Tag: constitutional law

Don’t Seat Them

Elections have consequences, intended and unintended. Into the morass of post-electoral fire-breathing and pearl-clutching comes a resolution introduced by Rep. Bill Pascrell (D-NJ).  Relying on the Constitution — which the MAGA crowd claims to revere — Rep. Pascrell has a simple proposal to deal with the 126 House members who signed on to the bogus Texas lawsuit: Don’t seat them in the next Congress. Section 3 of the Fourteenth Amendment says, in plain language, that they are ineligible to serve in federal office. Elections have consequences, after all. And those who would subvert our elections should pay a price.

The message to Democrats should be: Ignore the inevitable and insincere wailing about “persecution for political beliefs” that will follow. Don’t seat them. Ignore the tortured justifications for the over fifty lawsuits brought by the Trump campaign or its water carriers: there is no legally or judicially cognizable case and your complaints have been summarily dismissed by every court that has heard them. “We have a right to be heard in court” is not an excuse for willfully wasting time and money. It’s not a lost cause, and certainly not a noble one. It is an attempt to subvert democracy itself and install a permanent government of plutocrats and autocrats. Elections have consequences.

Republicans, we should note, are fond of repeating that elections have consequences. But let’s be clear: when Mitch McConnell piously intones that phrase, he means only the elections that keep him in the Majority Leader’s chair. The elections, in other words, that enable him to stymie legislation so desperately needed by the people of the United States — such as a second COVID relief bill that would enable people to pay their rent and put food on their tables; that would keep small businesses afloat and people employed; that would ensure sufficient PPE for health care workers, that would help the country get through the next perilous year with the coronavirus. But instead of useful legislation he peddles lie after lie after lie. “Compromise,” to McConnell, means, “Come meet me where I stand, while I keep walking backwards.” The House passed a $3 trillion relief bill; McConnell wanted half that; House negotiators moved to $2 trillion and McConnell wanted half that; now the bill on the table is $900 billion, and passage is in doubt. Politics is the art of the possible, but McConnell cynically moves the goal posts and then blames his Democratic opponents for failing to compromise.

Democrats, you have been playing the GOP’s twisted messaging game for a generation. Take charge, explain in plain language what is going on, and exact a price for the GOP’s sedition. Don’t seat them. Change the game, and make new rules. People will notice; you might even improve your majority. Elections have consequences, right?

Mr. Herbert Spencer’s Social Statics

Though the phrase survival of the fittest is often used to convey the gist of Darwin’s theory of natural selection and evolution, it was Herbert Spencer who first coined the phrase; and by it he intended the kind of winner-take-all mentality that seems embodied in today’s GOP: in a word, social Darwinism.

In the context of civil society the idea that the strong should clamber over the weak is repugnant. It is not even a sound economic and business principle, for if competition ensures innovation and lower prices (both good for society), then in any given market — let us say, for example, for widgets — the logical and eventual outcome of unfettered cutthroat competition will be monopoly or, at best, a duopoly.  Competition of the kind pro-business politicians usually say they mean cannot exist without strong antitrust enforcement; it should be noted, then, that these same politicians usually want to weaken the antitrust laws.

But in a civil — and civilized — society, the notion that the fittest will survive and the weaker elements of society will wither, fall away, and die, is as morally repellent as it is antithetical to the foundational belief that all men are created equal.  “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” wrote Justice Holmes, dissenting in Lochner v. New York, 198 U.S. 45 (1905), a case decided upon the — ahem — libertarian notion, resurgent in our era, that government has no authority to interfere in any economic aspect of the individual citizen’s life.

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract…. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

198 U.S. at 75

More recently it was argued that government cannot compel the purchase of health insurance, that individuals should be permitted to decide how to spend each of their hard-earned dollars. Freedom! Freedom of contract, in Lochner; or the “freedom” to self-insure against catastrophic illness.

Very well; we will grant you the right to refuse health insurance if you will permit us to refuse you entrance to the Emergency Room when your appendix bursts, or when you suffer a heart attack, or when your carelessness in the kitchen threatens a digit. After all, you took the risk and assumed that you would not need health insurance; now you want the rest of us to pay for your ER visit, your cardiologist, your orthopedic surgery. In fact you assumed no risk at all, betting that the rest of us would backstop your bad decision. This is freedom defined through a looking-glass and exercised at the expense of others: exactly what laws and government are intended to prevent.

If you find this line of argument — you decided to roll the dice so man up and take your lumps — offensive: you should. But it is not the inverse of the libertarian freedom-of-contract, freedom-to-self-insure argument; it is the identical logic applied and imposed from the other direction.

The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics, and the Constitution and the laws and social structures that rest on it do not constitute a suicide pact. So, please, Michigan militiamen: your desire to “liberate” your state from “tyrannical” social-distancing orders is an unconstitutional affront to your neighbors’ desire, their right, to continue living without the unnecessary threat of disease and death that your liberation would impose on them.