Tag Archives: Constitution

Monday Musings: This is EXACTLY Who We Are

“This is not who we are.”

Comforting words that have been trotted out repeatedly in the days since the Capitol Hill insurrection that left six dead and scores injured, and that shook to the core our faith in the strength of our republic.

We’ve heard politicians from both sides of the aisle say this, none with more conviction than Joe Biden. “This is not who we are. We’re Americans. We’re better than this.”

I’m paraphrasing — that’s not an exact quote. But it’s close enough.

The problem is, this is exactly who we are. It’s who we have been for two and a half centuries. We are a nation whose racism and blithe acceptance of White Supremacist doctrine is embedded in the original wording of our Constitution. According to that revered document, the version ratified in 1788, slavery was an accepted economic and political reality, black slaves counted as merely three-fifths of a human being, and unless you were a white man, you didn’t get to participate in our political process.

Subsequent amendments have remedied the worst offenses of the original, but it took a prolonged and bloody Civil War to make most of them possible, and another fifty years of agitation to win the vote for women.

Our politics have been riven by race, by anti-democratic tendencies, by a win-at-all-costs mentality for nearly the entire history of our nation. Andrew Jackson refused to enforce the Supreme Court’s 1832 Worcester v. Georgia ruling that ordered the state of Georgia to halt the removal of the Cherokee from the state. “[Chief Justice] John Marshall has made his decision,” Jackson said. “Now let him enforce it.”

In 1856, Representative Preston Brooks, a pro-slavery Democrat from South Carolina, walked into the Senate Chamber and assaulted Massachusetts Republican Charles Sumner, beating him bloody and senseless with a gold-tipped wooden cane. Sumner had “given offense” with a fiery speech condemning slavery.

Anti-communist crusades in the 20th century — in the 1920s, led by Attorney General A. Mitchell Palmer, and in the 1950s, led by Senator Joseph McCarthy of Wisconsin — saw frightening curtailments of civil liberties and shocking violence aimed at suspected socialists and communists. Palmerism and McCarthyism were built on lies and distortions that fed a frenzy of authoritarian rhetoric and policy, all in the name of protecting our democratic republic.

Police brutality directed at Blacks and the political Left is also nothing new. Images of police attacks on Blacks during the urban race riots of the 1910s and ‘20s, can be laid alongside footage of similar attacks on Civil Rights protesters in the 1950s and ‘60s. And these can be matched with video captures of the violence and cruelty we all witnessed during the summer of 2020, when Black Lives Matter activists were beaten and shot in the streets of America’s cities.

Of course this is who we are. It is who we have been from the start.

I don’t say this to feed complacency or to justify any recent events. I don’t say it because I hate America. I don’t say it even to reassure — “we’ve been through this before; we’ll get through it this time.”

I say it because the sooner we accept that what we’re witnessing now is nothing new, the sooner we can change “This is not who we are,” to “This is not who we ought to be.”

I have been horrified by the excesses of Trumpism (which will take its place alongside “Palmerism” and “McCarthyism” in the annals of history). I fear what might happen at Wednesday’s inauguration. And yet, I will admit that I do take some comfort in knowing that we have weathered crises of this kind before. On Friday, I heard an NPR interview with Stephanie Cutter, the producer of the 2021 inauguration. She was asked about the threats aimed at Wednesday’s festivities, and she made clear that while she is taking them seriously, she is not panicking. It seems there were equally credible threats aimed at Barack Obama’s 2009 inauguration — no surprise there. The threats were so serious, that Obama had prepared instructions for the huge crowd gathered on the Mall, telling them what to do in the event of a terrorist attack. Fortunately, he didn’t need them. But threats of this sort are nothing new.

So, yes, this is who we are. America is, and has always been, as flawed and conflicted as the people who populate her. Nor are we alone in this regard. History tells us that nations on every continent have been subject, at one time or another, to violent assaults on liberty, to authoritarianism, to political conflicts that result in bloodshed and threaten to tear the very fabric of civil society. The United States is hardly unique in this regard.

And perhaps that is the point. Americans have long touted our “exceptionalism.” Our system of government, which truly is unique in many regards, was supposed to protect us from the sort of raw, ugly violence we saw on January 6th. We were supposed to be immune.

But THAT is not who we are. This nation — of the people, by the people, for the people — is by definition doomed to be flawed. The American experiment is a human endeavor, and so is subject to all the foibles and problems of anything human. The sooner we accept this, the sooner we stop denying who and what we are, the sooner we can get to the crucial task of becoming who and what we aspire to be.

Monday Musings: He Lost. Get Over It Already. Rome Is Burning.

“You fool! As if the way one falls down matters!”

“Well, when the fall is all that’s left, it matters a great deal.”

The Lion In Winter

He lost.

He knows it. His lawyers know it. His enablers in the Administration, the House, and the Senate know it. All in the media know it. The vast majority of Americans know it.

But he can’t admit it. He can’t admit it because he was brought up by a father who was every bit the asshole he is, and who drummed into him again and again that losing was for others but not him. He can’t admit it because he has built a worldwide brand around the idea that he’s “a winner.” And he can’t admit it because the future that awaits him once his one-term Presidency is over promises to be a grim slog through criminal trials, civil liability cases, and debt collection proceedings initiated by his many disgruntled creditors.

He is conning his supporters out of literally hundreds of millions of dollars, soliciting donations for a “legal fund” that actually shunts all contributions under $8,000.00 into the Republican National Committee and to a political action committee that has nothing to do with ongoing litigation. His legions don’t appear to know, or care.

His claims of fraud, parroted by his lawyers, have no basis in fact. We know this because while those representing him in court have made wild claims at press conferences and staged “hearings” in various battleground states, they have not repeated any of these claims in court. Lawyers are free to lie at will at public events, but lying in court, before a judge, can result in professional sanction or worse. If they believed the crap they’ve been saying at their public events, if they actually had evidence to support their crazy conspiracy theories, they would present it in a legal setting. That they haven’t tells us all we need to know about the veracity of their accusations.

The tragic irony in all of this is that while they are perpetrating their own fraud, the real crisis of our time, one they have dismissed all along as a hoax, is devastating our nation. COVID-19 is deep into its third wave here in the U.S. This resurgence is worse than any we have seen thus far. Americans are falling ill at a rate of more than 200,000 people per day. More than 2,700 people are dying daily — a rate of one death every thirty seconds. Within the next two weeks, the death toll from the pandemic will reach 300,000. By the time you read this, more than 15 million Americans will have contracted the virus.

And President Nero fiddles. He complains about his electoral loss, whines about how unfairly he has been treated, seeks to undermine the very foundations of our republic by refusing to acknowledge his loss, something no other Presidential candidate has done in the last one hundred and fifty years. He cares only about himself, his bruised ego, his impending legal and financial difficulties. He lacks the capacity to focus on the suffering of those he is supposed to serve. He has no empathy, no true compassion. He is utterly self-absorbed.

Meanwhile, people are dying. They’re losing their jobs, their health insurance, their homes. We as a nation are headed into a winter that health officials warn could be the hardest we have seen in more than a century. We are, until January 20, 2021, a nation without a leader, rudderless and adrift. All because the bloviating man-child in the Oval Office can’t deal with reality.

The only thing worse would have been if he had won.

Have a good week.

Monday Musings: The Peaceful Transfer of Power

For students of American history, the late eighteenth century is filled with consequential dates and events. The signing of the Declaration of Independence in 1776, the end of the Revolutionary War in 1781, the meeting of the Constitutional Convention in 1787, and the ratification of the Constitution in 1788.

The date that marked the true establishment of our American republic, however, did not come until 1800-1801. At the turn of the nineteenth century, Thomas Jefferson, a Democratic-Republican, narrowly defeated Federalist President John Adams in a national election. The following March, as spelled out in the fledgling Constitution, Adams and his fellow Federalists voluntarily relinquished power so that their partisan rivals could assume control of the government. This acquiescence to the people’s will, this statement of belief in the greater good, turned the ideal of a democratic republic into reality.

Over the past 220 years, our nation has repeated this ritual literally dozens of times. Democratic-Republicans have given way to Whigs, who have given way to Democrats, who have given way to Republicans, who, in turn, have given way once more to Democrats. And so on. The peaceful transfer of power lies at the very heart of our system of government. Declaring and winning independence was important. Creating a foundational document, flawed though it was, that spelled out how our government would work was crucial.

None of it would have meant a thing, however, if in actual practice America’s election losers refused to accept defeat, to acknowledge the legitimate claim to power of America’s election winners. Only twice in our history, has the peaceful transfer of power not gone as the Founders intended. The first time, in 1860, Republican Abraham Lincoln defeated three other candidates, and the nation went to war with itself. The second time, in 1876, America’s leaders barely avoided a second armed conflict by installing Rutherford B. Hayes over the election’s actual winner, Samuel Tilden. The deal struck by party leaders condemned the American South to more than a century of racial tyranny.

Now, nearly a century and a half later, we face the prospect of a third attempt to undermine the peaceful transfer of power. Donald Trump, knowing that he is deep trouble politically, has refused to say that he will honor the results of this year’s election. He is doing all he can to sow doubt about the integrity of our voting system, particularly mail-in ballots. More ominous, he and his campaign are making overtures to Republican-controlled state legislatures in battleground states, hoping they will appoint electors who support him, regardless of the election’s outcome in those states.

This is unheard of. It is anti-democratic. It is utterly corrupt. It is immoral. Most of all, it poses an existential threat to the continued existence of our nation as we know it. Our Constitutional system, for all its strengths, is completely dependent upon the good faith of all actors involved. The moment one party threatens to ignore the will of the people, to seek power regardless of vote count, the entire structure is revealed as brittle, even fragile. So grave is this threat, that the U.S. Senate, whose 100 members cannot agree on the time of day, much less any sort of policy, on Thursday passed by unanimous consent a resolution reaffirming the importance of the peaceful transfer of power to the integrity and viability of our system of government.

Let’s be clear about a few of things.

First, voting by mail has been going on for decades. It is a reliable, safe practice. Instances of voter fraud in this country are incredibly rare, and that holds for vote-by-mail as well as in-person voting.

Second, there is no difference between the mechanisms used for absentee ballot voting and vote-by-mail. It’s all the same.

Third, as residents of Florida, Donald and Melania Trump will both be voting by mail in that state.

Fourth, Donald Trump expects to lose. A candidate who thinks he’s going to win does not cast doubt on the process. He does not refuse to say that he will accept the results of the election. He does not attempt to enlist partisan allies in a conspiracy to steal power.

Fifth, the greater Joe Biden’s vote total, nationally and in each state, the harder it will be for Trump and his allies to steal the election. This is not the year to vote for a third-party candidate. This is not the year to skip voting altogether. The stakes could not be higher.

I am no fan of Mitt Romney, and this past week he didn’t exactly endear himself to me. But he did say something that is worth paraphrasing. In affirming his own commitment to the peaceful transfer of power, he said that the idea, and ideal, of respecting the people’s voice, of surrendering power to a victorious rival, is what separates us from Belarus, from quasi-democracies and nations that use the rhetoric of liberty to mask dictatorship and authoritarianism.

The United States has honored its commitment to this principle for most of its existence. We cannot allow one man’s ego and insatiable appetite for power and profit to undo more than two centuries of history.

Monday Musings: Court Wars

Sometimes I write my Monday posts on Saturday morning. It’s just a convenient time. And so right now I am at my desk, trying to marshal my thoughts, and rein in my emotions.

I am devastated by the death of Supreme Court Justice Ruth Bader Ginsberg. It pains me that her last hours were spent thinking as much about the political chaos that would follow her death as about her family and a momentous life well-lived. Within an hour of her passing, tributes to her stunning career were already being drowned out by the fight over how and when she ought to be replaced. She deserved better.

And so do we, as a nation. I am enraged by the staggering hypocrisy of Mitch McConnell and his Republican colleagues in the Senate. In 2016, after the death of Antonin Scalia, they refused to allow hearings or a vote on Barack Obama’s nominee, Merrick Garland. It’s too close to the election, they said. The new President, whoever that may be, ought to have the opportunity to fill the vacancy. No, it’s not ideal to leave a seat on the Court open for so long, but this principle is worth the risk. Scalia died in March. His seat remained open for more than a year.

We are now forty-five days from another Presidential election. If the Senate were to follow McConnell’s “rule” on allowing new Presidents to choose a Court nominee, we might have to wait a total of five months. But now Republicans say, There is plenty of time for the current occupant of the White House to select a successor. It would be dangerous to leave the seat open for so long. Fucking unbelievable.

And yet, utterly predictable. Because the real problem is that we have allowed the Court to become completely politicized. The judiciary was designed and intended to be the least political branch of our government. It was supposed to be above politics, the institutional referee between the two elected branches. How far we have fallen from that ideal. Just today, a friend asked me if I could think of any other nation on the planet whose selection of judges was more riven by politics than ours. I couldn’t.

Like everything else in our system of government, in our whole society, all matters pertaining to the courts have become hyper-partisan. It is almost impossible to believe this now, but when Scalia’s nomination came to a Senate vote, he was confirmed 98-0. Ginsberg, as liberal as Scalia was conservative, won confirmation 96-3. I doubt we’ll see another vote like that on a Supreme Court Justice in this century.

Conservatives point to Ronald Reagan’s unsuccessful nomination of Robert Bork as the start of the Court’s politicization. They claim that liberal Democrats, opposed to Bork’s ideology, misrepresented his record and vilified him. I remember that fight, which took place during my first semester in graduate school, quite differently. Bork’s very nomination was a provocation. Before becoming a candidate for the Court, Bork was best known as Richard Nixon’s Solicitor General, who, on what became known as the “Saturday Night Massacre,” fired Watergate Special Prosecutor Archibald Cox. He did this after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned in protest rather than carry out Nixon’s order. By the time of his Supreme Court hearings, Bork had long since revealed himself as a man who placed party before country, and as an advocate for unbridled executive power. He had been a villain to the Left for more than a decade. He never should have been nominated.

The fact is, it doesn’t matter who started the trend. It’s here now. And with McConnell’s brazen disregard for Constitutional norms in the case of the Garland nomination, it has been escalated to full-scale political war. If McConnell pushes through a Trump nominee before the election, or during a lame-duck session after it, and if, as polls currently predict, the election brings a Biden victory and a Democratic takeover of the Senate, I expect Democrats to attempt to change the structure of the Court in next year’s Congressional session. The Constitution says nothing about the number of justices who can serve on the Court, and it grants to Congress wide discretion in creating and maintaining all levels of the Federal Judiciary.

The problem with this is, as soon as the Democrats lose control of the Senate, the Republicans can change the composition again. And so on, until the Court becomes a caricature of itself, and one of the bedrock institutions of our republic is destroyed for all time.

One solution would be for Senate Republicans to recognize their own hypocrisy and refuse to vote on a Trump nominee. It would only take four of them, and I wish I believed that among the fifty-three members of the GOP Senate caucus there are four people of integrity. But I don’t.

That leaves few options and little hope for a near-term de-escalation of the Court battles. I am as pessimistic right now about the future of our system of government as I have ever been. Another legacy of this dark era in our history.

And I end this piece as I began it: with regret that the life of Ruth Bader Ginsberg, a gender pioneer, a brilliant jurist, a champion for the dispossessed, the disadvantaged, and the downtrodden, should be obscured by ridiculous and unreasonable political machinations.

We should be better than this. I grieve that we are not.