Texas – Page 4 – Sheila Kennedy

Texas Is About Much More Than Abortion

The angry blowback against Texas’ assault on reproductive rights is eminently justifiable–but as I explained previously, most of the criticism of the law misses the even more ominous threat it poses.

In her newsletter last Saturday, Heather Cox Richardson brought a historian’s perspective to that more ominous reality. She traced the nation’s legal trajectory after WW II, and the resistance to efforts by FDR to use government to regulate business and provide a basic social safety net. And as she reminded readers, racist Southern Democrats furiously fought government’s efforts to ensure racial equality.

After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. They protected the right of married couples to use contraception in 1965. They legalized interracial marriage in 1967. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.

The Supreme Court used the Fourteenth Amendment to apply the Bill of Rights to state governments as well as to the federal government; among other things, that kept state and local government officials from denying certain individuals the same rights enjoyed by other citizens

From the beginning, there was a backlash against the New Deal government by businessmen who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding an end to the active government and a return to the world of the 1920s, where businessmen could do as they wished, families and churches managed social welfare, and private interests profited from infrastructure projects. They gained little traction. The vast majority of Americans liked the new system.

But the expansion of civil rights under the Warren Court was a whole new kettle of fish. Opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its framers and that the government can do nothing that is not explicitly written in that 1787 document.

This is the foundation for today’s “originalists” on the court. They are trying to erase the era of legislation and legal decisions that constructed our modern nation. If the government is as limited as they say, it cannot regulate business. It cannot provide a social safety net or promote infrastructure, both things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses.

It cannot protect the rights of minorities or women.

The Court’s refusal to enjoin the Texas law is a truly terrifying omen. If the law is ultimately upheld, the precedent would threaten far more than a woman’s right to control her own reproduction. As Richardson notes, such a result would “send authority for civil rights back to the states to wither or thrive as different legislatures see fit…there is no reason that this mechanism couldn’t be used to undermine much of the civil rights legislation of the post–World War II years.”

In 1957, Republican President Dwight Eisenhower used the federal government to protect the constitutional rights of the Little Rock Nine from the white vigilantes who wanted to keep them second-class citizens. In 2021, the Supreme Court has handed power back to the vigilantes.

I am old enough to remember the billboards demanding “Impeach Earl Warren.” The rage of rightwing White Nationalists at decisions that they (correctly) believed would curtail their ability to deny equal rights to Blacks and other disfavored minorities hasn’t abated. Much of it went underground: into the establishment of “think tanks” devoted to justifications of “originalism”and rollbacks of federal regulations, the (now successful) effort to pack the federal courts with ideologues and capture the big prize: the Supreme Court.

Logically, under the last fifty years of legal precedent, Texas’ effort to “outsource” its abortion ban to vigilantes–its effort to avoid “state action”– should fail. The state’s legislature created the law. Enforcement of its punitive and dangerous scheme requires participation by the state’s judicial system.

What too few of the people arguing for and against this assault seem to recognize is what is truly at stake right now: the entire edifice of current Constitutional law, which rests on the premise that the Bill of Rights applies to all levels of government–that it sets a civil liberties floor below which states may not go.

This fight is about more than Roe v. Wade.

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A Perfect Storm

I woke up yesterday to the news that Trump’s Supreme Court–through its “Shadow Docket” and by a five to four margin–had effectively overturned what lawyers call “incorporation”–an odd term for the proposition that the Bill of Rights constrains state and local governments

In a scathing dissent, Justice Sonia Sotomayor wrote: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Actually, it’s worse than that. Much worse.

Not only does the Court’s increasing use of the Shadow Docket raise serious questions about the erosion of the judicial transparency fundamental to the rule of law, the decision to allow Texas’ empowerment of culture war vigilantes achieves a goal long held by “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the pesky interference of the federal government.

As I noted yesterday, approval of Texas’ ploy opens a door to civil strife far removed from the abortion wars. State legislatures can now turn private citizens into “enforcers” of pretty much any goal–and not just conservative ones. The decision effectively approves a federalism on steroids, and the unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protection against unreasonable search and seizure..

This case strikes a terrifying blow against that principle.

I titled this post “a perfect storm” because the Supreme Court’s abandonment of fifty years of precedent is only one of the truly existential challenges we currently face.

It is no longer possible to pretend that climate change is some sort of elitist, liberal theory that can safely be ignored. Fires in California (now threatening Nevada), increasingly powerful hurricanes battering not just Louisiana but causing flooding and chaos all the way to New England, the continuation of “extinctions” threatening to disrupt the global ecology…the list goes on. There are some valiant efforts underway to combat climate change, but the likelihood is that even if those efforts manage to moderate its effects, there will be enormous disruptions of global life–including famines and massive population movements.

Then, of course, there’s the pandemic. Two pandemics, actually–COVID and insanity. The insanity makes it highly likely that COVID won’t be the last disease to decimate populations around the world.

Speaking of insanity, Leonard Pitts reminds us of the rising tide of rightwing violence.

While it’s unlikely we’ll see regional armies clashing as they once did at Antietam and Shiloh, is it so hard to imagine the country descending into a maelstrom of conservative terrorism, the kind of hit-and-run asymmetric warfare — random bombings and shootings — that rocked Iraq and Afghanistan in the early 2000s? Certainly, the weapons and the sense of grievance are there.

On top of all of this, outdated elements of America’s legal architecture are impeding our ability to confront these challenges. In a recent, very important paper by Will Wilkinson of the Niskanen Center (I will have much more to say about his paper in future posts), Wilkinson concluded his analysis of what he calls “The Density Divide” with a recitation of the mismatch between America’s population realities and that framework.

As Wilkinson notes, our Constitutional system has a strong small-state bias, “which effectively gives extra votes to topsoil in low-population states.” In a country where 50 percent of voters identify or lean Democratic and 42 percent identify or lean Republican–a Democratic advantage of some 18 million voters– the GOP has erected “an imposing fortification” through gerrymandering, voter ID laws, voter-roll purges…the list goes on.

Wilkinson underscores what many others have said: we desperately need structural reforms and especially strong new legislation protecting voting rights. What he doesn’t say–since his paper was written before the Court’s recent assault on the supremacy of the Constitution–is that such protection must be nationally enforceable.

This “perfect storm” has created a genuinely existential moment. It is no longer possible to ignore the fact that American governance by We the People is teetering on a dangerous edge. The question is: can a nation burdened with a substantial minority of QAnon-believing, MAGA-hat wearing, Ivermectin-ingesting, Confederacy-loving citizens–many if not most of whom are White racially-resentful rural residents empowered by outdated electoral structures– rise to the challenge?

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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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Oh Texas…

In the years before 2016, when I needed an example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are 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.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that 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.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.

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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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