Tag Archives: Constitution

(Some Of) We The People

I’ve been reading The Words That Made Us, a magisterial history of the origins of the Constitution, written  by Yale Constitutional Law professor Akil Amar. Amar’s previous books include The Bill of Rights and America’s Constitution: A Biography, both of which I read and found enlightening. (For example, in the latter book, Amar documents the extent to which the Amendments passed after the Civil War–especially the 14th–represented a significant reconstruction of the nation’s legal framework.)

This new book is also copiously and carefully documented, and as a consequence, it can be a bit of a slog; on the other hand, I’m encountering a number of heretofore unknown (by me, at least) details about the process that produced our Constitution, and the personal characteristics of the men who fought over it, theorized about it, and negotiated it.

Which brings me to a point on which most of those Founders apparently agreed–sovereignty in the U.S. rests with “We the People.” Not with the individual states, certainly not with Kings or Presidents–but with the people. We can now be critical of the worldview that confined definition of “the people” to free White males, and we should celebrate the later expansion of “the people” to include women and people of color–but we shouldn’t minimize the importance of what was then a truly revolutionary concept of sovereignty.

Interestingly, Amar points out that after the “constitutional conversation” over ratification took place, most colonies eliminated property ownership requirements for voting on the new charter. (Something else I’d previously not known.)

“The people” was–for that time–an inclusive concept.

America today faces a very dangerous tipping point–brought to us by a party, really a cult or cabal–that wants to change the concept of sovereignty and the definition of “people.”

We talk and write a lot about democracy, but what we mean by that term varies. As a number of pundits have pointed out, autocrats around the globe often claim to be “democratically” empowered, because their countries hold “elections.” (Note quotation marks.)

The men who crafted America’s Constitution broadened the then-definition of People, and saw democracy as the authority of those people. Today, faux patriots are engaged in narrowing it.

Gerrymandering carves out particular “people,” whose votes will outnumber and void the voices of others. The Electoral College–which Amar reminds us was an unwise concession to the slave states–operates to nullify the votes of a majority of the people who cast Presidential ballots. And as the Committee investigating  the January 6th insurrection is discovering, a not-insignificant number of elected and appointed Republicans–including Trump– fully intended to mount a coup and overturn an election decided by the people that numerous investigations (and Trump’s own dishonorable Attorney General) confirmed was free and fair.

The introduction to the U.S. Constitution doesn’t say “We (some of) the People.” It doesn’t say–as far too many of today’s faux patriots evidently believe– “We the (White Christian) People.” It says “We the People.”

If sovereignty is to be vested in We the People, all people’s votes must be counted and all people’s voices must be heard. That isn’t happening. (Okay, it’s never really happened, but we have previously moved in that direction.) To the contrary, we’re moving backward, thanks to a well-organized effort to subvert democratic equality and the very idea of “one person, one vote.”

As Barton Gellman reports in the linked article,

For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.

It is past time to reassert the sovereignty of ALL of We the People, and take back the country we thought we inhabited.

But I Repeat Myself…

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

_________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I know I rant. Thanks for indulging me.

 

The Right Kind Of Culture War

When we come across references to “culture war,” most of us–whatever our political orientation– immediately think of issues raised by the political right. (I tend to envision the fundamentalist Christian Right.) However we picture the culture warriors, the battles being fought are almost always focused on so-called “family values” (women’s reproductive autonomy, homosexuality, etc.) and a “law and order patriotism” that is performative and superficial–a stubborn “my country right or wrong” approach. Plus, of course, a generous dollop of racism/White Supremacy.

Jennifer Rubin deconstructs those issues in a recent column for the Washington Post.

Republican cultural memes are galling. The GOP has made a national issue out of something that does not exist: teaching critical race theory in public schools. Republicans claim to be on the side of the police and the military, but members of the MAGA cohort have regularly scorned Capitol and D.C. police officers who defended them on Jan. 6, smeared the military as “woke,” and even called the chairman of the Joint Chiefs of Staff, Gen. Mark A. Milley, a “pig” and “stupid.” Republicans claim to be “real” Americans but make traitors (e.g., Confederate generals, Ashli Babbitt) into martyrs.

But Rubin goes beyond a critique of these Rightwing tropes, arguing that a neglect to respond to Republican demagoguery and descent into anti-American authoritarianism equates to a failure to defend the ideal of multiracial democracy. She wants to see the rest of us move to reset and redefine America’s culture war.

Rubin wants Democrats, especially, to “flip the script”– to campaign on “democratic values,” and to point out that Republicans have become a party defending violent thugs and traitors.

Democrats defend the Constitution, which conservative “originalists” used to claim as their own, while Republicans support the man who sought to overturn the election (“just say the election was corrupt + leave the rest to me” he told the Justice Department, seeking pretext for his Jan. 6 gambit).

Her basic charge (which is accurate) is that Republicans who continue to echo Trump’s “big lie” or who voted not to certify election results, or who pretend that January 6th was not an insurrection, are  behaving in ways that are anti-American.

Whose side was my opponent on? Why wouldn’t he/she vote to investigate the worst domestic terrorist attack in decades? Republicans have never been shy about challenging Democrats’ patriotism, and here Democrats actually have grounds to call out Republicans for refusing to both defend the Constitution and respect the votes of their own constituents. Democrats should also challenge their opponents to pledge to accept election results even if they lose and denounce any threat of violence to overturn the will of voters.

In a paragraph that really resonated with me, Rubin also advocated for policies to shore up civic knowledge. She suggests the establishment of a “democracy corps” that would pay young people “to set up civics programs, teach media literacy, serve as poll workers and engage in other pro-democracy activities.” She urges Democrats running for state and local office to endorse mandates for civics instruction in grades K-12.  And she quite properly advises them to call out the racists and crackpots trying to get schoolteachers to stop teaching about the Ku Klux Klan and the Rev. Martin Luther King Jr.

The bottom line–as Rubin obviously recognizes–is the danger in allowing the Right to define the terms of America’s culture wars. There’s an old saying among lawyers to the effect that “he who frames the issue wins the debate.” Those of us who reject the Right’s stance on its issues do so because we understand their positions to be contrary to what this country and its constitution are all about–in a word, we find the misogyny, racism, homophobia and the rest to be profoundly anti-American.

Rubin is absolutely right when she argues that we need to do more than just reject that anti-Americanism. We need to wage our own culture war on behalf of the democratic norms and equal civic status required by the  Americanism we embrace.

Those of us who recognize and accept the American Idea need to enlist–it’s a war worth fighting.

Oh Texas…

In the years before 2016, when I needed an  example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are proper defendants to a lawsuit. (What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.

Pride Month Musings

June is Pride Month. It wasn’t so long ago that today’s widespread recognition of–and support for– Pride would have been unthinkable. In my adult lifetime, there have been few changes in social attitudes as swift or as welcome as the legal and social acceptance of LGBTQ Americans.

That said, progress inevitably invites blowback. We are particularly seeing it in punitive legislation directed at transgender Americans. But we are also seeing continued opposition to gay equality from the same Christian Nationalists and religious fundamentalists who are determined to ignore America’s history of racism and other bigotries.

The good news is that anti-gay attitudes are far less pervasive among young Americans; in fact, sociologists and scholars of religion attribute much of the exodus by young people from fundamentalist congregations to distaste for their theological homophobia. Among older, conservative, religious Americans, however, LGBTQ citizens still encounter considerable bias–and when sexual orientation is coupled with HIV, no matter how well controlled, considerable stigma.

It’s tempting, during Pride month and especially during the local celebrations and parades, to focus on the considerable progress made by the gay community, and that progress is well worth celebrating. But it’s important to couple the celebration with recognition of remaining challenges.

For that matter, the contemporary lessons to be drawn aren’t  limited to LGBTQ issues.

Over the years, Black Americans, gay Americans, Jewish and Muslim Americans and other minorities have achieved significant legal protections: civil rights and anti-discrimination laws, and (in the case of LGBTQ folks) recognition of same-sex marriage have all gone a long way to level the legal playing field.

Hearts and minds have proved to be a harder nut to crack.

Too many Americans approach issues of inclusion and equality from a “zero-sum” perspective. The fear of “replacement” (more on that in upcoming posts) is an example. The evident calculation is that If “those people” get rights, my rights have been correspondingly diminished. The history of the gay rights struggle provides an excellent example; remember the hue and cry over “special rights”? The argument was that laws requiring equal legal treatment of gay men and lesbians were really an award of “special rights,” and the implication was that straight people didn’t have those “special rights.” 

When the Founders hammered out the U.S. Constitution, one of its most significant breaks with the past was the establishment of a legal system that would evaluate citizens based upon behavior, not social status or identity. Even when America hasn’t lived up to the principles set out in our constituent documents—and we frequently haven’t—the  official American vision has been one of a society in which group identity is legally irrelevant, a society where an individual’s conduct is the only proper concern of government.

In other words, in America, individuals are supposed to be rewarded or punished based upon what they do, not who they are. Race, religion, gender, sexual orientation and similar markers of group affiliation are supposed to be irrelevant to our legal status. No matter how meaningful those affiliations may be to us personally, the government may not award or restrict our rights based upon them.

Although they seem unable to understand or accept it, that basic element of America’s rule of law protects Christian Nationalists as well as members of minority populations.

The larger challenge we face is how to internalize that legal premise. How do we socialize our children into a worldview that sees other human beings as other human beings, and accepts or dismisses them individually, based upon their actions and behaviors–evidence of the content of their characters–not on their skin color, their sexual orientation or their theological preferences.

We have a way to go…

Happy Pride Month.