The Fundamental Principle of Popular Sovereignty…Good for One Day Only

At the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the Constitution creates a system of enumerated powers at the federal level. But, when it came to the Arizona’s punitive immigration law, those same nine justices all agreed the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration.

As I said then, “both positions were consistent with past decisions”:

All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk.  Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.

This term brings a similar example, although this time it involves a smaller number of justices.

State are not Sovereign: The Supreme Court and Voting Rights

[Update: For a sense of legal landscape in the wake of the Supreme Court’s decision, read The Way Forward After Shelby County by Joey Fishkin]

The Supreme Court has struck down Section 4 of the Voting Rights Act (pdf), rendering Section 5 inoperable until Congress changes Section 4 (assuming Congress can and there is anything Congress could pass that the Supreme Court would allow, which is unclear).  I addressed the most fundamental conservative objection to the Voting Rights Act after oral arguments – that it is a “racial entitlement”.

Generally speaking, you should just read Justice Ginsburg’s dissent, which righteously shreds Chief Justice Roberts’, and Jessica Mason Pieklo.

I wanted to address something a little more abstract.

Roberts’ opinion repeatedly references ‘state sovereignty’ as an (unenumerated) constitutional principle that supposedly overrides the enumerated power of Congress to enforce the 15th Amendment through appropriate legislation. Let’s leave aside the issue of enumeration, and of the case law (Ginsburg dispatched that handily).  The bigger problem with this is that it’s absurd.

The Constitution makes clear that sovereignty is not vested in governments. It is vested in the people. Neither the states nor the federal government are sovereign. (Yes, don’t miss that second part – and let’s not pretend that a war settles constitutional questions either). From the opening words of the preamble of the original Constitution to it’s final clause, from the beginning to the end of the Bill of Rights, the basic, most fundamental constitutional principle is popular sovereignty. The entire process of ratification, by conventions rather than by state governments, only makes sense if you begin with popular sovereignty.

Literally every other principle we associate with American constitutionalism–separation of powers, federalism, enumerated powers–flows from this basic principle.

This Day in History: Engel v. Vitale

It is true that New York’s establishment of its Regents’ prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others – that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:

“[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

Justice Hugo Black, Engel v. Vitale (1962)

Domestic Violence and Evictions: a Literal Denial of Equal Protection

A bit late to this, but How Domestic Violence Survivors Get Evicted From Their Homes After Calling the Police, from Annamarya Scaccia, is just as horrifying as you would imagine from the title.

As outlined in the federal lawsuit filed April 24 on behalf of Briggs by the American Civil Liberties Union (ACLU), the ACLU of Pennsylvania (ACLU-PA), and Philadelphia law firm Pepper Hamilton LLP, Briggs had already been given three strikes under Norristown’s discretionary Rental License Ordinance. The ordinance gives the Montgomery County municipality the right to countermand a landlord’s rental license and provoke a tenant’s eviction if police respond to three “disorderly behavior” calls in four months, including domestic disturbances in which a mandatory arrest in not required.

The strikes Briggs received were the result of police calls made in April and May of last year—two of which were due to acts of domestic violence committed against her. In May, the borough began proceedings to revoke her landlord Darren Sudman’s rental license, but granted the property—and by extension Briggs—a 30-day probationary period after a late May hearing. Any violation during that period would have resulted in rescindment and eviction, claims the lawsuit.

That’s right – the County basically punishes the landlord for failing to punish a woman who’s experiencing domestic violence by evicting her.

Florida is worried that it’s not killing people fast enough

[Update below]

Florida is worried that it’s not killing people fast enough.  From Emily Bazelon:

[Florida] recently became the first in the country to pass a bill requiring the pace of executions to speed up. It’s called the Timely Justice Act, and it sets a deadline of 30 days for the governor to sign a death warrant once an inmate’s appeals become final—that is, after at least one round of state and federal appeals, and after a review by the governor for clemency. And once the governor signs the warrant, the Timely Justice Act says the execution must occur within 180 days. Scott signed the bill into law late Friday.

This is a particularly troubling plan given the circumstances in Florida. Since the mid-1970s, the state has executed 77 people. Florida has also exonerated 24 people who’ve been sentenced to die—the most of any state. In other words, for every three inmates executed, one is set free.

Apparently, the justification being offered for this (for those who are willing to talk about it) is a claim that people who are on death row, and their lawyers, are sitting on evidence that could exonerate them, so this will encourage them to move faster so that the innocent won’t be affected.

Gender, Class and Economic Fairness: Blaming Voters is a Cop Out

Laura Bassett and Dave Jamieson have a piece on Democratic strategy, Minimum Wage, Sick Leave Rebranded As Women’s Issues To Pressure GOP that I find troubling (the strategy, not the piece).

Pelosi and Rep. Rosa DeLauro (D-Conn.) met with House freshmen two weeks ago to brief them on the new “women’s economic agenda,” which includes raising the minimum wage, guaranteeing workers the opportunity to earn paid sick leave, expanding affordable child care programs and passing the Paycheck Fairness Act.

Democrats have long supported such worker-friendly reforms. What’s changing this year are their political tactics. Rather than frame these issues in the traditional terms of economic fairness, they’ll be repackaging them as a matter of gender equality and family stability. As they push specific pieces of legislation, Democrats plan to roll out an aggressive communications effort to pressure Republicans who’ve declared the workplace measures job killers.

The strategy takes a cue from last November: If Democrats have managed to trounce Republicans with women voters, then why not turn labor issues into gender issues in pursuit of progressive reforms?

I’d love for Democrats to push harder on these issues.  And I’m definitely for connecting issue of economic fairness to gender equality is a good one. I want to see more of that.  The various issues that make up left politics are not a series of disconnected issue positions, as they are often framed, but are rather connected.  At the core of both of these things is the question of who counts as a full and equal person. The answer should be everyone. But if we don’t draw the connections across these different areas, we’re operating at a serious political disadvantage. Certainly the right appreciates these connections.  When we make the connections, people are more likely to see the issues that affect them personally as related to those that affect others. It helps them see these as a similar struggle. It helps produces solidarity.

But that isn’t what this story is about. Rather, it’s about replacing the economic framing with the gender framing (see my emphasis above).

This Day in History: West Virginia v. Barnette

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Justice Robert Jackson, West Virginia Board of Education v. Barnette (1943)

How the Media Convinces Us ‘The People Support It’ – Mass Surveillance and Polls

[Updated Below]

[Update II: 6-13-13]

On Sunday, I noticed (and tweeted) that Steve Kornacki kept saying that Americans strongly supported all manner of spying on Americans in the name of terror, moving quickly from blanket statements to anecdotes about what he was hearing from people. Of course, to make such a claim requires more than anecdote. Absent polling you are just guessing (or projecting your own onto the public).  That said, presuming there is public ‘support’ for policies that enjoy strong elite support is a standard element of democratic efficiency. Nor was Kornacki alone. Such claims had been ubiquitous.

It is true that a Democratic Administration, despite challenging many Bush-era practices when it came to these issues, had embraced much of the same. While jettisoning the term War of Terror, it has continued to engage in scare tactics which vastly over inflate the dangers of terrorism (pdf). Given what we know about the dynamics of public opinion, it should have been obvious that more Democratic voters were going to move towards the pro-surveillance position since the Bush-era. Elite discourse influences poll results. (I’ve discussed this before in the context of the so-called war on terror).

This Day in History: Loving v. Virginia

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [sic].

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

 Chief Justice Earl  Warren

‘Markets’ Obscure Questions of Justice

There is no ‘neutral’ or ‘free’ position: the market is regulated one way or the other. And in either case, there will be economic consequences, concrete distributions of wealth….The question, at the end of the day, is not whether to favor ‘freedom’ or ‘constraint’—in both cases, we are both freely and coercively imposing a legal regime with or without options. The question instead is to determine exactly who benefits and by how much, and more importantly, to assess politically and normatively the justice of those outcomes.

It is precisely that normative assessment that is prevented by faith in natural order and market efficiency. So long as the distributional consequences are viewed as the natural outcome of a natural order, they become far more normal and necessary.  Their assessment becomes practically futile, or at least beside the point, for it makes little sense to challenge the justice or appropriateness of such natural outcomes. It is only when we let go of the illusion of natural order that we truly open the door to a full and robust political assessment of those distributional consequences—as well as of the politically and socially produced norms and rules that regulate markets and shape those outcomes.

Barnard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order