There once was a time when most Americans revered the Constitution. The charter outlined how we mortals  structured our government so that reason and fairness were two of the guiding principles. But thanks to Donald Trump and the current generation of Republicans, our governmental structure no longer has clear definition. The rules governing what we can do are suddenly whimsical and chaotic. Where there used to be rhyme and reason, now we have fragmentation and dysfunction. Republican presidents, legislatures and judges have replaced the discretion with how we interpret the Constitution with blatant self-interest.

The reason is that Trump and his followers have little respect for preserving and strengthening the institutions and procedures that for so long have protected our democracy. If the rules do not provide most Republicans with unfair advantages, they rebel against the rules and try to change them, throwing caution to the wind.

The U.S. Constitution outlines a few basic principles that control how government in America is supposed to work. Just for quick review, here are the most fundamental of these.

1. Checks and balances. Each level of government has three branches: (a) executive, (b) legislative, and (c) judicial.
2. Levels of government. We have our national government, the federal government, the fifty states, and tens of thousands of local governments. Presumably the states are the most powerful because they came first. But the federal government has certain clear rights over the states, such as control of interstate commerce or the power to print money and control banking.

Local governments are closest to we the people and that gives the localities certain inherent advantages. For instance, public schools are controlled by local communities. Yet, the states give charters to local governments including school districts and thus the states can dictate a great deal about how we live, work and play.

Historically, the constitution has helped bring order to how our legislators pass laws and executives enforce the laws. But deciding who makes which rules can be extremely complicated. For two centuries, our constitution was helped by a strong measure of common sense among the electorate. An informed electorate with belief in the Constitution helped in determining which branches of government, or which levels of government (federal, state, or local) would make which decisions, and what would be the parameters of those choices.

Now we are finding that all levels and entities of government are wildly scrambling to advance their own power, regardless of the principles of the Constitution or historical precedent. In the world of the truly absurd, we currently find that the governor of Florida (Ron DeSantis) is telling public school districts that they cannot mandate students and teachers to wear masks to school to provide more protection from COVID-19. This is the kind of problem that historically has been solved by agreements largely forged through precedent and a commitment to promoting the common good. A school board would have control over the day-to-day operations of the school, and currently almost all local boards in the United States want to provide as much safety as possible for students, teachers, administrators and other staff.

But Republicans like DeSantis want to maximize the power of their offices and positions, showing little regard for America’s historical relationships branches and levels of government. Our system is now confusing, unpredictable, arbitrary, and capricious.

The answers to the “Who Decides” questions are not easy. The Trump era can show us how far off any beaten path we can go with these questions. It is enough to make your head spin. But that sort of dizziness has been avoided for most of the lifespan of our country because there were sound rules in our Constitution, and behavioral norms kept anyone from pulling DeSantis tricks.

Federalism was a brilliant idea conceived by our founders. It helps us determine publicly beneficial answers to a myriad of questions about “Who Decides.” But it is based on good will among citizens of different political persuasions. We will never recover from the damage of Donald Trump and his legions until they recognize the importance of governing by the rules that have provided us with a large measure of stability for most of the past two and a half centuries. Regrettably, the record of politicians gone wild in acknowledging their mistakes and reinstating the basic principles of governance is not good.

Progressives will need to reach out to others to try to forge relations built on reason and concern for the common good.

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On July 2, 2017, the New York Times published a special section: an annotated version of the United States Constitution. The special section, says the Times in its introduction, comprises “a slightly abridged Constitution, printed one large, dramatic sheet, as well as an introductory essay, a timeline, and annotations to help elucidate the document’s meaning.” The annotations come from a variety of observers, Republican and Democratic representatives [Bernie Sanders, Dana Rohrabacher, Cory Booker and others], historians, journalists, law professors [Laurence Tribe], authors, and former government officials [Janet Napolitano and others].

I have now read it, in all its unwieldy, small-type glory.  I encourage everyone to take a look at this ambitious project. Unfortunately, it’s available in print only [at this writing], and you’re going to need to brush up on your map-folding skills to handle it. But it’s worth reading. I won’t do it full justice in this post, but I’m offering a selection of quotes that I found particularly intriguing and informative.

In his introductory essay, historian Gary Wills gives a detailed account of the Constitution’s origin story and attempts to put the words and intent of the Constitution’s writers into contemporary context. Or, as the NY Times editors write in their introduction, “How might these words, written in the time of George Washington, guide us in the age of Donald Trump?”

Child of The Enlightenment

Wills reminds us that “America was the first major country founded on the principles of the Enlightenment:’

The founders were at the forefront of science in their day. They would have been astonished had they foreseen a president and his government defying science in matters like evolution and global warming.

Wills also underscores the uniqueness of the secular nature of the US Constitution—the separation of church and state in the First Amendment:

This is the one entirely innovative element in the Constitution: Everything else—separated powers, federalism, the single executive, bicameralism, and independent judiciary—had been known in theory or practice, or both. Only this was truly new. Ours was the first nation started without the assistance of an official deity or cult.

Will adds, provocatively, the “the disestablishment concept was in fact so new that many people have questioned whether Madison really meant it.”

That is why so many logical consequences of separation between church and state have in practice been denied—resulting in “exceptions,” things like tax exemption for churches, state slogans like In God We Trust, legislative and military chaplaincies…”

The Dark Conclave

Wills’ description of the process by which the framers created the Constitution eerily foreshadows [and some would say justifies] much of the secrecy we are seeing in Congress and the executive branch today. He writes:

The framers of our new government were so conscious of their break with the past that they knew they had to sneak it past the very bodies that had authorized their meeting, the states that had sent them as delegates to Philadelphia…The only way to avoid [being recalled] was for…the participants to swear themselves to secrecy, and Washington himself would severely enforce the pledge…

When the convention was over, the records of the procedure were committed to Washington, with the understanding that he would hide them at Mount Vernon. Madison refused throughout his lifetime to release his own detailed diary of the sessions.

Wills also puts the founders’ wariness of direct elections into a modern context, particularly with respect to the selection of federal judges:

The original intent of the Constitution was to keep the judiciary independent of popular pressure…That is what was so bizarre about the opposition to hearings on Merrick Garland’s nomination to the Supreme Court. Republican senators like Mitch McConnell said that the nomination could not even be considered until “the people” had some say on the matter through the 2016 election…This was flatly contradictory to the Constitution’s clear intent, which was to isolate the Supreme Court from every kind of direct vote.

Guns and Slaves

Many 21^st Century arguments about the Constitution center on the Second Amendment, whose grammar [that second comma!] and wording are confusing, and which has been used to maximum effect by the National Rifle Association to sell guns and ammunition.

Wills points out an issue that is too often ignored: “…just how far the poison of slavery pervaded the Constitution… the Second Amendment was also intended to protect slaveholders, who used militias to keep a firm grip on their slaves.”

The Second Amendment …was not meant to let individuals prevent federal “tyranny”—how could it? By training our rifles or handguns on the Army, Navy and Air Force? It was meant to guarantee the legality of a “well-regulated [that is, state-controlled] Militia to handle the states’ internal problems, especially the problems of a large slave population.

What other observers say

What do other contemporary readers of the Constitution say about it in the context of today’s issues? The New York Times asked and got a wide variety of answers, some of which will confirm certain points of view, others of which will infuriate. Here are just a few:

Congressman Mike Lee [R-UT] on Article I, Section I:

“All legislative powers granted shall be vested in a Congress of the United States…”

Lee says:

This clause grants lawmaking power to Congress so the people can keep an eye on their government. Sadly, in the 20^th century, members of Congress started to give away lawmaking authority to the executive branch, because they did not want to be held accountable to the people for unpopular laws. As a result, most of the regulations that govern our lives today were created by bureaucrats. Even though they work in the public interest, they are not accountable to the people…The bureaucrats who have de facto lawmaking power are the “swarms of others” the founders protested.”

Congressman Adam Schiff [D-CA] on Article I, Section 8:

“The Congress shall have the power to declare war.”

Schiff says:

More than 15 years ago, Congress authorized force against the perpetrators of the Sept. 11 terror attacks. The 60-word authorization remains the basis for military action against terrorist organizations around the world…These include groups that didn’t exist in 2001, whose connection to the simple language of the original authorization is tenuous at best. It is incumbent on Congress to play the role that the framers intended…

Senator Robert Menendez [R-NJ] on the 14^th Amendment:

“Section I: All persons born or naturalized in the United states, and subject to the jurisdictions thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of the United States…”

Menendez says:

…In recent years, the debate over immigration reform has given rise to attacks on the 14^th Amendment and on the millions of American-born children of undocumented parents across our country. Ending birthright citizenship would not fix our broken immigration system. Rather, it would give rise to a permanent underclass of undocumented individuals and their descendants…

Op-ed Columnist Ross Douthat on the 27^th Amendment:

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

Douthat says:

This might be the last amendment ever added. That sounds extreme, but consider: It has been 46 years since an amendment of any real controversy has been ratified, and the prospects for one gaining two-thirds support in both houses of Congress and then limping through the states grow dimmer with every year of polarization. Meanwhile, our political order is increasingly adapting itself to a world in which the text of the Constitution cannot plausibly be changed. Whenever the textual straitjacket seems to binding, the presidency simply claims new powers or the Supreme Court issues creative reinterpretations of earlier amendments, and Congress shrugs and lets the executive and judicial branches fight things out.

A lot has happened to the Constitution since the founders first put quill to parchment. The pendulum has swung from assault to defense and back again. Some say that the beauty of the United States Constitution is in its vagueness: You can interpret it to mean almost anything, especially because it was written in the differently nuanced language [and inconsistent spelling] of its day, and because it leaves the details up to lawmakers, judges, Presidents and Congresses. Is 21^st century America about to experience an unprecedented constitutional crisis? That remains to be seen. As Gary Wills sums it up:

…Madison said that the key component of all government was “virtue.” Unless people are willing to choose good arbitrators and submit to their disinterested judgments, there can be no enlightened progress. If the people really want a mean and selfish government, one that speaks only for a faction, then the voting process, no matter how refined, will let them have it. We have witnessed this abroad, when we encouraged democracy in other countries, only to see democratic tools used against democratic values. Perhaps we will one day witness it at home.

Or perhaps it’s already happening.

The post Highlights of NY Times’ annotated Constitution appeared first on Occasional Planet.

I’m not an expert on the U.S. Constitution. I’m not a lawyer constitutional or otherwise. But I am a U.S. citizen, I did take Civics 101, and I know just enough to be dangerous. So, when Fox News’ Chris Wallace asked a question about the 2nd Amendment at the third Presidential debate, I was intrigued.

As I recall it [not verbatim], Wallace asked Clinton and Trump to share their views of the constitution as either immutable–as the Founding Fathers originally wrote it–or as a living document that changes with the times. Both candidates–of course–pledged allegiance to the 2nd amendment. Trump elaborated with a half-assed, Justice-Scalia-esque originalist answer. Clinton asserted that, while she “believes in” the 2nd Amendment, she sees areas where changed circumstances justify a less literal interpretation. [She was referring mostly to universal background checks for gun purchases.]

That’s when I started thinking about the role that the Bill of Rights played in the history of the Constitution. If I remember correctly, the original Constitution was signed in 1787. Then, in 1791, the Founding Fathers added the Bill of Rights–a set of 10 amendments to the Constitution that they apparently thought necessary to clarify their intent.

The anti-Federalists of the time had initially wanted to include a Bill of Rights in the body of the Constitution, but they lost that battle. The ensuing Bill of Rights was a way of placating the anti-Federalists. But that means that the Bill of Rights constituted a set of changes to the original document. Right?

Even George Washington anticipated that there would be changes–amendments to the Constitution. In his inaugural address as first president of the United States, Washington said this about the Constitution:

whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience…

I’m focused on the phrase that I emphasized in bold: “…to await the future lessons of experience.”  That sounds like Washington expected circumstances to change in the future that might necessitate amendments to the fledgling Constitution governing his presidency.

So, I’m wondering how we can say that the original Constitution–and even the initial, 10-amendment Bill of Rights—particularly the 2nd Amendment–must  remain unchanged. If we’re trying to figure out the Founding Fathers’ “intent,”  we have to look no further than George Washington’s own inaugural words. He knew things would change. He understood that there would be “future lessons of experience.” As history shows us, they did, and there were. Isn’t that why we now have, for example, the 14th Amendment and the 19th Amendment?

All of which says to me–in my rudimentary, non-PhD way of thinking–that the Constitution was already a “living document” even before the ink was dry on the original piece of parchment. The Founding Fathers were, themselves, the first revisionists of their own creation. In light of all the changes that were added within just a few years of the ratification of the U.S. Constitution, I simply cannot understand the argument that 21st Century rulings must be based on an absolutely rigid reading of the Constitution.

The post Original intent vs. living document: Musing about the Constitution appeared first on Occasional Planet.

In a shocking policy statement released last week, Democrat Jason Kander—who is running for US Senate to unseat Republican incumbent Roy Blunt—announced that he supports a Balanced Budget amendment to the US Constitution.

That is a very odd policy position for a Democrat. Usually, this balanced-budget stuff is the bailiwick of Republicans, who claim that it’s a more responsible way to run government. Democrats usually oppose this kind of policy. Here are some of the reasons behind their opposition, from a senior fellow at the Brookings Institution:

• Budget deficits are sometimes beneficial, not just in times of war but also during economic slowdowns.

• A balanced-budget amendment brings the threat of political extortion by a congressional minority. Requiring a super-majority to run a deficit “is a veritable summons to political extortion by an intransigent minority” and could trigger a constitutional crisis.

• It is unwise to lock into the Constitution an economic variable of limiting government spending to 18 or 20 percent of economic output, since that level may need to change based on facts and circumstances.

And conventional [Democratic] wisdom says that the whole notion of a balanced budget is just a code-word, cover-story for making sure that, when the budget has to be balanced, cuts will come from social programs and the safety net, not from military spending, or from tax advantages for the wealthiest.

So, what is Kander thinking here?

Maybe he thinks that supporting the balanced budget concept will co-opt Blunt, who has co-sponsored such a measure many times during his tenure in Washington DC. In this line of thinking, Kander’s support for the amendment “takes the issue off the table” in the campaign. He has said that a national constitutional amendment would merely take its cue from similar balanced-budget measures in many states.  [Yeah, but what if balanced state budgets are a bad idea, too? Not a very good example. The federal government should be smarter than the states.]

Or maybe he thought that his supporters wouldn’t notice. It’s sort of an obscure issue, after all, and probably not top-of-mind for most people. But if that’s the case, why send out a tweet about it? Why make it an issue at all?  Why not do what most real Democrats do, and oppose it.

Sorry, Jason. I liked you as Missouri Secretary of State. And I was just about to sign up to volunteer for your campaign, on the recommendation of a friend whose opinion I value. But now that you’ve announced this policy, I’m less likely to help you out. This is exactly the kind of stinkin’ thinkin’ that other Missouri Democrats have engaged in as a ploy to appeal to Republican voters. Prime example: Robin Carnahan, another former MO Secretary of State tilted rightward in a previous election, sullying her previously stellar reputation, alienating many supporters, and failing to swing any Republican voters her way, and, of course, ultimately losing the election.]

When will these cowardly Democrats learn? In Missouri, you’re not going to grab any Republican voters by pretending to support conservative ideas. If they want a Republican, they’re going to vote for one. You’re not fooling them.  You can’t out-Republican Missouri Republicans. But what you are doing is alienating Democrats.

What we need are not Republican-light Democrats. We need progressive Democrats—Democrats who are not afraid to work for liberal policies. When Democrats pull this fake conservative bullshit, what they take off the table is the progressive message.  And that is really sad, because a lot of people may call themselves conservative, but expect to receive the services brought to them by progressive ideas [Social Security, Medicare, Medicaid, TANF, fully funded police and fire services, infrastructure—to name just a few.] They just don’t realize it. They should be reminded. That’s a really important job for Democrats. And that’s why I have zero patience for Democrats who support terrible, right-wing policies like a balanced- budget amendment.

I await an explanation from Kander.

The post A MO Democratic candidate calls for a Balanced Budget amendment. Wait, what? appeared first on Occasional Planet.

It is no secret that political polarization has increased in the United States in recent years. For those who heard President Obama speak on the need for sensible gun laws on Tuesday, January 5, 2016, it is clear that he continues to look for ways to find common ground with Republicans. Yet experience has taught him that this is unlikely now, because his presidency and the 114^th Republican-controlled Congress are inexorably linked at the hip until January 2017.

The differences between Republican and Democratic presidential candidates in 2016 could not be more palpable. Republicans viciously attack one another and speak in angry tones about the solutions to America’s problems. The three Democratic candidates reason together, and each seems to strengthen his or her positions by listening to the ideas suggested by the other two. There are those who say that under present conditions, the United States may be stuck in a long-term political stand-off with continued Democratic presidents and Republican-controlled houses of Congress.

Is there any way that the messages from either party can resonate with voters who are undecided or identify themselves with the other party? Republicans like to cater to fear, and unfortunately, we do not know to what limit that might play. Life in the 21^st Century is indeed frightening in many ways, and we all have cause to be concerned. For those who either do not have the inclination or the opportunity to step back, take a deep breath, and consider the best policies for tomorrow, the Republican Party may provide the kind of “quick fix” answers that they want.

Democrats frequently try to broaden their appeal by calling on reason to connect with others. As I have previously written, efforts to communicate by reasoning are becoming more and more limited as America’s schools place far more value on standardized test scores than on students’ abilities to engage in critical thinking. When Democrats say that easy access to guns results in more gun violence, far too few people are able to take the next step; the step to support legislation to strengthen gun control. There are times when progressives have opportunities to try to strengthen the reasoning abilities of those who are challenged in this regard. But all too often, those opportunities are squandered. Renee Shur wrote here in 2013 how MSNBC has alienated “the persuadables” rather than welcoming them into progressive company.

What is clear is that progressives need to take the lead in learning more about how they think, and about how conservatives think. Republican leaders will not make an effort to find common ground so it is essential for progressive leaders to reach out to leaders and individual voters who do not share their political point of view.

In an effort to help progressive learn more about the political landscape in which we operate, I have initiated further study into the infamous “Republican Brain” and also the Democratic Brain that often views the world in a very different fashion.

Last month, I surveyed over 200 voters across the nation on bellwether political questions. While the sample size of our survey is small, it is significant enough to make it validate general findings. I offer the results not as “absolute truth,” but rather as talking points and questions that need to be further studied. We’ll focus now on just one of the sixteen questions asked.

This first question is: “In terms of determining what is right or wrong, what do you value most?” The three choices are (a) The Constitution, (b) The Word of God, and (c) Both the same. Below are the aggregate responses:

Many people, particularly those who do not consider themselves to be religious, view the Constitution as the work of many human beings. There is nothing mystical about it but it certainly is a remarkable document. Forty-seven percent of Democrats said that they value The Constitution more than “The Word of God,” while only 9% of Republicans did.

Fifty-one percent of Republicans saw “The Word of God” as more important compared to only 31% of Democrats.

What do we learn from these results? Even with the limited statistical reliability of the results, we find further indication that Democrats are more aligned with the U.S. Constitution, one of the primary documents of The Enlightenment or The Age of Reason. Republicans were more comfortable with “The Word of God.” One of the things that is rarely discussed is how vague a term “The Word of God” is. Certainly it means one thing to Catholics, another to Protestants, something else to Jews, and something different to Muslims. As we know from the Sunni and Shia fighting in the Middle East, even within one religion the differences can be large.

This is a topic for further study. Do those who value “The Word of God” think that there is a divine right or wrong to a woman’s right to choose? What if there is conflicting words within the Bible or the Quran? In subsequent surveys, we’ll dig down deeper on this and then look for possible areas where progressives can better connect with Republicans. This will not be easy, but it is a good place to focus our attention rather than on demonizing those with whom we do not agree.

The post A glimpse into Republican and Democratic brains appeared first on Occasional Planet.

In June 1963, President John F. Kennedy addressed the nation, urging Congress to pass a comprehensive civil rights act. Setting the stage for the action that he wanted to take, he said, “We are confronted primarily with a moral issue. It is as old as the scriptures and is as clear as the American Constitution.”

This is the type of rhythmic prose that Kennedy and chief speech-writer Theodore Sorensen wrote. But a basic premise has to be questioned. How clear is the Constitution? If it was really clear, would we even need a Supreme Court to interpret it?

Part of the answer is that Kennedy chose to wax poetic rather than to be precise in his language. The Constitution is not clear, and the confusion within it has contributed to everything from the American Civil War to the nearly 100 cases that the Supreme Court must adjudicate each year.

Instead of looking at the Constitution as engraved in stone, we may more accurately view it as an organism that is constantly morphing. Everything is subject to review, and the motivations behind requests for change can be both noble and ignoble.

The preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The catch-all phrase in the preamble is “promote the general Welfare.” A fair question to ask now is how helpful is our Constitution at promoting the general welfare. Since the Constitution enumerates the powers of the judicial branch (federal courts), legislative branch (Congress) and the executive branch (Presidency), there are numerous ways in which the general welfare can either be promoted, or in what seems to be more frequently the case, not promoted.

If we are to analyze how the three branches of government are not succeeding in promoting the general welfare, we must establish what is the meaning of the largely interchangeable terms, general welfare and common good?

A flip, but perhaps, reasonably accurate answer to the question is an adaptation of Supreme Court Justice Potter Stewart’s response to a question about pornography, “I know it when I see it.” And with the “common good,” we know it when we see it. This still leaves considerable uncertainty and confusion, but two recent Supreme Court cases have been decided ways that, to a reasonable, person are clearly deleterious to the common good. Whatever their “constitutionality” might have been is clearly superfluous to the “common good” needs that had to be met.

The first case is the infamous Citizens United v Federal Election Commission ruling of 2010. In this instance, the Court was asked if there could be limitations on political spending, particularly by corporations, labor unions, and Political Action Committees (PACs). The Roberts Court essentially ruled that corporations are people and are free to donate as much as they want. Perhaps in an absolutist interpretation of the First Amendment, this was true. But we have always placed reasonable limits on the First Amendment, such as the prohibition from yelling “fire” in a crowded theater. The reason we do this is to protect the common good.

It is quite clear that unlimited money in politics does four things that are detrimental to the common good:

1. It distorts exposure of the candidates to the public, with priority going to those who have the most money.
2. It favors candidates who are close to the moneyed interest
3. It reinforces a system of individuals and corporations “buying” political favors from elected officials.
4. Perhaps most insidiously, it favors candidates who are comfortable asking others for money.

When people ask why we have such poor elected officials, the answer often is that we have “the best that money can buy,” but not the best that a real democracy can elect. The Citizens United ruling is clearly detrimental to the common good.

The second Court case is Shelby County (AL) v. Holder. In this 2013 case, the Roberts court ruled that a key part of the Voting Rights Act of 1965 is “unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states.” In plain English, what this means is that there is no longer sufficient data to demonstrate that African-Americans face discrimination, particularly with regard to voter access. Since that ruling, many states have instituted modern day poll taxes against African-Americans, other minorities, and the elderly. If the absurdity of that notion wasn’t clear in 2013, it certainly is in 2015. The data that the Court used is clearly negated. Occurrences in Ferguson, MO and numerous other municipalities in the United States have shown that equal rights are hardly here. The Court’s decision clearly aided Republicans (whose constituency is largely made up of people who have few hurdles to clear to vote), rather than Democrats, who typically represent minorities, the poor, and the elderly.

Virtually any case that goes before the Supreme Court involves difficult constitutional questions. There are plausible interpretations for either side. What we have seen most recently is a turn by the Court toward making decisions that are consistent with their individual political preferences. That is essentially what happened in Bush v. Gore in 2000, and Supreme Court Justice Sandra Day O’Connor as much as said so. The problem with that decision and many since is that the justices had a very conservative view of the common good, one that favored the wealthy over most of the rest of America.

If the battles before the Court are going to be about what is the “common good,” then it is all the more important that the American people elect progressive presidents and members of the Senate so that the Court can work for America. The issues of poverty, inequity, environmental protection, health care, and many more are far too important to be left to the parsing of Supreme Court justices over a document that easily lends itself to contrary interpretations. The common good that progressives see is one that will be beneficial to all Americans, including the wealthy. The Supreme Court, as with the legislative and executive branches of our government, must change to view its work as promoting the common good. If that does not happen, we cannot expect the change that America needs.

An encouraging example of valuing the common good more than other qualifications to sit on the Supreme Court is described in Believer: My Forty Years in Politics by David Axelrod. He describes Senator Barack Obama’s consideration of whether or not to vote to confirm John Roberts to the Supreme Court.

“I spent time with Roberts, and came away convinced that he is qualified in every way,” Barack said to us. “He’s obviously bright. He knows his stuff. But I also have this nagging feeling, based on his opinions, that anytime there’s a contest between the powerful and the powerless, he’ll find a way to make sure the powerful win.

Barack Obama was one of 22 senators who voted to not confirm John Roberts.

The post Should the common good trump the Constitution? appeared first on Occasional Planet.

On January 21, 2010, the U.S. Supreme Court in its decision on Citizen’s United v. FEC gave corporations the freedom to spend without limit to influence United States elections. With this decision, the Court opened the doors to a new stampede of special interest money in our politics, further corrupting a system that, for decades, has been deeply compromised.

Greg Colvin, a San Francisco attorney writing for Campaign for American’s Future, proposes a way to amend the Constitution to undo the damage caused by the Citizen’s United decision and restore fairness to our electoral process.  In our country, each person has one vote, and it’s illegal to buy or sell your vote.  Colvin asks the obvious question: Why do we allow the richest corporations, business associations, unions, and individuals to buy enormous leverage to influence the outcome of our elections?

The radical nature of the Citizen’s United decision and why it needs to be overturned

Through this decision, conservative justices eviscerated laws that have been on the books for a century banning direct contributions and spending by corporations in federal election campaigns. They used a case originally brought on a narrow issue—whether an organization, Citizen’s United, could air a film sharply critical of Hillary Clinton without disclosing who financed the film—to bring back the corruption of the Gilded Age.

Instead of simply deciding the case before it based on existing laws and precedents, the court engaged in an outrageous act of overreach. On June 29 of 2010, it postponed a decision and called for new briefs and a new hearing. Then, the court deliberately chose to consider an issue only tangentially raised by the case, which was the 1990 decision that upheld the long-standing ban on corporate money in campaigns.  In deciding in favor of Citizen’s United, the court did not simply overturn a single decision. The ban on corporate money in campaigns had been upheld many times, over many years, by justices of differing philosophical and political leanings. There was no public demand to overturn these decisions. They were considered “settled precedents” and firmly embedded in our system of laws. Yet, the conservatives on the Robert’s court basically took it upon themselves to initiate a change in the law to allow corporations and wealthy individuals to exert unprecedented influence over our political process. Through this egregious example of judicial overreaching, they give new meaning to the term “activist judge.”

A new public opinion survey, conducted by Hart Research on behalf of Free Speech for People, finds that seventy-nine percent of Americans sharply disapprove of the Robert’s court decision, and support a constitutional amendment to reverse the Court’s ruling.

A proposed Constitutional Amendment:

According to Colvin:

It is not enough to declare that corporations are not legally persons, or to give Congress and the states the power to regulate the political contributions and expenditures of corporations and labor unions. Those are only partial remedies.

Past attempts to regulate campaign finance in America have been like the “squishy balloon”—squeeze it in one place, it pops out another. Limit what goes to candidates; it goes to parties. Clamp down on party fundraising, it goes to independent 527s. Disclose donors to 527s, the unlimited, anonymous money goes to 501(c)(4)’s. All the while, wealthy individuals still spend huge amounts to seek their own elections and force their opponents to try to match them.

The only way to drive big money entirely out of politics is to adjust our system of campaign finance to the scale of the individual voter, who has one vote to cast for each office or measure, and no more. The only source of money to influence American elections should be the individual citizen and, at the option of the federal or state government, public financing.

Colvin suggests that Congress and the States should limit the amount each citizen can donate or spend to influence a specific vote, including a candidate’s own personal expenditures in pursuit of public office, to the median annual household income in America, currently about $50,000. It seems limiting donations to a modest amount would be essential to make this Amendment meaningful. For example, without a limit on individual donations or campaign expenditures, billionaires could use their vast sums to donate to a candidate or self-fund a run for office, and continue to corrupt the electoral process.

Amendment XXVIII “Citizens Election Amendment” Version 1.0

Section 1. Only natural persons who are citizens of the United States may make contributions and expenditures to influence the exercise of a citizen’s right to vote, although Congress and the States may also institute systems of public financing for election campaigns.

Section 2. Congress and the States shall have concurrent power to implement this article by measures that may set limits on the amounts of each citizen’s contributions and expenditures, including a candidate’s own spending, and authorize citizens to establish committees to receive, spend, and publicly disclose the sources of contributions and expenditures, and by other appropriate legislation.

A summary of Colvin’s explanatory notes:

Campaign donations and spending by all sources other than individual citizens would be eliminated, but public financing would be permitted.

The amendment would apply to all citizen votes held at all levels of government—federal, state, and local—on the nomination and election of candidates for public office and on ballot measures.

Political parties, labor unions, business associations, and other interest groups would be allowed to be aggregators, convincing individual citizens to donate within such limits as Congress or the states may enact.

Congress and the States would move toward a single nationwide interpretation of the phrase “to influence the exercise of a citizen’s right to vote,” such as the Internal Revenue Service definition of “political intervention” that applies to all tax-exempt organizations and taxpayers.

The post Reversing Citizens United appeared first on Occasional Planet.

On March 4^th, Senators McCain and Lieberman quietly introduced a bill that Salon Magazine’s Glen Greenwald calls “the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades, far beyond the horrific, habeas-abolishing Military Commissions Act.”

It is senate bill S.3081, the “Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010,” which now has nine sponsors including newly elected Senator Scott Brown.

This bill appears to be Senators McCain and Lieberman’s response to President Obama choosing to have the Christmas “underwear bomber,” Umar Farouk Abdulmutallab, tried in civilian courts. And, according to Greenwald, it is also “designed to formally authorize what the Bush administration did to U.S. citizen Jose Padilla—arrest him on U.S. soil and imprison him for years in military custody with no charges.”

This bill grants the president the power to order, arrest, interrogate and imprison anyone—including U.S. citizens—considered to be a “suspected belligerent” or a “high value detainee.” According to the bill, a person is considered a “high value detainee” if he/she fulfills one of the following criteria:

(1) poses a threat of an attack on civilians or civilian facilities within the U.S. or U.S. facilities abroad; (2) poses a threat to U.S. military personnel or U.S. military facilities; (3) potential intelligence value; (4) is a member of al Qaeda or a terrorist group affiliated with al Qaeda, or (5) such other matters as the President considers appropriate.

In other words, an individual doesn’t even have to pose a threat to be picked up, detained and interrogated by the military. Individuals can merely be determined to be of “potential intelligence value” or come under the vague mandate of “such other matters as the President considers appropriate.” After the arrest, “The High-Value Detainee Interrogation Team must make a preliminary determination whether the detainee is an unprivileged enemy belligerent, within 48 hours of taking detainee into custody.” The final determination of whether or not the person is an “unprivileged enemy belligerent” is made by the Secretary of Defense and the Attorney General. And then, the so-called unprivileged enemy belligerent can be held indefinitely in military custody.

Liliana Segura, writing at Alternet, says  “This is a defining characteristic of a military dictatorship. Where’s the outrage?”

The ACLU has expressed its vigorous opposition to the legislation, labeling it nothing less than a “direct attack on the Constitution.” “Indefinite detention flies in the face of American values and violates this country’s commitment to the rule of law,” states Laura W. Murphy, Director of the ACLU Washington Legislative Office.

The frightening aspect of this bill, besides the fact that it shreds the Constitution, is that it gives the president and the military the power to turn the “war on terror” against politically active American citizens who may express dissent against the policies of the government.

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