Tag: US Constitution

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 101st 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.

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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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Monday Wake-Up Call – January 25, 2016

Today many are still digging out from the big blizzard, and are getting off to a slow start, but today’s Wake Up is for those who think the answer to domestic terrorism is to get tough with American Muslims, to isolate them, to deport them, or to prevent them from getting gun permits.

Peter Bergen has an article in the current Wall Street Journal Weekend, “Can We Stop Homegrown Terrorists?” in which he reports on the threat posed by domestic Muslim terrorists: (emphasis by the Wrongologist)

We found that American jihadists are overwhelmingly male (only 7% are women), and their average age is 29. More than a third are married, and more than a third have children. A little more than one in 10 has served time in prison, similar to the rate of incarceration for all American males, and around 10% had some kind of mental-health issue, which is lower than the general population. In everything but their deadly ideology, they are ordinary Americans.

Bergen reports that in 2015, the FBI investigated supporters of ISIS in all 50 states, and more than 80 Americans were charged with some kind of jihadist crime. It was the peak year since 2001 for law-enforcement activity against Americans who had chosen to join a group or accept an ideology whose goal is to kill fellow Americans. Bergen has assembled a data base of about 300 jihadists indicted or convicted in the US for some kind of terrorist crime since 9/11.

In analyzing the threat, Bergen says:

These individuals represent just a tiny fraction of an American Muslim population estimated at more than 3 million, but 300 homegrown jihadists is still 300 too many. Is the US intelligence and law-enforcement community any closer to knowing how to identify such would-be terrorists and stop them before they act? There has been definite progress, but the sobering truth is that…we are likely to be dealing with this low-level terrorist threat for years to come.

We have no way of knowing if we are at the start of a wave of domestic terror, but it sure feels ominous right now, like something could be coming. But we need to get one thing straight – domestic terrorism, whether by Muslims, Christians or others, can never be totally eradicated. As long as there are people with grievances who don’t believe they have a means to get those grievances addressed, there will be terrorists.

Bergen found that post 9/11, 45 Americans have been killed by jihadists in 15 years. That’s three per year.

But not all homegrown terrorists are Muslims. We had terror attacks by the Unabomber, the “Mad Bomber” and McVeigh at Oklahoma City. Ted Kaczynski, George Metesky and Timothy McVeigh weren’t Muslims, they were angry. Anger can transcend religion or even, the lack of a religion. And today, we have not only our general gun death epidemic, but more specifically, our homegrown red blooded Americans who like to shoot up schools, malls, theaters and churches.

Just last week, two Colorado teen-age girls were indicted for planning to replicate Columbine.

Can we stop homegrown terrorists? No, not even if we take all of We, the People’s Rights away (well, maybe not the Second Amendment). No free society can stop free citizens from doing whatever they freely decide to do, up to and including converting to Islam and blowing themselves up. So that’s our choice: are we going to continue to be a free society?

Our choice is between having the government acquire more power and spending money in the name of our safety. Or, keep what remains of our Bill of Rights and accept that lone wolf terrorist acts will happen on our soil.

All that can be done is to reduce the amount of terrorism to the absolute minimum. Bergen’s article talks about some of those techniques, but terrorism will always be with us.

And acknowledging that reality is not appeasement. Those who choose to be terrorists will become so, regardless of what the law requires or the people desire.

To help you wake up to the routine prejudice Muslims face in the homeland of the free, here is “Terrorism is not a Religion”, a poem by Hersi. He is a former US Marine and veteran of Iraq, and is by birth, a Somali Muslim. In this video he recounts his experience as a Muslim in the American school system and the US military:

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

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Why do Conservatives Misunderstand Freedom of Religion?

At this point, Kentucky’s Rowan County Clerk Kim Davis is in jail for not doing her job. She was sent to jail for contempt of court last week for openly defying multiple court orders to obey the Supreme Court’s ruling legalizing same-sex marriage in all US states. Judge David L. Bunning of Federal District Court said:

The court cannot condone the willful disobedience of its lawfully issued order…If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.

Davis has maintained that issuing marriage licenses to same sex couples is against her Christian beliefs. This has prompted her attorneys and supporters to come up with some wildly fanciful comparisons, including this one from Rep. Steve King (R-IA):

Steve King KIm is Rosa Parks-page-0-1

 

He wasn’t the only Republican to try to co-opt black civil rights history. Her attorney, Mat Staver, went for this:

Kim joins a long list of people who were imprisoned for their conscience…People who today we admire, like Rev. Dr. Martin Luther King, Jr., Jan Huss, John Bunyan, Dietrich Bonhoeffer, and more. Each had their own cause, but they all share the same resolve not to violate their conscience.

Republicans, particularly evangelical Christians, believe they are persecuted when other people receive the same rights that they have had for decades or possibly, centuries. Persecution would be burning a gay flag on Davis’s lawn or you know, firebombing her church. Nobody is physically assaulting her, or turning water cannons (or dogs) on her.

Saying same-sex marriage is Constitutional doesn’t create persecution for millions of Christians, no matter how badly Ms. Davis and her Conservative supporters dislike it. Asking her to do her job is not persecution.

But the grandstanding award goes to Sen. Ted Cruz (R-TX) who released this statement:

Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith. This is wrong. This is not America.

Cruz goes on to observe:

In dissent, Chief Justice Roberts rightly observed that the Court’s marriage opinion has nothing to do with the Constitution. Justice Scalia observed that the Court’s opinion was so contrary to law that state and local officials would choose to defy it.

Cruz then ups the ante:

Those who are persecuting Kim Davis believe that Christians should not serve in public office. That is the consequence of their position. Or, if Christians do serve in public office, they must disregard their religious faith–or be sent to jail.

And, of course, Cruz is only the most vituperative of the Republican candidates. With the exception of Lindsey Graham and Carly Fiorina, all the other Republican presidential candidates have criticized the decision to jail Ms. Davis.

While it’s fun to poke at Republicans for their response, we need to remember that Kim Davis is an elected Democrat. That said, she was elected county clerk after serving 26 years as a deputy clerk under her mother in the same county, with a total population under 24,000. Her party affiliation has little meaning in the context of the national debate about gay rights, but it sure says quite a bit when most Republican candidates purposefully misunderstand what religious freedom as guaranteed by the First Amendment really means.

They purposefully misunderstand that this country was founded on the rule of law, and separation of church and state. That the codifying of separation was designed to put an end to the interference of religion in the operations of government, exactly what Ms. Davis was trying to do. Congress passes laws, the President signs them, the Supreme Court determines their constitutionality… and then they’re subject to the individual veto of every county clerk in America?

Ok, Ms. Davis has principles that flow from her religious beliefs. That is just fine, and her faith can be celebrated.

She might remember that while she believes same sex marriage is against religious tradition, divorce was also forbidden and then difficult to get, because of religion until relatively recently. The no-fault divorce was introduced by California Governor Ronald Regan in 1970. Before then, you went to Reno, Las Vegas, or Mexico if you couldn’t prove adultery.

Thus, today’s Kentucky county clerk, who has been divorced three times, wouldn’t have easily gotten a divorce just 50 years ago, because, religion.

It sucks to be on the wrong side of history.

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