Jim Z.’s topic is timely, for obvious reasons. But it’s also complicated and lends itself to different approaches.
First, we could discuss how much democracy this country has had in the past, given constitutional limits on majority rule and long-standing anti-democratic characteristics of American politics and culture. It might be helpful here first to explicitly identify which features make a democracy deep and lasting. Which of these does a democracy most depend on?
- A constitutional foundation of rights, separation of powers, checks/balances, civilian control of the military, etc.?
- Free and fair elections with universal suffrage and protections for voting rights? What about ease of voting?
- Public faith in democracy and/or in government and/or a high level of public engagement in civic life?
- Pluralism (multiple and competing organized interests)?
- Strong democratic institutions, in government and outside of it (free press, political parties, so on)?
- Limits on powerful private interests’ political power and on corruption and cronyism?
That’s a bunch of two-hour meetings right there, some of which we’ve done (undemocratic Constitutional features, voter ignorance, money in politics). Last year we even discussed whether U.S. democracy really could unravel.
A second approach for us would be to dive right in to the (in my opinion) large and growing threats to American democracy that have emerged in the last 20 years. Obviously, Donald Trump is embodies and leads the most obvious threats, his own presidency and political movement. But, there are others.
I believe that if we want to save our democracy, we have got to be honest about one particular elephant in the room: The Republican Party and its increasingly authoritarian nature. Their gutting of the Voting Rights Act and voter suppression laws/policies. The outright theft of a Supreme Court seat. Highly aggressive state-level gerrymandering to lock in electoral advantage. The welcoming of far right-wing news media and even White nationalists into the party. Legislative hostage-taking. Union-busting to “defund the Left.” And now, a deliberate, coordinated attack on the rue of law, including the FBI and DOJ.
To be fair and balanced (!) but also accurate, undemocratic forces may be emerging within progressivism, too. Examples: Antifa-type violence, intolerance of dissent on social media, etc. We could talk about the full range of partisan/ideological threats to democracy. Other, structural threats to U.S. democracy exist and might be worth discussing, too, especially runaway economic inequality and rural economic stagnation, rising xenophobia, and even foreign interference in our elections.
Finally and on a more philosophical note, we could challenge the implied premises of Jim’s question. Is a lack of democracy really a big problem in the United States? Would more of it really help solve our big problems? Does the Constitution straightjacket us from taking bold steps toward increasing majority-rule? And, does the public really want more control over a political system they all say they have no faith in and most of them care little and know even less about?
I will do a short intro on Monday and then focus my effort on making sure we address major avenues of inquiry in our discussion and on making sure everybody gets a chance to be heard. Jim, do you have anything you want to say to start us off?
A lot of links this week, since it’s a big topic. I think they all add value and don’t repeat much or rehash old issues. My suggestion: Focus on recommended ones.
SUGGESTED BACKGROUND READING –
How Democratic is the USA –
- Two big expert surveys said we’re doing pretty well but some reasons to worry – especially with Trump’s election. Recommended.
- Wrong. We are an oligarchy, another study said (in 2014!)
- Our political system has become biased against one major party and that’s bad in a democracy.
- Important: Healthy civic institutions matter more than just having elections.
Do we have too much democracy?
- USA has too much democracy and it may destroy us. , center-right author Andrew Sullivan. Related: The voters are the problem; ignorant, erratic, etc.
Recommended to read one.
- Conservative POV: Too much democracy + unconstitutional expansion of govt are the real problems.
Threats to US democracy –
- Three big threats: Voter suppression, gerrymandering, and Big Money in politics. Recommended;
by a Republican. More on the GOPs assault on voting rights.
- Economic inequality, because it reinforces political inequality. Recommended.
- Our Constitutional system was not built for this level of economic inequality. Interesting.
- Protest is being criminalized by GOP governments.
- How to deepen U.S. democracy.
- Obama’s farewell entreaty to protect our democracy from what is coming.
NEXT WEEK: Lessons of the Vietnam War, 50 years later.
That big money has too much control over our political system is one of the few political statements that almost all (85%-90%) Americans agree with. Most progressives I know think Big Money is pretty much the root of all evil in politics, or at least the largest single impediment to solving our national problems. Few conservatives I know go quite this far, but polls show a majority of conservatives and Republicans agree with the general proposition that regular people are priced out of the system.
We last discussed campaign finance reform in 2015, although we do related issues periodically, like corporations’ free speech rights in 2014. For this one, I thought we could sharpen our understanding of the (alleged) problem a bit. How did big money get to be the lifeblood of politics at almost all levels of government? What’s the evidence that Big Money really is our political system’s worst problem (as opposed to other factors, see below)? And, what might be done about big money’s dominance given the GOP’s almost total dominance of government these days and its almost complete opposition to any reforms progressives would support?
I will do some kind of informative, non-polemical opening to set the stage for discussion then open things up. Here are some readings and some more-detailed-than-usual discussion questions.
DISCUSSION QUESTIONS –
- Big Money’s rise: Trends and amounts, who spends and on what and why do they do it?
- Regulations’ failures: Deregulation of campaign finance and lobbying rules. Citizens United et al. Rising economic inequality reinforcing political inequality. Over-regulation of economy led big biz to fight back? Recent state/local govts trying to reign money in.
- Harms: In elections vs in between elections. At which levels of govt? Visible vs. invisible harms. Crowding out the public interest vs. actively opposing it?
- Benefits: Are there any benefits to so much money in politics?
- Dogs that don’t bark: What things don’t happen due to big money’s influence that would or should happen?
- Other culprits: Ideological and partisan polarization, voter apathy/ignorance, changing news media/social media effects, candidate quality, etc. à Is big money really more important than all of these factors?
- Solutions: What fixes might be constitutional, possible given total GOP opposition at all levels, and effective?
SUGGESTED BACKGROUND READING – (many, some long – pick and choose)
- Overall summaries of problem:
- Corporate lobbying is the real problem. Recommended.
- California: In CA its the Democrats that dominate the money.
- More facts and figures:
- [Update Sunday]: Politics is NOT all about the money, this liberal argues. Recommended.
- Conservative POV: All of this is highly misleading, part 1 and part 2. Convincing?
NEXT WEEK: What is “fair trade?” Do we need it?
President Trump seems to have backed down on many of his most controversial promises on immigration. There will be no big “beautiful” border wall. No brand new paramilitary deportation force prowling the country. No flat out ban on Muslim immigration (h/t The Judiciary). The same is proving to be the case on his pledge to defund and thus eliminate “sanctuary cities.”
What are those? As the links below explain, there is no formal legal definition of what a sanctuary city is. But basically, a large number (400+!) of cities and towns across the USA have pledged not to turn over certain undocumented immigrants (UIs) that the local governments come into contact with, or even to notify the Feds that they are in custody. These places are not literally sanctuaries in the medieval-Quasimodo sense. Local authorities cannot physically interfere to stop federal agents from seizing a UI in local custody if they learn about it and want to do so. But, sanctuary cities do refuse to (1) spend resources arresting and holding ever person they encounter they suspect might be here illegally, and (2) inform ICE/DHS and hold the person until they Feds come to take them away. Sanctuary cities say they need to spend scarce law enforcement resources on serious crimes, not enforcing federal immigration law.
But, I don’t think this is over. The idea of sanctuary cities really, really infuriates many conservatives. They think it’s unconstitutional. Plus, the idea of big blue cities defying law and order to protect people who are here without permission (and are disproportionally violent criminals, our President said) hits all the conservative outrage sweet spots. Since I’m seeing progressives going all-in to support the undocumented and defy the GOP’s push to reduce illegal immigration, I think this now almost totally partisan issue will be with us for a long time.
DISCUSSION QUESTIONS –
- What are sanctuary cities? Different meanings of, history of.
- Moral and policy pros and cons.
- Constitutional and legal pros and cons
- Trump’s actions and their legality.
- Bigger picture on immigration.
SUGGESTED BACKGROUND READING –
- Primer on sanctuary cities from bipartisanpolicy.org. Recommended.
- More thorough explainer, esp. of legal issues, from progressive POV. Recommended.
- Irony: Recent conservative legal rulings on federalism may protect sanctuary cities.
- Latest: Trump has eased up on threats to defund sanctuary cities – but only after losing in court.
- [Update- a short article] The one paragraph in federal law that Trump says prohibits sanctuary cities does no such thing.]
- Conservative POV: Sanctuary cities are unconstitutional, etc. [Some of you might recognize the author as being (im)famous for his other legal opinions.]
- Trump has not given up on this.
- His budget asks Congress to change a key law so he can defund sanctuary cities.
- ICE is using war on terror tools to hunt down illegal immigrants.
- State govts have the power to ban/restrict sanctuary cities. Texas just did.
NEXT WEEK: July 3 fireworks – What does the United States stand for?
As befits a discussion group devoted to politics, philosophy, and other public issues, CivCon has done a lot of topics on the Constitution. Oddly though, we have never looked explicitly at how democratic our founding document was and (as amended and interpreted) is. I phrased the topic as a normative question, since is begs the question of ought. It also might make for a livelier discussion and prompt us to make the political preferences behind our opinions more explicit.
I see more than one way to approach our pondering, too. We could focus more on the standard (but important) stuff, like looking at the basic structures and functions the Constitution sets up. As Jim Z. noted last week, the whole document is in some ways “rigged” against pure democracy; e.g., the Electoral College, two senators per state regardless of size, an unelected judiciary, vetoes and supermajorities requirements, etc. College students spend a lot of hours reading classic books on this topic, some of which are referenced in the links. We definitely should discuss why the Founders did this and whether it’s too little or too much democracy for the 21st century (or for our tastes).
A second approach would be to look at the Bill of Rights. These rights are fundamental to protecting democracy. Are they being enforced today as designed, and is that sufficiently democratic? I’m thinking campaign finance as free speech, curtailment of civil liberties in the War on Terror, and conservatives’ religious freedom initiative (bakeries and gay weddings) might come up in this part of the meeting.
Thirdly, we could take a strict result-oriented approach. How responsive is our national government to the will of the people? Whose interests does our constitutional system represent and who does it not listen to? Some big studies have tried to quantify that in recent years. Their conclusions are sobering.
Here are some guiding discussion questions and suggested readings/skimmings.
DISCUSSION QUESTIONS –
- Was/Is: What are the major anti-democratic (or at least non-majoritarian) features of the Constitution? Why did the Founders include them? What key components of democracy were left out and why?
–> Which of these have survived unchanged to today and why?
- Ought: What is “too much” or “too little” democracy? Upside/downside of both?
- Rights: Which rights (speech/religion, voting, property, etc.) matter the most? Are any rights under assault or overly-broad now?
- Results: How responsive is our constitutional system to the will of the people? Which people? Evidence?
–> Is un-accountability self-correcting via elections?
- Future: What are your biggest concerns about our constitutional democracy going forward?
SUGGESTED BACKGROUND READING –
Not democratic enough –
- Our Undemocratic Constitution: Well-known book, skeptically reviewed (by Cass Sunstein). Much shorter description/review here. Recommended.
- A similar view from another well-known scholar.
- The Framers’ Coup. Constitution was an anti-democratic power grab.
Bad consequences –
- In highly polarized times like now, the Constitution’s undemocratic features produce gridlock. Recommended.
- Too much economic inequality threatens constitutional democracy. Recommended.
- But don’t despair! Citizen activism can expand how democratic the Constitution is interpreted to be. [Oops link changed to the right one Sunday eve.]
No, too MUCH democracy is our problem –
- Excessive democracy is destroying ours. Recommended, semi-conservative POV, but long. A good, short direct rebuttal to it.
- We have too much democracy. Requires free site registration.
NEXT WEEK: Fascism, Part II – Is a global movement emerging?
Linda, who’s a criminal defense attorney in private practice, suggested this topic. Since 1995, the number of U.S. prison inmates over age 55 has roughly quadrupled. They now comprise one-sixth of the entire U.S. prison population.
Why so many aging prisoners? One cause is the sheer size of violent crime wave that roiled the United States from the late 1960s to the early 1990s. Another is that the country is aging in general, including those that commit serious crimes. But most notoriously to blame are all of those harsh sentencing laws passed by state legislatures and Congress in response to the crime wave and the War on
Some People That Use Certain Drugs. Civilized Conversation has discussed both mandatory minimum sentences and racism in sentencing on separate occasions.
Having so many aging prisoners is a problem for a lot of reasons. As one of the links below says, older prisoners “require special attention in prison, as they often suffer from chronic diseases, including diabetes, heart failure, cognitive impairment, and liver disease, as well as age related disabilities. They are also more vulnerable to victimization in prison.” Just providing their health care costs a fortune. Many prisons have expensive geriatric wards. Nearly 80% of all deaths in prison are older (55+) prisoners.
Recently, the Obama Administration and some state governments – including California’s – have tried to devise programs to speed compassionate release for the least dangerous elderly prisoners whose further imprisonment makes little sense. This has proven harder than you might think, both administratively and politically. I imagine that the Trump Administration will end all federal efforts and that bipartisan criminal justice reform of any kind is dead. But, who knows?
Below are some rather duh-level discussion questions and a few straightforward readings on the elderly prisoner problem and on mass incarceration. On Monday I will skip my usual opening presentation, except to briefly summarize the issue for any new members that might not have read the background materials.
Linda, with her many years of experience as a defense attorney, will then have the floor.
DISCUSSION QUESTIONS –
- How big is this problem and what makes it a problem?
- What caused it? Whose “fault” is it? Was anybody thinking of this eventuality 30 or 20 or 10 years ago?
- Solutions: What’s being tried, including by the USG and in California?
How are those going? If not well, why, and what else should be done?
- Mass incarceration: Is the elderly prisoner problem another one of the consequences of America’s disastrous mass incarceration experiment? Or, is it a sad but inevitable consequence of our vast but in-the-past crime wave?
- CJ reform: Is there any hope for federal criminal justice reform now that Trump is president and the GOP controls USG?
SUGGESTED BACKGROUND READING –
- What caused our 20th century violent crime wave and why did it end? Recommended.
- [Late update] The huge affect lead poisoning from gasoline and paint played in the 1960s-1990 wave. Not a joke nor sloppy pop-science.
- Our huge aging prisoner crisis. Recommended best summary, but sorry for the annoying multiple automatic audio plays.
- The human costs are high everywhere. WashPost.
- But, and recommended: Releasing aging violent offenders is controversial even in California.
- Optional, very detailed studies:
- Our mass incarceration problem more broadly:
NEXT WEEK: White male privilege – How real? How important?
This one was Bruce idea, as a kind of follow-up to our 2015 meeting on the Founders’ view of government powers and in expectation that Hillary Clinton would be elected president. Now, of course, President Trump will fill the Supreme Court seat that congressional Republicans stole by refusing to fill Justice Scalia’s vacant seat for a year. Funny, but I can’t find the passage in the Constitution that allows the Party of strict constructionists and originalism to do this.
At any rate, no shift away from the long, conservative arc of constitutional law is going to happen in the next decade. Quite the opposite. That list of possible SCOTUS appointees that Trump issued during the campaign came straight from the Heritage Foundation and the Federalist Society. An ultra-conservative constitutional restoration is on the launching pad, in the lower courts as well as SCOTUS.
Nevertheless, understanding progressive views (there are more than one) of constitutional interpretation is still relevant, for several reasons. First, presidents usually find a way to appoint federal judges that share their highest constitutional priorities. For example, the liberal Obama appointed judges that agreed with his expansive view of executive power in anti-terrorism matters. Donald Trump is an authoritarian figure unmatched in American history and he might try to stack the judiciary with cronies that place loyalty to him above ell else. If Trump does this and the GOP refuses to stand up to him, progressives and their living Constitutionalism will have to bear the full weight of opposition.
Second, being in the wilderness sharpens the mind. Over the next four years the Democrats must decide whether and how to revamp their message. A lot of people feel that the New Coke must include a version of constitutional interpretation that can compete with the simplistic but effective “original intent” and “obey the written Constitution” marketing slogan of the Right. Lastly, esoteric matters of law aside, the public is on progressives’ side on most major constitutional issues. They do not believe that Medicare, federal aid to education, and Social Security are unconstitutional. They don’t want Roe overturned or the last limits on corporate campaign contributions to be swept away.
Unfortunately, the progressive POV on constitutional law does not easily fit on a bumper sticker. The Left views the Constitution as a “living document,” one that laid down timeless principles but that still must be interpreted non-mechanically in order to apply it to the today’s real world. But, beyond that commonality, progressive experts differ on specific methods and priorities. There are competing camps with catchy names like “ordered liberty,” “progressive originalism,” “democratic constitutionalism,” and others.
I’m not qualified nor interested enough to explain these nuances. But, I do know a bit. I will open our meeting on Monday with the basic ideas behind progressive constitutional interpretation as I understand them. Then, we can talk.
- Originalism: Why do progressives consider it unworkable and even kind of fraudulent?
- Basic liberal stance: Why do progressives say the Founders intended the Constitution to be a “living document” that must be interpreted for modern times?
- Rules for deciding: Okay, but how? What rules/priorities do progressives think we should use for interpretation? Original meaning, precedent, societal consensus, modern values, outcomes? Can these add up to a coherent philosophy?
- Differences/Labels: What are the biggest disagreements among progressives on this stuff and how do they end up as “democratic constitutionalism, “ordered liberty,” “New Textualism,” etc.
- Future: How will progressive react to the coming conservative constitutional revolution? Will they find any common ground with (some) Republicans?
SUGGESTED BACKGROUND READING –
- Why constitutional theory should matter, including to progressives. Recommended.
What might have been and what will be –
- How a liberal SCOTUS would have changed America.
- Trump’s SCOTUS will be radical — if he gets a 2nd pick. Recommended
- Some conservatives are afraid, too.
Critique of Conservative Methods –
- It is wrong to think Constitution not meant to be flexible. Easy read, recommended.
- A measured critique of originalism and defense of a living constitution.
- A conservative rebuttal.
Progressive constitutional interpretation –
- The Founders intended a flexible, non-dogmatic Constitution. Easy read.
- A progressive Constitution. Harder, recommended.
- More: The “Framers’ Constitution” is progressive. It is a “Distributive Constitution.”
[Update: I should have linked to the New Textualism – the best of the 3 articles.]
NEXT WEEK: Are we living in the “Asian Century?”
Breaking the law in order to highlight its injustice (one, but not the only, definition of civil disobedience) is all around us these days. In our crowded media environment, many individual acts or organized campaigns of civil disobedience don’t break through to the mass media. But, some that did in a big way are:
- Black Lives Matter;
- Occupy Wall Street;
- Protestors disrupting Donald Trump rallies;
- Cliven Bundy, et. al., facing down authorities in Nevada and Oregon to protest federal govt land policies;
- Local government officials (like Kim Davis in Kentucky) refusing to sign same sex marriage licenses;
- Edward Snowden leaking classified information on NSA eavesdropping programs.
Some of thee efforts involved many legal as well as illegal acts, of course, and some have achieved a lot more than just publicity. Black Lives Matter has had a major impact on the Democratic presidential primary and renewed efforts to reform policing. (We will discuss police reform and oversight on June 8.) The anti-Trump protestors have influenced the Republican presidential primary process, just maybe not in the way they intended. Others either fizzled out (Bundy) or just need more time to grow support (Snowden, perhaps).
The perpetrators of all of these illegal acts done for a higher purpose routinely cite as their inspirations famous civil disobedience actions of the past by abolitionists, civil and women’s rights activists, etc. As the author of one recent book on the subject puts it, civil disobedience is an American Tradition.
Now, I believe we may be entering a new era of political activism. Why is a subject for another days – many, actually. But I see this new era as arising from widespread public discontent with our political system and parties, income stagnation, and rapid demographic and cultural change. I think civil disobedience will play a heightened role in our politics because of the Internet and social media. Even if I’m wrong, the recent big protest movements cited above are well worth a meeting.
My idea here is for us to see if we can identify some universal principles on when civil disobedience might be morally and politically justifiable. We’ll look to our own values and our current political and social environment, sure. But we also can use our history, others’ histories (e.g., from Gandhi all the way to terrorism!), religion, and philosophy. The latter two have been arguing about when civil disobedience is and is not justified for generations. There are many interesting questions we can pose. For example…
DISCUSSION QUESTIONS –
- DEFINITION: What is “civil disobedience [CD]?” How does it differ from passive resistance or non-cooperation?
a. Must CD be non-violent? What is non-violence, anyway?
b. When does CD become something else, like insurrection?
- CURRENT: What major CD movements/acts are occurring right now?
a. How have they been justified by their perpetrators?
b. Are they helping or hindering budding political movements?
- PAST: Are there any major lessons from U.S. history on when civil disobedience is justified? Do all Americans agree on them?
a. Has it all depended on the object of the disobedience; i.e., on the morality of the goal? What else has mattered?
b. Has CD ever worked by itself, unattached to a big political movement?
- RELIGION and PHILOSOPHY: What do they say about civil disobedience? When is it justified and within what limits?
- LAW/GOVT/YOU/ME: Should the law treat acts of civil disobedience differently from ordinary law-breaking?
a. What about when there is no democracy or no way to redress grievances?
b. Is CD ever morally or religiously required?
SUGGESTED BACKGROUND READING –
Movements involving civil disobedience [CD]:
- Black Lives Matter has hugely influenced the Democratic Party. Recommended.
- Mass arrests of anti-Citizens United protestors happened just last week at the U.S. capitol building.
- Bundy stand-offs: What were they all about?
- Other recent conservative uses of civil disobedience. Recommended.
- MLK’s Letter from a Birmingham jail, 1963. Highly recommended because notice how he justifies taking direct action.
- Still, civil disobedience involves many thorny issues. Recommended.
- Civil disobedience in philosophy. A hard read from the Stanford Encyclopedia of Philosophy.
Problem with + limits to civil disobedience:
- The public usually sides against law-breakers, per the “Bigger Asshole” axiom. Recommended
- Targeted vs. untargeted civil disobedience.
- Crowds are disinhibiting and riots lead to backlashes.
Building grass roots political movements
Next Week: Thomas Jefferson and His Legacy. Jim Z. will guide us!
The Supreme Court was always going to be the big prize of the 2016 election. Justice Antonin Scalia’s death on February 13, 2016, just raised the already high stakes to an unequaled plateau because we now know the Court’s 20+ year-long conservative ideological majority hangs in the balance.
I originally scheduled this topic to discuss the string of 5-4 conservative decisions on major cases that everybody expected to come down the pike in April to June. These cases included ones on Obama’s climate regulations, the 1-person-1-vote redistricting standard, union rights, abortion and contraception access, affirmative action, and the death penalty. Oops. Now, those cases either will be reargued next term, remanded to lower courts, or let stand because SCOTUS is tied.
So, I think it might be fun to re-purpose this meeting to look more broadly at the relationship between the Supreme Court and elections – and public opinion. We kind of did this 2012 (Whose side is SCOTUS on?). But, that was more about how public opinion influences SCOTUS and how often the Court has defied majority public opinion to make unpopular rulings.
On Monday, I’d like us to begin by asking about the reverse relationship: How much does the public care about SCOTUS and how do high-profile Supreme Court issues influence voting? As the first link or two below explain, typically SCOTUS is not a very visible issue in our elections except for political activists, the most well-informed voters, and the economic interests intimately affected by Court decisions. But, given the historic moment, it might be different this time. Especially with presidential candidates running on issues that are before the Court but in limbo because of Scalia’s death, like Ted Cruz running on abortion and immigration and Bernie Sanders demanding that the next SCOTUS justice commit to overturn Citizens United.
I will give a short introduction to our meeting that focuses on the public’s view of the Supreme Court and whether/why that matters. Then, we can discuss if that is changing.
DISCUSSION QUESTIONS –
- Stakes: How high are the stakes in this election for the future of SCOTUS and American law and policy? Re:
- High-profile cases next term?
- Big areas of constitutional law, like civil rights, civil liberties, presidential power, natl security, voting rights and campaign finance, reproductive rights, labor unions, federalism, etc.?
- Obama’s achievements (many are reversible by SCOTUS)?
- Lower federal courts?
- Is a “constitutional revolution,” either progressive or conservative, at stake?
- History: Traditionally, how big an issue is SCOTUS in voters’ minds? Which voters care the most and why?
- 2016 Rhetoric: What are the candidates saying about SCOTUS stakes and who is the rhetoric aimed at (voters, activists, Media, donors)?
- 2016 Receptivity: Will it have any effect – how will we know? Will it raise expectations that have to be met?
- 2017 and beyond:
- What kinds of justices would Hillary/Bernie or Cruz/Trump/other nominate? Any chance of picking a moderate?
- Will GOP refuse any nominee, keeping a 4-4 Court?
- How would your answers to Q1/ a-e be different with a GOP or a Democratic Supreme Court?
SUGGESTED BACKGROUND READING –
- Written before Scalia’s death:
- Scalia’s death already has ended the conservative SCOTUS majority. Recommended.
- And it rockets the Court into a mainstream campaign issue in 2016. Recommended.
- [Very optional – Scalia’s legacy
- If a Democrat wins White House:
- If a Republican wins White House:
- 2017 and beyond: Will extreme partisanship cause the Supreme Court to just disappear? Recommended.
Next Week: When is civil disobedience justified?
I’ve mentioned many times that in my view the modern conservative political program can be (simplistically, of course) described as in three words: Cut, deregulate, and privatize. Cut taxes, especially on investment. Deregulate industry, especially President Obamas new ones on Big Finance and the health care industries. Privatize public services at all levels of government. This week John S. wants us to talk about a little-understood but very important part of the last part of this three-pronged agenda: The growing privatization of our legal system, especially of the right to sue.
We’re all familiar with the growing private control over the making of our laws, due to lobbying and loosened campaign finance rules. John’s idea should spur us to talk about the increasing private control over the enforcement of our laws. This is true of both civil and criminal law.
In civil law, tort reform (a major conservative political priority) and the now-ubiquitous use by big corporations of binding arbitration clauses in consumer agreements and even employment contracts has severely limited your ability to sue for damages when you are wronged by a big company. Use of class action lawsuits, another check on corporate power, also have been curtailed. I suppose you also could add the rise of secretive investor dispute settlement panels in international trade agreements to this list, since they basically privatize a part of what used to be strictly government-to-government trade law enforcement.
In criminal law, we have privately-owned and operated prisons housing almost 10 percent of all prisoners, and outsourced probation enforcement. The incentives built into this privatizing of legal punishments can lead to sometimes disastrous results (see links). I’m sure I’m missing some of the ways our penal system has been turned over to private contractors.
Finally, and analogous to what is happening with corporations, we have seen our right to sue government when it harms us restricted. Government officials have always had qualified immunity from lawsuits when they are performing their statutorily-mandated duties. But, recent court decision have expanded this type of immunity, as well.
I don’t want to exaggerate these trends. Our entire legal system has not been handed over to corporations and private interests. Yet. Nor, of course, should they all be automatically condemned nor laid at the feet of political conservatives. The public good may benefit from some of these developments. But, I think you will learn some unsettling things about the bowels of our legal system on Monday.
Since I’m low on time this weekend, my research (and the readings, below) will focus on the binding arbitration and class action issues. My intro on Monday night will emphasize them. In addition, you may want to read one of the articles on the consequences of state/local governments privatizing the enforcement of probation.
SUGGESTED BACKGROUND READING –
- Q: Why do Americans sue so much?
A: Many reasons, including that – unlike other countries – we rely on litigation to enforce govt regulation.
- Civil law privatization:
- Criminal law privatization:
Next Week: What Are the Sources of Islamist Radicalism?