Tag: constitution

Goethe, a Dead Italian Poet, and an American Presidency

In the late 18th century Johann Wolfgang Von Goethe completed a play loosely based on the late 16th century Italian poet Torquato Tasso.  Part autobiographical, according to one scholar, Goethe explores Tasso’s real-life moments of inspired poems created in the throes of mental illness, perhaps during episodes of manic depression or schizophrenia.  

At one point Tasso was confined to a ‘madhouse’ for pulling a knife on his patron, the Duke of Ferrara, Alfons.  In the play, the protagonist also was placed under house arrest for threats and pulling a knife.  Goethe uses the play to explore the ‘tensions between the rational and the irrational,’ according to one academic article. From this play comes the much-quoted saying, “the coward only threatens when he is safe.”

This is a cogent observation of the human condition, even if the quote has become something of a truism.  It worries me because our President seems to be threatening everyone and everything as he too shuttles between the rational and the irrational.  His knife is our military and domestic paramilitary police.

Things are not going well for Trump – mentally or politically — it seems.  

His war with Iran is a military, strategic, and political disaster.  Iran checkmated him.  Meanwhile, as the Strait of Hormuz remains closed and America’s main street economy tanks, Trump fiddles with childlike vanity projects.  

Inflation is rising at a quick pace, all because of Trump’s disastrous tariff wars and his catastrophe of a war with Iran, a war of choice.  Last week gas prices were at this country’s highest national average cost per gallon ….ever.  Americans, according to a new report, are falling behind in debt payments “at the fastest pace since the aftermath of the 2008 financial crisis.”  Credit card delinquencies rose to 13 plus percent in the first quarter of 2026.  Additionally, auto loan delinquencies are also at record numbers.  His polls are lower than sleepy Joes ever were.  

Internationally, the world is aghast at Trump’s pretenses of not only being King of America but seeking to rule the world.  At every opportunity he channels the evil emperor Ming the Merciless of Flash Gordon fame.  Trump’s daily mental ruptures are rattling global markets.  The 10-year government bond yield is at record highs, meaning sureness in the U.S. government ability to pay off its debts is declining.  Because mortgage rates are linked to the 10-year bond, not to the Fed’s rate that banks get, it means that mortgage rates remain stubbornly high, making it harder to buy a home. That’s Trump’s doing, not the Chairman of the Fed. In short, international confidence in America is in freefall. 

Yet, Trump seems wholly unconcerned with the mid-terms or 2028.  Just pleasing his MAGA base and ignoring the basic sensibilities of democracy and the democratic process. As if they no longer exist. He even posted an image of himself with a rifle and the carcass of a rhino.  Threatening Republicans who don’t back him 100 percent. 

 Why?  What does he have up his sleeve that makes him think he is safe from political disaster and reversal?

I can only guess he isn’t concerned about the Republicans losing the house and senate this November or the White House with a democratic incumbent in 2028.   That the outcomes of the vote of 2026 and 2028 are irrelevant; that he intends, and believes, he can and will stay in power. 

As Trump vacillates between the rational and irrational, he increasingly lives in the latter camp. I am deeply concerned that a mental health driven constitutional breakdown is becoming increasingly likely should neither his Cabinet or Congress intervene.  Given the cowardice of his cabinet Secretaries, Vice President, Roberts, Johnson, and Thune, Trump has nothing to fear and continues his campaigns of threats.

Corrupt

Corrupt is a word much used nowadays to describe Trump and his administration. I even heard it in Louisa in an establishment that I would say is part of MAGA country. A few weeks ago, when my wife and I were in a store in the Louisa and Mineral area, the owner standing behind the counter, went on a tirade about Trump and his corruption.  Stating that Trump and his family pocketed over $1.4 billion.  

I have been to this store several times and there has been, on occasion, anti-liberal, anti-progressive, anti-democratic party bantering and comments made by folks in the store and behind the counter.  For instance, if something was free, it was a “democratic discount.”  I stopped going to the store, but sometimes they were the only game in town.

That said, when I heard the owner dis Trump recently, I got a grin on my face as wide as the Grand Canyon, said nothing, paid for my stuff, and left.  “Damn,” I said to my wife in the truck, adding, “holy shit that was interesting.”  

Whether that anger translates at the polls to a dem vote, is to be seen.  It may turn into low republican turnout, which will benefit the democrats.  But who knows.  Who knows whether a corrupt White House will try and cancel the November election by declaring a national emergency, or, if there is an election, whether Trump will nullify democratic wins by claiming fraud and seize ballots.  That is the $1.4 billion dollar question.

Corrupt, however, is more expansive than simple bribery, self-dealing, insider trading, and all unethical things Trump is doing to enrich himself, his family, and those loyal to him.  It has a much richer and broader meaning.  Corruption is plush in adjectives and verbs dating back to the 14th century.

Like many words in English, it has a Latin origin.  It’s root meaning corrumpere, simply means to destroy to spoil.  In the English language starting in the 1300s it took on the modern sense of how we understand corruption, both physically and spiritually. Most folks nowadays think just bribery, but it has many meanings.   Sadly, I think you can put a check mark by each of the words below and say, “yep, that’s Trump.”

Debased in character, unhealthy, uncouth, bribe, to break, decrepit, putrid, putrefy, spoiled, depraved morally, pervert, contaminate, impair the purity of, seduce or violate (woman or child), render impure, and finally, influence by bribe or other motive.

Not only is Trump using the office of the Presidency to corruptly enrich himself and his family, but the list of his other corrupt acts is deep, and America decays and putrefies every day he remains in power:

he demolishes the rule of law in America every opportunity he has. 

he routinely perverts the course of justice;

he broke America’s social contract;

he debases America and its allies daily with wildly crazy midnight social media posts;

he orders extrajudicial killings on the high seas and starts unjust wars without cause and without the people’s consent.

he violated a woman in a department store dressing room, a civil jury found;

 he was accused by a woman of raping her when she was 13, per FBI documents;

he was a longtime friend with child sex trafficker Jeffrey Epstein;

he posts images of himself as Jesus.

And finally, he is personally uncouth, not worthy of the highest office in our great land.

So, what to do.  The first order is to vote in November, make pleas to friends and family to get out and vote.  That’s the easy party.  If Trump cancels the election or nullifies the election or tells congress not to seat the new congress, what then?  What’s the response? I think, and I believe this, it will be the beginning of the end of the union.  I don’t think disenfranchised states will wait for the courts.  

Civil War?  I hope not, and most Americans do not want this.  It would be fratricidal. Problem is Trump is an insane, corrupt nihilist who likes to play the madman, when he is in effect really a madman, surrounded by sycophantic child like nihilists like Vance, Miller, and Hegseth.  The question is, what will a depraved Trump do when massive demonstrations erupt across the country and in Washington DC should he cancel or nullify the elections?

A Supreme Mess: Roberts and His Den of Constitutional Thieves

“Good Morning Chief Justice Roberts, I see you put out the new signs”

We are, I think, in a supreme mess. A vindictive Chief Justice Roberts just settled a vendetta. As a Reagan Administration lawyer, Roberts opposed strengthening the Voting Rights Act. He penned memos arguing that letting someone sue a state for a ‘discriminatory effect’ was federal overreach, and interfered in states’ rights.

Despite his opposition to the amendment to the voting rights act, Congress in 1982 passed the bill in a bipartisan vote. Forty four years later he and five other conservative justices strike down that amendment as part of ten-year set of rulings undermining the law and Congresses’ intent. In effect stealing not only the Voting Rights Act, but the 15th Amendment, from the American people.

Congress clearly and resoundingly spoke on this major question in 1982. Now, the chief proponent of the Major Questions doctrine, says not good enough. If anything, the Voting Rights Act of 1965 was, and is, an example of Congress clearly stating its will, the will of the people, on a major constitutional question. That is enforcing the 15th Amendment.

This ruling highlights why we are in trouble as a nation. To the conservative super majority, It’s not about the Constitution, it’s about settling personal and political vendettas. Dangerously, the Robert’s Court is a corrupt right wing political machine, rewriting the Constitution at will. The increasing use and misuse of the shadow docket, anonymous rulings, labored arguments that collapse under their own weight, the outright fabrication of history and data, all point to a debased and crooked Court. A Court where profiteering and acceptance of bribes by some justices is brazenly open.

I think the court will overturn birthright citizenship in part. It just opened the flood gate for gerrymandering districts to favor whites (sorry, I meant I Republicans) months before the mid-terms. I also believe when Trump seizes ballots this November the Court will permit it to do so. When Trump announces his intent to run for a third unconstitutional term the Court will invent a new doctrine to permit Trump to run again. Hopefully the gentleman with the scythe will come calling first.

This corrupt court and a dysfunctional Congress are all that stand before a tyrannical Trump and one party authoritarian rule. We are, therefore, in a heap of trouble, up a constitutional creek without a paddle. Now is the time to look to the future and decide how we, as a people, will respond.

Supreme Mistake: Et Tu Roberts?

The Supreme Court last week gave a final, mortal blow to the Voting Rights Act of 1965.  Et tu Roberts. The Court’s majority opinion, penned by Justice Alito, argued that America has changed since the 1960s, that the racial animus predicating the denial of black and brown people from voting or having the chance to be represented in Congress, had magically evaporated.  

The Louisiana congressional district map, which was at the heart of this recent case, was therefore unconstitutional, according to six of the justices. Voting districts, per the Court could be gerrymandered to reflect political favoritism toward a political party but not race. To add insult to injury, the Court then granted Louisiana the immediate ability to change the map.  Normally, there is a month’s long grace period giving the losing side an opportunity to prepare arguments in lower courts before the ruling comes into effect. 

The central premise that America has changed is facile and flawed and misguided.  Yes, America has become a more pluralistic society, black and brown representation did increase since the late 1960s.  However, in many deep south states with large black and brown populations, white’s continue to be overrepresented in state houses and the House of Representatives.  It ignores repeated and continual attempts to disenfranchise black and brown voters through ostensibly race neutral laws.

On another level, the racial animus towards black and brown folks is as strong as ever.  Take Trump’s words that immigrants from ‘shit hole’ countries are polluting American blood, or that Haitians eat folks’ pets, or that Somalis are low IQ, or that non-white immigrants are destroying western civilization.  I don’t think these thoughts are outliers in MAGA world, or for that matter in the minds of some of the Supreme Court justices.  

A week before the riots in Charlottesville in August 2017, in which Heather Heyer was murdered and dozens more were injured when a white supremacist drove his car into peaceful protestors, I posted this essay. An essay about my community here in Louisa.  Given the Court’s decision last week, I believe the essay deserves a repost. I repost it in its entirety below followed by a brief postscript: 

Four ladies were sitting in a pie and coffee joint. In walk a priest, a rabbi, and an Imam. Naw, in walk my wife and I. What follows, disappointingly, is a true, but sad story. As we walk in the four women were playing bridge and conversationally engaged. As I ordered coffee and tea, a slice of rhubarb pie, and a muffin, at the counter my wife selected a table cattycorner from this bridge quartet, well within earshot, especially as they spoke in upturned voices.  

Given the closeness of the tables, it was impossible not to be encompassed in the conversation, even as detached, unwilling silent witnesses. Eavesdropping into the conversation mid-way found us somewhere in a conversation about church business followed quickly by a lamentation that a friend, who apparently was pictured in a Ku Klux Klan photograph, was being unfairly associated with the racism. “Guilt by association” chuckled one woman slightly. It was like walking into a Kafka soliloquy.  This tête-à-tête then veered onto the hot local subject of the removal of a confederate statue from a nearby university town. All expressed bitterness, with one speaking out loud for their little group, that it was a disgrace, that you “can’t change history.”   

She’s right, but apparently, she can’t fathom or acknowledge that the South’s history is more than about white heritage. Then, in a deeply submerged psychological association, the statue controversy was instantaneously linked to the public schools — think 1954 and Brown v. Board of Education declaring racial segregation unconstitutional – when one exclaimed in the next breath to mutual concord, that “We provide them with a free education” and if ‘they don’t take advantage of that, it isn’t our problem.’  Oh, that set me off. We and them. WE and THEM! That basically sums it up. At that point my wife shot me that ‘not now’ look with a little Mona Lisa smirk, part threat, part calm down. I mumbled aloud about walking into a ‘daughters of the confederacy’ meeting. 

My back was to this bridge playing klavern and I was facing out the pie shop’s picture window taking in the Mayberry-like main street, named of course Main Street. Across the street was the antebellum circuit courthouse, a little red brick jail stood off to the left of the courthouse. A statue of a confederate soldier stands a silent vigil; his gaze forever fixed towards the northeast watching over the town square and all who approach. Sheriff Andy Taylor or Atticus Finch may walk by if you close your eyes for a second.  This American circuit courthouse was a facilitator of slavery and racial oppression. No doubt, slaves seized from indebted planters were most likely sold just yards away. Wills that directed the selling off or gifting of slaves, breaking up families, were filed in that courthouse. I wondered too about the little jail and imagined whether slave traders, with their coffles of slaves heading down from Alexandria to Richmond, and then on to New Orleans, would bed down their walking inventory in the local jail overnight for a small fee.  

I am not sure the irony of their conversation juxtaposed so close to slavery’s ghosts was apparent to these card players. Nonetheless, the carefree and unguarded manner the conversation played out in a public space underscored, I think, the impulsive racist bigotry that pervades many American towns. It is as natural as breathing it seems. The fact that they spoke in raised voices like it was 1859 or 1955 leads me to believe these women intuitively assumed, that because my wife and I are white, we automatically subscribe to their philosophy. 

Shamefully, I sat mute, halfway between cowardice and rage, sipping tepid tea, but felt my anger and words would not change what has been etched in these women’s minds since before their mothers’ mothers were even born.  Their banter was wide ranging and not all about race. At some point one commented about CNN “yapping on” about the “Russia thing,” “brain washing of liberals,” and what to do about North Korea. On North Korea, at least, there was disagreement. While it isn’t fair to put all the white folks in this corner of the South into a box and label it “toxic bigots, handle with care” racism’s complexities remains deep in this part of the woods and the women playing bridge no doubt have already infested their children and grandchildren with their septic views of race, supremacy, and obligation.  At least the muffin was good, but the conversation left a bitter, sad after taste. 

On reflection, “WE and THEM” is at the heart of America’s political divide. It always has been. At its core is the fundamental question about “whose America is this?” America belongs to the descendants of African captives forced into generational slavery, the new African citizen, the fifth generation Mexican American, the Coptic Christian immigrant from Egypt, the Shia Muslim from Syria, the offspring of Puritan New Englanders, the Chinese Americans whose ancestors helped build America’s western railroads, native Americans. And yes, even the fearful daughters of the confederacy who indifferently sip the tepid tears of those lost to slavery while playing bridge, should have equal access to a piece of the American pie.

Post Script:  The Supreme Court made another decision antithetical to American democracy and misjudges the residual racial animus and antipathy still much alive in this country.  This decision highlights the need for every vote this November.  A democratic majority in the House and Senate will put a dead stop to Trump’s rule by decree.  The Senate will ensure no more supreme court justices appointed by Trump are confirmed should any retire or die during the last two years of Trump’s term. 

Onward Christian Soldiers: Trump’s War on Iran and Secular America.

In the year 1188 AD, both England and France imposed an income tax to help pay for the third Crusade.  It was called the Saladin Tax.  It was a first.  It was 10 percent.  Saladin was the general, the Sultan, who recaptured Jerusalem the year before, expelling Christan forces who ruled Jerusalem since the first crusade when a Christian army captured the holy city in 1099, butchering most inhabitants. 

Saladin captured the imagination of the West.  They even invented a European origin story for him; he was featured in western literature, to include in Dante’s inferno.  In 1920 when the French General Henri-Joseph-Eugene entered Damascus after the victorious allies divided up the Ottoman Empire amongst themselves – Mandates they called them – he visited Saladin’s tomb and allegedly said, “Mr. Sultan, we’ve returned to the Orient.” 

They drew new maps and new countries.  Syria and Lebanon came under French rule, Palestine and Transjordan went to the British empire.   Europe certainly did return and managed through their imperial hubris, ignorance, and contempt for the peoples of the region, set the stage for over a century of regional and global conflicts and wars over this land. To include Trump’s war with Iran

God, it seems, gets the both the blame and the glory.  Depending on who wins the day.

To listen to Secretary of Defense Hegseth, Trump’s war with Iran is a crusade.  He uses Christian imagery to portray American forces as soldiers of Christ.  His prayers ask that God and Christ guide American bombs, bullets, and missiles to kill evil enemies.  Onward Christian soldiers wearing God as his armor.  He stated that there would be no quarter.  The crusaders in Jerusalem in 1099 offered no quarter.  Man, woman, child, struck down by sword and axes guided by Jesus and God.  

That notion of chivalry and God died on the fields of Flander, the Somme, and Ypres hundreds of years later.

Unfortunately, Hegseth is not an outlier in Trump’s world.  The White House increasingly compares Trump to Jesus, betrayed, and arrested.  At a recent private Easter event, Trump’s spiritual advisor Pastor Paula White-Cain compared the experiences of Christ’s crucifixion to Trump’s legal troubles, you know sexually assaulting a woman in a department store dressing room or paying off a porn star to keep silent about an affair.  Although I think she must have forgotten about these secular trials.  I too see Trump and Jesus in the same thought, every time he opens his mouth or posts on Truth Social, I say, “Jesus Christ, what the fuck did that idiot just say.”

It is not new in our history for American leaders to invoke God, especially after great tragedies or wars or other calamities.  America’s sense of its exceptionalism is deeply rooted in God. That shiny city on a hill.  It is new, however, for an American president to lay claim to divinity.  The Beatles were crucified, pun intended, when they claimed they were more popular than Jesus during a radio interview.

Trump is deliberately, cynically I think, erasing the line between him and Jesus.  Many of his adherents are in lock step with him, nonetheless.  For Trump to claim divine rule requires not only breaking down, but utterly demolishing, the wall between state and church.

Our country has a long history of keeping religion out of state and keeping the state out of religion.  For good reason as we can see by Trump’s insane comparison to Jesus. The Constitution does not mention “God.”  Not even the oath of office for president mentions God.  When asked why God did not appear in the Constitution, Alexander Hamilton famously quipped, “We forgot” or “We don’t need any foreign help.”  Whether these were apocryphal response, I don’t know, but they have a ring of authenticity.

In 1777, while a Delegate to Virginia’s General Assembly, Thomas Jefferson submitted a statute for Religious Freedom.  It was shelved given opposition from the still powerful Anglican Church members. That bill lay dormant of over a decade and was resurrected by James Madison in 1785 after Patrick Henry submitted a bill a year earlier calling for a tax to pay ministers of the Christian religion.  

In response to Henry’s bill, Madison wrote a Memorial and Remonstrance against the assessment.  In it he warned that the state should not support any religion.  That belief in God was between a man and his creator, that the state had no business interfering with such relationship.  He warned that once you support Christian ministers, what will stop a particular sect within Christianity from assuming dominance over the others.  Henry’s bill did not pass.

Virginia’s Baptists supported Madison’s Remonstrance and the Religious Freedom bill.  They had suffered heavily from Anglican Church violence in the 18th Century, especially during the Virginia’s Great Awakening in the 1740s.  Itinerant Baptist ministers were whipped or jailed and driven out of counties. Sadly, many Baptists today who support destroying the barrier between church and state have forgotten that history.

He was right.  In Texas, which provides tax dollars to both secular and religious charter schools, Islamic charter schools requesting public funding are being denied funding, claims leveled about terrorism.  Bashing Muslims has become sport in Texas amongst those Republicans running for office.  A proposed public school reading list contains the bible, but not the Koran.

In addition to the Remonstrance, Madison also resubmitted Jefferson’s decade old bill to Virginia’s General Assembly.  It passed.  Both Madison’s Remonstrance and Jefferson’s bill for Religious Freedom should be required reading.  Both argue that God doesn’t need the State:

“That Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitation, tend only to beget habits of hypocrisy and meanness….”  Adding, “not to propagating it by coercion …but extend it by its influence on reason alone.” 

What became the first amendment to the constitution, written by Madison, were born in Madison’s Remonstrance and Jefferson’s Statute for Religious Freedom (1786).  It clearly articulates that the government  could not establish a state religion or prohibit the free exercise thereof.  A careful balance.  

In 1802, President Jefferson, in a famous letter to the ‘Danbury Baptists,’ wrote that the 1st Amendment built a “wall of separation between Church and State.”  While Jefferson had no direct hand in the writing of the Constitution — he was the American Ambassador to France during the constitutional convention, and was not in Congress when the propositions were submitted by Madison which became the Bill of Rights — he and Madison regularly corresponded, explaining their thoughts and ideas of government and the constitution.  

This separation of church and state, this wall, has informed the liberal American experiment that in a healthy democracy the role of religion and the role of government are better kept distant and respectful. 

That arrangement worked spectacularly.  Religion thrives in America because of this wall of separation.  It is a paradox then that America aims to finish off a despotic theocratic state in Iran while planting the very seeds of a despotic right wing white nationalist Christian theocratic state in America.  

MAGA voices like Gladden Pappin – who claims the Pope will appoint Melania as queen – and Rod Dreher want American to go back to the Middle Ages, where the church held power, where the Bible was the law of the land. They hate and despise the enlightenment and liberal ideals of democracy, human rights, and the freedom to enjoy a personal relationship with God, without government surveillance and dictate.

The conspicuous and dangerous allusions to Trump, God, and Christ in prosecuting Trump’s war against Iran are anathema to America’s founding ideals and over 250 years of history.  God help us all.

Oral Arguments and Severed Horse Heads: The Supreme Court and Birthright Citizenship

Yesterday the Supreme Court heard arguments in Trump v. Barbara whether Trump’s Executive Order stripping birthright citizenship from children of non-citizens was constitutional.  Every lower court hearing cases regarding the Order ruled that it was unquestionably unconstitutional. The arguments before the justices of our country’s highest court should have taken on the patina of well worn rituals and procedures. However, it was far from normal.

Last year, at an initial hearing before the Court, a majority of justices kept an injunction on the order in place, staying the implementation of Trump’s Order indefinitely.  The vote was 6-3.  Not shocking, given a radical core of conservative justices seem hell bent on overturning everything that smacks of small “l” liberal governance.  The Court could have left the appeals court in ruling in place, basically saying that the lower court’s ruling was sound.  They did not.  Instead, a least four justices voted to hear the case.

Yesterday, in an unprecedented move, Trump attended the oral arguments. His attendance, for all intents and purposes, was a direct attack on the separation of powers enshrined in our Constitution.   Trump did not stay for all of the arguments, leaving after the first hour.  His message sent, I think.  

Most of the justices, it seemed, were skeptical of the government’s argument that birthright citizenship should be limited.  The government’s argument hinged on the words “subject to the jurisdiction thereof” and the word “domicile” in the seminal 1898 Supreme Court ruling United States v. Wong Kim Ark.  Their arguments rehashes of earlier losing arguments.  This should be a slam dunk case, but it isn’t.

In a previous post, I predicted with despair that Trump and the government would prevail.  I thought perhaps I was wrong, and was heartened when the justices in a 6-3 vote kept the injunction in place.  That signaled the government would most likely not prevail in court.  Yet, I worried that at least four justices wanted to hear the case.  

This case should not be a nail biter.  It has been settled law for 128 years.  But with today’s Court consisting of a super majority of conservatives with a hard-core troika of ultra radical conservative justices, anything is possible.  

Enter Trump.  No sitting president has ever attended oral arguments at the Supreme Court. It is unseemly, and I think, an assault on the doctrine of the separation of powers.  His presence was like a dog pissing on a tree, marking its territory.  Trump was marking his Order and signaling to everyone, ‘do not rule against me and my Order.’ It was designed, I argue, to intimidate the justices that are on the fence, so to speak.  That is Barrett and Gorsuch.  Like the Godfather movie, Trump was the decapitated horse’s head laying at the foot of the bed.  A warning of bloody consequences. 

I would not be surprised that folks acting on Trump’s orders engage in a campaign of intimidation, influence, and ever terror against Barrett and Gorsuch in the coming weeks. He will use similar tactics that he has already used on his other perceived enemies.  His no holds barred attack on the Chair of the Federal Reserve is just one very recent example.  DOJ investigations, insinuations of wrongdoing, grand juries, threats of impeachment against other federal judges.  This will get nasty.

Even though many of the justices seemed skeptical in whole or in part of the government’s arguments; to include the Chief Justice Roberts, the majority opinion is far from settled.  The final vote is in doubt in my mind.  Congress abdicated to Trump.   Will the Supreme Court do so as well?   Surrendering the Judicial Branch to Trump, so that he can hang its stuffed head next to all the gold and gild bling in the Oval Office.   That is to be seen.

Break Glass in Emergency: Vote Yes by April 21 in Virginia’s Redistricting Referendum

If things were normal, which they are not, I would oppose returning the drawing of Virginia’s congressional district maps back to the state’s legislature, even temporarily.  America is in deep trouble, however. Democracy is in retreat; the country is ruled by decree out of the White House. Congress sits mute.  A President ruling from his gold encrusted throne threatens to “nationalize” the elections and seems indifferent to his paramilitary police brutalizing communities and shooting and killing citizens.

The Constitution – our written social contract as to how the government is organized and how power is shared – is shredded day-by-day by Trump.  Our representative in the 5th District, John McGuire just voted for the Save Act to make it harder for Americans to vote and agrees with Trump’s call for Republicans to nationalize the vote, or at the least, has not repudiated Trump’s demand.  He thinks he works for Trump and not we the people of his district.  It is time to fight back, it is time to b break the glass because there is a constitutional emergency.

The fastest and best way to check Trump’s unchecked power is by electing Democrats to the House of Representatives – the people’s house – and the senate.  Sensing a coming defeat this November and a loss of a Republican majority in the House of Representatives, Trump demanded that red states redraw their congressional districts, immediately.  If you can’t win fair and square, cheat, lie, and steal is this administration’s mantra.

Texas obliged instantly, without consulting their people.  Another example of rule by dictate far too common in red states.  At least the people of California had a choice whether to redistrict (they voted ‘yes’ this past November).  We the people of Virginia will have our chance to give voice to whether we redistrict.  That vote is April 21.  Early voting starts March 3.   

Democrats did not ask for this redistricting fight, but Trump threw down the gauntlet.  We the people of Virginia must take drastic steps to reclaim sovereignty or lose our democracy to one-party rule and dictatorship. 

Vote YES to temporarily redistrict Virginia’s congressional seats.  

For those constitutional law geeks like me, below are some Frequently Asked Question:

How many other states are redistricting (or counter redistricting) based on Trump’s outrageous demand?

According to the National Conference of State Legislatures, five states have already redistricted (Missouri, North Carolina, Ohio, Texas, California); A number of states have introduced legislation to redistrict (Maryland, South Carolina, Washington, and Virginia):  Florida is in the process of adopting legislation with additional states contemplating redistricting, but awaiting state court decisions (Alabama, Louisiana, North Dakota, and Wisconsin).  Other states have already moved forward and many plan to do so.  Indiana rejected Trump’s redistricting demand.

Why does Virginia need a vote on whether to redistrict its congressional districts?

In November 2020, Virginians voted overwhelming (66 percent) to amend the state’s constitution to appoint a 16-member bipartisan commission to draw Virginia’s congressional districts.  Virginia is one of about a dozen states that have independent commissions to draw congressional maps.  A majority (29) still permit their state legislatures to draw congressional districts.  The referendum vote in April is the only constitutionally sanctioned method to temporarily amend our state constitution so that the Generally Assembly can redraw Virginia’s congressional districts.  

Why hasn’t the Supreme Court ruled that partisan redistricting is unconstitutional?

They did rule, by not ruling.  They took the easy way out and said it was out of their hands, that there were no ‘judicially discoverable’ or ‘manageable standards’ to adjudicate claims of unconstitutionally drawn districts, with one exception, drawing districts to favor white voters (e.g., diluting concentrations of black or brown voices into majority white districts).

A brief recent history:  In 1986, the Supreme Court ruled that the federal courts could hear challenges to how congressional districts were drawn, however, the court offered no standards.  Some years later in 2004, the Supreme Court ruled there were no “judicially discoverable or manageable standards.”  The conservative court inches it way toward legalizing partisan gerrymandering.

In 2019, in Rucho v. Common Cause, the Supreme court ruled that federal courts could not hear claims of partisan gerrymandering because they – the court — could not articulate any standard by which to judge partisan gerrymandering.  Out of very thin air, they could invent the legal fiction that President Trump is immune from crimes committed for official acts, but these Harvard and Yale legal brains are damned clueless as to how to fix the scourge of gerrymandering.  This legal punt basically legalizes partisan gerrymandering no matter how egregious, at least at the federal court level.  State courts can still hear cases, nonetheless.

To make matters worse, the Rucho decision gave states a “partisan” get-out-of- constitutional jail card for race-based gerrymandering.  In 2024, South Carolina drew racially gerrymandered congressional districts.  The South Carolina NAACP sued.  South Carolian argued it was not racial gerrymandering, but ‘partisan’ gerrymandering.  In a 6 to 3 decision, the Supreme Court agreed with South Carolina and let the racially drawn maps stand.

After Texas redrew its congressional districts after Trump requested it do so, The League of United Latin American Citizens sued.  A federal district court, after 9 days of testimony and review of thousands of documents, concluded that Texas illegally redrew the congressional districts based on race.  In a shadow docket ruling, however, the Supreme Court, overturned the district court and said Texas could use the newly drawn maps.  

The reasons given by the Supreme Court’s were: 1) The District Court failed to “honor the presumption of legislative good faith;” 2) The District Court did not produce a viable alternative map; 3) It was too close to the election to redraw the redrawn congressional maps.   My only response:  What the fuck!  I did not know there was a ‘legislative good faith’ exemption to unconstitutional laws.

So, there you have it.  Go out and vote. And vote Yes.  

‘Ordinary Americans:’  Kristi Noem and Her Police Battalions.

A lone English soldier in his red tunic stood post in front of Boston’s Custom’s House.  ‘Lobster back’ was yelled, words were exchanged, things heated up, a crowd gathered.  Tensions between colonists and soldiers was high.  The colonists thought of them as occupiers.  When all was said and done that March 5, 1770, three Bostonians were dead and another two would die of wounds in days to come.   

The captain, who summoned additional soldiers to face down the hostile and aggressive crowd, and eight other soldiers were later arrested and jailed after the acting governor of Massachusetts called for an inquiry after the shooting.  Seven months later Captain Preston stood trial for murder.  The question was whether he ordered his soldiers to fire.  Testimony by witnesses suggested he did not.  The jury acquitted him.  

A little over a month later, the eight soldiers were tried for murder.  After a record 9 days of testimony, six of the eight were found not guilty.  The remaining soldiers were found guilty of manslaughter verse murder.  That is they had been provoked.  They were offered the “benefit of clergy,” basically proving they could read a verse in the Bible, and were branded on their thumbs verse a jig at the end of a rope.

Bostonians were proud that they could provide a fair trial, that the accused were able to have defense lawyers, one of whom became president of the United States, John Adams, and that the jury of citizens were fair and impartial.

Four years later, however, the English Parliament removed the ability of colonial governments to conduct any judicial proceedings against crown officials who allegedly committed a capital offense while supposedly upholding the law or quelling protests.  It was one of several acts known as the Intolerable Acts enacted following the Boston Tea Party in 1774.  The Administration of justice Act as it was formally known, was nicknamed the ‘murder act’ by colonists.  In short time, America exploded in Revolt in 1775 and declared independence in 1776.  250 years ago, to be exact.

Now, during the 250th anniversary celebration of our independence from capricious rule, Trump and his administration officials have basically reimagined the Administration of Justice Act by repeatedly claiming that federal law enforcement officers have absolute immunity for acts committed to uphold the law or quell protests of ICE operations.  Rule by decree instead of representation has overtaken our government.  Congress has become a debating society of half-wits and imbeciles.

The feds have stifled local and state officials from investigating two homicides committed by ICE or Border Patrol agents.  Following the last homicide, Border Patrol and ICE agents who participated in the assault on, dog pile on, and shooting of Alex Pretti, fled the scene, leaving the crime scene unsecured.

Immediately, Trump advisor, and architect of these brutalist occupations of American cities, Stephen Miller, labeled Pretti an “assassin.” The director of the Border Patrol, defended his agents, saying that Pretti intended to shoot ICE and Border Patrol agents without any evidence other than Pretti was carrying.  He was. He had a concealed carry permit but did not draw his weapon or attempt to draw his weapon.  Video evidence suggests an agent had taken Pretti’s gun moments before a single gunshot rang out, followed by a barrage of gun shots directed at a prone, non-resisting Pretti.

Another heinous and unprovoked murder by Trump’s masked agents.  

As every day passes into tomorrow, ICE and Border Patrol Agents look and act more like the reserve police battalions that followed the advancing German army in to Poland at the start of the second world war than true law enforcement officers.  These reserve police officers, recruited from Germany’s working classes, slaughtered millions of Jews.  

These reserve police officers, who Daniel Goldhagen argued in Hitler’s Willing Executioners: Ordinary Germans and the Holocaust were conditioned to kill, and willingly did so.  Goldhagen wrote, “Simply put, the perpetrators having consulted their own convictions and morality and having judged the mass annihilation of Jews to be right, did not want to say “no.””

My point is not that ICE and Border Patrol Agents are Nazis, although, like the German death battalions, they are armed like soldiers, dress like soldiers, think like soldiers, and act like soldiers. The things they do lack, however, are martial discipline and apolitical ethos of real professional American soldiers and well-trained law enforcement. 

It is this militarized police mindset, paired with Trump and his administration’s psychologically conditioning, that has caused ICE and Border Patrol agents to act in similar ways that the reserve police battalions behaved: Occupy supposedly ‘enemy’ cities (Trump’s words not mine), execute orders without question, and if need be, kill for ideological reasons. They have turned ordinary men and women into real and potential killers.  Recall Trump’s speech to his assembled generals not so long ago.

Trump and rightwing conservatives have engaged in a pattern of excluding, stigmatizing, and humiliating migrants, especially migrants of color.  Dehumanizing them like the Nazis did Jews.  Trump’s claims of Haitians eating pets and his recent denigration of all Somalis as low-IQ are examples of this conditioning.  It does not help that the Supreme Court conditioned citizenship and legal presence in America with whiteness. 

It takes more than conditioning, however, to make ordinary people kill.   Neo-ICE and Border Patrol agents must be raised in a family and community environment that leads them to believe and tolerate what Trump and his acolytates openly spew every day. Racism and white supremacy are alive and well in many corners of America.  It is blasted from Fox News broadcasts every single day.  It takes a village to raise a kid, it also takes a village of racists to raise a kid to become a killer.

Americans must not only condemn the individual actions of ICE and Border Patrol agents but the men and women in leadership — from Trump, to Vance, to Miller, to Bondi to Noem, to Bovino and downward – who articulate, condone, and encourage gratuitous violence and protect the murderers in the name of white nationalism.  When ICE treats migrants and protestors like Noem treats her dogs, we must do what we can to stop the madness.

Get ICE and border patrol battalions out of our cities.  Retrain them, fire the zealots, and sack their leadership, including Bondi, Bovino, Noem, Miller, and Patel.  Most importantly, to diffuse the tension, let local and federal agencies jointly investigate the homicides of Good and Pettri, and if charges are warranted, let a local jury decide their guilt or innocence.  That is the American way.  

The alternative is revolution.

“Guards of this Kind:” A Brief History of the Original Intent of Madison’s Second Amendment.

New York Times Reporter: “Do you see any checks on your power….”

Donald Trump:  “Yeah, there is one thing.  My own morality.  My own mind.  It’s the only thing that can stop me.”

No Mr. President, we the people can stop you.

What is happening in America is not normal.   When a president sitting in the White House, stewing in his own grievances and thirst for vengeance and proclivity to spectacle, says he is only bound by his “morality,” we as a nation are in deep trouble.  As is the world.

I know this essay’s title may make some folks uncomfortable, but please bear with me (yes, a pun). I am self-aware enough to understand that invoking the Second Amendment can be provocative. I struggled while writing this essay on a number of levels. First, is that it even had to be written. Given the words and actions of Trump, I feel it is necessary. On another level, I don’t want to be interpreted as calling for armed revolt. I do not want that. That would be insane.

My whole adult life was living, working, or traveling to conflict and war zones, failed and failing states, police states. I know that option to be unacceptable. On a third level, I feel too many Americans are indifferent or distracted or worn. down and just don’t give a shit, that only some people are impacted and they will never by touched. Inevitably, in a dictatorship, even it you agree with the dictator now, you will be touched and your soul will be crushed eventually as you tire of being told what to watch, what to read, and what to think. Because you are reading this, you know I hit the publish button.

I want to lay out my thoughts on the limits of power of the central government and what States can do once Trump and federal government blows past those limits.  The origin and intent of the Second Amendment figures prominently in any discourse about how to create “guards” to a tyrannical central government.

Blue states continue to get pounded by the Trump administration.  It routinely withholds funds from blue states as punishment for resisting his policies.  Incongruously, it is the blue states that provide most tax raised monies to the federal government, with red states getting more federal tax dollars in terms of spending than they actually put in. In essence, Trump is super charging the transfer of wealth from blue to red states.  Oh, the irony.

Trump targets blue states and cities with mass deployments of militarized immigration agents as punishment for deigning to treat migrants as human beings.  As the result of protests against these deployments, Trump federalized and deployed national guard units without traditional requests from state governors, and in all instances in blue states, against the wishes of the governor and the majority of the state’s peoples, to quell, he alleges, widespread violence, but we know it is to smother the people’s voices.  

Now he is deploying hundreds of additional Homeland Security agents to investigate alleged fraud in Minnesota’s social safety net programs, according to DHS’s secretary.  A calculated and chilling response to the protests over the killing of a woman by an ICE agent and the states demand to be included in the investigation of the homicide of Renee Good.  Incongruously, Trump condemns the death of protestors in Iran, but claims an American protestor shot and killed by an ICE agent was a domestic terrorist, and, intoned, deserved to die.  

Hey, Ayatollah in Iran.  News Flash:  Just rebrand Iranian protestors as deranged left wing domestic terrorists.  Then you are good to go.

This is what despots do.  They flood the streets with thugs and faceless paramilitaries and then sanction investigations to cover up murders. Nazis Germany’s Brown Shirts of the past are being reborn as combat fatigue wearing ICE agents.

This is what he will do to Virginia now that we will have a democratic governor and a state legislature controlled by democrats.  Expect payback with canceled programs, stopped federal grants, and deployments of Homeland Security agents to intimidate citizens.

The ability of a state to resist a tyrannical central government is how the Second Amendment was born.

What became the Second Amendment was not intended as an individual right to bear arms but a collective right of a state to bear arms to maintain its’ citizens inalienable rights.  Lord Dunmore, the English Governor of Virginia’s, attempt to seize the militias’ arms in Williamsburg, Virginia, at the outset of America’s first civil war was still fresh in the mind of the founding generation.  

It never crossed the minds of folks back then that the constitution needed to enumerate the right to own firearms for defense or hunting at the federal level.  Gun ownership – mostly muskets — was so ubiquitous and a traditional right in the colonies that enumerating the right would be ridiculous.  States had the right to regulate firearms and did so, most notably restricting possession primarily to whites.  

The Second Amendment was intended as a state’s right to maintain armed militias for their defense against a tyrannical central government.  It was a meant as bulwark of self defense against a large standing Army used by the central government to impose its will on a state or states. If you follow how the language of the amendment changed and unfolded, I think one can get a sense of what the intent was and how the amendment was seen and understood within a broader conception of constitutionalism, tradition, common law, and gun possession in the early republic.

On June 8, 1789, James Madison introduced nine propositions or resolutions for amending the Constitution. From these propositions the House of Representatives would derive 17 amendments, of which, ten would eventually become the Bill of Rights. Way down the list, buried in proposition four, after statements about religious freedom, freedom of speech and press, the right to peaceable assembly and petitioning for redressing of grievances, Madison, proposed what would become the second amendment.

The Annals of Congress contains the record of the running debates surrounding the amendments to the Constitution and reflect contemporaneous conceptions of the meanings of these amendments, and how they changed over the debates. Madison, borrowing from the other state constitutions and even the 1689 English Bill of Rights, proposed the following language regarding the right to bear arms (House Records, pp. 451-452):

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

Madison’s propositions did not gain much traction in Congress. Members of Congress were more concerned with the mechanics of setting up a functioning government. The debates preceding and surrounding the discussions on the proposed amendments centered on funding mechanisms and structure of the various executive departments being contemplated. Madison nonetheless persisted, and on July 21 requested further consideration of the amendments. After “desultory” conversation on the amendments, they were referred to a committee of eleven, which included Madison.

Just short of a month later, the committee of eleven finished their work on the proposed amendments and presented them to the House of Representatives on August 17. Madison’s language on bearing arms was revised and read:

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms (House Records, p.778)

Eldridge Gerry of Massachusetts, a veteran of the constitutional convention in Philadelphia in 1787, and who was one of three delegates who refused to sign the Constitution at the end of the convention, led the debate regarding the amendment to bear arms. His remarks are crucial, I think to understanding, the intent of this amendment. He states:

“This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed (p. 778).”

Not one person during the debate contradicted or challenged Gerry’s assertion, which seems to state that the ability to keep and bear arms referred to the people’s ability to form militias as a collective defense against a tyrannical central government. The remainder of the debate that day on this amendment surrounded primarily the question of religious scruples and service in the militia.

After more “desultory” (I love that word) conversation, 17 proposed amendments to the Constitution were sent to the Senate on August 24. The bearing arms amendment was number 5 and read after some minor tweaking (Senate record, pp. 63-64):

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.”

On September 4, the senate, whose records of debate are not as detailed as the House’s records of debate, showed that senators objected to a number of the amendments, but without comment as to why. “On the motion to adopt the fifth article of the amendments proposed by the House of Representatives, amended to read as followeth: ‘a well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed:’ It passed in the affirmative” (Senate Record, p. 71).

So, there you have it, a brief but spectacular history of the origin of the Second Amendment.

Trump’s advisor Stephen Miller’s call to abandon America’s social contract and resort to a ‘state of nature’ where brute force is the first and only response should scare the shit out Americans.  This new dogma of ‘power, strength, and violence’ will fundamentally rewrite the world order but also crush America’s social contract between the people and the government:  the annihilation of the separation of powers, the demise of a democratic central government, and the eradication of shared sovereignty between the states and the central government.  That, good reader, is why we have “guards of this kind,” the Second Amendment. 

Let me be clear, I am not calling for armed revolt or violence against our central government or secession, I still believe in the vote and the power of the American people to reign in Trump.  But as Congress and the Supreme Court not only fail to curtail Trump’s excesses, and in fact enable him, what are the people to do?  

States are the peoples last bulwark against Trump and a despotic central government.  A new pposition is rising, however.   Not from spineless democratic leaders like Schumer, but from Republicans.  Republican Senators that voted to restrain Trump’s war powers received threatening profanity laced phone calls by Trump.  A sign he is losing control and trying to bully folks back into line.

What I ask is that our new, incoming governor, think long and hard about how to deal with an increasingly authoritarian and despotic central government that continues to ratchet up the level of violence against the people in targeted states and cities – maladministration as Eldridge Gerry put it.  The governor needs to develop contingency plans on when and how to resist, to include using the National Guard to defend our natural and inalienable rights as a free people of Virginia.  

It seems to me America cannot long remain a nation if Trump puts his boot on the neck of blue states while red states happily bend the knee to the tyrant in the White House. Time to mobilize once again, stay engaged, and get family and friends to vote this November.

Usufruct

No, not a misspelling, and no, it has nothing to do with high fructose corn syrup or inedible holiday Fruit Cake.  I came across this word almost three decades ago when reading Peter Onuff’s Jeffersonian Legacies, an edited compilation of essays following a scholarly conference celebrating Thomas Jefferson’s 250th birthday.  

Herbert Sloan’s essay “The Earth Belongs in Usufruct to the Living,” deconstructs Jefferson’s September 1789 letter to James Madison.  Usufruct, basically as Jefferson knew the word, was the right to use something during one’s lifetime, like land or other property, but not destroy the value of the property through misuse, or, in in some instances, generating debts that are worth more than the property.  

He expresses his concerns in the letter whether one generation can “bind” the next generation to its debts. He thinks this issue has not been thoroughly thought through as the new Constitution comes into effect, at least metaphysically. Jefferson wrote, “[T]he earth belongs in usufruct to the living, that the dead have neither powers nor rights over it.  The portion occupied by an individual cease to be his when himself ceases to be. & reverts the society.”  That is, when a generation dies off, so too should its debts. Those debts are more than pecuniary, he implied.

He expands on this theme throughout the letter, thinking aloud, and through his own arithmetic of averages of life expectancies, argued to Madison that a constitution, and laws the emanate from it, should expire after 19 years.  An average, he surmised when one generation succeeds another.   Every generation, he argued should be able to make its own laws and government, and I would surmise, even remake the social contract.  Basically, new generations should not be bound or governed by outdated laws or drown in the debts contracted by a generation long dead.  He was particularly concerned with debt.  Yet ironically, he died a debtor.

He gave one example of how the new Constitution, ratified and placed into effect in 1789, addressed this issue of government debt.   The Constitution gave congress the enumerated right to wage war, vice the chief executive:  “We have already given in example one effectual check to the Dog of war, by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.”  

We, as a nation, squandered that gift of restricting a King — or a President — from declaring or making war.  Congress handed back the ability to wage war beyond our borders to the President with the War Powers Resolution Act of 1973 (ironically an act designed to limit executive powers).  This limited power to wage war by the Executive was dramatically expanded in 2001, after Congress gave the President power to wage war against terrorism, in the so-called global war on terrorism.  But I don’t want to write about Trump’s march to war against Venezuela using those 2001 powers, or his new Monroe Doctrine of imperialism to dominate the Western Hemisphere through force of arms, but to a real existential threat to our country: anthropogenic climate change.

For generations, fiscal conservatives have used a version of Jefferson’s usufruct principle to argue against a growing national debt.  They contended that future generations should not be burdened by huge debts, which sap economic growth and weight workers with heavy taxes.  At least that was their argument, until it wasn’t.  When it comes to saddling the next generations with huge climate debts that must be paid as mother nature demands it, conservatives are not only mute about this principle of usufruct, but chant along with Trump, “drill baby drill.’  

This Administration’s policy of increasing fossil fuel consumption, destroying renewable energy initiatives, undermining electric vehicles, and hobbling renewable energy manufacturing and infrastructure — so that Trump and wealthy elites can profit and live in splendor — at the expense of unborn generations, is astounding.  It is immoral and criminal to condemn unborn children to a dystopian world of climate disaster by a bunch of fat old white men who will be soon moldering in their own graves.   

Jefferson was right.  A generation — our’s in particular — has an obligation to be good stewards of America’s natural resources and bounty so that future generations are not bound by destructive practices that degrade and pollute our water, our air, our food, and our climate out of greed and ignorance. 

The baby boomers had a chance after the publication of Rachel Carson’s Silent Spring, but like the war powers fiasco, we squandered our chances long ago to do right by Mother Nature and future generations.  Shame, shame on us.  The next generations have no obligation to forgive us, nor should they.  Sorry Gen Z and the Millennials, we royally screwed you by binding you to a no-win situation regarding climate change.  Mother Nature is not as forgiving as an accountant in the Congressional Budget Office.

Merry Christmas and Happy New Year. Yes, even in these trying times one must have hope. I will be taking a break over the holidays so see you in the new year. Thanks.