The Founders

What was the position of the nation's founders? We often hear this question in relation to an issue of how to interpret some aspect of the Constitution. Strict constructionists, those who believe that we should adhere to the actual text of the Constitution (and by extension, all laws), often are also originalists, which means that when it comes to interpreting ambiguous passages they look to documentation for what people originally thought the words meant. I understand the appeal of this thinking. We are, or at least we aspire to be, a nation of laws. Even when we try to accomplish horrendous things (e.g. the post Reconstruction disenfranchisement of Black Americans, the current voter suppression laws) we try to do it legally, i.e. by passing laws as the means to attain our nefarious ends. The weak point in any law, good or bad, is that there is absolutely no way for any law to cover all eventualities. For example, several years ago, the Nebraska State legislature passed a law exempting the sale of manufacturing machinery and equipment (MME) to companies engaged in manufacturing, from sales tax. It was left to state regulatory agencies to define manufacturing, "company engaged in manufacturing", and equipment. Would a company claiming this exemption have to be engaged primarily in manufacturing? Would parts of manufacturing equipment be exempt? It goes on and on. Pages of regulations were written, with some challenged in court. This is true for virtually any law that is passed and is exponentially greater on the federal level. For some laws, an enforcement mechanism must be written into the regulations, including penalties. 

What strict constructionalists and originalists do not take into account is how laws are not self-interpreting and that their application and administration is going to change as circumstances change. To cite another example from Nebraska tax law, outside of certain exceptions, the sale of all goods are taxable, while the sale of services is not. These laws were written before anyone had ever heard of computer software. So what is computer software? Is it a good or a service? If it's a "good", is it subject to Nebraska sales tax if it's installed out of state? What about cloud software? Currently there is a spider's web of rules and regulations that determine whether any particular software is taxable or not. How should an originalist view the taxability of software? It can't be determined with any surety, because the founders couldn't have conceived of something like software and therefore would not have had an opinion about it. Of course one can take the position that Modern "X" is just like Founders' "Y" and therefore "X" should be interpreted exactly like "Y", but it would be naught but speculation. 

Adherents to the originalist/strict textual interpretation tend to ascribe an almost godlike status to the founders that you don't often see outside of religion. They attempt to quash all argument by appeal to the wisdom of the founders, as if they weren't flesh and blood humans with human frailties. Let's not forget that aside from arguable mistakes like the Electoral College, they countenanced slavery. Is there anyone with an ounce of ethics who believes slavery is morally acceptable? So the question to ask in scenarios like DC statehood, or eliminating the Electoral College, isn't whether this was something the founders supported, or even envisioned, but whether it is a demonstrably good thing, something that is beneficial to our country. Viewing the Constitution or any of its amendments as a suicide pact that should be adhered to despite any harmful consequences is counterproductive. This is one of the reasons why the type of judges appointed to federal courts is important. Republicans tend to appoint "conservative" judges, defined as textualists, strict constructionalists or originalists, while Democrats lean toward "liberals" who are more apt to interpret the Constitution in a way that takes 200+ years of changes into account. As a practical matter, conservative judges are more likely to prop up the status quo, since the status quo is naturally a result of two centuries of originalism. With the new 6-3 conservative majority on the Supreme Court we're already seeing a continuation of solidifying of power centers. One example is the way the rights of organizations to enforce religious beliefs has been given priority over public health and individual rights. 

The Founders were men (yes, all males, not a woman in the bunch), many of whom owned other human beings and were shaped by the culture of their times. Times have changed. 

Qualified Immunity

My father was a New York City police officer for 21 years. My brother was a New York City police sergeant, ending his 25+ year career as a homicide detective. Guys that I grew up with were police officers as well.  I officiated a wedding a few years ago for a Lincoln police office who had been shot in the line of duty and had to retire because his injury prevented him from doing the job. I respect the officers who do their jobs oftentimes in very difficult circumstances and  put their lives on the line sometimes losing their lives in the process. It's a tough job. I'd like to see every police officer make it safely home to their family at the end of their shift.

Unfortunately that has often become the overriding goal: protecting the safety of the police. Don't misunderstand, the safety of each individual officer is important. Police departments must have policies in place so as not to place officers in unnecessary danger. There are going to be times when the absolute only way for a police officer to protect their life, or the life of innocent bystanders, is to use lethal force, i.e. to kill someone. It's fair to point out that it's easy for me, who has never been in a situation where a decision whether or not to shoot another human being is necessary, to pass judgement. To be clear, I'm not referring to situation where someone is threatening the police or civilians with a gun (or even another weapon), but how many times have we heard about scenarios where a cop shot someone who was reaching for their drivers license, or made a move that the officer thought was aggressive? Times where the subject was unarmed? And the justification was that the officer "feared for their life"? And this action was completely within acceptable department policy? One can only conclude that the preferred tactic is to take preemptive action just in case the person that was stopped for a broken tail light, or an illegal air freshener was going to shoot the cop with that gun he didn't have. It's a weird twist on the plot of Minority Report, but instead of legal action being taken for a crime that the perpetrator was thinking about committing, lethal action is taken based on what the police officer was thinking about might happen. People who have done nothing worse than appearing threatening are shot without a second thought. 

Qualified immunity, the principle where these kind of killings are deemed justified if the officer followed department procedure, or subjectively feared for their life, has to end. We're finally starting to see police who kill people being held to account by the courts, but verdicts still depend upon whether the officer's action conformed to policy or whether the jury believed that there was a genuine fear on the part of the cop. The system needs to change so that the default position isn't to shoot someone "just in case". 

Both Sides

You hear it all the time, some bad behavior is identified and immediately "the other guys do it too" is offered up as a defense. In the world of politics, sometimes that's true, there are some things that both sides are guilty of. Politicians of all stripes seem to see getting re-elected and holding on to power as an end in itself. They all tend to reward their allies, often at the expense of those who do not vote for them. You can find inept politicians, you can find corrupt politicians, you can find just plain stupid politicians on both sides of the aisle. 

But...

In my view the modern Republican Party has gone beyond the pale. It is not arguable that nationwide, and even in many states, aggressive gerrymandering has resulted in Republicans being in a position of power that is not supported by their numbers. In many states the Congressional delegation and the state legislature is controlled by Republicans even when a majority of the votes went to Democrats. The situation is exacerbated by the way Senators are allocated, which in turn determines in part the makeup of the Electoral College. The Senate is split 50-50, even though the Democratic Senators represent 56.3% of the population. Two out of the last six presidential elections were won by a candidate who received fewer votes. Even President Biden's 2020 victory could have gone the other way if a few thousand votes in a handful of key states had gone the other way. 

Republican leadership is not stupid. They understand the population trends and see that the percentage of the electorate who can be counted on to vote for Republicans is steadily decreasing. So what do these non-stupid Republicans do? While they still retain legislative majorities they take action to reduce the influence of the Democratic Party. Since governors are elected by popular vote, gerrymandering does not affect them. In several states that elected Democratic governors in Republican-gerrymandered states, the Republican-majority legislature acted to limit the governor's powers before he took office. Despite there being every indication that the 2020 elections were conducted fairly and without any measurable fraud, dozens of Republican-dominated states changed election laws to make it more difficult for people to vote. In some cases, such as in Georgia, voting access was expanded in rural areas where a majority voted for Republicans while being restricted in urban areas that tended to vote Democratic. Not to mention the various actions by Republicans to overrule or delay petition drives approved by a majority of the people in the case of Medicaid expansion or cannabis legalization. 

Republican politicians in 2021 fall into two broad categories. There are the Machiavellian strategists, represented by Senate Minority Leader Mitch McConnell. McConnell has always played the long game, understanding that elections come and go, but if you can appoint enough federal judges, especially Supreme Court Justices, to the bench, you have built an effective firewall against progressive reforms. And by making effective use of Senate rules a smart leader can push through his own priorities when in the majority and obstruct by filibuster when in the minority. McConnell's strategy became apparent during President Obama's terms as president. His stated goal was to make Obama a one-term president. As we know, that failed, but he was able to put the brakes on virtually everything Obama tried to accomplish. The only reason the PPACA passed was that the Democrats had a 60 seat majority in the Senate. McConnell's main accomplishment was to prevent Obama from appointing federal judges, culminating in his refusal to consider Merrick Garland nomination to the Supreme Court. McConnell feigns a respect for Senate tradition and excoriates the Democrats for even talking about eliminating the filibuster, but he has been very clear that he will use the rules when it suits him, and change them when they don't. 

The second broad category includes the Trumpists like Matt Gaetz, Marjorie Green, Lauren Boebert, Gym Jordon, and Josh Hawley. This wing of the Republican Party makes no pretense of trying to legislate or govern, but are primarily performative. They're more short-term thinkers and have no concept of the long political game. When in the minority they mindlessly obstruct and when in the majority they mindless support whatever the leader wants. They spend more time making outrageous statements on social media, attacking their opponents and pandering to the worst instincts of the Republican base than doing the hard work of legislating. Included within this second group are politicians such as Ted Cruz or our own Pete Ricketts. This crowd may have been serious about their jobs at one time and been mainstream conservative Republicans but were seduced by the unquestioning, unwavering support and adulation that Trump received that they decided that their future as politicians depended on replicating that model. These were elected officials who at one time were concerned about roads, and property taxes and budgets, but now make daily pronouncements about "defending the second amendment", protecting the boarder and "stopping the steal". 

So, yes, you're going to see problems with the Democrats as well as with the Republicans. You're going to be able to point to things that the Democrats do and be horrified. Democrats may be the party that takes your vote for granted, but the Republicans are the party that effective wants to take your vote away. All the while blaming every problem on immigrants and Black Lives Matter (and Antifa, don't forget Antifa). 

Both sides are not the same.