Reflections On A Battered Constitution
The Rule of Law is what keeps us from anarchy, or living at the mercy of an autocrat's whims. Those responsible for it have abdicated their obligations and jeopardized our future survival.
When I was young, I idolized my Uncle Ron. He was a high-powered attorney and spoke with authority, and he engaged me with respect on questions I asked about various issues, even though I was not an adult. He didn’t treat me as a child, and would share with me court filings of his when I asked about a case, believing that I had the ability to understand. I would work at his law office from time to time assisting with office tasks or research, such as locating specific case volumes in the law library, or searching briefs for specific terms and highlighting them. Small stuff, but to a young teenager, it mattered. I once strongly considered going to law school as his daughter did, but instead I headed down the path of a writer. Not that I got anywhere professionally with it, despite my best efforts, but I tried my hardest and stay active as a writer. One day, it may still happen for me. I may yet become a professional writer. Persistence is important, and I’ve always believed in it. I’ve also spent my life believing in the law, because of my uncle, and the faith he held in it.
When I look out at the world right now, I find myself extremely torn. I’m naturally someone who bends very far along the moral arc of justice. I do not give up in situations where I believe I’ve been wronged, or when others are wronged. I believe in fighting against any abuse of power, small or large. I recognize that part of what allows me to do that is that as a cis white man, I get much more leeway from society than many others do when they choose to fight. There is supposed to be equality under the law, but right now, it is getting to be as bad as the Civil War period. It is why I understand and greatly sympathize for those who are afraid, vulnerable, and looking over their shoulders wondering if today is the day some masked government thugs are chasing them so they can be tied up and thrown into a random vehicle, then sent to a jail without access to a lawyer, or a phone call, or any of the rights we are promised by the Constitution. It is so much harder to fight when those are the obstacles facing you, and every single person who lives under that threat is a hero in my eyes.
These threats are America’s most dangerous enemy right now—the subversion of the legal system makes it far more difficult to believe in the law—and the enemy is indeed within. There is little to separate our legal system from that of any other nation any longer. While injustices occur in any legal system, because injustice is an inherent part of anything built upon the rule of law. Injustice cannot be avoided under any method of rule, or any legal system built upon the rule of law. Injustice is an inherent part of life itself. Good people seek to minimize injustices, and both the enforcement of the law equally and the construction of the rule of law itself are methods towards that goal.
What is occurring in this country is something completely different. Anyone who serves in government takes an oath to the Constitution. They are entrusted with guarding our laws, and the legions of MAGA faithful in the government is perverting those laws. The Trump administration, top to bottom, is committing open lawfare upon the citizenry of America. Lawfare, a term coined by USAF General Charles Dunlap after the Kosovo intervention by NATO, is the use of the law as a weapon of war. They are at war with the idea of America itself, a nation inclusive of many ethnicities, genders, faiths, and ideologies. Despite the best efforts of so many, the plain language of our Declaration of Independence cannot be argued: we are all created equal. The 14th Amendment to the Constitution states that our rights are guaranteed, and all of us receive equal protection under the law.
Under Donald Trump, we are backsliding into an authoritarian regime, where the emperor’s wishes are the substitute for the rule of law. Instead of making honest attempts to honor their Constitutional oaths, his subordinates are doing their best to turn his whims, his cruelties, and his ignorant rants into law. Back when the Soviet Union existed, the KGB was called “the sword and the shield of the [Communist] Party,” and in America, ICE has become Trump’s sword in service of fascism, and Congress is shielding him by their inaction in the face of what James Madison described in Federalist No. 48 as “the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter.” What Madison described is currently happening. False emergencies are being declared to allow tyranny to descend on the American people. Cities governed by what the British system calls “the loyal opposition” have soldiers walking the streets, manning checkpoints and asking for papers from citizens, a development that this nation has never once imposed upon us. Cities governed by political allies, meanwhile, are free from this use of the military, despite far more closely meeting the criteria for deployment that this administration is using as justification.
When it comes to the Supreme Court, it’s somehow worse than Congress’s abdication. Justices are not meant to be politicians. There have always been some terrible justices in the history of the Court, but they are supposed to approach the law with a degree of respect and reverence. The MAGA Six majority has stopped doing that, choosing to blatantly ignore the law when it doesn’t suit their end goals—which miraculously coincides with nearly every time that Donald Trump simply ignores the law altogether and dares somebody to stop him. The Supreme Court is writing decisions solely based on political goals, and not interpreting the law as they should.
The repeated use of “emergency orders” and the “shadow docket” that, except for two instances, have always come down in favor of the President is a real tell that they have stopped trying to interpret the law. As I was writing this, they issued two more decisions that fly in the face of the law and of precedent. The first is the decision allowing Trump to fire Federal Trade Commissioners without cause, as an “emergency order” without ruling on the merits of the case. Why? Because on the merits, they’re wrong. The law, written in 1914, states that termination can only occur for “inefficiency, neglect of duty, or malfeasance in office.” None of those criteria have been met, and in fact, have not been offered by the administration. The argument that the Solicitor General has made on behalf of Donald Trump is simply that he can fire anyone from any agency whenever he chooses because he rules over the “unitary executive,” that awful chestnut left by the George W. Bush administration.
This is the third or fourth time (I’ve lost count) that there’s been a case this year where Trump fired or dismantled Congressionally-authorized agencies and the Supreme Court has granted emergency relief to allow the terminations to stand while the case is still being argued at the lower levels. They are making radical decisions to alter the law without proper procedures or even hearing evidence. If you let the terminations stand while deciding the case, even with no evidence of justification, then you are both signaling you will eventually rule on the merits in favor of the administration and declaring that evidence doesn’t matter. The merits hearings will be pro forma, since the termination has already occurred.
The second case allows ICE to resume its patrols where they can detain anyone solely on their ethnicity. If you have “appear Hispanic,” are in a location considered a “gathering place for migrant workers” and/or work in a low-wage job, they can arrest you and hold you. That isn’t evidence, it’s stereotyping. We know from court filings and news reports that ICE has repeatedly held American citizens and even deported some of them with no due process at all, a gross violation of multiple amendments to the Constitution. Children receiving cancer treatment, families of non-citizens who are citizens themselves, veterans of our military—it makes no difference to the Reichsfuhrer Stephen Miller, who is ordering ICE around despite being a mere deputy chief of staff. Miller hates any skin darker than whatever grey-white blend his pasty skin is, and wants anyone who isn’t out of this country.
Even for those detainees that ICE has eventually released, they hold them in conditions that violate basic rights, they deny access to counsel, they refuse to tell attorneys where their clients are being held, and they subject them to abuse. ICE is a violent paramilitary secret police that is solely out to terrorize the American people, and the Supreme Court has just signed off on this terror. Again, this is in direct opposition to the 14th Amendment of the Constitution. The color of a person’s skin is not just cause for unequal treatment under the law. Five white justices and the only black KKK member, Clayton Bigsby….excuse me, Clarence Thomas (Harlan Crow’s personal Uncle Tom) have decided that if you’re Hispanic, you don’t get equal rights.
If the MAGA Six on the Court are not granting emergency relief to the administration, they simply send a case back to the district court, tell the lower courts they’re wrong, but refuse to provide an explanation. The reason for that is clear—their error is ruling against Donald Trump. If the MAGA Six cannot explain by pointing at legal precedent, legislation, or the Constitution when declaring lower court decisions are wrong, then they are not acting under the law. The Supreme Court may have the power that the law has given them, but if they cannot provide a law that supports their decisions, then they are acting illegally, and that is frightening. It makes them an equally clear and present danger to the Constitution as the MAGA Republicans and Donald Trump. Look at this graphic from June of this year. It only covers two months of rulings, but observe the difference:
This is not normal. The district courts, contrary to their portrayal by right-wing media, are divided evenly for the most part, because Reagan and both Georges Bush were able to appoint many judges. The appeals courts are tilted conservative now, thanks to Bush Jr and Trump, and yet despite all of that, both levels repeatedly found the administration to be guilty of illegality or abuses of power. The Supreme Court, the same MAGA Six justices, have been rubber-stamping Trump’s decisions without even bothering to hear evidence or decide the merits. They’re saying, “he gets to do what he wants, and maybe we’ll call it illegal in a year, but it won’t matter by then.” They politically agree with Trump and want him to succeed in his decision to rule as a king.
So while methods to legally stop the President and his Cabinet from acting outside of the boundaries of the law exist, the current situation demonstrates the shortcomings of them. The federal court system, and Congress, both have powers designed to check these abuses, but are completely abdicating their responsibilities. They are clapping like sealions because Trump is achieving the end goals the majority of both Congress and the Supreme Court want realized. It doesn’t matter, to them, what rights are being lost. They think they’ll have power and so it won’t matter if our rights are stripped.
Let me tell you something. It matters.
The trouble about fighting for human freedom is that you have to spend much of your life defending sons-of-bitches; for oppressive laws are always aimed at them originally, and oppression must be stopped in the beginning if it is to be stopped at all.
—H.L. Mencken
Today, the attacks are against Hispanics and anyone who is transgender. They consider Hispanics to be untermenschen, like the good Nazis they are, and they believe transgender people to be the same. It bears remembering that the very first burning of books in Nazi Germany was not that of the Jews, or the Socialists, but instead all of the research and writings done at the world’s first clinic for gender dysphoria, Institut für Sexualwissenschaft. The institute was founded by Dr. Magnus Hirschfeld, a Jewish physician who posited that gender was a spectrum, not a binary, and separate from sex. The reason that transgender people are being treated as some new phenomenon caused by “woke” is because the Nazis destroyed the first attempt to properly diagnose and treat gender dysphoria. They set back knowledge for decades with their actions. Transgender people are considered a threat, different, a step too far for conservatives, and so they want to render them less than human.
From refusing to acknowledge their stated gender in legal documentation to openly declaring them to be sexual predators to threatening to take away their Second Amendment rights (so much for never abridging those rights, National Rifle Association!), transgender people are being scapegoated by the goverment. And while they are not, in Mencken’s phrasing, sons-of-bitches, their defense is certainly not popular or well-supported. They are an easy target because much of society finds them detestable. That is how tyranny begins. The out group or groups are persecuted first. “Illegal immigration” is nothing more than a concept we created when America began to grow too self-sufficient in melanin. It’s especially rich given that we stole this land from its native population, but such is the power of propaganda.
You may not like these people. You may not like their politics. You may think they have mental disorders or sneak in to “steal our jobs.” They still must be given full and equal protection under the law. If we allow a government to take their rights, we have created precedent for ours to follow. There is not a single authoritarian regime that stops after a certain aggregation of power. Their very existence depends on the continued aggregation of power and the denial of rights to others. There is no sacrifice that will appease them. It is incumbent on us to all be each other’s keeper, to join together against a government that seeks to reinstate the monarchy that we threw off nearly 250 years ago. If we want that anniversary date to hold meaning, if we want an America we can be proud of and one that stands up, then each and every human being deserves our support and defnse of their rights. Nobody is free unless we are all free.