“It’s Time For Progressives To Reclaim The Constitution”: Challenging Conservative Claims About What The Constitution Really Demands
You cannot talk for very long to a conservative these days without hearing the words “constitutional” and “constitutionalist.”
Formulations such as “I am a constitutional conservative” or “I am a constitutionalist” are tea party habits, but they are not confined to its ranks. Many kinds of conservatives contend that everything they believe is thoroughly consistent with the views and intentions of our 18th-century Founders.
Wielding pocket-sized copies of the Constitution, they like to cite it to settle political disputes. Writing in the YG Network’s recently issued conservative manifesto, “Room to Grow,” Ramesh Ponnuru argues that there is a new and salutary “popular interest in constitutionalism.”
“Instead of treating the Constitution as the property of lawyers and judges,” he notes, “it proposes that legislators, and even citizen-activists, have an independent duty to evaluate the constitutionality of legislation.”
One plausible progressive response is to see Ponnuru’s exercise as doomed from the start. The framers could not possibly have foreseen what the world would look like in 2014. In any event, they got some important things wrong, most glaringly their document’s acceptance of slavery.
Moreover, because the Constitution was written primarily as a foundation for government, it can answer only so many questions. David Strauss of the University of Chicago Law School authored a book called “The Living Constitution” to make plain that there is a lot more to this concept than its detractors suggest. He notes that “a great part of the framers’ genius lay exactly in their ability to leave provisions general when they should be left general, so as not to undermine the document’s ability to serve as common ground.”
The problem with “originalists,” Strauss says, is that they “take general provisions and make them specific,” even when they’re not. One might add that the originalists’ versions of specificity often seem to overlap with their political preferences.
Nonetheless, progressives should take Ponnuru’s proposal seriously and think constitutionally themselves. In doing so, they would challenge conservative claims about what the Constitution really demands.
In the May issue of the Boston University Law Review, Joseph R. Fishkin and William E. Forbath of the University of Texas School of Law show that at key turning points in our history (the Jacksonian era, the Populist and Progressive moments and the New Deal), opponents of rising inequality made strong arguments “that we cannot keep our constitutional democracy — our republican form of government — without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone.”
Their article is called “The Anti-Oligarchy Constitution,” though Forbath told me that he and Fishkin may give the book they’re writing on the topic the more upbeat title “The Constitution of Opportunity.” Their view is that by empowering the wealthy in our political system, Supreme Court decisions such as Citizens United directly contradict the Constitution’s central commitment to shared self-rule.
“Extreme concentrations of economic and political power undermine equal opportunity and equal citizenship,” they write. “In this way, oligarchy is incompatible with, and a threat to, the American constitutional scheme.”
While their overarching vision contrasts sharply with Ponnuru’s, they make a similar critique of what they call an excessively “court-centered” approach to constitutionalism. “Constitutional politics during the 19th and early 20th centuries” was very different and the subject of democratic deliberation. In earlier eras, they say, the Constitution was seen as not simply permitting but actually requiring “affirmative legislation . . . to ensure a wide distribution of opportunity” and to address “the problem of oligarchy in a modern capitalist society.”
The authors remind us of Franklin Roosevelt’s warning that “the inevitable consequence” of placing “economic and financial control in the hands of the few” would be “the destruction of the base of our form of government.” And writing during the Gilded Age, a time like ours in many ways, the journalist James F. Hudson argued that “imbedded” in the Constitution is “the principle” mandating “the widest distribution among the people, not only of political power, but of the advantages of wealth, education and social influence.”
The idea of a Constitution of Opportunity is both refreshing and relevant. For too long, progressives have allowed conservatives to monopolize claims of fealty to our unifying national document. In fact, those who would battle rising economic inequalities to create a robust middle class should insist that it’s they who are most loyal to the Constitution’s core purpose. Broadly shared well-being is essential to the framers’ promise that “We the people” will be the stewards of our government.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 6, 2014
“NRA’s Constitutional Fraud”: The Truth Behind The “Right To Bear Arms”
In the wake of the horrific Isla Vista, California, mass killing, Americans have once again engaged the debate over gun proliferation. Victims’ families issue primal cries for regulation of these deadly weapons and gun activists respond by waving the Constitution and declaring their “fundamental right” to bear arms is sacrosanct. Indeed, such right-wing luminaries as Joe the plumber, who not long ago shared the stage with the Republican nominees for president and vice president, said explicitly:
“Your dead kids don’t trump my constitutional rights.”
Iowa Republican Senate candidate Jodi Ernst, known for her violent campaign ads in which she is seen shooting guns and promising to “unload” on Obamacare, had this to say when asked about Isla Vista:
“This unfortunate accident happened after the ad, but it does highlight that I want to get rid of, repeal, and replace [opponent] Bruce Braley’s Obamacare. And it also shows that I am a strong supporter of the Second Amendment. That is a fundamental right.”
This argument is set forth by gun proliferation advocates as if it has been understood this way from the beginning of the republic. Indeed, “fundamental right to bear arms” is often spat at gun regulation advocates as if they have heard it from the mouths of John Adams and Thomas Jefferson themselves. But what none of them seem to acknowledge (or, more likely, know) is that this particular legal interpretation of the Second Amendment was validated by the Supreme Court all the way back in … 2008. That’s right. It was only six years ago that the Supreme Court ruled (in a 5-4 decision with the conservatives in the majority, naturally) that there was a “right to bear arms” as these people insist has been true for over two centuries. And even then it isn’t nearly as expansive as these folks like to pretend.
For instance, that gun-grabbing hippie Justice Antonin Scalia went out of his way in that decision to say that beyond the holding of handguns in the home for self-defense, regulations of firearms remained the purview of the state and so too was conduct. He wrote that regulating the use of concealed weapons or barring the use of weapons in certain places or restricting commercial use are permitted. That’s Antonin Scalia, well known to be at the far-right end of the legal spectrum on this issue. Most judges had always had a much more limited interpretation of the amendment.
Justice John Paul Stephens discussed his long experience with Second Amendment jurisprudence in his book “Six Amendments: How and Why We Should Change the Constitution,” and notes that when he came on the Supreme Court there was literally no debate among the justices, conservative or liberal, over the idea that the Second Amendment constituted a “fundamental right” to bear arms. Precedents going all the way back to the beginning of the republic had held that the state had an interest in regulating weapons and never once in all its years had declared a “fundamental right” in this regard.
So, what happened? Well, the NRA happened. Or more specifically, a change in leadership in the NRA happened. After all, the NRA had long been a benign sportsman’s organization devoted to hunting and gun safety. It wasn’t until 1977, that a group of radicals led by activists from the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms took control and changed the direction of the group to one dedicated to making the Second Amendment into a “fundamental right.”
What had been a fringe ideology was then systematically mainstreamed by the NRA, a program that prompted the retired arch conservative Chief Justice Warren Burger to say that the Second Amendment:
“Has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime”
The results are clear to see. Mass shootings are just the tip of the iceberg. Today we have people brandishing guns in public, daring people to try to stop them in the wake of new laws legalizing open carry law even in churches, bars and schools. People “bearing arms” show up at political events, silently intimidating their opponents, making it a physical risk to express one’s opinion in public. They are shooting people with impunity under loose “stand your ground” and “castle doctrine” legal theories, which essentially allow gun owners to kill people solely on the ground that they “felt threatened.” Gun accidents are epidemic. And this, the gun proliferation activists insist, is “liberty.”
Michael Waldman of the Brennan Center for Justice (at NYU School of Law) has thoroughly documented all this history in his book, “The Second Amendment: A Biography,” a bit of which was excerpted in Politico magazine. He recommends that progressives who care about this issue think long and hard about how the right was able to turn this around, making a specific case for taking constitutional arguments seriously and using their “totemic” stature to advance the cause. He suggests that they adopt a similarly systematic approach, keeping this foremost in mind:
Molding public opinion is the most important factor. Abraham Lincoln, debating slavery, said in 1858, “Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.” The triumph of gun rights reminds us today: If you want to win in the court of law, first win in the court of public opinion.
In his book, Justice John Paul Stevens suggest a modest tweak to the Second Amendment to finally make clear what the founders obviously intended:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.
This is important. As Waldman notes, where the NRA Headquarters once featured words about safety on the facade of its building, it is now festooned with the words of the Second amendment. Well, some of them anyway:
Visitors might not notice that the text is incomplete. It reads: “.. the right of the people to keep and bear arms, shall not be infringed.”
The first half—the part about the well regulated militia—has been edited out.
If they truly believed the 2nd Amendment was absolute and totally clear, you’d think they’d show all the language, wouldn’t you? One can only conclude that they are trying to hide something: its real meaning.
By: Heather Digby Parton, Contributing Writer, Salon, June 2, 2014
“Unaccountable Power”: Thanks To The Roberts Court, Corporations Have More Constitutional Rights Than Actual People
The big media talk a lot about stalemate in Congress, but they are missing the real story. While representative democracy is dysfunctional, the Supreme Court has taken over with its own reactionary power grab. In case after case, the court’s right-wing majority is making its own law—expanding the power of corporations and the very wealthy, while making it harder for ordinary citizens to fight back.
Worst of all, the Roberts Court is trying to permanently inhibit the federal government’s ability to help people cope with the country’s vast social and economic disorders.
This is not a theoretical complaint. Led by Chief Justice John Roberts, the conservative Republican Court is building a barbed wire fence around the federal government—creating constitutional obstacles to progressive legislation in ways that resemble the Supreme Court’s notorious Lochner decision of 1905. That case held that property rights prevail over people and the common good.
For more than thirty years, the conservative Justices used that twisted precedent to invalidate more than 200 state and federal laws on major social and economic concerns like child labor, the minimum wage, bank regulation and union organizing. New Deal reformers were stymied by Lochner at first, and they only managed to overturn it in 1937 and only then when FDR mobilized a take-no-prisoners campaign to reform the Supreme Court by weakening its unaccountable power.
The Roberts Court has so far produced a slew of precedent-smashing decisions designed to hobble left-liberal reform movements before they can gain political traction. Citizens United opened the floodgates for corporate money; McCutcheon scrapped the dollar limits on fat-cat donors. Roberts gutted the Voting Rights Act of 1965, implicitly endorsing the GOP’s crude campaign to block racial minorities from voting. The US Chamber of Commerce and Business Roundtable have won numerous victories, large and small, expanding the rights of their corporate sponsors.
“We are in an era of very aggressive corporate litigation to expand the constitutional prerogatives of business,” Kent Greenfield, Boston College law professor, explained. “We are on the verge of going back to the Lochner era where every new regulation will be subject to numerous constitutional attacks—any regulation of content in commercial speech attacked on First Amendment grounds, anti-discrimination law or healthcare legislation attacked on religious grounds. You’ll see financial legislation challenged on due-process grounds.”
Despite his genteel manner, Justice Roberts is a “smart strategist” who plants provocative phrases in his decisions that he can cite later as false precedents, according to Law Professor Gregory Magarian of Washington University in St. Louis. “Roberts tells a story that sounds like they are not making radical change,” Magarain said. “But they are still making things up, still making up social policy. And the judgments are still pointed toward the past.”
Anxious Democrats applauded Roberts when he upheld the constitutionality of Obamacare, but many realized after-the-fact that Roberts rejected the Commerce Clause of the Constitution as the standard basis for justifying federal interventions on social and economic problems. This means the Supreme Court now has a five-vote majority in favor of shrinking federal authority. In effect, the Roberts Court was mimicking the narrow logic of the Lochner court 100 year before. The words and reasoning are there, just waiting for the right case to apply them.
Magarian sees a reactionary perspective motivating Roberts and his brethren. The Justices are trying to thwart a future of renewed activism and social rebellion, Magarian suspects, because they were rattled by political unrest they saw in their youth.
“The Court believes that corporate power is virtuous,” Magarian explained. “They are empowering corporations to help maintain a kind of political stability. The First Amendment in the view of the Roberts Court is not about people at the political margins. I think the Roberts Court wants to empower large, stable, wealthy and powerful institutions like the corporation so as to help maintain political and social order. These guys don’t want any social upheaval. They are like interesting echoes of the sixties.”
In the absence of aggressive political resistance, there is nothing to prevent this right-wing power grab from succeeding. But corporations are vulnerable in numerous ways that timid Democrats have not exploited. To stop the Roberts Court, the other side must get serious and begin to attack corporate power and air grievances that the public fully shares.
The corporation, after all, is not a “person” who possesses “inalienable rights.” The corporation is a legal artifice created by the government and given special protections and privileges. When the Supreme Court treats corporations as though they are living, breathing creatures who have constitutional rights just like human beings, they are embracing the fundamental contradiction in the nature of the corporation. Sometimes, they want to be people. Other times, they want to be treated better than people—that is, legally shielded from the consequences of their actions.
Companies and their owners want to have it both ways. The Roberts Court is helping them do so. The Hobby Lobby case now before the Supreme Court illustrates this contradiction. On one hand, the company’s conservative owners claim their religious rights under the First Amendment are violated when the federal government insists they include birth control coverage in their healthcare plans. If Roberts buys that argument, any employer can dream up religious values that exempt it for almost any regulatory law they choose.
On the other hand, the Hobby Lobby owners are not about to surrender their own “limited liability” protection from lawsuits against the company or criminal liability for the company’s violations of law or its failure to pay its debts. You can’t sue the shareholders for wrongful actions by their company. That is a cornerstone of American capitalism. It is also a principal source of corporate irresponsibility.
What we need now is a ferocious counterattack against these corporate owners—a campaign that demands they surrender these special privileges the government has given them. Why protect shareholders from blame when they claim the same constitutional rights—free speech, freedom of religion—that people possess? Human beings are held responsible for their debts, they go to prison for their crimes. Perhaps the owners of corporations should be made to take responsibility for theirs.
A similar contradiction is embedded in the Roberts Court decisions that have effectively destroyed the laws on campaign finance. The billionaires and their mammoth companies, banks and investment houses have been granted unlimited power to influence elections or, as we might say, buy the candidates. The Supreme Court has unilaterally unhinged the standard meaning of elections. Elections are no longer collective decisions among citizens choosing their governors. They have become bidding wars among fat cats and powerful economic interests, choosing representatives for the rest of us and thereby choosing our laws.
“We don’t let people stand up and shout in town meetings and drown out everyone else,” Greenfield observed. “When we come to elections where we make collective decisions, an equality norm comes into play, especially when the money comes from corporations. Corporations are creatures of the state; their purpose is not to affect the state and change. A reasonable thing to say to corporations is we are not going to let you skew the political process that created you.”
Magarian expands the point. “The limited liability corporation,” he observed, “owes its form and existence to a particular act of government, then the corporation turns around and says, ‘We are going to use our advantages and leverage them to influence the political process.’ Given the advantages corporations gain from government largesse and protections, the society should not have to suffer the loss of its influence. We want to sever their corporate influence from the decisions we the people make about economic questions.”
“In the long view,” Greenfield said, “we are in this bind because of the nature of corporations, not the nature of constitutional law. Over the last generation, the rise of shareholder primacy has meant that managers manage the company to maximize the share price. Willing to serve Wall Street, the corporation has really become the tool for the 1 percent. We need to rethink the nature of corporations. Rather than be a servant of a tiny sliver of the American people, the corporation should have a much more robust public obligation and should be managed in a more pluralistic way.”
Meanwhile, angry citizens do not need to wait on reform. They should get out their pitchforks and spread the message to those corporate lawyers who are corrupting democracy and to those cloistered right-wing justices who have such great solicitude for the privileged minority.
By: William Greider, The Nation, May 20, 2014
“On His Extremist Island”: Clarence Thomas Would Turn Back The Clock
In yesterday’s Supreme Court ruling on official government prayers at town-council meetings, Justice Anthony Kennedy wrote the 5-4 decision arguing that such practices are permissible under the First Amendment. There was a separate concurring opinion from Justices Samuel Alito and Antonin Scalia, but then Justice Clarence Thomas decided to go further than any of his colleagues.
As Dahlia Lithwick noted, Thomas made the case “that in his view the First Amendment religion clauses don’t apply to the states in the first place.”
Wait, really? Yep, that’s what Thomas actually believes.
…Thomas couldn’t get Scalia’s signature for another part of his dissenting opinion, in which Thomas – not for the first time – disputes the notion that the 1st Amendment’s ban on the “establishment” of religion even applies to state and local governments.
Here’s the deal: the first 16 words of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nearly a century ago, under something called the incorporation doctrine, courts ruled that most of the Bill of Rights applies to state and local government, too.
In other words, under the literal text of the Constitution, Congress can’t pass laws interfering in religion, abridging the freedom of speech, or undermining a free press, but once the Bill of Rights was applied more broadly, neither can states or municipalities.
Thomas, however, wants to turn back the clock. If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment. So long as Congress didn’t pass the law, he says, it’s kosher.
Even Scalia, hardly a moderate, seems to think that’s nutty, but Thomas just doesn’t care.
As Michael McGough’s report added, “Thomas has argued, the Establishment Clause ‘is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.’”
This is clearly quite radical, even by contemporary standards, though Thomas isn’t entirely alone on his extremist island – it was just last year when North Carolina Republicans considered legislation that read, “The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”
That bill ultimately failed, as did Thomas’ effort to find justices who would endorse his perspective, but as conservative politics moves sharply to the right, it’ll be worth watching to see just how many Republican officials end up embracing this argument.
By: Steve Benen, The Maddow Blog, May 6, 2014
“Crossing A Constitutional Line”: Will The Supreme Court Let Florida Drug-Test All Its Government Employees?
It might seem reasonable that Florida’s governor Rick Scott wants to ensure all state agencies are drug-free workplaces; after all, why would you want your taxpayer money going to support the habit of some stoned, slothful bureaucrat? But what is the state really asking for when it demands that each public servant pee in a cup?
When Governor Scott issued an executive order for mandatory drug testing across the state’s entire public workforce in March 2011, the political logic seemed straightforward: “the State, as an employer, has an obligation to maintain discipline, health, and safety in the workplace.” But underlying that seeming moral obligation are some questionable social assumptions. What does a positive test mean when your economic fate hinges on the result? What kind of “discipline” is maintained by subjugating bodily privacy in the name of “public safety”?
Today the Supreme Court is weighing the constitutional question the policy has evoked: When your boss is the state, can the “drug-free workplace” be a Fourth Amendment free zone?
The Supreme Court is considering whether to take up Scott v. American Federation of State, County and Municipal Employees Council (AFSCME) 79, to review whether the state can legitimately administer “drug testing in the absence of reasonable suspicion of drug use,” based on the state’s interest in ensuring a drug-free workplace for 85,000 state employees and applicants for state jobs.
Scott’s Supreme Court petition attempts to revive the issue following a series of lower-court defeats. AFSCME, representing tens of thousands of public servants, filed a legal challenge in May 2011 contending that the testing violated Fourth Amendment protections from unreasonable searches, and that the state had offered no real safety-related reason for such a broad testing requirement. The union argues in its brief, “allowing the state to define its interests at such a high level of generality would create an exception that swallows the rule.”
The federal district court ruled in 2012 that the executive order was an unconstitutional violation of workers’ privacy and the US Court of Appeals for the Eleventh Circuit affirmed that decision. However, while the state has since suspended the policy (and a similar statute passed by the legislature has also been halted), it has been remanded to the lower court for further litigation to rework the mandate. The administration is now trying to revamp the mandate to apply to a narrower set of jobs—mirroring existing policies targeted to safety-related positions, like corrections officers.
The Supreme Court will conference on whether to take up the case or just let the lower-court sausage-making proceed. For now, the main outcome is the Eleventh Circuit’s decision that the original order was unacceptably broad, amounting to, in the words of the court, “a drug testing policy of far greater scope than any ever sanctioned by the Supreme Court or by any of the courts of appeals.”
Labor advocates don’t necessarily object to drug test policies for certain jobs based on specific work-related safety concerns. Rather, AFSCME objects to the sweeping mandate of drug testing the whole workforce and prospective future employees, screening the bodies of school bus drivers and museum ticket vendors alike, for anything from a meth habit to an occasional joint.
In its defense of the policy, the state points out that drug testing is already common in private sector workplaces. But civil libertarians note that the state, unlike a private firm, is bound by Fourth Amendment restrictions on unreasonable government searches.
On top of its crusade for a drug-free state payroll, Florida has also sought to clean up its welfare rolls with a policy of mandatory drug testing for welfare applicants. The law, enacted by the legislature in 2011, was ultimately struck down in federal court. But it also sparked a national outrage (and some notable satire), because it invoked the classic Reaganite trope of public aid recipients as undeserving miscreants looking to “game the system.” The stereotype has historically been reflected in the image of black “welfare queen,” or more recently, in the underworked, overpaid state bureaucrat. Nationwide, lawmakers have glommed onto this convenient political logic of drug-screening people involved with public assistance programs, with recent proposals for mandatory testing in Texas, Pennsylvania, Washington and other states.
Whether the urinalysis dragnet targets people seeking government support or those delivering public services, the presumptions underlying mandatory testing feed into the oppressive stigma of being tied to the public system, which in turn stokes public mistrust and backlash against government itself.
Shalini Goel Agarwal, an ACLU of Florida attorney who is working on the case, says that for welfare recipients, blanket drug-testing reflects “an assumption that if they’re relying on public benefits, must be because those folks are at fault in some way, it’s because they’re using drugs…. The facts don’t seem to bear out the stereotype, but there is this kind of villainization that’s going on.”
But despite Scott’s arbitrary drug-test mandate, Agarwal says, “The Fourth Amendment applies just as surely to poor people and just as surely to state employees as it does to anybody else.”
Historically, drug testing in both public and private workplaces has been controversial, not only because of its physical intrusiveness, but because it is often just inaccurate. Civil liberties groups point out the risk of botched results and false positives. Moreover, arbitrary surveillance of workers’ behavior through invasive tests can have a toxic impact on the workplace social environment.
In some cases, the data debunks the political rhetoric it was supposed to bolster. Advocates cite research data on welfare applicants suggesting that impoverished people actually live pretty clean: only about 2.5 percent of the applicants tested had positive results, compared to a rate of about 9 percent for the general population. Similarly, testing of employees and applicants at the state Departments of Transportation, Juvenile Justice, and Corrections showed positive results ranging from less than one percent to about 2.5 percent.
But whatever the data say, labor advocates argue that the state has crossed a constitutional line in both privacy and labor rights in its workplaces.
Many of the legal challenges to drug-test policies, Agarwal notes, have been led by unions, because “individual employees are scared to come forward, they’re scared for their own job security, they’re scared what’s going to happen to them and their families, and so they don’t come forward. And the only way effectively to get at this issue and to challenge the employers head on is to do it through the union.”
While labor has effectively resisted Florida’s effort to track drug use in its workforce, the draconian testing policy has exposed the government’s problem with data abuse. The behavioral policing of workers and the poor tells us little about their social values, but reveals much about how supposed “public safety” interests at the center of power can become a tool for invading bodily privacy at the social margins.
By: Michelle Chen, The Nation, April 18, 2014
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