Some congressmen believe the government should not spend any money, shouldn’t borrow, shouldn’t raise the debt ceiling, and shouldn’t raise taxes. They are from “red” states or districts. And they don’t want to vote for hurricane relief for the northeastern states.
Others believe government should do what is necessary for the welfare of the people. When people are in trouble, good people help. They are from “blue” states or districts. And they voted for hurricane relief for the South and Midwest.
It’s not just Tea Party ideology. Whose ox is gored matters to them. If the hurricane hits my district, well, they’re good people, so we gotta help. But if it’s somebody else’s district, especially a “blue” district, we certainly do not want to help “those” people. So we have a combination of politics and ideology.
OK then, here’s a proposal. We need to prepare for the debt ceiling debate. And we need to save money. So my proposal is to give everyone just what they want! Now that’s a wild idea – we could all end up winners. Let the president start closing offices and bases in “red” states. That’s “Red” state ideology, although it wasn’t “red” state politics when disaster struck further south and west. It’s “Blue” state politics over “blue” state ideology but I don’t think we’d shed too many crocodile tears. Blue state ideology is big on treating everybody the same way – on equality. But hey, why should we treat people the same if they want small government. There’s no reason to give people what they don’t want.
And that just might change the debt ceiling debate too.
Is it constitutional? Everybody claims to care. But not everybody is consistent. The Supreme Court seems to play the same game. They don’t like Democrats regardless of prior law – demonstrated in cases like Bush v. Gore and Citizens United, and by the four justices who voted to strike Obamacare, the five who managed to gut it by overturning the Medicaid changes, and who insisted that Congress could not regulate health insurance under the commerce clause but ignored that clause to decide Congress could supplant state regulation of abortion. Actually one of them, Clarence Thomas, held his nose in that case, noting that maybe they should have thought about the commerce clause.
If you asked me as a lawyer and a citizen whether I think political discrimination is constitutional, I would certainly say no. But this Court has said exactly the opposite in cases about legislative districting. They decided it was OK to shape the districts to protect incumbents and that there is no right to fair and impartial districting.
So if constitutional law is what the Court says it is, I’d argue that political discrimination is perfectly OK. But if constitutional law is a prediction of what the Court will do once the case comes to them, probably not.
Lots of cases are brought to test the Court, to see how it will decide controversial issues. And meanwhile, Obama could avert a crisis, and teach some congressmen something they should have learned in church – the Golden Rule.
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Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. This commentary was broadcast on WAMC Northeast Report, January 14, 2013.
Constitutionalism and Democracy 