June 15, 2012
Remarks by Senator Tom Harkin (D-IA) to the American Constitution Society Washington, DC
*As prepared for delivery*
“I thank my old friend Judge Robert Pratt for that kind introduction. As a Senator, one of my greatest responsibilities is to recommend to the President people who should serve in a life- time position as a federal judge. On that score Bob, I am so proud of your service to Iowa and to our nation and of your unwavering commitment to the law and justice.
“However! There was one instance in your distinguished career that did give me pause. In 2007, the Supreme Court decided Gall v. United States, a case involving a sentence you had imposed below the sentencing guidelines. Bob, what caught my eye was not that the Supreme Court affirmed your ruling. Rather, it was that Justice Scalia agreed with your position. Even troglodytes come out of caves and see light once in a while!
“I also want to thank Caroline Frederickson and the entire American Constitution Society for the kind invitation to speak this morning. And, I want to thank ACS and its members for the indispensable work you do to promote equality, access to justice, and rule of law.
“Justice Brennan said that “the Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.” In recent years, the Constitution has been under assault by those who wish to construe it lockstep with today’s political conservative ideology. But, precisely because of the good work of ACS, the lawyers, law students, judges, and activists in this room, I am confident that the Constitution will endure!
“But, it will only endure if we continue to defend it. The harsh reality is that our nation’s most basic principles and values are under assault. For too many, the Constitution is not a document that in its own plain language is designed to “promote the general welfare.” Rather, it is a bludgeon used by those whose goal is protect special interests, amplify the power of the privileged and prevent the national government from acting affirmatively.
“In case after case, this Court has undermined vital protections and brazenly sided with the powerful against the powerless. From Bush v. Gore to Citizens United, conservative jurists have made clear that they are not an impartial umpire calling balls and strikes, as the Chief Justice would have us believe, but rather they are in the dugout with the team that’s on top, repeatedly advancing their own personal ideologies above the law.
“Today, many conservatives are working aggressively to erect barriers to voting for the poor, for minorities, for the elderly and for students. This Supreme Court has endorsed discriminatory voter screening laws, and called into question the Voting Rights Act. At the same time, “We the People” are being drowned out by corporations and wealthy individuals flooding the airwaves and corrupting our democracy. Abraham Lincoln famously resolved that “government of the people, by the people, for the people, shall not perish from the earth.” Obviously, he did not foresee Citizens United and its prospect of government of, by, and for corporations and billionaires.
“The fact is that conservatives choose to ignore those parts of the Constitution that conflict with their guiding principle – protecting the wealthy and powerful. They consistently challenge the right to join a labor union and bargain collectively. There are those who wish to close the courthouse door – who want to ensure corporations cannot be meaningfully held accountable when they cause injuries, discriminate, or violate rights. And, when they can’t limit access to justice through the law, they just make sure our most vulnerable citizens lack meaningful representation, for example through gutting funding for Legal Services Corporation. As Judge Learned Hand once said, “if we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” Conservatives disagree.
“Moreover, in case after case, the Court has chosen to undermine the ability of Congress to protect all citizens and to ensure human dignity, civil rights and equality. In cases like Morrison, Kimel, Coleman and Garrett (a case whose oral arguments I personally attended), the Court has limited the rights of women, older Americans and people with disabilities. In doing so, it has repeatedly brushed aside congressional intent, hearings, and extensive congressional fact-findings. Consider Lilly Ledbetter and an Iowan – Jack Gross – where the Court protected the ability of corporations to blatantly continue to discriminate on the basis of gender and age. And, in the “Sutton” trilogy, the Court repeatedly misread the Americans with Disabilities Act, eliminating protections for millions of Americans with disabilities – flawed, harmful decisions that were not reversed until 2008 when Congress enacted the ADA Amendments Act.
“Ladies and Gentlemen, I have discussed some, but certainly not all, of the principles that are under assault. But, I want to mention one more which epitomizes the critical difference between our vision of constitutional government and theirs. We believe that the Founders intended the Constitution to be a document that enables the American people, through their government, to collectively address our country’s challenges; to “promote the general welfare.” We believe that government can be a force for good, defined on promoting a more healthy, happy, fulfilling life for all.
“The Constitution that the Founders wrote provides a framework for citizens – “We the People” – to come together, as a community and country, to expand the opportunities for individual Americans to more fully participate in the political and economic life of the nation. We believe in what Chief Justice Marshall made clear in McCulloch v. Maryland, any enduring Constitution is designed to, and must be able to, “respond to the various crises of human affairs.”
“Conservatives have a radically different view. They have the misguided belief that the Constitution was designed to enshrine survival-of-the-fittest economic principles. They believe in an ideology that could not have been imagined by our Founders – an ideology that would ensure a paralyzed government that cannot work to “promote the general welfare.”
“As the author of the Americans with Disabilities Act, who had a brother who was deaf, I can tell you first hand that it is because of government – passage and enforcement of the ADA – that millions of Americans with disabilities now have the freedom to enjoy the privileges of citizenship in this country. Millions of our citizens now have the ability to eat in restaurants, stay in hotels, and obtain meaningful employment. Likewise with the Civil Rights Act of 1964. You can’t tell me that millions of African-Americans who now have the opportunity for employment, or something as simple as riding on greyhound, don’t have more freedom today because of government, because of the Civil Rights Act of 1964.
“But, conservatives don’t just believe in a government that affirmatively advances human rights and true equality of opportunity, they are taking radical steps to do all they can to paralyze the government’s ability to act for the people. They do not accept the legitimacy of a duly elected President. They have, to an unprecedented level, mastered the art of obstruction and gridlock. Last summer, they used a very real threat to block an increase in the debt ceiling – damaging our economy and causing the first-ever downgrade of our credit rating – in order to coerce a capitulation to policies opposed by the majority.
“They exercise modern nullification – using parliamentary gimmicks to block qualified nominees for critical positions with the sole purpose of ensuring duly enacted laws – such as Dodd-Frank or the National Labor Relations Act – cannot be enforced. Conservatives ignore their Constitutional “advice and consent” responsibilities, denying, at an unprecedented rate, up-or-down votes to qualified nominees.
“And since 2007, the minority in the Senate has filibustered over 365 bills and nominees. In the nearly half century between 1917 and 1970, there were only 50 filibusters total. On a daily basis, the minority is now using the filibuster to stop bills from even coming to the floor for consideration. To quote Norm Ornstein “The expanded use of formal rules on Capitol Hill is unprecedented and is bringing government to its knees.” Since 1995, when I was in the minority, I have worked to eliminate the filibuster, while continuing to ensure ample debate and deliberation. And, I intend to try again in January.
“The result of abuse of the filibuster is that in too many critical areas – job creation, the economy, immigration, and energy, to name just a few – Congress is riven with dysfunction. The people see a legislature that is simply unable to respond effectively to the most urgent challenges of our time.
“This means that the minority can block bills that would improve the economy and create jobs, and then turn around and blame the majority for not fixing the economy. The minority can block popular legislation, and then accuse the majority of being ineffective. And, this is consistent with the modern conservative Constitutional philosophy premised on a paralyzed government that cannot work for the common good.
“And, nowhere is conservatives’ obstruction, and their determination to impose their philosophy on society, more stark than in their campaign to reverse and deny the capacity of Congress to ensure all Americans have access to quality, affordable health care.
“Having failed in Congress to repeal the law, conservatives are counting on the Court to do their dirty work.
“Of course, we should expect as much. Throughout our nation’s history, every major reform that has sought to expand the rights and promote the general welfare of the American people has been subjected to determined, well-funded legal attacks in the courts. Opponents of the New Deal, Social Security, the Civil Rights Act, and the Voting Rights Act sought to weaken our country through precisely such a legal strategy.
“On the legal merits, the opponents of the Affordable Care Act are just wrong. Health care constitutes one-sixth of the economy. It is absurd to suggest that in the 21st century the federal government, exercising its authority under the Commerce Clause, cannot make laws affecting an area that is so clearly commerce. As Reagan appointee Laurence Silberman wrote, Congress of course has the power “to forge national solutions to national problems.”
“In my mind, the difference between the real Constitution and the imaginary one pushed by conservatives is captured in the questions posed by Justice Scalia in the health care case. In oral arguments, Solicitor General Verrilli rightly pointed out that uninsured people often receive care, even if they can’t pay for it, because of “the social norms to which we’ve obligated ourselves.” Astonishingly, Justice Scalia replied, “well, don’t obligate yourself to that.”
“What warped theory of the Constitution would dictate that the national government cannot undertake to ensure that its citizens have access to an emergency room and to health care?
“This is not just about theories of law. As we talk about the health care case, 30 million Americans await the verdict from the Supreme Court as to whether they will remain uninsured and without adequate access to health care. For them, this case is not about the intricacies of the Commerce Clause, it is literally a matter of life and death. Again, the wisdom of Justice Brennan, who reminded us for all our talk of “constitutional theory”, what our Constitution is really about is improving the lives of our fellow citizens. He said that “[f]rom its founding, the nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”
“The fight for economic justice is front and center today. There is a clash of two fundamentally opposing views of government. Will we have a government that serves the privileged and the powerful, while drastically slashing services and programs that support the middle class and the least fortunate among us? Or will we have a government that continues to undergird the middle class, while providing a ladder, or ramp, of opportunity to give all Americans an equal right to the American dream – that “promotes the general welfare.”
“As one conservative put it, the modern conservative goal is to “reduce government to the size where we can drown it in the bathtub.” Of course this is not what the Founders intended. But, let’s remember, this is more than a philosophical debate. This has real world consequences. Tens of millions of people will be hurt if they succeed. Millions will go without necessary health care, will suffer with poor education, will not be able to afford college, or to retire in dignity.
“So, no question, our Constitution and our values are under assault. And, it is up to us to stand up for our principles, and to fight back – a key purpose of the American Constitution Society.
“By all means, we must continue writing articles, op-eds, and briefs. We must advocate for a more faithful reading of the law, and for life-tenured judges who faithfully apply precedent, follow the law, and, yes, promote the general welfare.
“At the same time, we must remember that the law does not belong to law professors, to judges, or even to legislators. Especially in the face of an increasingly hostile and conservative court system, progressives must constantly remember that change will come not from on high, but from the bottom up, by actions by you, and me, and millions of others in our communities.
“Time and again, it has been activist individuals who have served as catalysts for profound changes in the law. In 1948, in Des Moines, Edna Griffen, John Bibbs, and Leonard Hudson entered Katz Drugstore and ordered Cokes at a segregated lunch counter. Today, they are unheralded or even forgotten. But, their small acts – combined with similar actions by others – our nation for the better.
“In March of 1990, a fighter for disability rights named Bob Kafka led a protest on Capitol Hill. Kafka and his fellow disability rights activists climbed out of their wheelchairs and crawled on their hands and knees up the steps of the Capitol building. That vivid act of protest was a catalyst that helped to pass the Americans with Disabilities Act several months later.
“So, despite the multiple assaults, today, on our vision of a just society and our vision of a Constitution that allows each generation to robustly “promote the general welfare,” I remain an optimist. I absolutely agree with Dr. King’s famous assurance that the arc of the moral universe “bends towards justice.”
“However, that arc does not bend all by itself. It bends thanks to the persistent, determined, unstoppable actions of individuals – including the activists in this room.
“From the bottom of my heart, I thank the American Constitution Society for all you do to ensure that the law is a force for securing justice, opening doors, and expanding opportunity for all Americans.
“Thank you, friends!”