Tag Archives: Constitution

I See Ignorant (Elected) People

Fair-minded Americans have welcomed the recent wave of court decisions striking down bans on same-sex marriage. The LGBT community and its allies have been positively euphoric.

Of course, the homophobes and those who pander to them have had a somewhat different reaction.

Here’s the thing: people who don’t approve of gay people, or whose religious beliefs somehow require them to see gays as sinners and same-sex marriage as an abomination, are entitled to those beliefs. It’s a free country. And elected officials are entitled to disapprove of judicial decisions, although they are not free to disregard them. All of these debates over what is best for the country, what constitutes fair play, what discrimination looks like…all of the cacophony that surrounds social change is both predictable and within the bounds of democratic deliberation.

Abject ignorance is not.

Which brings me to Jan Brewer, Governor of Arizona, and her rant in the wake of court rulings that invalidated her state’s ban on same-sex marriage.

“It is not only disappointing, but also deeply troubling, that unelected federal judges can dictate the laws of individual states, create rights based on their personal policy preferences and supplant the will of the people in an area traditionally left to the states for more than two hundred years.

 Simply put, courts should not be in the business of making and changing laws based on their personal agendas. It is not the role of the judiciary to determine that same-sex marriages should be allowed.”

Sorry, Governor Brewer, but your civic ignorance is showing. Courts are absolutely “in the business” of “supplanting the will of the people” when that will violates the Constitution. As I pointed out on this blog yesterday, the Founders of this country created an independent federal judiciary (one that was not elected) and provided those judges with lifetime tenure, because judges were supposed to be responsive to the Constitution and the rule of law—not to the electorate.

Congress and the Executive branch were supposed to respond to majority preferences; the judiciary, however, was supposed to safeguard individual and minority rights and to ensure that the other branches did not violate the Constitution in their eagerness to pander to popular passions.

I have repeated this basic premise of American constitutional law over and over—in my columns, my blogs and my classrooms. Let me do so again.

The Bill of Rights answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these and other very personal matters—we individuals decide these things for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves, free of interference by government scolds.

The Bill of Rights also limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. A majority of your countrymen cannot vote to make you a Baptist or an Episcopalian; they don’t get to vote on your reading materials or your political opinions or your choice of a life partner.

People who don’t understand the most basic operation of our system—like Arizona’s Governor Brewer, or Indiana’s Mike Pence—misunderstand and misrepresent court decisions that uphold the right of individuals to live their lives as they see fit without sacrificing their right to equal treatment under the law.

The fact that we keep electing people like this is what I find “deeply troubling.”

Same-sex marriage doesn’t threaten the republic. What threatens the republic is the election of people who are totally ignorant of the Constitution they are sworn to uphold.

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Justice Stevens Weighs In

Retired Supreme Court Justice Stevens has a new book out in which he makes the case for six Amendments to the Constitution.

  1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
  2. Political Gerrymandering – Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
  3. Campaign Finance – Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
  4. Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
  5. Death Penalty- (Amend the 8th Amendment) Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
  6. The Second Amendment – (Amend the 2nd Amendment) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

Of course, the likelihood of passing any amendments in this politically polarized age is fanciful; lawmakers can’t even manage to pass what should be relatively noncontroversial legislation.

Nevertheless, these eminently rational suggestions provide plenty of food for thought.  Not to mention, an implicit condemnation of our unwillingness to come to terms with the realities of modern life.

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Civics Education Should Start with Legislators

I’ve been pretty hard on Indiana’s General Assembly, and I’d argue deservedly so, but I certainly don’t want to give anyone the impression that we Hoosiers have cornered legislative incompetence. Over at Peacock Panache, for example, Tim Peacock reports on a bill introduced in Arizona, in the wake of Governor Brewer’s veto of that state’s badly misnamed “Religious Liberty” bill.

HB-2481, also called “Arizona’s First Freedom Act,” seeks to protect those solemnizing marriage in Arizona to protect them from ceremonies they do not want to participate in. Specifically, the GOP is marketing the legislation as protecting ministers from having to marry LGBT couples as it violates their freedom of religion.
Are the bill’s sponsors really that ignorant, or are they just playing to the perceived ignorance of their constituents?
The First Amendment’s Free Exercise Clause already allows ministers to limit religious services as they alone see fit. No minister can be forced to preside over the nuptials of people in violation of his or her beliefs. Free Exercise allows any cleric to decline to perform any wedding: intermarriages, marriages of divorced people, same-sex unions….whatever his or her doctrine proscribes.
These clerical decisions cannot be overruled by government, thanks to the Separation of Church and State that so many conservatives insist we don’t have.
No statute is necessary to preserve this right. Any first-year law student who didn’t know that would be unceremoniously booted out of law school, and any lawmaker who is ignorant of so basic a principle of American law should forfeit re-election.
I really wish the people demagoguing about religious liberty would visit a high school class on the Constitution and discover what rights they actually do and don’t have. That won’t happen, of course, because they are thoroughly uninterested in accuracy. They are pursuing an agenda.
And people with an agenda read the Constitution the same way they read their bibles, if they read them at all: very selectively.
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A Question for Tom DeLay (Yes, THAT Tom DeLay)

Since getting out of prison, Tom DeLay has made periodic forays into the political spotlight. (You might have expected–in light of his still-recent incarceration and general humiliation–that he would show some shame or remorse, but he appears incapable of either.) Every once in a while, there will be a reported “sighting,” accompanied by an idiotic quote, all of which has been worth  ignoring, perhaps with an eye roll or shrug.

But The Raw Story has a quote that is men-in-the-white-coats jaw dropping.

Former House Majority Leader Tom DeLay (R-TX) this week warned Americans to remember that God “wrote the Constitution” based on the Bible.

During an appearance on John Hagee Ministries’ Global Evangelism Television (GETV) network on Wednesday, host Matt Hagee asked the Texas Republican where the country had gone wrong.

“I think we got off the track when we allowed our government to become a secular government,” DeLay explained. “When we stopped realizing that God created this nation, that he wrote the Constitution, that it’s based on biblical principles.”

Lest you think I am making this up, you can watch the video at the link. (To be fair, DeLay isn’t the only lunatic recasting the nation’s charter as God-given. Remember “My God is bigger than their God” General Jerry Boykin? He recently claimed that Jesus wrote the 2d Amendment.)

This is probably a good place to start humming the theme from Twilight Zone.

Anyway, here’s my question for former Representative DeLay: If you believe that God wrote the Constitution, as well as the Ten Commandments (tablets containing those pesky prohibitions against stealing and bearing false witness), shouldn’t you be just a teensy bit worried about your immortal soul, since you rather consistently violated both?

Just asking.

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Winners and Losers and the Democratic Process

There’s a common saying among political geeks (of whom I am admittedly one): elections have consequences.

This is shorthand for the essential bargain of democratic systems. We The People agree not to wage war and/or insurrection, and instead to conduct contests at regular intervals, during which we try to convince a majority of those who will cast a vote to see things our way. Those contests–called elections–are supposed to be fair (we aren’t supposed to use trickery or intimidation to keep eligible citizens from the polls, for example), and when they are over and the votes are counted, the contenders are supposed to abide by the results.

Now, the losers don’t have to like the results. They don’t have to agree with the wisdom of the electorate. They can console each other by agreeing that the voters were stupid or venal or misled. But in our system–in any legitimate system–the losers’ recourse isn’t sabotage; it’s the next election.

Yesterday’s headlines made it glaringly clear that a substantial portion of the GOP, locally and nationally, is no longer willing to play by those rules.

In Indiana, voters elected Glenda Ritz by a very substantial margin–a margin exceeding that of Mike Pence, who was elected Governor. The Republicans (who hold all the other offices) aren’t happy that they lost this one. Fair enough. But they have proceeded to cheat, to use the offices to which they were elected to undermine the authority of the new Superintendent, and to strip the office of the powers it had when their guy occupied it. They weren’t–and aren’t–willing to work with her until the next election, when they can try to convince voters to elect their candidate. Instead, they are doing everything they can to thwart the will of a majority of Indiana voters and undermine the democratic process.

Meanwhile, in the House of Representatives, we have a group of Representatives–a minority even within their own party–who don’t like a law that was duly passed in a prior legislative session. A majority of Representatives and Senators voted for that law, after many months of debate. It was signed by the President, and its constitutionality was upheld by the Supreme Court. The wisdom of that law was a central issue in the ensuing Presidential campaign–an election Obama won by more than five million votes, and an election in which a million more people voted for Congressional Democrats than for Congressional Republicans.

Poll after poll confirms that a majority of Americans either favors keeping the Affordable Care Act or wishes it had gone farther. But even if that weren’t the case–even if their hatred of this particular legislation wasn’t so irrational and disproportionate–that’s not the issue. In a constitutional republic, the Tea Party goons responsible for shutting down the government cannot justify circumventing democratic processes and holding the nation hostage.

I’m not a particular fan of Thomas Friedman, but his recent column was exactly right. This is a coup. It isn’t an attack on the Affordable Care Act. It is a frontal assault on the democratic process, on government legitimacy, and on the Constitution.

It’s a refusal to play by the rules, an effort to insure that–if they don’t like the outcome–elections won’t have consequences.

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