As regular readers of this blog know, I rarely address foreign policy issues. Mostly, my reluctance to do comes from prudence; I’m painfully aware that my lack of familiarity with the vagaries of international relations makes it likely that any such observations will be flawed. (Most of my experience and virtually all of my scholarship has focused on domestic policy.)
That said, anyone who reads or listens to the news cannot avoid recognizing the immense damage our idiot President has done to America’s stature in the world. As Simon Rosenberg recently wrote, “Our adversaries have been emboldened by Trump’s idiocy, buffoonery, cowardice, greed and self-sabotage – as they should be. For America is already a shadow of what it was even a year ago, far weaker, isolated, despised, clearly led by a confederacy of dunces and now hurdling towards rapid decline as a global power. Fox News viewers may see a viral strongman when they look at the Trump but the rest of the world sees an imbecilic fool.”
There has long been speculation that Putin “has something” on Trump. Whether or not that’s the case, Trump has long been dependent upon Russian money. Well before our would-be King entered politics, Eric Trump was quoted as saying that the unwillingness of U.S. banks to continue lending to the Trump organization wasn’t a problem, because their funding came primarily from Russia. (Most American banks had been burned by Trump’s multiple financial failures by that time, and had declined further funding.) Trump’s embarrassing, slavish fawning over Putin and other autocrats might simply be another facet of his desperate desire to align himself with “strong” leaders, or it may reflect something more sinister, but the end result is the same–our precipitous decline as a world power.
Trump’s animosity toward Ukraine and his shabby treatment of Zelenskyy has been unforgivable. He has done significant damage to NATO, imperilling not just the United States, but the Western alliance. His “friendship” and support for Israel’s Netanyahu (aka Israel’s Trump, albeit with brains) has allowed that country to commit war crimes with impunity. Destroying USAID and withholding international relief funds has been both inhumane and wildly contrary to American interests. Failing to keep the nation’s promises to battle climate change has added to the conviction that America simply cannot be trusted. And Trump’s frequent praise of autocrats and dictators–coupled with his disparagements of leaders of our democratic allies– has badly damaged the country’s relationships with our traditional partners.
Withdrawing the U.S. from the UN Human Rights Council and from the Open Skies Treaty underlined both America’s diminished concern for human rights and our further lack of reliability.
And of course, firing hundreds of respected experts in foreign affairs and replacing them with clowns and dunces has undermined American effectiveness across the board. His misnamed “America First” policies and actions have actually damaged alliances, alienated partners, and disregarded human rights–consequences that have hardly advanced American interests.
It is unlikely that the MAGA base either knows or cares. Trump’s voters are fixated on culture war issues and the recovery of White male privilege. I doubt that many of them will “connect the dots” between Trump’s insane tariffs and the rising cost of groceries, or recognize the other domestic economic effects of America’s lost international stature.
What struck me about the quote I shared from Simon Rosenberg was his description of America’s current government as “a confederacy of dunces.” There’s a book with that title, but it was funny.
There’s nothing funny about the dunces who are tanking the economy, undermining civic equality, and making America internationally irrelevant.
As I write this, the initial accusations about the murder of Charlie Kirk have been confirmed–in an ironic way. The immediate–and not unreasonable– reaction was the assumption he’d been targeted for his beliefs. And evidently, he was–but not by “evil” Lefists. The alleged killer, Tyler Robinson, is a young white man from a Republican, gun enthusiast family, who appears to have embraced the even-farther “groyper” Right that believed Kirk was insufficiently radical.
Obviously, as repulsive as some of Kirk’s beliefs were, they are no excuse for violence. Freedom of speech, as Justice Oliver Wendell Holmes reminded us, is not meant to protect only those who agree with us, it also extends to those expressing the “thought we hate.”
Following the shooting, denunciations of political violence came from across the political spectrum. And predictably, MAGA folks expressed outrage that was entirely missing when Pennsylvania Gov. Josh Shapiro was targeted, when Nancy Pelosi’s husband Paul was nearly killed, and when two Minnesota Democrats were assassinated.
In the wake of Kirk’s murder, pundits and commentators have rushed to offer their perspectives. One that I found particularly insightful was an article by Jonathan V. Last in The Bulwark. As he began,
Charlie Kirk’s murder was not just a murder. It was an assassination. That’s the crucial point.
We often forget the philosophical underpinnings of criminal law. Rightly understood, we view crimes as being committed not against individuals, but against society itself. Thus, when someone is murdered, the offense is not against the victim and his family, but against everyone. All of us. It is an offense against nature, heaven, and man.
Assassination goes a step further. In addition to all of the above, assassination is, like terrorism, an attack on our body politic. An attack on how we choose to live together. On our system of government. Which in America’s case, means an attack not just against all of us, but against liberal democracy itself.
Last then reminded readers that this was not a “one off.” As he wrote, it had only been twelve weeks since Minnesota state representative Melissa Hortman and her husband were assassinated in their home, sixteen weeks since Yaron Lischinsky and Sarah Milgrim were assassinated outside Washington’s Jewish Museum, ten months since UnitedHealthcare CEO Brian Thompson was assassinated in Manhattan.
And one could list other examples of near-assassinations from recent years—like the brutal beating of the husband of the speaker of the U.S. House of Representatives and the shots fired at an ex-president campaigning to return to office.
It is important to understand that these acts all emerged from a culture of political violence that has been waxing for nearly a decade.
Last acknowledged the presence of political violence in the past, specifically enumerating the attacks on Steve Scalise, Gabby Giffords, Ronald Reagan, JFK and RFK and MLK, and the vicious attacks on Black citizens during Jim Crow. But he pointed to a crucial difference in the way public officials responded.
The difference is that until recently, elected high officials condemned political violence as a matter of course. Their condemnations were not always sincere, but they were nearly universal. They understood that political violence is a wildfire. It spreads. And if it breaks containment, it cannot be controlled. Once unleashed, it burns everyone.
I found one paragraph in Last’s brief essay to be both undeniably true and chilling. As he wrote,
We don’t have to rehearse the litany of how we got here; we can leave that to another day. But we all know what we know. Things have changed and it’s not hard to pinpoint the moment when the normalization of political violence re-emerged among our political elites. To pretend otherwise would be to hide our heads in the sand—to deny the plain political reality of the moment.
That “plain political reality” is what keeps me up at night.
I am beginning to think that Trump has “glossies” of John Roberts and a couple of the other Justices in the majority misnamed as “conservative.” (A genuine conservative would conserve precedents–these justices are radical, and in at least two cases–Alito and Thomas–demonstrably corrupt.)
The judges of the lower federal courts–even the ones appropriately labeled conservative–have demonstrated fidelity to the rule of law, and to stare decisis, or precedent. Judges nominated by both Democratic and Republican Presidents, judges nominated by Trump himself, have ruled against our would-be dictator over 80% of the time. They have issued well-researched, thoughtful judgments, clearly explaining the grounds of their decisions, only to be summarily over-ruled in terse, six to three Shadow Docket rulings from the Supreme Court.
Most Americans have never heard of the Court’s Shadow Docket, because–until recently–it has been used very sparingly. The shadow docket has formerly been used in Supreme Court cases requiring immediate decision–things like death penalty stays, injunctions, and other matters requiring urgency. Such urgent matters are thus decided without full briefing, oral argument, or written reasoning. When appropriately used, the Shadow Docket is a legitimate tool of Court jurisprudence, but the increased frequency of these decisions during the Trump administration has raised concerns about transparency and significantly damaged the Court’s legitimacy.
Decisions delivered via the shadow docket lack the detailed analysis that allows lower courts to align their own reasoning with that of the Supreme Court. The increasing frequency of these “stealth rulings” undermines the public’s understanding as well as the legal community’s ability to interpret, apply and conform.
It isn’t just the increased frequency of Shadow Docket use. Far too many of these brief and unsettling decisions have upended longstanding Constitutional rules. Easily the most appalling was the Court’s recent gutting of the Fourth Amendment’s requirement of probable cause. In a 6-3 vote in Vasquez Perdomo v. Noem, the Supreme Court temporarily halted a LA judge’s order that barred “roving patrols” from snatching people off California streets and questioning them based on how they look, what language they speak, what work they do, or even where they happen to be.
Both a Los Angeles federal court and the 9th Circuit Court of Appeals had ruled–in detailed, persuasive decisions– that these actions clearly amounted to illegal racial profiling.
In a stinging dissent, Justice Sotomayor warned that this decision turns Latinos into second class citizens. She wrote “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
A lawyer friend who has been both a prosecutor and a defense attorney, as well as chief of a law enforcement department and a law school professor, reacted with an anguished Facebook post. He began ” The United States of America, a nation of laws, not men, no longer exists. Today the United States Supreme Court, in a 6-3 vote, decided that immigration officers may detain people for no reason other than the color of their skin…The United States Supreme Court approving detention based upon skin color is not just the end of the rule of law, it is the end of the United States as a constitutional democracy, which comes with separation of powers and no person being beyond the law.”
He proceeded to say that he would “surrender my admission to the United States Supreme Court. The admission comes with an oath the Court no longer recognizes, and I no longer recognize it.”
I taught Law and Public Policy to university students for 21 years. Many of those students were criminal justice majors, and along with the rest of the faculty, I emphasized the constitutional imperative of basing arrests on probable cause. We warned students against detaining citizens based upon “hunches” or–worse–identity, and shared the numerous legal cases that underlined that constitutional mandate.
The Court’s decision–contrary to decades of contrary precedent and to the uncontested facts underlying the lower court rulings–a decision delivered via the inappropriate Shadow Docket, was a betrayal not only of their oath, but of America.
If this country survives as a constitutional democracy–no sure thing–the Roberts Court will take a shameful place in history alongside the January 6th insurgents.
Yesterday, I spoke at a gathering in Ft. Wayne, Indiana, sponsored by multiple civic organizations convened by Americans United for Separation of Church and State. Other speakers addressed the growing threat of this unAmerican movement and the multiple ways it is not Christian. I addressed the threat it poses to America’s constitution. My remarks are below.
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I’ve been asked to discuss the multiple ways in which Christian Nationalism is inconsistent with America’s founding documents—especially the First Amendment and the Bill of Rights. It’s always a good idea to define our terms, so let me begin by listing the basic premises of Christian Nationalism—a political movement that my friends in the Christian clergy assure me is anything but authentically Christian.
Christian Nationalists begin with the ahistorical insistence that the United States was founded as a Christian nation, and that one must be a Christian (or– let’s be honest here—a White Christian) in order to be a “true American.” Christian Nationalists reject Church-State separation and believe that civil government should impose their version of “Christian” behavior on all American citizens. That would entail—at a minimum—banning abortion, rejecting same-sex marriage (and for that matter, criminalizing homosexuality), and reinstating patriarchy.
Virtually every tenet of Christian Nationalism is diametrically opposed to the philosophy of the U.S. Constitution and Bill of Rights. I won’t spend time today explaining how the movement distorts and mischaracterizes either Christianity or the actual history of this country. What I will do is “compare and contrast” some of the foundational provisions of America’s constituent documents—and especially the Bill of Rights— documents that reflect what I call “The American Idea”–with the absolutely contrary premises of Christian Nationalism.
What do I mean when I talk about the “American Idea”? What is that Idea, and what were its political and philosophical roots? Where did our Constitutional system come from, and how did it differ from prior beliefs about the nature of government power and authority? Answering those questions does require a visit to the history of America.
A while back, while I was doing research for one of my books, I came across an illuminating explanation of the stark differences between the original settlers who came to this country—those the scholar called the “Planting Fathers”—and the men who would draft our legal system—the men we call the Founding Fathers. As he pointed out, the Puritans and Pilgrims who first came to America had defined liberty—including religious liberty– as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and to use the power of government to ensure that their neighbors did too. But the Founders who crafted our constitution some 150 years later were products of the intervening Enlightenment and they had accepted its dramatically different definition of liberty.
Enlightenment philosophers defined liberty as personal autonomy—an individual’s right to make his or her own moral and political decisions, free of government coercion. In the Enlightenment’s libertarian construction, liberty meant freedom to “do your own thing,” subject to two very important caveats: you could do your own thing so long as you did not thereby harm the person or property of someone else, and so long as you recognized the equal right of others to do their “own thing.” The U.S. Constitution and Bill of Rights are firmly grounded in that Enlightenment understanding of the nature of liberty.
It’s also important to understand that, as a result, America’s constitutional system is largely based on a concept we call “negative liberty.” The Founders believed that our individual rights don’t come from some gracious grants from government; rather, those rights are “natural,” meaning that we are entitled to certain basic rights simply by virtue of being human (thus the term “human rights”), and that a legitimate government is obliged to respect and protect those natural rights. If you think about it, the Bill of Rights is essentially a list of things that government—“the state”—is forbidden to do. For example, the state cannot prescribe our religious or political beliefs, it cannot search us without probable cause, it cannot censor our expression—and it is forbidden from doing such things even when popular majorities might favor such actions. That concept of a limited and constrained government is absolutely antithetical to Christian Nationalism, which seeks to use the power of the state to compel behaviors consistent with their version of Christianity.
Robert P. Jones, chief executive of the Public Religion Research Institute, is among the many scholars who have described why that Christian Nationalist approach is inconsistent with the American system, writing that –and I quote–“A worldview that claims God as a political partisan and dehumanizes one’s political opponents as evil is fundamentally antidemocratic, and a mind-set that believes that our nation was divinely ordained to be a promised land for Christians of European descent is incompatible with the U.S. Constitution’s guarantee of freedom of religion and equality of all.”
The Founders’ view of freedom of religion is incorporated in the First Amendment, which protects religious liberty through the Establishment and Free Exercise Clauses – clauses that, operating together, require the separation of Church and State.
Now, as fundamentalists like to point out, the actual phrase “separation of church and state” doesn’t appear in the text of the First Amendment. What they prefer to ignore is that that the phrase refers to the way the First Amendment’s two religion clauses operate. However, the concept of church-state separation had long preceded its incorporation into the First Amendment. The first documented use of the actual phrase was by Roger Williams, founder of Rhode Island, well before the Revolutionary War. The most famous use, of course, was that of Thomas Jefferson. When Jefferson was President, a group of Danbury Baptists wrote to him asking for an official interpretation of the First Amendment’s religion clauses. Jefferson’s response was that the Establishment Clause and Free Exercise Clause were intended to “erect a wall of separation” between government and religion. What is less often noted is that since Jefferson’s response was official, it was duly confirmed by the then serving U.S. Attorney General before it was transmitted to the Danbury Baptists.
Historians tell us that the Establishment Clause went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church” as inadequate to their intent. The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The courts have uniformly held that this language not only forbids the government from establishing an official religion or state Church but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that prefer religion to non-religion, or for that matter, non-religion over religion.
Meanwhile, the Free Exercise Clause prohibits government from interfering with the “free exercise” of religion. It protects the right of Americans to choose our own beliefs, and to express those beliefs without fear of state disapproval. Read together, the Free Exercise Clause and the Establishment Clause require government neutrality in matters of religion. The Religion Clauses prohibit Government from either benefiting or burdening religious belief.
One way to think about the operation of the religion clauses is that the Establishment Clause forbids the public sector (that is, government) from either favoring or disfavoring religion, and the Free Exercise Clause forbids government from interfering with the expression of religious beliefs in the public square (that is, the myriad non-governmental venues where citizens exchange ideas and opinions.)
When states misuse their authority and play favorites, when they privilege some religious beliefs over others, people who do not share those privileged beliefs are relegated to the status of second-class citizens. Separation of church and state prevents adherents of majority religions from using government to force their beliefs or practices on others, and it keeps agencies of government from interfering with the internal operations of churches, synagogues and mosques.
As to that original purpose of neutrality, I’ve come across few explanations better than the one offered by John Leland. Leland, who lived from 1754 to1851, was an evangelical Baptist preacher who had strong views on the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”
(Leland could hardly have envisioned our current government’s belief that it does have the right to interfere with the principles of mathematics and statistics…But that’s a scary subject for another day…)
The bottom line is that we Americans live in a diverse society, where different religions hold dramatically different beliefs about the matters Christian Nationalists want government to dictate. For example, in several traditions, including my own, abortion is permissible. Nevertheless, here in Indiana, where our legislators routinely ignore the official neutrality required by the First Amendment, lawmakers have passed a law that imposes a belief held by some Christian denominations on members of denominations and faith traditions who do not share those religious beliefs.
It would be a serious mistake to think that Christian Nationalism is only inconsistent with the First Amendment. The racism and misogyny that is built into it also run afoul of the 14th Amendment’s Equal Protection guarantees. The constitutional requirement of equal protection is intended to prevent majorities (or in this case, activist minorities) from using government to disadvantage individuals and minorities of whom they disapprove
Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. In the United States, our laws are supposed to be based upon a person’s civic behavior, not on gender, race or other markers of identity. So long as we citizens obey the laws, pay our taxes, and generally conduct ourselves in a way that does not endanger or disadvantage others, we are entitled to full equality with other citizens. That guarantee of equal civic rights is one of the aspects of American life that has been most admired around the globe; it has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. Christian Nationalism strikes at the very heart of that commitment to civic equality—it would privilege certain citizens over others based solely on their skin color and religious identity. It’s hard to think of anything more anti-American.
The conflict of Christian Nationalism with the Constitution and Bill of Rights isn’t limited to the First and Fourteenth Amendments. There is another incredibly important principle embedded in the Bill of Rights that we are already in danger of losing to the sustained assault of these pseudo-religious fanatics: the doctrine of substantive due process, often called the right to privacy or the right to personal autonomy.
I agree with the numerous constitutional scholars who argue that, although the right to personal autonomy or self-government is not explicitly mentioned, the principle is inherent in the Bill of Rights. That’s because it is impossible to give content to the rights that are specifically enumerated unless we recognize the doctrine of substantive due process –and that impossibility was explicitly recognized by the Supreme Court in 1965, in the case of Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The legislation prohibited doctors from prescribing contraceptives and prohibited pharmacists from filling any such prescriptions. The Supreme Court struck down the law, holding that whether a couple used contraceptives simply wasn’t any of the government’s business; it was not a decision that government was entitled to make
The Court recognized that an individual right to personal autonomy—a right to self-government—is essential to the enforcement of the other provisions of the Bill of Rights. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or in the Ninth or 14th Amendment—the Justices agreed on both its presence and importance.
The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are far outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue is who gets to make that decision—the individual or the government. Allowing any unit of government to decide such matters violates the most fundamental premise of the Bill of Rights and the philosophy that underlies our constitutional system. Yet that is precisely what Christian Nationalists want.
Let me be clear: Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health, or requirements that students be vaccinated before entering a public school classroom are examples.) Otherwise, in the constitutional system devised by the Founders, government must leave us alone.
For a long time, secular and religiously tolerant Americans dismissed warnings about the growing fundamentalist assaults on that principle, confident that their right to self-determination was secure. The conservative Christian reasoning in Dobbs, the case that overturned Roe v. Wade, justified an invasion of that personal liberty, and it was shocking. For the first time in American history, a Supreme Court had withdrawn a constitutional right that had been considered settled for over fifty years.
As polarizing as that decision was, there is still very little understanding of its scope, and the fact that it threatens far more than the health, well-being and self-determination of American women.
In this country, different religions—and different denominations within those religions– have very different beliefs about the status of women and about procreation. What amounts to the Supreme Court’s elevation of a particular version of Christianity has understandably engendered an enormous and negative reaction–a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. What is still not fully appreciated, however, is the fact that Dobbs was more than just an effort to force women to give birth—it was a devastating assault on the American definition of individual liberty, a definition which draws a line between legitimate and impermissible government actions.
If there is no right to privacy—no substantive due process guarantee–if government can force women to give birth, government can move to make interracial or same-sex marriages illegal. It can outlaw birth control. It can forbid divorce. In short, it can decide those “intimate matters” that the Founders and former Supreme Court decisions protected against government over-reach.
So far, my discussion of these issues has been necessarily abstract—a discussion of principles. Let me just conclude by reminding you of the challenge we are facing right here in Indiana, where we have statewide officials who are self-identified Christian Nationalists and who demonstrate daily that they neither understand nor respect the Constitution.
The most obvious example is our Lieutenant Governor, Micah Beckwith, who has pushed the racist White Replacement Theory, compared vaccination policies to Nazi Germany’s treatment of Jews, advocated that brown people crossing the border be shot, and accused the Indy Star, members of the left and Methodist and Lutheran ministers of wanting to cut off the private parts of children. When he served briefly on a library board, he tried to censor and remove books of which he disapproved, and he constantly engages in ugly diatribes against gay citizens. Most recently, he claimed that undocumented immigrants aren’t entitled to due process.
Todd Rokita, Indiana’s embarrassing Attorney General, has hounded and harassed a doctor who legally aborted a ten-year-old rape victim, and is engaged in a wide-ranging vendetta to root out efforts to foster racial and religious inclusion. I won’t go through Jim Banks’ numerous assaults on the American Idea, since as Fort Wayne residents you are undoubtedly already familiar with them. These men are so busy pursing a Christian Nationalist culture war, they don’t have much time to attend to the duties of their offices. They provide an excellent example of what government would be like in a country run by Christian Nationalists—aka, the Christian Taliban.
A country in the thrall of a Christian Nationalist worldview would look nothing like the America that most of us love and want to protect. We live in a dangerous time, but we cannot give in to fear and reaction, and we absolutely cannot allow Christian Nationalists, White Supremacists and other assorted bigots to jettison the legal system that has fostered American progress and been a beacon to oppressed people around the world.
Throughout our history, America has had to reckon with significant numbers of people who never accepted the premises of the system devised by the Founders. There have always been Puritans who–like the Planting Fathers–believed that they should be able to use government to control the lives and behaviors of everyone else. Throughout our history, we have always had to deal with America’s “original sin” of racism. We’ve had dark times. It wasn’t just the Civil War—I’m only one of the many old folks in this room who have lived through the Civil Rights movement, the women’s liberation movement, and the gay rights movement. American liberty has always been a work in progress—and has always been frantically resisted by those who have felt threatened and disoriented by social change. That said, the country has moved—granted, in fits and starts—toward realizing the ideals of liberty and civic equality set out in our constituent documents.
Because I am old, I often think of a folk song that was popular during the great upheavals of the 60’s. It was sung by Peter, Paul and Mary, and the chorus was “don’t let the light go out.” That should be our motto as we face this latest eruption of deeply unAmerican challenges from people who are threatened by diversity and dead-set against equality and inclusion.
A few days ago, I participated in an Indiana Lawyer podcast investigating the question “Is America experiencing a Constitutional Crisis?”
Unfortunately, I was paired with Jim Bopp on the recording, which was a test of my ability to keep my cool. Bopp, for those of you who don’t know, was the lawyer who brought us Citizen United, and he’s never met a ‘librul’ who was right about anything. He also apparently resides in an alternate reality, where every lower court judge who’s ruled against Trump is a far-left liberal appointed by a Democrat, Trump’s daily insane Executive Orders are merely an example of the way past Presidents have tried to “push the envelope,” and voting by mail is an invitation to ballot theft…
There was more, but the stiff drink I imbibed when I got home helped.
When I got the call requesting that I participate in the podcast, I was told the questions would revolve around whether the country is currently experiencing a constitutional crisis. I think the answer is yes.
Of course, whether we are currently experiencing such a crisis depends upon your preferred definition. One line of thinking defines a Constitutional Crisis as a situation in which a President defies a clear mandate by the Surpreme Court. I think that is far too restrictive a definition; instead, I would argue that the loss of a fundamental basis of constitutional functioning qualifies–and I think it is beyond argument that we are witnessing such a loss.
America’s constitutional structure is based upon the Separation of Powers. The Founders who crafted the Constitution were greatly influenced by Enlightenment philosophy, especially the philosophy of Baron de Montesquieu, who wrote The Spirit of Laws. Montesquieu argued that, in order for liberty to thrive, government authority must be divided into three distinct branches—legislative, executive, and judicial—each with independent powers and responsibilities. That division, he argued, would prevent the concentration of power leading to autocracy, and would provide a system of checks and balances.
The Founders embraced that structure, expecting that each branch–jealous of its prerogatives–would check excesses attempted by the others. Despite some unfortunate missteps, It has basically worked that way.
Until now.
One after another, Trump’s Executive Orders have claimed authority that the Constitution explicitly gives to the other branches–primarily, Congress. (Interestingly, the Founders conceived of Congress as the “first among equals”–the legislative branch, in their conception, would be the branch exercising the greatest authority.) These attempts would not, in themselves, constitute a constitutional crisis–the crisis comes from the cowardly, arguably treasonous refusal of the Republicans who dominate the legislative branch to assert their constitutional prerogatives. And that crisis has been amplified–shamefully–by the Supreme Court. Despite the valiant efforts of the lower federal courts to constrain Trump, our rogue Supreme Court has used its Shadow Docket to summarily overturn the considered and thoughtful decisions of Judges who–contrary to Jim Bopp’s fond misconceptions–were nominated by Presidents of both parties, and include judges named by Trump. That rogue Court has weakened the rule of law by failing to follow its own precedents and by distorting settled constitutional jurisprudence.
The one observation by Bopp with which I agreed was his statement that personnel reflects policy. Any reasonable evaluation of the clowns, drunkards, conspiracy theorists and assorted grifters installed by Trump will reflect the utter lack of policy–not to mention competence– that permeates this administration. (Corruption and grifting aren’t policy.)
If we aren’t having a constitutional crisis, I don’t know what one would look like…
