“An Authoritarian System”: If God & Founders Solved It All, Why Bother With Democracy?
There’s an interesting op-ed up at WaPo today from Michigan State political scientist Matt Grossman arguing that conservatives are only “obstructionists” insofar as “most policies under debate are liberal,” not just now but for decades.
Grossman is implicitly illustrating a point about “constitutional conservatism” that I’ve often tried to make: If the divinely inspired Founders pretty much figured out the ideal governing model for all time (except for that troublesome bit about slavery), then all political controversy involving the limitation of absolute property rights and states’ rights is illegitimate and should be obstructed. This means that strictly speaking the “constitutional conservative” vision is perfectly compatible with an authoritarian system in which “illegitimate” policy options are off the table.
I’m not accusing such conservatives (much less Grossman, who doesn’t Go There at all) of advocating an authoritarian system, though proposals like the Cut, Cap and Balance Constitutional Amendment do indeed seek to permanently proscribe a significant part of liberal social and economic policies. But if conservatives sometimes seem cavalier about respecting democratic norms, including the right to vote, there’s your explanation.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April9, 2014
“Jim DeMint, Constitutional Revisionist”: Deliberate Conflation Of The Declaration Of Independence With The Constitution
RightWingWatch’s Brian Tashman runs across an interview with Jim DeMint in which the Heritage Foundation president and avatar of “constitutional conservatism” utters gibberish about slavery, and charitably suggests he is “confused:”
Heritage Foundation head Jim DeMint appeared on Vocal Point with Jerry Newcombe of Truth In Action Ministries last week, where he insisted that “no liberal is going to win a debate that big government freed the slaves.”
DeMint, a former US senator from South Carolina, told Newcombe that “the conscience of the American people” and not the federal government was responsible for the end of slavery.
In the interview, DeMint seemed to confuse the US Constitution with the Declaration of Independence and implied that William Wilberforce, a British politician who died almost thirty years before the Civil War, did more to end American slavery than the federal government.
Here’s the relevant portion of the transcript:
Newcombe: What if somebody, let’s say you’re talking with a liberal person and they were to turn around and say, “that Founding Fathers thing worked out really well, look at that Civil War we had eighty years later.”
DeMint: Well the reason that the slaves were eventually freed was the Constitution, it was like the conscience of the American people. Unfortunately there were some court decisions like Dred Scott and others that defined some people as property, but the Constitution kept calling us back to ‘all men are created equal and we have inalienable rights’ in the minds of God. But a lot of the move to free the slaves came from the people, it did not come from the federal government. It came from a growing movement among the people, particularly people of faith, that this was wrong. People like Wilberforce who persisted for years because of his faith and because of his love for people. So no liberal is going to win a debate that big government freed the slaves. In fact, it was Abraham Lincoln, the very first Republican, who took this on as a cause and a lot of it was based on a love in his heart that comes from God.
Jim’s not being “confused” here. His rap is based on a series of palpable falsehoods that are extraordinarily common in the exotic world of “constitutional conservatism:” the deliberate conflation of the Declaration of Independence with the Constitution (this is how they sneak God and “natural rights”–meaning property and fetal rights–into the latter); the idea that the Civil War was about everything other than slavery; and the claim of Lincoln’s legacy, even though the Great Emancipator was in almost every respect a “big government liberal” as compared to the states rights Democrats–DeMint’s ideological and geographical forebears who touted the Constitution even more regularly (and certainly more consistently) than today’s states rights Republicans.
For dessert, DeMint mentions Dred Scott, a hoary dog whistle to the antichoicers who like to compare that decision to Roe v. Wade.
What’s most interesting about hearing DeMint say all this stuff in one big mouthful is that it makes it so abundantly clear the man is engaging in all sorts of revisionism about well-known aspects of American–and constitutional–history. What makes it amusing is that he claims to be an “originalist.” Only if he gets to rewrite history.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 9, 2014
“Reclaiming Democracy”: A Resounding Vote Against Koch Brothers Dollarocracy
Even as the US Supreme Court attempts to expand the scope and reach of the already dangerous dominance of our politics by billionaires and their willing servants, Americans are voting in overwhelming numbers against the new politics of dollarocracy.
The headline of the week with regard to the campaign-finance debate comes from Washington, where a 5-4 court majority has—with its McCutcheon v. Federal Election Commission decision—freed elite donors such as the politically-ambitious Koch Brothers to steer dramatically more money into the accounts of favored candidates, parties and political action committees. The decision makes it clear that the high court’s activist majority will stop at nothing in their drive to renew the old Tory principle that those with wealth ought to decide the direction of federal, state and local government.
But the five errand boys for the oligarchs who make up that majority are more thoroughly at odds with the sentiments of the American people than at any time in the modern history of this country’s judiciary.
We know this because the people are having their say with regard to the question of whether money is speech, whether corporations have the same rights as human beings and whether billionaires should be able to buy elections.
In every part of the country, in every sort of political jurisdiction, citizens are casting ballots for referendum proposals supporting a Constitutional amendment to overturn US Supreme Court rulings that have tipped the balance toward big money.
In so doing, these citizens are taking the essential first step in restoring democracy.
On Tuesday, thirteen Wisconsin communities, urban and rural, liberal and conservative, Democratic-leaning and Republican-leaning answered the call of constitutional reform. Even as groups associated with billionaire donors Charles and David Koch were meddling in local elections in the state, voters were demanding, by overwhelming margins, that the right to organize fair and open elections be restored.
It even happened in Wisconsin Governor Scott Walker’s hometown of Delavan, where voters faced the question:
Shall the City of Delavan adopt the following resolution:
RESOLVED, the City of Delavan, Wisconsin, calls for reclaiming democracy from the corrupting effects of undue corporate influence by amending the United States Constitution to establish that:
1. Only human beings, not corporations, unions, nonprofit organizations nor similar associations are entitled to constitutional rights, and
2. Money is not speech, and therefore regulating political contributions and spending is not equivalent to limiting political speech.
BE IT FURTHER RESOLVED, that we hereby instruct our state and federal representatives to enact resolutions and legislation to advance this effort.
76 percent of the Delavan residents who went to the polls voted “Yes!”
They were not alone. A dozen other Wisconsin communities faced referendums on the same day. Every town, village and city that was offered a choice voted to call on state and federal officials to move to amend the US Constitution so that citizens will again be able to organize elections in which votes matter more than dollars.
The Wisconsin votes provided the latest indication of a remarkable upsurge in support for bold action to renew the promise of American democracy. Since the Supreme Court began dismantling the last barriers to elite dominance of American politics, with its 2010 Citizens United decision, sixteen states and more than 500 communities have formally requested that federal officials begin the process of amending the constitution so that the court’s wrongheaded rulings can be reversed.
Last fall, John Bonifaz, the co-founder and executive director of the reform group Free Speech For People, calculated that “In just three years since the Supreme Court’s Citizens United ruling, we have come one third of the way to amending the US Constitution to reclaim our democracy and to ensure that people, not corporations, shall govern in America.”
Since the start of 2014, however, the movement has seen a dramatic acceleration in the grassroots pressure for action. During the first weeks of March, forty-seven town meetings called for a constitutional amendment—in a move that put renewed pressure on the New Hampshire legislature to act on the issue.
It is the experience of big-money politics that has inspired renewed activism for reform.
Wisconsin has had more experience than most states with the warping of democracy by out-of-state billionaires, “independent” expenditures and SuperPAC interventions. Governor Walker’s campaigns have reaped funds from top conservative donors, including the Koch Brothers. And a Koch Brothers-funded group, Americans for Prosperity waded into contests this spring for the local board of supervisors in northern Iron County, where mining and environmental issues are at stake; and in the city of Kenosha, where school board elections revolved around questions of whether to bargain fairly with unions representing teachers. In other parts of the state, business interests poured money into school board contests and local races Tuesday, providing a glimpse of the role corporate cash is likely to play in local, state and national elections in the months and years to come.
The Koch Brothers had mixed success Tuesday. Three Iron County Board candidates who were attacked by Americans for Prosperity mailings and on-the-ground “field” efforts in the county won their elections—beating incumbents who were promoted by the outside group. But in Kenosha, two school board contenders who were seen as anti-union zealots won.
There were, however, no mixed results when voters were given a clear choice between dollarocracy and democracy.
The signal from Wisconsin is that grassroots politics can and does still win.
In fact, it wins big.
Encouraged by groups such as United Wisconsin and Move to Amend, activists went door to door in the depths of winter to place amendment questions on local ballots in towns, villages and cities across the state. Many of the communities were in heavily Republican regions of Wisconsin. Yet, the pattern of support was strikingly consistent; in no community did an amendment proposal win less than 60 percent of the vote, and in several the support was over 85 percent.
“Citizens United opened the floodgates to unlimited corporate spending in our elections. Now, Wisconsin voters are standing up to the corrupting influence the flood of special interest money has had on our elections and in our state and national capitols where laws are made,” says Lisa Subeck, the director of United Wisconsin. “Tuesday’s victories send a clear message to our elected officials in Madison and in Washington that we demand action to overturn Citizens United and restore our democracy.”
Whether all those elected representatives will get the message remains to be seen. Several of the communities that voted Tuesday are in the district of Congressman Mark Pocan, D-Madison, who has already introduced an amendment proposal and has been an ardent backer of reform. But many other communities are represented by recipients of the big-money largesse of Wall Street traders, hedge-fund managers, casino moguls and billionaires looking to cover their bets.
Communities in the home district of House Budget Committee chairman Paul Ryan, R-Wisconsin, voted by margins as high as three to one to support an amendment strategy. The results were similar in conservative Waukesha County, which has historically been a Republican stronghold; in the city of Waukesha, for instance, 69 percent of the electorate called for action to amend the constitution. In Wauwatosa, the Milwaukee suburb where Governor Walker now maintains his voting residence, the vote for an amendment was 64 percent.
Wisconsin has several legislative proposals to put the state on record in support of a constitutional amendment. But they face uphill climbs in the current Republican-controlled legislature. And Walker shows no enthusiasm for reforming the system that has so richly rewarded his campaigns. Yet, grassroots activists like Ellen Holly, who helped organize the amendment vote in Walworth County—the heart of Paul Ryan’s district and Walker’s old home turf—is not blinking. She says it’s essential for the Move to Amend campaign to take the fight into even the most conservative areas and to deliver messages to politicians like Ryan.
The widespread support for overturning Citizens United, especially from rural and Republican-leaning areas offers a reminder that the reform impulse is bipartisan and widespread. The same goes from the broad coalitions that have developed. Among the loudest voices on behalf of the referendum campaign in rural Wisconsin was the Wisconsin Farmers Union, which hailed Tuesday’s voting as “a clear message that we the people are ready to take back our democracy.”
“Citizens United has allowed big money to drown out the voices of ordinary people and created an environment where, too often, our elected officials are sold to the highest bidder,” says Subeck, a Madison city council member who this year is running for the legislature on a promise to focus on campaign-finance issues. “To fully restore public trust in our democracy, we must return control of our elections to the people through common sense campaign finance reform, starting with the reversal of Citizens United.”
By: John Nichols, The Nation, April 3, 2014
“Dignity Is A Constitutional Principle”: Institutionalized Humiliation And The Constitutional Requirements Of Equal Protection
With gay marriage litigation moving forward at warp speed — federal judges have struck down five state bans on same-sex marriage since December — we may soon witness one of the worst shouting matches in Supreme Court history. Passions were already running high last June, when a divided court struck down federal, but not state, laws defining marriage exclusively as a relationship between a man and a woman. Justice Antonin Scalia denounced the majority opinion, which cited the demeaning and humiliating effects of the Defense of Marriage Act, as “legalistic argle-bargle” lacking any basis in our constitutional tradition. Writing for the five justices in the majority, Justice Anthony M. Kennedy countered that the assault on human dignity should be decisive in condemning the statute as unconstitutional.
In making this “dignitarian” move, Justice Kennedy relied principally on his two earlier pathbreaking opinions supporting gay rights, in 1996 and 2003. He did not link his guiding philosophy to the broader principles hammered out during the civil rights revolution of the 1960s. Yet that constitutional legacy would strongly support any future Supreme Court decision extending Justice Kennedy’s reasoning to state statutes discriminating against gay marriage. Indeed, the court should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution — and thereby demonstrate that it is Justice Scalia, not Justice Kennedy, who is blinding himself to the main line of constitutional development.
Consider the great speeches made 50 years ago today as the Senate began its decisive debate on the Civil Rights Act of 1964. The bill’s floor managers were the Democrat Hubert H. Humphrey and the Republican Thomas H. Kuchel. As they surveyed the scene on March 30, 1964, it was far from clear that they had the 67 votes required to break a filibuster led by Southern senators. So they were determined to make their case to the larger public and mobilize popular support for a sustained effort to win a cloture vote.
As The Washington Post reported at the time, the two floor leaders dominated the first day’s proceedings with elaborate presentations that set the stage “for a serious no-nonsense debate” on the fundamental issues. Humphrey began with a remarkable three-and-a-half-hour speech that introduced the central theme of humiliation by comparing two travel guidebooks: one for families with dogs, the other for blacks. “In Augusta, Ga., for example,” Humphrey noted, “there are five hotels and motels that will take dogs, and only one where a Negro can go with confidence.” He argued that if whites “were to experience the humiliation and insult which awaits Negro Americans in thousands and thousands of such places, we, too, would be quick to protest.” Kuchel followed up with a second major presentation, emphasizing the “urgency” of ending the “humiliating forms of discrimination” confronting blacks.
On other occasions, Humphrey repeatedly linked this anti-humiliation principle to the larger aim of securing “freedom from indignity” for blacks and other groups. This link was further reinforced by President Lyndon B. Johnson. “We cannot deny to a group of our own people,” he argued, “the essential elements of human dignity which a majority of our citizens claim for ourselves.” In making their case to the American people, these leaders succeeded in pressuring Senate fence-sitters to close down the filibuster, on June 10, after it had monopolized the floor for more than two months.
But they failed in their larger aim. Their elaborate speeches were also addressed to future generations, articulating fundamental principles that Americans should consider in defining the terms of constitutional equality. Yet as Justice Scalia’s denunciation of Justice Kennedy’s opinion illustrates, America’s lawyers and judges are in danger of consigning these views of Congress and the president to legal oblivion. They seem to suppose that the only civil rights opinions worth studying are those of the Warren and Burger courts — even though the judicial initiatives of those courts would have gone nowhere without the mobilized support of the political branches and the American people.
This is a mistake. To be sure, the judges of the civil rights era also emphasized the link between institutionalized humiliation and the constitutional requirements of equal protection. Most famously, Brown v. Board of Education declared school segregation unconstitutional precisely because it stigmatized blacks, generating “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Yet once we recognize that Congress and the president broadened and deepened the nation’s commitment to Brown’s anti-humiliation principle, we can gain a larger perspective on contemporary civil rights struggles.
This point applies not only to gay marriage but also to sexual harassment. When the courts condemn “harassment” on the job or in schools, they are using a different word to describe the very same dynamics of institutionalized humiliation repudiated by the framers of the Civil Rights Act.
This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States?
Fifty years ago, our parents and grandparents faced the same question when confronting the humiliations imposed on blacks. As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”
By: Bruce Ackerman, Professor of Law and Political Science, Yale University; Opinion Writer, The New York Times, March 29, 2014
“An Inconvenient Constitution”: Fighting Obama On Immigration Is Not Enough, GOP Wants To Sue Him Too
The House Republican caucus wants to sue President Barack Obama.
They say he isn’t living up to his constitutional obligations on a range of issues—and in particular, that he’s not faithfully executing immigration laws. They cite his Deferred Action for Childhood Arrivals policy, put into place by executive order in 2012, which halted deportations of people who were brought to this country as children—the so-called “dreamers.” There are roughly 1.1 million of them, according to the best estimates.
To gut that measure, along with parts of the Affordable Care Act and a grab bag of other administration policies, House Republicans crafted and passed what they are calling the “ENFORCE the Law” Act. It would create what amounts to a legal shortcut. House members could file a lawsuit against the president, and it would go directly to three-judge panel of a federal district court—and from there, could be appealed straight to the Supreme Court.
The measure is unlikely to become law, since Senate leaders have declared it dead on arrival. Even if they hadn’t, it might not survive a court challenge: Experts say it openly tampers with the constitution.
Still, the vote for ENFORCE is a statement, and one that directly violates the immigration principles Republicans outlined in January. At the time, the leadership professed support for a pathway to “legal residence and citizenship for those who were brought to this country as children through no fault of their own, those who know no other place as home.” But that was nearly two months ago—and ENFORCE represents the House’s first vote of the year on immigration.
It makes the vote Democrats have been demanding, on the reform bill that passed the Senate last year, seem a lot less likely. (And it’s not like prospects were good in the first place.) “It doesn’t require much to look at what House Republicans are doing today and question whether or not they’re serious about moving forward on comprehensive immigration reform,” White House press secretary Jay Carney said Wednesday. That’s a departure from statements that both the president and House Speaker John Boehner have made this winter, insisting legislative reform still stands a chance. Last month, Carney called a meeting about immigration between the two men “constructive”; Boehner called it “healthy.”
Republicans may have been trying to underscore a message with the vote: that Obama should not even consider addressing deportations with executive authority, as he did with DACA, and as immigrant-rights groups are demanding he do again. “If he stopped deporting people who are clearly here illegally, then I think any chance of immigration reform is dead,” Senator Lindsey Graham warned in February. But as the prospects for immigration reform dim, Obama may wonder why he’s waiting for the House to meet him partway.
By: Nora Caplan-Bricker, The New Republic, March 13, 2014
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