Tag Archives: equality

About That Rule Of Law…

On Tuesday, I spoke at the Zionsville Christian Church. I had been asked to define what is meant by the “rule of law,” and to explain why it is important. This is what I said. (Warning: longer than my usual posts.)

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Those of you who read my blog know that I refer a lot to the rule of law—how important it is, and how very negative the consequences are when governments ignore or violate it. What I don’t do often enough, however, is explain just what the rule of law is, and why it is the absolute bedrock of democratic governance.

Depending upon how you count them, there are seven essential elements that together make up the rule of law.

You’ve undoubtedly heard the first—the one most often cited by scholars and lawyers. That’s legal supremacy, which means that the law—the same law—applies to everyone. Another way to say that is “No one is above the law.” The importance of equal application of the law to everyone should be obvious; if elected or appointed officials weren’t restrained by the law, if We the People had to obey the laws but those in authority didn’t have to, the result would be what we lawyer types like to call “arbitrary and capricious” behavior by government officials, who would be free to use their authority in unfair and unjust ways, as monarchs used to do.

In democratic countries pledged to the rule of law, we don’t have kings who are free to ignore the rules the rest of us must live by.

The second element is really another version of the first. If the law applies to everyone, then everyone is entitled to equality before the law.  In an ideal “rule of law” system (which I’m compelled to admit we’ve never had), everyone would have equal access to—and equal treatment under– the laws of the land. Things like social status, wealth, elective office, and popular or  unpopular political beliefs wouldn’t affect access to or operation of the legal process or the way the laws are applied to individuals. The rule of law requires us to work toward a system in which laws and legal procedures are applied to all individuals equally and without favoritism.

To take an example from the headlines, under the rule of law, a government accusation that someone is a “bad actor” or a gang member, or “a threat to America” cannot relieve that government of its obligation to demonstrate the validity of such accusations in a court of law before it can punish that individual. That is what is meant by “due process of law” and due process is foundational to a fair and impartial legal system.

The third element of the rule of law is accountability. In other words, We the People are entitled to know what our government is doing, and whether it is functioning in a constitutionally appropriate manner. In the United States, a major element of accountability is built into our constitutional structure—what most of us learned in high school government classes as “checks and balances”—the division of legal authority among the Executive, Legislative and Judicial branches of our government.

We are now seeing what happens to accountability and the rule of law when one branch of our government fails or refuses to exercise the powers granted to it by the Constitution—when the legislative branch allows the executive to appropriate and abuse powers that have been vested in the legislature. Future historians—assuming we have them—will identify that cowardly failure as a rejection of both elective responsibility and the rule of law, and a betrayal of the Constitution and of the individual legislator’s oath of office.

The fourth element of the rule of law is its interpretation and application by a fair and independent judiciary. Federal judges have lifetime appointments because the Founders’ believed that judges should be shielded from political passions and reprisals, that they should be able to apply the law and facts as they see them, free of pressure or bias.

That judicial independence has recently come under an unprecedented attack, when the administration arrested a Wisconsin judge who failed to knuckle under to demands by ICE to turn over a defendant in her courtroom.If Judges can be arrested for disagreeing with the executive branch about their authority,–in this case, evidently because the judge found ICE had an incorrect warrant–we no longer have checks and balances or the rule of law.

The Founders’ goal of judicial independence remains important, but it’s true that in today’s America we have encountered a consequence to lifetime appointments that the Founders didn’t foresee; Americans today live much longer and there is consequently much less frequent judicial turnover –especially at the Supreme Court. That concern is heightened by evidence that at least two members of the current high court are ethically compromised.

The lower federal courts, on the other hand, have been functioning  properly; those courts have issued a number of important decisions upholding the rule of law and restraining Trump’s flood of unlawful and unconstitutional executive orders. Unfortunately, within the legal community there is substantial concern about the degree to which our compromised Supreme Court will uphold those lower court decisions. Should it fail to do so, we risk losing the rule of law.

If we do emerge from this terrifying time with our legal system largely intact, imposing 18 year term limits on Supreme Court justices—as many scholars have suggested– would achieve the Founders’ goal of insulating jurists from political pressure, while also minimizing the risks of judicial senility. (If the legislature once again operates properly, judges shown to be ethically compromised can be impeached.)

The fifth element of the rule of law is certainty. Laws must be clear and understandable in order to allow citizens to know what behaviors are expected of them. When you read that a law has been found “void for vagueness,” it’s because some legislative edict has failed to clearly explain what behavior is being banned or required. Certainty also requires continuity and predictability—meaning legislators should avoid frequent and dramatic changes in the laws that make it hard for citizens to keep abreast of their responsibilities.

The sixth element, again, is implied by others: all citizens must have access to the legal system and the means of redress. That means all are entitled to legal representation and to fair trials with impartial judges.

And finally, the seventh element echoes the protections in America’s Bill of Rights: the rule of law must protect the rights that have been found essential to human liberty—what we call “human rights.” As I used to tell my students, it’s important to recognize that the Bill of Rights does not confer rights on American citizens—it forbids the government from interfering with the inalienable rights that we possess by virtue of our humanity.

Those basic rights include freedom of speech and religion, the right to due process, the freedom to go about our business without arbitrary interference, freedom from excessive, cruel or unusual punishments, the right to trial by jury, the right to be treated equally by our government…in other words, the right to live under a regime that respects the rule of law.

Everything I’ve said so far has revolved around longstanding notions of fairness and morality, but I would be remiss if I didn’t point out that there are also very practical reasons for supporting the rule of law. Mountains of scholarly research have confirmed that countries where the rule of law is established and respected are more stable and have far more robust economies. As we are seeing, uncertainty and chaos are bad for business!

Attacks on the rule of law like those we are currently experiencing destroy trust in government, undermine the economy, and promote conflict and violence.

No government is perfect, and ours certainly can be improved. But  improvements have to be made with fidelity to the Constitution and the rule of law—not from the willful destruction of the underlying philosophy of this country, a philosophy I call “The American Idea.” It is that Idea, that philosophical framework, that insistence on the primacy of the rule of law, that has fostered social progress and truly made America great.

It’s up to We the People to protect it.

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A Chilling, Albeit Correct, Diagnosis

I don’t know who Thomas Zimmer is, nor do I recall how I came to read his February 8th “Democracy Americana” newsletter. 
It’s likely some reader shared it after one of my periodic rants about racism and MAGA’s takeover of the GOP, but that’s just a guess. The headline and subhead are pretty clear indications of the subject-matter: “Domination or Dissolution, Rule or Ruin: The Right is fantasizing about secession, ‘national divorce’ and civil war–because they will not, under any circumstances, accept pluralism.”

The article began by focusing on the Texas border standoff, and the growing divide between Red and Blue states.
 
The Right loves to talk about secession and civil war. And quite a lot of people on the center and on the Left seem to have come to the conclusion that “blue” America would indeed be better off if we severed all ties with “red” states and unburdened ourselves from the reactionaries who are evidently not on board with the idea of egalitarian multiracial pluralism. I get all the frustration and exasperation. But would you feel comfortable making this argument – let them go do their own thing! – to the tens of millions of people who happen to live in those Republican-led states, who want nothing to do with the reactionary project, but would suffer most under authoritarian white Christian patriarchal rule?
 
There really aren’t that many hard-core secessionists. Zimmer pointed to the much-hyped (at least on the Right) “Take Our Border Back” trucker convoy. Organizers of what they dubbed “God’s Army” predicted the participation of 700,000 trucks. They got about 100– “A sad, paltry contingent of hardcore MAGAs and White Christian nationalists. It’s hard sometimes not to dismiss the rightwing threat to democracy as just silly, pathetic cosplay from a bunch of grifters, buffoons, and lost souls.”
 
The situation is quite a bit more serious than that, unfortunately. Not only is there simply no guarantee that grifters and buffoons can’t bring down democratic self-government. The trucker convoy fiasco also doesn’t change the fact that the border standoff is acting as a catalyst for the pervasive lusting for civil war and ubiquitous fantasizing about secession on the Right. This isn’t confined to extremist online fringes either. South Dakota Governor Kristi Noem, for instance, fabulated we would “have a war on our hands” were president Biden to federalize National Guard troops. Kevin Stitt, the Republican Governor of Oklahoma, argued that the Texas National Guard was merely “protecting their homeland” from the federal government. And Representative Clay Higgins posted on Ex-Twitter that “the feds are staging a civil war, and Texas should stand their ground.” These aren’t just outlier voices. Texas, with the explicit support from 25 Republican governors, is deploying precisely the argument slave states used to justify secession.
 
Zimmer delves into the history of the Civil War, and provides a great deal of context for the situation we face, but the essential point he makes is one that I have reluctantly concluded is at the very foundation of America’s current polarization:  significant parts of the political Right steadfastly refuse to accept what he delicately calls “multiracial pluralism.”
 
In short, they’re committed racists.
 
At its base, the Rightwing populism that has largely displaced conventional conservatism is a creation of what Zimmer calls “a reactionary counter-revolution” by aggrieved defenders of “real America” against nefarious “woke, globalist elites.” One example he cites is the White Power movement of the early 1980s. Members embraced the ideas outlined in the “Turner Diaries,” a neo-Nazi novel published in 1978 that has served as a central reference point for the extreme Right ever since.
 
In the book, a small group of dedicated white supremacists manages to bring down the federal government and, ultimately, over the span of a little more than a century, restore white domination not only in America, but across the globe. Such ideas, as historian Kathleen Belew has emphasized, have influenced the tactics of fascistic militias like the Proud Boys that led the charge on January 6. And the white supremacists who regard the future depicted in the “Turner Diaries” not as a dystopian nightmare, but as an aspiration, have moved much closer to the center of conservative politics: On January 6, they stormed the Capitol literally in service of the man who is still, three years later, the leader of the Republican Party.
 
Zimmer provides a number of other examples, and the (lengthy) essay is worth reading in its entirety. I came away from it convinced of his central point: in November’s elections, both federal and down-ballot, too many voters will still be fighting  America’s Civil War. 
 
November’s elections will pit MAGA’s White Christian Nationalists against Americans who support pluralism, inclusion and the American ideal of civic equality. Pretty much everything else is window-dressing.
 
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Citing To Me

Sunday, I spoke to the Danville Unitarians about equality and the 14th Amendment (which has been getting some public interest lately, thanks to the question whether Section 3 disqualifies Trump). As I was preparing that talk, I looked back through some old posts, and came across one from April of 2016–before Trump and his distorting effect on the issues of governance and public policy that now form the bulk of posts here.

It’s probably tacky to repeat myself, but the post raised a fundamental question with which we continue to wrestle–namely, what does genuine liberty look like–so I’m repeating it here (and yes, sort of taking the day off…)

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In my classes, when I get to the 14th Amendment’s Equal Protection Clause, I generally begin with a discussion of what Americans mean by “equality,” and the perceived tension between equality and liberty.

Clearly, if we are talking about the operation of law and civil government, we are bound to understand the call for equality as limited to those areas in which government operates, and not surprisingly, there is a pretty substantial literature exploring what it means to be “equal before the law”– to have equal civil rights and liberties.

It isn’t simply us lawyer types, either; political philosophers have argued for years–okay, centuries!–that government efforts to nudge us in the direction of egalitarianism–that is, in the direction of material equality— diminish liberty and are ultimately immoral, because advocates of redistribution tend to ignore the issue (near and dear to more libertarian hearts) of merit or desert.  Those who see it that way read the famous Marxist admonition: “from each according to his ability, to each according to his need” as support for expropriation — a system where productive and conscientious workers would be taken advantage of by the ineffectual and/or lazy.

Americans have a deeply-rooted cultural belief that people are poor because they are morally defective, and it didn’t start with the Tea Party. (Actually, it started with Calvin.) I once traced Indiana’s welfare system back to the 15th Century English Poor Laws- laws that prohibited people from giving “alms” to “sturdy beggars.”

So here we are, stuck, policy-wise.

We have a longstanding (and probably insurmountable) concern about the fairness of taking money from people who have (at least theoretically) earned it in order to help people who–for whatever reason–have much less. In more selfish eras (like now) that distaste for redistribution jaundices our approach to taxes for even the most traditional civic purposes. Paying more taxes than absolutely necessary (i.e., police, fire and maybe the sewer system)  is seen as state-sponsored theft, or at the very least, a deprivation of liberty.

As I previously noted, it isn’t difficult to find people arguing that efforts to narrow the gap between rich and poor (redistributive taxes) are assaults on liberty. If there is one thing Americans appear to agree upon, it is the pre-eminence of liberty over other values. What we don’t see discussed very often, however, is what we mean by liberty–and the extent to which government is responsible for ensuring that citizens can enjoy it.

Liberty, at its most basic, is my ability to live a life of my own choosing, so long as I am not harming someone else–my right to live where I like, marry whom I love, choose or reject a church, vote for candidate A rather than B, raise my children as I see fit, opt to spend the weekend at a museum or in the garden….But there are a lot of people in my state (as elsewhere) who do not have liberty in any meaningful sense, that is, the ability to make even these minimal choices, because every waking moment is spent simply trying to survive.

Every person struggling to make ends meet is not a “sturdy beggar,” trying to pull a con. (If research is to be believed, relatively few are.) But rather than trying to change this stubborn cultural meme, or reminding ourselves of the multiple ways we all benefit when societies are more equal materially, let me ask a different question.

If a 10% increase in your taxes could be shown to  allow every American to enjoy at least a minimal level of liberty/self-determination–would you pay it?

Or is the liberty you cherish limited to your own? If it’s the latter–I think that’s privilege you are valuing, not liberty.

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A Speech Worth Revisiting

It’s probably a sign of just how suspicious I am these days of quotations on the Internet, but when I saw a post on Daily Kos that purported to be a lengthy portion of a speech by Ulysses Grant, I checked with two separate academic sites to confirm its accuracy.

It turned out it was accurate–and prescient.

Grant might have been commenting on our current national woes when he spoke in Des Moines in 1875.

I do not bring into this assemblage politics, certainly not partisan politics, but it is a fair subject for soldiers in their deliberations to consider what may be necessary to secure the prize for which they battled in a republic like ours. Where the citizen is sovereign and the official the servant, where no power is exercised except by the will of the people, it is important that the sovereign — the people — should possess intelligence.

The free school is the promoter of that intelligence which is to preserve us as a free nation. If we are to have another contest in the near future of our national existence, I predict that the dividing line will not be Mason and Dixon’s, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other.

Now in this centennial year of our national existence, I believe it a good time to begin the work of strengthening the foundation of the house commenced by our patriotic forefathers one hundred years ago, at Concord and Lexington. Let us all labor to add all needful guarantees for the more perfect security of free thought, free speech, and free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color, or religion.

Encourage free schools, and resolve that not one dollar of money appropriated to their support, no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that the State or Nation, or both combined, shall furnish to every child growing up in the land, the means of acquiring a good common-school education, unmixed with sectarian, pagan, or atheistic tenets. Leave the matter of religion to the family altar, the church, and the private school supported entirely by private contributions. Keep the church and state forever separate. With these safeguards, I believe the battles which created the Army of the Tennessee will not have been fought in vain.

Grant eloquently addressed what I have called “civic literacy”–the need of a “sovereign people” to be both patriotic and informed. As is clear from the context of his words, Grant’s definition of “patriotic” is very different from the jingoism displayed by today’s MAGA Republicans. True patriotism requires an allegiance to the principles of America’s Constitution and Bill of Rights, an allegiance based upon a proper understanding of those documents and the philosophy that animated them.

Grant was very clearly aware that such allegiance and understanding comes from instruction “unmixed with sectarian, pagan or atheistic tenets”–that such religious precepts must be left to the family, the church and private schools “supported entirely by private contributions.”

An eon ago–in 1980–I was a Republican candidate for Congress. I even won a Republican primary.  Despite the fact that I was pro-choice and pro-gay rights, among other things, I was considered–and considered myself– to be a conservative. Then and now, I believe the proper understanding of that label includes a commitment to conserve the values that Grant enumerated in that long-ago speech.

I continue to believe that labeling today’s GOP “conservative” is a travesty that works to normalize what is a truly frightening and very unconservative approach to politics and American governance.

True conservatism requires a commitment to uphold the individual liberties protected by the Bill of Rights: freedom of speech and press, Separation of Church and State, freedom of conscience and personal autonomy, among others.

I don’t know the proper label for the MAGA fanatics who have taken over what was once my political party. Culture warriors? White Christian Nationalists? Fascists? Today’s GOP is probably a blend of all those, together with a heavy sprinkling of people who are too civically-illiterate to understand how very unconservative–and dangerous– their party has become.

Grant eloquently defended the extension of “equal rights and privileges to all men, irrespective of nationality, color, or religion.” Today’s Republicans would call him “woke,” and angrily reject him (along with Lincoln) as “anti-American.”

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A Sword Or A Shield?

Religion has been in the news a lot lately, which probably shouldn’t surprise us. When the times we live in are tumultuous–and I certainly think this era qualifies–people cling to and defend their “eternal verities.”

Of course, that raises an interesting question: what, exactly, qualifies as religion? I think the “eternal verity” descriptor gets at something (excuse the phrase) fundamental: an unshakable belief system based largely on faith in matters that are not susceptible to scientific verification. Political ideologies–including tribal bigotries–fall within that definition.

Unshakable and unprovable beliefs, of course, are the source of a great deal of mischief–and often, tragedy. I’ve posted previously about the tensions within evangelical circles, about some Christians’ insistence that Muslims and Jews cannot be “real Americans,” about the ongoing religious debates over reproductive rights, and (more frequently) about the concerns of America’s founders that led to the religion clauses of the First Amendment. 

With respect to those concerns, an observation by Barney Frank during a recent interview comes to mind.(I’ve loved Barney Frank ever since he held a Town Hall during the fight over the Affordable Care Act, and responded to a looney-tune woman comparing Obama to Hitler and the ACA to Nazism by asking her “On what planet do you spend most of your time?”)

In the interview, Frank was asked the following question: “Some on the left have expressed concern that the 6-3 conservative supermajority on the Supreme Court could erode LGBTQ rights in the name of religious liberty. Are you concerned at all about this?”

Frank responded with his trademark rhetorical acuity. “Yes I am. They’re not going to undo marriage. But I do worry about entities that get public tax money to perform services—they should not in my judgment be allowed to exclude people because of some religious disapproval of their sexual practices. It’s the sword versus the shield. The shield, in legal terms, is a doctrine that prevents other people from intruding on you. A sword is used to intrude on others. And while religious liberty should be a shield, there are concerns that people might make it a sword.”

That verbal picture–a sword or a shield–is an excellent way to approach the First Amendment, and not simply the religion clauses. 

The Amendment was intended to protect an individual’s right to believe pretty much anything (not necessarily to act on those beliefs, however) and to try to convince others to believe those things too. It was also intended to prevent government from getting involved by putting a thumb on the scale, so to speak, or imposing the beliefs of some Americans on others. It was–in Frank’s felicitous phrase–intended to provide individual citizens with a shield and to prevent majorities from using government as a sword.

The problem is, we have millions of people who have “religion” in the sense I defined it above. We have cults, traditional religious affiliations, conspiracy theories, political ideologies of both the Left and Right…in short, we have veritable armies of people convinced of the superior righteousness of their own belief systems. If you need evidence, examine what has been called “cancel culture,” the effort to ostracize people who hold opposing views–not to enter into debate with them, but to shut them down, eject them from the public conversation. (That effort is most definitely not limited to the Left, despite Rightwing efforts to claim otherwise.) 

For numerous reasons, the law cannot classify all these systems as religions for purposes of the First Amendment. That practical reality means that the label “religious” does confer a considerable advantage on beliefs that define themselves in that more limited fashion.

When it comes to traditional religion, Pew recently shared a bit of positive news about the sword and shield finding a significant majority of Americans want government to enforce separation of Church and State. I wonder what a similar study would find about our current commitment to Free Speech–especially in light of recent revelations about Facebook and other social media platforms.

What’s that Chinese curse? “May you live in interesting times…” 

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