Tag Archives: Constitution

Down Memory Lane With Mike And Roy

Roy Moore’s victory yesterday in Alabama’s GOP primary occasioned a walk down memory lane by NY Magazine.

As the magazine’s article reminded us, Moore–crazy as he is–isn’t the only radical conservative peddling a noxious stew of theocracy, white nationalism and assorted bigotries: others identified included Stephen Bannon, Sean Hannity, Ann Coulter, Ben Carson, Sebastian Gorka, Sarah Palin, Steve King, Mark Meadows, and Jim DeMint.

And, of course, Mike Pence. Which will surprise exactly no one who lives in Indiana.

As the article notes, “Pence has spent most of his political career aligned with Roy Moore as a stalwart of the Christian right.” He only looks safe and/or sane when he’s standing next to our unhinged President.

Pence nearly wrecked his gubernatorial tenure in Indiana in 2015 by pushing through a “religious liberty” bill that made his state a national pariah and the subject of major business boycotts before he agreed to modify it. But long before then, as a leader of hard-core conservatives in the U.S. House, Pence was notable in the extremism of his commitment to conservative religious ideology. For one thing, he co-sponsored “personhood” legislation designed to make fertilized ova citizens for purposes of constitutional protection. For another, he was closely associated with the shadowy conservative Christian power-elite group “The Family” (a.k.a. “The Fellowship”) along with Jim DeMint, Sam Brownback, Mark Sanford, and other fire-breathing members of the cultural right.

Political opponents like to point out that Pence failed to pass any legislation during his 11+ years in Congress, as though that is a telling criticism.  In my opinion, we should be profoundly grateful for that failure, given the sorts of legislation he sponsored. For example, Pence was one of the original co-sponsors of what was called at the time the “single most outrageous bit of right-wing legislation introduced in Congress since the days of segregation”: the Constitutional Restoration Act of 2005.

[S]ome of the wingnuttiest members of the Senate have decided to attempt to turn us into a Christian Reconstructionist theocracy once and for all and have introduced the Constitutional Restoration Act.

Though it is described as a “bill to limit the jurisdiction of Federal courts in certain cases and promote federalism,” reading its actual summary proves enlightening as to its true intent: This legislation seeks to make it possible for Congress to remove any judge who refuses to acknowledge that the basis for all law, liberty, and government is God.

We can all guess whose version of God is the “author” (according to Mike and Roy)–or perhaps only the “inspiration for”– the U.S. Constitution.

Not so incidentally, the measure would have eviscerated the Constitution’s Supremacy Clause, and made state court decisions–not decisions issued by that pesky Supreme Court– the final word on “God’s” law.

The co-authors of this modest proposal? They were none other than Roy Moore, along with his longtime sidekick Herb Titus, who was once the vice-presidential nominee of the openly theocratic U.S. Constitution Party.

Pence’s areas of agreement with Moore are extensive: both would strip LGBTQ citizens of any and all legal rights (Moore has advocated recriminalizing same-sex relations); both supported the above-referenced “Personhood Amendment” to the Constitution that would outlaw all abortions by making a fertilized egg the legal equal of a fully-grown human; both believe that Muslims are dangerous terrorists, and that American Muslims are intent upon imposing “sharia law” on Americans; both would defund Planned Parenthood…the list goes on.

The fact that Mike Pence is widely seen as an improvement over the current President–and viewed as a “mainstream” Republican–tells us all we need to know about this President and the current iteration of the Republican Party.

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It’s the Constitution’s Fault!

As I watch the unfolding train wreck that is the Trump Administration, and talk with friends and colleagues, it’s increasingly clear that most of us are more mystified and appalled than angry. (Not that we aren’t angry…)

How, we ask each other, could anyone be so ignorant of the most basic rules that govern our society? How could someone whose background was entertainment and whose entire focus was ratings be so oblivious to massively negative public opinion? How can anyone get to the ripe old age of 70 without even a shred of self-awareness?

And of course, the recurring question: why would anyone vote for this ignorant buffoon? It’s not like his abundant deficits weren’t obvious during the campaign.

I don’t have answers to most of those questions, but I think a recent article in the Independent, a British newspaper, sheds some light on Trump’s path to constitutional crisis.

The article was one of many that attempted to evaluate Trump’s first 100 days in office; it reported on an interview with the President’s favorite source of “news.” (Note quotation marks.)

Donald Trump has blamed the US constitution for the problems he has encountered during his first 100 days in office.

In an interview with Fox News to mark the milestone, the Republican called the system of checks and balances on power “archaic”.

“It’s a very rough system,” he said. “It’s an archaic system … It’s really a bad thing for the country.”

Lest we shrug this off as just another “open mouth, let stuff come out” incident in Trump’s stream-of-(semi)consciousness mode of utterances, I would simply point out that everything he has done in office has been consistent with contempt for, or ignorance of, America’s charter, and his unwillingness to be bound by the rule of law–indeed, his clear lack of comprehension of what “rule of law” is or means.

I think I’m going to add a codicil to that question about American voters. Why would anyone vote for a man who quite clearly does not understand or even pretend to value the legal premises of the country he was proposing to lead–a man who is unwilling to give even lip service to the U.S. Constitution?

To date, I am unaware of any Republican criticism of Trump’s comment.

What happened to all the posturing bloviators who constantly profess their undying devotion to a constitution they clearly don’t understand? Why aren’t they registering shock and concern at the President’s airy dismissal of America’s founding document?

What happened to all those pompous assholes who whip a small copy of the Constitution out of their pockets at the slightest provocation? Where are the members of the NRA’s Church of the Second Amendment? Where are all the pious frauds who constantly promote their  ahistorical version of the First Amendment’s protection of religious liberty?

Surely they are all appalled. Where are they?

And a more pressing question: why are Congressional Republicans continuing to enable and defend a man who not only dishonors the Constitution by word and deed, but also poses an unmistakable threat to American democratic institutions at home and the country’s stature abroad?

Can you imagine their response if Obama had said or done any of these things?

Of course, Trump’s white. (Okay, orange, but close….)

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Your Answers?

This is the time of year that professors both love and hate–the semester is coming to an end, and most of us are very ready for that, but it is also when lengthy research papers are due and final exams given.  Those papers and exams must be graded  (and unfortunately, those grades must often be defended to students convinced that their efforts entitled them to higher marks).

I give students in my law and policy classes a take-home final. That’s partly to make up for a pretty brutal midterm, and partly to see whether the materials and concepts we’ve covered have caused them to think critically about the enterprise of government and the elements of good policy. Has the class helped them fashion a coherent philosophy of governance? Has it given them an appreciation of the complexities involved and skills required?

Here are the questions I have given them this semester; they were to choose one and write an essay responding to that choice. How would you answer them? (I won’t grade readers’ answers…promise!)                                                       

  1. Earth has been destroyed in World War III. You and a few thousand others—representing a cross-section of Earth’s races, cultures and religions—are the only survivors. You have escaped to an earthlike planet, and are preparing to establish a new society. You want to avoid the errors of the Earth governments that preceded you. What institutional choices do you make and why? Your essay should include: The type/structure of government you would create; the powers it will have; the limits on its powers, and how those limits will be enforced; how government officials will be chosen and policies enacted; and the social and political values you intend to privilege.

2. The First Amendment protects religious liberty. Over the past few years, Americans have engaged in heated public debates about the nature and extent of that liberty. Some people argue that requiring employers to provide health insurance that includes contraception, or requiring businesses like florists or bakers to serve same-sex customers, is a violation of the religious liberty of those whose religions teach that contraception or homosexuality is a sin. Others disagree. What is the proper definition of “religious liberty”—that is, how far should the free exercise of religion extend in America’s diverse religious landscape? What religiously-motivated actions can government legitimately limit, and what are the justifications for those limits?

3. Donald Trump’s campaign slogan was “Make America Great Again.” Without addressing the personal characteristics of either candidate in the November election, and without opining whether America was or was not greater in the past, describe the characteristics, values or other attributes that you believe make a country “great.” In other words, what are the attributes of a great country? How does it behave toward its own citizens and toward other countries? What changes to current American policies or laws do you believe are needed to achieve greatness as you define it?

Go!!

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About Those Threats…

Trump has issued a number of threats against so-called “sanctuary” cities and states, and his supporters (most of whom, ironically, would be considered “states’ rights” supporters) have declared such local designations illegal.

So it was interesting to read a recent column by Ilya Somin, a conservative legal scholar, analyzing the relative constitutional rights involved.

President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have “sanctuary” policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.

The arguments and links in the foregoing paragraph, of course, are policy arguments. They detail why the proposed policy is stupid, but (as I frequently remind my students) just because something is stupid and/or mean-spirited and/or counterproductive doesn’t mean it is also unconstitutional.

After listing the reasons the policy is ill-considered, however, Somin does address the question of constitutionality.

Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal “commandeering” of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.

But what about Trump’s threat to withhold federal funds from cities and states that refuse to help him implement his deportation program? According to Somin, while the President may be able to withhold some funds, the threat is far less “formidable” than it may seem.

Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.

It’s been truly  heartening to see how hobbled Trump has been by his complete ignorance of the way American government actually works. (For that matter, his obvious ignorance of the way law in general works helps to explain why he has been involved in–and lost–so many lawsuits.)

In an update to his original column, Somin highlights a “states’ rights” irony that might be filed under “be careful what you ask for.”

It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court’s decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a “gun to the head” of a state or local government.

Short version: If the federal government can’t force states to expand Medicaid, neither can it force states to help deport undocumented people.

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What To Do, What To Do…

I’ve told this story before, but it bears repeating.

I teach my law and public policy classes through a constitutional “lens,” because I am convinced that students must understand America’s fundamental legal framework and philosophy if they are to approach policy proposals with the necessary analytic tools.

I often introduce the Free Speech provisions of the First Amendment with a purposely silly question: “What did James Madison think about porn on the Internet?” Usually, the student I’ve asked will laugh and respond that Madison never encountered the Internet; that then allows us to discuss the expressive values Madison and other Founders were trying to protect, and the ways in which modern courts attempt to protect those values in a world that the Founders could never have envisioned.

But several years ago, when I asked a student that question, she looked at me blankly and said “Who’s James Madison?”

That experience–unfortunately, not an outlier–led to the establishment of the Center for Civic Literacy at IUPUI, (CCL) and research to determine how much Americans really know–or don’t– about the country’s history, economy and legal system, and the political and social consequences of low levels of civic knowledge.

If anyone doubts the corrosive effect of civic ignorance, I suggest watching this year’s political campaigns.

There is clearly little we can do that would immediately improve the abysmal state of public discourse as it is practiced today, but in addition to research into the causes and consequences of civic ignorance, CCL has been working with the League of Women Voters and the Indiana Bar Foundation, among others, to produce materials that we hope will help address the issue going forward.

The Center and the Bar Foundation have published a book called “Giving Civics a Sporting Chance.” The book points to the pervasive social and cultural supports that reward knowledge of sporting events and trivia, and makes the argument that we need to institute similar mechanisms that would reward and increase civic knowledge.

Young Americans who can tell you who threw out the winning pitch in the 1939 World Series are capable of answering equally obscure questions about the Articles of Confederation, but American culture privileges sports knowledge over civic literacy. The book suggests a number of mechanisms for bringing civics “into the sunlight”–from relatively “do-able” measures like increasing participation in the excellent “We the People” curriculum and competition, to “wouldn’t it be wonderful” suggestions for a new GI Bill that would reduce student debt while increasing civic information and engagement.

Information about the book’s availability will be posted to the Center’s website shortly.

Another publication–originally an ebook, but just this month available in paperback--is a mere 36 pages of essential civic information. Titled Talking Politics? What You Need to Know Before Opening Your Mouth, it includes “What everyone should know about the Constitution and American legal system,” “What everyone should know about the American economic system,” “What everyone should know about science,” and “What everyone should know about politics.”

Obviously, all of those subjects cannot be comprehensively covered in 36 pages, but the book provides basic facts and settled definitions that can allow people to argue for their policy preferences more productively and convincingly.

I encourage readers of this blog to examine these two products, and if you find them useful–and I think you will–disseminate them broadly. Discuss the recommendations in “Giving Civics a Sporting Chance”with school curriculum officials. Read Talking Politics in your book club. Whatever.

I think thoughtful Americans of every party and political philosophy will agree that–whatever else America’s current election campaign may signify–the nomination of Donald Trump by a major party could only occur in a country where significant numbers of citizens have no understanding of the way their nation’s government works, or the rules that constrain elected officials.

That nomination should be a wake-up call.

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