A few days ago, I participated in an Indiana Lawyer podcast investigating the question “Is America experiencing a Constitutional Crisis?”
Unfortunately, I was paired with Jim Bopp on the recording, which was a test of my ability to keep my cool. Bopp, for those of you who don’t know, was the lawyer who brought us Citizen United, and he’s never met a ‘librul’ who was right about anything. He also apparently resides in an alternate reality, where every lower court judge who’s ruled against Trump is a far-left liberal appointed by a Democrat, Trump’s daily insane Executive Orders are merely an example of the way past Presidents have tried to “push the envelope,” and voting by mail is an invitation to ballot theft…
There was more, but the stiff drink I imbibed when I got home helped.
When I got the call requesting that I participate in the podcast, I was told the questions would revolve around whether the country is currently experiencing a constitutional crisis. I think the answer is yes.
Of course, whether we are currently experiencing such a crisis depends upon your preferred definition. One line of thinking defines a Constitutional Crisis as a situation in which a President defies a clear mandate by the Surpreme Court. I think that is far too restrictive a definition; instead, I would argue that the loss of a fundamental basis of constitutional functioning qualifies–and I think it is beyond argument that we are witnessing such a loss.
America’s constitutional structure is based upon the Separation of Powers. The Founders who crafted the Constitution were greatly influenced by Enlightenment philosophy, especially the philosophy of Baron de Montesquieu, who wrote The Spirit of Laws. Montesquieu argued that, in order for liberty to thrive, government authority must be divided into three distinct branches—legislative, executive, and judicial—each with independent powers and responsibilities. That division, he argued, would prevent the concentration of power leading to autocracy, and would provide a system of checks and balances.
The Founders embraced that structure, expecting that each branch–jealous of its prerogatives–would check excesses attempted by the others. Despite some unfortunate missteps, It has basically worked that way.
Until now.
One after another, Trump’s Executive Orders have claimed authority that the Constitution explicitly gives to the other branches–primarily, Congress. (Interestingly, the Founders conceived of Congress as the “first among equals”–the legislative branch, in their conception, would be the branch exercising the greatest authority.) These attempts would not, in themselves, constitute a constitutional crisis–the crisis comes from the cowardly, arguably treasonous refusal of the Republicans who dominate the legislative branch to assert their constitutional prerogatives. And that crisis has been amplified–shamefully–by the Supreme Court. Despite the valiant efforts of the lower federal courts to constrain Trump, our rogue Supreme Court has used its Shadow Docket to summarily overturn the considered and thoughtful decisions of Judges who–contrary to Jim Bopp’s fond misconceptions–were nominated by Presidents of both parties, and include judges named by Trump. That rogue Court has weakened the rule of law by failing to follow its own precedents and by distorting settled constitutional jurisprudence.
The one observation by Bopp with which I agreed was his statement that personnel reflects policy. Any reasonable evaluation of the clowns, drunkards, conspiracy theorists and assorted grifters installed by Trump will reflect the utter lack of policy–not to mention competence– that permeates this administration. (Corruption and grifting aren’t policy.)
If we aren’t having a constitutional crisis, I don’t know what one would look like…
The question isn’t “Are we in a Constitutional crisis?” The question is “No matter what you call it, how do we get out of it and still have a Constitution?”
There’s more than just a constitutional crisis going on! Any one individual who Bogarts authority that’s been implicitly and constitutionally, given to some other entity, shows how much capitulating and abdicating is going on. And, if you really take another look at 1920s and ’30s Germany, you can see this very thing that’s happening here. One man bogarting authority buy hook or crook.
With an administration of cronies galore, there is no pushback because of boot licking fear. Or maybe just licking, lol! That’s a good way to embraciate oneself to an extremely juvenile and needy narcissist. You see the assassinations that have been going on over the past few months, in Minnesota they’ve had a hard row to hoe there. And I think with this Charlie Kirk issue, you’re going to find a similar mindset from the perpetrator, as the so-called preacher in Minnesota who went on his assassination spree.
The fear Factor, is the reason everybody is kowtowing because they’ve capitulated their own authority so much, they’ve emboldened an unstable Adolf! Or maybe an El duce?
Remember the old adage, talk is cheap? Well basically that’s all we hear now. No real action, but just capitulating gibberish. In the political realm that’s about the only thing you can count on. Politics has gotten fat and lazy on cheap talk and Grift. And it’s spread to those in the media. Because they have their own financial interests and pockets to worry about. So they capitulate just like all of the political brethren bowls of jelly. You wish you could say jellyfish, but at least jellyfish have a venomous stinger! 🤔
No spine or backbone, not even an exoskeleton, lol, just a blob of quivering jelly. Folks know that our own little Adolf can be very ruthless. He doesn’t abide by any sort of graciousness. And that makes The lackies ingraciate themselves without expectation of reciprocation.
And what happens here, doesn’t stay here, it’s spreads like the kissing bugs infestation moving across this country infecting people with the deadly Chaga parasite. There is no cure, And you usually end up disabled or dead. The political realm might as well be called the realm of the kissing bug. Spreading its deadly parasite across the planet. The fear Factor alone, will make capitulation on freedom and democracy, very easy. They would rather go along to get along. As long as there’s some sort of personal benefit from licking boots or sucking the blood from the citizenry. Just look at NATO and the blathering nincomporary from that organization concerning the drone attacks in Poland. It’s laughable!
With the possibility of deadly blowback, no one wants to utter a peep? They will continue battering human rights and constitutional freedoms. Because, that’s the stream of time we are in. When you see those kissing bugs, don’t step on them, because they are like ticks, hard to smash! You’ve got to burn them. Or spray them with alcohol. Or both!
Fear and self-preservation showcases the shortcomings of this political experiment. It just took the right person at the right time to spotlight this House of cards.
I’m surprised you didn’t connect the dots (Maybe leaving that to us raving lunatics who despise anything Republican.) between Bopp’s attitude, his participation in Citizens United v. FEC and the current situation where the Congress is abdicating their Constitutional duty daily. Why?
Well, as Todd often points out, the donor class, aka oligarchs, have purchased the Republican party and, to some lesser extent, the Democrats too. Voila! Fealty to the orange hairball. Fear of being primaried by another one of the drooling MAGA Republicans if they don’t comply to the EOs, or not vote for a nominee, etc.
So, yeah, your podcast buddy, Sheila, is a major player in this crisis. They brought it on themselves much to the delight of The Heritage Foundation, Koch Industries and a host of other fascist miscreants.
I’ve read the Scalia decision/opinion on Citizens United and still can’t understand what he meant by “jiggery-pokery”.
“Any reasonable evaluation of the clowns, drunkards, conspiracy theorists and assorted grifters installed by Trump will reflect the utter lack of policy–not to mention competence– that permeates this administration.”
What a great sentence.
Gee, does Bopp cherry pick and distort? I wonder…not! It is amazing that people can think as he does and make their way to the breakfast table in one attempt.
Excellent posting and comments.
Trump’s only policy is to secure still more power so that it will be easy to enrich himself by any means. There is/was a very “B,” no “B-” movie I saw many years ago, and one line stands out in my memory thereof, something like “You are the pimple on the asshole of the universe!” She did not say “Orange pimple,” but….
Vern, you left out Scalia’s use of the term “pure applesauce” in one of his decisions. “Jiggery-pokey” meant deception and dishonest. He was a corrupted Koch puppet.
I think the oligarchy felt they were losing control under FDR’s reign and began fighting back by creating boilerplate laws for their Libertarian politicians to pass. You don’t need rocket scientists to sign their name to a proposed bill. Capitalism nearly collapsed under FDR’s rule, but he saved it from the communists (unionists) who had built the union into a powerful force.
The oligarchs also started undoing the welfare state that FDR created.
I think all this talk about a “constitutional crisis” and threatening that we are “losing our democracy” is just plain jibberish created by the Democratic Party. We were an oligarchy established by plutocrats who didn’t trust the people.
As we’ve witnessed with the current fraudsters on the bench, they can justify their decisions with the most ludicrous bullshit possible, and we’re stuck with these con artists for a very long time. If you’re fearful of where we are now, wait until Trump’s done!
An FYI, Peter Thiel delivers his four-part series on Monday about the “Anti-Christ.” Not a four-hour presentation but four days. Not sure if he will name the “Anti-Christ,” but we shall see. Thiel has suggested that Greta Thunberg may be the master deceiver, given her involvement in a flotilla heading for Gaza. Is he setting up justification for Israel to attack the flotilla?
If you noticed, Bibi Netanyahu spent hours on TV being interviewed after Charlie Kirk’s murder. A reliable source wrote that Kirk was scared of Bibi’s bullying him to take money from pro-Israel donors in the U.S. He refused and got flak from the Jewish donors in the U.S. who set up Charlie and Turning Point, USA.
Insiders say that Trump feels the same pressure from Bibi and Israel and is worried about what might happen to him if he refuses Bibi.
Hmm??
From HCR, this morning, as someone wrote, the other day that Kirk’s loss was “very personal” to Trump:
“For his part, Trump seemed to have lost interest in Kirk even earlier. Yesterday evening, a reporter offered the president his condolences on the loss of his friend Kirk and asked Trump how he was holding up. The president answered, in full: “I think very good. And by the way, right there, you see all the trucks, they just started construction of the new ballroom for the White House….”
Malignant narcissists have no “personal” connection to anyone but themselves.
And do not think that Trump will have any “personal” connection to NATO, he will turn his back on any allies, if it suits his purpose of the moment.
Thank you, Theresa Bowers. That we are fully into the Constitutional Crisis we saw coming but couldn’t/wouldn’t/ didn’t work to stop is blatantly obvious…unless you are as mentally challenged as Trump, Vance, Musk and their current administration. My question is how and why has the Supreme Court been allowed to circumnavigate the entire Constitution as it is being ignored by Senate and House who refuse to perform their designated duties and responsibilities. It doesn’t take a law degree to recognize the fact that the Representatives in the House cannot impeach one another as required to pass on the the Senate to call on the Vice President to break the tie vote not to impeach anyone. And, who has the authority to impeach the Deep Red majority of the Supreme Court?
If all of this were not destroying the entire government of the United States of America and the American citizens, it would make a great theme for a TV sitcom; reminiscent of that old movie “Wag The Dog”…or “How To Accept The Bomb And Learn To Love It” because that is the direction we are headed in.
“(Corruption and grifting aren’t policy.)”
For a party totally anti-abortion they are performing a late-term abortion on democracy, Rule of Law and the Constitution. They are gradually turning our military into an expanded version of “F Troop” who have no more protection from them than we do. Those of us who do not want to be invaded by National Guard troops must remember there are many among them who do not want to be where they are being sent. The ICE troops are Trump’s Black Water troops turned to paid by this government boots-on-the-ground, home-grown enemies of most citizens. The demarcation between Red and Blue is blurred in many areas today; we need to be careful not to see enemies among them which does not exist. These are dangerous and fearful times for all of us; will there be a history of these days written and who will be left to write that history?
i find the bills and laws made by law makers lacking of total definition. like the argument EPA fining for some amount,or whatever. the law,s were contested by the plaintiff/defendant, but the law was never whole in,the appropriate definition. congress fails to whole the wording and the reason. instead i find the law in front of courts and lawyers arguing what the meaning was/thought/makers/decision in the draft of said bill/law. constant arguing about holes in the law. now were witnessing theology over what was the meaning,and the roberts court is allowed to copy and paste as it sees fit. all due congresses lack of definition. loop holes. all of them have em. maybe this will become why trump will stay in power and pass it on to whoever he wants to. congress as is, is a failure to write and define laws with no bridge to argument.
busted, now the feds,military,state teachers assoc, and many more are firing people over comments about facist kirk. social media rants are getting people fired and where does this stop?ya wonder why i dont social media…first amendment kirk, sounds like a new kirk game,gestapo, your busted..
I have a hazy recollection of a TV mini-series (I think it wa on ABC) back in the 70’s named Amerika. As I recall, things looked a lot like today.
Thinking of how influential writers take an idea, a position, an argument, and organize it to make it the compelling truth, the whole truth, and nothing but the truth from their perspective, the Constitution would be the opening paragraph or chapter that presents the summary argument first. This is the concept that the body of laws written and ratified by Congress will later add detail to, but are limited to providing more specific detail within the summary position.
The people, processes, times, and places where all of that took place have been studied endlessly.
Their biggest challenge was not the concept they were trying to implement, but the idea that the words would be sufficient to stand the test of changing times.
The incompetence on display in the Supreme Court now comes from the idea that each word, like each word they read in the Christian Bible, must be taken literally as the words of a permanent, supreme being.
It’s easy to argue with any written words of humans when viewed narrowly, and that is true of both the Constitution and the body of law that followed it.
More effective Supreme Court terms got into the spirit of the law, updated to address the urgencies of the day.
The most enduring judgment that guides the tribe labeled conservative is that government is too big and overreaching, which is impossible to prove either true or false. It’s like saying that house is too yellow.
If it is argued that a specific law or the Constitution itself is overreaching, there are processes in place to address that, but they involve careful consideration and a significant amount of work to effect change. Congress can amend or repeal any law that a previous Congress passed.
This government will fail simply because they are incompetent and ignorant of the spirit behind the Constitution. That is why job number one now is to protect and project the spirit behind the Constitution so that when this nightmare is over and common sense prevails once again in DC, the damage from these incompetents can be undone as quickly as possible.
We the People. Not we the Right or We the Left or whatever. The voice of “We” is being attacked and that is the constitutional crisis. Free and fair elections protected by a completely independent entity with the power to halt any malfeasance is the key and I don’t know that I have seen any evidence that that key exists.
Jeff,
As I mentioned earlier, the only time “we the people” were on somewhat equal footing with the oligarchs was during FDR’s presidency, which greatly upset many oligarchs, including Koch’s father.
Eisenhower discovered the Deep State and warned us in his Farewell speech. After Eisenhower warned us, the CIA was born to gather intel on foreign governments, but that Intel cabal quickly turned inward. JFK chose to take on the CIA/DeepState while RFK took on the mob as AG. As they both learned, there is virtually no difference between the two entities. The CIA expanded and assumed the role of a global cabal. The Executive and Congressional powers became order takers after JFK. Our POTUSs have become spineless rubber stamps up till today.
While Trump pretends to be an authoritarian or despot, he is still an order taker. Russia and Israel are controlling him—three months to go in his first year. 😉
Supreme Court Judges should not be given a lifetime appointment. Also within Congress, one party should not have all the control over the House, Senate, and the Presidency. That seems to be how we got to where we are.
I realized recently that the entire executive branch of the Federal Government under Trump is cosplaying. For those not familiar, cosplay is when someone dresses up as their favorite character and pretends to be that person. Captain Kirk, or Spock, are favorite cosplay characters, although they certainly don’t have to be Star Trek characters.. Of course someone cosplaying doesn’t really understand what the cosplayed character, within the context of show, or real life if an actual person is cosplayed, understands. So cosplaying is exactly what all of Trump’s cabinet members are doing. They obviously don’t understand what they are doing, and even less, the implications of what they are doing. And they’ve gotten rid of all the advisors, so they have no one to ask what they should do, or what the implications are of any given action, which is why every action they take sooner or later blows up something that didn’t expect. Government is being run by cosplayers. If we could only get the press to start pointing this out! “Pete Hegseth, coplaying the secretary of Defense, er, War, today illegally blew up a boat with 11 passengers, who he alleged were drug dealers”.
The misuse of power to tear down US governments separation of power and checks and balances is a constitutional crisis. The majority of “we the people” don’t want what trump’s Maga regime is selling. Americans are so use to their freedoms of free speech, right to better their lives through legal means etc. that hearing of firings in government and the press for voicing opinions that don’t please the wanna be dictator strike many as a drastic negative change.
We’re only into this autocratic movement less than 25% of the way and on this trajectory the horizon looks ominous.
This text is overwhelmingly critical and fearful, painting a grim picture of American politics and democracy under what seems to be a Trump-like figure. The language is aggressive, using terms like Adolf, fascist, and kissing bugs to describe the perceived threat. The comments section adds to the tone, with readers expressing deep distrust and frustration, though some offer historical or legal perspectives. It feels like a desperate cri de cœur about the state of the nation.GrowaGardenguide
CHARLIE KIRK – his movement is aptly named “Turning Point” and that’s exactly what is happening and will continue to happen as more wake up to the TRUTH he spoke.
It’s quite sad to see that most of you don’t have the ability or desire to understand his message but choose to defame him and call him names that do not reflect him or his message. It’s really his message you despise – one that points to Jesus and the fallenness of this world. Charlie is more alive than ever and his message will go forth with more greatness than ever before.
Oh we’re in one, but as usual the “Republicans” are attempting to continue to BS and gaslight us in the hopes that we will go on buying their lies – like trickle down economics.