Is This Constitutional?
Is the Department of Justice overstepping the boundaries of federal power to engage in ideologically driven social engineering?
Is what the DOJ trying to force on Ferguson even constitutionally permissible?
Without question, the Constitution of the United States gives the Department of Justice the power to address and force the correction of Constitutional violations. And the residents of Ferguson want to see our city continue to improve, and address any Constitutional issues. However the DOJ has used a case where it found no civil rights violation to go searching for statistics that suggest other problems in the City, suggestions of “racial bias, both implicit and explicit”. It is now using those statistical findings to demand changes from the City of Ferguson that go far, far beyond the scope of the problems. At some level the DOJ seems intent on creating a federal right to socially engineer local municipalities.
How much power should the Department of Justice have to control the shape of Ferguson? Again, this is a very complicated issue. The Constitution clearly gives the Department of Justice the right to come in and address constitutional transgressions and shortcomings. But the Constitution also calls for different powers at different levels of our government, we have (and love) our federal system. Traditionally we have allowed cities and towns wide leeway in how they configure their governments and operate.
Is the Department of Justice trying to change this balance? Is it trying to claim the right to come into towns and cities and force changes on local practices just because they might have a “disparate” impact? On the surface, this might seem like a worthy goal – of course we should try to reduce disparate impact. But in the real world it gets much more complicated. The City of Ferguson does not allow payday loan stores or pawn shops. But clearly this has a disparate impact on poorer people. Can the Department of Justice force the City of Ferguson to allow payday loans and pawn shops, just because not allowing them disproportionately affects poorer residents?
And what about city elections? Ferguson, like tens of thousands of cities across the United States, holds its municipal elections “off cycle”, in April instead of the mandated federal election day in November. Why? Because this insures that only residents that care about and pay attention to city issues make the decisions on city governance. In the United States there are differences in participation for different socio-economic groups. Rich people vote more than poor people, and because there are proportionately more poor African Americans, they vote less. But structurally, off cycle elections are not biased – they do not create disproportionate burdens on different classes of voters – everybody is inconvenienced equally by having to vote twice in a year instead of once. So should the Department of Justice be able to force Ferguson to shift its elections?
We as a nation do need to evaluate and address local procedures to understand how they impact and lessen people's freedom. Again, clearly our country needs to continue down the path of civil rights for all, of equality of opportunity for all.
By chance, Ferguson Missouri has become the focal point of these questions; like it or not Ferguson has been forced into this conversation about what is an acceptable response from the Department of Justice – from the federal government. We don't claim to know the right answers, however we do think it's important that there is a national conversation around how we address these issues, how we address institutional racism or even institutional lack of opportunity. One of the reasons we are doing this project is because it needs to be a public conversation – the Department of Justice needs to be very clear about what it is asking for and why. The Department of Justice needs to operate with the same transparency it is asking of other institutions.
Is what the DOJ trying to force on Ferguson even constitutionally permissible?
Without question, the Constitution of the United States gives the Department of Justice the power to address and force the correction of Constitutional violations. And the residents of Ferguson want to see our city continue to improve, and address any Constitutional issues. However the DOJ has used a case where it found no civil rights violation to go searching for statistics that suggest other problems in the City, suggestions of “racial bias, both implicit and explicit”. It is now using those statistical findings to demand changes from the City of Ferguson that go far, far beyond the scope of the problems. At some level the DOJ seems intent on creating a federal right to socially engineer local municipalities.
How much power should the Department of Justice have to control the shape of Ferguson? Again, this is a very complicated issue. The Constitution clearly gives the Department of Justice the right to come in and address constitutional transgressions and shortcomings. But the Constitution also calls for different powers at different levels of our government, we have (and love) our federal system. Traditionally we have allowed cities and towns wide leeway in how they configure their governments and operate.
Is the Department of Justice trying to change this balance? Is it trying to claim the right to come into towns and cities and force changes on local practices just because they might have a “disparate” impact? On the surface, this might seem like a worthy goal – of course we should try to reduce disparate impact. But in the real world it gets much more complicated. The City of Ferguson does not allow payday loan stores or pawn shops. But clearly this has a disparate impact on poorer people. Can the Department of Justice force the City of Ferguson to allow payday loans and pawn shops, just because not allowing them disproportionately affects poorer residents?
And what about city elections? Ferguson, like tens of thousands of cities across the United States, holds its municipal elections “off cycle”, in April instead of the mandated federal election day in November. Why? Because this insures that only residents that care about and pay attention to city issues make the decisions on city governance. In the United States there are differences in participation for different socio-economic groups. Rich people vote more than poor people, and because there are proportionately more poor African Americans, they vote less. But structurally, off cycle elections are not biased – they do not create disproportionate burdens on different classes of voters – everybody is inconvenienced equally by having to vote twice in a year instead of once. So should the Department of Justice be able to force Ferguson to shift its elections?
We as a nation do need to evaluate and address local procedures to understand how they impact and lessen people's freedom. Again, clearly our country needs to continue down the path of civil rights for all, of equality of opportunity for all.
By chance, Ferguson Missouri has become the focal point of these questions; like it or not Ferguson has been forced into this conversation about what is an acceptable response from the Department of Justice – from the federal government. We don't claim to know the right answers, however we do think it's important that there is a national conversation around how we address these issues, how we address institutional racism or even institutional lack of opportunity. One of the reasons we are doing this project is because it needs to be a public conversation – the Department of Justice needs to be very clear about what it is asking for and why. The Department of Justice needs to operate with the same transparency it is asking of other institutions.
