Category Archives: Constitution

The Constitution And The Court

When Trump first began issuing his blatantly unconstitutional Executive Orders, Women4Change Indiana–recognizing that simply labeling an Order unconstitutional lacked substance– asked me to draft “quick and dirty” explanations of why these Orders deserved that label. I agreed, and proceeded to offer brief explanations I titled “Your Constitutional Minute” which the organization posted to its website.

As we hurtle into even more uncharted waters–as we discover that our rogue Supreme Court is far less interested in protecting our constitutional liberties than either their predecessor or the lower courts–I thought it might be useful to share some of those posts, so that readers might draw their own conclusions about the increasingly dangerous legal territory we inhabit.

Let’s just look at the first of those “Constitutional Minutes.”

Section One of the 14th Amendment reads as follows:                

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Donald Trump’s Executive Order, in pertinent part, reads:               

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The Law:

A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.

Every statement in that brief explanation is accurate. Thus far, they all remain accurate. But the Supreme Court just undermined the application of the constitutional language–not by ruling that it doesn’t apply, but by issuing a ruling that will make it more difficult for people to claim its protection.

The Court did not rule on the merits of Trump’s effort to undermine the clear language of the 14th Amendment. Instead, the majority addressed a procedural question: whether lower federal courts have the authority under the Judiciary Act of 1789 to issue nationwide injunctions. Injunctions are judicial orders that block government actions, and nation-wide injunctions block such actions against everyone, not just the plaintiffs. In other words, if a court finds a government action to be unconstitutional, a national injunction prohibits the government from taking that action anywhere–not just in the state or circuit in which the case arose.

By a 6–3 vote, the Court—led by Justice Amy Coney Barrett—held that district courts generally lack the power to grant nationwide injunctions if that relief is broader than necessary to provide “complete relief” to the plaintiffs who brought the case. The Court granted the government’s request for a partial stay of the nationwide injunctions against Trump’s clearly improper birthright-citizenship Executive Order—although “only insofar as the injunctions exceeded the scope” needed to grant relief to the plaintiff in the lawsuit.

Confused? It was intentional.

Basically, the Court declined to agree that Trump could change the clear language of the 14th Amendment. That outcome was predictable, given the clear language of the Amendment and the history of its jurisprudence. So the radical members of the majority helped the autocrat in the White House by undermining the available remedy.

Justice Sonia Sotomayor called the decision out for what it was, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. Saying that “No right is safe in the new legal regime the Court creates,” Sotomayor wrote “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship… That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

In law school, we learn that there is no right without a remedy. 

Welcome to Trump’s America.

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The Declaration Of Independence Sounds Awfully Familiar

Given the undeniable fact that the Republicans in Congress continue to ignore their Constitutional duties, it’s probably unproductive to suggest that they take a close look at another of our founding documents, The Declaration of Independence. If they did, however, they might notice that the document describing the behaviors of George III that impelled them to withdraw from the British empire are eerily similar to the behaviors of their MAGA cult leader.

You might think of the Declaration as the original “No Kings” statement, laying out America’s grievances against the actions of  George III that triggered the Revolutionary War. The list of those grievances was extensive, but several seem especially pertinent to the growing resistance to today’s would-be King. 

Consider, for example:

“He has refused his Assent to laws; He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither; He has obstructed the Administration of Justice; He has made Judges dependent on his Will alone for the tenure of their offices; He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people; He has affected to render the Military independent and superior to the Civil power;

“For cutting off our Trade with all parts of the world; For imposing Taxes on us without our Consent; for depriving us in many cases of the benefit of Trial by Jury; For transporting us beyond Seas to be tried for pretended offenses.”

The Declaration isn’t law. It isn’t even a legal framework, as the Constitution is. But it is a statement of governing philosophy–a stirring declaration of what legitimate governance is and isn’t. Most schoolchildren are familiar with one of the opening paragraphs, an eloquent, “self-evident” description of the basic purposes of government:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

Governments, the Declaration tells us, derive their “just powers from the consent of the governed.” Thanks to decades of voter suppression and gerrymandering, the operation of the Electoral College, misuse of the filibuster, and population shifts that have made the Senate a massively unrepresentative body,  it is impossible to argue with a straight face that today’s federal government reflects the consent of the governed. 

We are currently being ruled, not governed, by an illegitimate gang of plutocrats and theocrats who are pursuing goals diametrically opposed to those expressed by the nation’s founders. Re-read that last quoted paragraph. Nowhere does it say that “all White Christian men are created equal.” It says that all men- which we now understand to mean all human beings–have “unalienable” rights. Unalienable rights are incapable of being surrendered, transferred, or taken away. They are rights that are inherently and permanently possessed. The Declaration tells us that protecting–securing– those equal rights is the purpose of government, and that when a government “becomes destructive” of that purpose, when it ceases to perform that fundamental task, We the People have the right to alter or abolish it.

It’s past time to alter a government that has drifted far from its original purposes. Look at the list of actions by King George that prompted rebellion–and think about their striking similarity to the policies being pursued by the Trump administration. Refusal to assent to law. Obstruction of immigration. Denial of due process. Insistence on personal loyalty. Misuse of the military. Interference with trade. Imposition of taxes/tariffs. Transporting people “beyond the seas to be tried for pretended offenses”…

It is past time to return this nation to the philosophy of government expressed in the Declaration, the Constitution and the Bill of Rights. We have a delusional ignoramus in the White House, a cabinet filled with unqualified clowns and cranks, a Congress filled with cowards, bigots and Christian Nationalists, and a Supreme Court dominated by theocrats.

We got rid of King George and the Hessians. It’s time to get rid of Trump and MAGA.

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The “Naughty” List

Santa Claus isn’t the only one who is keeping a list of “who is naughty and who is nice.” Charlie Sykes recently brought some limited order out of the chaos of Trump’s first months–a real service, since most of us have been beaten down by the daily firehose of assaults on decency, the Constitution and the rule of law–the tactic Steve Bannon has called “flooding the zone with shit.”

Sykes assembled his list in order to criticize Chuck Schumer, who has finally graduated from sending “stern letters” and moved to block Trump appointees. Sykes asks “What took you so long? Why didn’t you act when”…and then he provides his list of Trumpian assaults that should have prompted active blowback when they occurred.

Granted, Sykes’ list isn’t comprehensive, so intensely has the zone been flooded, but here are the acts that he says should have triggered action from Schumer when they occurred:

  •  blanket pardons for Jan. 6 rioters, including those who assaulted police officers.
  • his purge of the FBI, targeting agents who had investigated his own misconduct.
  • suspending enforcement of the foreign bribery ban.
  • calling for the impeachment of a federal judge who ruled against him.
  • firing the head of the Office of Special Counsel who protects whistleblowers.
  • firing the head of the Office of Government Ethics.
  • firing the prosecutors who worked on Capitol riot investigations.
  • slashing the office that prosecutes misconduct by public officials.
  • dropping charges against New York City Mayor Eric Adams in return for Adams agreement to work with ICE — a move that led to the resignation of the acting SDNY U.S. attorney and several other federal prosecutors.
  • Trump’s refusal to bring Kilmar Abrego Garcia back to the U.S. — stating that he could, but wasn’t going to.
  • Trump’s suggestion to the president of El Salvador that he would send “homegrown” criminals — American citizens — to his notorious prison.
  •  Trump’s executive orders targeting individuals who had criticized him — including Chris Krebs, who had challenged his 2020 election lies.
  • stripping the security clearances of law firms who had challenged him. 
  • Trump’s threats to strip licenses from media critics.
  • allowing Elon Musk’s team to access sensitive and protected taxpayer information.
  • when his top aides were caught chatting about military action on Signal.
  • firing six National Security Council officials on advice from far-right conspiracy theorist Laura Loomer.
  • refusing to rule out the use of military force to seize Greenland. 
  • Trump’s purge of top generals, including the chairman of the Joint Chiefs.
  • sending masked agents to seize people on the streets.
  • arresting international students for little more than for writing op-eds.
  • when White House aide Stephen Miller said that administration was considering suspending habeas corpus.

Sykes list–which I would emphasize is far from comprehensive–was generated as Americans learned of Qatar’s offer of a “gift”–a plane described as a “palace in the sky.”  The offer was, as Sykes says, “a very visible symbol of Trump’s susceptibility to corruption.” But–as he also reminds us– we have seen countless other examples.

Sen. Chris Murphy, for example, has been banging the drum about Trump’s potential $TRUMP crypto conflict of interest for months. “My hair has been on fire about the meme coin from day one,” Murphy told The Washington Post. “That is a level of corruption that is just absolutely stunning. It was already the most corrupt thing a president has ever done in the history of the United States.”

What didn’t make Syke’s list is the Trump administration’s effort to neuter the other two branches of government.

Under the Constitution, Congress and the courts are “co-equal” with the Executive branch, but Trump and MAGA have bullied the Republicans in Congress into submission. (Given that the GOP is currently in the majority, Democrats have been left with limited options for resistance–a good reason to put those options to maximum use.)

Unlike Congress, the courts–at least, the lower federal courts–have fulfilled their Constitutional role. They have ruled for the plaintiffs in virtually every case challenging Trump’s illegal and unconstitutional actions–but while Trump has given lip service to obeying those rulings, he continues to ignore a number of them. At the same time, he has increased his threats against judges who dare to rule against him, and MAGA thugs (Trump’s “brownshirts”) have taken to issuing threats against the judiciary and their families.

We the People need to leave a large civic lump of coal in the Trump stocking. Sooner rather than later.

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Protection Of Religion?

Well well well…I think the veil has just come off the Indiana GOP’s pious concern for (certain) religious beliefs. 

Indiana media outlets have reported on a Church “Bill of Rights” recently authored by two of the state’s most embarrassing Christian Nationalist officials, Todd Rokita and Micah Beckwith. Interestingly, that document mostly focused on the churches’ “rights” to engage in specified political advocacy: How churches can participate in the electoral process; what election-related activities a church can engage in without risking the loss of its tax-exempt status; whether the First Amendment offers any protection to churches when they engage in election-related activities; and whether religious objections to vaccines are protected in the workplace. In other words, the document outlines how much protection the law offers churches that want to engage in far-Right political advocacy.

But what about legal protections for religions pursuing more progressive values? Well, as the saying goes, that is a horse of a different color….

For those churches, “Christian” Warrior Todd Rokita has a very different message. The media has recently reported on Rokita’s “investigation” of Notre Dame, an effort to determine whether that institution might be–horrors of horrors–engaging in the DEI practices forbidden by the Trump administration.

DEI–like “woke”–is a term adopted as an all-purpose (and highly pejorative) epithet describing people who believe that their God and/or their understanding of moral behavior requires efforts to ameliorate past injustices, to foster equal treatment, and to welcome all persons to full participation in the civic enterprise. 

Rokita has informed the Catholic university that

Publicly available materials suggest that various aspects of Notre Dame’s operations may be governed by University policies that treat individuals—including students, prospective students, faculty, staff, and job applicants…differently based on the individuals’ race or ethnicity… employ race in a negative manner… or utilize racial stereotyping.”

The letter directly threatens Notre Dame’s non-profit status.

Failure to correct such policies and bring them into compliance with state and federal law could result in legal action by my office pursuant to Indiana Code § 23-17-24. I ask that the University respond to the questions contained herein to assist my office in evaluating whether further action is warranted to ensure Notre Dame is acting consistent with the terms of its nonprofit status. 

You might wonder what happened to Rokita and Beckwith’s purported concerns for the ability of religious organizations to follow their beliefs without legal concerns or government harassment. (That’s a sarcastic question, because the answer is obvious.)

It seems that our Christian Nationalist officials are only concerned to protect certain religions. 

This contempt for citizens who follow non-fundamentalist and non-Christian religions is hardly new to Indiana. When the state passed its ban on abortion (following a Dobbs decision that ignored precedent while reflecting Justice Alito’s Rightwing Christianity), our “pious” legislators ignored testimony that other religions disagreed with Christian fundamentalists about such terminations. Jewish and liberal Protestant clergy objected to the ban on religious liberty grounds, noting that the obvious basis of the legislation was religious dogma from some–but certainly not all– religious traditions, and that the application of the ban to people of other religions (or none) was inconsistent with the First Amendment’s Establishment Clause.

Silly folks! In Indiana, our elected “faith warriors” protect only the “real” religions–those that support their theocratic political ambitions.

The juxtaposition of these two announcements–the issuance of the “Church Bill of Rights” and the investigation of Notre Dame–perfectly illustrates the Christian Right agenda: If your religion teaches you that God wants Republicans in office, that He (in these churches, God is most definitely a White male) wants women and minority folks to be submissive and subservient–why then, the laws of the land will be interpreted to protect you.

If, however, your religion happens to teach that all people–even women and those with dark skin (Beckwith’s three-fifths)– are entitled to human dignity, and that all persons should be welcomed and treated as equals in our various communities, such beliefs are not entitled to legal protection.

And if you happen to fall within the growing number of “nones”–if you depend upon a considered philosophy or moral framework to guide your interactions with your fellow humans, rather than adopting the dogma of a particular organized religion–our elected theocrats will simply ignore your right to intellectual autonomy, a right protected by the real Bill of Rights.

Have I mentioned how obvious and embarrassing these people are?

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Justice Souter

David Souter died earlier this month.

When George H.W. Bush nominated him to the Supreme Court, I watched the confirmation hearings on television. I saw a brilliant, thoughtful jurist. His purported “evolution” on the high court bench didn’t surprise me; his jurisprudence remained grounded in precedent and reverence for what I call the American Idea.

A few years after he retired from the Court, I was fortunate enough to attend a small conference on civic literacy at Harvard Law School, convened by then-Dean Martha Minow. Both Souter and Sandra Day O’Connor participated, and I was especially impressed by Souter’s remarks. I asked him if he would allow a copy to be published in the Journal of Civic Literacy –a publication of the Center I’d established at IUPUI (now IU-Indy). He graciously agreed. That was in 2013, and his observations have become even more pertinent.

Here they are.

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Dean Minow: Nearly three years ago, Justice Souter gave a truly extraordinary commencement address here at Harvard, upon receiving an honorary degree. In his exploration of the tensions among the values embodied in the United States Constitution, he offered deep insights into important decision making by the Supreme Court and equally conveyed the hard work that is necessary to advance the values of democracy and freedom, individual rights, and democratic participation. We are so touched and honored by your participation here today, which I know reflects your admiration and affection for your colleague, Justice O’Connor, and also your deep abiding commitment to this subject [civics]. Why does it matter to you so much?

Justice Souter: I’ve come by stages, I guess, to the answer. I’ll take you through the stages. By the way, I should issue two disclaimers to begin with. The first is, we are talking about civics and I’m going to talk in terms of civics. But, you cannot have civics without history. So, I might just as well be making the argument for history. The second disclaimer is, I don’t mean to take positions in the pedagogy controversy. I don’t know how to teach, I don’t know where the proper midpoint is between interactive learning and book learning and participatory exercises and so on. I’m not taking a position there. Maybe with one exception, and that is, if you’re going to test in math and reading you better test in civics or it’s going to be a poor child of the curriculum.

On the question why I think it matters, as I’ve said, I’ve come to my feelings by stages and the first stage was set by Justice O’Connor at a series of conferences she and Justice Breyer sponsored in Washington, provoked by the concern for the independence of the courts. The judiciary at the time was under a lot of attack and almost from the beginning the thing we learned there was the degree of civic illiteracy. We learned the statistic, which I believe is still true today, that there are only about a third of the people in the United States who can name the three branches of government. And the lesson that everyone learned was that without some knowledge of the structure, without, frankly, some constitutional knowledge, the value of an independent judiciary is a value that makes no sense. Independent from whom? From what? Well, we know the answer. The rest of the government, etcetera.

But, the first point of focus that came to me was that without a bedrock grounding in a lot of fundamentals that my own generation did learn as kids, constitutional values will frequently make no sense because there is no context for them.

The second stage of thinking why this subject of civics matters has come as a result of the recent calls for constitutional amendment and constitutional change, which we have been getting from all corners. There have been calls for an amendment in response to Roe v. Wade, calls for an amendment in response to the Citizens United campaign contribution limitation decision, calls for change in response to the possibility of a disparity between the Electoral College vote and the popular vote, and so on. It’s pretty obvious that someone who has no idea of what we have in the Constitution to start with is in no position to make any kind of critical judgment about what we might change, whether we ought to change it, and if so what change we ought or ought not to make. Ignorance is no foundation for constitutional thinking but, like it or not, we are being asked as a country to engage in constitutional thinking. None of it may in fact lead to a formally proposed amendment, let alone a convention, but who knows. So, I guess the second point in my feeling was about what is at stake: simply the need for a foundation for critical judgment on the part of citizens.

But finally, I’ve come, to a third, umbrella position, which certainly subsumes the two stages that I’ve already mentioned. And I will warn you right now that my ultimate line is like the remarks of several other people here this morning. Let me make my point this way. The American constitutional system is in effect a constant exercise in balancing, and perhaps a precarious balancing, between two very fundamental tendencies in American society and American political organization: the tendency to fragment into pursuit of individual interests and the tendency to pull together.

I could spend a long time this morning, which I won’t, simply cataloging what seems to me the growing force of the former sort, the centrifugal tendencies that pull us apart. Just think about these.To begin with, the very nature of the United States as it has developed is a conglomeration of fragmenting tendencies. We do not have a national religion. We do not have a homogenized national private culture, as distinct from political culture. We are in fact an amalgamation. We are a patchwork. We are a nation of immigrants, and people remember where they came from, whether they look back one generation or fourteen. There is a disuniting tendency built into the very nature of the United States, and it’s not going to go away. And I don’t suppose there’s anyone who wants it to go away entirely. I don’t.

Number two, there is great force in a philosophical tenant that we like to think of as ours. It’s not a coincidence that Ralph Waldo Emerson was an American. Consider the notion of Emersonian individualism, Emersonian self-reliance. They feed a kind of admirably atomistic tendency that I suppose can be called a widely shared character, a powerful element of our scrambled culture.

Number three, we are living at a time when the class divide in the United States is growing larger and the possibility of bridging that class divide is in fact shrinking. We are at a point now where the spread of wealth disparity is greater than it has been for over a century. And it is now a very unfortunate fact of life in the United States that social mobility is greater in a number of European countries than it is in this one. Parents in the United States cannot assume that their children have a real opportunity to be better off than they were.

Number four, there is an increasingly apparent divisiveness inherent in current developments in the news media. You can cherry-pick the news you want on the device that you hold in your hand. A substantial portion of the country is not even exposed to the breadth of traditional newspapers.

And, finally, I’ll stop by simply echoing what others have said about the growing tendency toward cynicism about the processes of government for which there is a very good foundation. Too many people are realistically looking upon government as basically a clash between a public interest and more powerful interests, exerting power through lobbies financed by huge amounts of money, with the names of the people behind them being to a great extent undisclosed. These are conditions, historical and contemporary, that drive us apart and tend to disunite us. What have we got pulling on the other side? By and large, what we have pulling on the other side is an adherence to an American Constitutional system. The American Constitution is not simply a blueprint for structure, though it is that. It is not merely a Bill of Rights, though it is that, too. It is in essence, a value system, a value system that identifies the legitimate objects of power, the importance of distributing power, and the need to limit power by a shared and enforceable conception of human worth.

That value system is the counterpoise to the divisive tendencies that are so strong today, and civic ignorance is its enemy. It is beyond me how anyone can assume that our system of constitutional values is going to survive in the current divisive atmosphere while being unknown to the majority of the people of the United States. So, what is driving me right now is simply the indispensability of our increasingly unrecognized and ignored constitutional value system. Without it, there is no chance of overcoming, of surviving the polarization that everyone decries. It is only in the common acceptance of that value system that at the end of the day, no matter what we are fighting about, no matter what the vote is in Congress or the State House or the town meeting, we will still understand that something holds us together.

Ultimately, what is driving me in working for the renewal of civic education is the need to share the threatened aspirations that should mark us as people who belong together as a nation.   

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Indeed.
 
 

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