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      When Their Idea of Liberty Is Your Idea of Death

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      At the heart of the American ethos is the contested idea of freedom.In the video announcing his 2024 re-election bid — pointedly called “Freedom” — President Biden staked out his vision, declaring:Around the country, MAGA extremists are lining up to take on bedrock freedoms, cutting Social Security that you’ve paid for your entire life, while cutting taxes from the very wealthy, dictating what health care decisions women can make, banning books and telling people who they can love all while making it more difficult for you to be able to vote.“The question we’re facing,” Biden told viewers, “is whether in the years ahead, we will have more freedom or less freedom. More rights or fewer,” adding:Every generation of Americans will face the moment when they have to defend democracy. Stand up for our personal freedom. Stand up for the right to vote and our civil rights. And this is our moment.The 2024 election shows every sign of becoming a partisan battle to claim ownership of the ideal of freedom, with each side determined to persuade voters that the opposition’s assertions are not just false but a threat to individual and group rights.This dispute is possible because freedom as an abstraction is fraught with multiple and often conflicting meanings. The debate over where to draw the lines between freedom, liberty, rights, democracy, responsibility, autonomy, obligation, justice, fairness and citizenship has been going on for centuries, but has steadily intensified with the success of the liberation movements of the past seven decades — the civil rights, women’s rights, gay rights and sexual rights revolutions.In sharp contrast to Biden, Gov. Ron DeSantis of Florida, in “The Courage to Be Free” — his campaign book, published in February — warns that “the threat to freedom is not limited to the actions of governments, but also includes a lot of aggressive, powerful institutions hellbent on imposing a woke agenda on our country.”The enemies of freedom, DeSantis contends, are “entrenched elites that have driven our nation into the ground,” elites that “control the federal bureaucracy, lobby shops on K Street, corporate media, Big Tech companies and universities.”These privileged few, DeSantis argues, “use undemocratic means to foist everything from environmental, social, and governance (E.S.G.) policies on corporations, forcing as well critical race theory on public schools,” in what the Florida governor calls “an attempt to impose ruling class ideology on society.”This debate fits into a larger context famously described by the political philosopher Isaiah Berlin in his 1958 Oxford University speech, “Two Concepts of Liberty”:If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved.Positive freedom, Berlin continued,derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object.Jefferson Cowie, a history professor at Vanderbilt, captured the intensity and depth of division over freedom during the civil rights movement in his book “Freedom’s Dominion: A Saga of White Resistance to Federal Power,” which won the Pulitzer Prize for history this week.Cowie wrote that the governor of Alabama, George Wallace, in his “Segregation now, segregation tomorrow and segregation forever” inaugural speech, on Jan. 14, 1963,invoked “freedom” 25 times — more than Martin Luther King Jr. used the term later that year in his “I Have a Dream” address at the March on Washington. “Let us rise to the call of freedom-loving blood that is in us,” Wallace told his audience, “and send our answer to the tyranny that clanks its chains upon the South.”For Wallace, in other words, the right to maintain segregation was a form of freedom.The dichotomy between the notions of freedom promulgated by George Wallace and the Rev. Dr. Martin Luther King Jr. continues to polarize the nation today.Rogers M. Smith, a political scientist at the University of Pennsylvania, wrote by email in response to my inquiry about the contest over freedom:Biden stands in the liberal tradition going back to F.D.R., which holds that to be truly free, people have to be able to meet their material needs, so that they have opportunities for their diverse pursuits of happiness; and they also need democratic institutions giving them a share in shaping their collective destinies.Ronald Reagan, according to Smith, “thought freedom meant being largely free of government interference in people’s lives, whether through regulation or assistance. He did believe in freedom as democratic self-governance.”For Trump and DeSantis, Smith argued, freedom is more constrained and restrictive. For these two:Freedom means having governmental policies that protect the ways of life they favor against those they don’t. Their notion of freedom is the narrowest: in fact, it is primarily an argument for using coercive governmental power, and in Trump’s case private violence, against all who they see as threats to their preferred ways of life. They support democracy as long as, but only as long as, it produces the results they want.Jack Citrin, a political scientist at Berkeley, pointed out in his email that different types of freedom can impinge on each other as well as create different winners and losers:Negative liberty is freedom from external constraints, particularly from the government. This is the dominant idea, I think, in the Bill of Rights. It is linked to individualism and libertarianism. So I am free to carry a gun on the right, free to have an abortion or change my sex on the left. Positive liberty means the freedom to act to provide collective goods so it is easy to see that there can be a tension between the two.As with many political concepts, Citrin continued:There is an elasticity in this term that allows competing parties to stake a claim for their version of freedom. Biden paints Trump as a threat to one’s freedom to have an abortion or to vote; Trump claims the deep state is a threat to your privacy or legal rights. In addition, one group’s freedom constrains another’s.On April 29, Conor Friedersdorf published “Ron DeSantis’s Orwellian Redefinition of Freedom” in The Atlantic. As its headline suggests, the essay is a wide-ranging critique of the policies adopted under the DeSantis administration in Florida.Friedersdorf cited a recent DeSantis speech — “I don’t think you have a truly free state just because you have low taxes, low regulation, and no Covid restrictions, if the left is able to impose its agenda through the education system, through the business sphere, through all these others. A free state means you’re protecting your people from the left’s pathologies across the board” — which, Friedersdorf remarks, he would describe instead “as an anti-woke nanny state, not a state that values and protects freedom.”Friedersdorf does not, however, limit his critique to the conservative governor and quite likely presidential candidate, pointedly noting that in his own state of California, a Democratic bastion,Our dearth of freedom to build new dwellings has burdened us with punishing housing costs and immiserating homelessness. Our dearth of educational freedom consigns kids from poor families to failing schools. Our higher-than-average taxes do not yield better-than-average public services or assistance. And during the coronavirus pandemic, far from being a refuge of sanity, California responded with a lot of unscientific overzealousness, like the needless closure of beaches and parks.In practice, neither the left nor right has clean hands on the question of freedom.Conservative Republicans, including but not limited to DeSantis, have enacted restrictions on teaching about race and sex in public schools; have banned books in public libraries; barred cities from passing ordinances on the minimum wage, paid sick leave, firearms policy, plastic bags and marijuana decriminalization; and purposefully sought to suppress voting by minorities and college students.While certainly not equivalent, left-leaning students and faculty have led the charge in seeking to “cancel” professors and public figures who violate progressive orthodoxy, in disrupting conservative speakers on campuses and in seeking to bar or restrict teaching material considered hurtful or harmful to marginalized groups.Isabel V. Sawhill, a senior fellow at the Brookings Institution, proposed in an email that Biden and the Democratic Party are well positioned to claim the freedom mantle:I want to suggest two reasons why this focus may not only be warranted but also have great appeal. The first is the battle over abortion rights. The second is the new attitude of Republicans toward the business community.On abortion, she continued, “I would argue that the ability to choose whether or not to have a child is a fundamental right,” adding her belief that:Before the Dobbs decision, we had found a workable compromise on this issue: no or limited abortions after fetal viability around 24 weeks. But the kind of six-week limit that is now the law in Florida and Georgia, not to mention the total ban in 14 other states, is an almost complete abrogation of the rights of women.On the treatment of business, Sawhill wrote: “Republicans have always been the party of corporate America, dedicated to limiting regulation and keeping taxes low. Gov. DeSantis’s attack on Disney and other so-called ‘woke’ companies is beginning to undermine the party’s reputation.”The bottom line, she concluded, was that “when Democrats talk about freedom, it’s not just rhetoric. There is substance behind the message.”Francis Fukuyama, senior fellow at the Freeman Spogli Institute for International Studies at Stanford, makes the case that the threats to freedom from the right are far more dangerous than those from the left.In an April 24 essay, “When Conservatives Used to be Liberals,” he argues that traditionally American conservatives differed from their European counterparts in “their emphasis on individual liberty, a small state, property rights and a vigorous private sector.” These principles, he continued, “defined the Republican Party under Ronald Reagan, which wanted lower taxes, deregulation, federalism and multiple limits on state power.”This understanding of conservatism, Fukuyama writes, “has been upended with the rise of Trumpist populism.”The result: “American conservatives are now talking more like older European ones,” older ones “like Spain’s Francisco Franco or Portugal’s Antonio Salazar, who were happy to see democracy abolished in their countries altogether.”Fukuyama acknowledged:There is plenty to criticize on the woke left, but this new type of conservative is not talking about rolling back particular policies; they are challenging the very premises of the liberal state and toying with outright authoritarianism. They are not simply deluded by lies about the 2020 election, but willing to accept nondemocratic outcomes to get their way.How, Fukuyama asks, could such a dire situation occur in this period of American history?The new illiberal conservatives talk about an “existential” crisis in American life: how the United States as traditionally understood will simply disappear under pressure from the woke left, which then justifies extreme measures in response.In fact, Fukuyama counters:It is hard to think of a time when the United States has been more free than it is in 2023. The much-feared tyranny of the woke left exists only in certain limited sectors of U.S. society — universities, Hollywood, and other cultural spaces, and it only touches on certain issues related to race, ethnicity, gender and sexual identity. It can be bad in these spaces, but most Americans don’t live there.Fukuyama is correct in citing the right’s exaggerated fears of the “woke” political agenda to justify authoritarian assaults on democracy, but he underestimates the adverse consequences of what many voters view as the freedom-threatening excesses of unrestrained liberalism.These include progressive policies that support the release of potentially violent criminals without bail; progressive prosecutors who refuse to press gun cases; the presence of homeless camps with open drug dealing on the sidewalks of Democratic cities; and the mentally ill roaming urban neighborhoods.For many voters, the consequences of these policies and situations are experienced as infringing on their own freedom to conduct their lives in a safe and secure environment, protected from crime, disease and harassment.Homelessness has become the subject of an ongoing debate over the meaning of freedom, a debate taking place now in New York City, where Mayor Eric Adams provoked angry protests — even before the chokehold death of a homeless man, Jordan Neely, by a passenger on an F train in Manhattan on May 1 — with his call to “involuntarily hospitalize people” who are a danger to themselves.In city centers large and small across the country, advocates for the homeless argue that street people without homes should be allowed to live and camp in public places, while others argue that the state should be empowered to close camps that allegedly pose threats to sanitation and public health — with no resolution in sight.William Galston, a senior fellow at Brookings, argues in a 2005 essay, “Taking Liberty,” that “for much of the 20th century, progressives took the lead in both defining freedom and advancing its borders.”From Teddy Roosevelt’s expansion of “the 19th-century laissez-faire conception of freedom to include the liberties of workers and entrepreneurs to get ahead in the world” to F.D.R.’s redefinition “to include social protection from the ills of want and fear,” to the Rev. Dr. Martin Luther King Jr.’s appeal to a “civil and political freedom that included all Americans,” Galston maintains that liberals have successfully argued that freedom often can “be advanced only through the vigorous actions of government.”Liberals began to lose command of freedom in the 1960s, Galston concludes:What began honorably in the early 1960s as the effort to expand freedom of speech and self-fulfillment was transformed just a decade later into an antinomian conception of freedom as liberation from all restraint. Enthusiasts could no longer distinguish between liberty and license, and so lost touch with the moral concerns of average citizens, especially parents struggling to raise their children in what they saw as a culture increasingly inhospitable to decency and self-restraint.“As progressives abandoned the discourse of freedom,” Galston writes, “conservatives were more than ready to claim it.”I asked Galston whether he stood by what he wrote 18 years ago. He replied by email:Mostly, but some of it is dated. I did not anticipate that a commitment to fairness and equality of results would morph into a culture of intolerance on college campuses and other areas where a critical mass of progressives has been reached.Looking toward Election Day, Nov. 5, 2024, there are conflicting signs favoring both left and right in the competition to determine which side is a more effective proponent of freedom.On the right, conservatives can point to two positive developments, both reflected in polls.The first was the May 7 ABC News/Washington Post survey that suggested Joe Biden is more vulnerable than previously recognized. Both Donald Trump and DeSantis led Biden — Trump by 45 percent to 38 percent, DeSantis by 42 percent to 37 percent.The second survey was a May 5 Washington Post-KFF poll showing that “Clear majorities of Americans support restrictions affecting transgender children” and “Most Americans (57 percent) don’t believe it’s even possible to be a gender that differs from that assigned at birth.”By nearly two-to-one margins, respondents said, “trans women and girls should not be allowed to compete in sports with other women and girls” — in high school sports, 66 percent to 34 percent, and in college sports, 65 percent to 34 percent.These data points are politically significant because Biden is a strong proponent of trans rights, committed to protecting the “fundamental rights and freedoms of trans Americans,” including challenges to state laws barring transgender students from “playing on sports teams” consistent with their gender identity.Conversely, there is no question that Republican state legislators and governors have initiated concerted attacks on freedoms supported by liberals, and that many of these freedoms have wide backing among the public at large.These attacks include book banning, opposed by at least four to one, and bans on abortion as early as six weeks into pregnancy. A Wall Street Journal poll in September 2022 found that “62 percent opposed an abortion ban at 6 weeks of pregnancy that only included an exception for the health of the mother, and 57 percent opposed a ban at 15 weeks with an exception only for the health of the mother.”The outcome of the election will determine, at least for a brief period, the direction in which the nation is moving on freedom and liberty. Given the near parity between Republicans and Democrats, neither side appears to be equipped to inflict a knockout blow. But the ABC/Washington Post survey showing both Trump and DeSantis easily beating Biden is a clear warning signal to the Democratic Party and to liberals generally that they cannot — and should not — take anything for granted.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      This Case Should Never Have Made It to the Supreme Court

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      “The most important case for American democracy” in the nation’s history — that’s how the former appeals court judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments Wednesday morning. Judge Luttig, a conservative and a widely respected legal thinker, is not one for overstatement. Yet most Americans aren’t paying attention to the case because it involves some confusing terminology and an arcane legal theory. It is essential that people understand just how dangerous this case is to the fundamental structure of American government, and that enough justices see the legal fallacies and protect our democracy.First, the back story on the case: In 2021, North Carolina lawmakers redrew their congressional maps. The state had 13 districts at the time, and its voters were more or less evenly divided between Democrats and Republicans. But the Republicans who are in control of North Carolina’s legislature didn’t want fair maps; they wanted power. In one of the most egregious gerrymanders in the nation, they drew 10 seats intended to favor themselves.The North Carolina courts were not amused. A panel of three trial judges found that the 2021 maps were “intentionally and carefully designed to maximize Republican advantage” — so much so that Republicans could win legislative majorities even when Democrats won more votes statewide. The State Supreme Court struck down the maps, finding they violated the North Carolina Constitution’s guarantees of free elections, free speech, free assembly and equal protection.That should have been the end of it: A state court applying the state Constitution to strike down a state law. But North Carolina’s Republican lawmakers appealed, arguing that the U.S. Constitution does not give state courts authority to rule on their congressional maps — even though the legislature had passed a law authorizing the courts to review redistricting plans like these. Instead, the lawmakers are relying on an untested theory that asserts that state legislatures enjoy nearly unlimited power to set and change rules for federal elections.In 2000 the chief justice at the time, William H. Rehnquist, proposed the idea in his concurring opinion on Bush v. Gore, and the independent state legislature theory has been floating around the fringes of right-wing legal circles ever since.To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent. The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government. By the North Carolina lawmakers’ logic, they possess infinite power to gerrymander districts and otherwise control federal elections. It is a Constitution-free zone where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say.On Wednesday morning, Justice Elena Kagan rejected the theory out of hand, saying it “gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”In practice, the theory that the petitioners in the case are seeking to use would turn hundreds of state constitutional provisions into dead letters in federal elections. For instance, 48 states affirmatively guarantee a right to vote in their constitutions. (The federal Constitution still does not.) Most state constitutions guarantee free, fair, equal or open elections. Even the secret ballot — so fundamental to American democracy — is a creature of state constitutions. If the justices accept the most aggressive version of the independent state legislature theory that the petitioners want them to and even if they accept a weaker version, provisions like these could become invalid overnight, because the theory holds that state constitutions have no authority to impose any regulations on federal elections. (The Constitution and federal law remain supreme, so challenges to state legislative actions could still be brought in federal courts.)Some of the justices insist that they don’t — they can’t — pay attention to the real-world outcomes of their rulings. They’re just interpreting law. By that logic, this case should be rejected on its merits.First, the theory is based on bad legal interpretation. The Constitution uses the word “legislature” in describing who has the power to regulate federal elections. Because of this word, the theory’s supporters claim, state legislatures have nearly unlimited power in that realm. But as Judge Luttig has noted, the theory has “literally no support” in the Constitution. To the contrary, the framers who wrote the Constitution were concerned that state legislatures had too much power, not too little. The text they wrote makes many references to the powers of those legislatures and of Congress, but it never says or implies that they are immune to review by the judicial branch.Second, the theory is based on bad history. The best evidence its supporters offer is a two-century-old document that has long been known to be fraudulent. Written in 1818 by Charles Pinckney of South Carolina, a founding father, it is purported to be a replica of the plan for government that he introduced three decades earlier at the Constitutional Convention. But what he submitted in 1818 was not the real deal. James Madison suspected this immediately, as have virtually all historians to examine it in the years since.When the theory’s supporters sought to claim that the practices of early state legislatures proved that their side should win, Justice Sonia Sotomayor responded, “Yes. If you rewrite history, it’s very easy to do.”Third, if the Supreme Court accepts this theory, it will create a logistical nightmare in states across the country. That’s because the theory applies only to federal elections, not state elections, in which state courts unquestionably have a role to play. As a result, there would be two sets of rules operating at the same time, one for federal elections and one for state elections. Chaos and confusion would reign.Most important, the Supreme Court has already implicitly rejected the theory many times over. In precedents stretching back decades, the court has made clear that state courts have the power to set limits on what lawmakers can do when it comes to federal elections. As recently as 2019, the court rejected a plea for it to stop the extreme partisan gerrymandering in North Carolina and other states. In doing so, Chief Justice John Roberts explained that this is exactly the role that state courts should play. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.At Wednesday’s argument, Justice Samuel Alito appeared to reject that premise. He accused elected state court judges, like those in North Carolina, of being political actors themselves. “There’s been a lot of talk about the impact of this decision on democracy,” said Justice Alito, who has given openly partisan speeches to outside groups and voted consistently in alignment with Republican policy priorities. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”Another way to appreciate the absurdity of the theory is to consider who has come out for and against it. On one side, a large and bipartisan group of judges, government officials, former lawmakers, leading historians and constitutional scholars from across the political spectrum have rejected it. These include a co-founder of the right-wing legal group the Federalist Society, the chief justices of all 50 states, multiple Republican former governors and secretaries of state and civil rights organizations.On the other side, you will find a far smaller and less bipartisan cast of characters — among them, the Republican National Committee, a group of Republican state attorneys general and John Eastman, a former law professor last seen helping Donald Trump plan an illegal and unconstitutional coup to stay in office (an act that has exposed Mr. Eastman to a real risk of criminal prosecution).That so many justices would take the theory seriously is bad enough. Three of them — Justices Alito, Neil Gorsuch and Clarence Thomas — appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case. Justice Brett Kavanaugh has also indicated his openness to it. It’s worse when the public trust in and approval of the court have fallen to historic lows, thanks largely to aggressively partisan recent opinions, as this board has argued.There’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Is the Supreme Court About to Upend American Election Laws?

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      Here’s what to know about a court case that could change the way Americans vote — and who decides how they do.For months, my inbox has been bombarded by anxious Democrats and election experts wanting to talk about a once-obscure legal theory that could fundamentally alter the way Americans vote.Known as the independent state legislature doctrine, it holds, in its purest form, that state constitutions have little to no ability to constrain state legislatures. The doctrine emerged from a novel interpretation of the U.S. Constitution’s Elections Clause, which grants states the authority to set the “time, places and manner” of federal elections.At the core of the dispute is whether the framers intended the word “legislature” in the document to be understood strictly, or whether they meant that other institutions — like state courts, governors and secretaries of state — also had important roles to play in setting and interpreting the rules around elections and voting.A fringe version of the doctrine entered the public discussion last year when it emerged that one of Donald Trump’s lawyers, John Eastman, had written a memo arguing that it even allowed state lawmakers to send their own slate of presidential electors to Washington.The Supreme Court has traditionally been gun-shy about encroaching on state courts, especially when they are interpreting their own constitutions.But a more mainstream conservative position, embraced by the Republican Party and rejected by Democrats, started gaining support on the right amid legal battles over the accommodations some states made for voters during the pandemic, like the expansion of mail voting.If adopted, the doctrine would, among other things, bar state courts from ensuring that state laws comply with a requirement, common in many state constitutions, that elections be “free and fair” — with potentially vast implications for rules on redistricting, citizen-led commissions and voting. Understand the U.S. Supreme Court’s New TermCard 1 of 6A race to the right. More

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      The U.S. Thinks ‘It Can’t Happen Here.’ It Already Has.

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      The move from democracy to autocracy isn’t a sudden shift. It is not a switch that flips from light to dark with nothing in between. But it’s also not quite right to call the path to authoritarianism a journey. To use a metaphor of travel or distance is to suggest something external, removed, foreign.It is better, in the U.S. context at least, to think of authoritarianism as something like a contradiction nestled within the American democratic tradition. It is part of the whole, a reflection of the fact that American notions of freedom and liberty are deeply informed by both the experience of slaveholding and the drive to seize land and expel its previous inhabitants.As the historian Edmund Morgan once wrote of the Virginians who helped lead the fight for Anglo-American independence, “The presence of men and women who were, in law at least, almost totally subject to the will of other men gave to those in control of them an immediate experience of what it could mean to be at the mercy of a tyrant.” Virginians, he continued, “may have had a special appreciation of the freedom dear to republicans, because they saw every day what life without it could be like.”Similarly, the legal scholar Aziz Rana observed that for many Anglo-Americans in the 18th century, freedom was an “exclusivist ideal, accessible only to Anglo-Saxons and select Europeans, whose heritage, land practices and religion made them particularly suited to self-rule. Such exclusivism presupposed that settler security, as well as more grandiose dreams of utopian peace, required the subordination of internal and external enemies, who threatened Anglo social and political supremacy.” Freedom and domination, he wrote, were “bound together.”This duality is present in our federal Constitution, which proclaims republican liberty at the same time that it has enabled the brutal subjugation of entire peoples within the United States. The Constitution both inspired the democratic vistas of radical antislavery politicians and backstopped the antebellum dream of a transcontinental slave empire.Move a little closer to the present and you can see clearly how American democracy and American autocracy have existed side by side, with the latter just another feature of our political order. If we date the beginning of Jim Crow to the 1890s — when white Southern politicians began to mandate racial separation and when the Supreme Court affirmed it — then close to three generations of American elites lived with and largely accepted the existence of a political system that made a mockery of American ideals of self-government and the rule of law.It was a system that, as the legal scholar and former judge Margaret A. Burnham wrote in “By Hands Now Known: Jim Crow’s Legal Executioners,” rested on “the chronic, unpredictable violence that loomed over everyday Black life.” In one of many such episodes detailed in the book, Burnham recounts the last moments of Henry Williams, a Black G.I. killed in 1942 by an Alabama bus driver named Grover Chandler for what Chandler perceived as “impudence on the part of the young soldier.” Rushing to escape the bus after being assaulted by the driver, Williams spilled his laundry on the ground. “As he turned to pick it up, Chandler fired three shots, one hitting Williams in the back of the head. He died instantly right there on Chandler’s bus.”All of this took place while the United States was fighting a war for democracy in Europe. Which is to say that for most of this country’s history, America’s democratic institutions and procedures and ideals existed alongside forms of exclusion, domination and authoritarianism. Although we’ve taken real strides toward making this a less hierarchical country, with a more representative government, there is no iron law of history that says that progress will continue unabated or that the authoritarian tradition in American politics won’t reassert itself.If we do see even greater democratic backsliding than we’ve already experienced over the past decade — since the advent of Donald Trump, yes, but also since the decimation of the Voting Rights Act in Shelby County v. Holder — there’s no reason to think that most elites, and most people, won’t accommodate themselves to the absence of democracy for many of their fellow Americans. After a time, that absence of democracy may become just the regular order of things — a regrettable custom that nonetheless should more or less be left alone because of federalism or limited government. That, in fact, is how many politicians, journalists and intellectuals rationalized autocracy in the South and reconciled it with their belief that the United States was a free country.In his 1909 biography of John Brown, W.E.B. Du Bois reflected on the legacy of the antislavery martyr with an observation about what it does to a society to tolerate exploitation, degradation and unfreedom. “The price of repression is greater than the cost of liberty,” he wrote. “The degradation of men costs something both to the degraded and those who degrade.”American traditions of authoritarianism have shaped American traditions of democracy in that they frame our ideas of who, exactly, can enjoy American freedom and American liberty. They degrade our moral sense and make it easier to look away from those who suffer under the worst of the state or those who are denied the rights they were promised as members of our national community.As we look to a November in which a number of vocal election deniers are poised to win powerful positions in key swing states, I think that the great degree to which authoritarianism is tied up in the American experience — and the extent to which we’ve been trained not to see it, in accordance with our national myths and sense of exceptionalism — makes it difficult for many Americans to really believe that democracy as we know it could be in serious danger.In other words, too many Americans still think it can’t happen here, when the truth is that it already has and may well again.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene

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      The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 disqualified many former Confederates from holding certain public offices if they had taken an oath to support the U.S. Constitution but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the federal judiciary has had few occasions to interpret Section 3. As a result, the courts are largely in uncharted territory. Nevertheless, there is some important on-point precedent.An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.Mr. Cawthorn and Ms. Greene deny that they engaged in insurrection and oppose any assertion that they violated the law, which would include Section 3 disqualifying offenses. Moreover, in the Cawthorn and Greene cases, the plaintiffs have not pointed to any federal legislation authorizing the states to police Section 3 by disqualifying accused insurrectionists from the congressional ballot. Without federal authorization, state elections boards and even state courts could very well be powerless to make determinations about congressional candidates and Section 3.There may be another way, based on an existing statute, to disqualify a candidate from congressional ballots: the Insurrection Act of 1862. This legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.The modern Insurrection Act is virtually unchanged from the statute Lincoln signed in 1862. If the Justice Department indicts and succeeds in convicting Mr. Cawthorn, Ms. Greene or others of insurrection under that act, then on that basis, state elections boards and state courts may remove these candidates from the congressional ballot.Representative Madison Cawthorn of North Carolina.Stefani Reynolds for The New York TimesBut so far, the Justice Department has not charged any congressional candidates with inciting or engaging in an insurrection or with any other disqualifying offenses. Most of the Jan. 6 federal charges have been based on things like property crimes or for obstructing official proceedings or assaulting officers rather than insurrection.If the Justice Department does not secure a conviction of a Section 3 disqualifying offense before the state ballot is printed (the primary in North Carolina is scheduled for May 17 and the one in Georgia for May 24), then, generally, state boards of election and even state courts will be powerless to remove otherwise eligible congressional candidates from the ballot.Recently, some scholars and advocates have contested Chief Justice Chase’s opinion in Griffin’s case as precluding the state challenges against Mr. Cawthorn and Ms. Greene. In their view, even in the absence of a federal statute, state election officials who conclude that a person engaged in insurrection may proceed to remove that candidate from the congressional ballot. There is no Supreme Court precedent that squarely forecloses that position. Moreover, Chief Justice Chase’s decision was not rendered by the United States Supreme Court, and so it is not controlling precedent. On Monday, a federal court in Georgia allowed the state court disqualification proceeding to go forward against Representative Greene. The federal judge did so without citing or distinguishing Griffin’s case.Still, we think the chief justice’s opinion is persuasive; we expect state and federal courts, including the U.S. Supreme Court, will likely follow this historically entrenched position. Chief Justice Chase’s approach is the simplest path. If the courts find that Section 3 is not self-executing, there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene — and potentially, looking ahead to 2024, Donald Trump — engaged in insurrection.Congress has not authorized the states to enforce Section 3 by striking congressional candidates from the ballot. Thus, state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot. In such circumstances, state governments must let the people decide who will represent them in Congress.Josh Blackman is a law professor at South Texas College of Law Houston. S.B. Tillman is an associate professor at the Maynooth University School of Law and Criminology. They recently wrote a law review article about the application of Section 3 of the 14th Amendment to President Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Why Joe Biden Needs More Than Accomplishments to Be a Success

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      No president since Ronald Reagan has achieved a more ambitious domestic legislative agenda in his first year than Joe Biden. With a razor-thin congressional majority — far smaller than that of Barack Obama — President Biden has delivered two enormous spending bills, with another, the Build Back Better act, likely on its way. Elements of these bills will have a lasting effect on the economy into the next decade; they also push the country to the left.Every president since Reagan has tacked to the rightward winds set in motion by the conservative movement. Even Mr. Obama’s stimulus bill and the Affordable Care Act owed as much to conservative nostrums about the market and runaway spending as they did to liberal notions of fairness and equality. Mr. Biden has had to accommodate the demands of Senators Joe Manchin and Kyrsten Sinema, but their intransigence has not had nearly the constraining effect that the voices of austerity and market fetishism had on Bill Clinton or Mr. Obama.Yet over the past several months, Mr. Biden’s presidency has been dogged by a sense of failure. Critics, friendly and not so friendly, point to what he has not delivered — voting rights, immigration reform, a $15 federal minimum wage, labor law reform and a path to freedom from personal debt and fossil fuels. Democrats fear that Mr. Biden’s plummeting approval ratings and the party’s losses in the November elections indicate that the Republicans will take back Congress in the midterms.No president, however, achieves his entire agenda. And presidents have suffered first-term losses greater than those currently anticipated for 2022.The real cause of the unease about Mr. Biden lies elsewhere. There is a sense that however large his spending bills may be, they come nowhere near to solving the problems they are meant to address. There is also a sense that however much in control of the federal government progressives may be, the right is still calling the shots.The first point is inarguable, especially when it comes to climate change and inequality. The second point is questionable, but it can find confirmation in everything from a conservative Supreme Court supermajority to the right’s ability to unleash one debilitating culture war after another — and in the growing fear that Republicans will ride back into the halls of power and slam the doors of democracy behind them, maybe forever.There’s a sense of stuckness, in other words, that no amount of social spending or policy innovation can seem to dislodge. The question is: Why?A prisoner of great expectationsThough it came out in 1993, Stephen Skowronek’s “The Politics Presidents Make” helps us understand how Mr. Biden has become a prisoner of great expectations.American politics is punctuated by the rise and fall of political orders or regimes. In each regime, one party, whether in power or not, dominates the field. Its ideas and interests define the landscape, forcing the opposition to accept its terms. Dwight Eisenhower may have been a Republican, but he often spoke in the cadences of the New Deal. Mr. Clinton voiced Reaganite hosannas to the market.Regimes persist across decades. The Jeffersonian regime lasted from 1800 to 1828; the Jacksonian regime, from 1828 to 1860; the Republican regime, from 1860 to 1932; the New Deal order, from 1932 to 1980.Reagan’s market regime of deference to the white and the wealthy has outlasted two Democratic presidencies and may survive a third. We see its presence in high returns to the rich and low wages for work, continents of the economy cordoned off from democratic control and resegregated neighborhoods and schools. Corporations are viewed, by liberals, as more advanced reformers of structural racism than parties and laws, and tech billionaires are seen as saviors of the planet.Eventually, however, regimes grow brittle. Their ideology no longer speaks to the questions of the day; important interests lose pride of place; the opposition refuses to accept the leading party and its values.Every president presides over a regime that is either resilient or vulnerable. That is his situation. When Eisenhower was elected, the New Deal was strong; when Jimmy Carter was elected, it was weak. Every president is affiliated or opposed to the regime. That is his story. James Knox Polk sought to extend the slavocracy, Abraham Lincoln to end it. The situation and the story are the keys to the president’s power — or powerlessness.When the president is aligned with a strong regime, he has considerable authority, as Lyndon Johnson realized when he expanded the New Deal with the Great Society. When the president is opposed to a strong regime, he has less authority, as Mr. Obama recognized when he tried to get a public option in the Affordable Care Act. When the president is aligned with a weak regime, he has the least authority, as everyone from John Adams to Mr. Carter was forced to confront. When the president is opposed to a weak regime, he has the greatest authority, as Thomas Jefferson, Andrew Jackson, Lincoln, Roosevelt and Reagan discovered. These presidents, whom Mr. Skowronek calls reconstructive, can reorder the political universe.All presidents are transformative actors. With each speech and every action, they make or unmake the regime. Sometimes, they do both at the same time: Johnson reportedly declared that with the passage of the Civil Rights Act of 1964, the Democrats had lost the South for a generation, thereby setting the stage for the unraveling of the New Deal.What distinguishes reconstructive presidents from other presidents, even the most transformative like Johnson, is that their words and deeds have a binding effect on their successors from both parties. They create the language that all serious contestants for power must speak. They construct political institutions and social realities that cannot be easily dismantled. They build coalitions that provide lasting support to the regime. Alexander Hamilton thought every president would “reverse and undo what has been done by a predecessor.” Reconstructive presidents do that — in fact, they reverse and undo the work of many predecessors — but they also ensure that their heirs cannot.Politics is not physics. A president opposed to the established order may seek to topple it, only to discover that it is too resilient or that his troops are too feeble and lacking in fight. Where we are in political time — whether we are in a reconstructive moment, ripe for reordering, or not — cannot be known in advance. The weakness or strength of a regime, and of the opposition to the regime, is revealed in the contest against it.What is certain is that the president is both creature and creator of the political world around him. Therein lies Mr. Biden’s predicament.The language of reconstructionHeading into the 2020 Democratic primaries, many people thought we might be in a reconstructive moment. I was one of them. There was a popular insurgency from the left, heralding the coming of a new New Deal. It culminated in the Nevada caucus, where people of color and young voters — an emergent multiracial working class — put Bernie Sanders over the top, ready to move the political order to the left.There also were signs that the Reagan regime was vulnerable. Donald Trump’s candidacy in 2016 suggested that conservative orthodoxies of slashing Social Security and Medicare and waging imperial warfare no longer compelled voters. Mr. Trump’s presidency revealed a congressional G.O.P. that could not unite around a program beyond tax cuts and right-wing judges.As a candidate, Mr. Biden rejected the transformation Mr. Sanders promised and assured wealthy donors that “nothing would fundamentally change” on his watch. Yet there were signs, after he won the nomination and into the early months of his administration, of a new, “transformational” Mr. Biden who wanted to be the next F.D.R. The combination of the Covid economy, with its shocking inequalities and market failures, and a summer of fire and flood seemed to authorize a left-leaning politics of permanent cash supports to workers and families, increased taxes on the rich to fund radical expansions of health care, elder care and child care, and comprehensive investments in green energy and infrastructure, with high-paying union jobs.Most important, the package cohered. Instead of a laundry list of gripes and grievances, it featured the consistent items of an alternative ideology and ascendant set of social interests. It promised to replace a sclerotic order that threatens to bury us all with a new order of common life. This was that rare moment when the most partisan of claims can sound like a reasonable defense of the whole.Yet while Mr. Biden has delivered nearly $3 trillion in spending, with another $1.5 trillion to $2 trillion likely to pass, he has not created a new order. In addition to a transformation of the economy, such an order would require a spate of democracy reforms — the elimination of the filibuster and curbing of partisan gerrymandering, the addition of new states to the union, and national protection of voting rights and electoral procedures — as well as labor law reforms, enabling workers to form unions.What makes such reforms reconstructive rather than a wish list of good works is that they shift the relations of power and interest, making other regime-building projects possible. Today’s progressive agenda is hobbled less by a lack of popular support than by the outsize leverage conservatives possess — in the Senate, which privileges white voters in sparsely populated, often rural states; in the federal structure of our government, which enables states to make it difficult for Black Americans to vote; and in the courts, whose right-wing composition has been shaped by two Republican presidents elected by a minority of the voters. No progressive agenda can be enacted and maintained unless these deformations are addressed.The only way to overcome anti-democratic forces is by seeding democracy throughout society, empowering workers to take collective action in the workplace and the polity, and by securing democracy at the level of the state. That is what the great emblems of a reconstructive presidency — the 14th Amendment, which granted Black Americans citizenship, or the Wagner Act, which liberated workers from the tyranny of employers — are meant to do. They give popular energy institutional form, turning temporary measures of an insurgent majority into long-term transformations of policy and practice.It’s not clear that Mr. Biden wants such a reconstruction. And even if he did, it’s not clear that he could deliver it.What is stopping Biden?The forces arrayed against a reconstruction are many.The first is the Republican Party. Here the party has benefited less from the “authoritarian” turn of Mr. Trump than from the fact that the Trump presidency was so constrained. As Mr. Skowronek argues, “Nothing exposes a hollow consensus faster than the exercise of presidential power.” At critical moments, exercising power was precisely what Mr. Trump was not able to do.Confronting the free fall of the New Deal, Mr. Carter unleashed a stunning strike of neoliberal and neoconservative measures: deregulation of entire industries; appointment of the anti-labor Paul Volcker to the Fed; a military buildup; and renewed confrontation with the Soviet Union. These defied his party’s orthodoxies and unraveled its coalition. Reagan ended the New Deal regime, but Mr. Carter prepared the way.For all his talk of opposition to the Republican pooh-bahs, Mr. Trump delivered what they wanted most — tax cuts, deregulation and judges — and suffered defeat when he tried to break out of their vise. Republicans repeatedly denied him funds to support his immigration plans. They overrode his veto of their military spending bill, something Congress had not been able to do in the Carter, Reagan, Clinton, George W. Bush and Obama administrations. Mr. Trump’s own administration defied his Russia policy. This combination of weakness and deference to the G.O.P. helped keep the Republicans — and the Reagan regime — together.The second obstacle is the Democratic Party. There’s a reason party elites, led by Mr. Obama, swiftly closed ranks, when the time came, behind Mr. Biden and against Mr. Sanders. They wanted continuity, not rupture.Likewise a portion of the base. Many Democrats are older, with long memories and strong fears of what happens when liberals turn left (they lose). Newer recruits, who gave Mr. Biden the edge in some key districts, usually in the suburbs, are what the Princeton historian Matt Karp calls “Halliburton Democrats,” wealthy defectors from the Republican Party.“A regime is only as vulnerable as the political forces challenging it are robust,” writes Mr. Skowronek. That robustness is yet to be demonstrated. Despite the clarity of the path the Democrats must take if they hope to topple the Reagan order, it’s not clear the party wants to take it.The third obstacle to a Biden reconstruction is what Mr. Skowronek calls the “institutional thickening” of American politics. Since the founding era, the American political system has acquired a global economy, with the dollar as the world’s currency; a government bureaucracy and imperial military; a dense ecology of media technologies; and armies of party activists. While these forces offer the modern president resources that Jefferson never had, they also empower the modern-day equivalents of Jefferson’s opponents to resist a reconstruction. Should Mr. Biden attempt one, could he master the masters of social media? Mr. Trump tried and was banned from Twitter.The real institutions that get in the way of Mr. Biden and the Democrats, however, are not these latter-day additions of modernity but the most ancient features of the American state.The power of Senators Manchin and Sinema is an artifact of the constitutional design of the Senate and the narrowness of the Democratic majority, which itself reflects the fact that the institution was created to defend slave states rather than popular majorities. Their power is augmented by the centuries-old filibuster, which has forced Mr. Biden to jam many programs into one vaguely named reconciliation bill. That prevents him from picking off individual Republicans for pieces of legislation they might support (as he did with the infrastructure bill).Should the Republicans take the House in 2022, it will probably not be because of Tucker Carlson but because of gerrymandering. Should the Republicans take back the White House in 2024, it will probably be because of some combination of the Electoral College and the control that our federalist system grants to states over their electoral procedures.A polarized electorate divided into red and blue states is not novel; it was a hallmark of the last Gilded Age, which put the brakes on the possibility of a presidential reconstruction for decades. As the political scientist E.E. Schattschneider argued, the division of the country into the Republican North and Democratic South made the entire polity “extremely conservative because one-party politics tends strongly to vest political power in the hands of people who already have economic power.”How do we move past Reagan?Every reconstructive president must confront vestiges of the old regime. The slavocracy evaded Lincoln’s grasp by seceding; the Supreme Court repeatedly thwarted F.D.R. Yet they persisted. How?What each of these presidents had at their back was an independent social movement. Behind Lincoln marched the largest democratic mass movement for abolition in modern history. Alongside F.D.R. stood the unions. Each of these movements had their own institutions. Each of them was disruptive, upending the leadership and orthodoxies of the existing parties. Each of them was prepared to do battle against the old regime. And battle they did.Social movements deliver votes to friendly politicians and stiffen their backs. More important, they take political arguments out of legislative halls and press them in private spaces of power. They suspend our delicate treaties of social peace, creating turbulence in hierarchical institutions like the workplace and the family. Institutions like these need the submission of subordinate to superior. By withholding their cooperation, subordinates can stop the everyday work of society. They exercise a kind of power that presidents do not possess but that they can use. That is why, after Lincoln’s election, Frederick Douglass called the abolitionist masses “the power behind the throne.”An independent social movement is what Mr. Biden does not have. Until he or a successor does, we may be waiting on a reconstruction that is ready to be made but insufficiently desired.Corey Robin is a distinguished professor of political science at Brooklyn College and the City University of New York Graduate Center. He is the author of “The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump” and “The Enigma of Clarence Thomas.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Texas Leaders Are Having Problems. Time to Attack the Feds!

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      Gov. Greg Abbott of Texas has been going through a bumpy stretch of late. Last year he irked many of his conservative brethren by imposing a mask mandate and other public safety measures aimed at slowing the spread of the coronavirus — suspiciously non-MAGA moves that prompted some Republican state lawmakers to discuss trimming his executive authority. Then there was the state’s pathetic handling of this year’s winter storm, which left at least 150 (and possibly hundreds more) Texans dead and millions shivering in the dark without power. The governor’s initial stab at damage control — falsely blaming the outages on green energy sources — prompted pushback from those more concerned with facts than partisan palaver.These are not the sort of stumbles the governor wants voters pondering as he prepares for his 2022 re-election fight. Already he is facing a primary challenge from the right by Don Huffines, a former state senator. And there is chatter about a possible run by the right-wing bomb thrower Allen West, an ex-congressman from Florida who migrated to Texas and won election as chairman of the state G.O.P. last year. A loud critic of the governor’s pandemic leadership, Mr. West stepped down as chairman this month to ponder his next political move.How is an ambitious guy like Mr. Abbott navigating this turbulence? Simple. He’s borrowing a political play long favored by foreign adversaries who find themselves in sticky situations: Attack the U.S. government as a way to distract from one’s troubles and rally the public against an external foe.Thus the governor has been making much ado about his big plans to deal with the influx of migrants across his state’s border with Mexico. Accusing the Biden administration of abdicating its national security duties, Mr. Abbott has announced that Texas is — wait for it — going to build a wall. The governor is using $250 million in general revenues as a down payment. For the rest of the cost, he is turning to online crowdfunding. If anyone wants to donate land along the border, he thinks that would be swell, too.Mr. Abbott is not yet prepared to address some of the logistical nitty-gritty — like what to do about the land near the border that people aren’t inclined to donate or that the federal government owns. Those are quibbles for another day. For political purposes, what matters is that he has found an issue that resonates with conservatives and, with a little luck, gets them riled up enough at the feds that they forgive, or even forget, his bumbling.Vilifying Washington is a time-honored tradition among state and local leaders — especially Republicans, for whom big government is an enduring boogeyman. This play works all the better in Texas, where state pride runs hot and on any given day some political clique is agitating to return the state to its glory days as an independent republic. The unofficial state motto — Don’t mess with Texas! — applies double to busybody federal authorities. (Unless they’re doling out disaster aid, of course.)Texas’ attorney general, Ken Paxton, is another master of this two-step. He was elected in 2014 and quickly drew national attention as a conservative warrior. He led the legal crusade to dismantle Obamacare and opposed various environmental regulations and immigration policies that he considered a liberal assault on Texas.During this time, Mr. Paxton was jowl deep in his own legal drama. His first year in office, he was indicted by a grand jury on charges of securities fraud and failing to register with the state securities board. He managed to win re-election in 2018, albeit narrowly, and the case has continued to drag out. He maintains his innocence and (surprise!) suggests the charges are politically motivated.Last fall, Mr. Paxton’s legal troubles exploded. Seven members of his staff, including top aides, announced that they had asked federal authorities to investigate him for “violating federal and/or state law, including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses.” The F.B.I. is reportedly looking into whether he inappropriately did favors for a wealthy political donor who hired a woman with whom the attorney general, who is married, was said to have had an affair. Mr. Paxton has denied all wrongdoing and claims the accusations are intended to derail an ongoing inquiry into other officials.Many leaders would be cowed by such a development. Not Mr. Paxton. After the presidential election, he became a high-profile peddler of former President Donald Trump’s lies about election fraud. In December, Mr. Paxton filed a long-shot suit against four states that had helped give Joe Biden the win, effectively asking the U.S. Supreme Court to set aside the states’ election results (which had already been certified). The court rejected the case like the cheap PR stunt it was.As weak as Mr. Paxton’s suit was — so weak that the Texas state bar is looking into whether it constituted professional misconduct — it delighted at least one person: Mr. Trump. Some political observers even speculated that Mr. Paxton was angling for a pre-emptive presidential pardon for whatever federal charges he might be facing.A pardon didn’t materialize, but the question of the attorney general’s political future remains. He is up for re-election next year, and his personal legal controversies could prove problematic. His fund-raising late last year was looking pitiful until his election suit. “In the days after mounting the unsuccessful legal bid, Paxton raked in nearly $150,000 — roughly half of his entire campaign haul in the last six months of 2020,” reported The Dallas Morning News.The more Mr. Paxton plays up his role as a dauntless MAGA fighter, the better his chance of persuading pro-Trump Texans to stick with him. He may stand accused of multiple crimes, but at least he’s not going to let the courts or the Biden administration or any deep state sympathizers boss him around. It’s not a perfect campaign message, but it may be his best option.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Constitutional Challenges Loom Over Proposed Voting Bill

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      The sprawling legislation, known as H.R. 1, could result in lawsuits leading to a dozen Supreme Court cases, legal experts said.WASHINGTON — If the sweeping voting rights bill that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions moving through Republican-controlled state legislatures.But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade.“I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard.The potential for the bill to set off a sprawling constitutional battle is largely a function of its ambitions. It would end felon disenfranchisement, require independent commissions to draw congressional districts, establish public financing for congressional candidates, order presidential candidates to disclose their tax returns, address dark money in political advertising and restructure the Federal Election Commission.The bill’s opponents say that it is, in the words of an editorial in The National Review, “a frontal assault on the Constitution” and “the most comprehensively unconstitutional bill in modern American history.”More measured critics take issue with specific provisions even as they acknowledge that the very nature of the bill — a grab bag of largely unrelated measures — would make it difficult to attack in a systematic way. In that respect, the anticipated challenges differ from those aimed at the Affordable Care Act, some of which sought to destroy the entire law.John O. McGinnis, a law professor at Northwestern University, said the bill went too far, partly because it was first proposed as an aspirational document rather than a practical one in 2019, when Republicans controlled the Senate and it had no hope of becoming law.“It seems very willing to brush past, at least in some cases, some relatively clear constitutional provisions,” he said, citing parts of the bill that require presidential candidates to disclose their tax returns and force advocacy groups to disclose their contributors.In March, 20 Republican state attorneys general said they were ready to litigate. “Should the act become law,” they wrote in a letter to congressional leaders, “we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections and the rights of our citizens.”Representative John Sarbanes, Democrat of Maryland and one of the lead authors of the package, said drafters had written it with a fusillade of Republican legal challenges in mind and were confident that it would “survive the great majority of them” in the Supreme Court.“I’m extremely comfortable that we built this to last,” Mr. Sarbanes said. “We think that the components are ones that are well girded against constitutional challenge — even by a court that we can imagine will probably start from a place of favorability to some of these challenges.”Democrats have made the bill a top legislative priority. But with Republicans united in opposition in the Senate, its path forward is rocky.Before a key committee vote this month, proponents of the overhaul are expected to introduce a slew of technical changes meant to address concerns raised by state elections administrators. But pushing it through the full chamber and to President Biden’s desk would require all 50 Senate Democrats to agree to suspend the filibuster rule and pass it on a simple party-line vote, a maneuver that at least two Democrats have so far rejected.Speaker Nancy Pelosi spoke at a news conference promoting H.R. 1 in March. Democrats have made the bill a top legislative priority.Anna Moneymaker for The New York TimesSome scholars have urged congressional Democrats to concentrate their efforts on narrower legislation, notably the John Lewis Voting Rights Advancement Act, which seeks to restore a key provision of the Voting Rights Act that the Supreme Court effectively eliminated by a 5-to-4 vote in 2013 in Shelby County v. Holder.The provision, the law’s Section 5, required states with a history of discrimination to obtain federal approval before changing voting procedures. In the Shelby County decision, the court ruled that the formula for deciding which states were covered violated the Constitution because it was based on outdated data.“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Chief Justice John G. Roberts Jr. wrote for the majority.The John Lewis Voting Rights Advancement Act, named for the civil rights leader who served in the House for more than three decades until his death last year, responds to that invitation by updating the coverage formula. Whether the Supreme Court — which has become more conservative since 2013 — would uphold the new formula and allow Section 5 to be restored is an open question, but the Shelby County decision at least allows Congress to try.Similarly, the court’s precedents suggest that not all of the anticipated challenges to the much broader H.R. 1 would succeed.As a general matter, few doubt that Congress has broad authority to regulate congressional elections because of the elections clause of the Constitution.To be sure, the clause specifies that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”The clause’s next phrase, though, allows federal lawmakers to override most of the power granted to state legislatures: “But the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.”The elections clause, supplemented by other constitutional provisions, Professor Stephanopoulos wrote in an article to be published in the journal Constitutional Commentary, means that “even the bill’s most controversial elements lie within Congress’s electoral authority, and Congress could actually reach considerably further, if it were so inclined.”But he acknowledged that there was controversy over the sweep of the provision. In a majority opinion in 2013, Justice Antonin Scalia wrote in an aside that the clause “empowers Congress to regulate how federal elections are held, but not who may vote in them.” That statement was in tension with the controlling opinion in a 1970 decision that allowed Congress to lower the minimum voting age in congressional elections to 18 from 21.The Supreme Court justices last month. The court has become more conservative since 2013, when it effectively eliminated a key provision of the Voting Rights Act.Erin Schaff/The New York TimesIf the statement from Justice Scalia is followed, it would raise questions about language in H.R. 1 that seeks to restore voting rights to people with felony convictions who have completed their sentences in states that would otherwise disenfranchise them.Several scholars said the provision might be vulnerable to a legal challenge. “That’s probably the most obvious red flag,” said Franita Tolson, a law professor at the University of Southern California.The Constitution grants Congress considerably less authority over presidential elections than congressional ones, allowing it to set only the timing. But some Supreme Court opinions have said the two kinds of authority are comparable.The bill’s requirement that states create independent commissions to draw congressional districts could also lead to litigation. Such commissions were upheld by a 5-to-4 vote in 2015 in Arizona State Legislature v. Arizona Independent Redistricting Commission.Justice Ruth Bader Ginsburg, writing for the majority, said Arizona voters were entitled “to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”With changes in the makeup of the Supreme Court since then, the Arizona precedent might be vulnerable, said Travis Crum, a law professor at Washington University in St. Louis.“In litigation over the 2020 election, several justices — including Justice Brett Kavanaugh — questioned the validity of that precedent,” Professor Crum said. “Given the possibility that the court might overturn that decision in the near future, it is even more imperative that Congress step in and mandate the use of independent redistricting commissions for congressional districts.”In dissent in the Arizona case, Chief Justice Roberts wrote that the Constitution specified that only state legislatures had the power to draw congressional maps. Four years later, though, writing for the majority in rejecting a role for federal courts in addressing partisan gerrymandering, he wrote about independent commissions created by ballot measures with seeming approval and said Congress also had a role to play, citing an earlier version of H.R. 1.Representative John Lewis of Georgia outside the Supreme Court in 2013. A voting bill named for him seeks to restore enforcement of Section 5 of the Voting Rights Act, after the court effectively eliminated it.Chip Somodevilla/Getty ImagesThe provision in H.R. 1 establishing a public financing system appears to be consistent with current Supreme Court precedentsIn 2011, by a 5-to-4 vote, the court struck down a different Arizona law, which provided escalating matching funds to participating candidates based on their opponents’ spending. But Chief Justice Roberts, writing for the majority in the case, Arizona Free Enterprise Club v. Bennett, indicated that more routine public financing systems remained a valid constitutional option.“We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote. “That is not our business.”Some of the disclosure requirements in H.R. 1 have drawn objections from across the ideological spectrum. The American Civil Liberties Union has said that it supports disclosures tied to “express advocacy” of a candidate’s election or defeat. The bill goes further, though, requiring disclosures in connection with policy debates that refer to candidates.That measure, two A.C.L.U. lawyers wrote in The Washington Post in March, “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.”“When a group is advocating policy changes outside the mainstream,” they continued, “they need privacy protections to be able to speak freely and without fear of reprisal.”The Citizens United decision in 2010 upheld the disclosure requirements before it by an 8-to-1 vote, but a pending Supreme Court case, American for Prosperity v. Bonta, might alter the constitutional calculus.Professor McGinnis said he also questioned a provision in the bill that required leaders of organizations to say they stood by the messages in political advertisements. “This seems to me to be eating up airtime without any real justification and subjecting people to harassment,” he said.He also took issue with the bill’s requirement that presidential candidates disclose their tax returns, saying Congress cannot add qualifications to who can run for president beyond those set out in the Constitution: that candidates be natural-born citizens, residents for 14 years and at least 35 years old.A 1995 Supreme Court decision rejecting an attempt by Arkansas to impose term limits on its congressional representatives appears to support the view that lawmakers cannot alter the constitutional requirements.Even if every one of the objections to the bill discussed in this article were to prevail in court, most of the law would survive. “Part of why the attack on H.R. 1 is unlikely to be successful in the end is that the law is not a single coherent structure the way Obamacare was,” Professor Stephanopoulos said. “It’s a hundred different proposals, all packaged together.”“The Roberts court would dislike on policy grounds almost the entire law,” he added. “But I think even this court would end up upholding most — big, big swaths — of the law. It would still leave the most important election bill in American history intact even after the court took its pound of flesh.”Nicholas Fandos More