US Constitutional Issues – The Wrongologist

Wrongo’s Vacation Report

The Daily Escape:

Footbridge, Magnolia Plantation, Charleston, SC – photo via itstartedoutdoors

Wrongo and Ms. Right are back at the Mansion of Wrong after a 16-day trip to visit siblings. One feature of the trip was that we didn’t watch TV, read newspapers, or visit social media during in the entire visit. We experienced withdrawal, but we felt refreshed by the time we returned home. Highly recommended.

We stayed in three cities, Gettysburg, PA, St. Augustine, FL and Charleston, SC. These cities are a kind of throughline in that they each represent a snapshot of America’s past with slavery, and the efforts of modern-day citizens to place the good and bad of that past into a current context.

Let’s spend a few moments talking about each city. St. Augustine has been a part of the Wrong family history since the early 1970s, when Wrongo’s parents and his sister and her husband moved there. It was founded in 1565 by the Spanish and is the oldest continuously occupied settlement of European origin in the US.

The enslavement of Black people in the Americas is a large part of St. Augustine’s history. The Spanish had no moral issue with using slaves to build the city and its fortifications. For three centuries after its founding in the late 16^th century, most Black residents of St. Augustine were enslaved. Thirty Spanish crown slaves arrived in St. Augustine in 1582 from Cuba. They were sent to carry timber for the constant rebuilding of forts. Around 1672, Spanish royal slaves were transferred from Mexico to work on the building of the masonry fortress, Castillo de San Marcos, which still stands in the center of town.

There is much more information about the role of slaves in St. Augustine here.

In 1670 English colonists established the colony of South Carolina and the town of Charleston (Charles Towne) about 300 miles north of St. Augustine. Almost immediately, slaves began to escape from British Carolina to Florida with the hope of finding freedom with the Spanish. Those who reached St. Augustine were baptized as Catholics but weren’t freed.

In the middle of the 20th century, St. Augustine’s Black residents were still being denied the vote, they were barred from Whites-only public accommodations, and their children forced to attend segregated schools. St. Augustine was like many other towns and cities in the US with racial restrictions. MLK Jr. was arrested in St. Augustine in 1964 while trying to integrate a motel’s restaurant.

On to South Carolina. Despite the aesthetics of the above photo, Magnolia Plantation also has a deep-rooted history in slavery. The major crop of the Plantation was rice, and it was home to many enslaved families from 1850 until the late 20th century. Today, the plantation does a nice job of placing slavery in a modern context through a 45-minute “From Slavery to Freedom” tour where docents speak about the people who were forced to live and work on the property.

The Plantation’s main house was destroyed three times, including once by General Sherman’s troops. Each time it was rebuilt with slave labor.

Charleston’s significance in American history is closely tied to its role as a major slave trading port. During the African slave trade, South Carolina received more slaves than any other mainland colony. As many as 260,000 enslaved Africans entered South Carolina from 1670 to 1808, almost one-half of slaves imported to the US.

Most of those slaves disembarked at Gadsden’s Wharf, located on Charleston’s Cooper River. The wharf complex was built by Christopher Gadsden, a prosperous merchant who is known today for having designed the “Don’t Tread on Me” flag. Gadsden’s Wharf was the largest in North America, able to berth six ships at once and the capacity to hold up to 1,000 slaves on land.

The plantations and an economy based on slavery made Charleston the wealthiest city of the original Thirteen Colonies. In 1770, the city had 11,000 inhabitants (half of them slaves). It was the 4th-largest port in the colonies, after Boston, New York, and Philadelphia.

In 2018, the city formally apologized for its role in the American slave trade. Today the city has an International African American Museum, sited at the original location of Gadsden’s Wharf, now part of an ancestral garden. Black granite walls mark the outline of a former storage house where enslaved humans perished awaiting their transport to the slave market. The walls are emblazoned with lines of Maya Angelou’s poem, “And Still I Rise”:

Today the very idea of Black people’s survival through slavery, racial apartheid and economic oppression being a quintessential part of the American story is being challenged by Conservative politicians throughout the US. Bans or limits on instruction about slavery and systemic racism have been enacted in at least 16 states since 2021. That list includes South Carolina.

But, given that context, Charleston offers an invitation to dialogue and discovery. And there can be no better site for a museum dedicated to that purpose.

Finally, consider Gettysburg, the site of the most famous battle of the US Civil War. The battle was fought from July 1 to July 3, 1863. After Lee’s great victory over the Union army at Chancellorsville, he marched his Army of Northern Virginia into Pennsylvania in late June 1863. On July 1, the advancing Confederates clashed with the Union’s Army of the Potomac, commanded by General George G. Meade, in Gettysburg. The next day saw even heavier fighting, as the Confederates attacked the Federals on both left and right. On July 3, Lee ordered an attack by 15,000 troops on the enemy’s center at Cemetery Ridge. “Pickett’s Charge” eventually failed at the cost of thousands of rebel casualties.

Lee was forced to withdraw toward Virginia on July 4. Following the nearly simultaneous Union victories of July 1863 at Vicksburg, MS and Gettysburg, PA., Grant’s victory in Chattanooga tightened the noose on the Confederacy, opening the door to Sherman’s march to the sea in 1864 and the end of the Confederacy.

The war ended and Lincoln was assassinated. But the effects of slavery remain, as does our seeming inability to leave the divisions of the 1800s behind us. It’s possible to look at the entire history of the postbellum South as a long struggle over whether American Blacks really are equal in the eyes of the White Working Class. This shows in the continuing debate in the South over whether to embrace or resist becoming more like the rest of the country.

NPR has a report on historical markers. There are more than 180,000 of them across the US:

“Across the South, markers honor notable men and notable houses without mentioning the forced, free labor that made both the homes and the men’s wealth possible. NPR found that nearly 70% of markers that mention plantations do not mention slavery.”

That wasn’t true at the Magnolia Plantation on Wrongo’s visit.

NPR’s analysis showed more than 500 markers describe the Confederacy in glowing terms, vilify the Union, falsify the reasons for the war or recast Confederate soldiers as the war’s true heroes. At least 65 markers appear to promote the Lost Cause, which claims that Black people enjoyed being enslaved.

As Faulkner said: “The past is never dead. It’s not even past.”

How we tell the American story will always be subject to an ongoing debate. Despite the reluctance of some in the South to be willing to leaving the past behind, there are plenty of new Southerners who have relocated from the North and West who are trying in hard to be Southern paradigm-shifters.

Great trip.

Update On Book Banning

The Daily Escape:

Ashokan Reservoir, Ulster County, NY – February 2024 photo by Dan Mish

The GOP effort at book banning isn’t going well. DeSantis acts SHOCKED that his punitive censorship laws have resulted in chaos and excessive book banning in Florida public schools. DeSantis knows he went too far. Mr. Never Back Down, is in fact, backing down:

“With objecting – if you go to a school board meeting objecting. If you have a kid in school, okay. But if you’re somebody who doesn’t have a kid in school and you’re gonna object to 100 books? No, I don’t think that’s appropriate. So I think the legislature is interested in limiting what the number of challenges you can do, and maybe making it be contingent on whether you actually have kids in school or not. We just want to make sure we’re not trying to incentivize frivolous objections or any type of games being played.”

But don’t get your hopes up. The Propaganda Professor (PP) takes a look at book banning, riffing on a National Review article “Book Curation is Not Censorship”:

“Curation is the process whereby a venue (library, museum, theater, etc.) decides what products to offer its patrons….But curation means making such decisions…on the basis of such factors as quality, relevance, timeliness, and constraints of space and budget. Those factors for the most part do not figure into with what is happening in Florida, Texas and elsewhere. Books are being pulled just because someone chooses to find them offensive….And those choices aren’t being made autonomously. They’re being made under intense pressure from government bodies and their proxy agitators.”

While denying that they’re really banning books, Right-wingers offer attempts to justify the bans they say that they’re not really doing. They often brand the offending book as “pornographic”. They slap the “pornography” label on anything that makes any vague reference to sex. Another common claim is that the books being attacked are guilty of somehow “indoctrinating” kids into…something. Usually some combination of “liberalism”, “leftism”, “communism” or “anti-Americanism”.

“There are two types of books in particular to which they are eager to award the Indoctrination Trophy. One is anything with a gay or trans character, or that even makes reference to a gay or trans character….Such books, they…warn, are indoctrinating kids into the gay ‘lifestyle’…”

A huge problem is banning books that have too much truth about racism. If you write about the horrors of our shameful past, you can expect to be branded as someone who “hates white people”. One of the books removed for “review” was a biography of baseball legend Roberto Clemente because it mentioned the racism he encountered in baseball. Above all is the complaint that so much literacy will indoctrinate our kids into wokeism or leftism — or whatever FOX says is the equivalent du jour.

Libraries Face Political Pressure

The Daily Escape:

Mt. Mansfield, Stowe, VT – February 2024 photo by Micheline Lemay

“If you want to get laid, go to college. If you want an education, go to the library.” – Frank Zappa

Rebecca Gordon has an article at Salon about the growing attacks on public libraries by America’s Right:

“You might think that an apparently harmless public good like a library would have no enemies. But in the age of Trump…there turn out to be many. Some are “astroturf” outfits like the not-even-a-little-bit-ironically named Moms for Liberty. M4L, as they abbreviate their name, was founded in 2021 in Florida, originally to challenge Covid-era mask mandates in public schools. They’ve since expanded their definition of “liberty” to include pursuing the creation of public school libraries that are free of any mention of the existence of LGBTQ people, gender variations, sex, or racism.”

M4L supported Florida Governor Ron DeSantis’s 2022 and 2023 “Don’t Say Gay” laws, which outlaw any discussion of sexual orientation or gender identity in public schools, while making it extremely easy for parents or other citizens to demand the removal of books they find objectionable from school libraries.

Copycat laws have since been passed in multiple states, including Tennessee where a school district banned MAUS, the bestselling Pulitzer Prize-winning graphic novel about the Holocaust, from its curriculum, thanks to eight (now-forbidden) words and a drawing of a naked mouse.

One Florida school district went further. According to CBS News, it also banned:

“Merriam-Webster’s Elementary Dictionary…‘The Bible Book,’ ‘The World Book Encyclopedia of People and Places,’ ‘Guinness Book of World Records, 2000,’ ‘Webster’s Dictionary and Thesaurus for Students,’ and ‘The American Heritage Children’s Dictionary.’”

You never know what is lurking in a dictionary that might turn your kid gay.

Contemporary book-banning efforts now extend beyond school libraries, where reasonable people might differ about which books should be available to children, to public libraries, where book banners are seeking to keep adults from reading whatever they choose.

EveryLibrary, an anti-censorship organization, keeps a running total of legislation that is concerning in state legislatures that relates to controlling libraries and their librarians. Their current list of such bills, highlights 93 pieces of legislation moving through legislatures in 24 states.

Saturday’s Hot Links

The Daily Escape:

Grand Canyon, South Kabab Trail, AZ – February 2024 photo by Lynsey Schroeder

We’ve made it to Super Bowl weekend, but not without bumps and a few bruises caused by this week’s edition of America’s dysfunctional politics. Today, let’s do a lightning round of mostly bad and a few good stories from the past week.

First up, Special counsel Robert Hur has released his report declining charges against Biden in his classified documents case but finding he did willfully retain information. In the report, Hur goes out of his way to paint a damning portrait of the President. He cites several examples of memory lapses and describes Biden as a “well-meaning, elderly man with a poor memory.”

Hur’s message boils down to this: a well-intentioned, forgetful old man took the wrong stuff home from work. He “willfully retained” it, but we’re gonna let him go. Not because he’s president, but because we’re nice guys. Sotto voce: (because we probably couldn’t prove criminal intent). Maybe the DOJ felt Trump needed a win after 91 felonies.

There’s a pattern to the DOJ’s appointments of special counsels:

What’s amazing is that Biden now faces more heat from the media for being found innocent than Trump will if he’s found guilty. The multiple questions by reporters at Thursday night’s Biden press conference showed just how difficult it is for America’s media to focus on what’s important. The White House Press Corps should collectively be ashamed of its behavior during the press conference. They behaved like a pack of rabid hyenas.

Why the horrible behavior toward Biden, and the deference to Trump? Mainstream media outlets have long been obsessed with Biden’s age. They have not, however, given the same attention to Trump’s age or to his gaffes and incoherent comments. It’s sad that we’re in a situation where Trump’s multiple indictments seemingly are politically advantageous to him, and Biden’s exoneration is politically terrible for him.

Given the media’s obsession, it won’t matter how well Biden does in public. If he makes one mental slip it becomes confirmation that the biggest concern about him is true. He can’t be perfect every day for the next nine months. Nobody can.

Next, Reuters reported that the Hawaii Supreme Court has upheld the state’s laws that generally prohibit carrying a firearm in public without a license. In the process, they criticized the US Supreme Court’s rulings that have expanded gun rights:

“The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.”

This is a direct attack on the US Supreme Court’s 2022 ruling in “New York State Rifle & Pistol Association v. Bruen” which recognized for the first time that the Second Amendment protects an individual’s right to carry a handgun in public for self-defense. More:

“The Government’s interest in reducing firearms violence through reasonable weapons regulations has preserved peace and tranquility in Hawai’i. A free-wheeling right to carry guns in public degrades other constitutional rights….The right to life, liberty, and the pursuit of happiness encompasses a right to freely and safely move in peace and tranquility. Laws regulating firearms in public preserve…liberty and advance these rights….There is no individual right to keep and bear arms under Article I, Section 17. So there is no constitutional right to carry a firearm in public for possible self-defense.”

Hawaii for the win!

Third, on February 9, 1964, 60 years ago, Ed Sullivan hosted the Beatles on his show. If you’re a member of the baby boomer generation, chances are you were sitting in front of a television that night. Seventy-three million Americans joined in to watch something they had never seen before. You can wake up old memories by watching “I Wanna Hold Your Hand” here.

Fourth, after blocking the border bill on Wednesday, Senate Republicans allowed a clean funding bill for Ukraine, Israel, and Taiwan to advance toward a vote. In the meantime, Ukraine is close to losing Avdeevka, a major eastern city to the Russians.

Fifth, disinformation watchdog groups have uncovered a covert, coordinated Russian effort to spread disinformation via Telegram and X/Twitter across the Texas border about a US Civil War:

“The disinformation campaign…expanded after Russian politicians spoke out when the US Supreme Court lifted an order by a lower court and sided with….Biden’s administration to rule that US Border Patrol officers were allowed to take down razor-wire fencing erected by the Texas National Guard…..There also appear to be a number of Russian accounts on X posing as pro-Texas groups, in another echo of 2016 when an account that claimed to be run by Tennessee Republicans was outed as Russian-run.

One of the suspect accounts is the Texan Independence Supporters, which has already been called out for spelling errors and constantly referencing Ukraine and Russia. On Sunday, the account claimed “we are a Texan organization, not Russian. We can definitely assure ya’ll [sic] that we’re not Russian.”

Another reminder that the internet is a cesspool.

Enough! It’s time for our Saturday Soother, where we stop obsessively scrolling through our news feeds and take a few moments to chillax and gather ourselves for another week hearing all the reasons why it’s necessary to continue bombing Palestinians.

Here at the Mansion of Wrong we’re preparing to host a small Super Bowl viewing party with as many high-calorie, high-fat appetizers as we can eat.

To help you relax, find a spot near a south-facing window and watch and listen to George Gershwin’s “Rhapsody in Blue”. February 12^th is the 100^th anniversary of this work that combines jazz and classical origins into an iconic American work. Here it is performed by Leonard Bernstein conducting the New York Philharmonic while playing solo piano in 1976 in Frankfurt, Germany:

(hat tip to Marguerite S.)

Wrongo was struck by how Bernstein was able to conduct and play. Maybe multi-tasking IS possible.

Will Texas Disregard The Supreme Court?

The Daily Escape:

Snow Canyon, UT – October 2023 photo by Cathy Mortensen

(We will not publish a Saturday Soother this week, but there will be a Sunday cartoons column)

In doing research for this week’s Fascism in America column, Wrongo came across this from Rick Perlstein:

“And I think…what…we have in the United States: a very weak political establishment, but a civil society underneath it that’s looking for a kind of expression. And the expression that it’s taking is pathological….Because the party system is unable to answer the demands they have.”

A weak political establishment means that Congress can barely get out of its own way. Our political institutions have become ineffectual. The current Congress is setting records for inaction:

“The 118th Congress is on track to be one of the most unproductive in modern history, with just a couple dozen laws on the books at the close of 2023…”

This void is being filled by judicial or political opportunists. This is even true when the US Supreme Court hands down a decision that Republicans don’t like. From the Texas Tribune:

“The US Supreme Court…ordered Texas to allow federal border agents access to the state’s border with Mexico, where Texas officials have deployed miles of concertina wire…..For now, it effectively upholds longstanding court rulings that the Constitution gives the federal government sole responsibility for border security.”

Last October, Texas sued the federal government after Border Patrol agents cut some of the wire strung along the Rio Grande, arguing the Department of Homeland Security destroyed the state’s property and interfered in Texas’ border security efforts. But in a 5-4 decision the Supreme Court vacated a previous injunction from the 5th US Circuit Court of Appeals that prevented Border Patrol agents from cutting the wire.

So what does a sovereign state like Texas do in response? It’s governor Greg Abbott, issued a “Statement on Texas’ Constitutional Right to Self-Defense,” following calls by numerous Texas Republicans to resist the high court’s order. Abbott’s statement says that he had invoked his state’s “constitutional authority to defend and protect itself” which “is the supreme law of the land and supersedes any federal statutes to the contrary.”

OK, is it secession time anybody?

Houston Public Media quotes Charles “Rocky” Rhodes, teacher of constitutional law at South Texas College of Law in Houston:

“That’s a real blow to our separation of powers and the way that this country has governed itself….There have been situations in the past where governors and state officials have defied the Supreme Court, but that has led to constitutional crises.”

Teddy Rave, at the University of Texas at Austin School of Law, another constitutional law expert, described the calls to defy the high court’s order as unconstitutional and dangerous:

“The last time that I’m aware of that this kind of defiance actually happened was resistance to desegregation orders after Brown v. Board of Education….The Supreme Court didn’t take it kindly and issued a unanimous decision in Cooper v. Aaron explaining that states need to follow its constitutional rulings.”

But since it’s Texas, won’t the Supremes give the Republican governor a hall pass to run amuck over the Constitution? Maybe so, maybe no. The decision was 5-4, meaning that two of the six conservative Supreme Court justices said Abbott had to comply. Could one switch sides? Certainly.

What can Biden do if Abbott refuses to comply with SCOTUS’s decision? He could federalize the Texas National Guard, which is what happened in Arkansas in 1957, when the then-governor Faubus tried to defy court orders allowing Black students to attend white schools in Little Rock.

Much like Abbott, Faubus’s fight was politically motivated. Faubus used the Arkansas Guard to keep blacks out of Central High School largely because he was frustrated by his political opponents’ success in using segregationist rhetoric to whip up support with white voters.

That eventually led President Eisenhower to federalize the Arkansas National Guard to effectively remove them from Faubus’s control. Eisenhower then sent the 101st Airborne Division to Arkansas to protect the black students and enforce the federal court order. The Arkansas National Guard later took over those protection duties, and the 101^st Airborne returned to their base.

There seems to be a growing movement in Texas to fight the SCOTUS decision. A Texas nationalist urged Abbott to militarize the Texas State Guard if Biden federalizes the Texas National Guard. The Texas State Guard cannot be federalized. It has about 1,900 personnel, substantially smaller than the roughly 23,000 members of the Texas National Guard, but Abbott could attempt to beef up its headcount.

The Hill is reporting that Trump has urged states to deploy National Guard troops to Texas in support of Abbott. Various Right-wing twitter accounts are reporting that 25 Republican states have signed a statement supporting Texas against the Supreme Court. It’s not certain as Wrongo writes this is if these reports are true, but a presidential candidate and the governors of several states challenging the federal government seems an awful lot like the beginning of an insurrection.

Their joint statement isn’t in support of Texas, it’s in support of treason. This is what America has come to. It’s also symptomatic of the Supreme Court’s inability to check radical Trump-placed judges in lower courts who issue rulings with devastating consequences for democracy and human rights. States have no constitutional prerogative to nullify federal law. This principle was established during the nullification crisis of the 1830s and the Southern resistance to desegregation during the Civil Rights era. Nor, under the Constitution’s supremacy clause, can states interfere with the lawful exercise of federal authority. This rule is one of the oldest and most entrenched in all of our Constitutional law.

We often talk about Constitutional crises, and this could easily become one if Abbott and his enablers try to limit by force the US Border Patrol’s access in the upcoming days.

It’s also a test for Biden in an election year. Will he have to put down another insurrection by Republicans? If he does, what will be the political fallout?

Stay tuned.

The Colorado Case

The Daily Escape:

Squam Lake, NH – December 2023 photo by Robert John Kozlow

”If you aren’t paying attention to the courts, you aren’t paying attention to democracy”. – Mark E. Elias

The Colorado Supreme Court’s ruling that Trump is disqualified from appearing on the state’s presidential primary ballot because he engaged in insurrection was a bombshell. The plaintiffs included four Republican voters and officials, and two Independents. The organization bringing and managing the lawsuit was CREW and its chief attorney, Marc Elias, quoted above.

Some people are saying that it doesn’t seem right to toss him off of the ballot without a conviction. At issue is whether Trump is such a danger to the country that he’s ineligible to be a candidate at all, and the Colorado Court’s reasoning for this seems very tight. It’s not an interpretation about his rhetoric or an evaluation of his political extremism. It’s solely a determination of whether he took an oath to protect the Constitution, and then fomented an insurrection against the government. And although the verdict was 4-3, all seven judges agreed that Trump had fomented insurrection.

The Court found that he’s ineligible. Regarding the “he must be convicted to be ineligible” argument: The criminal cases against Trump that are wending their way through the courts are varied in their accusations. None of them were brought solely or even primarily to prevent Trump from being elected president, although the Colorado case was. The others charge real crimes. The importance of those cases transcends the individual who committed them. A failure to bring them would set a precedent that we as a country think these behaviors permissible by a future president.

As for letting the people decide about Trump, we did that already. Biden got seven million more votes than Trump. Yet Trump’s still spouting the Big Lie that the election was stolen. Even after 60 court cases, Trump couldn’t prove there was any election fraud. Conservative Judge Luttig says that the 14th Amendment isn’t about removing someone from qualifying for office. Rather it’s about meeting a baseline qualification in order to be considered a QUALIFIED candidate.

There’s also an argument on the Right that Trump shouldn’t be in court at all. But we have a Justice system and in the Colorado case, the legal process was followed. The Court didn’t take any shortcuts; no extraordinary maneuvers were made.

Jon V Last asks why Republicans were on one side of the law in 2020 and on a different side today: (brackets by Wrongo)

“So ask yourself this: All throughout December 2020, everyone insisted that, no matter how foolish or baseless President Trump’s claims might seem, he was entitled to pursue the legal process vigorously to its end.

Why is that not true in this case? Why is it that Trump…[in 2020 was] entitled to have his day in court, but the forces [today] looking to apply different laws to a different end are not?”

Last reminds us that many of the same people who insisted that Trump could pursue all available legal remedies in 2020 wanted a result that would keep him in power. Now, they’re outraged that the people in state of Colorado also pursued legal remedies and won a result that might keep him from returning to power. There’s more from Jon Last. Those who are complaining about the result in Colorado are complaining not about the legal process, but the legal result:

“Have you ever noticed how, whenever Trump does something terrible, there is always an argument that holding him accountable can only help him?

You can’t impeach him in 2020, because it’ll just make him stronger.

You can’t impeach him in 2021, because you’ll turn him into a martyr.

You can’t raid Mar-a-Lago to take back classified documents because you’ll rile up his base.

/snip/

There is a…..helplessness to that thinking: A wicked man does immoral and illegal things—and society’s reaction is to say that we must indulge his depredations, because if we tried to hold him accountable then he would become even worse.

Is there any other aspect of life in which Americans take that view?

That’s not how parents deal with children.

It’s not how regulatory agencies deal with corporations.

And it’s not how the justice system deals with criminals.”

From Robert Hubbell: (emphasis by Wrongo)

“Every hesitation, reservation, and exhortation to ‘make an exception’ because of potential violence or political chaos is an invitation to abandon the Constitution. We do so at our grave peril and possibly for the first, last, and only time—because if we set our great charter aside once, there is no logical stopping point for setting it aside again when it serves the pleasure of a president who views the Constitution as an obstacle rather than a safeguard.”

The Colorado Supreme Court’s decision to ban Donald Trump from the state’s primary ballot for engaging in insurrection is probably on its way to the US Supreme Court. Wrongo isn’t a lawyer, so you should look elsewhere for a discussion of the finer points of the law in this case, and he has no confidence that the Supremes will decide against Trump.

But Wrongo wants to address one item, the question of whether a candidate should be tried while running for office. Just the Mar-a-Lago charges of mishandling highly classified information and then obstructing their return makes it clear that he should be tried regardless of his candidacy. The government needed to secure the secret documents Trump had stashed all over his club. Trump thwarted those efforts. And the case was developed before Trump declared himself as a candidate for 2024.

A thought experiment: Let’s imagine that Robert E. Lee or Jefferson Davis had run for US president in 1868. Either of them could probably win a solid South and be competitive in several border states. Making sure that they didn’t win at the ballot box what they couldn’t on the battlefield is why Clause 3 was included in the 14^th Amendment in July, 1868.

Would supporters of Lee or Davis have complained that they were ineligible for public office? Certainly! But, too bad. Insurrection and rebellion (still) have consequences. And nobody said that they had to be convicted before being ineligible.

When a president of the US loses an election and attempts to stay in power through violence, there really is no way to deal with it that doesn’t have a political component. But that means nothing to the merits of the case. Should we prosecute it only to the point that the ex-president decides to run again, and then drop it?

The whole Republican “let the voters decide” talking point was trotted out after the Colorado decision. It’s hilarious. We did that. We did let the voters decide. Biden won. And Trump refused to accept the results and sent a violent mob to overturn it. That’s the whole point of this case. We must apply the Constitution and the rule of law to Trump in the same way it would be applied to any other citizen.

Whatever lies ahead, let’s not underestimate the significance of the Colorado Court findings. They will figure prominently in the outcome in 2024. Our job is to fight for the soul of democracy and for a free and responsible government by popular consent.

Let’s close with a Christmas tune that is new to Wrongo: The Tractors perform their 2009 hit “The Santa Claus Boogie”, from their second album, “Have Yourself a Tractors Christmas”. The band no longer exists, as several of the members have died:

The Three University Presidents Messed Up. Or Did They?

The Daily Escape:

Wild surf, Shore Acres SP, OR – December 2020 photo by Alan Nyri Photography

Instead of a soothing Saturday, Wrongo has decided to wade into the hot steaming pile that is the controversy over whether the presidents of various prestige universities are sufficiently anti-genocide. What they said at the House hearings has raised a chorus of voices who think that the leadership at Harvard, MIT and UPenn just aren’t anti-genocide enough.

From Bloomberg’s Noah Feldman:

“The lowlight of the House hearings on campus antisemitism…came when Congresswoman Elise Stefanik (R-NY) asked the presidents of Harvard, MIT, and the University of Pennsylvania whether it would be bullying and harassment if someone on campus called for a genocide of Jews. The presidents’ answers — that it depended on context — landed about as badly as it could have. Stefanik, a Trumpist Republican election denier, browbeat them and called it “unacceptable.”

Feldman is a law professor at Harvard. He went on to say:

“The core idea of First Amendment freedom is that the expression of ideas should not be punished because doing so would make it harder, not easier, to find the truth. That freedom extends to the most hateful ideas imaginable, including advocacy of racism, antisemitism, and yes, genocide.”

Wrongo isn’t a lawyer and this isn’t a court or a classroom, so what follows is his take on this matter.

Can speech be constrained? In 1969, the Supreme Court protected a Ku Klux Klan member’s speech and created the “imminent danger” test to determine on what grounds speech can be limited, saying in Brandenburg v. Ohio that:

“The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”

Speech promoting violation of the law may only be restricted when it poses an imminent danger of unlawful action, where the speaker has the intention to incite such action, and there is the likelihood that this will be the consequence of that speech.

In 2017, the Court affirmed this in a unanimous decision on Matal v. Tam. The issue was about government prohibiting the registration of trademarks that are “racially disparaging”. Effectively, the Supreme Court unanimously reaffirmed that there is no “hate speech” exception to the First Amendment. Such speech can be prohibited when the very utterances inflict injury or tend to incite an immediate breach of the peace.

There is plenty of case law on the First Amendment out there to read or about hate speech if you prefer to do your own research. From Wikipedia:

“In the 1980s and 1990s, more than 350…universities adopted “speech codes” regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment.”

So, while University presidents may sound lawyer-like when asked if “calling for genocide of Jews” should be prohibited, think about the long history of case law that says there are few limits on hate speech that do not result in action intended to produce harm. Also think about the losing streak these universities have been on when they have tried to restrict speech in the past.

As it happens, the three presidents were accurately describing their universities’ rules, which do depend on context. Yascha Mounk in The Atlantic had this to say:

“In a narrow, technical sense, the three presidents were correct to state that their current policies would probably not penalize offensive political speech. In a more substantive sense, universities should defend a very broad definition of academic freedom, one that shields students and faculty members from punishment for expressing a political opinion, no matter how abhorrent.”

Mounk goes on to say that the university presidents were disingenuous when they claimed that their response to anti-Semitism on campus was hamstrung by a commitment to free speech. Recent history at all three institutions shows that their rules about free speech are unevenly applied. So the problem with their answers wasn’t about making a judgement call about calls for genocide.

We’re stepping into muddy waters here. When students say: “From the river to the sea. Palestine will soon be free” they’re using a political slogan that on its face is aspirational. While some may hear that and say it implies genocide of Jews, it should be protected speech. It’s stupid and ignorant, but 100% protected. Widening out our view, blaming all Jews for Netanyahu’s excesses or blaming all Palestinians for the atrocities of Hamas is wrong but it’s still protected speech.

People like Stefanik are too high on their own agenda to appreciate the distinction.

Still, it’s true that many (most? all?) universities have become hypocritical. There are plenty of examples of professors being expelled, or outside speakers being cancelled because the administration doesn’t care for the viewpoints being expressed.

The question of exactly when political/hate speech becomes sufficiently threatening and specific toward a given individual or groups so as to constitute legally (and by extension administratively) a violation of a university’s code of conduct is, not surprisingly, a massive gray area. On Thursday a man saying “Free Palestine” fired shots at a synagogue near Albany NY. Thankfully, nobody was harmed. He wasn’t on campus and he did back his words with a serious threat, so he was arrested.

The university presidents failed to be clear. The US case law and the school’s codes of conduct are sufficiently difficult to adjudicate on a hypothetical basis. These three presidents should learn that first, the US Congress isn’t the academy. Second, they should admit they are fuzzy thinkers about free speech at their institutions. Third, they should develop better codes of conduct.

Let’s give the last word to Feldman:

“Free-speech nuance is something to be proud of, not something to condemn.”

A final thought. Stefanik’s gotcha game with yes/no answers to complex questions shouldn’t be the way the game is played, but for now it is. Many Republicans think that colleges and universities deserve specific blame for the liberal political views of young Americans. It has become an article of faith on the right despite little supporting evidence that colleges are turning young people into liberals. Stefanik is a willing tool of this viewpoint.

On to our Saturday Soother. We’ve had snow overnight for the past two days on the Fields of Wrong. Still, it’s expected to be around 60° on Sunday. Given our uneven weather, the arborist isn’t coming here until the middle of February.

Let’s get comfortable in a big chair near a window. Now, try to let go of the arguments about the “people we hate and I want to talk about them” and empty our minds of complicated ideas, even if they are foundational to our democratic experiment.

Let’s listen to the Academy of St. Martin-in-the-Fields Chamber Ensemble perform Maurice Ravel’s “Introduction and Allegro for harp, flute, clarinet and string quartet”. He composed this work in 1905 and it was first performed in 1907.

They Have No Plan Except To Fight Each Other

The Daily Escape:

Nauset Beach, Orleans, MA – October 2023 iPhone photo by Wrongo

It’s already been a long year…and there are still 3 months left! Two issues dominated this week: the Hamas war on Israel and the Republican intramurals in the House.

Let’s start with the Republicans. Semafor reports that Rep. Steve Scalise (R-LA) gave up on his quest to become Speaker even though he had been nominated by his caucus as their candidate:

“Scalise withdrew himself from the speaker’s race just one day after colleagues narrowly nominated him for the job, as it became clear he lacked the 217 votes necessary to secure the chair. But there are serious doubts that Rep. Jim Jordan (R-OH), Scalise’s top rival, can pull together the support necessary for a win — in part due to the bad blood over his contest against Scalise.”

This isn’t a time for Republican arm wrestling. The country and the world need attention. As AB Stoddard says at the Bulwark:

“THE REPUBLICANS WHO CONTROL the House of Representatives cannot respond to a new war waged against Israel. They have rejected new aid to support Ukraine in its defense against the Russian invasion. They have no plan to keep the government from shutting down on November 17 when funding next runs dry.”

Right now, there’s no path forward. While many things in this world are broken, this isn’t a case of American politics being “broken”. If as many pundits say, American politics are broken, we’d have seen things just like this when Democrats controlled the House. But they didn’t. What’s broken is the Republican Party.

A few House Republicans have suggested that their only choice might be to strike a bargain with Democrats. But behind closed doors, there hasn’t been a real effort to hatch a bipartisan deal, writes Semafor’s Kadia Goba: (brackets by Wrongo)

“I don’t think there has been legitimate outreach….Sure, those members talk to the press, but not to Hakeem Jeffries [the Democrats’ Majority Leader] or leadership.”

The potentially disastrous consequences of a broken House of Representatives are real, and some Republicans understand that. GOP Rep. Michael McCaul (R-TX) said the following after Scalise withdrew his name from consideration:

“We are living in a dangerous world, the world’s on fire. Our adversaries are watching what we do — and quite frankly, they like it. I see a lot of threats out there. One of the biggest threats I see is in the [GOP caucus] room, because we can’t unify as a conference and put the speaker in the chair…”

Brian Tyler Cohen, who hosts the podcast No Lie with Brian Tyler Cohen, summed up where the GOP is at with his post on Xitter:

“The fact that ALL Republicans would rather fight over Scalise (who attended a neo-Nazi event) or Jordan (who allegedly covered up rampant sexual abuse) rather than simply work with Democrats to elect a Speaker says it all.”

There are two possible paths forward: Either the Republicans unite behind one candidate for Speaker, or they accept that it will take some Democratic votes to elect a bipartisan candidate. “Bipartisan” is a dirty word among many House Republicans. They have broken the House and have zero intent to fix it.

They must be stopped before they break us all.

The murderous rampage by Hamas last weekend against Israeli civilians and Israel’s sharp response will reverberate for years to come. Eric Levitz wrote in New York Magazine:

“This weekend in Israel, a far-right Islamist group perpetrated the largest mass killing of Jews since the Holocaust, murdering entire families, including babies…and slaughtering 260 concertgoers. More than 1,000 Israelis were killed in all, and over 100 others taken hostage.

Israel’s far-right government predictably responded by choking off all food, electricity, and fuel to Gaza’s 2 million residents and then preparing a military assault more untempered by concern for civilian casualties than ever before.”

The Israeli Ministry of Defense just notified the UN that Palestinians living in Gaza City should evacuate to the southern part of the Gaza Strip. But more than 1 million Palestinians live in this area. How is it possible for so many people to move, even if they had months to do it?

If you are a member of the center-left, It is difficult to see any positive influence on this situation. It shouldn’t be a question of whether you’re for Israel or against it. Terrorism directed at civilians is abhorrent regardless of who’s doing it.

And here at home, conservative pundits exploited Hamas’ attack to fearmonger about immigrants in America. Several right-wing media figures have baselessly warned that Hamas or other “sleeper cells” are lying in wait to attack major American cities, calling October 13 “Day of Jihad”. They also used this lie against American Muslims after 9/11.

What’s happening now between Israel and Hamas makes you want to throw up your hands in despair. It’s impossible to think of or see a solution that can satisfy all sides. Despite that, we need to take a break from so much frustration. We need our Saturday Soother. We need to stiffen our spines for what will be yet another week of horror and nonsense.

Here on Cape Cod, the weather is seasonably crisp, so we will be wearing jackets to today’s Wellfleet Oysterfest. Later, we’ll go to the beach to watch the sunset that is coming earlier every day.

To meditate for a few moments on the Hamas/Israel war, grab a comfy chair and listen to John Lennon’s “Imagine” from his 1971 album of the same name. Released during the heart of the Vietnam War, Lennon asks us to envision a world of peace and unity. “Nothing to kill or die for And no religion too”:

Sample Lyric:

Imagine there’s no countries
It isn’t hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace

You may say I’m a dreamer
But I’m not the only one
I hope someday you’ll join us
And the world will be as one

Trump Could Be President Even While Serving Time

The Daily Escape:

First fall foliage, Cox Brook, Northfield Falls, VT – September 2023 photo by John H. Knox

First, although we may know if Trump has been convicted prior to the 2024 election, it’s highly unlikely that he would be serving time by then, because his convictions (if any) will be appealed. The appeal process will take us well beyond when the Electoral College votes are counted in DC.

Second, The Constitution (before it was amended) contains just three requirements to become president: the person must be a natural-born citizen of the US, 35 years or older and a resident of the US for at least 14 years. That’s it.

In 1868, the 14^th Amendment added Section 3 of the Fourteenth Amendment to the original text that:

“no person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

UCLA law professor Richard L. Hasen, a leading expert on election law, told CNN that Trump has a path to serving as president if he wins the election in 2024: (emphasis by Wrongo)

“The Constitution has very few requirements to serve as President….It does not bar anyone indicted, or convicted, or even serving jail time, from running as president and winning the presidency,”

And while some states prohibit felons from running for state and local office, those laws do not apply to federal elections. More from Hasen, on whether a president may serve from prison.

“How someone would serve as president from prison is a happily untested question…”

If Trump were in jail and prevented by law from leaving jail while his sentence was carried out, that would make running the government impossible. It wouldn’t necessarily prohibit him from serving as president from a cell, at least until he could pardon himself, another untested loophole.

If he tried to pardon himself, or to commute his own sentence, we’d wind up at the Supreme Court. From the NYT:

“Either action would be an extraordinary assertion of presidential power, and the Supreme Court would be the final arbiter of whether a “self-pardon” was constitutional.”

Trump would certainly sue to be released from jail, saying (correctly) that imprisonment prevented him from fulfilling his Constitutional obligations as president. Trump’s lawyers would argue that keeping a duly elected president in prison would be an infringement by the judicial branch on the operations of the executive branch. Again off to the Supremes we’d go.

So time for a few brief reminders: Trump faces no significant opposition to winning the 2024 Republican presidential nomination. Plan A among those who really don’t want Trump to win is to say:

“…he will lose in the general election.”

And there’s no Plan B. So, what will your options be if he wins? In general, your options are: Knuckling under, taking part in political violence, or leaving the country. And understand that, regardless of how submissive you are, the number of people who will die in police custody or while “resisting” will go way up. Let’s take your options one at a time:

Leaving the country is something only rich people can do and it wouldn’t dislodge Trump. It will make him more secure.
Political violence is personally risky. It requires moral compromise that makes our regular politics look almost pristine. And unless it’s large and well organized, it will fail.
Knuckling under to tyranny will probably be the response of most Americans, even though most would say that’s incompatible with their conscience.

But all that said, Ukraine’s limited success against a superpower shows that using today’s technology makes it relatively easy to hold large swaths of a country despite the other side’s having a much stronger military.

Wrongo thinks that after a Trump win in 2024, US citizens will have to think seriously about how to handle life under an authoritarian regime. Trump will start out with a soft form of authoritarianism. But later? Who knows what it becomes. A lot of people around the world live under authoritarian regimes, so while it’s awful, it’s also survivable for most people.

And think twice about resistance. As a thought experiment, list out the historical examples of a citizenry that successfully resisted a fascist takeover once the fascists had a firm grip on the judiciary and half of the legislatures.

America has one great shining example of what not to do when Bush v. Gore was decided in 2000. No Democrat (looking at you Bill Clinton!) told the Supremes to fuck off. Even Gore didn’t say “just keep on counting” in Florida. Instead, he crumbled. In a democracy, no court should ever tell the political branch to stop counting votes.

That election was stolen, but Democrats collectively just let it happen. Worse, two years later almost all of the Democrats in Congress voted for Bush’s nasty authoritarian terror bills and a war to avenge 9/11.

Wouldn’t it be much better this time around to make sure Trump doesn’t get the votes of any of your friends, family or neighbors? And better yet, that you get most of them out to vote?

Please don’t plan on sitting back and waiting for a conviction to deliver us from Trump. Why is it in the DNA of Democrats to keep looking for some external solution to our political problem?

Wrongo is an elderly white, married, upper-middle class male living in a Blue state. He’s going to be fine no matter what. He’ll worry about his kids and grandkids, but personally, Wrongo has nothing to worry about. His taxes may even go down again.

But he plans to resist, no matter what.

July 4, 2023

The Daily Escape:

Kilauea Caldera showing a blackened lava lake, Hawaii Volcanoes NP – June 2023 photo by J. Wei for the NPS

Kilauea stopped erupting on June 19, but the threat of another eruption is always present. That could be a metaphor for America in 2023: We could erupt at any moment.

The 1960s were an optimistic time. There were demonstrations for civil rights and against the Vietnam War. There was police violence against the demonstrators, and assassinations of JFK and MLK. But a throughline of those times was a belief that righteous change was possible.

Wrongo graduated from Georgetown in 1966. His specialty was American colonial history. Those also were times of optimism, and there also were factions and different priorities and beliefs throughout the land.

Back in the 18^th century, we overcame our differences, declared our independence, and formed a nation.

Now, 247 years after our revolution, it seems that staying united is difficult, if not impossible. Today, facts are fungible, and so is the truth. As Wrongo stated in his last column, about one third of Americans fail to vote. They are apathetic because they can’t see what would change if they did vote.

Having one third of Americans regularly fail to vote has surrendered control over our politics and our courts to a minority, mostly a few at the top, supported by some people in the middle, and enabled by the apathy of most of the rest of us.

Worse, most of those in today’s controlling minority are extremists. They have exploited the imperfections in our system to impose a return to the social mores and politics of an earlier time.

The best example of this is the string of far-Right decisions handed down in 2022 by the Supreme (Extreme) Court. From Slate’s Mark Joseph Stern:

“Consider the issues that SCOTUS has resolved….The constitutional right to abortion: gone. States’ ability to limit guns in public: gone….Effective constraints around separation of church and state: gone. The bar on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone.”

Vast areas of law that took decades to establish were overturned in a year.

And in 2023, the Court’s reactionary majority has continued to overturn more of the American social order. Those rulings: ending affirmative action, preventing the forgiveness of student loans and an egregious decision on gay rights, show that the Court has lost any sense of judicial restraint.

The Court is no longer “calling balls and strikes” as Chief Justice John Roberts famously said. In fact, there could be a highlight reel of umpire John Roberts’ blown calls. It’s clear that the Extreme Court wants to go further, and given today’s politics, there’s zero risk of the other two branches of government agreeing to override their decisions.

So, on this Fourth of July weekend, let’s hit pause. Let’s take time to reflect on how our founders were able to weave a message that united many factions against a common enemy. It should be very clear that at this point that the common enemy to unite against is the partisan power of a partisan minority.

Real power no longer lies with the People or with their politicians, it resides in the Supreme Court. The antiquated and undemocratic elements of our government: the Electoral College, lifetime tenure for Supreme Court justices and the malapportionment of the Senate, would require Constitutional amendments to fix. But we’re too divided to amend the Constitution.

Imagine attempting to fix the Senate’s malapportionment by getting a Constitutional amendment through that same malapportioned Senate.

But there may be reason for optimism in the fact that the two of this term’s negative rulings related to college students (admissions and debt relief). Those issues will motivate young voters in 2024.

Here are some numbers that give some cause for optimism about younger voters helping to change our politics:

Voters 47 and younger will be in the majority beginning in 2028.
Younger voters have historically voted in significantly higher numbers for Democrats.
Young women, especially young Hispanics and young African Americans are substantially higher voters for Democrats.
Fifty-five percent of white male voters under 45 voted Democratic in 2022, as did 52% of younger white females.

Here are a few other facts that should make us optimistic going forward:

Abortion was youth’s #1 issue in 2022.
Mid-term voter turnout for people under 29 was 23%, lower than 2018 (28%), but much higher than in 2014 (13%).
Michigan had the highest youth turnout in the country (37%).
Two swing states, Michigan and Pennsylvania, were among the four states to have the highest youth turnout in 2022.

To help you reflect on how we might take back control, let’s listen to Neil Diamond’s “Coming to America” performed at the Greek Theater in Los Angles in 2012.

There are many versions of this tune on YouTube, but this one makes the point that virtually all of us are descended from immigrants, in this case, Diamond’s grandmother, who immigrated from Kyiv:

The Wrongologist

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July 4, 2023