Tag Archives: President Trump

Supreme Court Nominee Gorsuch: Is “Constitutional Originalism” a Cover for Conservative Judicial Activism?

I hear President Trump was going to make the announcement of his Supreme Court nomination during the Super Bowel half time show – afraid of massive demonstrations  by 300 pound guys in shoulder pads – settled for prime time bumping favorite TV shows.

The Democrats have to decide: political strategy, a game plan, and, the question of the candidate himself.  The New York Times editorial opines the choices.

In spite of the accolades heaped on the nominee I have doubts, serious doubts.

The nominee defined himself as an “originalist” in the footsteps of Justice Scalia.

What is “originalism?”

One definition,

Originalism, in which the meaning of the Constitution is interpreted as fixed as of the time it was enacted, and non-originalism, in which the meaning of the Constitution is viewed as evolving with changes in society and culture.

Another,

“…  there is an identifiable original intent or original meaning, contemporaneous with a constitution’s or statute’s ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.”

How do we know the intent of the framers of the Constitution? From April until September of 1787 the fifty-four  delegates, all white men, mostly wealthy, including slaveholders from the Southern states. drifted in and out of the sessions. They argued, threatened, proposed deals, traded this for that, and, eventually produced a heavily compromised document.

The large states and the small states, the slave states and the free states, farmers and plantation owners, lawyers and fools cobbled a constitution..  In order to gain passage compromises were crafted: in the 3/5 compromise slaves were counted as 3/5 of a person in the computation of population to determine the number of representatives for each state. Although many of the delegates found slavery reprehensible the question of slavery is absent form the final constitution.

(Read Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2001 and a summary and review of the book here).  It took another seventy-five years and a war that cost 600,000 lives to end slavery.

Are there transcripts of the debates at the convention?

No, the Constitutional Convention was a secret meeting, press was excluded, no transcripts were recorded. In fact, the only record, aside from the minutes, are the 600 pages of the journal kept by James Madison. The journal was not released until 1836, and, as we now know, was edited extensively by Madison well after the convention. The edits were made to make Madison look better (Read a discussion here).

Max Ferrand, in 1911, published the Records of the Constitutional Convention 0f 1787, a compilation of both the minutes and the Madison Journals in chronological  order of the events.

Mary Bilder, “How Bad were the Official Records of the Federal Constitution” writes,

… the members at the Convention created the Constitution without solving or even having to think extensively about the problem of constitutional interpretation.

The 1787 Constitution is not a poem, statute or even a modern constitution. It is a series of words, structures, votes, compromises and alternatives done in convention. Constitutional interpretation postdated the Constitution.

The contemporaneous interpretation of the constitution, or at least as close as we can come, are the Federalist Papers, what we would today call op ed pieces written in the fall and winter of 1787-88 by Madison, Hamilton and Jay to urge voters to ratify the constitution. The eighty-five articles are as close as we can come to “interpretations.”

In Federalist 10 Madison wrote,

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. 

 A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens?

Madison’s “interpretation” describes current day politics with eerie accuracy.

Even if the nominee has inherited Justice Scalia’s Ouija Board the term “originalist” is simply  meaningless. What does applying the thoughts of the founders in 1787 mean in 2017? Would we apply the thoughts of the founders to science? to mathematics? Why only to the law?   Are there liberal or progressive “originalist” judges?  The term “originalist” is simply a cover for conservative justices.

We need justices who honor stare decicis, or precedent. We require justices who honor prior decisions. Would the nominee overturn Roe v Wade? Brown v Board of Education? Voting Rights?  Of course: he may have graduated from Harvard Law School (I graduated from the Harvard on the Hudson: The City College of NY), he may write elegant decisions, his views are clearly out of step with the mainstream of our nation in 2017.

I agree, judges should not make law; however, judges have the obligation to remedy injustices.

Section 1 of the 14th Amendment to the Constitution reads,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Marriage equality, voting rights, labor rights, according to my reading, fall under the protections of the 14th amendment.

The nominee may be the “golden boy” for those on the right, I believe he represents the fears that Madison expressed, I believe he intends to impose his narrow, archaic recidivist beliefs on the nation and for that reason he is not qualified to serve on our highest court.

Is President Trump Psychologically Unstable? Does the Constitution Provide for Removal from Office?

Tyrants are seldom free; the cares and the instruments of their tyranny enslave them.  George Santayana

Hard to believe, only week two of the Trump suzerainty; he did what Bernie and Hillary were unable to do, unify the young and the old, the progressives and the liberals, he has created a tsunami of democratic opposition.

Today Sean Spicer, the Press Secretary, met, or shall we say confronted the media. Each day his role is to meet with credentialed press and answer questions in a televised setting. He was curt, on the verge of rude, confrontational. He moved from questioner to questioner lecturing them, answering briefly and moving on. It was disrespectful. In my role as a union leader/representative (Watch press conference here) I faced many hostile audiences. I never argued, I was polite, listened, thanked the questioners,

Of course, Spicer has an extremely difficult job, to defend the indefensible, a president who has serious psychological issues: Is he a sociopath, a psychopath?

An op-ed in the NY Daily News, “President Trump exhibits classic signs of mental illness, including ‘malignant narcissism,” shrinks say,” questions the competency of our chief executive.

The article avers,

“Dr. Julie Futrell, a clinical psychologist said, ‘Narcissism impairs his ability to see reality …. So you can’t use logic to persuade someone like that. Three million women marching? Doesn’t move him. Advisers point out that a policy choice didn’t work? He won’t care. The maintenance of self-identity is the organizing principle of life for those who fall toward the pathological end of the narcissistic spectrum'”.

“A top psychotherapist affiliated with the esteemed Johns Hopkins University Medical School said Trump “is dangerously mentally ill and temperamentally incapable of being president.”

“The American Psychiatric Association says that anyone exhibiting five of the following nine egotistical traits has Narcissistic Personality Disorder. Count up how many Trump exhibits:”

  1. Has a grandiose sense of self-importance (exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements).
  2. Is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love.
  3. Believe that he or she is “special” and unique and can only be understood by, or should associate with other special or high-status people.
  4. Requires excessive admiration.
  5. Has a sense of entitlement.
  6. Is interpersonally exploitative.
  7. Lacks empathy: is unwilling to recognize or identify with the feelings and needs of others.
  8. Is often envious of others or believes that others are envious of him or her.
  9. Shows arrogant, haughty behaviors or attitudes.

 

If the president is unstable, suffering from a psychological disorder, what can be done?  Does the Constitution provide for the removal of the president?

The Constitution does provide for the impeachment of the president,  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  The actions of our current president do not appear to fall within the definitions contained in the Constitution; or do they?

Almost fifty years ago to the date the 25th Amendment to the Constitution, dealing with succession in case of presidential disability, contains a procedure, albeit, awkward, to replace the president.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he [the President] shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

According to my reading only the Vice President and the cabinet can determine if the President is “unable to discharge the powers and duties of hid office,” and, if the process plays out the Vice President becomes the Acting President.

It appears extremely unlikely that the provisions of the 25th Amendment will result in the removal of President Trump; then again, who in their wildest dreams thought that a TV Reality Show star could end up as the leader of the Western World?

Are the actions of the President “high crimes and misdemeanors”?

Could Vice President Pence, Majority Leader McConnell and Speaker Ryan plot to wrest the presidency from President Trump?  Seems absurd, we live in absurd times.

The Trump Era Begins: Do We “Fight Back,” Regardless of the Economic and Social Consequences, or, Try and “Educate” the New President And Work Along Side of Him for the Betterment of the Nation? Which Side Are You On?

On a gray, misty day Donald Trump put his hand on a Lincoln bible and become the 45th President of the United States. As he took the oath the rains began, perhaps a message from the heavens.

His inauguration address was brief and more of a campaign speech;  the verbiage was somewhat disturbing. The President used the term  “American First” a number of times, (“We assembled here today and are issuing a new decree to be heard in every city, in every foreign capital and in every hall of power. From this day forward, a new vision will govern our land. From this day forward, it’s going to be only America first— America first.”).  For those of us with a sense of history we remember that the “America First” movement was virulently  isolationist,  anti-war and sympathetic to Hitler.  An outspoken supporter of America First was Father Coughlin,

For years, Coughlin had publicly derided “international bankers,” a phrase that most of his listeners understood to mean Jewish bankers. In the days and weeks after Kristallnacht, Coughlin defended the state-sponsored violence of the Nazi regime, arguing that Kristallnacht was justified as retaliation for Jewish persecution of Christians.

Trump’s view of our nation as an “American carnage” is chilling,

for too many of our citizens, a different reality exists. Mothers and children trapped in poverty in our inner cities, rusted out factories scattered like tombstones across the landscape of our nation, an education system flush with cash but which leaves our young and beautiful students deprived of all knowledge. And the crime, and the gangs, and the drugs that have stolen too many lives and robbed our country of so much unrealized potential. This American carnage stops right here and stops right now.”

If he followed the passage above with a program, with a plan of some sort he may have started a national dialogue, instead, a  dystopian view of our nation.  Frighteningly, he sounds like the Philippine leader Dutarte who is encouraging the extra judicial  murder of drug dealers.

NPR published an excellent annotated  copy of the Trump inaugural address: Read here.

On Saturday I joined the throng, the massive crowd that gathered around the United Nations and eventually paraded across 42nd Street and up Fifth Avenue to Trump Tower.  The elderly, the young,  the children, men and women, all colors, all ethnicities, it was amazing, and, enormously exhilarating.  The signs were a little over the top, a few emphasizing the owner of a body part unique to one gender, or  a vulgar term that can be used as many parts of speech to express extreme emotion, others dealing with equity, justice, espousing the basic ideals of our democracy.  I chatted with stranger after stranger, upbeat, willing to fight the threat hovering over us all.

The post inauguration ceremonies were distasteful to me, too much like what our first Congress feared, a president looking more like a king. The anti-federalists called George Washington, “King George,” and Washington who was extremely sensitive to the fears of the nation avoided the appearance of royalty. Not so our current President who appears to revel in adulation.

Saturday Night Live (SNL) was hysterical.  Watch it here.

Within minutes of the swearing in, the assumption of the office of president, President Trump issued a number of executive orders, one of which begins the disassembling of the Affordable Care Act aka Obamacare.

A presidential aide floated a replacement for the ACA that could result radical changes, including block grants to states in lieu of the current support for Medicare/Medicaid. Read details here.

The battle over the cabinet confirmations will continue throughout the next week or so. The Republican Senate leadership does not seem to be on the same page as the President.

Steven Mnuchin, the Treasury Secretary nominee, at his confirmation hearing, said,

“Honoring the U.S. debt is the most important thing. … I would like us to raise the debt ceiling sooner rather than later,” Steven Mnuchin said during his confirmation hearing before the Senate Finance Committee Thursday. It’s one of the first issues Mnuchin will have to address as Treasury Secretary, should he be confirmed.

The Freedom Caucus, the Tea Party gang in the House are adamantly opposed to raising the debt ceiling without steep cuts in federal  spending.

No matter what President Trump says the one indicator he cannot deny is the stock market. Within hours of the election the stock market jumped, referred to as the “Trump Bump,” and the market is at all-time highs. The market is a sensitive monster, the traders, the hedge funders, the managers of pension funds, mega-brokerage firms have a fiduciary responsibility to manage your dollars, to do not harm. A Trump victory on first look was “good for business;” however, if he seems confused, if he fails to understand our economy, traders have an obligation to protect the assets of their customers, and that means, perhaps, moving funds to “safer” investments that could result in a dipping or diving  stock market. Our Great Depression begin with a stock market crash.

While many of us are still angry and cannot accept the results of the election Donald Trump is president. The rallies and demonstrations will continue, the anger will bubble up, and the future is uncertain. Some hope Trump fails, whatever that means, others are fearful is an international calamity.

I have friends who did not vote for Trump, who are fearful, and argue that his failure will be our failure and we cannot pray for the failure of the nation. They argue give him a chance. On the other hand I am reminded of Martin Niemoller;  a prominent Protestant pastor who emerged as an outspoken public foe of Adolf Hitler and spent the last seven years of Nazi rule in concentration camps.

Niemöller is perhaps best remembered for the quotation:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

I fear that the future President will resemble Philippine leader Dutarte more than our founding fathers.

To quote a former leader, We must “keep hope alive.”