Tag Archives: Constitution

Process And Progress

At a recent Town Hall in Indiana, Congresswoman Victoria Spartz responded to a citizen’s question/challenge by asserting that “people who break the law aren’t entitled to due process.” Spartz has a long history of ignorance and bizarre behaviors, but this particular example–while undoubtedly endearing her to an unconstitutional administration–reflected her incredible unfitness for public office.

Why is due process an essential component of the rule of law?

David French recently addressed that question in a New York Times essay,

The defense of civil liberties is hard even under the best of circumstances. Thousands of years of human history tell us that we are not naturally inclined to protect the rights of our opponents, much less the rights of people we believe to be violent and dangerous.

That’s why the defense of the Bill of Rights requires both practical and moral arguments. The practical defense is often the most effective: Protect the rights of others that you would like to exercise yourself. After all, one day you might not be in control.

In other words, poison gas is a great weapon until the wind shifts…

French goes on to argue that the best arguments for due process transcend self-interest–that due process guarantees protect “the inherent dignity and worth of every human being.” 

Americans have provided due process even to the nation’s wartime enemies. French quoted a federal judge for the travesty that Nazis had been given better treatment under the Alien Enemies Act than people suspected of being members of a Venezuelan gang.

Numerous media outlets have reported on the arrest and rendition of Kilmar Abrego Garcia, who was accused of gang membership and sent to prison in El Salvador. Abrego Garcia was in the U.S. legally, and in 2019 a court had barred the government from deporting him to El Salvador. An official of ICE admitted, under oath, that he’d been deported due to “administrative error,” but claimed the government couldn’t get him back “because he is no longer in U.S. jurisdiction.”

The judge found that “there were no legal grounds whatsoever for his arrest, detention, or removal…. [H]is detention appears wholly lawless” and “a clear constitutional violation.” 

If the government can simply assert–without the need to provide even flimsy evidence–that anyone they consider offensive or inconvenient is a “criminal,” then no one is safe.

America’s darker history is instructive: those most aware of the danger posed by lack of due process are the people who remember Jim Crow, when Black Americans in the South received less protection than the Nazis referenced by the judge. 

A guest essay in the New York Times made that point graphically. 

There’s something about this moment that is shocking to many in my orbit. Watching a security camera video of a graduate student — from Tufts, my alma mater — who is legally in the country being picked up in broad daylight by masked government agents and hustled into an unmarked car. Witnessing people lose their jobs with no warning or justification. The presumption underlying these attacks on diversity, equity and inclusion programs that somehow only white men are qualified to do many jobs. Denying lawyers access to federal buildings so they can’t represent their clients properly. Seeing communities from Cincinnati to El Paso live in a state of fear from the police and bands of vigilantes.

“How can this be happening in America?” these people ask. “This is not the country I know, the country of rights and laws and due process.”

Needless to say, these people are almost all white and liberal and are not used to feeling this fear of arbitrary, brutal state authority. But this moment, the one that was explicitly promised by Project 2025 and Donald Trump when he was a candidate, looks a lot like what my grandmother experienced every day for much of her life.

What Indiana’s civically-illiterate Congresswoman fails to understand is that due process for people accused of criminal activities is a foundational concept in the U.S. Constitution. It is a principle of fundamental fairness–a requirement that  government  demonstrate an accused’s guilt with probative evidence before imposing punishment.

Adherence to due process for everyone is what makes social progress possible. It is what protects Americans against the would-be autocrats who want to run roughshod over the individual liberties of those who oppose them. 

Due Process is mentioned twice in the Constitution — in the Fifth and Fourteenth Amendments, both of which prohibit government officials from depriving an individual of “life, liberty, or property without due process of law.” 

Free speech and due process stand in the way of Project 2025. We need to defend them from MAGA’s ignorance and malevolence. 

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The Time Is Now

I woke up yesterday to heartening news: the liberal candidate had won the race for Wisconsin’s high court, and won it handily, despite the twenty-five million dollars spent by Elon Musk to support her opponent. (Actually, that is an inaccurate statement–she won, at least partly, thanks to Musk’s obscene financial support of her opponent.) And although Democrats lost the special races in Florida, they vastly over-performed in those deep Red districts.

Cory Booker had just stepped down from making the longest recorded speech in Senate history–a speech in which he laid out the myriad dangers posed by a lawless and enthusiastically corrupt administration.

News of these events came as civic activism has continued to rise. Town halls across the country have been filled with angry Americans. As I write this, a nationwide protest warning the administration to keep its Hands Off our governing institutions and constitutional order is scheduled for this Saturday, April 5th. That event will join an unprecedented number of prior protests: the Harvard Crowd Counting Consortium reports that “in 2025 our research shows that street protests today are far more numerous and frequent than skeptics might suggest.” In fact, “since 22 January, we’ve seen more than twice as many street protests than took place during the same period eight years ago.”

There’s a tendency to discount the impact of these gatherings, but they are extremely important: not only do they offer “aid and comfort” to citizens who might otherwise consider themselves alone in their righteous anger, research confirms that such events make both participants and onlookers much more likely to vote.

I’m not aware of any research documenting the effect of lengthy and impassioned Senate speeches, but it certainly seems that the incredible performance by Cory Booker on the Senate floor should resonate with the millions of Americans who are disheartened and terrified by the daily disasters caused by this insane administration–and  evidently it did. The Hill reported that more than 350 million people had liked Sen. Cory Booker’s floor speech on TikTok live as he approached 25 hours, and according to the Washington Post, before he was through, his speech had been liked on TikTok 400 million times.

Those are stunning–and heartening– numbers.

There was a lot to like in Booker’s oration, as Heather Cox Richardson reported. Booker began by invoking John Lewis’ admonition to make “good trouble.”

Standing for the next 25 hours and 5 minutes, without a break to use the restroom and pausing only when colleagues asked questions to enable him to rest his voice, Booker called out the Trump administration’s violations of the Constitution and detailed the ways in which the administration is hurting Americans. Farmers have lost government contracts, putting them in a financial crisis. Cuts to environmental protections that protect clean air and water are affecting Americans’ health. Housing is unaffordable, and the administration is making things worse. Cuts to education and medical research and national security breaches have made Americans less safe. The regime accidentally deported a legal resident because of “administrative error” and now says it cannot get him back.

Booker ended his marathon speech by reminding listeners that, in America, We the People are sovereign.

It starts with the people of the United States of America—that’s how this country started: ‘We the people.’ Let’s get back to the ideals that others are threatening, let’s get back to our founding documents…. Those imperfect geniuses had some very special words at the end of the Declaration of Independence…when our founders said we must mutually pledge, pledge to each other ‘our lives, our fortunes, and our Sacred Honor.’ We need that now from all Americans. This is a moral moment. It’s not left or right, it’s right or wrong.

Millions of Americans are recognizing the truth–and the import–of that last sentence.

We are not engaged in political policy disputes. The folks offering admonitions about “listening to MAGA’s discontents,” or “finding middle ground” have missed what has become ever more obvious, missed the point with which Booker concluded. The choice we face is not between policies A and B and policies C and D. We are not choosing between efficiency and waste. What we face is a stark choice between Constitutional governance and autocracy, between human-kindness and cruelty, between destruction and continuity, between progress toward civic equality and a return to the 1950s and Jim Crow. For Christian Americans, it’s a choice between actual Christianity and Christian Nationalism. For women, it’s a choice between individual autonomy and “the problem that has no name.”

This is a moral moment.

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I Told You So…

Okay, okay…I hate smart-alecks who say “I told you so”– and now I’m one of them.

During my twenty-one years as a university professor, I constantly talked (well, ranted) about the American public’s lack of civic literacy–Americans’ gob-smacking lack of knowledge of our national history and constitutional structure. I established a Center for Civic Literacy at IUPUI (now IU Indianapolis), where researchers documented the gaping holes in public understanding of even the most basic elements of the country’s legal and political structures.

That public ignorance is largely responsible for our ignorant, embarrassing and very dangerous President.

David French connected those dots in a recent “conversation” among opinion writers for the New York Times. The writers had been discussing whether people cared about Trump’s assaults on America’s most fundamental philosophical commitments, and French pointed to the elephant in the room (pun intended): civic ignorance.

I really wish those of us who follow politics very closely understood more, because there’s a another question besides “Do people care?” and that is “Do people know?”

French noted that one thing that distinguishes Trump from other presidents “is the extent to which he has weaponized and exploited civic ignorance.”

One of the things that I think we’re learning is how much the American experiment has depended on the honor system. That presidents of both parties, with varying degrees of truthfulness and honor, by and large, maintained American norms and did not explicitly weaponize American ignorance in the way that Trump has.

I think what Trump and the people around him have realized is that he can do wild things, like some of the executive orders that will thrill MAGA and, of course, enrage his opposition. But then outside MAGA, there won’t be a ripple that any of this occurred at all.

Those American norms were rooted in the political philosophy that undergirds the Constitution and the Bill of Rights–a particular approach to the purpose of government, and especially to the importance of restraints on the exercise of government power. When a majority of the population doesn’t understand that philosophy and/or the centrality of those restraints, would-be dictators emerge.

I have previously posted about the importance of language and the effects of imprecise usage. An example is the way in which the term “limited government” has been transformed from the meaning given to it by the Founders into a belief in small government. The early American public insisted on passage of a Bill of Rights as a condition of ratifying the Constitution, and that Bill of Rights incorporates their insistence upon limiting the power of the state. (And since we are talking about words and their usage, I will note that “the state” in this context means government.)

If most citizens understood  America’s foundational principles, today’s media propaganda would be far less effective–audiences would recognize when claims being made are incompatible with America’s constitutional structure. Fox News and its clones rely heavily on the civic ignorance of their viewers.

In our system, government is supposed to be limited (not small). Among other things, it cannot tell citizens what they can say, what they can read, what they must believe. Government may not base laws on any religion. It may not interfere with citizens’ activities in the absence of probable cause. It must guarantee criminal defendants due process, and may not impose unreasonable penalties on those who are subsequently found guilty.

In the wake of the Civil War, the 14th Amendment added further limitations. Probably the most important was the mandate of equal protection–government cannot treat different kinds of citizens differently. (That amendment also included a provision that anyone born on American soil is a citizen–a provision that can only be changed by Constitutional amendment.)

The original Bill of Rights also explicitly limited the authority of the federal government by providing that powers not expressly granted to the federal government are retained by the states and/or the people.

Trump and his racist MAGA movement stand in opposition to virtually the entire Bill of Rights. It is very likely they have absolutely no familiarity with, or understanding of, that document. Worse, the election of Trump is evidence–as if we needed it–that the majority of Americans (especially those who didn’t bother going to the polls) were unaware of the degree to which a Trump victory would be inconsistent with America’s founding principles; evidently ignoring the campaign rhetoric that clearly pointed to that inconsistency and threatened those principles.

Too many Americans simply fail to understand that–far from making America great– Trump is intent upon destroying the genuine greatness to which America has aspired.

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About Project 2025

This morning, I will speak at the Unitarian church in Danville. I was asked to address Project 2025, Here’s what I will be telling the congregants.

_________

I’ve done a lot of research recently into the emergence of the White Christian Nationalism that forms the basis of the MAGA movement. Project 2025 does a great service for anyone who wants to know what life would be like if the 40% of Americans who identify fully or partially with those beliefs manage to win control of Congress and the Presidency—especially at a time when the Supreme Court has been captured by ideologues who are sympathetic to their aims and apparently unwilling to follow longstanding constitutional precedents.

PROJECT 2025 was produced mainly by the Heritage Foundation, but it had the assistance of over 100 other conservative think tanks. (If you go online, you can find lists of them. They represent a longstanding, well-organized and well-funded effort to claim the country for their particular tribe of White Christian males.) Project 2025 is the product of over 400 contributors and writers, including the 240 former Trump administration authors who wrote 31 of the 38 chapters of the 920 page document.

Despite Trump’s effort to separate himself from Project 2025, it mentions him over 320 times, and in 2023 he referred to it as “great work. Our roadmap.”

Those who produced that “roadmap” claim that it would “restore the family as the centerpiece of American life and protect children,” “Dismantle the administrative state and return self-governance to the American people,” and “Defend our nation’s sovereignty, borders, and bounty against global threats.” What that lovely language really means, of course, is spelled out in the details—and whoever coined the phrase “the devil is in the details” might have been referring to Project 2025.

I don’t have time—and neither do you—to go through a comprehensive list of the regressive, and frankly, insane, proposals in this document, but I will hit some of the highlights (or low lights).

The chapter on “DEFENSE OF AMERICA” proposes to “” Restore warfighting as the military’s sole mission.” It proposes to end what it calls “the Left’s social experimentation in the military” by halting the admission of transgender individuals. It would increase the Army by

50,000, bring overseas troops home, grow the Navy and Air Force, and triple the number of nuclear weapons—while withdrawing America from all arms reduction treaties.

Project 2025 would withdraw the U.S. from NATO, and expressly disavow NATO’s Article Five, which is NATO’s mutual defense pact. It also proposes to make our Allies pay for any weapons we might provide them.

With respect to Trade and Foreign Assistance, the Project wants USAID to defund women’s rights provisions in foreign aid initiatives, withdraw from all multi-lateral trade agreements, stop providing financial aid to Ukraine, and institute 60% tariffs on Chinese goods and 10% on all other imports. (Every reputable economist—conservative and liberal—has pointed out that tariffs are a tax on Americans, and that imposing them would cost American families thousands of dollars a year and throw the country into recession. If a future administration actually imposed those tariffs, the economy would tank.)

There’s a lot more in this section, but the effect would be to make the world far less safe, and Americans far less rich.

Moving on…

To the extent that the media has reported on Project 2025, it has focused mostly on the Project’s proposed changes to American governance– especially the plan to replace 50 thousand civil service employees with Trump loyalists. I recently read that the Heritage Foundation is currently “vetting” individuals in order to facilitate that replacement should Trump win.

The replacement of civil service workers, however, is only the tip of the iceberg.

The Project also proposes to eliminate or re-write the First Amendment so that the government can operate on what the authors call “Christian Principles.” Those of you in this congregation, and other Christian clergy, might dispute their interpretation of Christian principles….

The media has also reported on the proposal to eliminate the Department of Education, Head Start, Title 1, & school lunch programs. The less-reported portions of their “education” policies are equally regressive: they would eliminate all diversity, equity and inclusion efforts, and post the Ten Commandments in all school classrooms (they don’t specify which version…probably the Cecil B. DeMille version). They would eliminate any books addressing race or gender from the nation’s classrooms, withdraw federal funding from any school requiring vaccinations, and require states to provide vouchers for religious schools.

They’d also arm teachers and defund NPR and PBS.

As I said, I can’t go through the entire list of Project 2025’s looney-tunes and profoundly unAmerican proposals, but let me just reference a few more: they’d privatize Medicare and TSA, and entirely eliminate the EPA, OSHA, the EEOC and the FDIC.

When it comes to elections, they’d eliminate mail-in ballots, and require federal elections to be done in one day, on paper, with stringent voter ID requirements.

When it comes to how their proposed government would deal with what the Project delicately calls “minorities,” the bigotries become very visible. They’d begin with the immediate mass deportation of undocumented persons that Trump and Vance have promised, ignoring both the inhumanity and the practical impossibility of conducting such a massive effort. Other measures they propose in connection with immigration include construction of internment camps and limiting lawful immigration to 20,000 annually—good luck to any of you who need to hire people to work in restaurants or pick crops or any other jobs disproportionately done by immigrants. They’d deport all the Dreamers (who came as children with their parents, and most of whom have never known another country). They want to end birthright citizenship—which I note would require amending the 14th Amendment– and ban Muslims and Haitians from entering the country. Lest you wonder where the homophobia and misogyny come in, they propose to roll back gay rights, invalidate same-sex marriages, and outlaw transgender rights and no-fault divorce.

Given our recent experience with hurricanes, I thought I’d just end with the Project’s ”Principles Guiding Climate Decisions.” Those “principles” begin with science denial. I guess their version of God will protect them…

Authors of the Project say—and I quote– the “climate is not changing and schools are not to teach that it is.” Since climate change is just a liberal myth, they would eliminate climate and environmental protections, eliminate the regulation of greenhouse gases, and defund FEMA. (I will note that both Mike Braun and Jim Banks—currently running for Governor and Senator—both recently voted against funding for FEMA.) Project 2025 would return management of emergencies to the states. (I imagine even Ron DeSantis might now disagree with that one…)

Project authors want to dismantle the National Hurricane Center and the Office of Oceanic and Atmospheric Research. They would halt all climate research and revoke the Global Change Research Act of 1990. Of course they would once again withdraw the U.S. from the Paris Accords. And they would halt research into electrical vehicles and revoke tax incentives for clean energy.

If even a small portion of this truly insane wish list became reality, the America we inhabit would disappear. Unfortunately, we’d take most of the world down with us.

In my blog, I keep warning readers about the threat posed by a well-organized, well-financed theocratic movement. The small dip into Project 2025’s 900 pages that I’ve just shared should illuminate that threat.

I don’t think it is hyperbole to say that these people hate the America we inhabit. They love an America that existed only in their fevered imaginations. This is a very scary time.

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Braun And The American Idea

If you were hiring someone to manage a manufacturing business, would you hire someone who didn’t know anything about the product your factory produced? What about a nonprofit executive who disagreed with the organization’s mission?

The answers to those questions is pretty obvious, but for some reason, when it comes to government, we don’t require evidence that candidates for office understand what government is and– just as important– is not supposed to do.

As early voting gets underway in Indiana, Hoosier voters are going to the polls to choose between two statewide tickets. One of those is composed entirely of candidates who neither support nor understand America’s constitutional system. Beckwith, Banks and Rokita are out-and-proud Christian Nationalists waging war against the First Amendment’s Separation of Church and State. They simply reject the system put in place by the Founders. Braun–who seems motivated only by a desire to be important–rather clearly doesn’t understand the role of government or the structure of American federalism.

One of the TV ads being run by Jennifer McCormick–who does understand those things–shows an earlier interview with Braun in which he enthusiastically endorsed the Dobbs decision that allowed state-level governments to ban abortion. When asked if he would also support criminalizing the procedure, he said he would. Less well-known was his opinion, shared in another interview, that decisions about same-sex and inter-racial marriages should also be returned to the states.

Evidently, Braun has never encountered the Fourteenth Amendment, which–among other things– requires state and local governments to govern in a manner consistent with the Bill of Rights, and forbids them from denying to their citizens “the privileges and immunities” of American citizenship. For over fifty years, those privileges and immunities have been protected by a doctrine called substantive due process, often called the “right to privacy.” That doctrine confirmed the principle that  “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception (or more recently, the choice of one’s marriage partner) are none of government’s business.

Permit me to slip into “teacher mode.”

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was  explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.

The Court held that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights.  Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.

Not the federal government. Not state governments. Individual citizens.

I will refrain from pointing out the impracticality of “states rights” on these intimate issues. (If you are in an inter-racial marriage and move to a state that forbids such unions, are you suddenly unmarried?) The more fundamental point is that allowing any unit of government to decide such matters violates the Bill of Rights and the libertarian philosophy that underlies our constitutional system.

Indiana’s MAGA GOP is offering voters an entire statewide slate of men who neither understand nor respect the Constitution–men who are applying for jobs without demonstrating any familiarity with the job descriptions.

Voters who feel comfortable allowing Indiana’s deplorable legislature to decide who they should be allowed to marry or whether they should be required to reproduce should vote for Braun and his merry band of theocrats. The rest of us will cast our votes for the Democrats.

Note: I voted early afternoon yesterday, on the first day of early voting. I stood in a fast-moving line for nearly an hour. If this year’s election will be decided–as I believe it will be–on turnout, it was a fantastic sign. 

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