Category Archives: Constitution

Being An American

I recently happened on a post I wrote in the run-up to the 2000 election, addressing a question that had been posed to me during a speaking event. The question was “What does it mean to be an American, and how will the answer to that question matter in the 2020 election?

I argued that being American requires understanding, supporting and protecting what I have frequently referred to as “The American Idea”– the essential elements of our country’s version of liberal democracy: majority rule and the libertarian brake on that majority rule, aka the Bill of Rights. American identity isn’t based upon race or religion or country of origin–it is based upon support of the American Idea.

I also argued that, in order to protect the legitimacy of U.S. government, we needed to address the escalating assaults on majority rule– gerrymandering (the practice whereby legislators choose their voters, rather than the other way around); the growth of vote suppression tactics (everything from voter ID laws to the spread of disinformation); the disproportionate influence of rural voters thanks to the operation of the Electoral College; the growing (mis)use of the filibuster, which now requires a Senate supermajority to pass anything; and the enormous influence of money in politics, especially in the wake of Citizens United.

Those assaults on democratic legitimacy were troubling enough in 2020. They clearly enabled the further assault on American democracy that we are experiencing under a mentally-ill would-be autocrat and his MAGA cult in 2025.

Trump hasn’t limited his efforts to the assault on majority rule. He has also taken Musk’s chainsaw to the individual liberties protected by the Bill of Rights, refusing to recognize–let alone honor– fundamental rights to due process, free speech and (above all) civic equality.

Individual liberty in the United States is protected by the constraints on majority rule required by the Bill of Rights and the 14th Amendment. Those provisions–those protections–mirror the libertarian principle that animated the nation’s Founders: the right of all people to live as they see fit, so long as they do not thereby harm the person or property of others, and so long as they are willing to grant an equal liberty to others. That “live and let live” principle doesn’t just  require limitations on government overreach; it requires that we combat official sanctions of racism, anti-Semitism, homophobia, misogyny, Islamophobia…all of the “isms” that deprive some citizens of equal civic status and that operate to deny them their individual liberties.

It’s one thing to understand Trump himself: he’s obviously damaged– needy, massively ignorant, intellectually limited, declining into dementia. The harder question is, what explains the MAGA cult? What leads millions of presumably sane Americans to cheer on Trump’s defiantly anti-American efforts?

Part of the answer is civic ignorance; understanding and protecting both majority rule and individual rights requires an informed citizenry–something we don’t have, as mountains of data clearly show. When people don’t know how their government is supposed to work, they are less likely to recognize assaults on its governing philosophy. But civic illiteracy doesn’t explain MAGA, although it undoubtedly feeds it.

Racism, White Christian Nationalism and other associated bigotries are at the root of MAGA and Trumpism. America has never been able to overcome the periodic emergence of primal hatreds that motivated the Confederacy and the KKK, despite the fact that those hatreds are contrary to everything that defines Americanism.

Back in that 2020 talk, I said I was convinced that our civic challenge was about America’s structural and systemic distortions—that (assuming a Biden victory) our first order of business should be to confront the misuses of power that make fair and productive political debate about substantive issues impossible–that these failures of American governance needed to be addressed before any of the policymakers we might elect would be able to discuss, let alone pass, rational, evidence-based policies.

The need to address those systemic distortions has become more imperative, as we watch Trump take advantage of them to turn America into a very different country. As I said in 2020, you can’t drive a car if it’s lost its wheels, and you can’t govern if your institutions have lost their legitimacy.

Unless the systems are fair, unless we can rely on obedience to the rule of law by those in office, no minority of any sort–political, religious, racial, economic–is safe.

Assuming we emerge from this lawless and destructive administration more or less intact, we have our work cut out for us.

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Telling It Like It Is

Jay Pritzker, the Democratic governor of Illinois recently made a speech in New Hampshire that has received significant–and merited–attention. Pritzker really “told it like it is.”

Heather Cox Richardson recently quoted from Pritzker’s speech at length, and today, I am going to do the same, because Pritzker’s words deserve widespread distribution.

“It’s wrong to snatch a person off the street and ship them to a foreign gulag with no chance to defend themselves in a court of law.” This is not about immigration, he said, but about the Constitution. “Standing for the idea that the government doesn’t have the right to kidnap you without due process is arguably the MOST EFFECTIVE CAMPAIGN SLOGAN IN HISTORY,” he said. “Today, it’s an immigrant with a tattoo. Tomorrow, it’s a citizen whose Facebook post annoys Trump.”

Pritzker called for “real, sensible immigration reform.”

“Immigration—with all its struggles and its complexities—is part of the secret sauce that makes America great, always. Immigrants strengthen our communities, enrich our neighborhoods, renew our passion for America’s greatness, enliven our music and our culture, enhance understanding of the world. The success of our economy depends upon immigrants. In fact, forty-six percent…of Fortune 500 companies were founded by immigrants or the children of immigrants.”

Trump’s attacks on immigrants, he said, are likely to make the U.S. economy fail. Indeed, he suggested, making America fail is the point of the Trump administration’s actions.

“We have a Secretary of Education who hates teachers and schools. We have a Secretary of Transportation who hates public transit. We have an Attorney General who hates the Constitution. We have a Secretary of State, the son of naturalized citizens—a family of refugees—on a crusade to expel our country of both.

“We have a head of the Department of Government Efficiency— an immigrant granted the privilege of living and working here, a man who has made hundreds of billions of dollars after the government rescued his business for him—who is looking to destroy the American middle class to fund tax cuts for himself. And we have a President who claims to love America but who hates our military so much that he calls them ‘losers’ and ‘suckers’ and who can’t be bothered to delay his golf game to greet the bodies of four fallen US soldiers. And we have a Grand Old Party, founded by one of our nation’s bravest Presidents, Abraham Lincoln—who today would be a Democrat, I might add—… so afraid of the felon and the fraud that they put in the White House that they would sooner watch him destroy our country than lift a hand to save it.”

 “It’s time to stop wondering if you can trust the nuclear codes to people who don’t know how to organize a group chat. It’s time to stop ignoring the hypocrisy in wearing a big gold cross while announcing the defunding of children’s cancer research. And time to stop thinking we can reason or negotiate with a madman. Time to stop apologizing when we were NOT wrong. Time to stop surrendering, when we need to fight.

“Our small businesses don’t deserve to be bankrupted by unsustainable tariffs. Our retirees don’t deserve to be left destitute by a Social Security Administration decimated by Elon Musk. Our citizens don’t deserve to lose healthcare coverage because Republicans want to hand a tax cut to billionaires. Our federal workers don’t deserve to have, well, a 19-year-old DOGE bro called Big Balls destroy their careers.

“Autistic kids and adults who are loving contributors to our society don’t deserve to be stigmatized by a weird nepo baby who once stashed a dead bear in the backseat of his car.

“Our military servicemembers don’t deserve to be told by a washed up Fox TV commentator, who drank too much and committed sexual assault before being appointed Secretary of Defense, that they can’t serve this country simply because they’re Black or gay or a woman.

“And If it sounds like I’m becoming contemptuous of Donald Trump and the people that he has elevated, it’s because… I am. You should be too. They are an affront to every value this country was founded upon.”

“I understand the tendency to give in to despair right now. But despair is an indulgence that we cannot afford in the times upon which history turns. Never before in my life have I called for mass protests, for mobilization, for disruption. But I am now.

“These Republicans cannot know a moment of peace. They have to understand that we will fight their cruelty with every megaphone and microphone that we have. We must castigate them on the soap box, and then punish them at the ballot box. They must feel in their bones that when we survive this shameful episode of American history with our democracy intact—because we have no alternative but to do just that—that we will relegate their portraits to the museum halls reserved for tyrants and traitors.”

“Cowardice can be contagious. But so too can courage…. Just as the hope that we hold onto in the darkness, shines with its own…special light.

“Tonight, I’m telling you what I’m willing to do…is fight—for our democracy, for our liberty, for the opportunity for all our people to live lives that are meaningful and free. And I see around me tonight a roomful of people who are ready to do the same.”

“So I have one question for all of you. Are you ready for the fight?”

To which I say “yes.” And “amen.”

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There’s No Method To His Madness

The New Republic recently ran an essay titled “There is No Method to his Madness. He’s Simply Insane.” I couldn’t agree more.

The article began by noting that past heads of state have sometimes pretended irrationality in order to confuse opponents, but noted–confirming what any rational observer has already concluded–Trump is not among them. For one thing, he clearly lacks the intellectual capacity to devise such a strategy. Or any strategy.

It’s not just Trump’s unpredictable tariff policy that appears insane. His entire administration is defined by madness—in both senses. On Friday, he went on another incoherent rant on social media, claiming once that the 2020 election was stolen from him and rewriting history to blame all of our current problems, including Russia’s invasion of Ukraine, on Joe Biden. In other Truth Social posts, he’s boasted about being a king and claimed that the “European Union was formed for the sole purpose of taking advantage of the United States.”

If these acts were merely confined to deranged posts, perhaps one could argue there’s “method in his madness.” After his rant on Friday, Trump gave a speech at the Justice Department wherein he kvetched about various imaginary enemies of the United States (which, coincidentally, are his personal enemies) and made clear that he expects the department to serve as an extension of his personal wrath. Similar delusions have led to the dismantling of USAID, a wasteful visit to Fort Knox to check if the gold had been stolen, and continual talk about annexing other countries.

The article goes on to detail further evidence that our would-be King has no (mental) clothes, despite his courtiers’ efforts to find method in the madness.

What makes the insanity so dangerous, however, isn’t simply Trump’s ignorance of governance and economics, but the venom that characterizes his approach to others, and the festering resentments that impel his actions. Trump is a limited intellect and damaged ego occupying a human body;  fears and jealousies and grievances–not strategies or principles–prompt his eruptions, and explain both his grandiose fantasies (comparing himself to Winston Churchill, annexing Canada) and his tacky decorating fetishes (gold toilets).

While it would be inaccurate to describe them as principles, there are a few long-standing grievances that predictably motivate Trump’s constant stream of illegal (and often ridiculous) Executive Orders. Our mad king thinks he is in a position to take revenge, not just over the legal system which (finally) was holding him to account, but over all those people who sneered at him over the years–those “elitists” with their intellectual and cultural bona fides, the businesspeople who made their fortunes without ripping off suppliers or hiding in bankruptcy court, the women who found his “charms” unpersuasive.

Politics gave Trump the adulation he wanted, but from people he clearly despises.

Those long-standing resentments explain so much: Trump’s war on a legal community defending rules he regularly broke–and his special animus for the lawyers who had the nerve to represent people antagonistic to him. His refusal to allow disclosure of his own GPA undoubtedly sheds some light on his efforts to destroy intellectual inquiry on the nation’s campuses. Both his own resentments and the need to pander to his MAGA cult help explain his efforts to turn academia into a mechanism for Right-wing propaganda.

As for the roots of his White Nationalism–his definition of “DEI” as discrimination against White men and his ferocious efforts to return women and minorities to subservience–I can only assume that he agrees with MAGA that his White skin is a sign that he is superior and that any effort to ensure fair treatment for women and minorities is an attack on that superiority. (Unfortunately, his entire administration demonstrates the folly of believing Whiteness denotes even minimal competence…)

Bottom line: the United States has a president who is ignorant, petulant and demonstrably insane. He is also, in all probability, a Russian asset. Our constitutional system of checks and balances is currently not working, because members of the GOP majorities in the House and Senate fear the mad king and are not living up to their oaths of office, and the Supreme Court’s majority is ethically compromised.

The remedy must come from We the People. And it begins by acknowledging the truth of that last paragraph.

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Poison Gas

I have repeatedly cited the observation by a noted civil libertarian to the effect that poison gas is a great weapon–until the wind shifts.

In case the clear meaning of that observation eludes anyone, it is a recognition that ignoring the rule of law in order to punish people you dislike is a very dangerous tactic, because when those disliked folks gain power–as they inevitably will– they can turn those same illegal tactics against you.

It is abundantly clear that Trump and his MAGA minions don’t understand the operation of due process guarantees. (Granted, Trump is embarrassingly ignorant of all civil liberties, and indeed, ignorant of how the world works.) That ignorance is shown by the increasing hysteria with which the administration keeps asserting that Abrego Garcia is “a bad dude,” and that bad dudes aren’t entitled to due process.

There is substantial evidence to rebut the administration’s accusations about Garcia, but their probity is totally irrelevant. Giving an accused individual due process requires that the government prove its allegations in a court of law. If Garcia is really a gang member or otherwise unfit to live among us, the state should be able to demonstrate that fact. A grant of due process doesn’t keep authorities from expelling bad guys–but it does require government to provide the evidence upon which they are painting an individual as someone who should be expelled from our shores.

If a mere accusation is poison gas sufficient to justify deportation, none of us is safe. The accusatory finger can be pointed at anyone, for any reason. That’s why Talking Points Memo–among many others–has  editorialized about the extreme importance of this case.

As best we can tell, Abrego Garcia was on the third deportation flight from Texas to El Salvador on March 15. The other two flights contained people deported under the Alien Enemies Act without any judicial review. The AEA deportations were the first to be challenged in court, which led to the big blow up in U.S. District Judge James Boasberg’s court about whether the Trump administration had willfully violated his order blocking them.

It was in the midst of that legal battle that the case of Abrego Garcia’s mistaken deportation emerged, an error the Trump administration admitted, serving as the perfect signifier for why due process is so essential. If Abrego Garcia could be deported in error – and in violation of an existing order by an immigration judge – isn’t that precisely why the law offers procedural protections that all of the deportees that day were entitled to at some level?

TPM noted that the administration’s positions inside the courtroom have been at odds with its public statements. It  has gone from admitting the deportation was in error to the launch of “a full-scale propaganda campaign from the White House on down, sowing misinformation, inventing facts, smearing Abrego Garcia with falsehoods, and furiously trying to muddy the waters to obscure its own malfeasance.”

The editorial quoted Timothy Snyder, a noted scholar of tyranny:

The president defied a Supreme Court ruling to return a man who was mistakenly sent to a gulag in another country, celebrated the suffering of this innocent person, and spoke of sending Americans to foreign concentration camps.

This is the beginning of an American policy of state terror, and it has to be identified as such to be stopped.

Americans who have been following the news are aware that Garcia is only the most prominent example of extra-legal apprehensions and deportations, which have been accelerating under this lawless regime. This reality–among other Trump acts in defiance of the rule of law–has brought us to the current constitutional crisis, as the administration stonewalls and evades, and refuses to submit to court orders.

The Republicans in the House and Senate could end this crisis. Even if they failed to impeach the mad king, they could assert their powers under the Constitution and take back the authority that Trump has usurped–authority that is rightfully theirs. Their failure to do so–the cowardice preventing them from even publicly protesting Trump’s blatantly illegal, unconstitutional and immoral behaviors–is a betrayal of immense proportions. Assuming we emerge from the current abyss, these Republicans will go down in history as weaklings and traitors whose failure to honor their oaths is a repudiation of the values upon which this country was founded.

It will also be seen as an invitation to turn the poison gas in their direction when Democrats gain control. Of course, if that happens, we really will have lost the Founders’ America.

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Defending The Rule Of Law

As the Trump administration careens drunkenly from outrage to outrage, laying waste to the American Idea, there is one “through line” to the Dear Leader’s petulant and bizarre Executive Orders and (ungrammatical) pronouncements: virtually all of them violate the laws of the land. (My husband will read of some Trumpian action and ask me, “Can he do that?” and my response is usually, “It’s against the law, if that matters.”)

The Constitutional crisis we are currently experiencing is Trump’s disregard–not just for the laws he is ignoring–but for Court orders requiring him to obey them.

I don’t know how this crisis will turn out. I have hopes that the increasing numbers of protests will encourage at least some Republican Senators and Representatives to re-grow their spines (although here in Indiana,  Senator Jim Banks–a dim, smug self-proclaimed Christian Nationalist–is beyond hope). In the meantime, there are emerging signs that the legal community is prepared to defend the rule of law against our Mad King and his merry band of lunatics.

I was particularly pleased to read a Fourth Circuit Court of Appeals decision authored by Judge J. Harvie Wilkinson III, because it confirmed a point I’ve repeatedly made on this site: whatever descriptors you want to apply to Trumpism and MAGA, “conservative” isn’t one of them.

As Josh Marshall wrote at Talking Points Memo 

If you had told me in 2005 that 20 years hence federal appeals court Judge J. Harvie Wilkinson III would be writing a paean to our lost liberties and freedoms under a Republican president, I may have politely suggested you seek some help.

The entire order is worth reading. Wilkinson clings to the hope that the judiciary’s “brethren in the Executive Branch” will recognize that the rule of law is “vital to the American ethos.”

Wilkinson’s defense of the rule of law is being joined by individual lawyers. R. William Jonas, Jr., a partner in a law firm in Mishawaka, Indiana, recently shared the following letter he’d written to the Indiana Bar Association.

I write today as a member and Past President of the Indiana State Bar Association, and as an officer of the court who swore on Oct. 9, 1981, to support and defend the Constitution of the United States and the State of Indiana. To fulfill my oath, I write today in the wake of the decision of the U.S. Court of Appeals for the Fourth Circuit attached here.

The U.S. government “snatched” Kilmar Abrego Garcia from his home state of Maryland, and, in utter disregard of his constitutional right to due process and a specific court order, and transported him to an infamous prison in El Salvador where it is now claimed that he is beyond the power of our courts. We know from reading the Fifth Amendment that “no person shall be deprived of life, liberty or property without due process of law.” And “no person” means exactly that – it includes everyone from Jesus Christ and the twelve disciples to Jeffrey Dahmer, Ted Bundy, John Wayne Gacy or Gertrude Baniszewski.

 It is the duty of the Indiana State Bar Association, to speak in support of the opinion of the court and the right of due process which is at the very heart of the rule of law. Some might say that we should be silent because we shouldn’t be taking political positions or because it might cause people to terminate their memberships. To these folks, I say that we all have sworn to uphold the constitution and the rule of law. This association is rightly proud of its efforts to promote leadership through the Leadership Development Academy and civic education through the Indiana Bar Foundation’s civic education program “We the People: The Citizen and the Constitution.” If we remain silent, what message do we send about leadership? About civic duty? If not us, who? If not now, when?

              Judge Wilkinson wrote

It is, as we have noted, all too possible to see in this case an incipient crisis, but itmay present an opportunity as well. We yet cling to the hope that it is not naïve to believeour good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Now is the opportunity for the ISBA to speak up in support of the right to due process and the rule of law, and to urge the local bars of Indianapolis, Evansville, Allen County, Lake County and St. Joseph County to take similar action. It is an opportunity to urge the faculties of Indiana’s law schools to join the chorus – as Judge Wilkinson says “while there is still time.”

Now is the time for all of us to speak up–and resist.

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