Tag Archives: Mississippi

The Middle Finger Of The South

Ah, Indiana! Long understood by sentient Hoosiers as the middle finger of the south, a state trying valiantly to replace Mississippi at the bottom of the civic barrel.

I thought about Indiana’s retrograde governance when I came across an article from The Bulwark, arguing that while Trumpism is clearly incompatible with liberal democracy, it is quite compatible with the governance of  states that have never quite emerged from the Confederacy.

Liberal democracy has never put down deep roots in the South in the way it did across the rest of the country. The region never really abandoned its warped electoral politics and inclination to single-party cronyism, a Southern political instinct that helps explain how Democratic dominance transformed so completely into Republican one-party rule following the civil rights era. Inequality continues to define economic life in the region. Southern states have remained hostile to many minority groups, particularly LGBTQ Americans, and they are wildly out of step with most other states on reproductive rights. And incarceration in the South remains both less humane and more common than in other regions.

Trumpism is intent upon “southernizing” America. (Okay, I know that isn’t really a word…) The article quoted our creepy vice-president, JD Vance, who during the campaign opined that “American history is a constant war between Northern Yankees and Southern Bourbons” and went on to conclude that “whichever side the hillbillies are on, wins.” He added that he applies that image to America’s current politics , because–in his (Yale-educated) hillbilly view– ” the Northern Yankees are now the hyperwoke, coastal elites.”

The Bourbons, in this understanding, were the Southern planters and professionals who opposed Reconstruction. They fomented discord among poor whites to ensure that they would focus their political energies on their peers rather than those who were their de facto rulers. That elite applauded when, In 1896, the Supreme Court approved segregation with the principle of “separate but equal.”

In 1898, America’s first coup d’etat took place as the Democrats of Wilmington, North Carolina issued a “White Declaration of Independence.” They were attacking the coalition of black Republicans and white Populists that had control of the local government in the 1890s, which the old Confederates of the city found intolerable. With their resentment and rage being fueled by white Democratic powerbrokers, two thousand armed men forced out the duly elected government. None were more pleased by this result than their Bourbon backers.

The article reports that this “banker-planter-lawyer” class is largely responsible for the South’s political and economic underdevelopment–that it was “ostensibly pro-business but viciously self-interested” and that as a consequence, the South as a region still lags economically—pinned down by poverty and hobbled by the absence of public investments. The states have few worker protections, and its working classes have difficulty earning a living wage, making It “virtually impossible” to exist on the income of a single, low-wage, 40-hour-a-week job, especially in the absence of social welfare/healthcare.

That paragraph could have been written about Indiana.

From “Right to Work” (for less) legislation, to one of the nation’s most regressive tax systems, to the legislature’s constant knee-bending to landlords who prey on the poor, to vicious cuts in Medicaid, to restrictions on abortion that are sending medical practitioners out of the state, to the theft of tax dollars from public schools in order to subsidize wealthy Hoosiers and religious schools…the list goes on.

Some years ago, I wrote about ALICE, an acronym for Asset Limited, Income Constrained, Employed; it applies to households with income above the federal poverty level, but below the actual, basic cost of living. United Way of Indiana found that more than one in three Hoosier households was unable to afford the basics of housing, food, health care and transportation, despite working hard, that 37% of households lived below the Alice threshold, (14% below the poverty level and another 23% above poverty but below the cost of living), that these were families and individuals with jobs, so most didn’t qualify for social services in Indiana, and that the jobs they fill are critically important–these are child care workers, laborers, movers, home health aides, heavy truck drivers, store clerks, repair workers and office assistants—and they are unsure if they’ll be able to put dinner on the table each night.

And just like those southern Bourbons, our elected overlords couldn’t care less. They focus instead upon deflecting responsibility by turning struggling Hoosiers against each other–hence the legislative attacks on trans children and DEI and moronic pronouncements that Black folks benefitted from the 3/5ths compromise. 

The theory is, if we’re provided with scapegoats, perhaps we won’t notice the Bourbon corruption, or the lack of public investment in social and physical infrastructure…

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Be Careful What You Wish For…

Texas, in an excess of zeal to control women’s reproductive choices, has enacted a bill–which, at this writing, has gone into effect–that would essentially undermine America’s understanding of the rule of law.

I’ve posted previously about the analysis of that measure by Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

As they point out, enlisting private citizens to enforce the law is intended to avoid challenges to the bill’s constitutionality. The theory is that, since the state itself will not be directly involved in enforcing the law (unlike under “private attorney general” statutes, only private citizens can bring these suits), state’s officials will not be proper defendants to a lawsuit. What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.

No state action, no constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues. Per Tribe and Vladeck,

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive deed covenants, in which the Court found state action present because private deed restrictions could only be enforced with the participation of judges, clerks and other state officials.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

If successful, this effort would empower the zealots among us, right and left, turning citizens against one another on whatever contentious issues legislators chose. This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence.

However, even a more conventional overruling of Roe invites unintended consequences.

This year, the Supreme Court will review Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. A Court created by Donald Trump is likely to overrule–or eviscerate–Roe v. Wade. If it does so, Republicans may come to rue the day.

Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated. Pro-choice voters, however, will be newly energized–and polling suggests they significantly  outnumber “pro-life” activists.

The de-nationalization of Roe wouldn’t just mobilize pro-choice voters who’ve relied on Roe to protect their rights. It would redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt for reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to help poor women in Red states travel to states where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus “counseling,” and deal with other barriers to the exercise of the currently constitutional right to terminate a pregnancy.

As I have repeatedly noted, the current dominance of the Republican Party doesn’t reflect  American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe gone, purple states–including Texas–will more quickly turn blue.

If Roe goes, the game changes. File under: be careful what you wish for.

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Be Careful What You Wish For

The Supreme Court–newly dominated by a conservative majority–has accepted an abortion case out of Mississippi. It is widely expected that the Court will use that case to further erode a woman’s right to terminate a pregnancy–not explicitly overturning Roe v. Wade, but effectively eviscerating it.

Talking Points Memo considered the likely political effects of that decision, pointing out that, since the justices waited until the end of the current term to say that they would take it up, with a decision likely next June, it can hardly avoid being a front-burner issue in the 2022 election cycle.

Linda Greenhouse sees the decision to accept the case as the “end of the free ride” for anti-choice activists. She began that analysis by listing a number of situations in which state legislation curtailing abortion rights has been struck down by the courts, allowing “pro life” politicians to posture without incurring the electoral wrath of those who disagree.

Her recitation reminds me of a conversation I had with an Indiana legislator several years ago. He was in my graduate Law and Policy Class, and I knew he was aware of First Amendment precedents prohibiting state endorsement of religion, so when he voted to post the Ten Commandments on government buildings, I challenged him. His response was candid: he could vote the way the “folks in Mayberry” (his small town) wanted, keeping them happy, secure in the prospect that the courts would “bail him out.”

Abortion politics has taken a similar path.

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

Greenhouse explains how the Court can effectively demolish Roe without actually and explicitly overruling it, and then considers the politics involved. Her analysis is worth quoting at some length:

It’s a dim memory, but a salient one, that in Mississippi itself, a voter referendum that would have amended the state Constitution to grant personhood status to a fertilized egg was defeated in 2011 by a margin of 58 to 41 percent, despite endorsement by leading politicians and widespread predictions that it would pass. That’s when the anti-abortion forces decided that friendly legislatures were a better bet than the will of the people.

Last fall, in each of four nationwide polls, including one conducted for Fox News, more than 60 percent of registered or likely voters said they did not want the Supreme Court to overturn “Roe v. Wade.” I put the case in quotes because that’s how the pollsters asked the question; although Roe obviously carries strong symbolic meaning, the 1973 decision is in many respects no longer the law.

The question as the polls’ respondents processed it was most likely “Do you want to keep the right to abortion?” And no wonder the answer was yes: nearly one American woman in four will have an abortion. (Catholic women get about one-quarter of all abortions, roughly in proportion to the Catholic share of the American population.) Decades of effort to drive abortion to the margins of medical practice have failed to dislodge it from the mainstream of women’s lives.

For the cynical game they have played with those lives, politicians have not paid a price. Now perhaps they will. Of course, women themselves will pay a heavy price as this new reality sorts itself out, particularly women with low incomes who now make up the majority of abortion patients.

And there’s another price to be paid as justices in the new majority turn to the mission they were selected for. The currency isn’t votes, but something even more important and harder to win back: the institutional legitimacy of the Supreme Court of the United States.

There’s no free ride for the court either.

What Greenhouse doesn’t address is the extent to which the GOP has depended upon both the energy of anti-abortion activists and the relative lack of political activism by pro-choice voters who have assumed that the courts will protect their rights. If Roe is either over-ruled or–as is more likely–eviscerated, it may well shift that dynamic to the detriment of “the folks in Mayberry” and the GOP.

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Krugman Nails It

Paul Krugman wants to know how many of their fellow Americans Republicans are willing to kill in order to “own the libs.” In the wake of actions by Governors in  Texas and Mississippi–essentially eliminating anti-COVID requirements– it’s a fair question.

Krugman also points out–graphically–why mask edicts are not an abrogation of American freedom.

Relieving yourself in public is illegal in every state. I assume that few readers are surprised to hear this; I also assume that many readers wonder why I feel the need to bring up this distasteful subject. But bear with me: There’s a moral here, and it’s one that has disturbing implications for our nation’s future.

Although we take these restrictions for granted, they can sometimes be inconvenient, as anyone out and about after having had too many cups of coffee can attest. But the inconvenience is trivial, and the case for such rules is compelling, both in terms of protecting public health and as a way to avoid causing public offense. And as far as I know there aren’t angry political activists, let alone armed protesters, demanding the right to do their business wherever they want.

As Krugman goes on to point out, the dangerous posturing by self-described defenders of “liberty” is the essence of identity politics.  Although Republicans politicians like to accuse Democrats of playing that game, they limit the definition of “identity” to issues of race and religion–it’s their way of reminding their White Supremicist base that Democrats represent   a citizenry that includes “those people.”

What is motivating this rush to unmask isn’t economics–Krugman points out that the costs of mask-wearing are trivial, and that controlling externalities–taking into account  costs being imposed on others–is Econ 101. As he says,  “if potentially exposing those you meet to a deadly disease isn’t an “externality,” I don’t know what is.”

Of course, we know what’s actually going on here: politics. Refusing to wear a mask has become a badge of political identity, a barefaced declaration that you reject liberal values like civic responsibility and belief in science. (Those didn’t used to be liberal values, but that’s what they are in America 2021.)

This medical version of identity politics seems to trump everything, up to and including belief in the sacred rights of property owners. When organizers at the recent Conservative Political Action Conference asked attendees to wear masks — not as a matter of policy, but simply to abide by the rules of the hotel hosting the meeting — they were met by boos and cries of “Freedom!” Do people shriek about rights when they see a shop sign declaring, “No shoes, no shirt, no service”?

But arguably we shouldn’t be surprised. These days conservatives don’t seem to care about anything except identity politics, often expressed over the pettiest of issues.

There are plenty of problems with mischaracterizing mask wearing as a “freedom” issue, and one of those problems ties back into my constant rants about the country’s low levels of civic literacy.

The United States Constitution does not give anti-maskers the “liberty” they claim.

I will readily admit to being a hard-core civil libertarian.  (I ran Indiana’s ACLU for six years and was routinely criticized when our affiliate sued to protect citizens’ rights to pursue their own moral or personal ends.) But as Krugman’s introductory paragraphs illustrate, and the ACLU has always acknowledged, government retains considerable authority to require or prohibit certain behaviors. We can’t urinate (or worse) in public, or  run around our neighborhoods nude. We can be ticketed for failing to buckle our seatbelts. We can be prohibited from exposing others to the passive smoke emitted by our cigarettes. Governments not only have the right but the affirmative obligation to impose quarantines to protect public health, and they have done so historically to control the spread of diseases like smallpox.

I agree with Krugman that the anti-maskers are playing identity politics. I wonder if they realize that the identity they are claiming is “selfish and ignorant.”

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States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.
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