Constitutional Prejudice: Why the Minnesota Senators Got it Wrong on Same-Sex Marriages

No surprise–Minnesota Senate Republicans unveiled on April 26, a state constitutional amendment to bar same-sex marriage. Assuming it clears the legislature and goes to the voters there is no guarantee that it will pass. But that is beside the point. The purpose of the amendment is less about its actual passage than about symbolic politics and voter mobilization in the 2012 elections. Its proposal demonstrates a gross misunderstanding of American politics, the Constitution, and is an unfortunate and cynical appeal to prejudice for political gain.

Why a constitutional amendment to bar same-sex marriage? It seems unnecessary given a 1971 Minnesota Supreme Court decision Baker v. Nelson and a 1997 state law barring same-sex couples from marrying. Yet GOP Senators in affirming their reasons for the amendment stated that laws can change and courts can alter their minds but constitutional amendments are more permanent. They contended that voters have a right to have a say on who is allowed to marry.

The senators are correct about the former, wrong about the latter. However, the law should change to reflect new circumstances and public opinion and judges should calibrate interpretations in light of new facts and circumstances. The law should not be fixed in the past reflecting old prejudices and beliefs. To argue that is to assert that the law should be frozen in the past. Democracy is about consent of the present, not of the past.

But the law should not be fixed in the past. Such logic was characteristic of the most notorious Supreme Court case of all time–Dred Scot v. Sanford–an 1854 decision declaring African-Americans (then slaves) could never be citizens because it was contrary to the intent of the constitutional framers. The same logic persistent in the 1874 Minor v. Happersett case where the Supreme Court ruled that women could not vote for similar reasons. These decisions reaffirmed old prejudices and beliefs. The purpose of the law should not be to enshrine dogmas and prejudices. The Supreme Court said the same in its 1967 Loving v. Virginia decision striking down a Virginia law barring couples of different races from marrying. In Loving the Court declared marriage a fundamental right–the essence of a free society is letting people decide with whom they form a life. Democracy is about majority rule, but such a decision about who we can marry is not a choice for majorities to decide. This is why we have a Bill of Rights–to protect the minority from the tyranny of the majority.

As Justice Jackson eloquently declared in a case affirming freedom of religion: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” The same is true with marriage. I doubt anyone believes that the voters should have been able to decide in 1967 or today whether individuals of different races should marry. Proposals to put this to a vote simply mask racism and appeal to prejudice. The same logic applies to same-sex marriage.

There is no good public policy reason to bar same-sex couples from marrying. But the constitutional amendment is not about policy, it is about symbolic politics and voter mobilization. As was demonstrated in 2004 when Karl Rove and the GOP placed bans on same-sex marriage on the ballots across many states, it was a terrific hot button issue to mobilize voters. It worked. The religious conservatives turned out in droves.

Placing a ban on gay marriage on the ballot for 2012 might work for similar purposes. First, it is a symbolic payback to the religious right who backed GOP candidates in 2010. Thus, it is pandering to special interests. Second, placing the amendment on the ballot is simply an effort to repeat 2004. The hope no doubt is that this amendment in 2012 will offset what some think will be a better year for Minnesota Democrats when Barack Obama and Amy Klobuchar are on the ballot. Place this amendment on the ballot and as the theory goes, it will drive more conservatives to vote.

However, 2012 is not 2004 and such a strategy may backfire as public opinion has changed and it may engage progressives this time. This is a gamble the GOP senators are taking. Their purpose thus is not so much to pass the amendment but use it and cynically appeal to prejudice to pay off supporters and drive voter turnout.

You’re Hired: Trump for President?

“You can make the transition, but it is a hard transition to make,” said Schultz, who added that he doesn’t think Trump is seriously considering a run. “It might work in a political atmosphere where people don't want traditional candidate -- if he can carve a message and convince voters he is a viable candidate.”
----David Schultz, Fox 9 News, April 19, 2011



Donald Trump for president?! Rising popularity for Trump among many in the GOP (as evidenced by recent Iowa and other polls) and speeches by him to the Tea Party fuel speculation that he is running for president. Moreover, his pandering to the right by joining the birther movement all point to the belief he is a serious candidate for president. This was the subject of a April 19, 2011 Fox 9 news story in which I was interviewed. Follow this link to the video and story.

Republican activist and former Lt. Governor Annette Meeks dismissed Trump’s candidacy as a joke, and many voters in Minneapolis when ask, also questioned his viability. Some thought that he was a reality show celeb but that did not qualify him for the presidency. Others thought his businessman status might make him qualified. All this is grist for good debate.

The core questions are: 1) Is Trump a viable candidate and 2) Is he going to run?

The Case for Trump
Trump brings to the presidential table many assets and equally as many liabilities. The four biggest assets are his name recognition, personal wealth, his business experience, and the aura of the unknown. In terms of name recognition, everyone knows the Trump name even if they do not know who he is. Some many say reality show star, others that he is a businessman. It does not matter. He has name recognition and in the world of politics that counts for a ton. Ask Tim Pawlenty about this, as he travels the country and people say “Tim Who?”

Being a rock star or a politainer (politician and entertainer combined) is a major boast to success in politics. It gives you a buzz and a heads up on other candidates. It shows your ability to market yourself, establish a political brand, attract media attention, and to perform many of the functions critical to success in contemporary politics. Trump has already demonstrated these skills, suggesting they can be transferred to politics.

Name recognition will be critical in 2012. Everyone knows Obama. He too is a rock star and it is hard to beat an incumbent president. Trump’s advantage is a media presence that is greater than anyone else on the GOP side. This gives him a head start against Obama.

Second, Trump is wealthy. Obama plans to raise $1 billion for his reelection. It will be nearly impossible for any Republican to rival this. However a self-financed candidate such as Trump might be able to counter the Obama money. Thus, Trump has a money advantage.

Third, Trump is a businessman. The GOP and the electorate like the idea of a businessperson running for president, even if in reality they do not elect such people. Ask Mitt Romney. Trump can claim to be a Ross Perot type candidate, bringing business sense and decisiveness to government. Think of all the people he will say “You’re fired” to if elected. Many find this attractive.

Finally, there is the aura of the unknown. No one really knows what Trump believes and they glom on to him what they hope and believe.

Trump thus has many assets. At a time when the GOP is searching for a viable candidate and there is no hands down leader, Trump has a window.

But some argue he is merely a reality show star, how can anyone take him seriously? Jesse Ventura was no better than a wrestler and B-movie star and Arnold was an actor yet both made the transition to the governorships. In an atmosphere where people do not like government and traditional politicians, Jesse and Arnold emerged. The same might be true for Donald and that is perhaps why he is attractive to the TEA Party folks.

Trump’s Lumps
But Trump has liabilities. He has high name recognition but also high negatives. Many people just do not like him. He is arrogant, bossy, loud, and obnoxious. He is not likeable. Likeability (sic) is a critical factor when people vote for president. John Kerry learned this when he challenged Bush in 2004–voters personally liked Bush more.

Trump also has the seriousness problem. Yes he is a reality show star who can leverage that brand politically. But he needs to make that transition. He needs to convince people he is real candidate and not simply a joke. He can do it, but the high negatives he has (or I am sure he has) suggests a different road for him versus Jesse or Arnold who did not have the same high negatives when they began their campaigns.

Many also do not trust Trump. Fox 9 reported that he gave millions to the Democrats. How will that be viewed among many GOP faithful. There is the allure of the unknown but also the fear that he cannot be trusted to hew a political line. Sure this is an asset for many, but for others a fear of unpredictability. There is also the fear that his bluntness will alienate many voters. In part, this is where Ms. Meeks is coming from.

Finally, Trump the person is a problem. He has filed for bankruptcy a couple of times, he personal life has divorces in it, and there is no sense that he follows an orthodoxy on social issues such as abortion or gay marriage. These are all problems for many GOP, and in many circles, for swing voters.

In short, Donald Trump is out there, but out there are many things that can be attacked and it is not clear in a debate how well he will come off beyond being an obnoxious New Yorker.

But will he run?
No. Trump is not really going to run. He is a genius of self-promotion and branding. Were he to run his television show is off the air due to the equal time doctrine. His candidacy will risk his business brand and Trump will not take a chance to hurt that brand. Instead, as I said to Fox 9, he will flirt with running for months to enhance his brand and then decide not to do it. In the process, he will be a distraction to the GOP in their search for a viable and real candidate, thereby hurting their efforts to unite behind someone to take on Obama. Trump will steal the headlines away from the other candidates and divert attention from the case against Obama. This is also what Ms. Meeks fears. The Democrats must be loving this.

American Politics Ala Jerry Springer

What has happened to civility in American politics? This question dominated the news following the shooting of Representative Giffords a few months ago, but it has been an on-going leitmotif of political writing and analysis for the last few years. Two questions are prompted by the civility question: (1) Is American politics any less civil than it was 10, 20, or maybe a 100 years ago; and if so 2) What is the cause of that increased incivility?

The thesis of this blog is simple: The Jerry Springer Show is a metaphor for American politics. It is about staged conflict and drama and not about a rational discourse about public policy. It is the drama of good versus evil and demonizing opponents.

What prompts me to write about it is an event at the Minnesota Legislature this past Tuesday. I was supposed to testify before the House Civil Law Committee against another abortion bill. This is the one banning women from terminating pregnancies after 20 weeks. I had previously testified against the bill, contending it was unconstitutional. The bill was originally queued second on the committee’s schedule, allowing me time to testify and then make it to class. A request was made to put me on the testimony schedule. When I arrived two things had occurred. First, the bill was moved to near the end of the schedule and, second, I was not on the list to testify. Apparently the schedule had been changed to accommodate the preferences of the majority who wanted to placate one of their witnesses. Regularly, both parties, when in the majority, change hearing times and make it miserable for opponents to testify. This happened to me a few years ago also with a judiciary bill I sought to testify against. It became so clear that they did not want me to testify that we had to arrange for me to stay outside the room and out of committee sight until testimony was called for so I could then sneak into the room to talk. So much for committees and legislators wanting to use hearings to gather facts, but that is another story.

However the second thing occurred once I left this past Tuesday to go to class (less my students run away). Miraculously about five minutes after I left the bill was called up. A mere coincidence that it occurred after I had just left! However, the ACLU and a minister testified against the abortion banning bill. Afterward, Representative Tony Cornish called both (according to those who told me) “reprehensible and disgusting.”

Now maybe Cornish did not agree with the policy positions of the ACLU and the minister, but was it necessary to call them names? When I was growing up I learned two things from my parents ”Sticks and stones will break your bones but names will never hurt you” was one. The other was that it was childish and immature to call people names. I think my parents were correct. Name-calling is childish and immature. You only call people names when you wish to demean others, or when you have no other way to respond to arguments. It is what guests do on Jerry Springer–they simply insult one another. It may make for cruel humor but it does not substitute for rational, informed debate.

American politics has a long history of wide-open, robust, and often uncivil debate. Accusations about George Washington buying elections with rum date back to before the American Revolution. The 19th century regularly featured harsh cartoons and editorials attacking candidate and party character. The 1950s McCarthy era featured accusations of disloyalty. The list goes on. Only the most halcyonic or rose-colored view of American history would say politics was cleaner or more civil then. Yet there is clearly an incivility today, and the question is why or what seem to be the roots of it today?

One answer is the change in party composition in America. Parties are more polarized now than they have been in at least 50 if not more years. There is a big gulf or divide over some issues such as abortion and gay rights. There are fewer conservatives in the Democratic Party and the same for liberals among the Republican Party. Thus, the more ideological strain of American politics produces more polarization and that in turn inflames rhetoric.

Moreover, the good versus evil or extremist politics play well in the 24/7 news cycle. I find that I cannot watch any national news talk show. They are so predictable and boring. Pick individuals of extreme views on opposing sides, have them yell at other, and we call that fair and balanced news. The same is done with the media picking one person from the other side to interview and that person holds very unorthodox views. All this is a Jerry Springer approach to the news. Whoa be it that a news station places rational, thoughtful individuals on a panel to discuss real issues and solutions.

Parties, or at least candidates and elected officials pander to this polarization. We are at a point where each side demonizes the other, accusing its opponent as evil, calculating, as some type of low-life. We make the other party or other side the enemy, and the purpose of doing that is to motivate the base. Make the battle one of good versus evil. This is what Tony Cornish did. The abortion hearing was televised and supporters of his position were in the audience. It was good copy to call names and demonize the opponents. I bet he runs the tape on You-Tube and for his next election. Again, it was a Jerry Springer moment.

My point here is that incivility has always been with us in politics. The current causes are new, rooted in 24/7 news cycles, changing notions of news, party polarization, and candidates pandering to all these events by using inflamed rhetoric for perhaps personal electoral advantage.

The result of all of this has produced the stalemates we see in Congress and legislatures across the country. How do you negotiate and compromise the devil? You cannot. Thus, what we have yielded is a take no prisoners and a do not compromise rhetoric and approach to critical issues that precludes any reasonable and meaningful debate. Facts be damned, legislative hearings are not about making good policy, they instead are staged events, no less different than the Jerry Springer Show.

Debating Government: The Competing Values of Public Service and Market Activity

JFK, Space-Aliens, and Government
I am not a big believer in conspiracies. It was a single shooter in Dallas in 1963 and there is no massive government cover-up over space aliens and area 51 in New Mexico. Yet the events unfolding in Wisconsin over efforts to strip public employees of their bargaining rights and the ugly Prosser/Kloppenburg Supreme Court race, the potential government shutdown in DC, and the coming train wreck over the budget in Minnesota are all connected. The common thread in all these events is a simple question and debate: “Why Government?”

Why Government?
More specifically, the question is over the value of government in terms of what it uniquely does or performs. It is a core debate over whether the free market and logic and values are sufficient for ordering American society, distributing wealth and income, and delivering the good life, or whether the government itself is necessary or needed to accomplish this task. The core debate then is over whether there are unique values and contribution that government and its workers offer, thereby distinguishing them from the free market.

This is a question that has dominated my teaching in classes on ethics, public policy, and economic development policy for at least a decade. It is also a question that has become the focus of many talks I give to community and governmental groups. The latter especially are asking me to address it as they feel increasingly assaulted and demonized.

Americans have never really liked government. It started perhaps with our animosity to George III when we dumped tea in Boston Harbor. American ambivalence can be seen in attitudes over government programs such as welfare and Social Security (we hate one, like the other), and views on government regulation (we like the FDA to regulate drugs to be sure they are safe but dislike this regulation when it slows down what we hope are new cures for cancer). Even the TEA party is torn over government–they want less taxes and less government and plea for a more libertarian society, yet they demand that the government keep their hands off of their Medicare and Social Security.

But the most recent disdain toward government was launched by Ronald Reagan in 1981 when he declared government the problem, not the solution, and also stated that one of the most feared statements one can hear is “I'm from the government and I'm here to help.” Statements such as this demonized government, and it is not hard to connect this spirit to current attacks on school teachers and public employees by NJ and WI Governors Christie and Walker.

Not Necessarily a Partisan Issue
At the crudest level the debate over the unique value of government is a Republican/Democrat one, with the former described as anti-government and the latter pro. This is not a fair characterization. Many GOP like some aspects of government–the military and the police, and many Democrats dislike parts of government–regulation of reproductive and marital rights. But even more deeply, under president Clinton and VP Gore, embraced ideas from Reinventing Government by Gaebler and Osborne to re-engineer the public sector. The latter argued for the introduction of many private sector ideas and the spirit of entrepreneurship into the government in order to revitalize it. They wanted to make government, as Ross Perot said: “Run more like a business.”

Thus we saw statements that government should treat citizens more like customers, that it should be more market savvy, and that it should do more privatization and encourage competition to save money and improve performance. Why all this discussion is charming, what it failed to do was two things: 1) It misunderstood something the constitutional framers saw; and 2) it failed to capture a unique conception or role for government.


Markets versus Government
The American Constitutional framers feared powerful government. Efficient governments are a threat to individual liberty. Their goal in designing a complex government with checks and balances, separation of powers, bicameralism, and staggered electoral terms was to slow down the process of political change. It was to prevent an impulsive tyranny of the majority from infringing the rights of the minority. Better to create an inefficient government than an efficient one that makes the trains run on time at the expense of individual rights. Thus, a constitutional government such as ours was never meant to be efficient in the sense of competing with the private sector.

Efficiency is only one of the values of government, but there are others. This is the second mistake now being made. Governments are not just supposed to be efficient, they are also supposed to be fair, care about equity and equality, and respect other values such as transparency and respect for individual rights. Gaebler and Osborne failed to appreciate this, and so do many in both parties as they argue over the value of government.

Thus, on one level, listen to economists and they will tell you that the rationale for government is to address the problem of market failure. Government must act when the market either cannot or is not able to solve problems. Classically these are problems involving public goods such as national defense or security, or externalities such as pollution. These are issues where there is no market incentive to solve the problems.

The Value of Government
Yet this economic justification of government is thin. There is a broader value for government based on democracy and the public interest. As I discussed with my students the other day, many local governments in MN have recreation centers, parks, and libraries. True there may be no return on investment to them and they may not be efficient to operate, but that is not the end of the debate on whether government should provide them. Instead, it is about whether the people want these amenities. It is the peoples’ choice to offer these goodies. Moreover, the way the government makes choices and decisions are not always efficient but again, efficiency is not the final value. We do not value elections, due process, or civil liberties and rights because they are efficient, we prize them because they promote fairness and accountability.

The private sector almost singularly promotes efficiency and the bottom line. In the end, while many businesses claim “they do it all for you,” how many of you believe that is true? It is only to the extent that doing it for you is profitable or makes sense. Think about how much we all hate phone trees with businesses–it may be cheap to do this but does any customer think this is good service.

Citizens are not Customers
Contrary to what some may contend, citizens are not customers. A business-customer relationship is a cash nexus with loyalty determined along a singular dimension. A government-citizen relationship is deeper, reflecting many more complex values and connections regarding democracy, transparency, and accountability. “No taxation without representation” captures this sentiment while “No user fee without representation” misses it. The former suggests a right to a voice, the latter not necessarily. There is a big worry when some advocate that government should be more like a business. It is a logic that changes and challenges the basic values of government–suggesting government is not necessary and that it is simply a thorn in the side of the market.

Conclusion
The real debate in Wisconsin, DC, and St. Paul is one over government versus the market. It is one about the values of government and what it can contribute to the promotion of a good society. This is a debate worth having, and it is one that advocates for government need to reframe in terms of a language and set of values that describes what government uniquely can do. If they fail to do that they will lose the debate.

Altered States: GOP Denial and the War Against Reality

Denial isn’t just a river in Egypt

Ever wonder what state politicians live in, especially Republicans these days? From the looks of it, it is the state of denial and it is a state where the poor, elderly, students, immigrants, working class, and the future do not live or matter.

Look at the budget process at both the federal and Minnesota state level and it is clear that many in the GOP are engaged in a war against the poor, elderly, students, immigrants, and working class. In Minnesota, the GOP proposed budget cuts that slash higher end spending, they are cutting money for health care for the poor, K-12 is taking hits, and local governments and their services are being targeted. At the federal level the cuts are also hurting the same constituencies, and in Michigan the governor supports legislation cutting back on unemployment benefits by six weeks. Talk about kicking people when they are down!

None of the above even includes the war on public sector unions in Wisconsin, Ohio, and other states, efforts to pass election voter ID laws to address nonexistent fraud, and of course restrictive abortion laws in Arizona, North Dakota, and perhaps Minnesota. Nor does it include the war against the EPA and it ignores global warming. Moreover, the cuts to education and infrastructure investment seem to ignore the need to invest in the future. Actually, except for wanting to protect a few fetuses, there is no regard for the future. Even with the fetuses, once born they are on their own and too ignored and condemned to attend poorly funded schools and drive on bad bridges and roads, unless they happen to be lucky and be born privileged.

It is clear who the constituency of the GOP is. They represent a state of America populated by corporations, the rich, male, and those who hate government. They do not seem to believe that when things get rough we have an obligation to help one another or that perhaps those better off and capable of sheltering the burdens or costs should do that to help out the less fortunate. It is an antisocial philosophy, reflecting the individualism of the marketplace or the community of civil society. It is Ayn Rand’s vision.

They believe that the free market is wonderful and that it can solve all our problems, while ignoring the recent economic crash of 2008, its lasting legacies, and the role government played in forking out taxpayer money to bail them out. They ideologically believe that cutting government, taxes, and regulation will spur on the economy, yet this philosophy is no more than supply-side economics rehashed yet again for the Nth time.

And where is this ideology taking us? At the federal level we have no budget and we flirt again with a government shutdown. In Minnesota, the GOP keep passing cuts and it is clear Dayton will veto them, making a special session if not a July shutdown possible. It is a philosophy of ideological purity, bent on the belief that compromise is bad and that anything short of a 100% win is a loss and a sacrifice of principle. Better to bring down the government than compromise. Better to hurt the least advantaged than make the more affluent help out. Better to assume the market will work at its optimum in theory than think about how it works in practice and in comparison to government in reality.

Academics are often accused of living in an ivory tower. Yet the tower or state that the Republicans are living in seems so much more detached from reality than any university classroom. It is a state of denial–denying the real world implications of their choices and how by simply serving their constituents greedy interests they are hurting society in general and sacrificing the future to the present. This is an unsustainable philosophy yet somehow it persists, partly because the Democrats are too weak, ineffective, or bought off by the same interests to challenge them, the public often too apathetic or ignorant to care or know, or the media often unable or willing to report the story about this reality.


A Note on the Economy

The stock market slowly climbs and corporate profits have rebounded, yet for most Americans there is little real sign of improving economic conditions. Housing prices continued to slide for the sixth month in a row, and there is little indication that banks wish to lend money and individuals want to buy homes for fear that their investment is not worth it. Millions of houses are poised to enter foreclosure and there is no sight that the real estate market is rebounding. But of course the good news is that the federal government made $24 billion on its loans via TARP to prop up banks and other financial institutions.

Additionally, consumer confidence again slipped last month and while payroll has increased, there is still no sign that businesses are ready to pump money into hiring. Instead, as the Financial Times reports, mergers and acquisitions are dramatically up.

It is now clear what businesses are doing with their money. They are returning to profitability, borrowing at low cost, and using the cash to buy out competitors, such as what AT&T is doing with T-Mobile. They are not investing in jobs or the economy. Welcome to the status quo!

Dodd-Frank, the federal law to restructure the financial markets, was supposed to address some of these problems. Yet it is clear that after the 2008 meltdown and crash little has changed. Banks helped destroy the economy, got bailed out, are again making tons of money and have bonuses to pay their executives, yet they refuse to loan money. Additionally, businesses are not hiring. It seems that the banks, corporations, and the rich are doing well, and the rest of us are being ignored. They got a free lunch in terms of bailouts from the taxpayers and the rest of us continue to pay for their mistakes.

Yes GOP policies are to blame for much of this, but the Democrats seem no better here. They hardly fight and Obama’s surrender on extending the Bush era tax cuts, while perhaps politically savvy, was and remains bad policy that hurts the poor and middle class. Last December Jesse Jackson and Pat Buchanan agreed the tax cuts were bad policy. Buchanan stated the cuts would exacerbate the deficit and Jackson asserted that tax cuts for the rich then would mean service cuts for the poor this year. Both were correct. The economy is marginally better now than in December, and it is clear we have failed to make changes to address the basic problems that 2008 revealed. We seem to have moved onto the future, assuming all is fine, in the state of denial we live in.

Obama and Libya: The Authority to Act? (Plus a note on Pawlenty)

Muammar Gaddafi is an evil man who sponsored terrorism, suppressed, democracy, and has killed and tortured his people. I cheered when Libyans rose up against him. I supported the US and western embargo, the freezing of assets, and doing what we could to support the opposition. Gaddafi has to go.

But the same can be said of Kim Jong-Il in North Korea as well of Ahmadinejad in Iran, Mugabe in Zimbabwe, the leaders in China, and a host of other autocrats across the world. It would be terrific if they were swept aside by their people and democratic societies and governments replaced them. It wold also be wonderful if the US did all it could to encourage this–getting behind democracy and the people.

Yet the problem for the United States and Gaddafi is special–the U.S. has decided to use armed force to assist the opposition. This use of force raises three problems: 1) presidential authority to act; 2) what is distinct about Libya; and 3) what is the end game for the US?

Presidential Authority to Act

What constitutional authority does President Obama have to justify his deployment of American military force to enforce a no-fly zone in Libya? This is not clear.

The two sources of legal authority Obama can reference would be either the Commander-in-Chief clause of Article II of the Constitution, or the 1973 War Powers Act.

It is not clear how the Commander-in-Chief clause supports this action. The constitutional framers intended for Congress to be the dominant branch when it came to military and perhaps foreign affairs. Article I textually commits to Congress the power to declare war along with a host of other powers related to the military. Here Congress has not declared war and it is unlike after 9-11 when Congress did enact the Authorization to Use Military Force that gave Bush the authority (arguably) to deploy troops in Afghanistan. At least Bush had some legal authority to wage a war on terrorism, no matter how tenuous.

If Obama is relying on his Commander-in-Chief powers, it is hard to see how they come in. Libya has not attacked the US, it is not threatening vital interests, and it is not otherwise doing something that directly conflicts with American national security. Instead, to contend that the Commander-in-Chief clause gives Obama unilateral authority to deploy these troops is no different or better than Bush era assertions by John Yoo and others that the president had inherent constitutional authority to act. He does not.

There is no extra-constitutional authority for presidents to act. I discuss this issue in two articles. One is “ Democracy on Trial: Terrorism, Crime, and National Security Policy in a Post 9-11 World” that came out in Golden Gate Law Review and is located at http://works.bepress.com/david_schultz/15/ . The other is a piece entitled “Don’t Know Much About History: Constitutional Text, Practice, and Presidential Power,” http://works.bepress.com/david_schultz/11/ . This is a forthcoming piece is the University of St. Thomas Journal of Law and Public Policy.

Disputes over presidential power to deploy troops were supposedly addressed by the War Powers Act in 1973. It placed limits on presidential power to deploy troops for limited purposes, subject to consultation with and notification to Congress that the Act was being invoked. Here again Obama did not invoke the Act, although he does seem to reference it in terms of reporting to Congress. Had he actually invoked the Act, it might have provided clear support for his actions.

What Obama does seem to be invoking is Security Council Resolution 1973 that calls upon member states to enforce the no-fly zone. (Here is a link to his statement http://www.whitehouse.gov/the-press-office/2011/03/21/letter-president-regarding-commencement-operations-libya ) However, UN resolutions are not self-executing in the US. They cannot create presidential constitutional authority when none already existed. The president still needs to get constitutional authority. Acting as he did seemed similar to what Bush did when he sought UN support to invade Iraq in search of the non-existent WMD.

What should Obama have done? For what seemed like two weeks he dithered over what to do as the rebels advanced and then were beaten back. He should have been consulting with Congress, getting their support to act if the UN authorized action, or he could have clearly invoked the War Powers Resolution. But in any case, he did nothing and then perhaps acted as Bush would–relying on some vague inherent presidential powers.

Overall, it is possible Obama had legal justification to act, it is just not clear what it is.

What is distinct about Libya?

The second problem is what is distinct about Libya? Assume for now that Obama has the constitutional authority to act. Why Libya and why not Kim Jong-Il in North Korea, Ahmadinejad in Iran or Mugabe in Zimbabwe? Perhaps one can argue that resolution 1973 makes the difference. Specifically, world opinion and international law provide legal authority to act here and that is the difference. This may be a good legal argument, but what about the real politick argument for the US?

Libya is less of a threat to the US than Iran and Korea. From a strategic point of view it is hard to justify intervention. Korea and Zimbabwe are equally as brutal regimes. Why not them? Perhaps the difference here is that there is a popular movement to oust him and that is the reason why we are acting? Maybe the issue is about prospects of success in ousting him? All of these are possible answers yet I have yet to see a reason or argument that principally distinguishes Libya from acting in the other countries. Such a failure to clarify is what led Bush into Iraq and why the US is viewed as a hypocrite when it comes to us supporting or placating some repressive regimes, including in the Arab world. Why for example, did we not act in Bahrain?

What is the End game?

The final troubling issue is the end game for Obama? What are our goals and what are we trying to accomplish? If it is simply to enforce the no-fly zone that already seems to have been secured. Do we now walk away or does that now require a constant presence? Is it to prevent Gaddafi from killing and abusing his people? If so then what more does it require? It is to take Gaddafi out? Military action in the last two days seem to suggest the later two options are possible goals?

It is just not clear what the end game is and what we hope to achieve. Given comments by SOS Clinton and Obama in the last week or so, ousting Gaddafi seems the real objective but there is nothing in Resolution 1973, in the power of the presidency, or in any statement by Obama that provides a clear definition of what our objectives are. For those of us growing up during Vietnam one of the major lessons was that there must be clear objectives surrounding US military action, and that seems absent here.

I would like Gaddafi out. I thought Obama waited too late to act. He needed to line up congressional support sooner when the Libyan opposition was stronger. He needed to show how the US could stand up for Arab people and not their dictators. He had a chance to take decisive action but he dithered. He waited so late that is probably costing more lives. That is the real tragedy of human suffering. But the other tragedy is constitutional and political–he has failed to show by what legal authority he is acting, why Libya, and what his end game is. All of this raises difficult questions for Obama and the United States.

A Note on Pawlenty


No surprise that Pawlenty is forming a presidential exploratory committee. We have known all along he wants to run for president. He needs to run because he has no other prospects for what to do.
But creating the committee still does not solve two fundamental problems Pawlenty has. First he has no narrative or voice that distinguishes him from all the other GOP candidates who may decide to run for president. He has failed so far to make the case for himself.

Second, Pawlenty seems to be running against everything. He is running against Obama, against taxes, and against federal health care. He tells us all the things he is against and will not do but he has failed to state what he will do as president. It is as if he is running against and not for the presidency. If he hates the government so much why does he want to be president? I am perplexed.

There is a reason he is so far down in the polls. He has no identity to call his own. After neatly two years unofficially running he is behind Michele Bachmann who has been an undeclared presidential candidate for about three months. He needs to catch fire quickly and hope for a good Iowa bounce. So far there is no indication that it will happen.

Abortion Fever, Misogynists, and the War Against Women

The Minnesota GOP and the Minnesota Citizens Concerned for Life (MCCL) don’t trust women. Yet again they are proposing a series of bills that would restrict the right of women to terminate pregnancies. Yesterday and today I submitted written and oral testimony opposing HF 201 and HF 936. The first bill would seek to deny state funding to pay for poor women to terminate pregnancies and the latter bill is a flat ban on abortion after week 20.

I testified that both bills are unconstitutional, I am including my testimony on HF 936 below for all to see.

Just a few thoughts.

First, the MCCL folks like to use emotion, photos (of fetuses), and pejorative statements to demean women and doctors. They refer to them as abortionists. I think pro-choice folks need to adopt a different language to describe their position–misogynists. Essentially they are anti-women and do not trust them to consult with doctors to make appropriate medical and ethical choices. I trust women. Not everyone may reach the decisions I would reach but it is democracy and the value of pluralist democracy. Each of us gets to make our own choices. Moreover, I find it strange that the concern for life for many seems to end when the fetus exists the womb. At that point there is little support for health care and other support to care for the children.

Moreover, I find it interesting that this group talks about ethics. One can only be held morally responsible if one has a choice. Their aim is to take choice away. With no choice there is no moral responsibility. Hmm.

Testimony of Professor David Schultz
in Opposition to HF 936
March 16, 2011
State Office Building 200
2:30 PM

Introduction
I am David Schultz and I am here to testify in opposition to HF 936.

Credentials
I am a professor at Hamline University in the School of Business where I teach classes in public administration. I have a Ph.D. in political science and a J.D. (Law degree) and currently hold appointments at the Hamline and University of Minnesota Schools of Law. I am the author/editor of among other publications the Constitutional Law in Contemporary America, Encyclopedia of the United States Constitution, Encyclopedia of American Law, Encyclopedia of the Supreme Court, and the Encyclopedia of Civil Liberties.

The views expressed here are my own and not those of the schools where I teach.

Arguments Against HF 936
There are three reasons why I oppose HF 936 and why you should vote against it.

* HF 936 is unconstitutional.
HF 936 clearly violates the United States and Minnesota Constitutions.

The Supreme Court ruled in Roe v. Wade, 410 U.S. 113 (1973) that a constitutional right to privacy was broad enough to protect the right of a woman to terminate a pregnancy. This right was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505, U.S. 833 (1992). Roe articulated a trimester distinction or structure to determine the competing rights of the woman versus the state in preserving fetal health. Yet even under this trimester schema, the core holding of Roe articulated a fundamental right of a woman to terminate a pregnancy. That core holding remains valid today and HF936 is unconstitutional under it.

HF 936 is also unconstitutional when viewed under alternative tests or case law subsequent to Roe and Casey. In cases such as Casey and City of Akron v. Akron Center for Reproductive Health, 462 US 416 (1983), Justice O’Connor suggested use of the “undue burden”test to determine whether a state law interfered with a woman’s right to terminate a pregnancy. While there is some dispute whether this test is constitutionally mandated, there is no question that the flat ban on abortion proposed in HF 936 unduly burdens a woman’s right to terminate a pregnancy.

Finally, in Gonzales v. Carhart, 550 U.S. 124 (2007), the Supreme Court upheld a federal law banning so called partial birth abortions. That decision represents the singular instance of a specific ban on an abortion procedure being upheld. But even under Gonzales, women, even after 20 weeks, still retain a constitutional right to terminate a pregnancy such that a flat ban on this right, even with the exceptions noted in HF936, are unconstitutional.

In addition to violating the United States Constitution, HF 936 violate the Minnesota Constitution. In Doe v. Gomez, 542 N.W.2d 17 (1995), the Minnesota Supreme Court ruled that Article I, Sections 2, 7 and 10 of the Minnesota Constitution encompassed a right to privacy broader enough to protect a right of a women to terminate a pregnancy. In that decision the Court also ruled that the constitutional right to privacy afforded under the Minnesota Constitution is broader than that offered under the U.S. Constitution. Thus, if HF 936 violates the federal constitution then under the more stringent requirements of the Minnesota Constitution it is also unconstitutional.

* HF 936 Invites Legislating from the Bench and Disrespect for the Law
Courts are bound by precedent. Many criticize the judiciary and judges who legislate from the bench when they disregard precedent and make policy based on their own private views. Legislatures should not be in the business of encouraging disrespect for the law and legislating from the bench. Instead, legislatures should be encouraging judges to respect precedent and legislatures should not be in the business of passing law specifically aimed at encouraging the courts to legislate from the bench. This is exactly what HF936 does.

This bill, if it were to become law, is inviting and encouraging the United States Supreme Court to review and reject precedent. The purpose of this bill is to become a test case and invite Supreme Court review with the purpose of overruling Roe v. Wade.

If this legislature respects the law, respects the judiciary, and it wishes not to encourage judicial activism or legislating from bench, it should reject HF 936.

* HF936 is a Tax-Payer funding for a Private Law Suit
Finally, HF201 is a request to provide taxpayer dollars to fund a challenge to Roe v. Wade. It is an effort by a special interest group to commandeer our tax dollars and government lawyers to challenge established law and precedent. At no time should taxpayers be asked to foot the legal bills for private groups wishing to challenge established law and precedents, but this makes even less sense at a time when the state is facing a $5 billion dollar deficit. Does not the state and the legislature have better things to do with its money, legal resources, and time than to pass a bill that is most certainly unconstitutional, simply to pacify special interests? I think the answer should be obvious.

Conclusion
For the reasons specified above, I oppose HF936 and encourage you to do the same.

Thank you for your consideration.