Category Archives: Constitution

Good-By To The Constitution

As some of you may have noticed, I’ve been providing “Constitutional Minutes” to Women4Change; for the past few weeks, I’ve been sending a brief description of a constitutional provision, and an explanation of how Trump is violating it, to the organization for posting on its webpage. It occurs to me that I should share a couple of those explanations here, in support of my assertion that we are in the midst of a grand-daddy of a Constitutional crisis.

Let’s look, for example, at Trump’s attack on birthright citizenship.

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.

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 is clear. 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.

Or let’s look at Elon Musk’s rampage through the federal government.

In our constitutional system, power comes from We the People. Only officials selected through constitutional methods may wield power in our name. Past Supreme Court cases have make it clear that individuals who serve in “continuing” positions and who exercise “significant authority” on behalf of the United States must be appointed consistent with Article II’s  Appointments Clause. That clause sets forth two methods to appoint “officers of the United States.” “Principal” officers must be nominated by the president and are subject to the advice and consent of the Senate.

With respect to “inferior officers,” the Constitution allows Congress to give the appointment power to the president, to the head of a department, or to the courts. However, inferior officers must be subject to the supervision of someone other than the president. Those who report directly to the president are by definition principal officers.

The Appointments Clause subjects individuals wielding significant authority — principal officers —   to Senate confirmation. Elon Musk is clearly wielding significant power (as evidenced by growing references to him as a “co-President.”) His activities through DOGE—a “department” that does not exist—are wreaking constant havoc with the operations of critical government agencies, threatening everything from FEMA’s responses to South Carolina’s fires to the timely delivery of Social Security checks.

There are at least two pending lawsuits alleging that Musk’s power cannot be squared with the Appointments Clause—that to exercise the authority he is exercising, he must be appointed as provided by the Constitution. (One such case, in Maryland, was filed by current and former federal employees and contractors; another, in Washington, D.C., was brought by a number of states.) The judge in the Maryland case said that he was “highly suspicious” of the administration’s (phony) explanation for Musk’s role. The judge in the Washington case has found that  Musk has “rapidly taken steps to fundamentally reshape the executive branch,” with no apparent “source of legal authority” and that his actions appear to describe “precisely the ‘executive abuses’ that the Appointments Clause seeks to prevent.”

Over the past few weeks, I’ve identified several other obvious and egregious violations of America’s founding charter. There are numerous lawsuits pending, and growing public anger, but there is no guarantee that Trump will obey the courts, and thus far, no indications that Congressional Republicans will locate their spines.

Meanwhile, Trump and Musk are busy destroying the federal government’s ability to operate domestically, and betraying our allies abroad.

As the saying goes, we aren’t in Kansas anymore….

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What We Face

On February 13th, Robert Hubbell’s daily letter included a (partial) list of what Trump/Musk had done in the first days of the administration. 

Pardoned 1,500 insurrectionists who assisted Trump in his first attempted coup.

Converted the DOJ into his political hit squad by opening investigations into members of the DOJ, FBI, Congress, and state prosecutors’ offices who attempted to hold Trump to account for his crimes.

Fired a dozen inspectors general, whose job it is to identify fraud and corruption and to serve as a check on abuses of power by the president.

Fired dozens of prosecutors and FBI agents who worked on criminal cases relating to Trump

Fired dozens of prosecutors who worked on criminal cases against January 6 insurrectionists

Opened investigations into thousands of FBI agents who worked on cases against January 6 insurrectionists

Disbanded the FBI the group of agents designed to prevent foreign election interference in the US

Disbanded the DOJ group of prosecutors targeting Russian oligarchs’ criminal activity affecting the US

Fired the chairs and members of the National Labor Relations Board, the Equal Opportunity Employment Commission, and the Federal Election Commission and refused to replace them, effectively shutting down those independent boards in violation of statute

Shut down and defunded the Consumer Financial Protection Bureau

Shut down and defunded USAID by placing virtually the entire staff of the agency on leave

Impounded billions of dollars of grants appropriated by Congress to USAID, National Institutes of Health, Department of Education, and the EPA, all in violation of Article I of the Constitution, which grants Congress the power to make appropriations

Allowed a group of hackers to seize control of large swaths of the federal government’s computer network by attaching unauthorized servers, changing and creating new computer code outside of federal security protocols, creating “backdoors” in secure systems, installing unsanctioned “AI” software to scrape federal data (including personal identification information), and installing “spyware” to monitor email of federal employees

Disobeyed multiple court orders to release frozen federal funds (an ongoing violation; see the NYTimes on Wednesday)
Granted a corrupt pardon to the Mayor of New York in exchange for his promise to cooperate in Trump’s immigration crackdown

The occasional trolls who visit this site to register their approval of these illegal and unconstitutional measures discount their illegality, confirming disdain for what is a significant protection of individual liberty–the insistence that the ends cannot justify the means. The entire Bill of Rights is founded on that premise, which is central to the rule of law.

It requires a total lack of civic literacy and historic understanding to look at that list and approve of those actions–to fail to see that they are fundamentally contrary to sound policy, to the rule of law, and to America’s global interests and stature.

Members of Congress should be the first line of defense against this coup. Most of these arbitrary actions can only be properly and constitutionally taken by Congress, and the actions comprising the Trump/Musk coup send an unmistakable message that our co-Presidents find Congress irrelevant and expendable. One might expect even MAGA Senators and Representatives to object to their political castration, but–as James Baldwin once noted–in order for evil to flourish, “it is not necessary that people be wicked but only that they be spineless.”

Unfortunately, MAGA Senators and Representatives only come in two flavors: Christian Nationalist (in Indiana, think Jim Banks) and spineless (in Indiana, think Todd Young). The Christian Nationalists are profoundly, if ignorantly, anti-American; the spineless are interested only in retaining their positions–positions that their meek obedience has divested of any significance other than the right to retain a title and receive a paycheck.

America’s government has three branches (someone needs to explain them to Tommy Tuberville), so in the absence of a live and breathing Congress, it is falling to the courts to restrain our would-be co-Kings. However, it looks all too likely that our would-be monarchs will ignore the courts–echoing Jackson’s infamous statement that “the courts have issued their decision, now let them enforce it.” 

If that happens, it will be left up to We the People to counter this coup, and we can’t wait until the midterm elections, by which time our overlords may have put even more vote suppression laws on the books. We must participate in protests, in general strikes, in civic resistance of all kinds. Jessica Craven has posted about several:—a nationwide protest on February 17, a one-day general strike on February 28, and a “total shutdown” on March 15.

Studies have determined that participation in non-violent protest by only 3.5% of a population forces political change. We the People can do this. 

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The Blind Leading The Blind

Assuming that we still have human civilization and historians a hundred years from now, the era we inhabit will probably have been dubbed the Age of Insanity.

Wherever you look, the people we’ve voted into power are pursuing “policies” that defy basic common sense. Here in deep Red Indiana, the so-called Second Amendment defenders–aka gun nuts–have eliminated all rational restrictions on the ownership of weapons. Are you a domestic abuser? No problem. Have you given friends and neighbors cause to think you are off your rocker? Hey, buy an assault weapon. 

Are you blind? Here’s your permit! I

f you think I’m exaggerating, the linked article will disabuse you of that opinion.

WhenTerry Sutherland argued about gun laws with family and friends over the years, he would often joke about whether  he — a legally blind man — should get a gun permit.

Everyone would laugh. Sutherland didn’t think it was possible.
 
“But eventually it kind of started weighing on me,” Sutherland told The Washington Post. “And I started thinking, ‘I wonder if it’s actually possible, and what would it mean if I could?’”
 
So last fall, Sutherland applied for an Indiana license to carry a handgun. He expected someone to stop him at some point in the application process, he said, or at least test if he could shoot at a target.

A few months later, Sutherland received his permit, as Indianapolis news channel WISH-TV first reported. He put it in a clear case and wears it on a yellow lanyard around his neck in hopes of starting conversations about Indiana’s gun laws, which he said are too lenient toward blind people. Sutherland hasn’t changed anyone’s opinions, he said, but some people have been shocked that he received the license.

Welcome to Indiana, where legislators regularly demonstrate that the only part of the Constitution they’ve read is the Second Amendment. (They routinely display total ignorance of the First–especially the Establishment Clause.)

And how are the geniuses in the Indiana legislature responding to the insanity of  the Trump and MAGA hysteria over (dark-skinned) immigrants?  Are they even aware that the U.S. Constitution makes Immigration a specifically federal responsibility?

Don’t be silly!

As the White House ramps up deportation of immigrants living in the U.S. illegally, many Republican-controlled state legislatures aren’t just complying with federal directives but taking additional steps to curb illegal immigration.

That includes Indiana.

More than a dozen immigration-related bills have been filed this legislative session, ranging from a bill that would ban children living in the country illegally from enrolling in public school to higher criminal penalties for immigrants caught living here illegally. But lawmakers have ultimately decided to focus their attention on bills that help police enforce immigration policies and detain people living here without citizenship.

The constitutional allocation of responsibilities is obviously irrelevant to our lawmakers, as is the fact that the U.S. Supreme Court has previously ruled that the public schools cannot be closed to immigrant children. Jim Banks–the ignorant and nasty Christian Nationalist who is perhaps the most embarrassing person Indiana has ever sent to the U.S. Senate (and that’s saying something) has threatened to defund the police if they opt to “stay in their constitutional lane.” (Indianapolis’ Police Chief–who evidently has read the Constitution–used that phrase in explaining why IMPD would continue to focus on crimes against the city’s residents, rather than assisting in terrorizing Brown residents.)

Two counterproductive House bills have been introduced by Jim Lucus, one of Indiana’s most deranged “Second Amendment” legislators (he also has a FaceBook page that makes Twitter/X look like a DEI site). His measures–which are moving through the process– add stronger criminal penalties to immigrants found to be driving without a license. Never mind that research shows such laws endanger everyone. They result in fewer trained, tested, licensed, and insured drivers on the road, compromising safety for all. (They also perpetuate fear within immigrant communities and create barriers to immigrants’ ability to contribute to our communities and the economy.) 

The MAGA animus toward dark-skinned immigrants is part and parcel of the central MAGA characteristic–racism. If you discount Project 2025, neither the state nor the federal GOP has advanced any coherent policy agenda. As Trump’s coup has proceeded and Musk and his DOGE techno-nerds lay waste to various federal agencies, GOP invertebrates express no concern. The only consistent themes have been concerted assaults on science and on efforts to be fair to those they’ve labeled Other: scrubbing federal websites of information, eliminating DEI efforts, and ejecting the immigrants who disproportionately pick our produce and build our houses.

This really is the age of insanity.


 

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When Ignorance Meets Arrogance

In Federalist No. 1, Alexander Hamilton wrote

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Reflection and choice require something entirely absent from Trump, Musk and their respective clown shows: knowledge and understanding.

MAGA’s ferocious assault on knowledge, expertise, and factual communication has given us today’s constitutional crisis–a crisis that reflects not just the massive civic ignorance of the general population, but the arrogance of the White Christian Nationalists who can–thanks to the Internet–choose such “facts” as they want to believe. Of course, as Hamilton would tell us, choosing false facts is not “reflection,” and ignoring both inconvenient facts and laws does not facilitate rational choice.

There is a chasm between the world inhabited by people who are capable of recognizing the current coup and the credulous souls and MAGA cultists who combine profound and visible ignorance with a wholly unearned arrogance–who take the laughable pronouncements from Trump and Musk at face value.

In a recent Substack letter, Paul Krugman described that chasm. 

Here’s where we are as a nation right now:

1. We may be in the middle of a trade war. Or maybe not

2. We’re in the middle of a constitutional crisis. No maybe.

3. We may be in the midst of a sort of digital coup, which might as a side consequence cause large parts of the federal government to cease functioning at all.

The unifying theme here, I guess, is that the federal government has been taken over by bad people who also are stunningly ignorant.

Krugman referenced the “concessions” made by Mexico and Canada, in return for Trump backing off his ridiculous tariffs.  Neither country agreed to do anything it wasn’t already doing--indeed, as Heather Cox Richardson has noted–these “concessions” confirmed agreements previously reached with the Biden administration.

As Krugman wrote,

The U.S., on the other hand, agreed to crack down on weapons shipments to Mexico. Trump will spin this as a victory; low-information voters and some intimidated media outlets may go along with the lie. But basically America backed down.

So is Trump the classic bully who runs away when someone stands up to him? It definitely looks that way.

Let’s be clear, however: this isn’t a case of no harm, no foul. By making the tariff threat in the first place, Trump made it clear that America is no longer a nation that honors its agreements. By caving at the first sign of opposition, he also made himself look weak. China must be very pleased at how all this has played out.

And as I argued the other day, the now ever-present threat of tariffs will have a chilling effect on business planning, inhibiting economic integration and damaging manufacturing.

Krugman described Musk’s effort to abolish USAID (which the man-child called a “viper’s nest of radical-left Marxists who hate America,”) pointing out that Musk not only isn’t president — he isn’t even a government official. Trump’s approval is irrelevant: shutting down an agency established by Congress is both illegal and unconstitutional.  Only Congress can legally abolish it.

This isn’t about saving money–USAID is responsible for a tiny fraction of the federal budget, although few voters understand enough about the federal budget to recognize how small a portion it is. Krugman observes that “in Musk’s worldview the mere fact of trying to help people in need makes you a radical-left Marxist who hates America.” And helping people is what USAID does; it funds humanitarian programs around the world. It feeds, medicates and vaccinates people. It saves lives.

Its termination–or even a pause–will cause many deaths.

And how many voters understand the enormity of the threat posed by the takeover of the Treasury’s computers by Musk’s interns?

Those systems control all federal payments, from grants to nonprofits to Social Security checks to salaries of federal workers. The potential for mischief is immense. 

Imagine that you’re a federal contractor who has made campaign donations to Democrats; suddenly the government stops paying what it owes you and brushes off inquiries by saying that they’re working on the problem. Or you’re a federal employee who, according to somebody in your office who has a personal grievance, has expressed sympathy for DEI; somehow your regularly scheduled salary payments stop being deposited into your bank account. Or even imagine that you’re a retiree who canvassed for Kamala Harris, and for some reason your checks from Social Security stop coming.

Don’t say they wouldn’t do such things. We’ve seen these people in action, and of course they would if they could.

As I type these words, America is in thrall to people who disregard the law, disregard court orders to stop, and whose arrogance deprives them of any understanding of the immense and long-lasting harm they are doing, as they play to the cheers of an equally ignorant cult.

Instead of “reflection and choice,” America is submitting to “accident and force.” And the rest of the world is watching.

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I Told You So…

Okay, okay…I hate smart-alecks who say “I told you so”– and now I’m one of them.

During my twenty-one years as a university professor, I constantly talked (well, ranted) about the American public’s lack of civic literacy–Americans’ gob-smacking lack of knowledge of our national history and constitutional structure. I established a Center for Civic Literacy at IUPUI (now IU Indianapolis), where researchers documented the gaping holes in public understanding of even the most basic elements of the country’s legal and political structures.

That public ignorance is largely responsible for our ignorant, embarrassing and very dangerous President.

David French connected those dots in a recent “conversation” among opinion writers for the New York Times. The writers had been discussing whether people cared about Trump’s assaults on America’s most fundamental philosophical commitments, and French pointed to the elephant in the room (pun intended): civic ignorance.

I really wish those of us who follow politics very closely understood more, because there’s a another question besides “Do people care?” and that is “Do people know?”

French noted that one thing that distinguishes Trump from other presidents “is the extent to which he has weaponized and exploited civic ignorance.”

One of the things that I think we’re learning is how much the American experiment has depended on the honor system. That presidents of both parties, with varying degrees of truthfulness and honor, by and large, maintained American norms and did not explicitly weaponize American ignorance in the way that Trump has.

I think what Trump and the people around him have realized is that he can do wild things, like some of the executive orders that will thrill MAGA and, of course, enrage his opposition. But then outside MAGA, there won’t be a ripple that any of this occurred at all.

Those American norms were rooted in the political philosophy that undergirds the Constitution and the Bill of Rights–a particular approach to the purpose of government, and especially to the importance of restraints on the exercise of government power. When a majority of the population doesn’t understand that philosophy and/or the centrality of those restraints, would-be dictators emerge.

I have previously posted about the importance of language and the effects of imprecise usage. An example is the way in which the term “limited government” has been transformed from the meaning given to it by the Founders into a belief in small government. The early American public insisted on passage of a Bill of Rights as a condition of ratifying the Constitution, and that Bill of Rights incorporates their insistence upon limiting the power of the state. (And since we are talking about words and their usage, I will note that “the state” in this context means government.)

If most citizens understood  America’s foundational principles, today’s media propaganda would be far less effective–audiences would recognize when claims being made are incompatible with America’s constitutional structure. Fox News and its clones rely heavily on the civic ignorance of their viewers.

In our system, government is supposed to be limited (not small). Among other things, it cannot tell citizens what they can say, what they can read, what they must believe. Government may not base laws on any religion. It may not interfere with citizens’ activities in the absence of probable cause. It must guarantee criminal defendants due process, and may not impose unreasonable penalties on those who are subsequently found guilty.

In the wake of the Civil War, the 14th Amendment added further limitations. Probably the most important was the mandate of equal protection–government cannot treat different kinds of citizens differently. (That amendment also included a provision that anyone born on American soil is a citizen–a provision that can only be changed by Constitutional amendment.)

The original Bill of Rights also explicitly limited the authority of the federal government by providing that powers not expressly granted to the federal government are retained by the states and/or the people.

Trump and his racist MAGA movement stand in opposition to virtually the entire Bill of Rights. It is very likely they have absolutely no familiarity with, or understanding of, that document. Worse, the election of Trump is evidence–as if we needed it–that the majority of Americans (especially those who didn’t bother going to the polls) were unaware of the degree to which a Trump victory would be inconsistent with America’s founding principles; evidently ignoring the campaign rhetoric that clearly pointed to that inconsistency and threatened those principles.

Too many Americans simply fail to understand that–far from making America great– Trump is intent upon destroying the genuine greatness to which America has aspired.

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