Tag Archives: rule of law

Guess What’s “Inappropriate”

Constitution, Education / Youth, , , ,

The rule of law.

Many pundits–including yours truly–throw that term around, assuming readers understand its elements. I think most Americans do recognize one of those elements–the principle that no one is above the law, that the rules apply to everyone, very much including Presidents and lawmakers.

There are other principles that are less-well understood, however, and one of them is specificity. If laws are to be obeyed, they must be explicit. They must describe the behaviors being prohibited (or required) clearly, in terms that allow citizens to fully understand them. When courts strike down laws for being unconstitutional, it is often because those measures have been found to be unconstitutionally vague.

That required specificity is among the many, many things that far too many legislators ignore. Texas comes immediately to mind, but the following example is from Ron DeSantis’ Florida–a state that is beginning to resemble Viktor Orban’s Hungary.

As Daily Kos — among others–recently reported:

There are more than 500 entries for Florida in PEN America’s ever-expanding list of books banned in American schools. These include what should be obviously innocuous titles like the “Zen Shorts” series by Jon Muth, which are some of the best children’s books available to parents and teachers. This effort to remove books about Black and LGBTQ+ people and characters from schools and libraries is a part of a larger effort to sanitize our country’s history. Like almost all efforts that pass for conservative “policies” these days, citizens of all ages are widely opposed to the bans….

DeSantis and his team of book-banners also highlighted the need to criminally punish teachers or librarians who give out books people like DeSantis deem pornographic. Mind you, our federal government (and Florida itself) already has laws outlining what is and is not considered pornographic. And there are also laws that prohibit books, images, and videos that sexualize minors…

Judd Legum over at Popular Information has gotten his hands on some of the Florida books that have been banned and the stated reasons they were banned. You would be hard-pressed to figure out how the previous statements above have any bearing on the decisions being made about libraries in the Sunshine State.

The article links to PEN’s report on the multitude of books that have been removed from Florida classrooms and it’s as jaw-dropping as you might imagine. The extensive nature of the list is an artifact of an unconstitutionally vague statute–a truly excellent example of a law that violates the specificity required by the rule of law. That’s because, In Florida, while there may be a few books deemed “pornographic,” most of the books that have been banned are attacked under the “how vague can you get” term “inappropriate.”

Rather obviously, my definition of “inappropriate” and yours may differ substantially.

The linked article suggests that the DeSantis Administration finds books depicting racism in negative terms to be “inappropriate.” For example, the Florida Department of Education announced that it rejected 35% of social studies textbooks submitted to them. One of those–a book for 6th to 8th graders– was evidently rejected for containing the following section:

“New Calls for Social Justice

During the 2000s, one effect of an increase in the use or mobile devices and social media was the spread of images of police violence, sometimes deadly, against Black Americans. The deaths of Black Americans outraged many Americans and led to a crowing awareness of systemic racism that permeated the broader society.

In 2013, a new social and political movement called Black Lives Matter formed to protest violence against Black Americans. The movement called for an end to systemic racism and white supremacy.”

Lest anti-Semites feel neglected by Florida lawmakers’ focus on protecting racism, the state has also rejected education about the Holocaust, finding it “woke.”

Florida’s state education department rejected two new Holocaust-focused textbooks for classroom use, while forcing at least one other textbook to alter a passage about the Hebrew Bible in order to meet state approval…

“Modern Genocides” was rejected in part for its discussion of “special topics” prohibited by the state. The list of such topics includes terms such as “social justice” and “critical race theory,”a phrase that traditionally concerns a method of legal analysis but that Republicans have used pejoratively to refer to discussion of systemic racism in the United States. The department did not clarify which prohibited “special topics” the book included.

Florida evidently considers accurate history and support for civic equality as (equally-vague) “woke” and thus “inappropriate.”

Maybe we should get rid of speed limits and just prohibit “driving too fast.” We can trust the police to decide who’s speeding–right?

Just like we can trust Florida’s current government to decide what’s “inappropriate.”

 

 

 

Lawyers Are Grieving

Constitution,

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.

 

Vigilante “Justice”

Public Policy and Governance, , ,

America seems to be experiencing a troubling upswing in what we might call vigilante “justice.” It isn’t limited to cases like the murder of Ahmaud Arbery or the cowboy fantasies of Kyle Rittenhouse–in Texas, the state legislature, unhappy with constraints imposed by the rule of law, turned over state authority to vigilantes willing to ignore legal process in pursuit of their notions of righteousness (and money).

As one scholar of America’s history of “vigilante justice” has written,

Through U.S. history, the distinctions between vigilantism and lawful arrest and punishment have always been murky. Frequently, vigilantism has been used not in opposition to police efforts, but rather with their active encouragement. Indeed, in some recent protests that still seems to be the case.

Before police departments existed, arrests were made under traditional common law, which depended on private participation in legally organized posses and serving as deputies. Institutions like slave patrols required that non-slave owners were willing to use, or at least permit, violence to maintain white supremacy…

Even the spate of “stand your ground” laws passed in the last 15 years borders on vigilantism, giving private citizens lots of freedom about how to use force to protect themselves.

The linked article makes the point that vigilantism has often “abetted the worst instincts in the politics of crime in the U.S.,” reducing notions of justice to whatever the people want it to be at any given time, rather than the rule of law. That, of course, allows the majority to disadvantage marginalized minorities with impunity, and gives police permission to act violently.

If there’s any doubt that today’s vigilantes act to protect White Supremacy, legislation offered by Congressional looney Marjorie Taylor Greene to award the Congressional Medal of Honor to Rittenhouse should resolve the issue.

In a recent essay, Charles Blow considered the effects of the Rittenhouse verdict on the growing vigilantism of today’s Right wing. As he notes,

One can argue about the particulars of the case, about the strength of the defense and the ham-handedness of the prosecution, about the outrageously unorthodox manner of the judge and the infantilizing of the defendant. But perhaps the most problematic aspect of this case was that it represented yet another data point in the long history of some parts of the right valorizing white vigilantes who use violence against people of color and their white allies…

The idea of taking the law into one’s own hands not only to protect order, but also to protect the order, is central to the maintenance of white power and its structures.

As we now know, the jury saw the Arbery racists for what they were, thanks to an effective prosecution, but the system only worked because a video existed and was seen.

As Blow notes, the vigilante impulse can render justice or terror, depending on its use and one’s perspective, but it has been a longtime, central feature of the American experience–as has the practice of making heroes of vigilantes, as today’s Right is doing.

One could argue that the entire Jan. 6 insurrection was one enormous act of vigilantism.

You could also argue that our rapidly expanding gun laws — from stand your ground laws to laws that allow open or concealed carry — encourage and protect vigilantes.

It goes without saying how ominous this all is for the country. Or, to turn the argument around, how intransigent the country is on this issue of empowering white men to become vigilantes themselves.

Black vigilantes are not celebrated, but feared, condemned and constrained by the law.

Blow reminds readers that when Black Panthers showed up at the California Statehouse with guns, their vigilantism led to huge backlash, including legislation tightening gun laws and prohibiting open carry in the state. As he says–and as we all know–“Whether vigilantes are viewed as radical or righteous is often a condition of the skin they’re in.”

I worry along with Blow that the verdict in the Rittenhouse case will encourage other vigilantes, especially among those on the Right who don’t want to see streets filled with people demanding redress from official misconduct. There are undoubtedly other Rittenhouses out there — angry and immature young men who will take exactly the wrong message from the way in which the Right is celebrating the acquittal of a murderer.

Vigilantism differs dramatically from civil disobedience, where individuals violate a law in order to make a point, and willingly accept the consequences. They are expressly upholding the rule of law, and underlining its importance.

The pursuit of justice cannot include the arming, empowering and/or rewarding of White Supremicist vigilantes– or any other kind, for that matter.

 

Living In Wacko World

Constitution, Public Policy and Governance, , ,

There is much that I don’t understand about the Americans who continue to support Donald Trump and the Big Lie. There’s even more I don’t understand about today’s GOP, which looks absolutely nothing like the political party to which I devoted some 35 years.

Here’s a smattering of what I don’t get:

  • How do these people explain away the hysterical refusal of the Trump mob to testify to Congress or hand over documents? If they have nothing to hide, why would they act this way? From my lawyering days, I still remember the concern of criminal defense lawyers that a client’s failure to testify would be taken by a jury as evidence that the client had something to hide; in fact, there was a standard (and undoubtedly ineffective) jury instruction to the effect that the jury should refrain from making that obvious assumption.
  • How do they justify the rage and recriminations focused on the few members of the GOP who voted to repair the nation’s decaying infrastructure–especially when Trump tried and failed for four years to have his own “Infrastructure week”? Don’t they drive on our crumbling roads and worry about our failing bridges? How do they explain to themselves and others the GOP insistence that defeating anything  President Biden wants is more important than actually getting things that obviously need to be done, done?
  • What in the world prompts Republicans to threaten “reprisals” for the indictment of Steve Bannon? Bannon was indicted for contempt of Congress. There is no quarrel with the accuracy of the charge: he publicly refused to testify to the committee investigating the January 6th insurrection, and just as publicly refused to provide documents Congress identified. If individuals can ignore Congressional subpoenas, if they can thumb their noses at lawful investigations, we are really in Wild West territory. Yet members of the GOP are warning that Democrats’ efforts to force Bannon to comply “paves the way for them to do the same if they take back the House in 2022.”  According to the Washington Post report linked above, “most high-profile GOP leaders have quickly turned Bannon’s indictment into the latest litmus test for loyalty to the former president.”

This is evidently where we are: if the rule of law gets in the way of partisan loyalties, well, the rule of law must go.

What must also go in this world-view is the First Amendment of the  U.S. Constitution.

Last week, Trump’s disgraced former national security advisor, former General Michael Flynn, spoke at a “Reawaken America” conference in San Antonio, Texas. (According to multiple reports, the conference was intended to reinforce the Big Lie that the 2020 election was stolen, and to support the argument that vaccine requirements infringe Americans’ liberties.) Flynn told the audience: “If we are going to have one nation under God, which we must, we have to have one religion. One nation under God, and one religion under God.”

The former national security adviser also characterized the investigation into the riot as “the insurrection crucifixion” and likened House Speaker Nancy Pelosi to Pontius Pilate. “This is a crucifixion of our First Amendment freedom to speak, freedom to peacefully assemble. It’s unbelievable,” Flynn said.

Flynn’s speech was one of the more explicit endorsements of what the Rightwing political fringe has clearly wanted–and what respect for the rule of law has impeded–a “Christian” nation. (Actually, a nation ruled by White Christian males.)

This is hardly the first time Flynn gets attention for his statements that seem to go against some of the basic tenets of American democracy. In May, Flynn said at a QAnon conference that a military coup like the one that took place in Myanmar “should happen” in the United States. Flynn was Trump’s national security adviser for less than a month and resigned after it was revealed he lied about conversations with the Russian ambassador to the United States. Flynn twice pleaded guilty to lying to the FBI and Trump pardoned him.

What I don’t get–what I cannot wrap my head around–is how non-mentally-ill Americans (even those who get their “news” from Fox) can look at these and so many other examples of the GOP assault on logic, democracy, reality and the rule of law and tell themselves that they are the behaviors of “true Americans.”

If gerrymandering delivers Congress to the GOP next year, we are going to be living in a very different country than the one in which most of us grew up.

 

Mitch McConnell Issues A Threat

Public Policy and Governance, ,

This morning, I’ve created a theoretical exercise. it’s intended to put you in the proper frame of mind to consider the latest outrage from Mitch McConnell–aka the most dangerous man in America.

Assume we are watching a TV western. The sheriff–having won a hard-fought election in his scruffy border town by promising to keep the residents safe from (unspecified) “bad guys”–issues a proclamation promising to deal severely with law-breakers. Well, maybe not all law-breakers. He’ll deal severely with any law-breakers who supported his opponent in the election.

If someone who supported him breaks the rules, however, he says he’ll look the other way.

If we encountered  a show with that plot device, we’d be incredulous–not only is that not what we mean when we champion law and order, we’d turn the TV off while muttering about the ridiculous premise–after all, when TV bad guys decide to engage in nefarious acts, they don’t typically broadcast that intention. If that storyline did appear in our fictional TV episode, we’d expect the local folks–including those who’d supported the sheriff– to rise up and run him and his co-conspirators out of town, thereby reinforcing the primacy of justice over partisanship.

Which brings us to Mitch McConnell.

After the Senate confirmed Judge Ketanji Brown Jackson to the Court of Appeals for the District of Columbia (Jackson, a Black female jurist, will replace Merrick Garland), McConnell reacted with a threat.

In an interview with the conservative radio commentator Hugh Hewitt, Mr. McConnell said Republicans would most likely block any Supreme Court nominee put forward by Mr. Biden in 2024 if Republicans regained control of the Senate in next year’s elections and a seat came open.

Along with most lawyers, I was astonished and infuriated in 2016 when McConnell brazenly refused even to consider Obama’s Supreme Court nomination of Merrick Garland, piously intoning that it was “too close to the presidential election,” although that election was months away and nominees had previously been confirmed to the Court during similar timeframes..

As we all saw, that excuse was shown to be the partisan hogwash it was when Trump nominated, and McConnell pushed through,  Amy Coney Barrett a mere six weeks before the November election.

Republicans who had banded together in 2016 at Mr. McConnell’s urging and declared that it was not appropriate to confirm a Supreme Court nominee during an election year had remarkable conversions in the case of Judge Barrett. The Republican leader insisted that he had not changed his position, arguing that because Mr. Obama was a Democrat, it was entirely appropriate for members of his party to block his nominee.

“What was different in 2020 was we were of the same party as the president,” Mr. McConnell told Mr. Hewitt. “And that’s why we went ahead with it.”

Partisan misuse of power, in McConnell-land, is “entirely appropriate.”

America without the rule of law would not be America. As far short of our aspirations and stated beliefs as this country has often fallen, it still seems absolutely incomprehensible that a high-ranking, powerful political figure would publicly–proudly!– trumpet his intention to ignore so foundational a principle.

I often refer to the rule of law, assuming readers understand its importance. The shorthand we all hear is: the same rules apply to everyone. Maybe that’s too abstract.

As an educational site maintained by the US Courts defines the concept:

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: Publicly promulgated, Equally enforced, Independently adjudicated; and consistent with international human rights principles.

The Trump administration waged an unrelenting attack on the rule of law, culminating with Trump’s pardons of some of its sleaziest transgressors. But even Trumpers as morally and ethically compromised as Bill Barr drew the line at publicly announcing their disdain for fair and equal application of the rules.

McConnell is the sheriff from my mythical TV show–the guy who publicly announces that the rules don’t matter–that whenever possible, he will ignore fundamental fairness and the national interest, and exercise power solely to privilege his partisans.

In a very real sense, he has promised  a coup. 

Michael Flynn must be so pleased.