Category Archives: Constitution

A Constitutional Crisis

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…

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America’s Real Exceptionalism

As I recall, it was John Edwards who ran for President proclaiming that there were “two Americas.” He was addressing economic differences, but the term applies at an even more fundamental level.

What most of the faux patriots chanting about American Exceptionalism fail to recognize is what actually was exceptional about the establishment of this nation: it was the first country to define citizenship as allegiance to a governing philosophy–what I have called The American idea–rather than rooting citizenship in the various notions of blood and soil that had previously defined the concept.

Today, we tend to think of “blood and soil” citizenship in connection with Nazism, but even before the rise of the Third Reich, it was common to believe that citizenship in a nation must be defined by common ancestry (“blood”) rooted in tradition and nature (“soil”).

America’s Founders disagreed. They saw government not as an expression of tribal identity or the expression of divine right, but as a mechanism that “the people” created to protect what they considered (in the aftermath of the Enlightenment) to be inalienable human rights. Rather than exercising the divine right of kings, government was to operate in the public interest–and that interest would be expressed by the votes of We the People.

True, People originally were limited to White landowning men, but the Constitution and Bill of Rights had erected what was a truly innovative, exceptional concept of government. America was the first nation to base citizenship on behavior rather than upon identity. As American notions of citizenship continued to expand–as We the People became a more commodious concept–the 14th Amendment explicitly extended citizenship to all persons born in America, with the expectation that, whatever their race or religion, they would be part of the American tapestry, supporters of the American Idea.

Despite that constitutional commitment, Americans have never been without a substantial contingent of “blood and soil” throwbacks. Today’s Christian Nationalists are anything but Christian–indeed, anything but religious in any sense. Christian Nationalism is an entirely political, White supremacist and ethno-nationalist movement–a reincarnation of “blood and soil,” and thus fundamentally inconsistent with the American Idea.

Edwards wasn’t wrong. There are two Americas. One America–and I believe it consists of a majority of us–understands citizenship to require adherence to the fundamental premises upon which this nation rests, including–importantly–civic equality and the rule of law. The other is hysterically opposed to the very philosophy that made America truly exceptional–the notion that diverse people can come together to create a government that operates for the good of all, a government protective of individual liberty and expressly forbidden to impose the beliefs and/or prejudices of any particular tribe on the rest of the citizenry.

Bottom line: America is a country founded on the principle that citizenship requires allegiance to the American Idea. It is not a country where citizenship is based upon skin color, purported religious identity, or ancestry.

There is nothing more anti-American than “blood and soil” Christian Nationalism.

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The Embarrassingly Ignorant Micah Beckwith

I’m not sure Micah Beckwith knows what “due process” means. In fact, I’m pretty sure he doesn’t.

Indiana media has reported on our “Christian” Nationalist Lieutenant Governor’s most recent display of constitutional ignorance–his insistence that people in the U.S. illegally are not entitled to due process–and his ludicrous comparison of those immigrants to the Japanese who bombed Pearl Harbor. (Hey–no one ever accused Beckwith of logic…)

The Constitution clearly grants the right to due process to “all persons” on American soil, so Beckwith’s assertion is flat-out wrong. But his statement hints at an even more egregious ignorance: I’m pretty sure that he couldn’t define “due process” if his life depended on it.

Let me clarify it for Beckwith and his equally ignorant ilk.

Let’s say authorities take a person into custody, in the belief that the person is undocumented. Before that person can be confined or expelled or otherwise sanctioned–due process simply requires the government to demonstrate that the person is, indeed, undocumented, that they’ve got the right guy. The government needs to prove that the arrest was proper–not a mistake. If there is no requirement to demonstrate the lawfulness of an arrest or the accuracy of an identification–if it is simply adequate to accuse any detained person of being “illegal”–or guilty of any other crime–without offering probative evidence that the label is correct, then anyone can be swept up by a fascist government and deported or imprisoned…or “disappeared.”

Even Micah Beckwith.

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Indiana’s Despicable Senators

The Trumpian assault on the rule of law has been unremitting. With the assistance of Mitch McConnell, Trump turned the highest court in the land into his personal lapdog, and now he is aiming to pollute the lower courts that have valiantly opposed his unconstitutional efforts.

The most recent and most blatant effort to replace dispassionate jurists with biased and unqualified sycophants was the nomination of a slimy creature named Emil Bove to a federal judgeship–a lifetime appointment.

Charlie Sykes, among others, reports. He begins with a quote.

Tonight Senate Republicans cast away their Constitutional obligations to rubber stamp [Emil Bove] an outrageously unfit nominee to the Third Circuit. The Senate, the country, the judiciary will suffer for this. And the conservative legal movement will not recover.” — Gregg Nunziata, Exec Dir, Society for the Rule of Law.

Last night, the US Senate blithely ignored the pleas of the legal community, the evidence of multiple whistleblowers, and whatever tattered remnants of self-respect they had, to confirm Emil Bove to a lifetime position on the Court of Appeals. As I wrote a few days back: It’s not easy these days to single out the worst of the worst appointments, but certainly the elevation of the thuggish Bove to the federal appellate bench has to rank right up there. Other churls and chodes will come and go, but federal judges are forever. 

The Senate’s surrender came the same day the Wapo reported: “Whistleblower evidence suggests Trump judicial nominee Emil Bove misled Senate.”

The vote was 50-49, indicating that J.D. Vance once again had to break the tie. Two Republicans defected. But not Indiana’s GOP Senators. If there was any lingering doubt about the lack of integrity–and the lapdog status–of these two “law and order” Republicans, this inexcusable vote certainly erases it. Their fuhrur told them to vote for a demonstrable liar who has made it clear he will support whatever his fuhrur wants, irrespective of the Constitution or legal precedent–and they obeyed.

Banks, of course, is a gung-ho member of the SS. Young, it appears, is just a feckless, integrity-free “Good German.” Neither of them deserves public office or respect.

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Political Anguish

For the length of my 83 years, I have been proud of being an American Jew.

My deep devotion to this country has been based upon its commitment to what I call “The American Idea,” the philosophy that permeates our foundational documents. The principles set out in the U.S. Constitution and Bill of Rights undergird creation of an open society–a society in which individuals have the right to live in accordance with their beliefs, so long as they do not harm others. In such a system, minorities thrive. Granted, slavery and various bigotries have challenged that goal of civic equality over our history, but the U.S. was the first country to aspire to a system where government power flows from the people rather than the other way around, and is structured to protect individual liberty.

And even though I’m an atheist, I am a very Jewish atheist, adhering to the values of a Jewish culture that admonishes us “Justice, justice shall thou pursue,” and counsels that–while we aren’t expected to perfect the world in one generation–we aren’t free not to try. The Jewish commitment to community has produced citizens who believe in social justice for everyone, not just the “elect” or chosen, and who feel an obligation to help achieve it.

Everyone who reads this blog knows what is occurring in today’s “Trumpified” America. And most know how far Netanyahu has deviated from the founding beliefs and Jewish values of the State of Israel.

Ezra Klein recently had a lengthy–and excellent–essay in the New York Times, in which he made two important points: many American Jews believe that Israel is committing war crimes in Gaza, and opposition by non-Jews to Israel’s actions is not anti-Semitism. (Granted, many anti-Semites have gleefully latched on to anti-Zionism, but the opinion that Netanyahu’s actions in Gaza are genocidal has been voiced by Israelis, including Jewish scholars of genocide.)

Klein notes that the American Jewish community is split, largely but not entirely on generational lines, with younger Jews more critical of Israel. I can certainly understand that. I still remember my mother crying as she read the Black Book–a compendium of Nazi atrocities. Like most Jewish families, we had a blue box where pennies and nickels were collected to plant trees in Israel, which was seen as the only place in the world where Jews could be safe. Older American Jews retain their devotion to the “Promised land,” and have enormous difficulty believing that it is behaving in a manner entirely contrary to the most central values of the Jewish religion.

Where do these twin disasters–the disintegration of American governmental structures and norms, and the unbelievable deviation of the Jewish state from the values on which it was founded– leave people who (like yours truly) have made allegiance to those norms and values central to their lives and behaviors?

I practiced law for several years. I spent six years as the Executive Director of Indiana’s ACLU. I spent two decades teaching students public policy through a constitutional lens, emphasizing the various ways in which our governmental structure and the protections of the Bill of Rights enable what Aristotle called “human flourishing.” (Not that it was perfect, nor all of its provisions adequate for all time.) Watching the destruction of the rule of law, and the cowardly obedience of what was once my political party to a demented manchild, has been agonizing.

Like most Jews, I felt a special kinship to Israel as it operated as a haven for my co-religionists all over the world. I took pride in the ability of its original settlers to create a vibrant and vital state from the desert, although I did disagree with certain aspects of its governance–especially the settlements policy. (Despite anti-Semetic slurs, that kinship was nothing like “dual loyalty,” any more than my Irish friends’ special fondness for Ireland constitutes dual loyalty.)

I encourage those of you reading this to click through and read Klein’s essay in its entirety; he captures the angst of both  Israel’s defenders and those of us who simply cannot see any honest way to justify what is occuring.

The two main pillars of my philosophical/intellectual life are being erased. I feel the way my friends who are real Christians feel as they watch their faith being appropriated by very unChristian Christian Nationalists.

To define this situation as “unpleasant” would be a gross understatement.

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