Heather Cox Richardson – Sheila Kennedy

So Long, America–It Was Nice Knowing You…

The New York Times summarized the rogue Supreme Court’s immunity ruling in a sentence: “the Supreme Court has extended sweeping legal protections to presidents that apply to no one else in the country.”

In other words, in the most recent of a string of appalling and unprecedented rulings, this disgraceful Court has eviscerated the essence of the rule of law: that no one is above the law. Sources close to the Rightwing extremists behind Project 2025 immediately began planning how to use the Court’s decision to help them implement their unAmerican policy agenda, and Trump immediately called for jailing his political opponents.

The Court has demonstrated the naiveté of those Republican voters who justified sticking with Trump because “there are guardrails–laws that will keep him from doing the craziest shit.” Not anymore, there aren’t.

Toto, we aren’t in Kansas anymore.

I have never been so afraid for my country. Lest you think I am over-reacting, I will turn the rest of this post over to the considered reactions of people I respect.

There were the pundits, of course, many of whom bring solid legal credentials to the discussion. I can sum up their reactions by citing to Washington Post columnist Ruth Marcus, whose opinion piece was titled “God Save Us from this Dishonorable Court” and was subtitled “An egregious, unconscionable ruling on presidential immunity from the Supreme Court.”

But the most incisive and horrified analyses came from the scholars.

Historian Heather Cox Richardson wrote:

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law….

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail…

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.”

Lawyer and legal scholar Robert Hubbell minced no words:

Today, the Supreme Court overthrew the American Revolution and anointed the US president as a modern-day king. Their betrayal of the American revolutionaries, Founders, and Framers is all the worse because they did so to promote the most corrupt, dangerous, depraved person to disgrace the office of the presidency…

Trump v. United States will be overruled. The decision is so bad it will not stand. Like Dred Scott (holding that enslaved people are not citizens entitled to judicial protections), Plessy v. Ferguson (upholding segregation), Koramatsu v US (upholding the Japanese internment camps), today’s decision will be overturned by the acclamation of history in due course. It will be remembered as a mark of shame for the Roberts Court just as Dred Scott tarnishes Chief Justice Taney’s legacy to this day.

It may take a few years or decades to overturn Trump v. US, but the American people are the ultimate power under the Constitution. Majorities in the House and Senate can pass a bill to expand the Supreme Court, and a Democratic president can sign it. The reactionary majority can be overwhelmed by the appointment of four new justices, although expanding the Court by eight or more would be appropriate given the nearly hundred-fold growth in the US population since six justices were appointed in 1789.

The problem is, if Donald Trump wins in November–or if MAGA neo-fascists control either the House or Senate– there won’t be a United States in which the judicial process can self-correct.

America as we’ve known it will be gone.

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HCR Connects The Dots

One of Heather Cox Richardson’s recent Letters clarified–in a way I’d not seen elsewhere–the stakes of our upcoming election. She began by reporting on a recent interview in which Bill Barr, who headed the Department of Justice under Trump, acknowledged Trump’s volatility and unstable behavior, but then indicated his intent to vote for him.

When the interviewer asked him why he planned to vote for someone he knew had tried to subvert the peaceful transfer of power–someone incapable of achieving his own policies, who lies repeatedly, and faces multiple criminal charges–Barr responded, “I think the real threat to democracy is the progressive movement and the Biden administration.”

Just wow.

Later, Richardson shared a speech Barr had delivered that illuminates that otherwise incomprehensible response. The speech was a defense of the so-called “unitary executive” theory (a “president as king” theory, the origin of which has been attributed to Samuel Alito.)

In 2019, Barr explained to an audience at the University of Notre Dame the ideology behind the strong executive and weakened representation. Rejecting the clear words of the Constitution’s framers, Barr said that the U.S. was never meant to be a secular democracy. When the nation’s founders had spoken so extensively about self-government, he said, they had not meant the right to elect representatives of their own choosing. Instead, he said, the founders meant the ability of individuals to “restrain and govern themselves.” And, because people are willful, the only way to achieve self-government is through religion.

Those who believe the United States is a secular country, he said, are destroying the nation. It was imperative, he said, to reject those values and embrace religion as the basis for American government.

The idea that the United States must become a Christian nation has apparently led Barr to accept the idea that a man who has called for the execution of those he sees as enemies should be president, apparently because he is expected to usher in an authoritarian Christian state, in preference to a man who is using the power of the government to help ordinary Americans.

That is the unbridgeable gulf we face. The over-riding question Americans will face in November is whether the United States will continue to be the secular democratic republic bequeathed to us by the nation’s founders, or a Christian Nationalist theocracy.

As Richardson noted, a number of pundits have shared a recent, blistering diatribe by George Stephanopolis, focusing on the numerous other differences between the upcoming election and previous contests.

“Until now,” he said in the show’s opener on Sunday, “[n]o American president had ever faced a criminal trial. No American president had ever faced a federal indictment for retaining and concealing classified documents. No American president had ever faced a federal indictment or a state indictment for trying to overturn an election, or been named an unindicted co-conspirator in two other states for the same crime. No American president ever faced hundreds of millions of dollars in judgments for business fraud, defamation, and sexual abuse….

“The scale of the abnormality is so staggering, that it can actually become numbing. It’s all too easy to fall into reflexive habits, to treat this as a normal campaign, where both sides embrace the rule of law, where both sides are dedicated to a debate based on facts and the peaceful transfer of power. But, that is not what’s happening this election year. Those bedrock tenets of our democracy are being tested in a way we haven’t seen since the Civil War. It’s a test for the candidates, for those of us in the media, and for all of us as citizens.”

Stephanopolis’ passionate summation was absolutely correct–but it was also incomplete. What he neglected to add was that those who are prepared to ignore all of it–prepared to cast a ballot for this wretched joke of a man– are motivated by an underlying philosophy utterly incompatible with the U.S. Constitution and Bill of Rights.

Christian Nationalism–not to be confused with genuine Christianity–often cloaked in legal jargon about a “unitary executive” and MAGA slogans about putting America First–is at the root of Trump support. MAGA Republicans are all about remaking America into their version of a “Christian Nation,” and we are just now beginning to see that movement for the racist, misogynist, utterly regressive effort it is.

This is no time to debate the merits of this or that policy. We can argue policy later. In November, we need to prevent MAGA Christian Nationalists from turning America into the country of Bob Barr’s wet dreams.

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A Moment Of Clarity

I have previously cited and linked to Heather Cox Richardson’s daily Letters from an American, but a recent one deserves more than a passing mention. In it, Richardson does a masterful job of clarifying the stakes of November’s election.

She begins by reminding us of the events leading up to the choice we will face, reminding readers that–once it had become clear Trump had lost the 2020 election– he’d given up “all pretense of normal presidential behavior.” Not only did he try to overturn the election, ignoring the will of the voters, “his attack on the fundamental principle of democracy ended the tradition of the peaceful transfer of power established in 1797 when our first president, George Washington, deliberately walked behind his successor, John Adams, after Adams was sworn into office.”

Trump has continued to push the Big Lie, and his loyalists in the states have embraced that lie, undermining faith in our electoral system. His theft of enormous amounts of classified materials has compromised national security.

We know all this, although the recitation/reminder is important. But–as historians like Richardson are well aware–past is truly prologue.

Trump is not the same as he was in 2020, and in the past three years he has transformed the Republican Party into a vehicle for Christian nationalism.

In 2016 the Republican Party was still dominated by leaders who promoted supply-side economics. They were determined to use the government to cut taxes and regulations to concentrate money and power among a few individuals, who would, theoretically, use that money and power to invest in the economy far more efficiently than they could if the government intervened. Before 2016 that Reaganesque party had stayed in office thanks to the votes of a base interested in advancing patriarchal, racist, and religious values.

But Trump flipped the power structure in the party, giving control to the reactionary base. In the years since 2020, the Republican Party has become openly opposed to democracy, embracing the Christian nationalism of leaders like Hungary’s Viktor Orbán, who maintains that the tenets of democracy weaken a nation by giving immigrants, people of color, LGBTQ+ individuals, and women the same rights as heterosexual, native-born white men.

Richardson then underscores what most of us who follow politics know–that today’s GOP looks absolutely nothing like the Republican party of the past.

Rather than calling for a small federal government that stays out of the way of market forces, as Republicans have advocated since 1980, the new Trump Party calls for a strong government that enforces religious rules and bans abortion; books; diversity, equity, and inclusion programs; and so on. In 2022, thanks to the three extremists Trump put on the Supreme Court, the government ceased to recognize a constitutional right that Americans had enjoyed since the 1973 Roe v. Wade decision: the right to abortion.

The far-right Trumpers have paralyzed the House of Representatives.

Republican members who actually want to pass laws are either leaving or declining to run for reelection. The conference has become so toxic that fewer than 100 members agreed to attend their annual retreat that began today. “I’d rather sit down with Hannibal Lecter and eat my own liver,” a Republican member of Congress told Juliegrace Brufke of Axios.

Richardson ticks off some of the actions Trump has promised if he wins in November: purging the nonpartisan civil service created in 1883, in order to replace career employees with Trump loyalists; weaponizing the Department of Justice and the Department of Defense; rounding up 10 million people– “not just undocumented immigrants and asylum seekers but also those with birthright citizenship,” and putting them in camps, ignoring a “right that has been enshrined in the Constitution since 1868;” cutting Social Security and Medicare; and being a “dictator on Day One.”

She then enumerates many of the achievements of the Biden Administration, drawing a stark contrast between an incredibly consequential President who has worked within the traditions of this country and an autocratic madman.

Every American following the news can probably point to policies of the Biden administration with which they disagree. That’s par for the course in every administration. Liz Cheney probably said it best: we can survive what we consider bad policy, we cannot survive a president who torches the Constitution.

It is incredibly disheartening to realize that millions of our fellow-Americans harbor resentments and hatreds that this repulsive buffoon has exploited–grievances for which he serves as a vehicle. But I refuse to believe that those angry and limited people represent anything close to a majority. If they did, Republicans wouldn’t be so frantic to suppress the vote.

Click through, read Richardson’s entire Letter–and VOTE as if your life depended upon it, because in a very real sense, it does.

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How We Got Here

I hadn’t planned to post about Trump’s latest indictment–the media has been all over it, including his trip to turn himself in and the mugshot (which perfectly captures this demented and hateful man’s affect). But the day after that unprecedented event, two newsletters that I regularly receive–from Heather Cox Richardson and Robert Hubbell–when read together, told the story of how we got here and where we are.

Richardson, of course, is an acclaimed American historian–someone well equipped to trace the trajectory of the once-Grand Old Party from Lincoln to Trump. And that is what she did.

In the 1960s, Republicans made a devil’s bargain, courting the racists and social traditionalists who began to turn from the Democratic Party when President Franklin Delano Roosevelt began to make inroads on racial discrimination. Those same reactionaries jumped from the Democrats to create their own party when Democratic president Harry S. Truman strengthened his party’s turn toward civil rights by creating a presidential commission on civil rights in 1946 and then ordering the military to desegregate in 1948. Reactionaries rushed to abandon the Democrats permanently after Congress passed the 1964 Civil Rights Act, joining the Republicans at least temporarily to vote for Arizona senator Barry Goldwater, who promised to roll back civil rights laws and court decisions.

The 1965 Voting Rights Act was the final straw for many of those reactionaries, and they began to move to the Republicans as a group when Richard Nixon promised not to use the federal government to enforce civil rights in the states. This so-called southern strategy pulled the Republican Party rightward.

In 1980, Republican presidential candidate Ronald Reagan appeared at the Neshoba County Fair near Philadelphia, Mississippi, a few miles from where three civil rights workers had been murdered in 1964 for their work registering Black Mississippians to vote, and said, “I believe in states’ rights.” Reagan tied government defense of civil rights to socialism, insisting that the government was using tax dollars from hardworking Americans to give handouts to lazy people, often using code words to mean “Black.”

Since then, as their economic policies have become more and more unpopular, the Republicans have kept voters behind them by insisting that anyone calling for federal action is advocating socialism and by drawing deep divisions between those who vote Republican, whom they define as true Americans, and anyone who does not vote Republican and thus, in their ideology, is anti-American.

The bottom line is the transformation of a once-responsible political party into a racist cult. I would actually quibble with one part of Richardson’s summary–the GOP’s policies haven’t “become unpopular,” they’ve vanished. It is impossible to identify “policies” espoused by the party’s current iteration–unless racism, misogyny, homophobia and anti-semitism can be considered policy positions.

And that brings me to the concluding paragraphs of Robert Hubbell’s newsletter.

Trump’s mugshot will become the defining image of Trump for all time. His facial expression conveys equal parts menace, anger, and defiance. There is no hint of a soul behind the eyes, only animal grievance and feral resentment at being cornered. It is astounding that a mugshot could capture the essence of evil that resides beneath the surface in Donald Trump.

The photo is also a mugshot of MAGA extremism. It captures the hostility and meanness that animates most of the GOP’s “agenda”—including policies that demean and discriminate against Blacks, women, LGBTQ people, educators, scientists, and immigrants. Trump’s mugshot will likewise become the defining image of MAGA extremism for all time. Tens of millions of MAGA adherents will celebrate and glorify the image—confirming the virulent strain of authoritarianism that has infected the MAGA base.

Not just authoritarianism; hatred..raw hatred for the people who have stolen their preferred vision of America–a vision in which straight White (pseudo) Christian men rule the roost. Virtually every Republican candidate, local, state and federal, is pandering to the angry and fearful members of a MAGA cult that has replaced a once respectable party.

Hubbell focuses on the rest of the electorate.

By making this gargoyle of hate the “face” of the 2024 GOP campaign, Republicans are reinforcing the suspicions and fears of tens of millions of Republicans and swing voters who are looking for a reason not to vote for Trump—or to stay home. (As they did on debate night by boycotting his Tucker Carlson interview.)

Against the deeply unsettling MAGA mugshot, Democrats will feature the kindly face of Joe Biden as he reaches to pet a rescue dog or hug a survivor of the Hawaii wildfires. Joe Biden may be older than some would like, but his face exhibits kindness and wisdom. We should not underestimate visceral reactions to human decency—or lack thereof—in our leaders.

I sure hope he’s right.

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The Tyranny Of The Minority

Among the newsletters I receive is one from historian Heather Cox Richardson, who regularly provides historical context for contemporary issues.

These two paragraphs from a recent newsletter have prompted me to dust off and recycle one of my old classroom lectures.

The right-wing rejection of democracy was on display at a meeting of the Federalist Society in early March. Politico’s Ian Ward covered the meeting. The Federalist Society organized in the 1980s to argue that the civil rights decisions of the past several decades corrupted democracy because liberal judges were “legislating from the bench” against the wishes of actual voters. The society’s members claimed to stand for judicial restraint.

But now that their judges are on the bench, they have changed their philosophy. Last summer, after a Supreme Court stacked with Federalist Society members overturned the right to abortion, voters have tried to protect that right in the states. Now, according to Ward, the Federalist Society appears to be shifting away from the idea of judicial restraint in the face of popular votes and toward the idea that judges should “interpret the Constitution” in ways right-wing Americans support. They are quick to claim that democracy is not the answer: it would result, they say, in the tyranny of the majority.

When I taught Law and Public Policy, we talked a lot about the U.S. Constitution, and the Founders’ approach to that “tyranny of the majority.”

The phrase points to a legitimate concern: if the law is anything a majority of voters say it is at any given time, individual rights are at risk. A majority can vote to disenfranchise a minority, require everyone to attend a particular church, criminalize anti-government sentiments… the list goes on.

It is easy, after 200 plus years, to find fault with our Constitution, and in this blog I have pointed to areas that I think need to be amended or re-construed. But the philosophy with which the Founders approached these very real worries about what they called the “passions of the majority” was (in my view) as close to perfect as possible.

Drawing on Enlightenment scholarship, the Founders distinguished between matters that were properly within the decision-making authority of “the people”–the majority– and matters that were to be protected from the majoritarian passions of those people.

That division was the entire purpose of the Bill of Rights.

In our system, a majority of voters get to select their lawmakers (theoretically, at least, voting for those whose positions they endorse). Those representatives then decide, via legislative majorities, issues ranging from waging war, to taxes, to electoral processes, to the establishment of government agencies…on and on. (And yes, as I periodically point out, this process is currently not working very well…)

The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter. Your neighbors cannot vote to make you attend a particular church or prevent you from reading a particular book; they may not authorize a government functionary to “search and seize” you without probable cause. Etc.

For years, judges and lawyers have debated the range of personal liberties protected against majority disapproval. Was the Bill of Rights to be read as an organic whole, encompassing the “unenumerated” rights retained by the people, or was it to be limited to rights expressly identified? I think the expansive reading is more consistent with the text and the Founders’ original expressed philosophies, but it’s a legitimate debate.

The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.

The American constitutional system was based upon the libertarian principle (libertarianism as properly–and originally–understood). I’ve shared it before; let me share it again: The libertarian principle holds that Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of another, and so long as they are willing to accord an equal liberty to their fellow citizens.

We can argue about the nature of the harms that justify government intervention, but Jefferson had it right: “It does me no injury for my neighbour to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”

The purpose of the Bill of Rights was to erect a boundary between those matters that harm others, which the majority can properly sanction, and the individual, profoundly personal human rights that are simply none of government’s business.

We can argue about where that boundary belongs, but the Federalist Society, MAGA warriors and Christian Nationalists are trying to erase it altogether.

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