Category: civil rights

Capacity Without Legitimacy

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March 30, 2025

by Stephen Stofka

This is part of a series on centralized power. The debates are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Cain looked around the restaurant. There was only one empty table. “Busy here this morning.”

Abel nodded. “Even when they are busy, they bring out water, coffee and a menu. To me, that’s a mark of good organization. Good service.”

Cain added half a packet of sugar to his coffee. “Yeah, that initiates the process. Like saying, ‘We see you. We are going to take care of your needs.’ I think that’s what the Trump administration has done these first two months. Tried to fulfill some campaign promises from the start.”

Abel rolled his eyes. “Like a waiter who brings a pitcher of water to the table and forgets the glasses, then blames the mistake on the dishwasher.”

Cain laughed. “Oh sure, just like that. Look, they’re trying to fix stuff that’s been broken for decades. Stuff like illegal immigration. Both parties promise to fix it but it’s a hard problem. Unlike past presidents, Trump is making an effort to fulfill his campaign promises.”

Abel interrupted, “Yeah, forget about human rights and due process. That’s a heck of a way to fix problems.”

Cain asked, “When does due process become excess process? We are a nation of laws, the saying goes, but we’ve become a country of lawyers who profit from creating red tape. We’re tangled in it. We’ve got plenty of process but few outcomes. We’re like a sailing ship stuck in the horse latitudes. Trump is trying to steer this ship toward land.”

Abel laughed. “That is a poetic description of this administration’s efforts.”

Cain asked, “This country has the capacity to fix problems but the processes that have evolved cripple the legitimacy of government. Trump is reasserting executive capacity.”

Abel objected, “But the way he is doing it weakens the legitimacy of his actions.”

Cain argued, “In the eyes of some. Anyway, you think some of these Venezuela gang members have any respect for human rights?”

Abel frowned. “How did they determine they were gang members? Because they had a tattoo. Is there a tattoo that distinguishes the gang? No. Any tattoo will do. That kind of arbitrariness is typical of the way this administration acts.”

Cain sat back in his seat as the waitress set his order in front of him. After serving Abel, Cain replied, “There’s what, a few hundred gang members? Could there have been a rush to judgment on one or two individuals? Maybe. So, should the government let two hundred criminals loose to save one person who maybe doesn’t belong to the gang? Reminds me of the old argument that it’s better that a lot of guilty people should go free rather than one innocent person should suffer.”

Abel nodded as he set his coffee cup down. “Yeah, you’re talking about Blackstone’s ratio. The need for firm proof before convicting an innocent person. It’s taught to law students as a foundational principle and Ben Franklin cited the ratio (Source). It alarms me that this administration would throw out a traditional principle of fairness just to look like they are accomplishing something.”

Cain replied, “There are so many issues in the 24-hour news cycle. How long will people be concerned about this? In the ‘80s and ‘90s, people worried about two American gangs, the Bloods and the Crips (Source). The drug epidemic was crack cocaine, not fentanyl. The two gangs killed each other to claim territorial rights to sell crack. There were innocent kids killed in drive-by shootings. The public wanted politicians to get tough on crime and they passed laws to get tough on crack dealers and users. One of the leaders in that effort was none other than Joe Biden. So now when Trump gets tough on criminal gangs, it’s bad? Come on.”

Abel said, “You’re talking about the 1994 crime bill that Biden sponsored. He was criticized later by people in his own party for sponsoring that bill. They said it unfairly targeted black people. But, there were a lot of leaders in the black community who supported that bill because the gangs and the drugs were tearing apart black families and communities (Source).”

Cain nodded. “So, this time the scourge is fentanyl, not crack. Strung out homeless people camped out on downtown sidewalks. It’s turned the downtown areas of many cities into graveyards of drug zombies. There’s a video that Peter Santenello shot in the Kensington neighborhood of Philadelphia and the druggies are walking around slumped over like the zombies on that TV show ‘The Walking Dead’ (Source). And where is the fentanyl coming from? Gangs from Latin America and suppliers in China. The drug problem is worse now than it was when Biden introduced the 1994 crime bill. Voters wanted action and Trump is delivering.”

Abel shook his head. “In the ‘90s, Biden went through the legislative process of building a coalition and forging compromises with other members of Congress. That’s the democratic way of creating policy. Trump is disregarding any procedural safeguards. Immigration officials are targeting people who have green cards (Source). They are in the country legally. This isn’t just about drugs. They’re targeting ideas that the administration doesn’t like. This is an arbitrary purge, an attack on free speech.”  

Cain nodded. “Yeah, I don’t agree with that. But some of those protestors did more than just talk.”

Abel argued, “Is there any evidence of violence? They arrested Khalil Mahmoud for leading protests in support of Palestinians. He’s a grad student at Columbia and he wanted the university to divest from Israel (Source). In the 1980s, there was a similar campaign to get U.S. universities to divest from South Africa to protest their apartheid policies (Source).”

Cain interrupted, “Yeah, that campaign was successful. There is not a powerful South African lobby in this country to pull political strings. On the other hand, the Israeli lobby might be more powerful than the gun lobby, if that’s possible. They don’t like any protests against Israel’s policies or actions and the Trump administration bows to any pressure from that lobby.”

Abel nodded. “Good point. So, Khalil was born in a Palestinian refugee camp (Source). Naturally, he is going to be sympathetic to the Palestinian cause. He’s got a green card, for God’s sake, not just a student visa. The folks at ICE didn’t know that. It’s all power and no preparedness. Totally arbitrary. So, the Trump administration interprets Khalil’s humanitarian concern for the suffering of innocent civilians as support for Hamas, a terrorist organization (Source). They’s making it up as they go along.”

Cain shook his head. “Ok, so there are excesses and mistakes. It’s the same with any administration. Does an injustice done to one foreign student…”

Abel interrupted. “There are others, as well.”

Cain nodded. “Ok, several foreign students. Does it get voters riled up enough? I don’t think so. We can argue whether it should or not, but the plight of a few people is far away from most people’s lives.”

Abel argued, “What about the plight of students marching in Birmingham, Alabama in 1963? Public sentiment shifted when they saw water cannons turned on kids protesting Jim Crow policies in the south (Source).”

Cain nodded. “Sure, but there wasn’t enough momentum to pass any legislation on that issue until after Kennedy was shot later that year. The Civil Right Act in 1964 is almost a memorial tribute to Kennedy, an appeasement for the death of a president in a southern state. It takes several events to arouse public sympathy to the point of action.”

Abel agreed. “Usually there’s some event that gets the public’s attention. People became more sympathetic to campus protest against the Vietnam War after the Kent State Massacre. The national guard troops killed four student protestors. Killed them! That’s when a lot of people said, ‘Hey, this is a step too far.’”

Cain interrupted, “Yeah, I don’t think the arrest of a few student protestors has pushed public sentiment to that point yet.”

Abel asked, “Every week, there’s more examples of bullying by this administration. Republicans in Congress are afraid to speak up publicly. Musk has threatened to primary any Republican opposition to Trump’s policies (Source). Congressional Republicans are approaching the administration privately, hoping to carve out exemptions for those policies that are hurting their constituents (Source). Trump has already cowed the legislative branch of his own party. Now his supporters are going after federal judges who rule against Trump’s policies (Source). A showdown is coming with the Supreme Court. They are rewriting the Constitution, eliminating the other two branches of government. That’s the world they want. No accountability for their actions.”

Cain sat back in his chair. “Whoa! A few excesses and you’re ready to declare the end of democracy. As Adam Smith once said, ‘there is a great deal of ruin in a nation’ (Source). You’re alarmed at the excesses of one party but less sensitive to excesses committed by a party that you voted for.”

Abel shook his head. “No, what I am concerned about is the pursuit of a dream that Donald Trump has had for many years. To be accountable to no one. To do whatever strikes his fancy at the moment and have no one to check him.”

Cain smiled as he pushed his plate to the side. “That’s probably a secret dream of many people.”

Abel frowned. “Yeah, but most of us develop some impulse control. Social, political and economic circumstances may put limits on our impulses, or we learn to develop that control as part of our character. Trump has not developed it. He goes around fondling women’s privates in public and says, ‘they let you do it’ (Source). No, they are frightened and don’t know how to respond. Why? Because most normal people do not do that unless they are drunk or high on drugs. Now Trump has put together a team of people to carry out his impulses.”

Cain shrugged. “You’re talking about the Hollywood Access tape before the 2016 election. Voters knew about it. They voted for him anyway. In 2024, they voted for him a second time.”

Abel sighed. “That’s what I don’t understand. Are people so loyal to their party that they are willing to disregard a candidate’s character? That’s what worries me.”

Cain stood. “That’s a discussion for another day. Which do you worry about more? Trump or the majority of American voters who voted for him?”

Abel lifted his eyebrows. “Good question. I’ll see you next week.”

Cain said, “I’ll pick up the tab. Next week, then.”

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Image by ChatGPT in response to the prompt “draw an image of an angry elephant.”

The Reins of Judicial Power

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July 21, 2024

by Stephen Stofka

This week’s letter is about an alliance of business interests and libertarians alarmed by the growing power of the federal government that emerged during the 1930s Depression and enabled by a shift in judicial interpretation on the Supreme Court. In the following decades, executive agencies expanded their authority by assuming powers held by each of the three branches (Epstein, 2014). The agencies wrote rules like a legislature, administered the rules with or without the assent of the President, and resolved controversies in legal interpretation like the judiciary. When the Court’s decisions challenged the traditions of religious groups, social conservatives joined the coalition.

Social unrest in the 1960s followed by political turmoil and economic stress in the 1970s accompanied a generational shift in power in the Congress. A coalition of civil rights advocates  and environmental activists helped pass legislation in both areas. In the southern states where resistance to federal control was still active a century after the Civil War, voter sentiment began to shift from the Democrat Party to the Republican Party. Extractive industry groups increased their lobbying efforts to check environmental laws that increased their costs or delayed their projects (Kraft, 2022). In the 1970s, environmental activist groups turned to the courts to block industrial developments (Smith, 2022). Many of these controversies occurred in federal district courts where 860 justices with life tenure decided the application of the rules. Business groups recognized the need for judges sympathetic to any judicial philosophy that promoted a diffusion of government power to the states and individual business interests. Large corporations, enjoying many of the legal rights of individual persons since the 19th century, had revenues greater than those of many state governments, allowing big businesses the power to steer state and local policy toward maximizing profits.

A hybrid form of judicial interpretation called textualism/originalism was an effort to develop objective rules of jurisprudence to guide decisions in the lower courts. Textualism focuses on the legislative text while originalism focuses on the history of statutes and the Constitution (Eyer, 2022). Together the rules encourage justices to stay faithful to the text, history and tradition of the law. Six justices on today’s current Supreme Court hold the reins of this team of horses, which sometimes pull in opposite directions. Four decades in development, textualism and originalism have not brought the sought after clarity. Lower courts have sometimes responded with contradictory decisions to recent Supreme Court precedents, resulting in a judicial recycling of controversies in which the Court clarifies an earlier precedent.

As executive agency power expanded in the decades following World War 2, the Supreme Court expanded individual rights in its interpretation of the 14th Amendment. Richard Epstein (2014, p. 121) voices the conservative sentiment when he called this period a “veritable explosion of new rights.” The 1973 Roe v. Wade decision overruled state laws that prohibited abortions at various stages in a pregnancy, determining a right to privacy in the 14th Amendment. Social conservatives, business interests and libertarians formed an alliance of think tanks to limit the expansion of judicial and executive power.

Conservatives decried the Court’s Roe v. Wade decision upon its publication. In an interview late in her life, liberal Justice Ginsburg faulted the reasoning the court gave in that decision. She explained that the decision should have been based on a principle of gender equality clearly stated in the 14th Amendment. The Court’s ruling, based on a presumption of privacy, left the decision vulnerable to repeated attacks by groups of social conservatives. A coalition of religious groups, still angry over the Court’s 1962 decisions banning prayer in schools, now found common cause with business interests angry about the expansion of executive agency power.

For some foundational understanding of this revolution in judicial interpretation, readers will remember that the Bill of Rights was a package of ten amendments submitted to the states for ratification in conjunction with the Constitution. They applied to the federal government and were meant to assuage any concerns that this newly created federal government would impinge on the rights and power of state legislatures and the small number of individual citizens allowed to vote in each colony (Klarman, 2016). The enumerated powers stated in the Constitution was designed to define and contain the powers of the federal government but left unsettled or undefined powers to the states. In the century following ratification, the Court’s rulings gave preferential treatment to state autonomy in controversies over Bill of Rights protections. The Supremacy Clause of the Constitution gave the federal government priority if a federal law contradicted state law, but if there was no federal law resolving a controversy, state law took precedence. Separation of powers included the three branches within the federal government and between the federal government and the states.

For an evolving history of jurisprudence, I will turn to the National Constitution Center, a bipartisan independent organization authorized by Congress to educate the public on the history, text and meaning of the Constitution. They offer a free curriculum of classes on the Constitution for readers who want to expand their knowledge of the controversies related to the Constitution and its Amendments. What follows is a synthesis of a class section on selective incorporation, the Court’s application of protections for individuals to the states law.

Following the passage of the 14th Amendment, several Supreme Court decisions limited its protections against state abuses. In the 1925 Gitlow v. New York decision, the Court held that a state could not violate an individual’s First Amendment rights. In the 1960s the Supreme Court, headed by Chief Justice Earl Warren, further expanded individual rights, reasoning that the due process and equal protections guaranteed by the 14th Amendment made Bill of Rights protections applicable to the states as well as the federal government.

Before the rulings of the Warren Court, individuals had few protections against abuses by state governments. States routinely violated protections against search and seizure contained in the Fourth Amendment, the right to counsel stated in the Sixth Amendment, the protection against self-incrimination in the Fifth Amendment, and the right to free speech in the First Amendment. As I noted last week, a minority of rural voters in some states controlled the legislature through clever districting rules that magnified their representation and interests in the state legislature.

As the court has applied combinations of textualist and originalist interpretation, it has satisfied the wishes of the coalition of social conservatives, business interests and libertarians. Its Dobbs decision overruled the 50-year-old precedent set by Roe v. Wade, pleasing social conservatives. It overruled previous precedent set by the Bakke decision in 1978 that established affirmative action, pleasing business interests and libertarians. In 2008, its Heller decision established an individual right to own a gun, satisfying libertarians. It 2010 Citizens United decision overrules McCain-Feingold limits on corporate political contributions, giving business interests a greater opportunity to influence policy. Social conservatives are hoping that the court’s next term will overturn a right to same sex marriage established by the 2015 Obergefell decision.

Next week I will look at the conflicting priorities in textualist/originalist analysis and how its methodology differs from the more traditional analysis that focuses on the purpose of a law.

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Photo by Jim Strasma on Unsplash

Keywords: civil rights, environmentalism, amendments, Bill of Rights, Supreme Court, textualism, originalism

Epstein, Richard Allen. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

Eyer, K. R. (2022). Disentangling textualism and originalism. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4090893

Klarman, M. J. (2016). The Framers’ Coup: The Making of the United States Constitution. Oxford University Press.

Kraft, Michael E. 2022. Environmental Policy and Politics. New York: Routledge, Taylor & Francis Group.

Smith, Kimberly. 2022. “Environmental Policy In the Courts.” In Environmental Policy: New Directions for the Twenty-First Century, eds. Norman J. Vig, Michael E. Kraft, and Barry George Rabe. Thousand Oaks, CA: SAGE. essay, 137–54.