Category Archives: Constitution

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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What “Separation of Powers”?

I spent 21 years teaching university students that lawmakers’ policy decisions are constrained by the U.S. Constitution. I approached my classes in Law and Public Policy through a constitutional lens–an approach that began by emphasizing that Separation of Powers is a fundamental element of America’s governing structure.

Separation of Powers is the technical term for the division of government authority among the three branches: the executive, the legislative, and the judicial. When the men we now think of as “the founders” undertook revision of the Articles of Confederation (a revision that turned into a wholesale jettisoning), their concern for limiting the power of government led them to divide governmental power two ways–through federalism, which separated the jurisdictions of local, state and national government units, and through Separation of Powers--the allocation of specific powers to each of the three branches. They were very explicit about the purpose of that structure, which was to limit the ability of any one branch of government to exercise too much control.

When media pundits talk about Trump’s persistent violations of the Constitution, they tend to focus on how his actions violate specific elements of that Constitution (the assault on birthright citizenship, fiscal  decisions that are specifically within the purview of Congress, etc.). What we are experiencing, however, is an even more fundamental breach of our founding philosophy–a breach quite correctly identified in the recent “No Kings” protests.

The incredible damage that Trump has done and is continuing to do has been dependant on the abdication of the legislative branch, and the evisceration of the power of the courts. Not all the courts, but very definitely the Supreme Court.

The fecklessness and cowardice of the few Congressional Republicans who haven’t drunk the MAGA Kool-Aid is widely understood. (Here in Indiana, we have one of each: a Christian Nationalist MAGA idiot who was elected because he had an R by his name in our deep-Red state, and a far brighter coward who undoubtedly understands how destructive this administration is, but displays continued fealty to our would-be King in order to protect his re-election prospects.)

The GOP cult that currently controls Congress has neutered the authority of the legislative branch, turning it into a body that obediently acquiesces to whatever passes for policy from the increasingly insane occupant of the Oval Office.

The situation of the courts is different. As Talking Points Memo recently reported, the lower courts have been doing their jobs. District and appellate judges appointed by both Republican and Democratic Presidents have handed down decisions that are consistent with both the constitutional text and longstanding precedents.

Stanford University political scientist Adam Bonica compiled data on the administration’s win/loss record in federal courts from May 1 through June 23. He found that in cases brought against its sprawling excesses the Trump administration has lost 94% of the time at the district court level. That’s a truly terrible litigation record. But at the Supreme Court, Bonica found, DOJ won 94% of the time.

The Trump administration has eviscerated the Department of Justice, turning a once-storied, independent agency into Trump’s personal law firm. In its current iteration, the agency has brought cases that would once have been considered legally ludicrous, hoping that the Supreme Court would eventually counter the anticipated negative rulings of the lower courts.

“We are witnessing something without precedent,” Bonica wrote. “[A] Supreme Court that appears to be at war with the federal judiciary’s core constitutional function.”

Administration officials are well aware of how their Supreme Court allies have their back in this campaign to delegitimize the trial courts. “All these district courts throughout the country are tying our hands,” complained Attorney General Pam Bondi, under questioning from Sen. Patty Murray (D-WA) at a Senate Appropriations Committee hearing yesterday. “And here’s how we will follow them—when we get to SCOTUS, we’re winning.”

The Talking Points article accuses Trump’s Department of Justice of  “a completely unprecedented and coordinated vendetta to undermine the authority of federal district courts.” (Not just the federal courts: in April, FBI agents arrested a Milwaukee County Circuit Court judge,  charging her with interference with an arrest by ICE. The FBI’s claims have been contradicted by eyewitnesses who were in the courtroom.) As unthinkable as it would have been in any other administration, the  Department recently sued every sitting judge in the United States District Court for the District of Maryland. Why? Trump’s DOJ wants to invalidate a standing order that ensures an automatic two-day reprieve for immigrant detainees.

When neither the legislature nor the courts assert their constitutional powers, the Mad King is unconstrained. And the U.S. Constitution is history…

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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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