Category: Constitutional Issues

Sunday Cartoon Blogging – March 31, 2019

Wrongo and Ms. Right saw “What the Constitution Means to Me” on Broadway last night. It’s a riveting and powerful show, good for both your head and heart. The cast is led by Heidi Schreck in an amazing performance. Schreck also wrote the play. She tells her (true) story of earning college money by traveling around the country delivering short speeches on the Constitution and competing in rapid-fire challenges about its amendments.

In the play, she resurrects her teenage self, tracing the effects of the founding document on generations of women, including many in her family. She focuses on the Equal Protection Clause of the 14th Amendment, and the “penumbra” of Amendment 9. She applies these to a few cases, specifically, the Supreme Court case, Castle Rock v. Gonzales.

Schreck plays a recording of Justices Scalia and Breyer debating Castle Rock v. Gonzalez: They focus not on the mother, or her children who were kidnapped and killed by her husband. Or, on the negligence of the local police, who failed to respond to the permanent restraining order she had against her husband, despite the many, many times that Gonzalez called them. Instead, they pedantically debate the meaning of the word “shall.”

It’s a debate about rhetoric, entirely stripped of humanity.

She lost. The Supremes decided that the police did not have an obligation to protect Ms. Gonzalez or her kids. They held that enforcement of the restraining order was not mandatory under Colorado law. See the play if you can.

On to cartoons. Barr’s report isn’t the report you are looking for:

Barr’s report will keep America at odds until we see what Mueller says:

Barr tells us that Donnie’s clean:

Last week, Republicans called for Chair of the House Permanent Select Committee on Intelligence, Rep. Adam Schiff (D-CA), to be removed. Every Republican on the committee was on board for Schiff’s removal. Schiff didn’t take it lying down. He pointed out everything shady and suspicious that Trump & his associates did during the campaign. He closed by saying “But I do not think that conduct, criminal or not, is OK. And the day we do think that’s OK, is the day we will look back and say that is the day that America lost its way.” Watch Schiff’s response here:

Betsy shows her disability:

Trump, king of health care, says the Republicans will sometime in the future, become the party of health care:

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Demographics is Making Us Less Democratic

The Daily Escape:

Sunset at Malin Head, Donegal, Ireland – 2019 photo by jip

There was an article by Phillip Bump in the WaPo (paywalled) “In about 20 years, half the population will live in eight states.  By 2040, 49.5% of our population will be living in the eight most populous states — California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio and Michigan. All are growing significantly faster than the collective population of the remaining 42 states.

Sounds like just an interesting demographic fact until you consider the implications for the US Senate. Matt Yglesias tweets:

When Yglesias says “four” instead of “two” he means the margin in percentage points of the 2020 national vote for president going to the Democrat. His point is that even with a weakened presidential candidate like Trump, it will be a long uphill climb for Democrats to control a majority in the Senate.

Last fall at the Kavanaugh hearings, many pointed out that Senators representing only 45% of voters were able to appoint him to the Supreme Court. Some said it was the first time that a president elected by a minority nominated a Supreme Court Justice who was appointed by a minority in the Senate to decide certain legal questions against the will of the majority of Americans.

And while California has about 68 times the number of people in Wyoming, their votes can cancel each other out in the Senate.

This demographic imbalance is the result of 1787’s “Connecticut Compromise”, which created our two houses of government. This was designed to balance federal power between large and small state populations. Today, equal representation in the Senate is a permanent feature of our system.

After each decennial census, the map of US House districts are redrawn and seats are shifted to states that have gained the most population. That means, leaving aside the gerrymandering issue, each state’s representation in the US House will roughly reflect its share of our total population.

This isn’t the case in the Senate, where the representation of all states is fixed at two Senators apiece. And that can’t be changed, because it’s based on a Constitutional provision (Article V) which establishes that an amendment requires a two-thirds vote of both Houses of Congress and ratification by three-fourths of the states. It also says: “No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” It’s hard to imagine a situation where a small state would agree to give up one of its two Senators to another, larger state.

That was the essence of the Connecticut Compromise. The framers agreed to make the guarantee of equal power in the Senate beyond even the reach of the amendment process. It was a means of protecting the rights of the minority as “minorities” in 1787 were small states, while today, minority has an entirely different meaning.

Changing demographics has implications for the Electoral College as well. Each state’s votes are the sum of their House and Senate representatives with the total number of Electoral votes fixed at 538. If population growth moves representatives from rural states to the big eight in population, their share of votes in the Electoral College become larger as well.

There is a state-based movement to make the Electoral College represent the will of the majority of America’s voters. NPR reports that so far, 11 states have passed legislation that requires their Electoral College electors to vote for whoever wins the national vote total. To be effective, the move would require approval by states representing 270 electoral votes, the same number it takes to win the presidency. So far, they are 98 votes short of that goal.

Colorado appears poised to join as the 12th state. The state legislature passed the bill, and the governor is expected to sign it. New Mexico is considering it. This would be one way of restoring the idea that every vote in the country counts equally.

Wrongo’s pie-in-the-sky dream is that every American voter gets a third vote for a Senator in any other state. Then we could vote for, or against a Senator we wanted to see stay or go. Wrongo’s dream began when Strom Thurmond represented South Carolina, but imagine, being able to vote Lindsey Graham out of office today.

That would be a real masterpiece of one-person, one-vote in America.

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Saturday Soother – January 19, 2019

The Daily Escape:

Snow in Grand Canyon, New Year’s Day, 2019 – photo by AP. Lookout Studio is on the left.

Most of you know that Wrongo has been deeply skeptical of the Russia investigation, but as time has moved forward, we’ve learned quite a bit about Trump and his team’s involvement with Russia. Apparently, he worked hard to get a Trump Tower built. Elsewhere, it is reported that Trump stood to gain $300+ million if the deal went through.

Until now, Trump has denied that any deal was considered while he was running for President. But, Buzzfeed broke news this week:

President Donald Trump directed his longtime attorney Michael Cohen to lie to Congress about negotiations to build a Trump Tower in Moscow, according to two federal law enforcement officials involved in an investigation of the matter.

Trump also supported a plan, set up by Cohen, to visit Russia during the presidential campaign, in order to personally meet President Vladimir Putin and jump-start the tower negotiations. “Make it happen,” the sources said Trump told Cohen.

The article also says: (brackets by Wrongo)

The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents. Cohen then acknowledged those instructions during his interviews with that office [Mueller].

All of this still needs to be confirmed, but IF it’s true, it is without question an impeachable offense. And the Buzzfeed article appeared two days after Trump’s Attorney General-designate William Barr testified to the Senate Judiciary Committee that suborning perjury would be clearly criminal, even if done by a President. Well, Buzzfeed says Trump suborned perjury by asking Michael Cohen to lie about his discussions with Russia about a new Moscow Trump Tower. Marcy Wheeler, the best analyst of the Mueller investigation, notes: (brackets by Wrongo)

Discussing a real estate deal is not, as Trump has repeated, illegal. If that’s all this were about, Trump and Cohen might not have lied about it.

But it’s not. Even before the GRU [Russian intelligence] hacked John Podesta, even before Don Jr told his June 9 visitors that his dad would consider lifting sanctions if he got elected, Michael Cohen let a key Putin deputy know that Trump would be happy to discuss real estate deals that involved both partnering with the GRU and with sanctioned banks. And Putin has been sitting on that receipt ever since.

All of what Wheeler talks about is in the Buzzfeed article, along with her previous reporting.

It’s going to be interesting to hear what Mr. Cohen has to tell Congress when he testifies next month. Telling someone to lie to Congress is obstruction of justice, and it’s why the House drafted articles of impeachment for Richard Nixon in 1974. From Booman:

We can’t have a chief executive who is compromised by a foreign power. That’s a clear and present danger, and it’s even more serious than the possibility that he may have engaged in a criminal conspiracy with them to help him win the office.

Directing someone to lie to Congress is probably next in line…

When Trump won on November 8th 2016, America had no idea of just how bad things might get over the next four years. Wrongo assumed Trump would appoint a few Supreme Court justices, pass a big tax cut for the wealthy, and gut Obamacare.

But, would you have believed that we would be on the precipice of impeachment within two years? Would you have believed that a one-month government shutdown wouldn’t be the biggest news in town?

With all of that to consider, we need to take a break before our heads explode. We need another Saturday Soother. This one is the calm before Sunday’s Snowpocalypse in the Northeast. So, check your snow blower, find your snow shovel, and go and buy all the bread and milk that’s left in the market.

Now, brew up a hot steaming cup of Beanstock’s Mexican Organic coffee ($11.99/12oz.) from Wellfleet MA’s Beanstock Coffee. The roaster says it is sweet to the taste, with dark chocolate and toffee up front, and a soft, lingering lemon finish.

And, cup in hand, settle back and contemplate your local bad weather. It’s time to listen to something different, so here is guitarist Gilad Hekselman performing “Do Re Mi Fa Sol” from his 2018 album “Ask for Chaos”. Hekselman was born in Israel, and lives in New York. He won the Gibson–Montreux Jazz Festival Guitar Competition in 2005, and sounds to Wrongo like the second coming of Bill Frisell. Wrongo isn’t sure we should be asking for chaos. but there we are:

Those who read the Wrongologist in email can view the video here.

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Can Trump Legally Declare a National Emergency?

The Daily Escape:

Waterton NP Alberta, CN -2019 photo by lostcanuck. Wrongo and Ms. Right visited Waterton in 2016, it’s a very beautiful spot.

Wrongo watched part of the two NFL wild card games on Sunday. Vectoring away during commercials, he saw a 2020 campaign ad by Trump on CNN that said in part:

Drugs, terrorists, violent criminals and child traffickers trying to enter our country — but Nancy Pelosi and Chuck Schumer care more about the radical left than keeping us safe. The consequences? Drug deaths. Violent murder. Gang violence. We must not allow it


Wrongo thought, “Wait! What?” Then a “paid for by Trump 2020” note appeared at the bottom of the screen.

Trump is setting us up. He’s now made his shutdown part of the 2020 narrative. And, locking out federal employees is now the official position of the GOP, not simply that of his Trumpitude.

This is part of Trump’s plan to lay the groundwork for his “National Emergency” special powers. The NYT had an interesting article by Bruce Ackerman, a Yale law professor, about the legality of such an action:

While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.

Trump is again hyping the dangers at the border, as he did with the caravan in the weeks leading to the midterm election. Now, his spokespersons, notably Sarah Sanders on FOX and Homeland Security head Kristjen Nielsen, at her private meeting with the House Homeland Security Committee, have falsely claimed that more than 4,000 terrorists were apprehended in 2018 along the southern border.

According to FOX, all of these “terrorists” were apprehended at airports, not at border crossings.

Sanders, Nielsen and Trump are implying that a wall will stop terrorists. There’s no question we need to be vigilant about terrorists and illegal border crossings, but a wall is not going to stop them, or really even deter them. We still need to have to have advanced cameras, drones, and personnel patrolling because determined people will find ways around the wall.

To continue the hype, Trump announced that he will address the nation on Tuesday night before traveling later in the week to the U.S.-Mexico border. Trump plans to address the nation from the Oval Office, in a “first” for his presidency.

All of this would seem ridiculous if not for Trump’s desire to win at any cost.

There is a chilling article by Elizabeth Goitein of the Brennan Center in The Atlantic, in which she says that any president’s ability to evoke these sorts of emergency powers is practically unfettered:

The moment the president declares a “national emergency”—a decision that is entirely within his discretion—he is able to set aside many of the legal limits on his authority.

Goitein goes further:

The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts.

As an example, Trump could seize control of US internet traffic, impeding access to certain websites and ensuring that internet searches return pro-Trump content as the top results.

It isn’t possible for Wrongo to resolve the viewpoints of Elizabeth Goitein and Bruce Ackerman. There is a long history of judicial deference to the executive branch on national security issues. It will ultimately come down to whether the five conservative Supreme Court Justices think they have the power to step in and overrule a president who clearly concocts a fraudulent emergency.

Sorry to scare everyone, but it is absolutely unclear how this will be hashed out by the Supreme Court.

Don’t bet the house on them making the right decision.

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It’s Hard to Swallow Today’s Breaking News

The Daily Escape:

Autumn, Lake Mrzia Vodica, Croatia – photo by lascic

Lots of breaking news today, including Ruth Ginsburg breaking three ribs. Wrongo broke two ribs this summer, so he has some idea of how a geriatric person recovers from this kind of injury. Let’s hope she is able to get back on the job soon.

Robert Mueller is said to be preparing his final report, now that Sessions is out. It seems that the GOP is going to go all in on a cover-up.

Today though, we’ll focus on yet another mass shooting, this time in SoCal. Twelve people have been killed in a bar near Pepperdine University. Apparently, the killer committed suicide. We know that he was a former Marine (2008-2013) who served in Afghanistan for eight months, from November 2010 to June 2011. He was a machine gunner while in the Marines.  He lived with his mother. He legally owned the murder weapon.

Expect to hear more thoughts and prayers, and for good guys to carry guns when they go in a bar.

Oh, wait! One of victims in the bar actually WAS carrying a gun. He was a sheriff responding to the shooting, and was one of the 12 people killed.

For some perspective on mass shootings, Paul Campos at the LGM blog has an interesting chart showing mass shootings in the US by decade:

1950s: 0

1960s: 1 (University of Texas tower shooting)

1970s: 0

1980s: 6

1990s: 6

2000s: 7

2010s: 16

Campos says that 22 of these 36 mass shootings have taken place since 2007. Campos doesn’t include the killer(s) if they were killed or committed suicide during the incident. His source uses eight dead as the definition of a mass shooting.

When you look at the timeline of mass shootings and see just how many of them (50%) have occurred in this decade (which still has two years to go), shouldn’t we be asking what’s changed? We have been living in an increasingly safe era since the peak in violent crime, with the outlier being mass shootings. The overall homicide rate reached its peak in 1992 at 9.8/100,000 and firearm homicides are now down to about 3.5/100,000 nationally.

For a nation of 300 million people, that’s a difference of about 10,000 fewer people dying in gun murders per year compared to where we would be if the rate had held constant.

Some will blame the internet, social media and our increasingly alienated modern society for angry white guys committing more mass murders. The truth is we have no idea why this abomination is happening more frequently. One place where better data would help is knowing what percentage of the population now has access to rapid fire assault weapons with large capacity clips.

We do know that gun ownership is more prevalent than it was in the 1950’s through the 1970’s. We know that there are many people out there with guns. Per capita, the number of guns in the hands of civilians has roughly doubled since 1968, from one gun per every two persons, to one gun per person. Yet, the firearm murder rate is lower.

We haven’t gotten anywhere with gun control since the Clinton presidency. There are few issues in America that we won’t tackle if they continually cause deaths. We don’t allow drinking and driving, and we require that people wear seatbelts. We are trying to blunt the anti-vaxx’ers by now requiring kids to show proof of vaccination before they can attend public school. We’re willing to send the people who screwed up Flint, Michigan’s water system to jail.

But nothing works to restrict the availability and lethality of guns.

The new governor of Colorado, Jared Polis, has a different framing for the gun debate. He talks about limiting “gun violence” not about “common sense gun control”, which is the standard liberal meme when it comes to limiting the Second Amendment.

Maybe a focus on gun violence as opposed to gun control is a better way to create voter support for new restrictions on guns, the kind of restrictions that would help lower the number and lethality, of mass shootings.

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Letter From Russia, Part III

The Daily Escape:

The Assumption Cathedral, Yaroslavl, RU. Originally built in 1210, it was  blown up by the Soviets in 1937 as part of their anti-religion policy. This new cathedral was constructed in 2010 on the same spot. In front is an eternal flame memorializing the soldiers and the workers of WWII.

Wrongo and Ms. Right spent the day in Yaroslavl, Russia. It’s a mid-sized town of about 600k residents, and an important port on the Volga River. The Volga is more than 2,000 miles long, tying the western Russian cities together. Yaroslavl is an ancient city, founded in 1010.

In Yaroslavl, we learned two interesting facts about Russian towns. Any town of size has a fortress that includes a church. In Russia, that space is called a “Kremlin”. Second, despite the collapse of the the Soviet Union, statues of the heroes of the revolution were not taken down. The idea is that young people should understand their history, both the good and the bad. Major streets have kept their revolutionary names as well.

Maybe there is a lesson in that for America.

In visiting both tiny towns and large cities, it quickly becomes evident that the peoples of Russia have suffered immensely over the centuries. They endured long periods of starvation, and their losses in blood and treasure at the hands of both their enemies and their rulers were truly extraordinary:

  • As many as 17 million died under Stalin in the Gulags. At their high point, there were thousands of Gulags across the Soviet Union.
  • In WWII, during the war with Germany, Russia lost 27 million people.
  • During the 400 years of serfdom, millions of serfs died during forced labor. They built the palaces, roads and waterways that remain in use today between Moscow and St. Petersburg.

If history teaches us just one thing about Russia, it is that its people know suffering. They have survived, and in Wrongo’s brief visit, appear to have thrived. Stores are full of product, markets are busy with the purchase of fresh vegetables, meats and fish. New cars are on the streets, theaters are open, and everything looks very clean.

How have a people who have endured so much suffering, succeeded in the modern world? How were they not irretrievably damaged by their multiple tragedies?

How are they so resilient?

Perhaps their legendary winters forge a determination to do whatever is necessary to survive a long, hard fight with limited resources. Perhaps Russia’s long history of invasion and occupation by hostile powers has played a role: Russians have been invaded by the Mongols, the Turks, the Poles, the Swedes, the Germans and the French. Their story is ultimately one of resilience despite tremendous loss of life, repeated destruction of infrastructure, and against long odds.

Another thing is that the people seem to have a profound and deep feeling for their homeland, Mother Russia. That seems to be true, regardless of who is in control in the Kremlin, or which Tsar was in charge at the time.

So they fought and died for the motherland, regardless of who was leading them.

Compare that with America’s resilience. How resilient are we, in the 21st Century? We have never faced invasion, but we have faced attack. On our homeland, we fought a seven-year revolution, and a bloody civil war. We’ve faced natural disasters.

After 9/11, we overreacted to the threat of Islamic extremists by weakening our First Amendment rights with the Patriot Act. We launched wars in Afghanistan and Iraq. But, we didn’t come together as a nation. In fact, 9/11 threw gasoline on the fire of America’s already factionalized politics.

When Japan attacked us at Pearl Harbor in 1941, we came together as a people. There were a few who said we shouldn’t go to war, but the vast majority of our people got behind a global war against fascism. We sent our fathers, brothers and husbands off to war. Women worked in the factories for the war effort. Some were on the front lines with the troops. We rationed butter and sugar.

Our people knew hardship, and pulled together in common cause.

The question is: Will today’s America still pull together in common cause? Do we have the strength of character, the grit, to fight for something larger than ourselves? Could we again sacrifice for what we believe to be the right thing?

Our response to the Great Recession of 2008 showed us that in an American financial crisis, it’s every person for themselves, unless that citizen happens to be a financial institution.

When you think about it, do you still love Lady Liberty enough to fight for her?

To send your kids to fight for her?

And, do you think that we love her as much as Russians seem to love Mother Russia?

 

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Monday Wake-Up Call — Constitution Edition

The Daily Escape:

Spruce Knob, WV at sunrise – 2018 photo by zjustus88

Sept. 17 is Constitution Day, commemorating the signing of the US Constitution 231 years ago, the day that the Constitutional Convention adopted the Constitution as our supreme law.

We sometimes forget that the country was without a Constitution for 11 years after the Declaration of Independence, and for six years after the War of Independence ended. Somehow, we survived.

We also forget that there was plenty of conflict between the founding fathers at the Constitutional Convention. They had vigorous debates about the balance of power between the national and state governments. Two factions emerged: Federalists, who supported the Constitution and a strong central government, and anti-Federalists, who mainly supported strong state governments.

To placate the anti-Federalists and ensure ratification, the Federalists promised to pass a Bill of Rights to protect individual liberty and state sovereignty, which they finally did in 1791, four years after the Constitution was ratified.

Today there’s plenty of discussion about the Constitution, about what’s constitutional, and what’s not, about which of the Supreme Court justices are trampling on the Constitution and which are ripping it to shreds. It seems that there is nothing more important to the Republic than selecting the next Justice, in this case, Brett Kavanaugh.

Joseph Ellis in the WSJ Weekend edition, reminds us that:

Most members of America’s founding generation would have regarded this situation as strange. If you read the debates among the delegates at the Constitutional Convention of 1787, and then read their prescriptions for judicial power in Article III of the Constitution, it becomes clear that the last thing the 39 signers of the document wanted was for the Supreme Court to become supreme.

Ellis says that the founders thought that Congress should be “supreme”, and a majority thought that each branch of government should decide the scope of its own authority. He says that the founders’ had no interest in having the Supreme Court be the ultimate control point for the US government, since it’s our least representative body, and the one farthest removed from the ultimate authority (the People).

More from Ellis:

For most of American history, the Supreme Court only infrequently stepped forward to redefine the political landscape in decisive fashion. The two most conspicuous occasions both involved the great American tragedy of race.

For Ellis, the first of the two most significant cases was Dred Scott v. Sandford (1857), in which the Court tried to resolve the politically unsolvable problem of slavery. The majority argued that the framers of the Constitution clearly regarded slaves as property, and therefore the Missouri Compromise (1819) and the Compromise of 1850 were unconstitutional.

This meant that the federal government had no authority to limit the expansion of slavery in the western territories. Dred Scott deepened the sectional divide that led to the Civil War, and legal scholars and historians have long considered it one of the worst Supreme Court decisions in American history.

In 1954, the Supreme Court, in Brown v. Board of Education landed on the other side of the racial divide, striking down the legal doctrine of “separate but equal” that the justices had upheld as a justification for racial segregation in Plessy v. Ferguson (1896). The Brown decision signaled a crucial shift in the role of the Court, the first step on its way to becoming the dominant branch of the federal government in deciding the direction of domestic policy.

That led to 30 years of liberal decisions for the Court. The liberal agenda expanded the rights of criminal suspects, broadened the definition of free speech and, in Griswold v. Connecticut (1965), discovered a new right to privacy. Building on the right to privacy, the Court affirmed a woman’s right to abortion during the first trimester in Roe v. Wade (1973).

Ellis concludes:

…since Brown we have watched the Supreme Court bend the law in two different directions, landing on one side or the other of the political spectrum based on which political party could command a 5-4 majority. The only difference between the two sides is that liberals are transparent about their political agenda, while conservatives, using originalism to make problematic claims of detachment, are not.

Americans now know that the Supreme Court is biased, partisan, and often makes rulings based on ideology versus law. The word “unconstitutional” has become a catch-all term for whatever we don’t like about our government, or our society. This renders one of the most terrifying and powerful adjectives in American jurisprudence almost meaningless.

TIME TO WAKE UP AMERICA! We should spend Constitution Day trying to become better citizens. Maybe we start by learning our civic history.

The benefit should be clear: Knowledge lets us understand and appreciate nuance.

After all, America might not have many more birthdays left at the rate that we keep polarizing our ideas about the Constitution.

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