Category Archives: Constitution

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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What Dobbs Hath Wrought…

Lots of people cheered when our rogue Supreme Court overruled Roe v. Wade, and began what has turned out to be a flight from constitutional principles–especially the principle that government has an obligation to protect individual liberty and autonomy.

Faux Christians celebrated the obvious fact that the decision was a win for their particular religious beliefs. Those who’d piously pretended to care about religious liberty were delighted when the Court ignored the liberties of adherents of religions that differ on the issue. (It’s been clear for quite a while that the “liberty” these Christian warriors want to advance is the liberty to impose their own beliefs on others.)

Men (and some women) whose worldviews are paternalistic celebrated the Court’s declaration that women would no longer be permitted to govern themselves. After all, those sweet little females were never meant to have self-determination; pesonal autonomy is for men. (Mostly straight and White…)

Dobbs was also welcomed by the legions of authoritarians who believe–in contrast to the nation’s founders–that  government should make life decisions for its citizen/subjects, rather than protecting their right to believe and live as they see fit.

Dobbs was handed down in 2022, so enough time has passed to see whether all that celebrating was justified, or whether the desired results have failed to materialize. A recent essay in the Guardian assessed that “progress.”

Here’s the lede:

Dobbs v Jackson Women’s Health Organization, the US supreme court case that rescinded the constitutional right to abortion, is failing on its own terms. Since the ruling, in June 2022, the number of abortions in the US has risen. Support for reproductive rights is on the upswing. And the rate of voluntary sterilization among young women – a repudiation of Trumpian pronatalism, if a desperate one – jumped abruptly after Dobbs, and there’s no reason to believe it will drop off.

Also rising at an alarming clip are preventable maternal deaths and criminal prosecutions of pregnant people.

The Guttmacher Institute reports that abortions rose 1.5% between 2023 and 2024, on top of a 11.1% increase in the first year after Dobbs. That’s probably a significant undercount, since Guttmacher reports only “clinician-provided abortions”, either surgical or medical (using abortion pills), and doesn’t estimate how many abortions are happening outside the formal healthcare system. As we know, numerous women are obtaining abortion medications directly from suppliers or from the multiple feminist underground networks that have been organized in the wake of the decision.

The essay notes that the 21 state legislatures that, like my own state of Indiana, have imposed total or near-total bans have failed to do anything that might give doctors legal leeway to save the health and lives of pregnant women in medical distress. Indeed, rather than trying to save lives, several are prosecuting pregnant women who handle those emergencies on their own.

The fact that we have seen more abortions, not fewer ones (not to mention increases in pro-abortion public opinion and contraception) has infuriated the anti-abortion activists, who are searching for stronger disincentives. They seem to have settled on more punishment–and have no apparent problem with more deaths among the already born. (Evidently, the death of pregnant women is an unfortunate–but acceptable– consequence of saving the “pre-born.”)

The Trump administration and MAGA want to see more babies. (Fewer immigrants, more “real American” babies…). But if one goal of banning abortion was to produce more of those babies, that’s clearly not working.

Public health researchers saw “an abrupt increase in permanent contraception procedures” – sterilization – following Dobbs among adults in their prime reproductive years, ages 18 to 30. Unsurprisingly, the increase in procedures for women (tubal ligations) was twice that for men (vasectomies).

As the essayist notes, the carrots haven’t been appetizing enough, and the sticks not effective enough, so Red-state legislators “are bringing out the AR-15s.” Republican lawmakers in at least 10 states have introduced bills defining abortion as homicide, and criminalizing both the provider and the patient. The bills are based on “fetal personhood” – the strategy of conferring full legal rights to a fetus from conception. By 2024, 39 states had fetal homicide laws.

While they work toward criminalizing the ending of a pregnancy, anti-abortion lawmakers and prosecutors are making creative use of existing law to punish miscarriages.

A 31-year-old South Carolina woman who miscarried and disposed of the tissue in the trash was arrested for “desecration of human remains”, a crime carrying a 10-year sentence. In March, a woman found bleeding outside her Georgia apartment after a miscarriage was jailed for “concealing the death of another person” and “abandonment of a dead body” for placing the remains in the bin. 

Rational people have always known this movement isn’t “pro-life.” It’s anti-woman.

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