Tag Archives: Constitution

Breach of (Social) Contract

Thanks to ubiquitous smart-phone cameras, social media and Black Lives Matter, the general public can no longer ignore accusations that officers in a number of police departments routinely use excessive force and engage in unconstitutional behaviors.  Investigations by the U.S. Justice Department—most recently in Baltimore— confirm persistent, systemic practices that violate the rights of the citizens we expect police to serve and protect.

For a year following the death of Freddy Gray, the Justice Department monitored the Baltimore police department. The results of that investigation were unambiguous: unconstitutional practices included disproportionate rates of stops, searches and arrests of African-Americans, and excessive use of force against juveniles and people with mental health disabilities. The report attributed these practices to “systemic deficiencies” in training, policies, and accountability structures that “fail to equip officers with the tools they need to police effectively.”

A DOJ investigation of police in Ferguson, Missouri, reached a similar conclusion, finding a “pattern and practice” of discrimination against African-Americans that targeted them disproportionately for traffic stops, use of force, and jail sentences.

Baltimore and Ferguson are hardly unique.

As a practical matter, widespread distrust makes policing infinitely more difficult. Good policing depends upon access to reliable information and co-operation with community leaders; avenues of communication dry up when police are seen as enemies rather than protectors.

Far more troubling than the practical consequences of unprofessional behavior, however, is the damage done to America’s social fabric by what can only be seen as a breach of our most fundamental social contract.

The Enlightenment philosophers who influenced America’s founders proposed a trade of sorts; we call that trade the “social contract.” Citizens would give government the exclusive right to exercise coercive force; in return, government would use that force to protect individual rights—to provide for a society of “ordered liberty,” within which the strong could not prey with impunity on the weak.

We Americans argue constantly about the proper role of government, but there is no serious debate about the state’s obligation to provide for the public safety, or about the right of all citizens to expect equal justice before the law.

When government fails to keep its part of that essential bargain, when it breaches the social contract, it damages the bonds of citizenship and undermines the rule of law.

An old lawyer once told me that there is only one legal question: what should we do? How can our dysfunctional police departments go about changing entrenched, perverse cultures? A few suggestions, drawn from the research literature:

  • Training is key—and currently very uneven. A number of police departments across the country have instituted effective training programs that help individual officers understand implicit bias, calibrate their responses to the magnitude of the threats encountered, and learn techniques that calm, rather than exacerbate, confrontations. Those programs need to be replicated everywhere, but especially in troubled departments.
  • Policies governing police activities need to be clear, effectively communicated to the rank and file, and fairly and strictly enforced. Those policies should also be vetted by lawyers familiar with the Constitution and especially the jurisprudence of the First and Fourth Amendments.
  • Collection of accurate, relevant data is critical. Data is the means by which we measure progress, the standard against which we determine the appropriateness of behavior. It allows self-evaluation, and its public availability also allows other stakeholders to hold police accountable. That data should allow the department to identify problematic officers and intervene before they cross a serious line.
  • Every police department should have a transparent complaint process accessible to citizens, and complaints against police officers should not be evaluated solely by their peers. (In Baltimore, this was evidently a source of considerable—and understandable—distrust.) Complaints should be reviewed by disinterested parties, and policies prohibiting retaliation for filing a complaint should be strictly enforced.

In the long term, departments should focus more attention on the way they recruit and select new police officers. The recruiting process should include psychological examinations to weed out men and women who are likely to abuse authority, or who are otherwise unsuited to the stresses of the profession. And it should go without saying—so I’ll say it—departments should aim for recruits who are representative of the populations they will serve. That sounds easier than it is, but the results are worth the effort.

If Americans still believe in e pluribus unum—if we still want to unite, rather than divide, our many communities—fixing our policing problem is an essential first step.

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Protecting Article XII

Well, Trump visited central Indiana yesterday, for a fundraiser and rally. It only increased the intense speculation about whether he would add Indiana’s embarrassing Governor to his ticket.

In many respects, they would be a political odd couple, but they do have one thing in common: neither of them appears to have much familiarity with, or regard for, the Constitution.

In his recent meeting with Congressional Republicans, for example, Trump emphasized his readiness to protect America’s Constitution–including Article Twelve.

Of course, there is no Article Twelve.

We probably shouldn’t be surprised; to the extent that this particular candidate has policies, a significant number of them are patently unconstitutional. Trump says he would authorize torture, round up and deport immigrants (no mention of due process, which is evidently not a phrase in the vocabulary of the man who brags that he has lots of “good words”), and he has proposed “passing a law” to eliminate the 14th Amendment’s birthright citizenship provision.

It’s mind-boggling that any citizen of the U.S. knows so little about America’s legal framework that he thinks passing a law can change constitutional mandates. (Even Pence and my least civically knowledgable students know better than that.) The fact that the Presidential nominee of a major political party is so ignorant of the most basic rules that constrain all elected officials–rules that he would be charged with defending and obeying if, God forbid, he should win–is stunning.

I know I am a broken record on the subject of civic literacy, but the ability of a man like Trump to garner 13 million votes in the primaries is at least partially attributable to the fact that too many Americans know little or nothing about the country’s legal framework or governing architecture.

The American Constitution was not handed down by God (although some on the far Right actually have made that claim). There are good reasons to consider amending parts of it, and serious political figures and scholars who advocate for such changes–but no credible source suggests that the Constitution is irrelevant and can simply be ignored.

What separates successful countries from theocracies, autocracies and banana republics is respect for the rule of law. The basic premise of the rule of law is that laws and regulations apply to everyone. It is the obligation of all citizens–including Presidents, Governors, and all other elected officials–to follow the same rules that apply to the rest of us.

Actually, it shouldn’t surprise us that Trump doesn’t understand that. He’s lived his entire life convinced that the rules don’t apply to him, and he’s made it quite clear that, if he should be elected, he won’t let pesky rules or constitutional provisions get in his way.

That attitude and ignorance explains why citizens who are civically literate find the prospect of a Trump Presidency terrifying.

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Government, Grants and God….

Sunday seems an appropriate day to consider–once again– the relationship between God and government.

Propublica recently reported on an effort by constitutional lawyers that highlights the increasing conflict between this nation’s commitment to government neutrality in matters of religion and the demands of religious organizations for special accommodations.

The Obama administration has roundly criticized states such as North Carolina and Mississippi for passing laws that allow discrimination in the name of religious freedom. But at the same time, the administration has left in place a 2007 memo from the Bush White House that allows religious charities with federal contracts to discriminate in hiring for federally funded programs.

Now, as Obama prepares to leave office, a group of prominent constitutional lawyers is calling on the Obama White House to revoke the legal memo, which they argue has been used by religious groups to refuse to provide services, including emergency contraception for human trafficking victims, that conflict with their beliefs. Their arguments are detailed in a legal analysis published this morning by Columbia Law School’s Public Rights/Private Conscience Project, which includes contributions of scholars from George Washington, Emory and Brigham Young universities, among others.

A good deal of my research when I first entered academia centered on Bush’s so-called “Faith Based Initiative,” and his effort to contract with religious organizations for the provision of government services to the needy. (In fact, I co-wrote a very boring book on the subject.) There were a number of faulty assumptions that prompted the Initiative, and as the Propublica article explains, such partnerships frequently created conflicts between the organization’s religious mission and the government’s obligation to refrain from funding religious discrimination.

Bush administration lawyers wrote the memo after the Christian charity World Vision, which serves the poor in nearly 100 countries, objected to a nondiscrimination clause in a $1.5 million Department of Justice grant to fund a mentoring program for at-risk children. World Vision argued that it should be allowed to hire only Christian employees for the program and that not allowing the group to do so would put a “substantial burden” on it.

The Free Exercise Clause of the Constitution protects the right of religious congregations and certain other religious organizations to hire and fire on the basis of their doctrinal beliefs–when those organizations are spending their own money. 

Discriminating with taxpayer dollars received via a government contract is a different matter.

When a government agency is requesting proposals from for-profit, nonprofit or religious organizations to partner in the provision of services, it generally requires that the successful bidder agree to obey applicable laws, including civil rights laws forbidding discrimination.

Religious congregations or organizations can choose to bid on a contract or not; if the terms of the award are inconsistent with the organization’s religious beliefs, it need not participate. As a local pastor once put it: “with the government’s shekels come the government’s shackles.”

If you aren’t willing to play by the rules, don’t join the game.

It is unfair to exempt religious bidders from compliance with rules others must obey– in essence, to give such bidders special rights not enjoyed by others.

The lawyers calling on Obama to end such preferential treatment have both the Constitution and fundamental fairness on their side.

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Have You Really Read That Book?

It has a name: confirmation bias. It’s the process of sifting through authorities or evidence to find the nuggets that confirm our beliefs, and ignoring those that don’t.

As we watch the food fight that is our political discourse, I often have to resist the temptation to interrupt this or that pontificator and ask: have you really read that book you are citing?

Mostly, this impulse arises in connection with Ayn Rand. I’ve read pretty much everything she wrote, and I find it absolutely amazing when self-identified “bible-believing” Christians threaten to “go Galt” or parrot something else from Rand–and then more often than not, follow it up with a biblical quote. Rand, of course, was a committed and full-throated atheist, and she wasn’t shy about her contempt for religious folks.

Then there are the economic libertarians who quote Hayek when they oppose government social programs. Hayek was anything but consistent, but in The Road to Serfdom, he devoted several paragraphs (page 148 for those who are interested) to defense of a social safety net, arguing that “There is no reason why in a society which has reached the general level of wealth which ours has attained” a minimum income shouldn’t be guaranteed “without endangering general freedom.”

There are plenty of other examples, but far and away the most selectively read texts are the bible and the Constitution. If you listen to Conservative and Liberal Christians quoting the bible, you would swear they are looking at completely different books.

What’s that line from Simon and Garfunkel? “Man sees what he wants to see, and disregards the rest.”

We all do that to a greater or lesser extent. But education–not to mention intellectual honesty– requires reading, not culling, with an appropriate recognition of the importance of context, and a fair consideration of points with which we disagree.

When we go “cherry-picking,” we miss the other fruit.

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Tradition! Tradition!

No, I’m not about to break into a musical rendition from “Fiddler on the Roof.”

Instead, I’m commenting on a recent post from Juanita Jean at The World’s Most Dangerous Beauty Salon, Inc. where the topic was a recent rant by Bill O’Reilly, accusing the White House of “spitting on traditional Americans” by bathing the facade in rainbow lights after the Court ruled in Obergefell.

As Juanita Jean reminds us

Traditional Americans? As opposed to Untraditional Americans? Well, I’ll be damned, against all odds O’Reilly did in fact find another way to divide this country.

Just think, if this country had traditional people running it we would still have child labor,women without the vote, slavery, poll tax, and a helluva lot of muskets.

Exactly.

In that “traditional” America, women couldn’t enter into contracts or get credit without the consent of their fathers or husbands. Birth control was outlawed under “obscenity” statutes. Abortion for any reason was illegal. Women had no protection from sexual harassment in the workplace, and were routinely paid less than men. Gays were in firmly closed closets. Blacks “knew their place.”

It’s the passing of that “traditional” world, and the loss of those “traditional” family values that (old, white, heterosexual) men are bemoaning when they proclaim that they “want their country back.”

The next time Justice Scalia (“Get off my lawn, you whippersnappers!) goes into a tirade about the need to protect even those “traditions” that most of us now consider fundamentally unfair–“traditions” that violate important Constitutional principles of equality and autonomy–let’s think about the many ways those sacred traditions operated to cement the privileges enjoyed by un-self-aware, self-important (white, male) curmudgeons like Bill Riley and Antonin Scalia.

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