Tag Archives: Constitution

Talking the Talk, Avoiding the Walk

Tea Party types love to talk about the Constitution. Evidently, the only thing they like more is evading its requirements.

George W. Bush showed the way. With his aggressive use of signing statements, he avoided that pesky “veto override” problem. (Recall the tactic: he would sign a bill he didn’t like, rather than vetoing it, but he’d issue a signing statement to the effect that he wouldn’t enforce the law if he didn’t feel like doing so. That “veto by another name” avoided an override vote by Congress.  Mission–i.e., end run around the Constitution– accomplished!)

Today’s Congressional zealots are doing George one better. As Robert Reich recently pointed out,

The Constitution of the United States does not allow a majority of the House of Representatives to repeal the law of the land by de-funding it (and threatening to close the entire government, or default on the nation’s full faith and credit, if the Senate and the President don’t come around).

If that were permissible, no law on the books would be safe. A majority of the House could get rid of unemployment insurance, federal aid to education, Social Security, Medicare, or any other law they didn’t like merely by deciding not to fund them.

Like it or hate it, the Affordable Care Act was passed into law by affirmative votes of both Houses of Congress. It was signed (without the crossed fingers of a Signing Statement) by the President, who subsequently ran for re-election on a record that prominently included it and who handily won. Its constitutionality has been upheld by the Supreme Court.  There are not nearly enough votes to repeal it using the proper process.

But none of that matters to the arrogant ideologues who want to circumvent the Constitution they claim to revere by failing to fund the law of the land.

The truth of the matter is, the only Constitutional provision they really care about is (their version of) the Second Amendment.

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We’re All Becoming Texas

My husband says I’ve been in a bad mood since 2000. I’m entitled.

On Monday, the Republican-led Texas House passed HB 1076 , a bill that would ban state agencies from enforcing any new federal gun laws, including background checks. The self-satisfied know-nothings who voted for this bill are very pleased with themselves.

Talk about embarrassing. Every student who participated in the We the People competition I referenced earlier this week would know better.

I don’t know whether this bit of unconstitutional stupidity is the product of grandstanding or ignorance, but really–how much dumber can state lawmakers get? Granted, Texas is in a league of its own, but there are plenty of other states–largely but not exclusively in the south–where similarly ridiculous measures are being solemnly debated and enacted. (Next-door Louisiana, where several loony laws championed by boy Governor Bobby Jindal have been struck down by the courts is a case in point. And the Indiana General Assembly keeps trying to equal its signal accomplishment–passage of a law in 1897 changing the value of pi.)

Read my lips: nullification runs afoul of the Supremacy Clause. In language even Texas legislators should be able to understand, that means that there is a provision in the U.S. Constitution that says federal laws trump inconsistent state laws. States don’t get to decide which federal laws they’ll obey.

I’m so tired of these posturing morons–and so disappointed in the voters who elected them. Gerrymandering can only explain so much.

America is currently experiencing the “perfect storm”–paranoia and anti-intellectualism have combined to destroy any semblance of rationality.  The adults have left the room; the inmates are running the asylum.

We are left with only self-parody.

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Much Better

Yesterday was day two of the We the People competition, and we judged another 14 teams. Although there were a couple of substandard performances,  most of the students we saw on Day Two ranged from impressive to phenomenal.

The opening question these teams had to answer was hardly a model of clarity. “In Federalist 51, Madison famously asserted that ‘it is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.’ In what ways do the Bill of Rights and the amendments protect individuals from oppression by its rulers?”

In the process of considering that question, we posed such ancillary inquiries as: what did the Founders see as the source of our rights? What is selective incorporation? What was the purpose of the 9th and 10th Amendments? What is the difference between negative and positive rights? What is the difference between procedural and substantive due process? Why are property rights important? and many more.

The best teams answered these and other questions in depth, displaying a highly sophisticated understanding of the philosophical origins and historical context of the Constitution and the Bill of Rights. At times, they made genuinely profound observations; one student, in a discussion of Madison’s description of majority and minority factions noted that size alone should not determine whether a faction is a majority or minority–that we should consider as well the power wielded by that faction. Another, during a discussion of incorporation (the application of provisions of the Bill of Rights to state and local governments) opined that such application was particularly important because smaller governmental units can more easily be dominated by special or powerful interests.

Unlike Day One, students on yesterday’s teams didn’t hesitate to criticize court rulings, or even to disagree with what James Madison said in Federalist 51.

Most of the students were high school juniors and seniors. However, after a very good presentation by one team, we discovered that the students in that team were high school freshmen, a fact making their accomplishment particularly impressive. It was obvious that–for all of the students–the process of studying the material, preparing themselves for a public examination of their knowledge, and co-ordinating responses within their teams had sharpened their skills and given them a degree of self-confidence and poise unusual for those so young.

Today, the top ten teams will compete in sessions held at the U.S. House of Representatives. If yesterday’s performance was any indication, it will be very hard to choose an overall winner. On the other hand, all these students are winners, because they understand their country’s history and government far better than most citizens.

These kids already know more than most of our lawmakers.

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Getting It Backward

In a recent article about the experiences of gay Supreme Court clerks, I came across the following paragraphs:

Justice Antonin Scalia, joined by Rehnquist and Justice Clarence Thomas, has authored some of the most caustic dissents against gay legal rights. In his dissent in Lawrence v Texas, Scalia said the majority had “signed on to the so-called homosexual agenda … directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Asked last month in an interview about his dissents in past gay-rights cases, voiced from the bench as well as in his written opinions, Scalia said he was merely reading the Constitution, which he says does not cover a right to same-sex relations: “Where does it come from?” he said. “This is a trendy view of the current society elite. It’s not right to impose it on everybody else. It’s a democratic question. If you want to permit homosexual sodomy, then pass a law.”

This betrays a profound misreading of the Constitution and our most basic approach to the role of government–a misreading that Scalia himself would scorn in a different context.

One of the very few things the Tea Party folks get right is their insistence that rights precede government. Their formulation is that rights are “god-given”–I won’t go that far, but I agree with the Founders that humans have rights simply by virtue of being human, that we are born with “inalienable” rights. The Bill of Rights is a list of actions that government is forbidden to take—actions that would violate those antecedent rights.

The language in the Ninth and Tenth Amendments–amendments that Scalia the “textualist” rarely mentions–is pretty explicit on the point, providing that failure to “enumerate” a right in the preceding Amendments is not to be taken as evidence that the right was not protected. That language was included in order to calm the fears of folks like Alexander Hamilton, who argued that the government of delegated powers that the Founders had created had been given no power to infringe fundamental liberties, and worried that a written Bill of Rights would inevitably omit some important ones.

The Constitution doesn’t explicitly protect a right to have children, or a right to travel, or any number of other rights the Court has had no difficulty recognizing as protected. We would rightly consider it absurd if a Justice of the Supreme Court said something like “If you want to allow people to have children, pass a law.” A majority of the Court–unlike Scalia–understands that we don’t comb through the Constitution to find out whether government, in its infinite wisdom, has conferred a particular right on We the People.We look to the Constitution to see whether government has been given the right to interfere with a particular liberty.

And I don’t find anywhere in the Constitutional history or text where government is given the power to decide who has human rights.

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Thank You for Proving My Point….

It seems that each new day brings new evidence that too many Americans haven’t the foggiest idea what’s in the U.S. Constitution or what its provisions mean.

Exhibit #1: the large cross erected on public property in Dugger, Indiana. The huge cross with “Jesus Saves” prominently printed on it has been challenged by Americans United for Separation of Church and State. The town fathers–evidently recognizing a loser when they see one–agreed to move it rather than spending tax dollars on expensive and hopeless litigation. But residents are up in arms. My favorite quote came from the fellow who said people who were offended could just look elsewhere.

How much do you want to wager that he’d feel differently if the symbol on public property praised Satan? or Allah? or Karl Marx?

This is a recurring battle. As the courts routinely point out, the rules are pretty clear: government cannot sponsor or endorse religion. Government cannot sponsor or endorse atheism, either. Government must stay neutral when it comes to the expression of political or religious beliefs. Allowing a religious symbol on public property is an impermissible endorsement of that religion–exactly the sort of favoritism the Establishment Clause of the First Amendment forbids.

This sort of conflict is easy enough to resolve. Move the cross to private property. People will still see it.  Folks who reject this relatively simple fix are really giving away the game–no matter what they claim, they don’t just want people to see their message. They want government to endorse their message. They want special status and recognition for their religious beliefs.

Exhibit #2. Micah Clark. Again.

The AFA has its panties in a bunch–as usual–because the Indiana Chamber of Commerce is considering opposing the mis-named “Marriage Protection Amendment.”

Why oh why would the Chamber “want to see marriage unraveled and destabilized” in Indiana? Micah wants to know. Here’s a clue, Micah–that “destabilization” hasn’t happened anywhere that same-sex marriages are legal. Quite the opposite, in fact–Massachusetts, the first U.S. state to recognize same-sex unions, has one of the lowest divorce rates in the country.

Leaving aside the hysterical rhetoric and tortured “evidence” in the AFA’s Weekly Email, one sentence leapt out at me: “It is the people of Indiana who should decide on marriage.”

No, Micah, it isn’t.

In our system, we don’t get to vote on other people’s fundamental rights. We don’t get to vote to segregate black people, we don’t get to vote against interracial or interfaith marriages. We don’t get to vote to abolish jury trials, or to override restrictions on search and seizures. We don’t get to vote to make people Baptists or Episcopalians.

Justice Jackson said it best, many years ago, in West Virginia Board v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Maybe you don’t agree that people who are different from you should have the same civil liberties and rights that you enjoy. Fine. Don’t agree with it. But it is the law of the land, and you really ought to know that.

I wonder what new evidence tomorrow will bring….

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