Reviewing John Nichols’ Uprising: How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street

What is it that is swelling the ranks of the dissatisfied?  Is it a growing conviction in state after state, that we are fast being dominated by forces that thwart the will of the people and menace representative government?

Robert M. LaFollette, July 4, 1897, Mineral Point, Wis.

With that quote, John Nichols begins the first chapter of his unapologetically biased book Uprising:  How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street (2012). Nichols, The Nation’s Washington correspondent and an associate editor of Madison’s Capital Times newspaper, recounts the protests in Madison and around the state in early 2011 and analyzes their importance in renewing a spirit of protest that spread from Madison to, ultimately, Manhattan.

Just as Nichols is not an unbiased author, I am not an unbiased reader. What Nichols writes about brings back vivid memories of weekends around the capitol square, in sun as well as in snow and cold, as part of the massive, diverse, palpably energetic crowds that marched around the square in February and March 2011.  Uprising is not a chronological account of the protests; rather, Nichols organizes thematically, beginning with the beginning:  the cold mid-February day, one day after Governor Scott Walker announced his 144-page budget repair bill that contained provisions that went far beyond repairing the budget to stripping collective bargaining rights of public employees.  On that day, Nichols says, fifty members of UW Madison’s Teaching Assistants’ Association (TAA) gathered in front of UW Madison’s Memorial Union and protested (4).  Two days later, Nichols tells us, more than 1,000 TAA members marched to the capitol. They were joined each day thereafter by hundreds and then thousands of others from all walks of life – union and non-union members, public and private employees alike – and they continued marching.

How and why what fifty or so students started became an incredible historical event is chronicled in Nichols’ subsequent chapters. 

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Questions from the Awlaki Litigation

In August 2010, the father of Anwar al-Awlaki filed a federal lawsuit alleging that his son’s inclusion on CIA and DoD “kill lists” violated the Constitution and international law. The court dismissed the suit for lack of standing and for raising a political question. Several months later, the CIA killed Awlaki and two other U.S. citizens in aerial drone strikes in Yemen. Now the ACLU and Center for Constitutional Rights have responded by filing a separate lawsuit challenging the government’s use of the drones. The defendants are Leon Panetta, David Petraeus, and two other senior military officials, and the complaint alleges that the killings violated the Fourth and Fifth Amendments and the Bill of Attainder Clause. Given the relatedness of the lawsuits and the dismissal of the first on the basis of the political question doctrine, I think there’s very little chance that the second succeeds. But it still raises interesting issues.

One concerns precedent—has the United States ever carried out targeted killings against its own citizens? The answer is yes; the U.S. military has targeted and killed individuals without judicial process notwithstanding their U.S. citizenship. The most significant example comes from the Civil War, during which the Union killed tens of thousands of Confederate soldiers. One might argue that those soldiers were no longer U.S. citizens because they were fighting for the Confederacy, but that position is inconsistent with the view—supported by the Supreme Court’s decision in Texas v. White (1869)—that secession was unconstitutional. As long as secession was invalid, then the Confederacy was void and did not dissolve the U.S. citizenship of its soldiers. More isolated examples appear to have occurred during World War II, when the United States fought against Nazi forces that included some U.S. citizens of German descent. And of course federal law enforcement officers have occasionally killed criminal suspects who presented significant and immediate threats to the public. If the United States has acted permissibly in these cases, then the extrajudicial killing of a U.S. citizen is not unconstitutional per se.

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The Public Frequently Disagrees With the Supreme Court

An article in Thursday’s New York Times by reporters Adam Liptak and Allison Kopicki examined the public response to the United States Supreme Court’s recent decision in the Affordable Health Care case. Based on public opinion polling shortly after the decision was handed down, only 46% of those surveyed agreed that the case had been correctly decided.

In a sidebar, the story also noted that public reactions of this nature were not unusual.

Using past public opinion polls to determine the immediate popular reaction to landmark Supreme Court decisions, the story reported that in 17 controversial cases decided between 1954 and 2011, majority support from the American public was the exception rather than the rule.

In only 4 of the cases did as many as 51% of respondents support the Supreme Court’s decision.

Two of the four cases were, perhaps surprisingly, the highly controversial opinions in Brown v. Board of Education (54%) and Roe v. Wade (52%). In both cases, a slight majority of Americans felt at the time that the cases were correctly decided.

The other two cases that evoked the support of the majority of Americans were Boy Scouts v. Dale (56%) (allowing the Boy Scouts to exclude homosexuals) and Clinton v. Jones (59%) (allowing Paula Jones to file a sexual harassment suit against the sitting president).

If we assume that the failure to agree with a decision represents a belief that the Constitution, properly interpreted, would have produced a different result, the polls suggest that the American people as a whole have instinctively embraced the following viewpoints:

(1) Race should never be a factor in assigning students to schools. (Brown v. Board of education and Parents Involved v. Seattle)

(2) Affirmative action, on the basis of either race or gender, is wrong. (Johnson v. Santa Clara and Grutter v. Bollinger)

(3) Women have a right to an abortion if they want one. (Roe v. Wade and Gonzales v. Carhart)

(4) It is okay for a private citizen or organization to discriminate against homosexuals, and gay sex acts can be treated as crimes. (Boy Scouts v. Dale and Lawrence v. Texas)

(5) Governmental security concerns trump the First Amendment. (New York Times v. U.S.)

(6) Foreign terrorists can claim no protection under the U.S. Constitution. (Boumediene v. Bush)

(7) The amount of money spent on political campaigns can be limited. (Buckley v. Valeo and Citizens United v FEC)

(8) Politically motivated U. S. flag burning should be a crime. (Texas v. Johnson)

(9) Prayer should be allowed in public schools. (Engle v. Vitale and Santa Fe v. Doe)

(10) The president can be sued for sexual harassment while in office. (Clinton v. Jones)

(11) No one really knows who should have won the 2000 presidential election. (Bush v. Gore)

Like it or not, this is popular constitutionalism.

Thanks to Scott Idleman for calling this article to my attention.

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