Tag Archives: supreme court

All Posts, civil rights, Congress, Constitution, justice

LET’S CONTINUE ARGUING

It was on July 4, 1776 that representatives of the people of every colony unanimously announced themselves as member states that would form a new nation.   Before there was a constitution or a president, there was our Declaration of Independence.

In just one eloquent sentence that declaration laid the philosophical foundation for the United States of America, its Constitution, laws and traditions.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  That sentence provides glimpses of the shining city on the hill that Americans aspire to build.  As each generation adds to the city, there are debates and battles over laws, the role of government and our vision for the future. Continue reading LET’S CONTINUE ARGUING →

All Posts, Congress, Constitution, justice

REREADING THE CONSTITUTION

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When I’m confused and disappointed by the actions of our elected leaders, I sometimes get the urge to reread our Constitution.  Here are thoughts from a recent rereading.

From Article 1 Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”  Our Congress has the authority to standardize how and when we elect its members.  It seems reasonable to conclude that Congress could prohibit partisan gerrymandering.

From Amendment 14 Section 1:  “No State shall make or enforce any law which shall…deny to any person within its jurisdiction the equal protection of the law.”  Legislative districts are created by state law.  Here in North Carolina, the Legislature’s stated purpose in gerrymandering the districts was to elect Republicans to 10 of the 13 seats even though nearly half of voters actually vote for Democrats.  They achieved that goal.  The law that created gerrymandered districts seems to deny equal protection to citizens who disagree with Republicans.

From Article 2 Section 4: “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.”  Bribery would apply if a President accepted a bribe. Would it also be bribery if a Presidential candidate or his team agreed to not implement sanctions on Russia in exchange for information useful to their campaign?

The US Supreme Court has received gerrymandering cases from Wisconsin, Maryland, North Carolina and Pennsylvania.  The lower courts are so politicized that news reports generally include whether the judges were appointed by Democrats or Republicans.  The implication is that a judge is likely to rule in favor of the party that appointed her or him.  That is an awful but sadly credible assumption to make about our supposedly independent judiciary.

If the court rules against gerrymandering, that is likely to result in Democrats gaining seats in the House of Representatives.  In addition to being the body that originates federal budgets, the House is the body with authority to impeach a President – an action which a Republican led House might be more reluctant to consider.

If the Senate had approved President Obama’s nomination of Judge Merrick Garland to the Supreme Court, there would be a 5-4 split of Democrat vs Republican judges.  Instead, the Republican controlled Senate refused to even consider the nomination for months – in hopes of winning the presidency and getting a Republican nominee.  They succeeded in that; and with the confirmation of Judge Neil Gorsuch there is a 5-4 split favoring Republicans.  What will it say about our Supreme Court if a Gerrymandering decision is decided by that margin?

The Presidential election of 2000 may well have been swung from Al Gore to George W. Bush by a party-line 5-4 Supreme Court decision that stopped the Florida vote recount.  We’ll never know.  Nor will we know whether the US would have invaded Iraq and Afghanistan after 9-11 under President Gore.  Such decisions change our history in profound ways.

Underlying many of the suspicions, malfunctions and failures of our government is the increasingly bitter partisan divide. Note however, that political parties are not even mentioned in our constitution.  Only individuals, not political parties, have a constitutional right to be on a ballot.  To protect their power (and the President), Republicans are now attacking the credibility of important institutions including our FBI, CIA and Justice Department.  Russian agents have effectively used social media to discredit those same agencies.  How ironic is it to find Republican leadership and Russian espionage agents on the same side?

President Washington warned, in his farewell address, that political parties, “…are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.” It’s an apt description of current events.

Nations succeed and become great when most of the people support them and feel fairly treated.  When a large proportion feel mistrust and mistreated, nations fail.  Rather than “becoming great again”, our nation is in jeopardy due to citizen mistrust of elected officials.  My conclusion is that it’s up to voters to save the union. No one else can do it.

All Posts, civil rights, Constitution, justice, religion

WHO MAKES YOUR DECISIONS?

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There is a rising chorus of threats against the rights of Americans to make decisions about their own bodies.  Yes, I’m writing about abortion, not because I want to but because we now have a President and a Republican congressional majority who intend to impose their version of morality on every individual.  It’s un-American.  It’s dictatorial.  It’s patriarchal.  And they will absolutely do it unless freedom loving people stand up to them.

As preface, let’s acknowledge that consideration of abortion arises at a very difficult time in a woman’s life.  Our question is, “Who will make the decision, the woman or the government?”  Our judgments about her choice or her conscience are merely opinions.   Who decides?

For historical perspective, abortion is recorded in the earliest human histories.  Plato, for example, noted the ability of midwives to “…cause miscarriages if they think them desirable…”  Herbs, drugs and physical procedures for abortion have been generally known and widely used in every culture.  There is occasional documentation of moral or religious objections but historically, abortion was widely accepted without legal regulation or intervention.  The greatest concern was the risk posed by procedures and toxic herbs used to induce abortions.

In colonial and early America, abortion was common practice.  In the 19th century it was openly advertised and it was estimated that 20-25 percent of pregnancies were terminated by abortion.  Birth control options were limited; and at least half of abortions were among married women who had children and didn’t want or couldn’t afford more.

American religious objections evolved into attempts to ban abortion in the late 19th century, spurred by opposition to the emerging women’s rights and suffrage movements.  One notorious example of that radical religious movement is the Comstock Law of 1873.  It banned publication and teaching (even in medical schools) of any information regarding birth control, abortion or prevention of venereal disease.  Religious extremists had taken charge of the congress but clinics offering abortions continued to operate in many American cities.  Abortion continued to be available (often illegally and often dangerously) across the nation until the 1973 Supreme Court decision that overturned anti-abortion laws.

Since that time, misogynists and religious zealots have been fighting to re-impose their will on pregnant women.  Our Republican President and Congress are among them.  They certainly have the right to believe and teach whatever they choose; but they have no right to limit a woman’s full control of her own body.  That is where the battle line is drawn.

It is the nature of freedom that a person may do things – even make mistakes – which the majority of society disapproves.  For example, we allow parents to feed their children so much junk food that they are grossly obese, diabetic and destined for a life of disability before they start school. We don’t put the parents in jail for it.  Meanwhile religious zealots, obsessed with other people’s pelvic morality, insist on controlling one singular and personal aspect of a woman’s life – her pregnancy.

Among the zealots are those who put a velvet glove on the iron hand of tyranny by saying that they would allow abortion in cases of rape, or when the woman’s life would be endangered by the pregnancy. Their self-righteousness leaves them with no doubt that they know better what is right for her and her body than she does. They reserve to themselves the right to judge her motives and to require that if her sexual encounter was consensual then she will be denied an abortion.  Can you think of any other issue where laws might delve so intensely into personal matters?

Invariably we wish that whatever problem caused a woman to decide for abortion had not occurred.  With that in mind, we should acknowledge and celebrate the fact that the abortion rate in America is now at or near the lowest level in our history.  That success is due in large part to good information about birth control and inexpensive access to it.  But our nation is divided, even on that.

Abortions will continue because the reasons why some women choose them have not changed since Plato’s time.  But if Republicans have their way, abortions won’t be legal and safe.  If religious zealots are allowed to impose their will through force of law, they won’t stop with abortion, and you need not bother ask for whom the bell will toll.  It will toll for freedom.

All Posts, Constitution, guns, health, lgbtq, north carolina, poverty, public education, taxes, war

What to do on the morning after?

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The day after the election will be the first day of the rest of our lives. What should we expect of our elected officials? Will we help or undermine each other and elected leaders?  If individuals, families and communities listen to each other’s ideas and agree on how to move forward together, we can invigorate the idea of “commonwealth”, a society that is organized to benefit all.  Everybody wins.  If, on the other hand, winners kick losers while they’re down in order to maintain dominance and if losers do all they can to stop winners from implementing their ideas then the republic will decline.  Everybody loses.

It’s happened in great societies throughout history and it’s especially clear in the Bible’s Old Testament. When those in power dominate and abuse the powerless, everybody loses and the society fails.  When the principle of commonwealth guides decisions, the society blossoms.

Poverty, income inequality and homelessness are at crisis levels in many places.  Rural America has depended on agriculture and manufacturing to provide family incomes and property tax revenue for local governments.  Both of those economic sectors now produce more goods with fewer people than ever before.  At the same time that rural employment opportunities paying middle class wages have become scarce, the tax revenues of rural communities have stagnated.  Budgets for public education, safety, and human services are under severe stress at a time when they are critical to redevelopment of communities.  The plight of rural America has much in common with high poverty neighborhoods of urban America.  Low incomes and insufficient resources have similar effects in both places.

Will legislatures reconsider how public services are funded and which tax revenues are available at local, state and federal levels?  Will high poverty areas have funding for education, high-speed internet, water, sewer, quality of life, health and other priorities at a level that is proportionate to wealthy areas?  If not, will their future be inter-generational poverty and emigration of successful residents to more desirable areas?  Will legislators work at solving the underlying problems or will they pit urban vs rural and white vs black vs Hispanic for partisan gain?

What about the sanctity of human life?  Will we expect our congress, legislatures and executives to behave as if “all lives matter”?  Does someone who wants a gun have the right to own an assault rifle designed for mass killing?  Does a woman have the right to remove a fetus from her body?  In which decisions should government have a role?

Conflicts between personal and constitutional values will not be fully resolved but can we make progress for the common good?   Could we agree to reduce the demand for abortion by providing free birth control, better access to pre-natal care, simple and inexpensive adoption procedures, and by solving our income inequality problems?   Will we expect legislators to find ways to preserve gun ownership for self-defense and recreation while getting weapons designed for mass killing out of circulation and screening gun purchasers to rule out suspected terrorists and known criminals?  Or will we reward leaders for continuing to insult each other?

The Republican controlled Senate has refused to consider President Obama’s nominee to the Supreme Court.  They hope to win the Presidential election and get a conservative-leaning nominee. Senators Richard Burr and Ted Cruz have made the radical statement that if Hillary Clinton is elected, they will refuse to confirm nominees and let the court shrink.  That abrogation of a senator’s constitutional responsibility would invite similar behavior from Democrats toward a Republican president. Will we insist that senators fulfill their constitutional duties?

Differences of race, wealth, religion and philosophy divide us on a long list of issues: immigration, transpacific partnership, climate change, war, taxes, LBGTQ rights, health care, and more.

We’re not all going to miraculously agree after the election. Continued success for our republic will require two things of us.  First, we must look honestly at facts.  Second, we must engage each other in ongoing conversation (listening more than arguing) about the principle of commonwealth – making decisions and laws that create opportunity and peace for all of us.

Our legislators are capable of that, but they will do it only if they know that we voters expect it, demand it, and that we’re doing it ourselves.

We can start on November 9.

All Posts, civil rights, Constitution, ethics, north carolina, race

Should we stand for our national anthem?

After months of complaints from the political right about PC limitations on speech and discussion, it is ironic that those same right wingers see a national scandal  in Colin Kaepernick’s refusal to stand for our national anthem.  Like Muhammad Ali and Olympic Athletes of 1968, he is using his celebrity status to bring attention to what many see as American racism.

Kaepernick’s voice is but one in a crescendo criticizing the “land of the free”.  Leaders from African American and Latino communities have politely spoken their minds on voting rights, law enforcement, criminal justice, public education and income inequality.  Not much happened.  If quiet and polite voices are ineffective, louder ones are to be expected. Whether it is an NAACP Chapter, a Latino Coalition, Black Lives Matter, the American Civil Liberties Union or  some other organization, their list of unaddressed concerns is long.

Since passage of civil rights laws in the 1960s, many Americans, believe that we live in a post-racial society.   We don’t.  Our problems extend to the heart of democracy, consent of the governed.

It is with those thoughts in mind that I looked into the controversies surrounding North Carolina’s new voting law as one example among many concerns.  For a more complete account, read Appeal-16-1468 published by the Fourth Circuit United States Court of Appeals.  It overturned portions of the law because of its discriminatory intent.

The court found that the law was specifically designed to target African Americans and said, “…by 2013 African American registration and turnout rates had finally reached near-parity with white registration and turnout rates. African Americans were poised to act as a major electoral force. But, on the day after the Supreme Court issued Shelby County v. Holder, 133 S. Ct. 2612 (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.”

The court also found that, “Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation  … the State took away [minority voters’] opportunity because [they] were about to exercise it. … Faced with this record, we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.”

Here are a few examples of discrimination that the court found in the law.  In deciding which forms of identification would be acceptable for voting, the legislature used racial data to select IDs that whites are more likely to have than minorities.  They used racial data to eliminate voting opportunities that were used more heavily by African Americans than whites.  Similar processes were used to determine early voting days,  eliminate same day registration, and eliminate out-of precinct voting.

North Carolina’s law was crafted by Republican leadership in secret sessions with advice from consultants employed by attorneys so that documentation of their work would not be available to the public.  The court found that “… after the General Assembly finally revealed the expanded (law) to the public, the legislature rushed it through the legislative process…in three days: one day for a public hearing, two days in the Senate, and two hours in the House.”

The law passed by party line vote.  Every Republican legislator supported it.  I don’t think they are all racists.  Instead, I think they are much like the Democrats who passed racist laws in the Jim Crow era.  They bowed to pressure to win elections and one way to win elections is to keep the opposition from voting.  That’s what they did, and it is an example of 21st century racism in operation.

Because of laws like this one and other grievances, some people don’t honor our national flag and anthem.  Would you honor the flag of a nation that did such things to you? I’ll continue to pledge allegiance because our courts generally overturn unjust laws and because we’re free to replace those who passed a racist law at our next election.  It’s time to have a record voter turnout.

 

All Posts, Constitution, justice

POPULISM VS THE CONSTITUTION

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“The Constitution says what it says, and it doesn’t say anything more.”   “The judge who always likes the results he reaches is a bad judge.” –  Recently deceased Supreme Court Justice Antonin Scalia

“(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court…(and)  shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” –  US Constitution, Article II, Section 2

“Except when it would make us unpopular with our constituents or donors” – This is not a quotation.  It is a conclusion based on the behavior of elected officials.

President Obama says that he will follow the constitution and do his job by nominating someone to fill the Supreme Court vacancy created by Judge Scalia’s death.  Senate Majority Leader, Mitch McConnell says that he will not allow a vote on any candidate nominated by President Obama.  McConnell is backed by other Republican leaders who have pledged not to meet with nominees or hold hearings to consider them.  They argue that the nomination should be delayed until after the next Presidential election so that voters can influence the matter.  But voters have already spoken.  We elected a Republican majority to the Senate and a Democrat as President (twice).

In this matter the President is following the Constitution and Senate Republicans are not.  Republicans accurately respond that Democrats have done similar things, including seeking to delay nominations to the Court until they had a chance to win a Presidential election.  We could reasonably ask leaders of both parties, “Didn’t your parents teach you that two wrongs don’t make a right?”

Which ones have been doing their jobs and serving the nation?
Which ones have been doing their jobs and serving the nation?

The behavior of both parties is particularly onerous when they attempt to manipulate the composition of the Supreme Court in order to influence its decisions on specific issues.  Most Republican officeholders interpret the Constitution as allowing state or federal laws that ban all abortions while Democrats think it protects the rights of women to make decisions about their own bodies.  The battle lines over marriage equality, regulation of gun ownership, immigration and other social issues are drawn in approximately the same place.

On each side of our hot social issues there are powerful advocacy groups with vocal supporters demanding that elected officials do whatever it takes to win the day.  They often insist that office holders ignore constitutional obligations if that will help their cause.  Anyone who doesn’t comply is likely to face well-funded opposition in the next primary election.  That is how populism works.

Populist behavior is as old as our nation and its constitution.  President Andrew Jackson and the Congress provided an early and extreme example.  The United States agreed by treaty that The Cherokee Nation was independent, with its own legal boundaries but white settlers (illegal immigrants) persisted in occupying Cherokee land.  When Cherokees removed some white settlers forcibly, they demanded military protection. Then gold was discovered on Cherokee land and the problem quickly escalated.  States passed laws banning meetings of the Cherokee legislature and argued that the federal government had no right to intervene in state affairs. The US Supreme Court ruled in favor of the Cherokees but American voters and powerful interest groups wanted the gold and the land.  President Jackson, with support of the Congress, defied the Supreme Court and allegedly said of the Chief Justice, “John Marshall has made his decision.  Now let him enforce it.”  Jackson dispatched the Army to remove the Cherokees from their land, sending them on a journey to Oklahoma that we now call the “Trail of Tears”.  If ever there was a time when a Congress should properly have impeached a President and removed him from office, this was it.

When you hear the word “populist” used to describe a politician, it may refer to someone who will do whatever it takes to implement the will of his hard-core constituents, even defying the Constitution, courts, and laws to the extent that he can.  Andrew Jackson, George Wallace, Joe McCarthy, and Donald Trump are a few examples.  They are very dangerous because they are willing to sacrifice the principles of a free nation on the altar of one special cause if that will get them elected.  If you notice one of them running for office, I hope you’ll vote for someone else.  I plan to.

CLICK BELOW

to hear Harold Thom and the Cumberlands sing the story of Cherokee Chief Junaluska,  who saved Andrew Jackson’s life then lived to regret it after walking The Trail of tears.

All Posts, campaign finance, north carolina, race

MAKING DEMOCRACY POINTLESS

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“Making Democracy Pointless” should be the new tagline of North Carolina government.  The Republican Party has seized  nearly election-proof and court-proof control of choosing the state’s representatives in Congress.  Their methods were mostly legal, but that doesn’t make them ethical.  The harm they have done extends beyond the actions of the officials they elected.  They have confirmed cynical suspicion that our votes don’t matter – that democracy is indeed pointless.  That is a terrible fate for government of, by and for the people.

Here’s how they did it:

  1. Prior to 2010 elections, the Washington DC based Republican State Leadership Committee (RSLC) contributed $1.25 million to “Real Jobs NC” an organization launched by wealthy Republican donors including Art Pope.  By targeting about two dozen state legislative races for huge spending and attack ads against Democrats, they won both the house and the senate. That put Republicans firmly in charge of drawing congressional districts after the 2010 census.
  2.  The RSLCs map making team, armed with exceptionally sophisticated computer technology and data, were hired by the Republican legislature to draft congressional district maps.  Some work was supervised on-site by Art Pope, who was retained as co-counsel to the legislature.  The map-making strategy was simple – pack large concentrations of Democratic voters and African Americans into just 3 of North Carolina’s congressional districts. The remaining 10 districts would favor Republicans. The maps were tested prior to adoption by checking how voters in each new district voted in the last election.  The tests demonstrated that John McCain carried all ten of the “Republican” districts in the 2008 Presidential election despite losing the state to President Obama.

2012 election results proved the effectiveness of the Republican maneuvers.  With only 49 percent of the votes, Republicans won 69 percent of congressional races and changed the North Carolina congressional delegation from a 7-6 Democrat majority to a 9-4 Republican advantage.  In 2014 they achieved their desired 10-3 split.  Democrats won the  3  districts into which they had been packed with over 70 percent of the vote.

North Carolina is one example of the national Republican gerrymandering strategy.  Their website brags that,  “Democratic candidates for the U.S. House won 1.1 million more votes than their Republican opponents.  But the Speaker of the U.S. House of Representatives is a Republican and presides over a 33-seat House Republican majority during the 113th Congress.”  How much difference did gerrymandering make? Imagine the last four years with a narrow Democratic majority in the House of Representatives and a Democrat as Speaker of the House.  It probably made that much difference.

Republicans defend their actions by pointing out that Democrats did the same thing when they were in power.  It’s true.  Modern computer technology and data may have made Republicans more effective, but there’s no doubt that Democrats gerrymandered. Recently a few states including California and Iowa have implemented non-partisan or bi-partisan redistricting plans as attempts to assure fair elections.

Meanwhile, North Carolina’s maps have been thrown out by a panel of  federal judges who ruled that the influence of African American voters was unfairly reduced by packing the great majority of them into only three districts.  The US Supreme Court has declined to hear a Republican appeal.    North Carolina Republicans objected loudly to the court’s decision but they were well prepared for it.  They have proudly presented new maps which they say are designed keep their current 10-3 advantage in the congressional delegation.

The court forbade gerrymandering to disenfranchise a race of people.  But gerrymandering for partisan advantage is merely unethical, not illegal.  Republicans intend to select their voters again, rather than allowing voters to select their representatives.  And it seems unlikely that courts will stop them.

We need new redistricting laws at the state or federal level to preserve our democracy.  There are Republicans as well as Democrats who feel the shame of cheating to win  elections and who want fair redistricting.  Now is a fine time time for all who value representative democracy to do what we know is right by creating  districts without unfair advantages for any group or party.

All Posts, Congress, health, religion, taxes

WILL LOSING IN COURT HELP WIN ELECTIONS?

On the horizon of America’s sometimes bizarre political landscape are two Supreme Court decisions with unusual implications.  Most conservatives and Republicans want the Court to rule that states can ban same-sex marriage and that Obama Care can’t subsidize the cost of health insurance in states that haven’t set up their own insurance exchanges.  Most liberals and Democrats are wishing for the opposite.  It may be that the political fortunes of the two parties will be better if they lose these cases than if they win. If Democrats and Liberals win both cases, then Republicans can continue to demonize the health care law for its imperfections and complain about activist judges who overturned the “will of the people” by allowing same-sex marriage. Republicans seem well prepared for losing in court, but not for the consequences of winning.  They have no plan for delivering affordable health care to low and middle-income Americans.  It isn’t free.  It is a fact that many people of modest means will suffer and die without health care if there is no tax-funded means to help pay for it.   Continue reading WILL LOSING IN COURT HELP WIN ELECTIONS? →

All Posts, Congress, health, taxes

Can Republicans survive success in the Obama Care lawsuit?

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What happens next if the Supreme Court rules that Obama Care can’t subsidize health insurance premiums in states that did not set up their own exchanges?  The pundits are saying that neither Republicans not Democrats have a contingency plan for that.  Maybe.  But there may be a way for the President to snatch victory from the jaws of a defeat at the court.  It might go something like this. Continue reading Can Republicans survive success in the Obama Care lawsuit? →

All Posts, health, justice, religion

SUPREME COURT LOGIC

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In decisions about Obamacare the Supreme Court has ruled that the federal government can levy a tax on individuals who do not purchase health insurance and that it can require employers who do not provide health benefits to pay a penalty (tax).   Only a few months later the court ruled that business owners who profess religious objections to some forms of birth control can opt out of that particular portion of coverage without paying a penalty.

Reductio ad absurdum is a Latin phrase that the Court’s Justices surely encountered in their introductory logic classes. It is a method of showing that a decision or argument is absurd because it gives rise to ridiculous or unworkable conclusions. Their decisions imply that five of the justices may have been napping during logic classes. Continue reading SUPREME COURT LOGIC →