All posts by ALISLPP

Court WatchingEssays

Court Watching: Timbs v. Indiana

by John Grove 

Background:

When the Bill of Rights was ratified in 1791, its provisions only restricted the actions of the federal government, not the state governments. This was confirmed by the Supreme Court several decades later in a case called Barron v. Baltimore, in which a man claimed the city of Baltimore and state of Maryland had denied his Fifth Amendment rights. A unanimous Court found that a state could not be found to have violated the Fifth Amendment because it did not apply to it.

In the twentieth century, however, the Court began to apply the Bill of Rights to states through a process known as incorporation. To do this, the Court uses the Fourteenth Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” (emphasis added). The Fourteenth Amendment was specifically focused on state activity and limited the manner in which states could interact with their citizens. (More on the language of the Fourteenth Amendment below). The Court has found that, at the very least, there are certain rights which are so fundamental and so firmly rooted in our history that they cannot be denied by the states without violating these Fourteenth Amendment protections. Most provisions in the Bill of Rights have been incorporated, but up until last week, the portion of the Eighth Amendment which forbids the imposition of excessive fines was an exception.

Tyson Timbs was arrested and pled guilty to dealing heroin. At the time of his arrest, police seized his Land Rover which was used in his criminal activities. The state of Indiana then used a process known as civil forfeiture to permanently take possession of the vehicle. Civil forfeiture is a civil (non-criminal) proceeding in which the state seizes property that is suspected to have been involved in some sort of criminal activity. The Land Rover was worth around $42,000, which is four times the amount of the maximum fine allowable for the crime Timbs was convicted of.

The Constitutional Question and the Arguments

The Court was tasked with deciding 1) whether the excessive fines clause applies to state governments, and 2) whether civil forfeiture constitutes a “fine.”

Timbs argued that the seizure of his vehicle was a violation of the Eighth Amendment protection against excessive fines which is applied to the states through the Fourteenth Amendment. Civil forfeiture, he argued, has the effect of a fine, even if its purpose is not entirely punitive. The value of the Land Rover was significantly higher than any allowable fine and was therefore “excessive.”

Indiana, on the other hand, argued that the excessive fines clause does not apply to the state at all, as it has never been incorporated. Even if it should be incorporated, moreover, the state argued that civil forfeiture should not be included in the application to the states, as there is no significant historic tradition of prohibiting civil forfeitures. in other words, even if the excessive fines clause is fundamental and deeply rooted in our history, a right against civil forfeiture is not.

The Ruling

The court unanimously sided with Timbs, and officially applied the excessive fines clause to the state governments. Justice Ginsburg wrote the opinion and noted the deep historical roots of protections against excessive fines dating back to Magna Carta in 1215, the English Bill of Rights in 1689 (which the Eighth Amendment copied verbatim), and many similar state constitutional provisions. As to the idea that civil forfeiture was not part of that historically rooted right, Ginsburg dismissed the approach: “In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed – not each and every particular application of that right – is fundamental or deeply rooted.” The Court had already applied the excessive fines clause to civil forfeitures undertaken by the federal government. There was no reason to exclude them from the right when applied to the states.

The Interesting Side Issue:

As noted above, the Fourteenth Amendment includes both the Privileges or Immunities Clause and the Due Process Clause. Textually speaking, the former seems to suggest the logic of incorporation: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In 1873, however, the Supreme Court ruled that the Privileges and Immunities Clause did no more than restate the equal right all citizens had when it comes to the areas of our political life controlled by the federal government. As such, it chose not to incorporate the Bill of Rights. When the Court did begin to incorporate those rights, they chose to do so using the Due Process Clause, which states “nor shall any State deprive any person of life, liberty, or property, without due process of law.” In using the Due Process Clause to protect specific rights, the Court applies what is called “substantive due process” – the idea that there are some substantive rights (as opposed to procedural ones) that are so fundamental to free government that to deny them is to deny due process of law.

Justice Clarence Thomas has long held that the Court has been using the wrong part of the Fourteenth Amendment all along. He issued a concurring opinion which agrees with the outcome of the cases but argues that rights like the one against excessive fines, are made applicable to the states by the Privileges or Immunities Clause, while the majority of the Court appealed to the Due Process Clause. Timbs, he notes, did not make any claim that he had been denied a proper process: “He does not argue that the Indiana courts failed to ‘proceed according to the law of the land’… or that the State failed to provide ‘some baseline procedures’…His claim has nothing to do with any ‘process’ ‘due’ him.” Rather, he claimed that he was denied an immunity guaranteed to citizens of the United States. While Thomas has made similar arguments in the past on his own, he now has a companion in his unlikely quest to change the standard, as Justice Neil Gorsuch also wrote a concurrence indicating his general agreement with Thomas’s view.

The Court’s opinion can be read in full here.

Essays

Lincoln and the Rule of Law Pt. II

By Charles Hubbard

When Abraham Lincoln was sworn in as the 16th President of the United States 1861, his respect and appreciation for the rule of law was widely known. As a practicing attorney and elected public servant, Lincoln’s experience reinforced his belief that the rule of law and its equal application was the foundation of limited government. Moreover, Lincoln was a student of the Constitution and an accomplished lawyer. More than any president before him Lincoln understood how the law and the Constitution both empowered and restrained the president.

Secession and the investment and eventual surrender of Fort Sumter on April 13, 1861 put Lincoln’s commitment to the rule of law to its most severe tests. Lincoln believed that secession was unconstitutional and secessionists were organizing an armed rebellion that threatened the existence of the Republic. As such, these events demanded an immediate response. That response, however, unquestionably went beyond the generally accepted constitutional powers of the presidency.

Out of respect for the limitations of his office, Lincoln was slow to exercise his presidential authority in the first five weeks of his administration. However, the outbreak of armed rebellion required that he take a tight grip on the reins of power provided to the government in times of “invasion or rebellion”.

When Fort Sumter fell, the country and especially the military was not prepared for war. The Army consisted of about 16,000 soldiers scattered across the Western frontier and the Navy was pathetically small with ships of the line stationed off the coast of Africa and in the Pacific. Lincoln took immediate action and issued a proclamation calling for the states to supply 75,000 militiamen and calling for a special

session of Congress to convene on July 4. When the states activated the militia, Lincoln instructed the Secretary of War to pay private citizens over $2 million in government funds to help equip and train the new volunteers. The arbitrary spending of public funds seemed to violate Article 1 of the Constitution which requires that federal expenditures be supported by appropriations passed by the House of Representatives and approved by the Senate.

The rebellion also forced Lincoln to assume emergency war powers not specifically granted to the chief executive by the Constitution. Before Congress convened in July Lincoln ordered the arrest and detention of people involved in “disloyal practices” and suspending their right to petition for a writ of habeas corpus. After his initial call up of the militia, he issued a call for volunteers for three years of service, thus enlarging the Armed Forces without congressional approval. Another extremely controversial decision the president made was to institute a naval blockade of the areas in rebellion. Secretary of the Navy Gideon Wells advised Lincoln that the blockade was a violation of international law and certainly would provoke questions in Europe. Lincoln explained these and other of his actions to Congress when it convened on July 4 by saying, “whether strictly legal or not, were ventured upon what had appeared to be a popular demand and a public necessity; trusting then as now that Congress would readily ratify them.” Ultimately, Congress approved Lincoln’s extra- constitutional acts, albeit after the fact.

Article II of the Constitution does not specifically grant these emergency powers to the president. In fact, the founders reserved the power to engage in war only to Congress, and mentioned the suspension of habeas corpus in Article I (the section which outlines Congress’s authority). However, the presidency was also seen as the branch of government which had the independence and agility to respond quickly to threats that Congress would be unable to address.

To support his emergency actions, Lincoln called on his oath of office where he pledged “to preserve, protect and defend the Constitution of the United States.” When defending his suspension of habeas corpus, he asked “are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?”[1] He saw himself in the difficult position of having to stretch his own legal authority to defend the whole legal and constitutional order. And so he defended his extra-legal prerogatives by appealing to the rule of law itself.

Lincoln and the Rule of Law Pt. I can be found here.


[1] Abraham Lincoln, “Message to Congress in Special Session,” in Abraham Lincoln: His Speeches and Writings, ed. By Roy P. Basler (Cleveland: Da Capo Press, 2001), 600-601.

Essays

Social Media: What Would Tocqueville Say?

by John Grove

Alexis de Tocqueville, the famous French observer of nineteenth-century American politics, always placed a much greater emphasis on the habits and manners of the people than the laws, elections, institutions or officials. Democracy, he argued,“is found in all the details of daily life as well as in the laws.”[1]

So rather than offer extended commentary on the federal constitution or the polarizing political figures of the time, Tocqueville examined American society and the tendencies of its citizens. If Tocqueville were observing America today, the revolutionary impact of social media on the habits and manners of the American citizen would likely be one of his central themes.

Some political effects of social media are headline news: Facebook pages run by Russian impostors; the collection of personal data to personalize political ads; The incredible transformation of political campaign strategy. But perhaps the most sweeping revolution brought about by social media is in the way it has transformed the way the average citizen observes, interprets and interacts with the world around him.

There was always great hope that the internet, and social media in particular, would give rise to a wave of political engagement and dialogue as people were exposed to diverse viewpoints and encouraged to engage with new ideas. Yet the actual impact has been to further solidify the echo chambers that cable television and talk radio had already created. Tools like Facebook’s infamous algorithms ensure that we read and digest only those materials that we already agree with, reinforcing our own personal perspectives rather than broadening our view to engage others.

Social media also provides an endless stream of anecdotal stories which serve to reinforce our ideological commitments. The recent kerfuffle involving a school group at the Lincoln Memorial is the prime example of this. This incident and subsequent revelations spawned a wave of commentary noting that we tend to interpret events like this through our own ideological lens. A recent article in The Atlantic, however, goes further to ask why we should find the incident so important in the first place? “Take away Twitter and Facebook and explain why total strangers care so much about people they don’t know in a confrontation they didn’t witness.”

The most likely reason one would give is that we believe such incidents reflect broader societal realities. But there is little reason to believe this, without some sort of evidence to that effect. Certainly, there are some Trump-supporters who have bullied and intimidated racial minorities. Likewise, there are illegal immigrants who have committed terrible crimes. The existence of such occurrences, however, does not prove or disprove either a left-wing or a right-wing narrative about society at large. Isolated incidents do, however, provide instant psychological confirmation of the narrative that we are already inclined to believe. Fifteen years ago, nobody would have heard of Covington Catholic High School, or the incident that took place on the Lincoln Memorial. No newspaper would consider two groups of protesters screaming at each other to be newsworthy. But since captivating, emblematic images and videos can be seen by millions of people around the world in a matter of hours, such incidents dominate the public imagination.

Finally, social media serves to make us hasty in our response to public events. In the past, the average citizen would read about important events in the newspaper the next morning. Within recent memory, most news was consumed at the end of the day watching the evening news. In the age of social media, however, the only news we consume is breaking news. Within minutes, descriptions, images and videos of unfolding events are at our fingertips. And within a few more minutes, rival interpretations begin to proliferate: There is continual pressure for opinion leaders to stake out a position on developing stories. If traditional media figures fail to comment on a breaking news story, they run the risk of becoming irrelevant. If an elected official fails to comment, they may be accused of hedging. Or worse, they may risk losing the opportunity to control the narrative. The result is that no sooner does news break than there is a flurry of ready-made commentary fitting the event neatly into one or another ideological viewpoint. The citizen does not even need to exert any personal effort to twist a story into his or her own preferred worldview. And of course, the media platforms provide simple, immediate means of self-expression in the forms of likes, angry emojis, and 280-character blasts.

Writing in the 1830’s, Tocqueville observed that the newspapers of the time (what we would today consider partisan or ideologically-motivated news magazines) had the ability to break individuals out of their personal shell and usher them into a productive, common life together.

“It often happens in democratic countries…that many men who have the desire or the need to associate cannot do it, because all being very small and lost in the crowd, they do not see each other and do not know where to find each other. Up comes a newspaper that exposes to their view the sentiment or the idea that had been presented to each of them simultaneously but separately. All are immediately directed toward that light, and those wandering spirits who had long sought each other in the shadows finally meet each other and unite.”[2]

Social media, it may be argued, produces an opposite effect in today’s world. Inundated by a continual stream of images, videos and voices directly to our computer screens and smart phones, we hardly feel any need at all to seek out others. We become passive consumers of information without any need to seek it out or examine it ourselves. Because of all the information we see flash before our very eyes, we become ever more sure of ourselves, not inclined to doubt anything that seems to back our preconceived view of the world.

Tocqueville was concerned about an individualism which prevented people from raising their eyes beyond their personal affairs to think about the wider world. In an age where that world comes directly to us, we may have a different form of individualism to worry about – one in which we easily and neatly fit the outside world into our own personal shell.


1 Alexis de Tocqueville, Democracy in America, Trans. By Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), p. 295.

2 Tocqueville, Democracy in America, p. 493.

Essays

Reconstructing Tennessee

by Stewart Harris

This essay was originally published in DICTA, the official publication of the Knoxville Bar Association, Vol. 44, Iss. 11 (Dec. 2017)

Okay, so you’ve won the Civil War. You occupy the former seceded states. Now, what do you do with them?

That, in a nutshell, was the issue that faced President Lincoln and the Republican-controlled Congress as U.S. troops occupied ever-increasing swaths of Confederate territory. The occupied South’s economy was destroyed, its governments absent or nonfunctional. There were many opinions – some of them rather harsh — on the proper treatment of the Southern states, but Lincoln wanted to “let ’em up easy.” On the other hand, he didn’t want to turn over Southern governance to unrepentant Confederates. He came up with something he called the “ten percent plan.” If ten percent of a given state’s eligible voters in the 1860 election (the last one prior to the Secession Crisis) were now ready to affirm their loyalty and accept emancipation, the state would be on the path to redemption.

Lincoln came up with an amnesty oath in 1863:

I, ___ __ ___ , do solemnly swear, in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the States thereunder; and that I will, in like manner, abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified or held void by Congress, or by the decision of the Supreme Court; and that I will, in like manner, abide by and faithfully support all proclamations of the President made during the existing rebellion having reference to slaves, so long and so far as not modified or declared void by decision of the Supreme Court. So help me God.

But Lincoln’s oath was not enough for Andrew Johnson, the military governor of Tennessee, one of the first states to be occupied. Johnson composed his own oath, which went significantly further, requiring affiants to “ardently desire suppression of the present insurrection and rebellion,” and to promise “that I will hereafter aid and assist all loyal people in the accomplishment of all these results.” This was too much for many Tennesseans, who refereed to Johnson’s formulation as the “damnesty oath.”

Even this more stringent oath did not long satisfy Johnson, who later imposed a requirement, just prior to the 1864 election, that voters “cordially oppose all armistices or negotiations for peace with rebels in arms.” This was a direct repudiation of a major part of the campaign platform of George B. McClellan, the Democratic nominee. Think about that: before a Tennessean could vote, he had to effectively reject one of the presidential candidates. Loyalty had morphed into conformity. The morphing continued when a convention in early 1865 proposed a new state constitution. To vote in the subsequent ratification process, a Tennessean had to swear that he was an “enemy of the so-called Confederate States,” and that he did “sincerely rejoice in the triumph of the armies and navies of the United States and in the defeat and overthrow of the armies, navies, and all armed combinations in the interest of the so called Confederate States.”

While “rejoicing” sounds more appropriate to an old-time church service than to a voter registration certificate, such were the times, and such was the need to ensure that, as Johnson insisted, “[t]reason must be made odious, [and] traitors must be punished and impoverished.”

All of this fascinating history was the subject of the 2017 McMurtry Lecture at Lincoln Memorial University’s Duncan School of Law, an annual event which, this year, featured prominent attorney and historian Sam D. Elliott of Chattanooga. Sam describes it all much better than I can, and you can catch the gist of his presentation in a recent episode of my public radio show and podcast.

As Sam notes, the process of readmitting Tennessee to the Union was rather “irregular,” but in the words of Andrew Johnson,

Now you cannot get back in the present chaos and disorder without some irregularity… Talk of violating constitutional rules. Why how much law and constitution have you got now? In the absence of both, if you act irregularly, who dare say aught against it? Where is your law now? Lincoln may be charged with irregularity, but if he saves the Government by it who can find fault?

I guess that sometimes, when there is no law, you have to make up your own.

 

Court WatchingEssays

Court Watching: Madison v. Alabama

“Court Watching” will be a regular series on Reflections. The purpose of these essays is to inform the general public on the important constitutional questions being considered by the U.S. Supreme Court in its current term. Often, journalistic reporting on the Court focuses heavily, or even exclusively on the practical outcomes of the cases before the Court. We’re told whether a decision is a “pro-Trump” or “anti-Trump” decision, and what immediate impact the decision may have, but the legal and constitutional questions the court has wrestled with are understated, to say the least. Often, stories about a decision of the Court fail to even mention the name of the case! This continuing series of essays will attempt to explain, in layman’s terms, the constitutional issues the Supreme Court is dealing with: What part of the Constitution is being debated? What have previous court cases said about the issue? What are the arguments on both sides? Hopefully, this will lead to a greater understanding of current constitutional debates, and respect for differing views of governmental powers and constitutional rights.

by John Grove

Madison v. Alabama

Vernon Madison was, after several trials, convicted of shooting and killing a police officer in 1985. The judge in the final trial overruled a jury’s recommendation and imposed the death penalty on Madison in 1994. While on death row, Madison has suffered several strokes and has significantly diminished mental capacity.

The Constitutional Question:

The Constitution’s Eighth Amendment forbids the imposition of “cruel and unusual punishments.” Determining what constitutes “cruel and unusual,” however, has been a difficult task. As far back as 1958, in Trop v. Dulles, the Supreme Court has held that the meaning of “cruel and unusual” should be derived from the “evolving standards of decency which mark the progress of an evolving society,” rather than from the meaning those words held at the time of the Amendment’s ratification. Creating firm standards to match that abstract (and, critics might argue, amorphous) language, however, has often been a difficult task for the Court.

For this case, the standard at question comes from two important cases: Ford v. Wainwright (1986) and Panetti v. Quarterman (2007). In these cases, the Court determined that it was a violation of the Eighth Amendment to execute someone who was “insane” or had delusions at the time of execution. Both sides in Madison accept the standard which the latter of these two cases set forward: If a person does not have a “rational understanding of the State’s reason for his execution,” that person cannot be executed. They differ, however, on whether someone who has dementia and cannot remember his crime, yet can understand what the state claims he did and can understand why he is being executed has such a “rational understanding.”

It is important to note that this case is not about the execution of a person who had dementia at the time of the crime. Mr. Madison did not. Rather, it is about whether it is cruel and unusual to execute someone who, because of dementia, cannot remember the crime for which he is being executed.

The Arguments

Interestingly, both sides at oral argument agreed that vascular dementia could, indeed, trigger the protections outlined in Ford and Panetti, even though those two cases limited themselves to cases of insanity and delusions. The two sides differed, however, on whether Madison’s dementia actually prevented a rational understanding of his crime and his punishment. Madison’s attorneys argued that his condition meets the standard established by Panetti. Namely, that Madison’s dementia makes it difficult for him to orient himself and fully understand the circumstances he is in. Like an Alzheimer’s patient, he may understand something one day, and not understand it the next. They pointed to many everyday aspects of his prison life, such as his inability to remember that he has a toilet in his cell, as evidence that he is simply incapable of understanding his circumstances.

The state of Alabama, on the other hand, argued that Madison’s condition does not prevent him from understanding the rationale for his punishment. They cited medical testimony that Madison understood that he was convicted of shooting a police officer, and that his execution was because of that action. Further, the state argued that at least one element of Madison’s case – the lack of memory of the crime – is an unworkable standard, as there is no way for courts to know for certain whether a defendant has actually forgotten a crime.

What this case seems to boil down to is whether it is cruel and unusual to execute someone who can understand the purpose of his sentence and its consequences, but who cannot, perhaps, hold on to that information and fully grasp the situation he is in. Given the disagreements over Madison’s actual mental abilities, it is also possible that the Court may send the case back down to lower courts to determine whether Madison actually is incompetent to be executed, given the agreement that the Panetti standard goes beyond insanity and delusions, and does indeed apply to people with dementia.

 

Oral arguments for this case were heard in October, so a decision is expected soon. As will be the case with all of our “Court Watching” essays, when the Court hands down its decision, we will write an update and explain the Court’s reasoning. Stay tuned!

Essays

Lincoln and the Rule of Law Pt. I

by Charles Hubbard

We often hear the concept of the rule of law thrown around in debates over several contemporary issues. Those engaged in this discourse, however, may not fully appreciate or understand the meaning of the concept. The principle of the rule of law is a fundamental part of the Anglo-American conception of constitutional government, or more simply, limited government. Both the government and the governed are subject to the law and no government official, no single private citizen, no single group of people can claim privilege or exceptions to the law. The rules are set forth in advance and are widely known to leaders and the public in general. It is the responsibility of those in power to apply the rules impartially to all citizens regardless of status, position, or political persuasions. To do otherwise, is to risk the complete breakdown of a civil society that is grounded on constitutional government.

Adherence to the rule of law and more particularly to its application poses unique challenges for every era. The law both empowers and restrains leaders as they negotiate the tensions between the immediate crises of the day, and the need to protect the basic institutions of government. History provides numerous examples of leaders confronting this dilemma, but probably none is better than President Lincoln’s conflict over emancipating the slaves. As president, Lincoln possessed the power to emancipate the slaves, but he recognized that the constitution granted him no legal authority to do so under normal circumstances.

Lincoln’s belief in the rule of law is legendary. It was so important to the 28-year-old Lincoln that he subtly equated the concept to spirituality. In his address to the Young Men’s Lyceum of Springfield in 1837, Lincoln condemned the actions of a mob that burned a black man accused of murder. The threat to society was the failure to follow the law. Speaking directly to the threat, Lincoln said, “I know the American People are much attached to their Government;–I know they would suffer much for its sake;–I know they would endure evils long and patiently, before they would ever think of exchanging it for another. Yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property, are held by no better tenure than the caprice of a mob, the alienation of their affections from the Government is the natural consequence; and to that, sooner or later, it must come…”

Lincoln went on to speak passionately about the importance of law and order and its equal application at all levels of society and addressed the need to explain its necessity to all the people when he said, “The question recurs, “how shall we fortify against it?” The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;–let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap–let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;–let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor.” For Lincoln, the rule of law was not only essential to civil society and constitutional government, but was a part of the very essence of the American spirit.

Eventually, Lincoln’s dedication to the rule of law would inform his approach to the issue of emancipation. By issuing the Emancipation Proclamation as a “war measure” utilizing his executive authority, he understood that the Emancipation Proclamation did not permanently resolve the issue. It only freed slaves in rebelling states. He took only those steps which he believed could be justified by his constitutional authority. It remained for Congress and the American people to change the Constitution and the law in 1865 with the 13th amendment to prohibit slavery throughout the United States.

Over the years, since Lincoln pronounced his views on the law and his reverence for the structure and order it produced, our governing institutions have evolved into a system he could never have envisioned; the issues faced could never have been guessed. However, the concept to which he was so dedicated remains disarmingly simple.  The application of the principles of the rule of law remains as vital and essential to constitutional government and the maintenance of a civil society as it was in Lincoln’s nineteenth century. It continues to serve as a limitation of what goals may be immediately achieved, but Lincoln correctly observed that the law of and by the people, applied impartially, was the ultimate security to our political institutions and safeguard of the rights of all.

Lincoln Institute

Reflections: The Beginning

If there is one thing on which nearly all Americans agree, it is that we cannot agree. The state of civil discourse in America is bemoaned by figures on both the right and left. Studies indicate that partisan polarization is more intense than it has been for decades. Increasingly, American citizens feel like they do not understand one another, and cannot talk to one another. This has led some to observe that American public discourse has devolved into a form of tribalism: Rather than carefully considering important public issues, we tend to take sides instinctively by agreeing with those we believe are “like me.”

Many of us who teach and research in the areas of politics, law and political history care deeply about the skills and thought processes that are being lost. We spend our lives carefully analyzing public policy, developing a clear understanding of law, and trying to make sense of the rich and complicated history of American ideas, politics and constitutionalism. It is discouraging, therefore, to see political dialogue devolve into a raw battle of wills, devoid of any intellectual engagement with vital questions.

We believe this environment calls for a greater emphasis on public engagement by those of us who study these issues professionally. Rather than exclusively discussing narrow, academic questions, we think it is also important to apply our expertise in a manner accessible to and useful for the average citizen.  It is in this spirit that we launch Reflections. We take our name from a famous passage from Federalist #1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The sentiment expressed by Alexander Hamilton is the same sentiment which animates Reflections: The belief that public issues of the greatest importance can be considered in a reasonable and judicious manner. Indeed, the example of the debate over the Constitution’s ratification could serve us well in twenty-first century America. It was a time of great polarization and acrimony. But rather than devolving into a thoughtless battle of wills, the controversy produced some of the ablest political writing America has ever produced. Not only The Federalist, written to support the constitution, but also able Anti-Federalists such as “Brutus” and “Centinel” offer proof that thoughtful and reasoned debate need not die in a rancorous age.

As we launch this endeavor on the Birthday of Martin Luther King, Jr., we are further reminded that our country’s politics and laws have passed through worse times than the present, and that a clearer perception of rights, responsibilities, and the demands of justice can indeed improve our society.

The reflections published here will not solve the national problem of decaying public discourse. They are unlikely to have any impact at all on the outcome of the great political and social questions of our day. Nevertheless, we hope they will serve to inform and enlighten those fair-minded citizens who do not wish to give up on the idea of civil and thoughtful discourse. We hope that Reflections will serve to shed light on difficult contemporary issues, inform our readers about the rich and complex history of American ideas, politics, and constitutionalism, and serve as an example of civil, informed, and levelheaded discourse about interesting and complicated issues.

Our contributors are not united by any ideological or partisan commitments. We also have diverse academic backgrounds. We are simply united in the hope for a more elevated public discourse and a more knowledgeable public. So we will do what is in our power to promote these goals in our corner of the world. It is this unity of purpose and diversity of viewpoints that we hope will make Reflections a breath of fresh air for those who read it in our increasingly polluted political environment.