent spring morning outside the Pennsylvania State Capitol, a group of activists gathered to terminate the Constitution. Around 100 people drove in to Harrisburg from all over the state, showing up clad in white T-shirts and buttons depicting an American flag that nests COS, short for Convention of States, in the star area. Claiming endorsements from the likes of John Eastman, Sean Hannity, and Ron DeSantis, COS is a deep-pocketed right-wing movement that is quietly campaigning for states to call a constitutional convention, the first since 1787. “The government is out of control,” said Roy Fickling, a construction-industry retiree sitting on the balustrade. “It’s the only way to stop them.”

Just after 9 a.m., Rick Santorum waded into the crowd to deliver a speech about the “complete destruction” of America and the urgent need for a convention to radically amend the nation’s supreme law. “This is an existential fight,” said the Republican former Pennsylvania senator who is now a COS senior adviser. “It’s not about politics. The people on the left do not want the same America as you do. This is about good and evil.” The crowd applauded. He then went on to talk about trans issues. “The reality is this is a moment where we need patriots, just like we did in 1776.”

This effort is marketed as a move to cure what these activists see as the most pressing problems of the nation: ballooning debt and a “tyrannical” federal government.

Article V of the Constitution lays out two amendment mechanisms. The first is the one with which we are familiar. It has been used successfully 27 times. Congress passes an amendment by a two-thirds vote in each chamber, and three-fourths of the states ratify it. The second process has never been used; it requires two-thirds of the states to pass resolutions calling for a convention where delegates from the states can propose amendments.

To anyone disheartened by congressional gridlock, Article V may seem like a seductive idea. While proposed amendments would theoretically also have to be ratified by 38 states, that is cold comfort to the legal scholars who see calling a convention as a constitutional crisis waiting to happen. “The only precedent is the Philadelphia convention from 1787, and they ended up junking the Articles of Confederation and writing a whole new constitution,” said David Super, a professor at Georgetown Law. So far, COS has won 19 states of the 34 necessary to force such a convention.

The last century saw three major Article V movements, two of which reached 33 and 32 states.

While the idea may seem too outlandish to catch on, so did others. The independent-state-legislature theory made it all the way to the Supreme Court. The Second Amendment was once viewed by legal scholars as a clause regulating militias.  Abortion was a constitutional right for half a century.

We live in unsettled times…

The article identifies Meckler–the head of COS– as part of a “vast web of billionaire-funded right-wing efforts pushing radical movements to consolidate power under the guise of populism.”

The article is lengthy, delving into the background of Meckler, who comes across as a talented con man. It documents his transformation from moderate Left to hard Right–a transformation that made him useful to right-wing donors and led in turn to COS.

Meckler pitched the idea to the American Legislative Exchange Council, a clearinghouse for conservative policy, which became a key proponent, and COS began racking up state resolutions in the South and endorsements from Marco Rubio, Mike Huckabee, and James O’Keefe. In 2016, COS hosted a mock convention, where over 100 state lawmakers adopted amendments that would, among others, repeal the income tax and allow a vote of 30 state legislatures to nullify federal laws. Critics of COS “actually said something truthful,” Meckler told Mark Levin, another supporter. “They said, ‘This is intended to reverse 115 years of progressivism,’ and we say, ‘Yes, it is.’”

The Convention of States is just one more threat–as if we needed another!– to the American Idea….

Ceding My Space

Phil Gulley is a Quaker pastor in Camby, Indiana–one of Indianapolis’ bedroom communities. He lives in Danville, another small community. Gullley is also a humorist; he writes for the Indianapolis Monthly and for the Danville Republic, among other publications. He has graciously given me permission to share the following essay, which focuses on America’s future prospects.

When I am tempted to say something critical about “churchy” folks (as I often am) I think about Phil and about several good friends who are members of the clergy. (Those of you reading this know who you are!) They are all truly good human beings “walking the walk” of their various faiths–and their presence in the community and in my life reminds me that painting any group of people with too broad a brush is bigotry.

Here’s Phil’s essay.
         The study of American history requires a keen eye for irony. It began when Thomas Jefferson, an enslaver of some 600 souls, was charged with writing the first draft of The Declaration of Independence, which included these soaring words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” For something that was self-evident, equality wasn’t apparent to Jefferson, nor to the 48 other founding fathers who held enslaved people, hence the irony.        

Women were not accorded the right to vote for the first 144 years of our nation’s history, and not until the Civil Rights Act of 1964 did Blacks gain that right, though even today, in some of our more benighted states, that right is under steady assault by those who laud freedom in one moment and deny it to others in the next. As I said, one must have a keen eye for irony.      

A more recent head-scratcher occurred after our last presidential election when a mob of miscreants, moaning about the demise of American democracy, nearly dealt it a death blow by storming the Capital Building to halt the peaceful transfer of power. As of this writing, over a thousand rioters have been charged, with one glaring exception, the Rioter-in-Chief, Donald Trump, who so far remains free. So much for that old American chestnut that no man is above the law.

Even now, those who crow the loudest about American exceptionalism are the same ones bemoaning our nation’s supposed fragility, daring to call those who believe most strongly in America’s promise of equality “snowflakes.” (Again with the irony.) If the United States of America should ever end, it will not be at the hands of those who demand equality, but at the hands of those who demand rights and privileges for themselves, while cunningly denying them to others. Should those robbed of their freedoms dare to complain or march or organize, their silence is demanded, their compliance required. Let a woman insist on the right to make her own medical decisions, let people of color decry police brutality, and all of a sudden America is perilously close to collapse, the end times are near, the socialists are coming.
It should come as no surprise that our faint-hearted brethren have draped themselves in the garments of religion, cloaking their tyranny in divine authority. It is God they are fighting for, not themselves. Or so they claim. Robert Ingersoll, a Republican when Republicans were sane, famously said of our founders, “They knew that to put God in the constitution was to put man out. They knew that the recognition of a Deity would be seized upon by fanatics and zealots as a pretext for destroying the liberty of thought.” Fanatics and zealots are, and have been since our founding days, the gravest threat to America’s future. If we are imperiled, it is because of them.

But I am an optimist. I believe these lovers of piety and power, posing as lovers of freedom, will be seen for who they are. I believe wise Americans will reject their shrill demands, will recognize their crocodile tears as performative art and nothing more, and will dedicate themselves to a better America. As is nearly always the case, the younger among us will see what their elders refuse to see, that “freedom” which comes at the expense of another is not freedom at all, but oppression masquerading as liberty, and they will stand against it, and our nation will be saved.


To which I say, “amen.”

See you tomorrow.


Two Possibilities….

A few days ago, a clearly exasperated reader of this blog asked “the” question–the question I ask myself daily and am unable to answer. He agreed with my “diagnoses” of the myriad  problems we face, but wanted to know what we can do about them. We know what the problems are–what can individuals do to solve them?

If only I had an answer! We’d both feel better.

Not only do I not have a solution to “the question,” I vacillate between two competing analyses of the problems we face. As I have previously noted, I’ve been reading a lot more history lately, in an effort to determine whether we’ve been here before, or whether the severity of America’s divisions is something unprecedented. (That’s another question to which I have no answer…).

As I used to tell my students, it depends–and it’s complicated.

Like many of the people who read this blog, I take the daily letter from historian Heather Cox Richardson, who provides helpful historic context to the issues of the day. Recently, she addressed the question of Trump’s stolen documents, and Senator Lindsey Graham’s threat that holding Trump accountable would be met with violence in the streets.

Richardson pointed out that arguments about the theft of those documents  are arguments about the rule of law–not about contending political opinions. Graham’s threats about gangs taking to the streets is an authoritarian’s argument for the use of violence to overturn the rule of law. Richardson then provided valuable context, noting that resort to violence is not new to this country, citing to  the Reconstruction South–a period during which “white gangs terrorized their Black neighbors and the white men who voted as they did, suppressed labor organization at the turn of the last century, and fed rising fascism in the 1930s”.

Right-wing activists have been an ever-growing threat since the 1990s. Under Trump, rightwing gangs became his troops. But as Richardson reminded us,  even the incidents of domestic terrorism aren’t new.

Such gangs have always operated in the U.S., and they gain power and momentum when they engage in violence and are unchecked. After several years in which they have seemed invulnerable, we are now in a period when, as we learned on Saturday, an armed man in a truck chased Independent Utah senatorial candidate Evan McMullin with a gun after an event in April and forced the vehicle carrying McMullin and his wife into oncoming traffic. That incident echoes one from October 2020, when a bus carrying Biden staffers and volunteers through Texas was harassed by Trump supporters, some of whom appeared to be trying to force it off the road. When the terrified Biden workers called the police, officers allegedly refused to help.

What I take from Richardson and other historians–as well as the upheavals most of us personally experienced in the 1960s and 70s– is the lesson that the times we are living through are not unique. We can take some comfort in the fact that we got through those ugly episodes, and reassure ourselves that we can make it through these times as well.

Or–as a part of my brain whispers–maybe this time really is different.

Previous periods of unrest didn’t occur in the face of the existential threats posed by climate change, and new technologies that facilitate mass murder and Orwellian surveillance. Obsolescent rules weren’t bringing federal governance to a grinding halt…

Ultimately, it doesn’t matter which of these analyses is accurate. Whether we’ve been here before or we really haven’t–we need to find a way out. But the solutions available to us will ultimately depend upon understanding what is happening now, and how unprecedented (or not) our challenges are.

Choose your preferred diagnosis–but neither sparks an epiphany pointing to a cure.

The single thing that each of us can do is to vote, and work to ensure that other rational Americans do likewise. Gerrymandering and vote suppression tactics may win the day– but a truly overwhelming Blue turnout would keep the GOP from furthering its march to fascism, and would begin the long and difficult job of mending American government.

Voting Blue in November won’t be an endorsement of whatever Democrats stand for. The party certainly isn’t above criticism. It is, however, largely sane and pro-democracy.

Conservative Republican Adam Kitzinger recently made the same point.

A Blue vote is a vote for women’s reproductive autonomy, for the civil rights of LGBTQ citizens,   for sensible restrictions on firearms, and for prioritizing the interests of working and middle class Americans. We can–and will– argue about the details of those basic commitments, but only if we defeat the unAmerican cult that stands firmly against them all.

This November, we must vote Blue for America.




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.


Did The Founders Get It Wrong? Or Has The World Changed?

This is a hard post to write, because I’ve spent the better part of my adult life–as a lawyer,  as a university professor and (at various times) a columnist– defending and explaining America’s Constitution and Bill of Rights. But I just listened to a fascinating podcast from the University of Chicago’s law school, titled “What are rights?” and the reflections it prompted made me connect some “dots” that I’ve encountered over the years, and ponder questions I’ve ignored or–more accurately–repressed.

In the U.S. Constitution, rights are conceived of as negative. When US was founded, governments were far and away the most powerful threat to individual liberty, and accordingly, the Bill of Rights protected individual rights against government intrusions. (When I was Executive Director of Indiana’s ACLU, I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.)

Other Western democracies don’t necessarily share–or even understand–that  limited and negative conception of constitutional rights. Many years ago, I delivered a paper at a conference in Milan, Italy, that included an analysis of a then-recent Supreme Court case, and an Irish scholar challenged me; he thought my description couldn’t possibly be correct because the American notion of negative constitutional rights was unfamiliar to him.

And that brings me to the podcast that triggered this post. That discussion distinguished between human rights and  constitutional rights.

Placing rights in a country’s constitution requires a significant government infrastructure to enforce them–statutes, courts, the training of those who must police and protect citizens. As a result, as the participants in the podcast noted, we want to be prudent –to constitutionalize only the most important of those human rights.

What is “most important,” of course, depends on the cultural context.

Listening to the podcast sent me back to the Universal Declaration of Human Rights, issued by the United Nations in 1948. That document enumerated what were considered basic human rights at the time–and  it included both negative and positive rights. As the Preamble describes those rights, they include recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family.”

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…

The entire planet is currently watching a government engage in those “barbarous acts,” as Russia continues its assault on Ukraine–an assault that underlines the continued ability of governments to disregard the fundamental right to human and national self-determination.

In today’s world, however, governments are far from the only powerful actors capable of invading the rights of citizens. Multi-national corporations, obscenely rich oligarchs, and angry “tribes” of citizens enraged by loss of privileged status and empowered by “free press” propaganda all pose a significant and growing threat to both human and constitutional rights.

I have become increasingly convinced that a constitution that protects only negative rights–the “right to be left alone”–important as those protections are, is insufficient.

Re-read that paragraph from the Universal Declaration, especially the phrase “freedom from fear and want.” Other Western democracies have constitutionalized positive rights– to education, to health care, and to housing. The Universal Declaration itself includes positive rights, including the right to education, and the right “to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

America’s Constitution and Bill of Rights were major and dramatic innovations for their time. The documents crafted by the nation’s Founders triggered a  philosophical and cultural departure from the then-widespread  belief in the divine right of kings and the concomitant disregard for the rights of common folks.  For the first time, subjects became citizens, and citizens had rights.

We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.