Constitution – Sheila Kennedy

San Diego Shames Supreme Court

I’ve previously posted about a number of recent Supreme Court cases that have ignored long-time precedents, cherry-picked history, or otherwise done violence to the philosophical basis of the Constitution and the rule of law. One that I haven’t previously addressed falls into a somewhat different category: it’s just wrong and mean-spirited.

The case–Grants Pass v. Johnson–involved an Oregon city that had passed ordinances prohibiting people from sleeping outside in public using a blanket, pillow or cardboard sheet to lie on, even if those people have no other option, i.e., are homeless.

Those challenging the ordinances relied upon the earlier case of Robinson v. California, which had held that it is “cruel and unusual” to criminalize a person’s status, but the majority held that Robinson didn’t apply–that the ordinances penalize behavior rather than status. As a result of that analysis, municipalities can do what Grants Pass did, and subject unhoused people to hundreds of dollars in fines and even jail time for sleeping outside, even when the city admittedly lacks enough shelter beds for them.

The decision reversed a far more reasonable opinion by the Ninth Circuit; that Court held that punishing unhoused people for sleeping in public when they have no access to shelter violates the Eighth Amendment’s protection against cruel and unusual punishment.

The ACLU submitted a brief on behalf of the challengers, and issued a statement on the decision.

“It is hard to imagine a starker example of excessive punishment than fining and jailing a person for the basic human act of sleeping,” said Scout Katovich, staff attorney in the Trone Center for Justice and Equality. “As Justice Sotomayor’s dissent powerfully acknowledged, sleep is a biological necessity, not a crime. We cannot arrest our way out of homelessness, and we will continue litigating against cities that are emboldened by this decision to treat unhoused people as criminals.”

The American Civil Liberties Union submitted a friend-of-the-court brief arguing that punishing unhoused people for sleeping outside when they lack access to shelter violates the Eighth Amendment protection against cruel and unusual punishment. As the brief highlights, the original intent and meaning of the Eighth Amendment and its application in more than a century of Supreme Court cases make clear that the government cannot impose punishment that is disproportionate to the crime.

There is obviously a great deal more that can be said about this decision, but the practical reality is that it allows local governments to criminalize a social problem. Allowing municipalities to punish homelessness does absolutely nothing to ameliorate the problem. (For that matter, allowing fines to be assessed is asinine; people who cannot afford a bed don’t have resources to pay fines.)

San Diego takes a very different, and far smarter approach to the issue. People who are unsheltered or living in their cars can access parking lots that have been modified to provide more than just a place to stay.

San Diego currently operates four lots where people living in cars or RVs can park overnight, with access to restrooms, services and treatment.

The H Barracks location adds 190 parking spaces, which will nearly double the capacity of the city’s safe parking program.

It’ll be located on five acres between the airport and Liberty Station, and it would serve the large population of people living in oversized vehicles in the Peninsula area.

The pet-friendly lot will be open overnight — 6pm-7am — with onsite security, as well as bathrooms and showers, according to the report.

The lots provide onsite services for case management, housing, health care, mental and behavioral health, plus substance-abuse treatment resources, and patrons are prohibited from drug and alcohol use. Registered sex offenders are not allowed.

The Supreme Court’s tone-deaf opinion effectively allowing municipalities to criminalize homelessness is a classic example of hitting people when they’re down. As a matter of law, it is fatally flawed; as a matter of policy, it’s clueless.

Calling homelessness a “behavior” rather than a status suggests that it is chosen–that it represents a decision made by an individual to forego habitation. Allowing local officials to punish unhoused people is simply cruel. As numerous critics of the decision have pointed out, governments cannot punish their way out of homelessness and poverty. What is needed is evidence-based solutions.

Officials in San Diego obviously recognize that. It will be interesting to see whether that city’s innovative approach results in a reduction of the number of homeless, and whether it will develop follow-up measures aimed at more permanent solutions.

Meanwhile, We the People really need to do something about our rogue Supreme Court…

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When Religion Becomes Farce

I don’t know whether to laugh or cry. Or maybe both.

Most of us have seen the news that Louisiana now requires posting the Ten Commandments in that state’s schoolrooms. What I hadn’t seen reported–until this fascinating article from Salon–is that the version to be posted comes not from the Bible, but from Hollywood. Rather than go to any of the biblical texts, Louisiana opted for Cecil B. DeMille’s, taking the version to be posted from “The Ten Commandments.”

Actually, that shouldn’t be a surprise–Christian nationalists aren’t known for consulting original texts. Or for honesty.

The article is lengthy–and fascinating. It quotes several biblical scholars who have read–and engaged with–the biblical versions. As one scholar says,

The Ten Commandments recounted in Exodus 34 are nothing like the list of crimes most people know. It starts off: “Be careful not to make a treaty with those who live in the land where you are going, or they will be a snare among you.”

As he notes, this version is definitely “not the list of ten commandments which most people are familiar with, but it is the only list in Exodus which is actually called ‘the ten commandments.’” (The article notes that similar legislation passed by the Texas State Senate also uses a version that doesn’t appear in any Bible– a “highly Christianized version” with “Judaic elements removed.”)

The multitude of versions and their disputed authenticity leads to what the author calls the “vexing problem of which form of the Ten Commandments should be forced onto schoolchildren….Wikipedia even offers a chart showing how eight different faith traditions group and number the commandments.” No wonder our MAGA lawmakers opted for the Hollywood version, wildly inaccurate as “The Ten Commandments” was both historically and textually.

Well, if you are going to “edit” the presumed word of God, you might as well make your version support your political ambitions..

Louisiana’s Ten Commandments lawsuit actually disproves the Christian nationalist claim that the Ten Commandments are the basis of America’s moral foundation. One need only compare the text that will go on classroom walls with the text of the Bible. Louisiana lawmakers edited and abridged the biblical commandments to “improve” the Word of God, to make them more moral. Gone is the reference to a jealous God punishing innocent children for the crimes of their parents (Exodus 20:5); the crime of exercising their right to freely worship. Lawmakers used our modern morality to edit the word of their God. Louisiana’s heavily edited commandments undercut the very claim they are supposedly making.

There is, of course, a wide discrepancy between genuine Christianity and Christian Nationalism, as clergy friends of mine keep reminding me. The latter is a thinly-veiled political movement, and it bears less and less similarity to religious belief. As the article notes,

If this were an intellectual debate, we could stop here. But it’s politics, which is full of challenging absurdities. Trump was only a distant spectator to the Louisiana bill, but he’s both a symptom and a super-spreader of the underlying moral abyss. Eight years ago, many evangelical Christians had their doubts about Trump. His running mate, Mike Pence, clearly helped calm, as did “apostle” Lance Wallnau, whose book “God’s Chaos Candidate” compared Trump to the Persian King Cyrus, a “heathen” instrument of God’s will. But now Trump openly compares himself to Jesus and his followers eat it up, while his flagrant violations of the Ten Commandments are shrugged off, at best. Pastors who preach on the Sermon on the Mount, in which Jesus told his followers to “turn the other cheek,” are accused of pushing “liberal talking points.”

In short, Trump has helped catalyze a profound disorientation of Christianity, deep into gaslight territory. By comparison, Louisiana Gov. Jeff Landry is just a garden-variety Republican liar. “If you want to respect the rule of law, you’ve got to start from the original lawgiver,” he said on signing the bill. It’s an obviously illogical claim — you could also start by not nominating a convicted criminal for president — that’s also ludicrous and false in several different ways.

One sociologist is quoted as explaining that Christian nationalism has two goals: to signal to the MAGA base that they are culture warriors fighting “leftism, Marxism, woke-ism, state-sponsored atheism or whatever else scares conservative white Americans;” and as a distraction from Republican policy failures. It’s notable that US News recently ranked Louisiana dead last among all 50 states, and no. 47 in education.

As the article accurately concludes, the Christian nationalist agenda stands for the proposition that America is a Christian nation, and Christians (of the right variety) should control every facet of it.

It’s hard to get more unAmerican than that.

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More On Project 2025

In a weird way, it really doesn’t matter who heads up either the Republican or Democratic national tickets–because this election is rapidly becoming a referendum on the U.S. Constitution and what it means to be an American.

If Republicans win the Presidency and Congress, we are very likely to jettison the Constitution in favor of the provisions of Project 2025. The forces that produced Project 2025 represent the real power structure of today’s GOP; its members see Trump as a convenient “front” because he is ignorant, stupid (those aren’t the same thing) and interested only in garnering attention–thus easily manipulated. Should he be replaced at the top of the ticket, it would either be with someone equally malleable or with a Project 2025 true believer.

Fortunately, the Democrats–unlike the Borg (look it up)–don’t believe that resistance is futile. As Joyce Vance has recently reported, Democrats have created a task force to combat what can accurately be described as an extension of the January 6th coup attempt. The task force has been created by California Congressman Jared Huffman, who described its formation and purpose.

We started by getting leaders from groups across the political spectrum of our House Democratic Caucus to sign on – Progressives, New Dems, CHC, CBC, API, Pro-Choice, Labor, LGBTQ Equality, and, of course, the Congressional Freethought Caucus I co-founded with Jamie Raskin! From there, several other members signed on, including two from leadership (Joe Neguse and Ted Lieu). Our ranking Appropriator, Rosa DeLauro, just joined us this week, bringing the Task Force to 15 members, including some of the most effective communicators in Congress.

We’re working closely with experts from more than a dozen leading advocacy groups, including Accountable.US, Democracy Forward, Center for American Progress, ACLU, Protect Democracy, Court Accountability, Americans United for Separation of Church and State, and more.

Our work plan starts with over half a dozen subject matter briefings for Task Force members and staff by the end of August. We’ve already had the first two: last week on messaging/communications, including some recent polling on Project 2025, and this week, an ominous briefing on how the various elements of Project 2025 link together in a very strategic attack on democracy and civil liberties. As we complete these “deep dive” briefings, we’re developing and pushing out messaging materials for Task Force members, outside partner groups, and the media. In September, we will have a big, congressional hearing-like event where we publicly roll out highlights of the various briefings in conjunction with the outside groups. The hearing will feature testimony from leading experts and different Task Force members will take the lead in presenting different parts of Project 2025. We believe this event will get a lot of attention and will distill Project 2025 for the American people in a way that helps them understand how radical and destructive it is, why it must be taken very seriously, and how we can stop it.

After added discussion about the task force plans, Huffman addressed the central issue: what would the enactment of Project 2025 mean for the American experiment?

As Huffman explained, Project 2025 is a sweeping attack on democracy and fundamental American freedoms–an attack on health care and reproductive liberty, social justice, the livability of our planet, and much more.

It aims to systematically dismantle our democratic checks and balances and consolidate unprecedented power in a second Trump presidency. It’s truly a roadmap to make Trump, already an aspiring dictator, into a real one, and to impose a radical social/religious order on all of us. It exudes an “any means necessary” philosophy, including the explicit embrace of dystopic authoritarian measures like domestic military deployments, detention camps, mass deportations, an unprecedented political purge of the federal workforce, political weaponization of federal law enforcement, and more. These are my greatest concerns because they would end American democracy as we know it.

There are certainly other worrisome parts of Project 2025, including dramatically weakening public education (with a goal of ending secular public education), sweeping attacks on the environment and rollbacks of climate action, clear threats to our social and retirement safety net, and privatization schemes and other reckless giveaways to powerful special interests.

Rick Wilson has said that Project 2025 “polls like Ebola,” which explains why Trump is suddenly trying to dissociate himself from it, but Heritage worked with over 100 extreme Rightwing groups that are at the heart of Trump’s political base, along with several of the most loyal (and scary) members of the prior Trump administration –- Mark Meadows, Stephen Miller, Peter Navarro, and several others.

The GOP roadmap that is Project 2025 is breathtakingly clear. Those of us who want to keep the Constitution need to ensure that voters know where that roadmap would take us.

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The Hoosier Theocrats

Sometimes, what’s intended as dark humor isn’t very funny.

During a discussion with a cousin who shares most of my political views, I admitted that the possibility of a Trump victory–especially now that the Supreme Court has eviscerated the rule of law–keeps me up at night. He counseled me to dial it back, to live with what comes. “And besides, we won’t have to worry for long, because they’ll line the Jews up and shoot us.”

Ha ha.

The folks that the late Molly Ivins dubbed the “chattering classes” are mostly focused on the very real threat of autocracy, of dictatorship should Trump prevail. Fair enough: the MAGA base doesn’t really have a coherent philosophy other than their firm belief that White Christian men should run the country and all we “Others” should go back to subordinate status (or–in the case of gay folks– the closet). Less attention has been paid to the theocrats in the movement–those who do have a specific and frighteningly clear agenda that revolves around using government to impose their fundamentalist religious beliefs on everyone else.

That First Amendment is so last century….

Here in Indiana, the Republican statewide ticket is uniformly theocratic; Micah Beckwith, candidate for Lieutenant Governor and Jim Banks, candidate for U.S. Senate, are “true believers.” Mike Braun, the gubernatorial candidate, hasn’t demonstrated any core beliefs other than his obviously firm conviction that he’s entitled to be important–apparently, he’ll happily echo whatever policy positions are most likely to win him public office, much like our embarrassing Attorney General, Todd Rokita, who is running for a second term. Rokita has made pandering to the MAGA base into an art form. In Indiana, since pandering requires obeisance to the MAGA theocrats, the entire ticket can legitimately be labeled theocratic.

How concerned should we be?

In a recent opinion piece in the Indianapolis Star, James Briggs considered a question posed by a reader: “how scary is Micah Beckwith.” His response:

I caution against treating political figures as scary. There’s enough to worry about in life without catastrophizing politicians.

That said, the media, myself included, have correctly framed Beckwith as an extreme figure on the right. He is an avowed Christian nationalist who believes in harnessing political and governmental power to enact an agenda in line with his rigid interpretation of Christianity. He’s also uniquely effective at pursuing that agenda, in large part because he has charisma and communication skills honed by his work as a pastor.

Briggs argued that, in the event the GOP wins Indiana in November, what Hoosiers have to worry about, “in order of greatest to least probability,” are

State government will get worse.
Beckwith will embarrass Indiana.
Laws could get more extreme.
Beckwith could become governor.

It’s hard to believe our legislature could get worse….

As Briggs notes, elective office means a wider audience. “When Beckwith says crazy things going forward — like that God sent the Jan. 6 rioters — people across the U.S. will hear about it and assume Indiana is just a bunch of Beckwiths. That’s embarrassing.”

Yes, Beckwith is a true believer and a loose cannon, but Jim Banks isn’t far behind.

Known as Focus on the Family’s man in Washington, when he isn’t using loose fundraising rules to amass personal wealth, Banks uses his position as a Congressman to pursue decidedly theocratic goals. He wants a “godly country” where federal law bans all abortions, with none of those wimpy exceptions for rape, incest or life of the mother, and other laws reflect his vicious ongoing vendetta against LGBTQ+ people and especially trans children.

Well, at least Beckwith and Banks are sincere fundamentalist theocrats.

I have repeatedly posted about Todd Rokita, Indiana’s despicable Attorney-General. In his case, devotion to MAGA theocracy is transparently based upon political utility–my guess is that if he were to be politically active in a Blue state, his positions would align with those of Bernie Sanders. Of course, he isn’t in a Blue state, so he has consistently demonstrated his fidelity to the Beckwith/Taliban portion of the Republican party, hounding the doctor who performed an abortion on a ten-year-old rape victim, making an effort to obtain women’s private medical records, and endorsing a variety of far-Right, theocratic positions.

Indiana is often characterized as a state where voters will vote for a rutabaga if it has an R next to its name. In November, we’ll see whether that flippant description holds, or whether the extremely autocratic and theocratic positions of the GOP candidates causes Hoosier voters to turn to the competent, middle-of-the-road candidates nominated by Indiana’s Democrats.

I’ll post evidence of their bona fides after the Democratic state convention.

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So Long, America–It Was Nice Knowing You…

The New York Times summarized the rogue Supreme Court’s immunity ruling in a sentence: “the Supreme Court has extended sweeping legal protections to presidents that apply to no one else in the country.”

In other words, in the most recent of a string of appalling and unprecedented rulings, this disgraceful Court has eviscerated the essence of the rule of law: that no one is above the law. Sources close to the Rightwing extremists behind Project 2025 immediately began planning how to use the Court’s decision to help them implement their unAmerican policy agenda, and Trump immediately called for jailing his political opponents.

The Court has demonstrated the naiveté of those Republican voters who justified sticking with Trump because “there are guardrails–laws that will keep him from doing the craziest shit.” Not anymore, there aren’t.

Toto, we aren’t in Kansas anymore.

I have never been so afraid for my country. Lest you think I am over-reacting, I will turn the rest of this post over to the considered reactions of people I respect.

There were the pundits, of course, many of whom bring solid legal credentials to the discussion. I can sum up their reactions by citing to Washington Post columnist Ruth Marcus, whose opinion piece was titled “God Save Us from this Dishonorable Court” and was subtitled “An egregious, unconscionable ruling on presidential immunity from the Supreme Court.”

But the most incisive and horrified analyses came from the scholars.

Historian Heather Cox Richardson wrote:

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law….

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail…

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.”

Lawyer and legal scholar Robert Hubbell minced no words:

Today, the Supreme Court overthrew the American Revolution and anointed the US president as a modern-day king. Their betrayal of the American revolutionaries, Founders, and Framers is all the worse because they did so to promote the most corrupt, dangerous, depraved person to disgrace the office of the presidency…

Trump v. United States will be overruled. The decision is so bad it will not stand. Like Dred Scott (holding that enslaved people are not citizens entitled to judicial protections), Plessy v. Ferguson (upholding segregation), Koramatsu v US (upholding the Japanese internment camps), today’s decision will be overturned by the acclamation of history in due course. It will be remembered as a mark of shame for the Roberts Court just as Dred Scott tarnishes Chief Justice Taney’s legacy to this day.

It may take a few years or decades to overturn Trump v. US, but the American people are the ultimate power under the Constitution. Majorities in the House and Senate can pass a bill to expand the Supreme Court, and a Democratic president can sign it. The reactionary majority can be overwhelmed by the appointment of four new justices, although expanding the Court by eight or more would be appropriate given the nearly hundred-fold growth in the US population since six justices were appointed in 1789.

The problem is, if Donald Trump wins in November–or if MAGA neo-fascists control either the House or Senate– there won’t be a United States in which the judicial process can self-correct.

America as we’ve known it will be gone.

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