Tag: U.S. Constitution

President Biden’s Inspiring Praise of John McCain and Criticism of Donald Trump  and MAGA 

On September 28, 2023, President Joe Biden was in Tempe, Arizona to  announce a major federal grant to the state of Arizona to help design and build a new McCain National Library at Arizona State University. The President’s remarks on that occasion honored his deceased friend, John McCain, followed by the President’s blistering attack on Donald Trump and his Make America Great Again (MAGA) movement. [1]

Remarks About John McCain

The President started by quoting from McCain’s farewell letter to the nation as he was dying from brain cancer. “We are citizens of the world — the world’s greatest republic. A nation of ideals, not blood and soil. Americans never quit. They never hide from history. America makes history.”

“John was right. Every other nation in the world has been founded on either a grouping by ethnicity, religion, background. We’re the most unique nation in the world. We’re founded on an idea — the only major nation in the world founded on an idea. An idea that we are all created equal in the image of God, endowed by our Creator to be able to be treated equally throughout our lives.”

“I believe very strongly that the defining feature of our democracy is our Constitution and our believe in the separation of powers and checks and balances, that debate and disagreement do not lead to disunion. I believe in free and fair elections and the peaceful transfer of power. I believe there is no place in America — none, none, none — for political violence. We have to denounce hate, not embolden it.”

“I’m the guy that convinced [John] to run in Arizona as a Republican, . .. and I said, ‘John, you can do this job. My only worry is you’ll do it too well.’”

“John is one of those patriots who, when they die, their voices are never silent. They still speak to us. They tug at both our hearts and our conscience. And they pose the most profound questions: Who are we? What do we stand for? What do we believe? What will we be?”

“While [recently] in Hanoi, I visited a marker depicting where John had endured all the pain. Imprisoned five and a half years. Solitary confinement for two years. Given an opportunity to come home if he just said a couple things, [which he refused to do]. He was beaten, bloodied, bones broken, isolated, tortured, left unable to raise his arms above his shoulders again.”

“I [also] thought about how much America missed John right now, how much America needed John’s courage and foresight and vision. I thought about what John stood for, what he fought for, what he was willing to die for. I thought about what we owed John, what I owed him, and what we . . .owed each other as well — and Americans as well.”

Criticism of Trump and MAGA

Biden then directed his attention to “something dangerous happening in America now. There is an extremist movement that does not share the basic belief in our democracy: the MAGA Movement. . . . [T]here is no question that today’s Republican Party is driven and intimidated by MAGA Republican extremists. Their extreme agenda, if carried out, would fundamentally alter the institutions of American democracy as we know it.”

“[T]hey’re not hiding their attacks. They’re openly promoting them — attacking the free press as the enemy of the people, attacking the rule of law as an impediment, fomenting voter suppression and election subversion.”

But “democracy means respecting the institutions that govern a free society. That means adhering to the timeless words of the Declaration of Independence: ‘We hold these truths to be self-evident.’ A mission statement embodied in our Constitution, our system of separation of powers and checks and balances.”

“But our institutions and our democracy are not just of government. The institutions of democracy depend on the Constitution and our character and the habits of our hearts and minds.”

“Democracies don’t have to die at the end of a rifle. They can die when people are silent, when they fail to stand up or condemn the threats to democracy, when people are willing to give away that which is most precious to them because they feel frustrated, disillusioned, tired, alienated.”

“Democracy means rejecting and repudiating political violence. Regardless of party, such violence is never, never, never acceptable in America. It’s undemocratic, and it must never be normalized to advance political power.”

“Did you ever think we’d be having debates . . . [about] banning books and burying history? Did you ever think you’d hear leaders of political parties in the United States of America speak like that? Seizing power, concentrating power, attempting to abuse power, purging and packing key institutions, spewing conspiracy theories, spreading lies for profit and power to divide America in every way, inciting violence against those who risk their lives to keep America safe, weaponizing against the very soul of who we are as Americans.”

“Every other nation in the world has been founded on either a grouping by ethnicity, religion, background. We’re the most unique nation in the world. We’re founded on an idea — the only major nation in the world founded on an idea. An idea that we are all created equal, endowed by our Creator in the image of God . . . to be able to be treated equally throughout our lives.”

“Extremists in Congress [are] more determined to shut down the government, to burn the place down than to let the people’s business be done. Frankly, these extremists have no idea what the hell they’re talking about. It’s the controlling element of the House Republican Party.”

“Just consider these . . .actual quotes from . . . the MAGA movement. ‘I am your retribution.’ ‘Slitting throats” of civil servants, replacing them with extreme political cronies. MAGA extremists proclaim support for law enforcement only to say, ‘We must destroy the FBI.’”

“Let me begin with the core principles. Democracy means rule of the people, not rule of monarchs, not rule of the monied, not rule of the mighty. Regardless of party, that means respecting free and fair elections; accepting the outcome, win or lose. It means you can’t love your country only when you win.”

“MAGA extremists . . . are harming military readiness, leadership, troop morale, freezing pay, freezing military families in limbo.”

“MAGA extremists [call Mark Milley] the retiring Chairman of the Joint Chiefs of Staff of the United States military, a ‘traitor.’ In times gone by, the punishment would’ve been death.”

“One [Republican Senator] in Alabama is holding up the promotion of . .. hundreds of these officers.”

The “defeated former President refused to pay respects at an American cemetery near Paris, referring to the American servicemen buried there . . . as ‘suckers’ and ‘losers.’”

“Our U.S. military . . . is the strongest military in the history of the world. It’s the most diverse, the most powerful in the history of the world. And it’s being accused of being weak and “woke” by the opposition.”

“Our Constitution [is] the bulwark to prevent the abuse of power to ensure ‘We the People’ move forward together under the law, rather than believing the only way is one way or no way at all.”

“Remember what [Trump] did as he was leaving office: He imposed a new thing [on] the Civil Service — ‘Schedule F.’ These civil servants had to pledge loyalty to the President, not the Constitution. It did not require that they had any protections, and the President would be able to wholesale fire them if he wanted, because they had . . . no Civil Service protection. [This is one] of the first things I got rid of when I became President.”

“So, you, me, every American who is committed to preserving our democracy and our constitutional protections, we carry a special responsibility. We have to stand up for American values embedded in the Constitution, the Declaration of Independence, because we know the MAGA extremists have already proven they won’t.”

“These principles of democracy are essential in a free society, but they have always been embattled. While we’ve made progress, democracy is still at risk.”

“They’re pushing a notion the defeated former President expressed when he was in office and believes applies only to him. And this is a dangerous notion: This president is above the law, with no limits on power.”

“This MAGA threat is the threat to the brick and mortar of our democratic institutions. But it’s also a threat to the character of our nation and gives our Constitution life, that binds us together as Americans in common cause.”

“Trump says the Constitution gave him ‘the right to do whatever he wants as President.. . . ’ Not guided by the Constitution or by common service and decency toward our fellow Americans but by vengeance and vindictiveness.”

“We see the[MAGA} headlines: “sweeping expansion of presidential power.” Their goal to ‘alter the balance of power by increasing the President’s authority over every part of the federal government.’”

“We’ve never fully lived up to that idea, but we’ve never walked away from it. But there’s danger we’re walking too far away from it now, the way we talk in this country. Because a long line of patriots like John McCain kept it from ever becoming something other than what it is.”

“What do [Trump and MAGA] intend to do once they erode the constitutional order of checks and balances and separation of powers? Limit the independence of federal agencies and put them under the thumb of a president? Give the President the power to refuse to spend money that Congress has appropriated if he doesn’t like what it’s being spent for? . . . Get rid of longstanding protections for civil servants? Whitewash [the] attacks of January 6th by calling the spearing and stomping of police a ‘legitimate political discourse’?

[In recent days they made] accusations of treason . . .against the major . . . news network because they don’t like its coverage.”

Conclusion[2]

Michael Beschloss, presidential historian, said, “Biden has never delivered a more important, powerful or eloquent speech” than this one “about the crucial importance of protecting American democracy.”

According to Peter Baker of the New York Times, Biden “portrayed Mr. Trump as a budding autocrat with no fidelity to the tenets of American democracy and who is motivated by hatred and a desire for retribution.”

As an U.S. citizen, I congratulate President Biden for his justified and blistering attack on MAGA and Trump. Biden needs to keep doing it.

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[1] Remarks by President Biden Honoring the Legacy of Senator John McCain and the Work We Must do Together , White House (Sept. 28, 2023); ASU to create national library honoring legacy of Sen. John McCain, asu.edu (Sept. 28, 2023).

[2] Baker, Biden Issues a Blistering Attack on Trump, N.Y. Times (Sept. 29, 2023); Tait, Biden warns voters a second Trump presidency will threaten democracy, Guardian (Sept. 29, 2023).

 

New York Times Editorial: Trump’s Four Indictments Show His Disdain for American Democracy and His Unfitness for the Presidency 

A recent New York Times’ editorial persuasively shows how Donald Trump’s four criminal indictments (to date) show his disdain for American democracy and his unfitness for the country’s presidency.[1]

Editorial’s Details

The new Georgia criminal indictment shows Trump was “leading what was effectively a criminal gang to overturn the 2020 presidential election in that state.” This indictment alleges that he “often behaved like a mob boss, pressuring the Georgia secretary of state to decertify the Georgia election and holding a White House meeting to discuss seizing voting equipment.” This indictment included these alleged crimes: “conspiracy to commit first-degree forgery, for arranging to have a false set of Georgia electors sent to Washington to replace the legitimate ones for Joe Biden, . . . conspiracy to impersonate a public officer and a series of charges relating to filing false statements and trying to get state officials to violate their oath of office.”

This indictment along with his other three indictments “offer a road map of the trauma and drama Mr. Trump has put this nation through. They raise questions about his fitness for office that go beyond ideology or temperament, focusing instead on his disdain for American democracy.”

Indeed, “Mr. Trump has put his ego and ambition over the interests of the public and of his own supporters. He has aggressively worked to undermine public faith in the democratic process and to warp the foundations of the electoral system. He repeatedly betrayed his constitutional duty to faithfully execute the nation’s laws. . . . [H]is actions, as detailed in these indictments, show that he is concerned with no one’s interests but his own.”

“A president facing multiple criminal trials, . . . could not hope to be effective in enforcing the nation’s laws — one of the primary duties of a chief executive. (If re-elected, Mr. Trump could order the federal prosecutions to be dropped, though that would hardly enhance his credibility.) A man accused of compromising national security would have little credibility in his negotiations with foreign allies or adversaries. No document could be assumed to remain secret, no communication secure. The nation’s image as a beacon of democracy, already badly tarnished by the Jan. 6 attack, may not survive the election of someone formally accused of systematically dismantling his own country’s democratic process through deceit.”

“[A] healthy political party does not belong to or depend on one man, particularly one who has repeatedly put himself over his party and his country. A healthy democracy needs at least two functioning parties to challenge each other’s honesty and direction. Republican voters are key to restoring that health and balance.”

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[1] Editorial: What if, Knowing What They Know Now, Republicans Don’t Vote for Donald Trump?, N.Y. Times (Aug. 15, 2023). Previous Times’ editorials set forth similar arguments against Trump’s again becoming our President: Editorial: Even Donald Trump Should Be Held Accountable (Mar. 30, 2023); Editorial: Donald Trump Should Never Again Be Trusted With the Nation’s Secrets (June 9, 2023); Editorial: A President Accused of Betraying His Country (Aug. 2, 2023).

 

U.S. Commission on Unalienable Rights Issues Final Report 

As previously noted, on July 6, the U.S. Commission on Unalienable Rights issued its Draft Report.[1] The Final Report was issued 51 days later on August 26 as “a consensus document that was signed and approved unanimously by all 11 commissioners.”[2]

The latter was after the Commission had solicited and obtained a large number of comments, mainly negative, about the Draft Report.[3] But presumably after reviewing those comments, the Final Report was issued with “only [unidentified] small changes.”  The only public explanation of this decision was the following: “For the most part, the recent round of public comment restated perspectives and points shared before, during, and after the Commission’s five public meetings . . . and so already had been taken into account by the Commission.”

The most important criticisms of the Draft Report, which this blog shared, were its statement, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty.” Also criticized were the draft Report’s downgrading of “positive rights,” i.e., rights that “owe their existence to custom, tradition, and to positive law, which is the law created by human beings,” and Secretary Pompeo’s objections to women’s reproductive rights (especially abortion) and to LGBTQ rights.

 Criticism of Draft Report

Here is a summary of some of the criticisms of the Draft Report from some of the respected international human rights non-profit organizations.

The Human Rights Watch submission stated, “With other organizations, we also remain concerned that the commission itself was not representative of the human rights community, did not take testimony from the full scope of the human rights community, and did not consider in its scope the range of issues the human rights framework aims to address. Freedom House pointed out that there already are mechanisms for interpreting human rights obligations of states at international and regional levels. The supposed gap the commission was created to fill is one that does not exist; therefore, the premise [for the Commission] is dubious and its work duplicative. . . . we continue to question its value and have increasing concerns about the repercussions that its work may have on the universality and efficacy of human rights protections and on the institutions designed to oversee compliance and implementation.” That submission also stated the following:

  • “The world has no shortage of actors who aim to weaken existing protections or call internationally recognized rights into question. Too often, that has included the United States. In recent years, the United States has moved sharply away from its longstanding if inconsistent role of seeking to advance human rights worldwide. Its decisions to withdraw from the United Nations Human Rights Council, stonewall UN human rights experts, make an extraordinary threat of vetoing a UN Security Council resolution on women, peace, and security because it mentioned survivors’ sexual and reproductive health and rights, and terminate funding for multilateral bodies like the United Nations Population Fund, UNESCO, and the World Health Organization that help advance rights to education and health worldwide have removed the United States as a key player on global human rights issues. The United States State Department’s creation of the Commission on Unalienable Rights purports to scrutinize well-grounded rights and obligations and reinterpret them in a way that deprivileges certain human rights but poses a risk to all rights. The United States should prioritize fulfilling its commitments, not redefining them to fulfill the wishes of a few.”
  • The Report “sets dangerous precedent that countries should decide which internationally recognized rights are or are not valid. . . . appeals to history and tradition are frequently abused by governments to justify their rejection of internationally recognized human rights norms. . . . Such an approach is likely to fragment and weaken the international human rights system, not strengthen or revitalize it. “
  • The Declaration of Independence and UDHR “are statements of principle, not obligation. Using these documents without also considering relevant human rights treaties and other sources of international law to guide human rights policy leads to a distorted understanding of the United States’ binding international obligations and commitments.”
  • The Report “spends little time on the adoption of the Constitution, the Bill of Rights, the Reconstruction Amendments, the enfranchisement of women, the strengthening of due process under the Warren Court, the passage of the Civil Rights Act, Fair Housing Act, and Americans With Disabilities Act, and jurisprudence recognizing the right to reproductive autonomy and the rights of lesbian, gay, bisexual, and transgender people. Similarly, it does little to acknowledge increased recognition over the years of economic and social rights as central to human rights discourse.”
  • U.S. “obligations under core human rights treaties coexist with other commitments the United States has made to respect, protect, and fulfill human rights, which are largely absent from the commission’s report.”
  • “The human rights project is facing challenges, but they are “not a matter of too many people seeking or claiming their rights. Instead, they are challenges that arise from autocratic or authoritarian governments that have denied fundamental rights, silenced vulnerable populations, and diminished the institutions and civil society groups that protect human rights from erosion.”
  • “The [draft] report erroneously suggests “that human rights that are inconsistent with domestic traditions are less meaningful or real than those the United States deems to favor.. . . [and] does not sufficiently acknowledge the maintenance, scrutiny, and accountability that upholding human rights requires.”
  • “Efforts to secure access to abortion are . . . about rights to life, to health, and to bodily autonomy. Similarly, efforts to secure the freedom to marry are . . . about the right to form a family and equal access to existing rights and protections without discrimination based on sexual orientation or gender identity.”

Two other such organizations offered similar comments. Freedom House: Trump Administration ignored or excused violations by Egypt, Turkey, Saudi Arabia, China, Russia, N. Korea and rebuffed pressure for racial justice in U.S. The draft report also rejects LGBT+ people, women and minorities. In addition, Freedom House rejects prioritization of rights and failure to recognize change views of rights over time (Pp 21-22). Human Rights First said proliferation of rights claims has not undermined legitimacy and credibility of human rights framework; treaties have not created uncertainties; rights hierarchies are wrong; abortion, affirmative action & same-sex marriage are valid rights; effort to preclude extension of new rights is wrong. It is retreat from human rights. (Pp 80-94).

Human Rights First’s Criticism of Final Report[4]

According to Kenneth Roth, the Executive Director of Human Rights First, Secretary Pompeo “has imposed his personal preferences [in the Final Report]while relying on arguments that pose a profound threat to all human rights as well.”

The Final Report “is a frontal assault on international human rights law. The report treats the Universal Declaration of Human Rights [UDHR], adopted in 1948 and drafted with the help of Eleanor Roosevelt, as the heyday of the human rights movement.” But this important document “is a non-binding political declaration. It has been followed over the years by a series of legally binding treaties, each with an independent expert committee elected by treaty members to interpret its language and monitor compliance. The commission disparages this legal elucidation as a ‘proliferation’ of rights, suggesting that there are now too many rights.”

Initially, the UDHR was codified in two legally binding covenants. One, on civil and political rights, contains provisions similar to the US Constitution, and the US government has ratified it. Another, on economic, social, and cultural rights, finds parallels in US law but not the US Constitution. The US government signed but never ratified it or fully embraced its rights.”

“After these foundational covenants, a handful of other treaties were adopted, spelling out, for instance, the meaning of the prohibition of torture or ways to protect women, racial minorities, children, and people with disabilities from discrimination. What Pompeo’s commission disparages as “proliferation” is in fact a process to ensure respect for the rights of people who traditionally have been marginalized or neglected.”

The Commission seemed most concerned with “interpretations of human rights law to protect reproductive freedom and the rights of LGBT people. In the case of LGBT rights, for example, the Human Rights Committee—the official body for interpreting the civil and political rights covenant—has found that the prohibition of discrimination on the basis of sex includes discrimination based on sexual orientation, just as the US Supreme Court recently found that sex discrimination includes discrimination against LGBT people.”

“The Pompeo commission’s discomfort with the Human Rights Committee is why it lionizes the non-binding [UDHR]. The declaration, as a statement of principles, has no accompanying interpretive body of law. That allows the US government to interpret its broad principles on its own, as if the covenants had never been adopted as its legally binding version.”

The Commission “seems to favor an a la carte approach to rights: The US government will pick the rights that it wants to observe, and others can do the same. That approach would be music to the ears of the world’s autocrats, and many will happily take the opportunity to trample on certain basic rights that Pompeo himself has rightly defended in places like Hong Kong.”

“To effectively abandon binding treaties for the Pompeo commission’s a la carte approach is to relegate human rights to the vagaries of government preferences. That’s not a system of human rights. It’s an excuse for repression, discrimination, and abuse.”

Conclusion

The Final Report also completely ignores the language of the U.S. Declaration of Independence. After reciting “life, liberty and the pursuit of happiness” as among “certain unalienable rights” that “ are endowed by their Creator,” the Declaration next states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, governments will need to enact various kinds of statutes and other rules “to secure . . .life, liberty and the pursuit of happiness.”

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[1[ See U.S. Commission on Unalienable Rights’ Report, dwkcommentaries.com (July 27, 2020). Here are links to other posts on this blog about this Commission.

[2] State Dep’t, [Final] Report of the Commission on Unalienable Rights (Aug. 26, 2020).

[3] The Commission’s website has a page for Public Submissions to the Commission, but they are limited to submissions before the issuance of the Draft Report in light of this statement, “At each of its public meetings, the Commission solicited input from the general public on relevant topics regarding human rights. Sometimes comments came from audience members who attended the meetings in person and who generously offered their thoughts and posed questions to commissioners at the microphone. Other times, outside individuals and groups opted to send more detailed written commentary to the Commission.”

[4] Roth, Pompeo’s Commission on Unalienable Rights Will Endanger Everyone’s Human Rights, hrw.org (Oct. 27, 2020).

Questioning Originalists and Textualists’ Interpretations of the U.S. Constitution

According to the Associated Press, “Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes.” [1]

This was a subject of the testimony of Judge Amy Coney Barrett at her recent Senate hearing about the confirmation of her appointment to the U.S. Supreme Court. She  “expounded at length on the tenets of textualism and originalism, approaches made popular by Justice Scalia that privilege plain reading of legal texts and seek to minimize a judge’s own interpretations of statute or the Constitution.” Originalism, she said, “means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it [in 1787-88]. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my policy views into it.”[2]

Although I did not follow that hearing in detail and although I am not a scholar of that philosophy, several commentaries have suggested important qualifications to such a philosophy. Here is a summary of two of those commentaries.

Professor Jack Rakove[3]

One of those commentaries was by Jack Rakove, the William Robertson Coe professor of history and American studies and a professor of political science emeritus at Stanford University and the author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” which received the 1997 Pulitzer Prize in history.

Rakove starts his recent commentary by noting, “debates about originalism and how to perform it have been roiling the legal academy for several decades. Scores and scores of scholarly articles on the subject pour in annually from university law reviews; another baker’s dozen books also address it. And there is no simple way to say how we know what the phrases of the Constitution originally meant.” (Emphasis added.)

Moreover, Rakove says, “The framers never worried about its future judicial interpretation, nor would they have thought of themselves as ‘originalists.’”

For historians, “How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its ‘original meaning.’” (Emphasis added.)

Lawyers and presumably judges, on the other hand, “assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.”

The above approach by lawyers and judges, however, ignores the fact “that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.”

“Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. [For example, there “is no adequate dictionary definition of ‘the executive power’ that Article II vests in the president. [For another example, understanding] what the ‘establishment of religion’ invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his ‘Notes on the State of Virginia,’ the very word ‘constitution’ had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.”

Rakove says the “best-known example of ‘public meaning’ originalism, Justice Antonin Scalia’s opinion in the major Second Amendment case D.C. v. Heller, is . . . a travesty of historical unreason. Here, the court narrowly held that an individual right of self-defense within one’s domicile was constitutionally protected. Far from being a decision logically derived from the original intentions behind the Second Amendment, Scalia’s opinion in Heller is, ironically, a great tribute to the idea of a ‘living Constitution,’ one whose meaning evolves over time — in this case, recognizing how attached Americans had become to the use of firearms.”

Indeed, although there were “a handful of references [alluding to] an individual right to arms” in the debates surrounding the Second Amendment, “that was manifestly not the issue in dispute. The debate was about the militia, a state-governed institution whose future status was problematic because the Constitution gave Congress broad authority to oversee its ‘organizing, arming, and disciplining.’ No one then would have read the amendment to constrain the ‘internal police’ powers of the states, meaning their broad authority to secure public health and safety.”

As a result, “the practice [of originalism] does not provide the constraints on judicial rulings that its advocates claim.”

Rakove’s earlier and somewhat longer article on this same subject in the Fordham Law Review concludes with the following comment: In “the realm of politics and constitutionalism more generally, events continued to prove disruptive of linguistic stability. Critical terms, like constitution or executive power or establishment of religion or sovereignty, came under sustained pressure, not least because of the inventiveness of American revolutionary politics [in the late 18th century]. Anyone who thinks he [or she] can establish conditions of linguistic fixation without taking that turbulent set of events into account is pursuing a fool’s errand.” (Emphasis added.) [4]

Jamelle Bouie[5]

The other recent commentary came from Jamelle Bouie, a New York Times columnist and a political analyst for CBS News, who cites the above criticism of originalism by Rakove and by “Jonathan Gienapp, a historian of the early American republic at Stanford, [who] charges originalists with building a framework ‘such that no amount of historical empiricism can ever challenge it,’ in which neither ‘the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century’ have any bearing on the so-called original public meaning of the Constitution.”

More importantly, Bouie contends that the Civil War “shattered the constitutional order” and that the “Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” As historian Eric Foner contends, these amendments were a “second founding” establishing a “biracial democracy” as opposed to the “white republic” established by the original Constitution.[6] Indeed, Bouie says, the 13th amendment in addition to banning slavery provided, “Congress shall have the power to enforce this article by appropriate legislation” or [in the words of the Chicago Tribune at the time] seemingly limitless authority to “prevent actions by states, localities, businesses, and private individuals that sought to maintain or restore slavery.” Similarly, the 14th and 15th amendments expanded federal power to defend individual and voting rights.

“To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787. It is also to embrace a broader vision of the ‘framing’ of American democracy, one that looks to the reconstruction of the country after its near-destruction [in the Civil War] as much as to its birth and founding.”

Conclusion

I solicit comments identifying any questening of Judge Barrett on these issues and her responses.

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[1] Assoc. Press, A.P. Explains: Originalism: Barrett’s legal philosophy, Wash. Post (Oct. 13, 2020)

[2] Fandos, Barrett, Declining to Detail Legal Views, Says She will Not Be ‘a Pawn’ of Trump, N.Y. Times (Oct. 13, 2020).

[3] Rakove. The framers of the Constitution didn’t worry about ‘originalism,’ Wash. Post (Oct. 16, 2020).

[4] Rakove, Tone Deaf to the Past: More Qualms About Public Meaning Originalism, 84 Fordham L. Rev. 969 (2015). Presumably even more grounds for skepticism about originalism can be found in Rakove’s book on the subject: Original Meanings: Politics and Ideas in the Making of the Constitution,”

[5] Bouie, Which Constitution Is Amy Coney Barrett Talking About?, N.Y. Times (Oct. 16, 2020)

[6] Foner, The Second Founding: How the Civil War and Reconstructrion Remade the Constitution (W.W. Norton & Co. 2019); Caplan: What Reconstruction-Era Laws Can Teach Our Democracy, N.Y. Times Book Review (Sept. 18, 2019)(review of Roner book).

Prominent Historians and New York Times Official’s Comments About The 1619 Project    

As explained in a prior post, in August 2019, the New York Times Magazine published what it called “The 1619 Project” to commemorate the 400th anniversary of the first slaves brought to the British Colonies in North America and to “reframe American  history by considering . . . 1619 as our nation’s birth year . . . when a ship arrived . . . in the British colony of Virginia, bearing a cargo of 20 to 30 enslaved Africans [and inaugurating] a barbaric system of chattel slavery that would last for the next 250 years. . . . Out of slavery—and the anti-black racism it required—grew nearly everything that has truly made America exceptional.” It also claimed, “One of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.”[1]

Historians’ Letter to Times[2]

Sean Wilentz (the George Henry Davis 1886 professor of American history, Princeton University) and four other prominent American historians[3] in a letter to the New York Times Magazine applauded “all efforts to address the enduring centrality of slavery and racism in our history” while saying The 1619 Project raised “profound, unsettling questions about slavery and the nation’s past and present” and was “a praiseworthy and urgent public service.”

Nevertheless, these historians expressed “strong reservations about important aspects” of the Project, including its intent “to offer a new version of American history in which slavery and white supremacy become the dominant organizing themes.”

These historians also were “dismayed at some of the factual errors in the project and the closed processes behind it.” Moreover, they asserted, “these errors, which concern major events, cannot be described as interpretation or ‘framing.’ They are matters of verifiable fact, which are the foundation of both honest scholarship and honest journalism. They suggest a displacement of historical understanding by ideology.”

This critique continued. “On the American Revolution, pivotal to any account of our history, the project asserts that the founders declared the colonies’ independence of Britain ‘in order to ensure slavery would continue.’ This is not true. If supportable, the allegation would be astounding — yet every statement offered by the project to validate it is false. Some of the other material in the project is distorted, including the claim that “for the most part, black Americans have fought their freedom struggles ‘alone.’”

“Still other material [in the Project] is misleading. The project criticizes Abraham Lincoln’s views on racial equality but ignores his conviction that the Declaration of Independence proclaimed universal equality, for blacks as well as whites, a view he upheld repeatedly against powerful white supremacists who opposed him. The project also ignores Lincoln’s agreement with Frederick Douglass that the Constitution was, in Douglass’s words, ‘a GLORIOUS LIBERTY DOCUMENT.’ Instead, the project asserts that the United States was founded on racial slavery, an argument rejected by a majority of abolitionists . . . [while being] proclaimed by champions of slavery like John C. Calhoun.”

“The 1619 Project has not been presented as the views of individual writers — views that in some cases, as on the supposed direct connections between slavery and modern corporate practices, have so far failed to establish any empirical veracity or reliability and have been seriously challenged by other historians. Instead, the project is offered as an authoritative account that bears the imprimatur and credibility of The New York Times. Those connected with the project have assured the public that its materials were shaped by a panel of historians and have been scrupulously fact-checked. Yet the process remains opaque. The names of only some of the historians involved have been released, and the extent of their involvement as ‘consultants’ and fact checkers remains vague. The selective transparency deepens our concern.”

“We ask that The Times, according to its own high standards of accuracy and truth, issue prominent corrections of all the errors and distortions presented in The 1619 Project. We also ask for the removal of these mistakes from any materials destined for use in schools, as well as in all further publications, including books bearing the name of The New York Times. We ask finally that The Times reveal fully the process through which the historical materials were and continue to be assembled, checked and authenticated.”

Response by the Magazine’s Editor-in-Chief[4]

Jake Silverstein, Editor in Chief of the Magazine, disagreed “with . . .  [these historians’] claim that our project contains significant factual errors and is driven by ideology rather than historical understanding. While we welcome criticism, we don’t believe that the request for corrections to The 1619 Project is warranted.”

“The project was intended to address the marginalization of African-American history in the telling of our national story and examine the legacy of slavery in contemporary American life.” In so doing, the Times “consulted with numerous scholars of African-American history and related fields” plus independent research by the authors of the articles in the Project and more consultation with “subject-area experts.” In addition, “as the five letter-writers well know, there are often debates, even among subject-area experts, about how to see the past.”

For example, other historians support “the contention that uneasiness among slaveholders in the colonies about growing antislavery sentiment in Britain and increasing imperial regulation helped motivate the [American] Revolution.” One main reason for this uneasiness was the 1772 decision of the British high court that slavery was unlawful because it was not supported by English common law. Although this case “did not legally threaten slavery in the colonies,” it along with the 1775 Dunmore Proclamation by the colonial governor of Virginia offering freedom to any enslaved person who fled and joined the British Army were major reasons for slave owners to support the Revolution.

The Times believes that it is important to have a wide-ranging discussion of the many issues around slavery and its continuing impact on America, involving “academics with differing perspectives,” and the Times will be pursuing such discussions.

Conclusion

We now have two recent articles about slavery and antislavery forces involved in creating the U.S. Constitution and Government by Sean Wilentz, who was one of the five historians who wrote the above letter about The 1619 Project.[5] They provide some of the historians’ reasons for their criticism of The Project.

Foremost was Wilentz’ assertion that although slavery is important, if not central, to American history, the United States was defined, from the start, neither by American slavery alone or by American antislavery but in their conflict” and “few things if any in modern history were more unexpected than the eradication of human bondage in the Atlantic world.”

Wilentz focuses on the Constitutional Convention of 1787 and the conflicts between the small states and big states, between the states-rights proponents and the strong national government supporters and between the slavery and anti-slavery advocates and the resulting necessity for compromises prompted by their mutual belief that all of the colonies needed to be in one national government under a Constitution that was endorsed by the Convention for submittal to the states for ratification.

Some of those compromises favored the slave-holding states: no abolition of slavery in the document and an implicit bar on the new national government’s direct interference with slavery where it already existed; counting 3/5th of the slaves for representation in the House of Representative and Electoral College; a fugitive slave clause; and prevention of abolition of foreign slave trade until 1808.

Other compromises favored the anti-slavery forces: refusal to recognize slavery in national law; the national power to regulate or ban slavery in territories under national purview; and the right to ban foreign slave trade after 1808.

The Project, however, focuses in part on the causes for the Revolutionary War of 1775-83 and its claim “that one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.” Wilentz flatly says this is “simply untrue. Neither the British government nor the British people were ‘deeply conflicted’ over slavery” in this period. Yes, a British court in 1772 did hold slavery illegal in Britain, but this decision did not affect many slaves in that country and had no effect on the country’s foreign slave trade.[6]

The arguments of Wilentz are persuasive, but The 1619 Project should continue by encouraging scholarly and citizen debate over slavery and racism in the U.S.

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[1] Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo, dwkcommentaries.com (Aug. 3, 2020).

[2] Bynum, McPherson, Oakes, Wilentz & Wood, We Respond to the Historians Who Critiqued The 1619 Project, N.Y. Times Magazine (Dec. 29, 2019; updated Jan. 4, 2020).

[3] The other authors of the letter were Victoria Bynum, distinguished emerita professor of history, Texas State University; James M. McPherson, George Henry Davis 1886 emeritus professor of American history, Princeton University; James Oakes, distinguished professor, the Graduate Center, the City University of New York; and Gordon S. Wood, Alva O. Wade University emeritus professor and emeritus professor of history, Brown University.

[4] Editor’s Response, N.Y. Times Magazine (Dec. 29, 2019).

[5] See Historian Wilentz’ Response to Senator Tom Cotton on the Issue of Slavery, dwkcommentaries.com (Aug. 11, 2020).

[6] Wilentz, American Slavery and ‘the Relentless Unforeseen,’ N.Y. Review of Books (Nov. 19, 2019).

 

Historian Wilentz’ Response to Senator Tom Cotton on the Issue of Slavery 

U.S. Senator Tom Cotton (Rep., AR) recently has been criticizing The 1619 Project ‘of the New York Times. The Project, he said, was “a racially divisive, revisionist account . . . that denies the noble principles of freedom and equality on which the nation was founded” although slavery “was the necessary evil upon which the union was built.”[1] The latter comment was made by the Senator in a recent interview by Tucker Carlson of FoxNews, in which Cotton claimed to draw support from prominent American historians, one of whom was Sean Wilentz of Princeton University.

Wilentz’ Response to Cotton[2]

Although four other American historians and I have “fundamental publicized objections to the project, . . . these in no way mitigate Cotton’s serious misrepresentations of the historical record for evident political gain.”

“Senator Tom Cotton, Republican of Arkansas, has introduced a bill in Congress that would punish school districts that use The New York Times’s 1619 Project in their curriculum by withholding federal funding. In so doing, he announced in a newspaper interview that America’s schoolchildren need to learn that the nation’s Founders said slavery ‘was the necessary evil upon which the union was built.’ His statement is as preposterous as it is false: presuming to clarify American history, Cotton has grievously distorted it.”

“None of the delegates who framed the Constitution in 1787 called slavery a ‘necessary evil.’ Some of them called slavery an evil, but not a necessary one. Gouverneur Morris of Pennsylvania, for example, declared to the Constitutional Convention that he would ‘never concur in upholding domestic slavery,’ that ‘nefarious institution’ based on ‘the most cruel bondages’—’the curse of heaven on the states where it prevailed.’ The great majority of the Framers joined Morris in fighting to ensure that slavery would be excluded from national law.”

“James Madison, the most influential delegate at the convention, explicitly repudiated the idea of building the union on slavery, stating that it would be ‘wrong to admit in the Constitution the idea that there could be property in men.’ Though himself a slaveholder, Madison wanted to guarantee that the Constitution, while it might tolerate slavery in the states where it existed, would neither enshrine human bondage in national law nor recognize it as legitimate.”

“A minority of the Framers, from the lower South, disagreed, but they believed slavery was no evil at all. ‘If slavery be wrong,’ Charles Pinckney of South Carolina declared, ‘it is justified by the example of all the world.’ Far from a necessary evil, Pinckney thought slavery was a necessary good, as it had been for time immemorial. ‘In all ages,’ he claimed, ‘one half of mankind have been slaves.’”

“There was, to be sure, one delegate who resembled Senator Cotton’s description: Pinckney’s cousin, Charles Cotesworth Pinckney, also from South Carolina. At one point in the convention debates, a perturbed Cotesworth Pinckney registered a complaint, seeming to desire, Madison noted, ‘that some provision should be included in favor of property in slaves.’ That would have based the Union firmly on the constitutional right of slavery. And Cotesworth Pinckney did come close to calling slavery a necessary evil, noting that without it the Carolina economy could not survive (which was technically correct). But the convention majority, far from agreeing with anything he said, dismissed his objection out of hand.”

“The Constitution was hardly an antislavery document. Through fierce debates and by means of backroom deals, the lower South slaveholders managed to win compromises that offered some protection to slavery in the states: the notorious three-fifths clause giving an allotment of House seats and Electoral College votes based on a partial counting of enslaved persons; a twenty-year delay in authorizing Congress to abolish the nation’s involvement in the Atlantic slave trade; and a fugitive slave clause. Most importantly, the Constitution by implication barred the new federal government from directly interfering with slavery in the states where it already existed.”

“But neither did the Constitution, as Senator Cotton wrongly claims, establish slavery as necessary to the Union. It’s true that a few proslavery delegates threatened that their states would refuse to join the Union unless their demands were met. This occurred with particular force with regard to the Atlantic slave trade. A majority of convention delegates wanted to empower the national government to abolish the horrific trade, striking the first blow against it anywhere in the Atlantic world in the name of a sovereign state. Appalled, the lower South delegates, led by South Carolina’s oligarchs, threatened to bolt if the convention touched the slave trade in any way, but the majority called their bluff.”

“In the end, the proslavery delegates carved out the compromise that prevented abolishing the trade until 1808, salvaging a significant concession, though there could be little doubt that the trade was doomed. Even with this compromise, the leading Pennsylvania abolitionist Benjamin Rush hailed the slave trade clause as ‘a great point obtained from the Southern States.’ His fellow Pennsylvanian and a delegate to convention, James Wilson, went so far as to say that the Constitution laid ‘the foundation for banishing slavery out of this country.’”

“History, of course, proved Wilson wrong—but not completely wrong. With the rise of the cotton economy, based on the invention of the cotton gin, which Wilson could not have foreseen, American slavery was far from stymied, but grew to become the mightiest and most expansive slavery regime on earth, engulfing further territories—including Cotton’s own Arkansas.”

“The Framers’ compromises over slavery had little to do with it, however. The problem was not primarily constitutional but political: so long as a substantial number of Northerners remained either complacent about slavery’s future, indifferent to the institution’s oppression, or complicit in the growth of the new cotton kingdom, the Constitution would permit the spread of human bondage.”

“Even so, in fact, the Constitution contained powerful antislavery potential. By refusing to recognize slavery in national law, the Framers gave the national government the power to regulate or ban slavery in areas under its purview, notably the national territories not yet constituted as separate states. The same year that the Framers met, the existing Congress banned slavery from the existing territories north of the Ohio River under the Northwest Ordinance, a measure reflected in the Constitution, which the new Congress quickly affirmed when it met in 1789. Later antislavery champions, including Abraham Lincoln, always considered the Northwest Ordinance to be organic to the Constitution; proslavery advocates came to regard it as an illegitimate nullity.”

“In time, as antislavery sentiment built in the North, the condition of slavery in the territories and in connection with the admission of new states became the major flashpoint of conflict, from the Missouri crisis of 1819–1821 to the guerrilla warfare of ‘Bleeding Kansas.’ Proslavery champions like John C. Calhoun of South Carolina invented an argument that denied the Congress any power over slavery in the territories; Lincoln and his fellow Republicans refuted that argument. And upon Lincoln’s election as president in 1860, this constitutional issue was enough to spark the secession that led to the Civil War and Emancipation.”

Senator Cotton has some mistaken things to say about that history, too. The Framers, he asserts, built the Constitution ‘in a way, as Lincoln said, to put slavery on the course to its ultimate extinction.’ This absurdly imputes to the Framers powers of clairvoyance. Although Lincoln sometimes suggested that the Framers had purposefully designed slavery’s abolition—even Lincoln could wishfully exaggerate—the Constitution hardly ensured slavery’s doom. It took Lincoln’s and the antislavery Republicans’ concerted political efforts to vindicate the Constitution’s antislavery elements that set the stage for what Lincoln in his ‘House Divided’ speech of 1858 called ‘ultimate extinction.’”

“Far from establishing a Union based on what Senator Cotton calls the ‘necessary evil’ of slavery, the Founders fought bitterly over human enslavement, producing a document that gave slavery some protection even as it denied slavery national status and gave the federal government the power to restrict its growth—and so hasten its demise. The slaveholders, unable to abide that power, eventually seceded in an effort to form a new slaveholders’ republic, with a new Constitution built entirely on slavery: its cornerstone, as the Confederate Vice President Alexander Stephens declaimed, was ‘the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.’”

“As far as a Union founded on the ‘necessary evil’ of slavery is concerned, Cotton appears unaware of how profoundly the Constitution of the United States of America differed from that of the Confederate States of America.”

Wilentz’ Longer Account of the U.S. History of Slavery[3]

In November 2019, Wilentz, delivering the fourth annual Lecture in honor of Philip Roth, drew upon the novelist’s insight that history was “the relentless unfolding of the unforeseen” or “where everything unexpected in its own time is chronicled on the page [of history] as inevitable.” For “the centrality of slavery to American history,” Wilentz says, “the United States was defined, from the start, neither by American slavery alone or by American antislavery but in their conflict” and “few things if any in modern history were more unexpected than the eradication of human bondage in the Atlantic world.”

This was so even though “the ideals that propelled the American Revolution shared crucial origins with the ideals that propelled antislavery. Yet American slavery did not die out as most expected” with “revolutionary America” as a “hotbed of antislavery politics.” In fact, slavery “expanded, turning the American South into the most dynamic and ambitious slavery regime in the world” with “slaveowners [stiffening ] their resolve to affirm their property rights in human beings” and coming “perilously close to establishing an American empire of slavery.”

Conclusion

These ideas of Wilentz help us understand why he and the other four prominent American historians dissented from at least one of the major premises of The Project of 1619, which will be discussed in a future post.[4]

Although I was a history major many years ago at Grinnell College, I do not have the intimate knowledge of the slavery and antislavery conflicts that are discussed by Professor Welentz. Nevertheless, I wonder whether he is overreacting to Senator Cotton’s comment.

The Constitutional Convention in Philadelphia convened in 1787 to consider whether and how to amend the existing Articles of Confederation after Alexander Hamilton’s report on the  unsuccessful attempt to do so at the Annapolis Conference of 1786 coupled with his forceful criticism of those Articles and recommendation of the calling of a convention to “render the constitution of the federal government adequate to the exigencies of the union.”[5]

For the first two months or so of the Constitutional Convention there were debates between delegates from large and small states, between those favoring states-rights and those wanting a strong national government. “By the end of June the convention seemed in danger of dissolving, with nothing accomplished.” That, however, was prevented when the Convention accepted a proposal by Oliver Ellsworth of Connecticut (“the Great Compromise”) for equal representation of the states in the Senate and proportional representation by population in the House. Thereafter other compromises were reached, including counting three-fifths of the slaves for representation in the House.[6]

In other words, many compromises were necessary in order to obtain agreement on the new Constitution before it could be submitted to the states for ratification. Some of those compromises accommodated slavery while others did not. As Wilentz said, the Constitution “gave slavery some protection even as it denied slavery national status and gave the federal government the power to restrict its growth—and so hasten its demise.” In short, compromises with the evil of slavery were necessary in order to create the new Constitution.

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[1] Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo, dwkcommentaries.com (Aug. 3, 2020);  Senator Cotton Continues Criticism of The 1619 Project, dwkcommenataries.com (Aug. 10, 2020).

[2] Wilentz, What Tom Cotton Gets So Wrong About Slavery and the Constitution, N.Y. Review of Books (Aug. 3, 2020).

[3] Wilentz, American Slavery and ‘the Relentless Unforeseen,’ N.Y. Review of Books (Nov. 19, 2019).

[4]  See Historian Wilentz and New York Times Editor Exchange Views About The 1619 Project, dwkcommentaries.com (forthcoming Aug. –, 2020).

[5] Williams, Current & Freidel, A History of the United States [To 1876], pp. 170-72  (Alfred A. Knopf, New York, 1959.) (This is my book from college and comments from others with more detailed knowledge of the Constitutional Convention are solicited.)

[6] Id. at 172-77.

Electoral College Electors Do Not Have Discretion To Vote Contrary to Their State’s Voters 

On July 6, the U.S. Supreme Court decided two cases about so-called “faithless” electors who in the 2016 Electoral College voted contrary to the majority of their state’s voters in the popular presidential election of that year.[1]

The headnotes in the Chiafalo case that the Court held that a “State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice for President.”

The Opinion of the Court in Chiafalo was written by Justice Elena Kagan and joined by all the other justices except Justice Thomas, who filed a separate concurring opinion.

The Court’s Opinion first set forth an extensive review of the history of Article II of the Constitution that established the Electoral College,[2] the Twelfth Amendment of 1804 that required separate votes for President and Vice President in the Electoral College[3] and other relevant history. The Opinion then concluded as follows:

  • “Article and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. [The State of Washington imposed a civil fine of up to $1,000 for breach of such a pledge.] Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”

=================================

[1] Chiafalo v. Washington, No. 19-465 (U.S. Sup Ct. July 6, 2020); Colorado Dept of State v. Baca, No. 19-518 ((per curiam) U.S. Sup. Ct. July 6, 2020)(“The judgement of the United States Court of Appeals for the Tenth circuit is reversed for the reasons stated in Chiafalo v. Washington.” ) See also Liptak, States May curb ‘Faithless Electors,’ Supreme Court Rules, N.Y. times (July 6, 2020); Barnes, Supreme Court says states may require presidential electors to support popular winner, Wash. Post (July 6, 2020).

[2] Article II, sec. 1, cl. 2 states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

[3] The Twelfth Amendment states: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . .; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.” The Twelfth Amendment goes on to say, “ The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed . . . .The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of Electors appointed . . . “ [This Amendment also established procedures if there is no one with a majority of the votes for either or both offices.]

 

Pandemic Journal (# 20): Oprah Winfrey’s Challenge to the Pandemic Classes of 2020   

On May 15, Oprah Winfrey gave an inspiring online commencement address to all graduating high school and college members of the classes of 2020, the pandemic classes. Here is what she said.[1]

“[N]ever has a graduating class been called to step into the future with more purpose, vision, passion, and energy and hope.”

“Every one of us is now being called to graduate, to step toward something, even though we don’t know what. Every one of us is likewise now being called to temper the parts of ourselves that must fall away, to refine who we are, how we define success and what is genuinely meaningful. And you, the real graduates on this day, you will lead us.”

“It’s vital that you learn, and we all learn, to be at peace with the discomfort of stepping into the unknown. It’s really OK to not have all the answers. The answers will come for sure, if you can accept not knowing long enough to get still and stay still long enough for new thoughts to take root in your more quiet, deeper, truer self. The noise of the world drowns out the sound of you. You have to get still to listen.”

“Can you, the class of 2020, show us not how to put the pieces back together again, but how to create a new and more evolved normal, a world more just, kind, beautiful, tender, luminous, creative, whole? We need you to do this, because the pandemic has illuminated the vast systemic inequities that have defined life for too many for too long. For poor communities without adequate access to health care, inequality is a pre-existing condition. For immigrant communities forced to hide in the shadows, inequality is a pre-existing condition. For incarcerated people, with no ability to social distance, inequality is a pre-existing condition. For every person burdened by bias and bigotry, for every black man and woman living in their American skin, fearful to even go for a jog, inequality is a pre-existing condition.”

“You have the power to stand for, to fight for, and vote for healthier conditions that will create a healthier society. This moment is your invitation to use your education to begin to heal our afflictions by applying the best of what you’ve learned in your head, and felt in your heart. This moment has shown us what Dr. King tried to tell us. Decades ago, he understood that ‘we are caught in an inescapable network of mutuality, tied into a single garment of destiny.’”

“Whatever affects one directly affects all indirectly. If humanity is a global body, every soul is a cell in that body, and we are being challenged like never before to keep the global body healthy by keeping ourselves healthy in mind and body and spirit. As all the traditions affirm, the deepest self-care is at once caring for the human family.”

We “see this so clearly with essential workers. Look who turns out to be essential: teachers — your teachers, health care workers, of course, the people stocking grocery shelves, the cashiers, the truck drivers, food providers, those who are caring for your grandparents, those who clean the places where we work and shop and carry out our daily lives. We are all here because they, at great and profound risk, are still providing their essential service.”

“What will your essential service be? What really matters to you? The fact that you’re alive means you’ve been given a reprieve to think deeply about that question. How will you use what matters in service to yourself, your community and the world?”

Comments

I concur that “the pandemic has illuminated the vast systemic inequities that have defined life for too many for too long.”

It also has illuminated the many antiquated aspects of the American government that need to be eliminated or substantially reformed—the Electoral College, the U.S. Senate in which every state has two senators regardless of population, the Senate’s filibuster rule, the needlessly complex structure for voting that allows some states to suppress voting by minorities or citizens who favor the other political party from those in charge. The more specific need this year is prevent the re-election of Donald Trump and any attempt by him and his allies to subvert the election.

So too there are many aspects of the American economy that need to be substantially reformed, such as the immense differences in compensation of corporate CEO’s and the essential hourly employees. For example, the CEO of Target Corporation had total compensation of $21.6 million for fiscal 2019-20 while “essential” employees in its stores in April 2019 had their hourly wage boosted to $13 with the goal of reaching $15 by the end of 2020 and on March 22, 2020, were advised that they would receive an additional $2 per hour through at least May 2. [2]

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[1] Winfrey, Virtual Commencement Address, Facebook (May 15, 2020); Bogei-Burroughs, Oprah to Class of 2020: ‘What Will Your Essential Service Be?’, N.Y. Times (May 15, 2020).

[2] Kennedy, CEO Pay Watch: Target’s Brian Cornell made $21.6 million last fiscal year, StarTribune (April 23, 2020); Reagan, Target raises its minimum wage to $13 per hour, with goal of reaching $15 by end of 2020, CNBC (April 4, 2019); Wilson, Target gives raises, bonuses to employees during coronavirus pandemic, WTHR 13 (Mar. 24, 2020).

 

 

Prominent Republicans Unite To Defeat Donald Trump’s Re-election

 Eight prominent Republicans have formed The Lincoln Project to hold “accountable those who would violate their oaths to the Constitution and would put others before Americans.” Their mission is to “defeat President Trump and Trumpism at the ballot box.” This mission is explained in its website and a Washington Post article, which are discussed below along with information about these prominent Republicans.

The Lincoln Project’s Website[1]

Like President Abraham Lincoln during the Civil War, “Today, we find ourselves divided again – sectionalism in the country and factionalism in government has led to ever uglier examples of how our political system is failing. President Donald Trump and those who sign onto Trumpism are a clear and present danger to the Constitution and our Republic. Only defeating so polarizing a character as Trump will allow the country to heal its political and psychological wounds and allow for a new, better path forward for all Americans.”

The Project’s Advisors  say they “do not undertake this task lightly nor from ideological preference. Our many policy differences with national Democrats remain. However, the priority for all patriotic Americans must be a shared fidelity to the Constitution and a commitment to defeat those candidates who have abandoned their constitutional oaths, regardless of party. Electing Democrats who support the Constitution over Republicans who do not is a worthy effort.”

Their Washington Post Article[2]

The article states, “This November, Americans will cast their most consequential votes since Abraham Lincoln’s reelection in 1864. We confront a constellation of crises: a public health emergency not seen in a century, an economic collapse set to rival the Great Depression, and a world where American leadership is absent and dangers rise in the vacuum.” It then criticises President Trump and praised Joe Biden, the presumptive Democratic presidential nominee.

Criticism of President Trump

“Today, the United States is beset with a president who was unprepared for the burden of the presidency and who has made plain his deficits in leadership, management, intelligence and morality.”

“For Trump, the presidency has been the biggest stage, under the hottest klieg lights in a reality show of his making. Every episode leaves the audience more shocked and divided. Trump’s only barometer is his own ego. The country, our values and its people do not factor into Trump’s equation”

“The coronavirus crisis is a terrifying example of why real leadership looks outward. This crisis, the deaths and economic destruction are immeasurably worse because Trump and his administration were unwilling to do what was necessary to mitigate its worst effects and bring the country back as quickly as possible.”

“We’ve seen the damage three years of corruption and cultish amateurism can do. This country cannot afford to be torn apart for sport and profit for another term, as Trump will surely do.”

“We are in a transcendent and transformative period of American history. The nation cannot afford another four years of chaos, duplicity and Trump’s reality distortion. This country is crying out for a president with a spine stiffened by tragedy, a worldview shaped by experience and a heart whose compass points to decency.”

Praise for Joe Biden

“Biden is now the presumptive Democratic nominee and he has our support. Biden has the experience, the attributes and the character to defeat Trump this fall. Unlike Trump, for whom the presidency is just one more opportunity to perfect his narcissism and self-aggrandizement, Biden sees public service as an opportunity to do right by the American people and a privilege to do so.”

“Biden is a reflection of the United States. Born into a middle-class family in coal-country Pennsylvania, he has known the hardship and heartbreak that so many Americans themselves know and that millions more are about to experience.”

“Biden’s personal tragedies and losses tested his strength, his faith and his determination. They were enough to crush most people’s spirit, but Biden emerged more compassionate toward the suffering of others and the burdens that life imposes on his fellow Americans.”

“Biden did what Americans have always done: picked himself up, dusted himself off and made the best of a bad situation. In the years since he first entered office, Biden has consistently demonstrated decency, empathy and humanity.”

“Biden’s life has been marked by triumphs that didn’t change the goodness in him, and he is a man for whom public service never went to his head. His long record of bipartisan friendship and cross-partisan legislative efforts commends him to this moment. He is an imperfect man, but a man who loves his country and its people with a broad smile and an open heart.”

“Biden understands a tenet of leadership that far too few leaders today grasp: The presidency is a life-and-death business, that the consequences of elections have real-world effects on individual Americans, and that all of this — all of the struggle, toil and work — is not a zero-sum game.”We asked ourselves: How would a Biden presidency handle this [coronavirus] crisis? Would he spend weeks lying about the risk? Would he look to cable news, the stock market and his ratings before taking the steps to make us safer? The answer is obvious: Biden will be the superior leader during the crisis of our generation.”

 The Lincoln Project’s Advisors

The prominent Republicans behind this Project are the following:

  • George Conway III, “a lawyer in New York City and a founding member of , a group of conservative and libertarian lawyers organized to defend the rule of law.”
  • Reed Galen, “an independent political strategist [who] left the Republican Party in 2016 and has spent the last three years dedicated to the political reform movement, creating a better system for all voters.”
  • Jennifer Horn, “a communications strategist and former Chairman of the NH Republican Party [who] was the first Republican woman in New Hampshire nominated for Federal office.”
  • Mike Madrid, “a Republican strategist and former political director of the California Republican Party [who] serves as a senior advisor to the California Latino Economic Institute.”
  • Steve Schmidt, “a national political strategist [who] previously worked for President George W. Bush, Senator John McCain and Governor Arnold Schwarzenegger.”
  • Ron Steslow, “a brand and marketing strategist and independent political consultant [who after] leaving the GOP in 2016,. . . has worked to put voters first in our political system.”
  • John Weaver, “a national political strategist [who] worked for President George H.W. Bush, Senator John McCain and Ohio Governor John Kasich.”
  • Rick Wilson, “a long time Republican media consultant and author of the New York Times bestselling book, “Everything Trump Touches Dies.”

Conclusion

These eight individuals deserve our nation’s applause. This blog already has set forth its opinion that the COVID-19 pandemic has proved the incompetence of President Trump and the need for his defeat in the November presidential election.[3]

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[1] The Lincoln Project.

[2] Conway, Galen, Schmidt, Weaver & Wilson, We’ve never backed a Democrat for president. But Trump must be defeated, Wash. Post (April 15, 2020).

[3] Pandemic Journal (# 11): Pandemic Proves Trump’s Incompetence, dwkcommentaries.com (April 14, 2020).

 

Open Letter to U.S. Senate from 70 Former Senators

On February 25, the Washington Post published an open letter to the U.S. Senate  from 70 former senators (by my count, 48 Democrats, 18 Republicans and 4 Independents), including three from my State of Minnesota (Dean Barkley (Ind.), Mark Dayton (Dem.) and Dave Durenberger (Rep.)). [1]

The Letter’s Contents

“Congress is not fulfilling its constitutional duties. Much of the responsibility rests on the Senate. We are writing to encourage the creation of a bipartisan caucus of incumbent senators who would be committed to making the Senate function as the Framers of the Constitution intended.”

“As their first priority, the Framers explicitly entrusted all legislative responsibility in Article I of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” To the extent that Congress doesn’t function as the Framers intended, policymaking is left to the less democratic executive and judicial branches.”

“Examples of Congress ceding its powers to the executive through the years include the power to regulate international trade, the power to authorize the use of military force in foreign conflicts and, when the president declares national emergencies, the power of the purse. In addition, the partisan gridlock that is all too routine in recent decades has led the executive branch to effectively “legislate” on its own terms through executive order and administrative regulation. The Senate’s abdication of its legislative and oversight responsibilities erodes the checks and balances of the separate powers that are designed to protect the liberties on which our democracy depends.”

“Anecdotally, we have been told by sitting members that the diminished state of the Senate has left them doubting whether there is any point in continuing to serve, and it has caused potential candidates to question whether the reality of Senate membership is worth the considerable effort and expense of running for office.”

“We do not want to give the impression that we served in some golden age when the Senate operated like clockwork and its members embraced one another as one big happy family. Of course, that was never the case. Senators have always advanced strongly held positions and have vigorously engaged in legislative combat. All of us have vivid memories of tense times with difficult colleagues. But that is just the point. By design, the Senate is the place where Americans with all their competing interests and ideologies are represented and where champions of those positions attempt to advance their causes and work through their differences. Many call the legislative process ‘sausage making.’ That is a fair assessment. Legislating is often messy, but it is America’s way of holding together a diverse nation.”

“Our concern is that the legislative process is no longer working in the Senate. Several factors may be cited: Senate committees have lost responsibility for writing legislation. Rules allowing extended debate, a feature of the Senate that is essential to protecting the rights of minorities, have been abused as the filibuster and cloture have shut down action on the Senate floor. It is now commonly said that it takes 60 votes to pass anything in the Senate. This is new and obstructionist; it takes 60 votes to invoke cloture in the once relatively exceptional event of a filibuster. Filibusters are now threatened as a matter of course, and are too readily acceded to. Neither in committee nor on the floor do rank-and-file members have reasonable opportunities to advance their positions by voting on legislation.”

“We believe a bipartisan caucus of incumbent members that promotes a fair opportunity for senators to participate in meaningful committee work as well as on the Senate floor could help restore the Senate to its essential place in our constitutional system. Its members would need to stand firm in the face of what could be strong opposition from partisans who prefer politicians who take intransigent positions over those who champion a legislative process that celebrates compromise.”

“This does not have to be viewed as a judgment on today’s Senate leadership; instead, it’s a bipartisan act of shared responsibility and accountability for how we arrived at this point. We, who once held the office you now hold and who are confident that service in the U.S. Senate is as high a calling for you as it was for us, will stand up for you against any partisan opposition. We will do so publicly and repeatedly in whatever available forums. And we are convinced that many ordinary Americans will stand up for you as well, as they share our concern for the state of our government.”

“We know that accepting this challenge may put some of you at political risk. But we are also confident that each of you chose to serve in public life to advance the cause of a “more perfect union.” Our hope is that all of you will accept this challenge to advance that timeless and higher purpose. The Senate — and the proper functioning of our republic — are simply too important to be allowed to continue on their present course.”

Comments

Thank you to all 70 of the former senators for taking this public action. As a citizen observer, I agree that “the Congress is not fulfilling its constitutional responsibilities,” that “much of the responsibility rests on the U.S. Senate,” that “Congress has ceded too much power to the executive,” that “committees have lost responsibility for writing legislation” and that there has been “abuse of the [Senate’s] filibuster and cloture rules.”

However, regrettably it seems unlikely to this citizen that during the next eight months of a presidential and senatorial election campaign that there will be the creation of a bipartisan senatorial caucus to reform various Senate procedures.

Moreover, such an effort obviously assumes no changes in the basic constitutional structure of the Senate. For this citizen, a major defect of the current Constitution is the assignment of two senate seats to every state regardless of population and hence the over-representation of land, instead of citizens. That, of course, would require a constitutional amendment. One such amendment would keep two senators for every state under a weighted voting system granting larger votes to the two senators from California, for example. [2]

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[1] 70 former U.S. senators: The Senate is failing to perform its constitutional duties, Wash. Post (Feb. 25, 2020). 

[2] See The Antiquated Constitutional Structure of the U.S. Senate, dwkcommentaries.com.(Oct. 23, 2016). See also these posts to dwkcommentaries.com:  U.S. Senate’s Filibuster Rule Under Attack (May 15, 2012); Former U.S. Senator and Vice President, Walter Mondale, Supports Changing the  Senate Filibuster Rule (.May 15, 2012); District Court Dismisses Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule (Dec. 22, 2012); U.S. Senate Adopts Modest Reform of Its Filibuster Rule (Jan. 24, 2013);U.S. Needs More Democratization (Feb. 14, 2020); Responses to Ezra Klein’s Democratization Thesis (Feb. 15, 2020).