On (Not) Losing Our (Civil) Religion

On April 3, 1890, in Lehi, Utah, my maternal great-great-grandmother, Martha Mercer Kirkham, joined with other women to form a local chapter of the Woman Suffrage Association of Utah, an affiliate of the National Women’s Suffrage Association. Women in Utah had been granted the right to vote in local and territorial elections in 1870, but the Edmunds-Tucker Act, passed by Congress and signed by President Cleveland in 1877, disenfranchised Utah women as part of the national government’s effort to crush the Mormon defense of plural marriage. Kirkham wasn’t a plural wife, but she was a voter, and was deeply frustrated at this right being taken away from her. A humble 19th-century Utah woman, she stood and was recorded as saying:

Mrs. President, Ladies and Friends: 

In my weak way will try to address you a few moments. I believe we are in a good cause. We have our rights but have had one great right taken from us. I, for one, felt bad when my vote was taken away. I only had the privilege of voting a few times. If we live as we should do we would vote the same as our husbands, and he, being the head, should know how to lead, which I believe is his place, and woman to follow. I have always believed that if that good feeling that should be between man and wife existed they should be able to walk along together and be one in council with their family, and also in business; otherwise there is confusion. But the woman should not be looked upon as below the intelligence of man. She has the need of it and should try to keep herself posted with the spirit of the times for her benefit and also for the good of her family. How can she impart what she does not know herself? We have need of all we can learn, for how great is the mission of woman, and why should she not be able to have a voice to make law, to govern her sons and daughters? I, for one, would be pleased to have my vote again; it looks rather gloomy now, but no excellence without labor.

Kirkham never did get her vote back; she died at 37 years old in November that same year, and Utah women didn't get the opportunity to vote once again until Utah was admitted as a state in 1896. And of course, I strongly suspect that no one reading this (unless one of those readers are Secretary of Defense War Pete Hegseth and his sometimes-spiritual advisor, the anti-feminist and Mormon-suspicious Christian nationalist, Doug Wilson) would be fully comfortable embracing Kirkham's acceptance of patriarchy and headship when it comes to family roles. Still, her insistence that she was not "below the intelligence" of her husband--and, by implication, any other person--and thus should enjoy the same legal rights as he is, I think, the deepest, truest aspect of America's whole experiment with self-government, its whole civil religion, that one can imagine. The fact that hundreds of millions--and not just American citizens--have been inspired by this particular principle ought to be evidence enough of that, unless you're one of those reactionary or postliberal conservatives who thinks the very idea of popular sovereignty is an unfortunate canard.

I’ve associated America’s civil religion with the extension of basic democratic rights—most centrally the right to the vote, and thus the right to participate formally in the kind of collective self-governance which the United States, when understood in light of Jefferson’s Declaration of Independence, is founded upon—many, many, many times. I recognize the theoretical complications with doing so. What I’m doing is trying to connect what some would call “sentimental,” or “bland,” or even “anemic” liberal practices (and voting can certainly seem like all of the above, sometimes) with something tied up with deeply communitarian or cultural or even spiritual understandings of identity and belonging. Much of the scholarly writing on these topics tends to focus on “nationalism” or “patriotism,” and pose the question as to whether or not such feelings can ever be purely “civic,” or whether there needs to be (or inevitably, however unknowingly, must be) some kind of historical or ethnic or religious or linguistic or racial character to those senses of identity and belonging. Those in the latter camp (Vice President J.D. Vance quite obviously is, or at least wants to present himself as such) look upon the articulation of a civil religion or a sense of American identity that involves mostly just individuals exercising democratic freedoms and choices as nonsense.

My response to that—the response that makes me want to both keep those liberal freedoms and expand them and reclaim them when taken away, as my great-great-grandmother did—is to say that Vance, et al, have an exceptionally narrow understanding of how social ties and senses of belonging are formed in the first place. It is, I would argue, an unavoidable facet of human nature to want to understand the actions of individuals (including oneself) as embedded in some sort of collective, morally (and often religiously) substantive—that is, “truthful”—cultural order. This is the fundamentally dialogic character as human beings coming out: our ability to speak, think, associate, and judge impels us to retrieve from or construct through our social lives an arrangement of meaning. The result, as numerous religious historians have pointed out, is that the arguably “unsubstantive” civic actions that we take—like voting—themselves develop over time (through rituals and practices and terminology and traditions and more) into what might be called "voluntary national religious establishments." Not in the sense of an established church, but in the sense that there are forms of life and routines of expression that we come to rely upon, that we come to view as ordinary, or normal. And yes, as such norms develop and put down their roots, the question of defending them (as well as regularly critiquing them) becomes a part of the equation.

The paranoia some feel about how the changes which extending the notion of equality into ever more arenas and ever more aspects of life (from property and religion to race and gender, from voting and military service to marriage and participation in high school sports) may threaten those norms is not unreasonable. But what is unreasonable is the claim that the push and pull over our norms and social constructions, over the bonds and beliefs which constitute our civil and religious order(s), is itself somehow beside the point, and that really all that matters is some kind of sovereign declaration of identity. (Which necessitates a nation-state with a unified executive capable of issuing such declarations, perhaps.) Robert Putnam, the scholar who developed the idea of social capital, essentially concluded that the difficulties people like Vance highlight are short-term ones, ones that—in particular in immigrant societies like the U.S.—is always being negotiated by the emergence of “cross-cutting forms of social solidarity and more encompassing identities.” That is substantive stuff—that’s what makes for strong citizens, and thus strong families and strong neighborhoods. (As my great-great-grandmother Kirkham put it, “how great is the mission of woman, and why should she not be able to have a voice to make law, to govern her sons and daughters?”)

As a matter of theory and history, the complications in making these connections are many. Saying that America’s Jeffersonian creed, the affirmation that “all men are created equal,” and that therefore—especially once the U.S. Constitution was forced, following the Civil War, to bring the principles of the Declaration into its fundamental law—the affirmation that American citizens by right enjoy the ability to vote and act and build lives unconstrained by some natural hierarchy, itself constitutes our civil religion, our “voluntary establishment,” in an entirely substantive and not merely “civic” way, is to claim a lot. Some would argue that it claims too much, and that it would be much better to seek to articulate a liberal vision of equality and democratic participation and anti-hierarchy without messing around with claims which necessarily require a faith in an establishing “people” who are substantively articulating themselves in the first place. I find those arguments fascinating. But I’m enough of a liberal republican, a believer in both individual democratic rights and in the places and communities—the many diverse publica of the American nation—wherein we collective exercise them, to trust that, whatever else was wrong with the Founders original understanding of this American experiment, these principles, the principles that my great-great-grandmother humbly hoped to be able to exercise again before she died, are ones that this country can still run with, can still both defend and critique, can still build upon.

I don’t think America has lost its civil religion yet. I still believe in the power of ordinary people to organize (as those women in the Lehi chapter of the Woman Suffrage Association of Utah were), to express themselves (as Martha Mercer Kirkham stood up to do), and to vote, thus placing themselves, as citizens, on the same level as everyone and anyone else. Understanding the challenge posed by those who threaten that which binds these practices, these perspectives, this power, together with their own personal demagogic declarations, whether as performers of anti-democratic epic theory or just plain old-fashioned bread and circuses, is probably the first step to making sure we won’t. 

 

 

Getting Direct About the Politics Behind Kansas’s August Amendment

Walking around my Wichita neighborhood over the past couple of weeks, I’ve noticed something about the yard signs encouraging people to “Vote No” on the constitutional amendment to allow for the popular election of Kansas Supreme Court justices come August 4. (Until just the past three days, I hadn’t seen with my own eyes any “Vote Yes” yard signs, but I have now seen a couple.) These yard signs are, in their color, font, and design, basically identical to many of the “Vote No” yard signs I saw around my neighborhood four years ago, when the vote to change the language of the Kansas state constitution so as to eliminate any judicial support for abortion rights was decisively defeated. Just look and see:

 

 

 

 

 

 

 

 

 

 

 

 

Relatedly, over the past few weeks my home has received about a half-dozen mailers encouraging a no vote this August. (We’ve received exactly one “yes” flyer thus far.) Two of those mailers were particularly emphatic, insisting that this vote is about keeping the Kansas Supreme Court “fair and impartial” and preventing “billionaire political donors” from influencing the justices by paying for the political campaigns judicial candidate would have to run to win a spot on the Court. I’ve no doubt about the sincerity of those who created these messages, and the arguments they’re making are entirely valid. But the fact that both were mailed by Planned Parenthood Great Plains, an organization dedicated to preserving abortion rights in Kansas, is worth noting nonetheless.

My point is simple. On the surface, the constitutional referendum Kansans will vote on this August 4 is simply a question about changing one of the elements of our state’s constitutional structure, a merit-based structure that emerged over 80 years ago, was first adopted in Missouri—Kansas adopted it about in 1958—and was quickly adopted by many other states concerned about corruption in partisan election judicial-selection systems that were then common (though in recent decades has been rejected by voters in multiple states seeking greater democratic accountability from their justices as well). But substantively, this constitutional referendum is actually a vote about possible policy outcomes—and while that’s usually not being said by those most engaged in the campaign both for and against the referendum, I suspect that pretty much everyone paying attention already knows it.

Earlier this month, Amii Castle, a law professor at the University of Kansas, said this quiet part out loud, using the very words of some of the strongest Republican backers of the amendment—Kansas Attorney General Kris Kobach, and Kansas Senate President Ty Masterson—to show that this proposed amendment is rooted explicitly in the failure of the 2022 anti-abortion amendment, and the desire to get different judges on the Supreme Court so as to get different rulings regarding abortion rights in Kansas. Knowing that, why shouldn’t those who want to defend those rights campaign on the same terms as well?

Castle, though, received some push-back on social media and elsewhere for being so explicit, with some of those opposed to the amendment insisting that constitutional principles of judicial neutrality supposedly protected through Kansas’s current, somewhat complicated system of choosing Supreme Court justices (nomination by a judicial commission, appointment by governor, and retention elections at the conclusion of a judge’s term) are the paramount concern.

As someone who teaches the arguments over those constitutional principles, I respect the claims of those—including some former members of the Kansas Supreme Court itself—who believe that Kansas’s procedure for choosing justices is worth preserving simply on its own terms. But as someone who is also theoretically suspicious of most efforts to keep the messiness of electoral politics out of the judicial side of our government, I find myself rather more appreciative of those who choose instead to present the possible policy consequences of electing the members of the Supreme Court more directly

Does this mean that I don’t respect Kansas’s system for choosing Supreme Court justices? Not at all—I can see the civic virtues of the prioritization of professionalism and at least nominal nonpartisanship in our selection process. But I can also see its democratic flaws. For example, the fact that despite numerous contentious decisions over the nearly 70 years during which this system has been in place in our state, not a single Kansas state Supreme Court justice has ever lost their retention election, provides—at least to my mind—just as much evidence of the limitations of the democratic checks upon our appointed state justices as do Kansas’s gerrymandered congressional districts when it comes to questions of democratic representation.

Many might challenge me right here—in what sense should “democratic checks” or “democratic representation” be at all relevant to the judicial branch in the state of Kansas, or anywhere else? Isn’t the judicial branch supposed to be counter-majoritarian, a set of referees and umpires who are not playing the political games of democracy, but who rather are simply imposing the apolitical rules and processes of the majesty of the law?

Responding to that challenge would require me to get into the “theoretical suspicions” I referenced above. Specifically, my two-fold suspicions that 1) the emergence of the idea of an independent judiciary actually does not match the historical struggle toward creating a system wherein the democratic sovereignty of the people was both recognized as legitimate and hopefully made somewhat compatible with good government (it is worth noting that, originally, judicial elections were seen as a way of ensuring judicial independence, by allowing “the people,” rather than legislative, professional, or political elites, to choose who will administer the courts); and 2) that the actual practices of preserving judicial independence from the messy political reality of a people working through their governing structure so as to exercise that sovereignty don’t actually accomplish what people—many of them judges—think they do. (As one scholar put it pithily over 25 years ago, stating calmly what millions who have watched the Roberts court rule on voting rights, presidential immunity, and more over the past 15 years, "The assumption that independent judges use their freedom to decide impartially according to the law is contradicted by the empirical evidence.")

But rather than hauling out my legislative supremacist bona fides and rehearsing my radical small-d democratic recriminations about judicial review and unelected and unaccountable judges, etc., etc., let me take the more reasonable route. If I might have at one time taken a more burn-it-all-down position, age—and the lessons of Donald Trump’s presidency—have made me more sympathetic to finding ways to preserve the accomplishments of bourgeois constitutionalism, even as we need to focus radical critiques more directly to where changes to its legal and socio-economic structures are most needed. In the meantime, I agree that it’s important that we retain at least some belief in the supposedly non-partisan, supposedly apolitical character of the judiciary—what another scholar called the “secular religion of constitutionalism,” the faith that the “rule of law” will continue to work so long as we “believe it works.” The complicated, practical question is, to quote one more legal theorist, “when (if ever) does the cost of enabling judges to act upon their political preferences or attitudes by insulating them from democratic accountability exceed the benefits of protecting them from threats to their tenure that compromise their capacity to adhere to the rule of law?”

Viewed this way, the proposed amendment to be voted on in Kansas this August really comes down to a specific accounting of likely political costs. For me, that means that Kansas’s merit-based system for selecting judges has, simply for a variety of unpredictable historical, political, and sociological reasons—the occasional tendency of Kansans, as an unconscious counter to the overwhelming Republican majorities elected to the state legislature, to elect Democrats to the judicial-appointment-making governorship? the concentration of Kansas lawyers (and thus possible members of the Kansas Supreme Court Nominating Commission, or for that matter actual possible Supreme Court candidates) in a handful of more urban, actually growing Kansas counties? something else?—worked pretty well, insofar as protecting basic liberal rights are concerned. Hence, my appreciation of those who look at the campaign over this proposed amendment, like the makers of the yard signs I mentioned above, and see it in terms of the substantive political possibilities inseparable from it.

When defenders of the current system make it a matter of high principle—judicial impartiality!—I can’t help but want to dive into the relevant theoretical and historical arguments, and ask for evidence why I should believe that the highest court in our state judiciary somehow would be fundamentally broken by obliging it to operate like the state supreme courts of more of more than 20 other states. But if you just make it all about the politics which arguably are unavoidably interwoven into any judicial decision anyway? Then my vote—especially since the language of the amendment gives no guarantee that any hypothetical election system that our Republican legislature may set up would be non-partisan or based on particular districts, both of which are in my opinion good balancing tools when it comes to electing judges—is clear. And my bet is that, remembering 2022, the votes of most other Kansas will be the same.

Two Comments and Two Questions about Religious Liberty

[Cross-posted to By Common Consent] 

Last week I attended the "Kansas Summit for Religious Freedom," a gathering designed to provide representatives of multiple different faith traditions here in Wichita, KS–Christian, Judaic, Islamic, Buddhist, and more–to share thoughts about and perspectives on religious pluralism. [In the attached photo, from left to right: Rabbi Emeritus Michael A Davis, Congregation Emanu-El; Gehad Qaki, Islamic Society of Wichita; Senior Pastor Rev. Dr. Robin McGonigle, Riverside Christian Church (Disciples of Christ); Sriraman Kadambi, temple priest at the Hindu Temple of Greater Wichita (with his son, Srivas Kadambi, providing translation); and Micah Fries, Director of Programs, Multi-Faith Neighbors Network.] The theme of the gathering--which was primarily organized and paid for by the Church of Jesus Christ of Latter-day Saints, the Mormon church I belong to; the main sponsoring organization, the Religious Freedom Alliance Council, was founded in Provo, UT, and is led by BYU faculty and graduates--was "Religious Liberty and Human Flourishing." I appreciated much of what I heard there; it gave me some good things to think about. Unfortunately, the summit wasn't designed to allow for much audience interaction, so I came away with a couple of questions that I really would have liked to have heard some of the speakers discuss as well. So instead, I'll share them here.

The comments first. The presentation the event’s keynote speaker, Dr. Hannah Smith from BYU Law School, mostly covered data that I suspect many who are even just remotely interested in the topic of religious liberty, from whatever ideological perspective, has heard before: that regular participation in a religious community is one of the strongest variables that point towards human flourishing, such as levels of personal happiness, physical and mental health, social connection, etc. The data on this is voluminous (though as with anything, particularly anything that involves the social sciences, there is always contrary data as well). But what really struck me was her argument about how a strong defense of religious liberty contributes to the spread of these positive correlations across society.

Leave aside how exactly to define “religious liberty” (a contentious argument which Smith did not get into); let’s assume that however you define it, its presence will result in more religious believers and organizations exercising their liberty by expressing themselves more fully in more diverse ways. Presumably, that would mean—again, leaving aside exactly how theses expressions would be manifest in the context of actually existing religious organizations, many of which are not entirely friendly to doctrinal or theological diversity within their ranks—more religious institutions offering more religious visions to more ranges of religious perspectives and preferences. That would in turn mean greater levels of competition in the religious marketplace—and such competition will in its turn result in more religious institutions, and their members, necessarily involving themselves in the civic-strengthening work of discussion, engagement, compromise, moderation, and more.

I would have loved to discuss this more deeply with Dr. Smith. It’s a Madisonian framing that I’d never thought of before, one which presents religious diversity in terms of factions that will be obliged—because there are so many of them, thanks to the aforementioned liberty—to negotiates with, learn from, and adapt alongside other religious factions, thereby creating a kind of ongoing civic lesson to all involved in any of those religious organizations. It’s kind of an ingenious argument, though how exactly one is supposed to hold on to a utilitarian conceptualization of religious liberty while also holding on to doctrinal devotion to one’s own religious faction isn’t an easy question to answer, I think. It places the whole theologico-political problem on a liberal footing that I suspect at least few leaders of my own LDS Church, if they understood the implications of this philosophical shift, would have some real concerns about. But it’s a valuable intellectual framing of the problem of pluralism, nonetheless.

Less philosophically weighty, but much more pastoral and wise (perhaps for that reason), was a concluding address given my old friend James Fleetwood, a retired judge and a man I served as a counselor to in a bishopric a decade ago. Rather than touching on any of the contentious debates over or even definitions of religious liberty, Jim focused on the need to peacefully engage with others, and specifically on the Christian requirement, in his understanding, to treat all others’ belief systems with respect, so as to become the sort of people who can love another as God loves us. He organized these ideas primarily around the centrality of sacred spaces–temples, yes, but also mosques, synagogues, and more. Such spaces provide for the faithful with both connection and revivification; as such, the claim of religious groups to spaces of holiness must be respected as much as those making the claims themselves. Here I am expanding upon Jim’s ideas somewhat, but it seems to me that he was describing a more demanding obligation than just respecting “belief,” because sacred spaces are, well, spatial, and therefore social and political. Religious worship is not a merely intellectual exercise; it is a bodily one. Thus, seeking peace in the midst of pluralism involves real concrete acts of respect: sharing spaces, shared participation, and more. One of his lines will stay with me for a while, I think: “Respecting the reverence of others refines us.” If there could be a better summation of what any meeting about religious liberty ought to teach, I can’t think of it.

Okay, so much for comments; now the questions. 

First, a more general one, which again I really would have liked to have been able to talk with Dr. Smith about. If we are to understand that religious liberty will benefit society through her Madisonian model, then presumably it does so through enabling people to find greater numbers of ways to attach themselves to religious factions and organizations. But doesn’t that mean that anything which discourages people to attaching themselves to and engaging with others through religious factions and organizations is actually hurting the cause of religious liberty? Because if that’s the case, then there is a, perhaps small, but still very real problem here.

That problem, specifically, is that the concept of “religious liberty”—once more, however you want to define it—has over the past 25 years been broadly appropriated by, and therefore has become coded as supporting, politically conservative, anti-LGTBQ forces. It obviously doesn’t have to be this way, but both the polling data and the legal record provides good reason to acknowledge the reality of that association, or at least the perception of that association, the religious liberty movement’s involvement in fights over parents being able to shield their children from stories involving homosexual persons (Mahmoud v. Taylor) or over the legitimacy of licensed therapists being able to provide “conversion therapy” to gays and lesbians (Chiles v. Salazer) getting as much or more attention than the fights it has engaged in on behalf of minority religious groups. And that association is driving people away from religious participation—not a huge number of people, but the negative effect of religious bodies involving themselves with politically conservative causes is quite real.

Please note that I don’t see this as a “gotcha!” problem for religious liberty. Personally, I’m not a First Amendment absolutist, as I suspect most of those who presented at the summit were; on the contrary, I tend to see strong readings of the First Amendment as creating at least as many social problems as goods (Buckley v. Valeo, Snyder v. Phelps, Janus v. AFSCME, or National Socialist Party of America v. Village of Skokie, just to start). But still, there’s nothing flawed with the priority that many attach to religious liberty—including the new president of the LDS Church, Dallin H. Oaks. It’s a valid and important principle to defend. I would just like to see people wrestle with the costs of defending it, particularly when those costs include at least some degree of discouraging people from benefiting from the involvement they might have gained through association with religious organizations in the first place. (Of course, this is overwhelming a problem faced by socially conservative Christian churches, including Mormonism; more liberal Christian, Jewish, Islamic, and other religious bodies really don’t face this dilemma at all—which, unfortunately, too often means the former group gets to dominate the discussion when religious liberty comes up.)

Another question, tangentially related to the one above, but even more directly connected to matters of First Amendment interpretation. Lance Kinzer—a smart Kansas lawyer and former legislator whom I'd met and interacted with before—gave a presentation that dove deep into the details of various current and past court cases, on both the state and federal level, dealing with matters of religious liberty. A consistent through-line in his presentation was the problems which Employment Division v. Smith—a case which overturned previous First Amendment precedents and stipulated that the amendment’s guaranteed religious freedoms should not ever provide exceptions to “generally applicable” criminal or civil laws—has posed for religious organizations over the years. Specifically, he wanted to see the post-Smith standard of simply asking whether the government has a “rational basis” for imposing a possible burden on a religious body overturned, and to bring back the “strict scrutiny” rule for judging the constitutionality of any possible burden which essentially existed before that 1990 decision. 

That’s a position that I basically agree with—but it’s one that also presents some conservative defenders of religious liberty with an inconsistency.Specifically, multiple conservative churches (including my own LDS Church) have written a legal brief urging the Supreme Court, in the case Little v. Hecox, to refuse to grant the plaintiffs—transgender athletes who are suing the state of Idaho, arguing that a state law which denies transgender individuals the ability to complete in sports aligned with their gender identity is a violation of the right to be treated equally—a “quasi-suspect” classification. This is deep legal nerdery here, but to make it as simple as possible: past Supreme Court decisions, going back many decades, have articulated various categories of plaintiffs whose standing in American society are either more or less likely to trigger various standards of scrutiny when it comes to judging the impositions and restrictions of laws. For more than 70 years, race as consistently been labeled a “suspect class” and has thus been accorded “strict scrutiny,” with the result that laws which discriminate or burden citizens differently on the basis of race, whether intentionally or unintentionally, are almost always found unconstitutional. Gender, beginning about 50 years ago, has been labeled a “quasi-suspect” classification, which in practice means that laws which end up burdening people on the basis of gender are not as likely to be found unconstitutional as those which do so on the basis of race, but are more likely to be so found than those distinctions which merely have to pass the “rational basis” test.

I think advocates of religious liberty are correct to want to get back, broadly speaking, to that era of constitutional interpretation when the First Amendment freedoms guaranteed to religious bodies necessitate that laws which restrict or regulate churches and other religious organizations have to pass the strict scrutiny standard. But I also think that if churches ought to enjoy such projections from the state, that gender and sexual minorities—like trans individuals that want to compete in sports—ought to be able expect similar protection as well. That’s only consistent, right?

The LDS Church and other conservative religious groups navigate this inconsistency by pointing out that previous interpretations of the rights of churches has included their right to be exempt from laws that make it illegal to fire someone, under certain religious conditions, for being gay or transgender; the same goes for laws having to do with public accommodation or public aid. These interpretations would have to be rethought if the classification of those burdened by what is allowed under those exemptions were to change. They’re not wrong to point that out! Consistency on this point of law would obviously require a whole new set of balancing tests be worked out, probably over a long period of time, and I have no idea what such balancing tests might eventually look like. So it doesn’t surprise me that someone who makes religious liberty their primary concern would rather leave things as they are. But then, if you want to leave things as they are, then why the wish (a justifiable one, I think) to upset current legal balances by hoping for an overturning of Smith?

Point is, these are deeply complicated issues, and they invite a lot complicated trade-offs and difficult arguments. I wouldn’t expect every gathering of folks speaking on behalf of religious liberty to make room for a consideration of all this—but since this particular gathering, valuable and insightful as it was, really didn’t allow for any formal debate, so here I am, making my contribution to such here. Consider it an expression of gratitude for all the important ideas that were voiced by those who participated (at least I hope they see it that way.) I appreciated it being part of it very much!

Could President Trump Take Over Policing in Wyandotte County? (A Brief Primer on Presidential Power at our Current Moment)

[An expanded version of my Insight Kansas column, which appeared in Kansas newspapers this weekend.]

Three weeks ago, President Trump declared that "the District of Columbia has lost control of public order and safety," and ordered armed troops into the streets of Washington DC to fight crime. His additional comments--that the nation’s capital is filled with "violent gangs and bloodthirsty criminals, roving mobs of wild youth, drugged-out maniacs, and homeless people"—were all basically>untrue; while there are plenty of disputesover how to measure DC’s violent crime rates and how to interpret the data we do have, it seems clear that Washington DC is actually experiencing lower crime rates than it has in decades. But my primary interest here is more local than that. 

At the time Trump spoke, the FBI listed the District of Columbia as the 29^th most violent city in the U.S., with an average of 926 violent crimes per each 100,000 residents. That’s above the national average—but also well below Kansas City, KS, which the FBI ranked 21^st, with an average of 1047 violent crimes per 100,000 people. (Kansas City, MO, is ranked higher still, all the way up at 9^th place.)

So…could Trump invoke emergency authority to send troops into Kansas City, KS (and possibly KCMO, Overland Park, Olathe, etc.)? After all, KCK has seen two law enforcement officers killed just this past summer, and its police department has a sad legacy of corruption. Maybe the Unified Government of Wyandotte County has "lost control" as well?

My response to this speculation is: highly unlikely, but unfortunately not impossible.

President Trump likes declaring emergencies (ten so far in his first seven months in office; counting his first term in office, he’s issued 20 of the 90 presidentially declared emergencies since the process was codified over a century ago, more than one-fifth of the total). In his mind—and, sadly, in the minds of many of his supporters—these declarations allow him to take action without any supporting legislation from Congress. When he’s done this to federalize National Guard troops and use them for domestic enforcement purposes without any request from the state’s governor—as he did when ICE agents faced public opposition in Los Angeles—it likely violated the Posse Comitatus Act (and possibly the Declaration of Independence—which condemned King George III for imposing "Standing Armies without the Consent of our legislatures"—and the 10^th Amendment—which stipulates that powers not specifically mentioned in the Constitution are "reserved to the States"—as well).

Much of this doesn’t apply to Washington DC; it’s a federal district, not a city within a state, and consequently the president has complete control over its National Guard, though many constitutional questions remain. (It's also far from clear that the troops Trump has sent to Washington DC actually have anything to do insofar as the safety concerns he ranted about are concerned.) Still, it appears to be at least putatively settled law that were President Trump to do what he did in DC in KCK or more broadly, beginning with federalizing the Kansas National Guard, he would be on very shaky ground legally, assuming Governor Kelly hadn’t contacted him for help. (Though of course, how the Supreme Court will rule on this issue of presidential power, given the support for Trump’s expansive claims which the conservative majority on the court has already shown in multiple cases, is not something anyone who cares about the traditional interpretation of the separation of powers should count on.)

In any case, it’s fairly obvious that political calculations are often trumping (pun most definitely intended) legal considerations as the president and his inner circle make decisions. In this specific case, the cities that Trump has mentioned sending;specialized military units into are all Democratic-leaning ones in mostly Democratic states: Chicago, IL, New York, NY, Baltimore, MD, etc. Kansas, of course, is not a mostly Democratic state. But Wyandotte County is—having elected Sharice Davids, Kansas’s lone Democratic Congressperson, four times in a row—and Kansas City, MO, is even more so. And Trump has been pretty explicit about seeking to change the prevailing politics in the Kanas City area.

So could Trump’s desire to turn up the heat on urban areas that have protested, pushed back, and voted against his policies (as Kansas City definitely has), and thereby put pressure on their internal political dynamics and boundaries, extend to the KC metro region? Kelly, who has walked a moderate line throughout her time as governor, would surely rather avoid a fight with the president (unlike California Governor Gavin Newsom). But I’m also sure that, absent a truly unprecedented emergency, she’d deny him access to Kansas’s National Guard. How would the Republican supermajority in Topeka—led by representatives strongly supportive of President Trump’s policies—respond to that?

Let’s hope we never find out.

On Substance and Signaling, in Trumpland, Topeka, and Beyond

[This is an extensively rewritten version of an essay I wrote for Kansas newspapers last Sunday.]

In a recent substack post, my old friend Damon Linker made an obvious, but still important, observation:

One thing I think I and many others got wrong during the first Trump administration was to spend far too much time allowing ourselves to be triggered by things the president was saying—in his social media feed, at rallies, and in press conferences….[T]here’s a reason why journalists…began to joke about the importance of taking Trump seriously but not literally. That’s because he frequently communicated in a very different way than presidents usually have, often speaking from anger and in an off-the-cuff and ill-informed way. In many cases, his primary goal was to trigger the libs rather than clarify what his administration would be doing in the near future. That made his comments a distraction from what his administration was actually doing or aspiring to do.

Trump is, in many ways, a unique case (though it seems likely that such won’t be the case in the future, unfortunately). Generally speaking, our democratic political culture, in terms of how the public and the mass media internalize and reflect the ways in which representatives--both those in office and those hoping to be elected to such--seek votes and articulate priorities, has organically come to recognize that some statements from politicians are “mere” signaling, whereas others are “actually” substantive.

I put those qualifiers in quotation marks because, among the many other democratic ills which Trump’s influence on our political culture over the past decade has introduced, the recognition of even basic value distinctions like those—specifically, the idea that signaling a position to one’s political allies is, well, just that: a matter of positioning, rather than a matter of substantively working towards an actual, achievable solution--is harder than ever. Still, the assumption that some statements made by politicians need to be taken literally, even if they aren’t serious ideas, remains a hard concept to many voters to accept without resistance, because it runs directly against our inherited experience, going back through the whole history of America’s struggles to make mass democracy work, regarding what responsible government even means.

This may seem like I’m dressing up a mundane reality of democratic politics into something more weighty than it deserves to be. Because all politicians lie, right? So who cares that the lies of Trump, and an unfortunately large number of those who have followed his example, seem categorically different? Elected representatives spending their time on meaningless bills or resolutions that show their support for causes promoted by major interest groups or another donors, rather than getting down to the business of building actually substantive legislation—isn’t that just to be expected?

Maybe. But still, I care in particular about these sorts of lies, because they help to make the distinctions upon which much of the public’s ability to connect to their own elected representatives depend upon even harder, necessitating both 1) changes in the way the media does its work, such as Damon describes in his above-linked post, and 2) even more work on the part of those who the substance of legislation affects more directly.

As an example, consider the ongoing arguments over medical support for individuals who identify as transgender, since these debates are particularly rife with serious concerns that are based on matters that are not, in fact, literally true. To put it another way, these are our elected leaders taking actions that some might justify as “merely” signaling serious intent, even though there is little or no literal substance “actually” behind their intentions.

Kansas Senate President Ty Masterson recently affirmed that, with the Republican legislative majority even stronger after the 2024 elections, the leadership will bring back the push to ban, among other types of gender-affirming care, transgender surgeries sought by those Kansans who are under 18 years old. The last effort to do so ended with a veto from Governor Laura Kelly and a veto-override attempt which failed by only two votes. It’s reasonable, now that they have additional votes on their side, that the Republicans would try again. Why? Because the significance of the signal doing so would send, a signal of their “seriousness” about the threat of young people being pushed into receiving surgeries when they’re too young to know whether it’s what is best for them, hasn’t changed.

Of course, the literal reality of the situation, the actual substance of the subject of the proposed legislation, hasn’t changed either. (Note: I recognize that there are other gender-affirming concerns tied up with this, regarding the availability of puberty blockers and other medications to minors, but since Masterson himself led with the extreme issue of transitional surgeries, I’m comfortable treating that as a separate issue.)

I know many legislators, and I sympathize with how difficult their job can be, particularly those on the state and municipal level. On the one hand, they are closer to their constituents, and can more directly hear and respond to many diverse local appeals. But on the other hand, their funding, the parties which structure most of their ability to reach out to voters (and thus both do good work as well as protect their jobs), so profoundly entwined with America’s nationalized media environment, and with major interest groups and organizations that usually care little for specific local budget or policy matters, and instead are focused on creating signals that serve primarily to rile up or placate key donors and constituencies across the country. I can understand a politician coming to the reasonable conclusion that have to play the signaling game, if only to make sure they have the opportunity to also focus on the difficult, substantive matters that may actually affect those whom they represent most.

Now that’s not to say that there aren’t members of the Republican super-majority in Topeka who, for a variety of reasons, may well be sincerely concerned—maybe even horrified—by the prospect of someone under the age of 18 receiving gender modification surgery, and see banning such as a necessary action in the name of public health or morality. I’m sure more than a few fit that description. But most of them, I suspect, are actually well-read enough to recognize that they are crusading symbolically against an almost non-existent concern.

Here is where the literal substance of the matter gets serious. There’s no definitive evidence of any Kansas medical center ever performing complete gender transition surgery on a minor, and nationally the numbers for such surgeries, according to data reported by the American Medical Association, are incredibly low: out of all gender-affirming surgeries in the United States in recent years, perhaps 2 out of every 100,000 were performed on a person between the ages of 15 and 17, and 1 out of 1,000,000 were performed on a person between the ages of 13 and 15. Beneath that age, the number is zero. So, as I wrote, an almost non-existent concern.

(Another note, for the record: after an earlier version of this piece was published in Kansas newspapers, I was contacted by a concerned individual who insisted that my information was wrong; that gender re-assignment surgeries have in fact been performed on Kansans under the age of 18. The data which this individual relied upon had been collected by Do No Harm, an organization devoted to “protecting health care from the disastrous consequences of identity politics.” Their reported information on Kansas lists a total 22 “surgery patients”(though their breakdown of hospitals actually record a total of 25; I’m unsure why three are excluded); they obtained that information by looking at insurance records, focusing on claims that involved procedure codes which are used for “confirmed surgical gender transition procedures,” though they allow that those procedure codes could have been used for “surgeries related to intersex conditions” or “congenital conditions or other non-gender transition-related reasons.” I appreciate the additional information, but 1) since I don’t see any breakdown in the ages of the minors who supposedly received these surgeries, unlike the information from the AMA, and 2) since there is apparently no way to effectively distinguish between corrective and elective surgeries among these numbers, to say nothing of there being to no way to capture the individual complexities and differences present in any of these instances, and 3) since a total number of 22, or even 25, surgeries performed in a state with a total of nearly 706,000 people under the age of 18, is a number so much smaller than even the national number, that I can’t see how sticking with my judgment of this proposal being an act of signaling in regards to an essentially non-existent phenomenon can be faulted.)   

To return to my main point: when Senator Masterson says that the Republican super-majority are going to do something, we need to take him seriously. There’s a serious message they (the Republican leadership, certainly, and presumably at least some other members of the caucus) want to send regarding the disapproval the Republican majority feels toward “transgender ideology,” and connecting it to the issue of minors receiving gender-affirming surgery is a major part of the signal they intend to send. But is there an actual, literal, substantive basis for them spending time on sending this message? The answer there is, on my review of the data, no.

This pattern—when the data and the message don’t match--holds for many other issues as well. The number of transgender athletes seeking to play sports competitively in the category of their chosen gender is tiny, yet everyone seems to have a story about some transgender woman with an unfair advantage at their daughter’s high school. It’s the same for illegal immigrants, who are far more law-abiding than the rest of the population, yet every story about an undocumented resident who commits a crime will be shared over and over and over again.

On a certain level, one must simply accept this as a political reality, one that the type of lies and misinformation which our President-elect has specialized in, is only making more complicated. It is true that most people, lacking both the time and inclination to become experts regarding any given matter, depend upon—and make decisions upon—the conveying of key signals, whether involving law or morality or anything else. This is something that interest groups have long known and made use of—and which too many politicians have come to rely upon in preference to the unglamorous, necessary work of finding substantive compromises on actual, literal concerns. As for those who do have expert information on what is literally happening—often because they actually are one of the people being symbolically discussed (a person with sexual dysphoria, perhaps, or a Dreamer, or more)—the battle to call attention to the actual data, and introduce substantive arguments to push back against the signally, is never-ending. But also necessary, all the same, and never more so than today.