“Alabama’s Dangerous Defiance”: A Disturbing Line Of Thinking In The History Of American Federalism
On Tuesday the Supreme Court of Alabama prohibited the state’s probate judges from issuing marriage licenses to same-sex couples. This decision effectively throws down the gauntlet, challenging the federal courts to make earlier federal rulings stick — including last month’s refusal by the United States Supreme Court to stay a federal judge’s decision requiring the state to recognize same-sex marriages. It draws on a disturbing line of thinking in the history of American federalism, one that, were it to gain currency as a model, could compromise our entire system of law.
The court’s position is that under the Constitution, it does not have to follow the rulings of lower federal courts; in its ruling, it promises to “defer only to the holdings of the United States Supreme Court.” (That said, Chief Justice Roy Moore’s public statements have been more equivocal; he told a radio host in Birmingham, Ala., “It would be a very hard decision, because I know there’s nothing in the U.S. Constitution that authorizes the Supreme Court of the United States or any federal court anywhere to misinterpret the word marriage.”)
Such extreme states’ rights positions first appeared during an epic battle between the great chief justice John Marshall and Spencer Roane, a member of the Virginia Court of Appeals. The two were bitter political and ideological enemies in the early years of the republic, and Roane had long railed against the authority of the federal Supreme Court over state courts. He repeatedly declined to implement federal decisions with which he disagreed, and refused to recognize the authority of federal courts to review state court rulings. In the end, however, Marshall prevailed.
And yet extreme states’ rights have been asserted more often in political rhetoric than in judicial proceedings. Even in the period of Southern “massive resistance” to Brown v. Board of Education, the Supreme Court’s 1954 desegregation decision, state supreme courts did not try to interpose their own interpretations of the Equal Protection Clause or issue conflicting injunctions against state officials to block desegregation orders by lower federal courts (though some state legislatures did attempt to block Brown’s implementation).
Since the United States Supreme Court will rule on gay marriage in June, it’s easy to dismiss the Alabama court’s ruling as quixotic. But it raises a real issue: not what state courts can do, but rather what they should do. Because state and federal courts operate on entirely separate tracks, the state court’s position that it need not follow lower federal court rulings is technically correct. Yet if our judicial system is to function smoothly, both court systems must, from time to time, refrain from exercising their legal discretion to ignore the other’s handiwork.
The gay-marriage rulings bring this aspect of the state-federal relationship, called comity, into close focus. Alabama’s probate judges are subject to the jurisdiction of both state and federal courts. If both judicial systems exercise their authority concurrently and independently, issuing conflicting constitutional rulings, the probate judges are caught in a Catch-22. Respecting one court’s order necessarily will involve a failure to respect the other’s.
This isn’t just about state courts bowing to federal authority; federal courts have a number of “abstention” doctrines designed to respect the autonomy of state courts. The most famous, called Younger abstention, provides that federal courts should not intervene in pending state court criminal proceedings — even if a credible allegation of a federal constitutional violation exists.
In turn, state courts will often extend comity to the decisions of the local federal courts. Although state courts are not bound by lower federal court decisions, state officials are required to follow federal court orders (this distinction probably explains, at least in part, the willingness of state courts to voluntarily follow lower federal court precedents).
Gay marriage is exactly the sort of issue on which state courts should — and do — defer to lower federal courts. Five federal appellate courts have recently decided whether the Constitution requires a state government to recognize same-sex marriage: Four said yes; only the Sixth Circuit has held that they need not do so. The state courts and governments within these circuits have all acquiesced (Alabama is in the 11th Circuit, which has not ruled on the issue). In fact, Alabama’s State Supreme Court is the only one in the country to go to war with the local federal courts on the issue.
If State Supreme Courts followed the Alabama Supreme Court’s lead, a system of dual courts simply would not work. The United States Supreme Court, which hears only 80 to 90 cases per year, would not be able to disentangle the legal morass that would result if state courts routinely thumbed their noses at the decisions of their local lower federal courts.
Chief Justice Marshall observed, “If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.” This holds just as true if state courts exercise an identical nullification power over federal court orders.
The Alabama Supreme Court’s action represents an unfortunate departure from the cooperative norm that must prevail between these independent judicial systems. Other state judiciaries would do well not to follow its example.
By: Ronald J. Krotoszynski, Jr, Law Professor at the University of Alabama; Op-Ed Contributor, The New York Times, March 6, 2015
“GOP Lawmakers Are Violating The Logan Act”: Playing With Fire; Senate GOP Tries To Sabotage Nuclear Talks
In a practical sense, when congressional Republicans invited Israeli Prime Minister Benjamin Netanyahu to deliver a joint-session address, it was part of a larger sabotage campaign. GOP lawmakers, without so much as a hint of embarrassment, are openly trying to derail international diplomatic talks with Iran, and Republicans had no qualms about partnering with a foreign government to undermine American foreign policy.
The GOP gambit arguably marked a new low. But after hitting the bottom of the barrel, Republicans dug a hole and fell just a little further.
A group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration won’t last after Obama leaves office. […]
“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system…. Anything not approved by Congress is a mere executive agreement,” the senators wrote. “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”
Josh Rogin’s report makes clear that the signatories “hope that by pointing out the long-term fragility of a deal with no congressional approval … the Iranian regime might be convinced to think twice” about striking a deal with Americans and our negotiating partners.
The letter was organized by Sen. Tom Cotton (R-Ark.), a right-wing freshman who has spent months bragging about his hopes of destroying any diplomatic agreement intended to stop Iran’s nuclear ambitions.
The list of the 47 GOP senators who signed on to the letter is online here. Note, that list features several presidential hopefuls, including Ted Cruz, Rand Paul, and Marco Rubio. (Only seven Senate Republicans decided not to endorse the letter: Lamar Alexander, Dan Coats, Thad Cochran, Susan Collins, Bob Corker, Jeff Flake, and Lisa Murkowski.)
Norm Ornstein noted this morning that he’s “flabbergasted” by the “astonishing breach of conduct.” That’s clearly the appropriate response. But I’m also struck by how dangerous the Republicans’ conduct is.
As we discussed back in January, when the broader sabotage campaign came into focus, there is no real precedent for this in the American tradition. The U.S. system just isn’t supposed to work this way – because it can’t. Max Fisher explained that we’re looking at “a very real problem for American foreign policy.”
The Supreme Court has codified into law the idea that only the president is allowed to make foreign policy, and not Congress, because if there are two branches of government setting foreign policy then America effectively has two foreign policies.
The idea is that the US government needs to be a single unified entity on the world stage in order to conduct effective foreign policy. Letting the president and Congress independently set their own foreign policies would lead to chaos. It would be extremely confusing for foreign leaders, and foreign publics, who don’t always understand how domestic American politics work, and could very easily misread which of the two branches is actually setting the agenda.
The United States and our allies have reached a delicate stage of diplomacy on a key issue, but as far as congressional Republicans are concerned, the United States isn’t really at the negotiating table at all – the Obama administration is. Republican lawmakers not only disapprove of the process, they also feel justified conducting their own parallel, freelance foreign policy, which includes partnering with foreign governments and sending a message to the very rival the United States and our allies are negotiating with.
In other words, for the first time anyone can remember, we’re watching American elected officials brazenly trying to sabotage American foreign policy.
Under the circumstances, it’s no longer ridiculous to wonder whether GOP lawmakers are violating the Logan Act.
As for the GOP’s legal argument to Tehran, Jack Goldsmith added, “It appears from the letter that the Senators do not understand our constitutional system or the power to make binding agreements.”
Unfortunately, that’s not the only thing they fail to understand. They seem equally confused about propriety, U.S. protocols, and how American foreign policy is supposed to work.
By: Steve Benen, The Maddow Blog, March 9, 2015
“New Voting Laws Show That The Struggle Continues”: Pointing To A Growing Lack Of Respect For Individual Voting Rights
Growing up in Mississippi more than 50 years ago, Sammie Louise Bates had to help her grandmother count the money needed to pay poll taxes. Living under Jim Crow laws angered Bates — and inspired her to become a lifelong voter.
Bates was 25 when the Voting Rights Act passed in 1965, abolishing poll taxes and other discriminatory voting practices. For most of her life she did not face hurdles to the ballot box like her grandmother did.
But in 2013, that changed. Bates was no longer able to vote because her home state of Texas passed a new restrictive voter ID law. To get an acceptable photo ID, she first needed to pay $42 for a birth certificate. The cost was too much: “We couldn’t eat the birth certificate,” she testified in a lawsuit, “and we couldn’t pay rent with the birth certificate.”
Bates is an example of the hundreds of thousands, perhaps even millions, of Americans who now face difficulties voting because of new state laws restricting the right to vote. On the 50th anniversary of the Bloody Sunday march, which galvanized support for the VRA, these Americans remind us that the struggle is not over.
After decades of progress, the past five years has seen the most extensive attack on voting rights since the VRA was signed into law. Since 2011, every state but one has considered legislation that would make it harder for many eligible citizens to vote, and half the states passed new voting restrictions. By the 2014 election, after lawsuits and repeal efforts, voters in 21 states faced tougher voting rules than they did in 2010.
These new voting restrictions — which go beyond Texas-style photo ID laws and include things like early voting cutbacks and voter registration restrictions — apply to everyone. But they are not neutral in their impact. While most people do have a driver’s license or a similar state-issued photo ID, for example, the 11 percent of Americans who do not are disproportionately African-American and Latino.
And while most people still vote on Election Day, minorities make up a disproportionate number of those who voted on the weekend and other early voting days cut in states like North Carolina and Ohio. The net effect of these changes is a voting system that is less accessible to minorities, especially those with modest incomes.
A federal court found last year that Texas’s photo ID law was passed for the purpose of discriminating against the state’s minority voters.
In at least some states, this effect is not an accident. A federal court found last year that Texas’s photo ID law was passed for the purpose of discriminating against the state’s minority voters. (That case is now on appeal.)
Race has played a significant role elsewhere as well. The push to restrict voting came after a surge in participation among African-Americans and certain other groups in 2008. Recent studies found that the more a state experienced increases in minority and low-income voter turnout, the more likely it was to push and pass laws cutting back on voting rights. The Brennan Center similarly found that of the 11 states with the highest black turnout in 2008, seven passed laws making it harder to vote. Of the 12 states with the largest Hispanic population growth in the 2010 Census, nine states did so. And of the 15 states that used to face special monitoring under the VRA because of a history of racial discrimination in elections, nine states passed laws that make it more difficult to vote.
Unfortunately, efforts to restrict voting show no signs of abating. In the first few weeks of this year, legislation was introduced in 17 states and already progressed in two.
All this points to an urgent and continuing need for strong legal protections for voting rights — protections sought and won by the brave marchers 50 years ago in Selma. But here’s the rub: in the midst of a controversial and racially-charged battle over voting rights, the US Supreme Court gutted a core provision of the VRA. The net result has been not only a loss of voter protections in the courts but also a marked increase in discriminatory voting changes in states that used to be covered by the law. This contributes to a growing lack of respect for voting rights — arguably the defining feature of American democracy.
So what can we do? For starters, urge Congress to update and restore the Voting Rights Act. Urge your state not to pass retrograde voting restrictions, and instead to modernize the voter registration system and adopt other sensible improvements like those recommended by a recent bipartisan presidential commission. And join the tens of thousands of Americans flocking to Selma this week in honoring one of our nation’s greatest accomplishments — the recognition of the equal right to vote for every eligible American.
We have come a long way, but we still have farther to go.
By: Wendy Weiser, Director, The Democracy Program at The Brennan Center for Justice: Bill Moyers Blog, Moyers and Copany, March 6, 2015
“Universal Suffrage Is Still Under Assault”: Some Long For The Old Order Where Certain People Controlled All Levers Of Political Power
Historians refer to that day 50 years ago as “Bloody Sunday” because of the indelible images of brave men and women beaten to their knees — some knocked unconscious — as they tried to march across the Edmund Pettus Bridge in Selma, Alabama. It hardly seems possible, now, that they were attacked so viciously for something that seems so ordinary: the right to vote.
In fact, universal suffrage isn’t ordinary or mundane or inconsequential. It’s a radical notion, still rejected in much of the world. And the legacy of those marches in Selma proves that the opponents of black voting rights were right about at least this much: If they allowed black citizens to vote, the nation would be changed.
The most obvious symbol of that powerful tide of progress, President Barack Obama, occupies the Oval Office. But the inheritance that those marchers bequeathed to the nation is evident in so many other subtle and not-so-subtle changes in our political and civic life. If the election of a black governor or U.S. senator, for example, is still unusual, it’s no longer historic. Nor is the elevation of a black secretary of state or attorney general.
But that progress has not pleased all Americans. Some long for the past, for an old order in which certain people controlled all the levers of political power, where only those who looked and spoke a certain way were allowed to hold political office, where many citizens were excluded from a government allegedly by and for them. That helps to explain why reactionary forces have spent the last 15 or so years snipping at the universal franchise, cutting away at the edges of the right to vote.
Conservative Republicans label their campaign — which centers around strict voter ID laws — “voter integrity,” as if it’s a righteous project designed to uplift democracy. It’s just the opposite: It’s designed to block the ballot for a few voters, mostly poor and black, who are inclined to support Democrats. In close elections, a few votes can decide the outcome.
To be sure, no voters get their heads bashed in. No state troopers or sheriff’s deputies wait with billy clubs to attack those who dare exercise their constitutional rights. No would-be voters are asked to number the bubbles in a bar of soap in order to register.
Still, the voting restrictions that have been passed over the last several years are just an updated version of the poll tax. Make no mistake about it: The universal franchise is under assault.
Just take a look at the U.S. Supreme Court’s astonishing ruling in 2013, which gutted a significant portion of the 1965 Voting Rights Act, the key federal legislation prompted by the Selma marches. An ultraconservative majority did a most unconservative thing: It tossed out a law overwhelmingly passed by Congress, declaring, in effect, that the legislative branch was wrong.
The Supreme Court had earlier endorsed voter ID laws, ruling in 2006 that an Indiana requirement for photo identification at the polls was in keeping with the state’s “legitimate interest” in protecting against voter fraud. But the fraud such laws are intended to prevent — in-person voter impersonation — is as rare as the northern white rhino. It’s pretty clear that blocking the ballot is the aim here, as Republican factotums have occasionally, if inadvertently, admitted.
In reality, they don’t want certain voters to have the ballot because it has the potential to upend the old order. Think about it: If the black citizens of Ferguson, Missouri, which is 67 percent black, start to religiously exercise their right to vote, they can change the town’s leadership — and change a police department and court system that are shot through with racial bias, according to a report from the U.S. Department of Justice.
There is power in the franchise, which is why its expansion has met resistance throughout American history. Courageous patriots have given their lives to secure the ballot for every citizen.
But the struggle is not over.
By: Cynthia Tucker, Pulitzer Prize Winner for Commentary in 2007; The National Memo, March 7, 2015
“Truth Crushed To Earth Will Rise Again”: Injustice Is Resilient, But So Are Defenders Of Freedom
First, they sang “God Will Take Care of You.”
Then they walked out of Brown Chapel to a playground where they organized themselves into 24 groups of 25 each and set out marching. Their route out of Selma took them onto Highway 80, which is carried over the Alabama River by a bridge named in honor of Confederate general and Alabama Ku Klux Klan leader Edmund W. Pettus.
It was about 2:30 on the afternoon of Sunday, March 7, 1965.
At the foot of the bridge, the marchers were met by Alabama state troopers. Some were on horseback. Major John Cloud spoke to the marchers through a bullhorn. “It would be detrimental to your safety to continue this march,” he said. “And I’m saying that this is an unlawful assembly. You are to disperse. You are ordered to disperse. Go home or go to your church. This march will not continue. Is that clear to you?”
He gave them two minutes to comply. Just over one minute later, he ordered troopers to advance.
They moved toward the marchers, truncheons held waist high, parallel to the ground. But something seemed to overtake them as they pushed into the demonstrators. The troopers began to stampede, sweeping over unarmed women, children and men as a wave does a shore.
Tear gas filled the air. Lawmen on horseback swept down on fleeing marchers, wielding batons, cattle prods, rubber hoses studded with spikes. Skin was split. Bones were broken. The marchers were beaten all the way back into town. A teenager was hurled through a church window. On the bridge, the cheers and rebel yells of onlookers mingled with the shrieks of the sufferers and became indistinguishable.
Thus was the pavement of the freest country on Earth stained with the blood of citizens seeking their right to vote.
By rights, this 50th anniversary of those events should be an unalloyed celebration. After all, the marchers, fortified by men and women of good will from all over the country, eventually crossed that bridge under federal protection, marched for four days up Highway 80 and made it to, as the song says, glory. They stood at the state capital in Montgomery and heard Martin Luther King exhort them to hold on and be strong. “Truth crushed to earth,” he thundered, “will rise again!”
The Voting Rights Act was signed into law. And African -Americans, who had been excluded from the ballot box for generations, went on to help elevate scores of citizens who looked like them to the mayor’s office, the governor’s mansion, the White House.
So yes, this should be a time of celebration. But the celebration is shadowed by a sobering reality.
In 2013, the Voting Rights Act was castrated by the Supreme Court under the dubious reasoning that its success proved it was no longer needed. And states, responding to a non-existent surge of election fraud, have rushed to impose onerous new photo ID laws for voters. When it is observed that the laws will have their heaviest impact on young people, poor people and African-Americans — those least likely to have photo ID — defenders of the laws point to that imaginary surge of fraud and assure us voter suppression is the furthest thing from their minds. How can it be about race, they cluck piously, when the laws apply to everyone?
Of course, so did grandfather clauses, poll taxes, literacy tests and other means by which African-American voting rights were systematically stolen for decades and a Whites Only sign slapped onto the ballot box. It is disheartening that we find ourselves forced to fight again a battle already won. But the events of half a century past whisper to us a demand for our toughness and faith in the face of that hard truth. They remind us that, yes, injustice is resilient.
But truth crushed to earth is, too.
By: Leonard Pitts, Jr., Columnist, The Miami Herald; The National Memo, March 4, 2015
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