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Open Thread: Trump v. Anderson before SCOTUS

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[NB: check the byline, thanks. /~Rayne]

Because everyone will likely be restless and itchy about today’s hearing, I’m putting up an open thread.

Feel free to discuss Trump v. Anderson here but bring all your off-topic discussion to this thread, stay on topic in other threads.

Wikipedia page for Trump v. Anderson here, in case you need a primer:

Trump v. Anderson (No. 23-719, filed January 3, 2024)

In a nutshell, Colorado’s state supreme court found Donald J. Trump disqualified from the state’s primary ballot under Section 3 of the 14th Amendment which bars candidates who have participated in insurrection or rebellion against the Constitution in spite of swearing an oath to uphold and defend the Constitution.

Trump appealed the ruling; the U.S. Supreme Court will hear oral arguments today.

The hearing is scheduled to begin at 10:00 a.m. ET.

You can listen to the arguments at https://www.supremecourt.gov/oral_arguments/live.aspx – they are expected to run over the scheduled 80 minutes.

Long-time community member harpie has shared quite a few more resources pertinent to today’s arguments below in comments (thanks, harpie!).

~ ~ ~

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The Colfax Massacre And US v. Cruikshank

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The Colfax Massacre took place on Easter Sunday, April 13, 1873, in Colfax Louisiana. The 1872 Louisiana election was hotly contested by the Democrats who favored a return to antebellum conditions as fully as possible, and Republicans who worked to bring Freedmen to full citizenship. Wikipedia has a long entry on the Colfax Massacre, including a history of the build-up to that bloody Sunday.

The Louisiana militia, many of whom were Black, a mob of former Confederates and KKK members showed up with cannon and guns, and attacked. The militia surrendered or escaped. The mob caught and killed them, including those who surrendered, between 62 and 153 men; the exact number is unknown. There was only one survivor.

Eventually a few of the attackers were tried and convicted in federal court in New Orleans under the Enforcement Act of 1870. They appealed to the Supreme Court, which overturned the verdict in US v. Cruikshank. On appeal, the Circuit Court was divided on the question of whether the indictments charged a crime, or as we would say today, the constitutionality of the Enforcement Act.

The opinion is by Morrison Waite, the chief. The syllabus describes the indictment. It was based on §6 of the Enforcement Act of 1870:

‘That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provisions of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony….

The Court says that this provision applies only to rights that arise under the Constitution or laws of the United States. It cites the Slaughterhouse Cases for the proposition that people are citizens of the US and of a state, and that one’s rights as a citizen of the US are different from ones rights as a citizen of each of the several states.

Next the Court gives us a short version of the theory we’ve seen before, that people form governments to promote their general welfare and protect their rights. The role of every government is the protection of the inhabitants, but they may only do so to the extent of their powers.

This, I think, is the key argument, given without explanation:

The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not.

Waite knows this isn’t exactly true. The same act may offend the laws of both the state and the US. He gives examples: counterfeit coins, and assaults on a federal officer. Each may be an offense against both the laws of the state and the US.

He notes that the US government only has the powers in the Constitution. He sats his job is to find out whether the rights the defendants allegedly interfered with are granted by the Constitution or the laws of the US.

Counts 1 and 9 relate to the right of peaceable assembly. These are not granted by the Constitution, says Morrison Waite. They are the natural rights of any free government.

The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains … subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The 1st Amendment is couched in the negative, prohibiting US government from interfering with the right to assemble, while leaving the states free to regulate it as they saw fit. The right to assemble to petition Congress or the federal government is a federal right, and if the indictment alleged that that was the purpose of the assembly, this would be a crime. But it didn’t.

Counts 2 and 10 concern the right to keep and bear arms. This also is not given by the Constitution. The 2nd Amendment merely “… is one of the amendments that has no other effect than to restrict the powers of the national government…” leaving citizens to seek the protection of the states under their police powers.

Counts 3 and 11 assert the right not to be deprived of life or liberty without due process. The Court is offended by this charge, which it says is nothing more than a standard murder charge. The right to life is a natural right, obviously not granted by the Constitution. Waite says that the 14th Amendment doesn’t add to the powers of the US government. It’s merely an additional guarantee of the right every citizen has under state protection.

Counts 4 and 12 claim that the defendants conspired to deprive black citizens of their right to equal treatment with white citizens as respects their various rights. Waite says this is merely one group of citizens killing another. The 14th Amendment doesn’t add to the powers of the US to protect one group of citizens from another.

Counts 6 and 14 allege violation of rights connected with voting. The Court says that suffrage is a right granted by the states. All the 15th Amendment does is to prohibit discriminate in granting the right to vote on account of race. Thus the right to vote is not a right granted by the US.

Counts 7 and 15 concern voting. Waite says that elections were state elections, and so the US isn’t involved.

Counts 5, 12, 8 and 16 all involve direct allegations that the defendants acted together to deprive the dead of their rights as citizens on account of their race. Waite asserts that the pleading of these counts is defective because it doesn’t specify the facts sufficiently. It merely recites the statutory language. In order to be adequate, it must describe the facts in sufficient detail for the defendants to protect themselves, and to insure that they are not tried twice for the same offense.

Discussion

1. The attitude of the Court is summed up by this quote: “The charge as made is really of nothing more than a conspiracy to commit a breach of the peace within a State.” The New York Times noted this in its headline. That’s bullshit. This was a race riot, the exact thing Congress was aiming at.

2. Like The Slaughterhouse Cases, this case takes up issues unnecessary for the decision, as the dissent points out, and as Waite does with several counts. The case can and should be decided on the limited ground that the indictment is insufficient. There was no need to reach constitutional questions.

3. The Court doesn’t look at whether the Reconstruction Amendments changed the powers of the states and the US as regards race, why they don’t give the federal government the power to protect at least Black citizens, as an additional safeguard of their rights as citizens. This would be an example of the powers of the two governments do deal with the same events on different grounds.

4. The Court thinks the important thing about this case is the line between the powers of the states and the US. It protects the power of the states to control the lives of their citizens, regardless of the consequences for Black citizens.

There is no indication that Louisiana took any interest in the murder of 150 Black people. As best I can tell, the locals didn’t even investigate the murders. Everyone knows this, including the members of the Supreme Court. Waite offers some worthless words about the responsibility of the states, but he doesn’t care whether they do or not.

This case sets the Court on the road to allowing both both federal and state governments to ignore mob violence against Black citizens, and outright denial of their rights, the result the Reconstruction Amendments were intended to prevent.

The Slaughterhouse Cases

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Index to posts in this series

Chapter 4 of The Second Founding by Eric Foner lays out the campaign of the Supreme Court to strangle (my word) the Reconstruction Amendments. The last chapter is the requisite effort to show how things can get better.

I think there’s more to be gained by reading the main decisions on the Reconstruction Amendments, so I’m going to depart from Foner’s text at this point. I think we will see that SCOTUS today uses the same tactics to strike down laws and ignore precedent. I’ll start with The Slaughterhouse Cases, 83 US 36 (1873). The syllabus takes up the first 20 pages; the opinion begins at 57.

Facts. The butchers of New Orleans were scattered across the city. They brought animals for slaughter from the river and train stations to their shops, and threw the offal and scraps into the Mississippi. This was a public nuisance and a health issue.

Louisiana passed a law creating a special corporation charged with building landings and railroad connections to a new set of slaughterhouses in a single location outside the city. The law gave the corporation an exclusive license, required the corporation to lease space to all comers (including Black butchers) for slaughtering operations, set price limits, and required space for a medical officer to check animals and meat for disease, among other things.

Holding. The Supreme Court upheld the statute in a 5-4 decision. The principle ground of the majority opinion is that the law was within the police power of the State. The police power is a legal term describing the power of the state to secure the “the health, good order, morals, peace, and safety of society”, as the dissent puts it. P. 87.

This case could have been decided solely on traditional police power lines, even if the Louisiana law was too broad. But the Court felt it should write about the Reconstruction Amendments, which were a significant part of appellate argument. So the Court ignored the principle of Constitutional Avoidance, the idea that a case should not be decided on constitutional grounds if some other ground is dispositive.

The discussion of the Reconstruction Amendments begins on P. 66. Samuel J. Miller, a Lincoln appointee, gives a brief history of the Civil War and the Reconstruction Amendments. He writes that the purpose of these amendments was to secure

… the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. P. 71.

The Court goes on to say that the amendments apply to everyone, but to construe them fairly the Court has to consider their “pervading spirit” and the evils to be remedied, and their purpose. This is what Justice Ketanji Brown Jackson is talking about in Allen v. Milligan, the Voting Rights Act case from this last term, and in SFFA v. Harvard, the affirmative action case.

Miller then discusses the 13th Amendment at length. Then he turns to the 14th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Miller explains that this clause was intended to overrule Dred Scott. Then he says:

… the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.

….

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. P. 73-4.

The second sentence of §1 says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This means, Miller says, that the US can make laws affecting the privileges or immunities a person holds as a citizen of the US, and can protect those rights from state interference. But the 14th Amendment doesn’t give the Federal government the power to control or create the rights granted a state gives to its citizens.

There are very few privileges or immunities of citizens of the US. They are in the text of the Constitution, or the Bill of Rights if the Supreme Courts finds they are. They include protection against ex post facto laws and bills of attainder, and protection on the high seas, and not much else.

What are the privileges or immunities of citizens of states? Miller says they encompass “… nearly every civil right for the establishment and protection of which organized government is instituted.” P. 76. The sole point of the 14th Amendment is to guarantee that all such rights granted to citizens of the state are granted to all citizens within its jurisdiction equally.

Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. P. 77.

Miller claims that other construction would enable the federal government to control the exercise of the power of the state to make laws they think best, and set the Supreme Court up as the ultimate arbiter of the powers of states to pass laws. That would change the entire theory of government in this country. It that was the goal, the drafters of the 14th Amendment would have to use “… language which expresses such a purpose too clearly to admit of doubt.” P. 78.

Miller says that the states can enact any law they like, so long as the laws don’t discriminate against Black people as a class. P. 81. He doubts that the 14th Amendment could ever apply to anyone besides Black people.

The opinion concludes with a reminder that the Founders were worried about federal encroachment on state power, and claims that the Supreme Court “…has always held with a steady and an even hand the balance between State and Federal power….”. P. 82.

Discussion

1. This case shows the disaster that can arise when SCOTUS gives advisory opinions. There is a huge middle ground between Miller’s cramped reading of the 14th Amendment and the Appellant’s broad view. The opinion establishes a powerful limiting principle: that the purpose of the Reconstruction Amendments is to secure and protect the Freedmen and Black people. It would meant that the federal government can intervene to prohibit actual discrimination against Black people, and generally everybody, but it can’t intervene just because it doesn’t agree with the state’s decisions about privileges and immunities equally applicable to all citizens. That was a perfectly likely outcome in a proper case, a case where a state, for example, barred Black people from testifying against White people.

2. The Appellants were trying to stop state regulation of their businesses. They claim they have an
unfettered right to do business wherever and however they see fit, and that the 14th Amendment protects their exercise of that right. They didn’t win this case, but the idea persisted, and a form of it eventually was adopted by the Supreme Court, as seen in cases like Lochner v. New York.

3. There’s a tendency today to say that SCOTUS, a once-respected institution, has suddenly collapsed in a mixture of partisanship and hubris. Maybe we should ask when that wasn’t the case.

The Fourteenth Amendment

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Index to posts in this series

Eric Foner opens the chapter on the 14th Amendment in The Second Foundation by providing context for its adoption. The 39th Session of Congress began in December 1865. President Andrew Johnson had set up governments in those states under rules that enabled them to elect a large number of former high-ranking Confederate political and military leaders. The rebel states had enacted the Black Codes, and allowed horrifying attacks on Freedmen to go unpunished. The Republicans and the people who elected them were outraged, and refused to seat their senators and representatives. That gave the Republicans a 2/3 majority, enough to override vetos.

The Republicans were divided into two groups, the Radicals and the moderates. The Radicals wanted full political and civil rights for the Freedmen and for all men. The moderates initially thought they could work with Johnson, but that failed because of Johnson’s deep racism which he put into practice throughout his Presidency. The moderates were worried about giving suffrage to the freedmen, in part because voters in the North were opposed; in part because they thought the freedmen were not prepared to participate in politics; and perhaps because at least some of them beld racist views about the mental capacity of the Freedmen. They were also concerned about granting rights that suggested social equality.

The two groups were united in trying to increase their presence in the slave states, and in insuring full political rights short of suffrage. They all agreed further amendments to the Constitution were needed. This fragile unity was the basis for the adoption of the 14th Amendment.

Congress established the Joint Committee on Reconstruction to consider some 70 amendments. The 15 members of the Committee and the entire Congress debated the amendments for several months. These debates not only covered the precise wording of the amendment but also the nature of freedom, what it means to be a citizen of the United States, which powers should be exercised by the federal snd state governments, and the nature of proper governance.

The first bill that emerged from the debates was an effort to deal with the electoral problem created by the 13th Amendment. The end of slavery meant that the ⅗ compromise in the Constitution was no longer effective, so that all Black people in the South were counted towards representatives and electoral college votes. That gave the White Supremacists too much power. The obvious solution was to require the states to enfranchise Black voters. An alternative solution determined representation by the number of voters. If the slave states disenfranchised Black voters they would lose the edge the ⅗ clause gave them, reducing the number of their Representatives by as much as ⅓.

The compromise was to count inhabitants but exclude people disqualified from voting by race or color. This proposal got the necessary ⅔ vote in the House, but stalled in the Senate in large part because of fear that the slave states would disqualify Black voters with non-racial rules, like literacy tests and property ownership requirements.

Gradually things slowed to a halt as the Republicans found it difficult to bridge the gaps between the moderates and the Radicals. Congress began tp focus on the Civil Rights Act of 1866.

This law established birthright citizenship and provided that all citizens of the US would enjoy basic economic rights and natural rights to the same extent as white citizens. That would mean an end to the Black Codes. The law was not intended to deal with political rights, which include suffrage, the right to sue and be sued, to serve on juries, and to attend public schools, among others. It was also unclear whether the law applied to private conspiracies to deprive Black citizens of their rights by violence or intimidation, or by conspiring to reduce employment opportunities or otherwise. This law allowed private citizens to enforce it in federal court. Andrew Johnson vetoed the bill, but Congress overrode that veto.

It was the Supreme Court that ultimately protected the racists in the Civil Rights Cases (1883).

During and after passage of the Civil Rights law, debate continued over amendments. The breakthrough was the decision to compile the proposed amendments into a single amendment containing those most likely to garner enough support to pass. There was a lot of wrangling over language but eventually the text was ratified. The text of the amendment is set out below.

Foner discusses the contents of the 14th Amendment at length, pointing out what they did and didn’t do, and focusing on the intent of the framers. It was enacted in June 1866 and sent to the states for ratification. Tennessee was the only rebel state to ratify the amendment. The others, under governments appointed by Johnson and encouraged by him, refused. The Radical Republicans were infuriated, and so were many moderate Republicans. Foner explains the stated reasons:

If Radical Republicans saw the amendment as disappointingly weak, white southerners deemed it an unwarranted, indeed outrageous, interference in their states’ internal affairs. Southern objections focused both on practical political matters—loss of representation because of denying blacks the right to vote, the bar to officeholding by “the best portion of our citizens”—and on broader fears for the future of white supremacy. Opponents charged that Congress might well feel authorized to use the amendment to give “Negroes political and social equality with the whites.” To accept such a fate by agreeing to ratify, a southern newspaper wrote, would be a form of “self-degradation.”P. 88-9, fn omitted.

In the election of 1866 Johnson campaigned for opponents of the 14th Amendment. This breach of norms, coupled with the intransigence of the rebel states and their appalling treatment of the Freedmen changed the minds of the moderate Republicans. In the new session Congress threw out Johnson’s plan for reconstruction and enacted their own form of reconstruction, now called Radical Reconstruction.

The Reconstruction Act of 1867 placed the ex-Confederate states, other than Tennessee, under temporary military rule. It required that new governments be elected by black and white male voters (with the exception of Confederate leaders barred from officeholding by the Fourteenth Amendment). The southern states were obligated to adopt new constitutions incorporating the right to vote regardless of race. And they were required to ratify the Fourteenth Amendment. P 90, fn omitted.

The new governments rapidly complied, and the Amendment was ratified in July 1868.

Discussion

1. In the simplified histories we get in school, it all seems so neat: after the Union crushed the slaver rebellion, Congress passed the Reconstruction Amendments which gave the Freedmen the same rights as other citizens. It’s never that simple. This post is a tiny slice of that history, but it’s way more than I learned in school.

2. The debates over the 14th Amendment included complaints about federal interference in the internal affairs of states, an issue I raised here. It’s obvious that what they meant was the right of states to oppress people state legislators despised, as with Black Codes, exclusion from legal rights, exclusion from suffrage, and worse.

This kind of federalism, dual sovereignty, continues today. Florida passes laws blocking the teaching of the history of Black people and the existence of LGBT people. States deny women medical treatment and medicines they need. Alabama claims the right to gerrymander congressional districts to reduce the voices of Black voters.

Are there any non-oppressive hallowed state principles that today’s federal government could conceivably trample?

====================
Fourteenth Amendment

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction 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 citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Not the Right Kind of Monster, Says the Racist [UPDATE-2]

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[NB: Check the byline, thanks! Updates at bottom of post. / ~Rayne]

It was just a matter of time before Republicans honed their eye teeth and sharpened their claws, coalescing around a single line of attack after Joe Biden announced he’d selected Kamala Harris as his running mate.

Harris is a dirty radical leftist! Harris is an Obama centrist! they snarled across social media, grasping at any point to prove to Democratic Party voters that Harris isn’t their kind of candidate.

Harris will defund the police! Harris is a cop! they growled in more posts and tweets from the right and their horseshoe left proxies, whipping up vortices of volatility in messaging about Harris’s identity.

But Newsweek solved that yesterday by publishing this piece of racist bullshit to which I won’t link:

Not only is this racist ogre’s argument wrong, the contributor was a former candidate who lost the Republican primary for California Attorney General in 2010 when Kamala Harris won.

Newsweek failed to point out this conflict of interest upfront; in for a penny, in for a pound, though, as Newsweek had already failed to spike the piece.

Early this morning Newsweek’s editor offers an explanation and it is just as bad as Eastman’s:

Newsweek’s editors claim it wasn’t birtherism (racism focusing on a candidate’s birth place), but a 14th Amendment issue (racism focusing on a candidate’s parents’ birth place).

It’s still racism. There’s no excuse for running Eastman’s racist op-ed. Period.

It’s bad when right-leaning Axios says the op-ed is baseless and hypocritical since Eastman didn’t have any problem with Ted Cruz’s candidacy in 2016.

Justin Fox at Bloomberg Opinion definitively takes apart Eastman’s monstrous argument in case there’s any doubt, replete with excerpts about the drafting of the 14th Amendment. This is what Newsweek should have sought before approving Eastman’s racist crap.

~ ~ ~

Eastman likely picked up his cue from USAToday’s fact-checking article addressing an earlier Facebook entry which cast doubt about Harris’s eligibility (not linking to the entry):

USAToday said they reached out to this Facebook poster. They never mention whether they had any luck making contact.

I doubt they could.

The poster’s last name, Sciuridae, means squirrel in Latin; the last name doesn’t match the username in the Facebook URL for the post, aseckora. The post looks — well, squirrelly.

The post’s timing doesn’t make sense — it’s dated August 2 when Biden didn’t announce his running mate until Tuesday August 11.

While USAToday did a thorough job shooting down the Facebook post’s false claims, it doesn’t look good that it didn’t resolve the source of the claims.

Whatever triggered Newsweek’s unacceptable choices isn’t rational. A once-respected news organization has now become cursed by its terminal adherence to bothsides-ism, giving a platform to racism.

~ ~ ~

In the manga work, “Death Note,” by Tsugumi Ohba and Takeshi Obata, the character L Lawliet describes the targets of his detective work:

“… There are many types of monsters that scare me: Monsters who cause trouble without showing themselves, monsters who abduct children, monsters who devour dreams, monsters who suck blood… and then, monsters who tell nothing but lies. Lying monsters are a real nuisance: They are much more cunning than others. They pose as humans even though they have no understanding of the human heart; they eat even though they’ve never experienced hunger; they study even though they have no interest in academics; they seek friendship even though they do not know how to love. …”

While their adored tangerine-tinted president abducts children from the parents and cages them, sucks resources from taxpayers’ government services, lies about the spread of pandemic and the reasons why Americans are dying, the right-wing will argue again and again that Harris is some kind of monster. These arguments will be propelled even further by their trollish minions to flood the zone.

They’ll ignore the logical inconsistency of their claim Harris is not eligible as an immigrants’ child though their fearless and feckless leader is an immigrant’s child, too, and the grandson of a then-Canadian brothel owner to boot.

We can see the challenge isn’t immigrant parentage. We can see their problem.

The real problem for the right-wing isn’t that Harris is some kind of dread bugaboo or a feared bugbear.

It’s that Harris isn’t one of their kind.

She’ll never be qualified to be a white supremacist monster.

.
UPDATE-1 — 6:45 P.M. ET —

The monster in the White House just referred to Eastman’s piece-of-shit racist op-ed.

This is why this argument must be repudiated strongly. Average Americans have taken this man’s word on face value too often — like the man who poisoned himself with HCQ or the people who sickened themselves drinking disinfectant after Trump promoted both as means to treat COVID-19.

These same people will accept on faith this racist’s racist lawyer’s bad opinion because he said it from the presidential podium.

.
UPDATE-2 — 8:00 P.M. ET —

This observation is key:

It’s on Newsweek for platforming Eastman’s racist bullshit, validating it as equal to any counter argument.

It’s on other entities like USAToday which fact checked another birther’s claims but did not call it out forcefully as racism. The words race, racist, racism never appear in their article.

As I’ve said before: Get comfortable with calling out racism. I’m talking to you white people. Recognize, call it out, shame it.

The reason why Trump had any chance of winning in 2016 and again in 2020 is racism. Until you, white people, make it socially, morally, ethically unacceptable to be racist, Trump and his kind of monster will continue to acquire and hold power.

It’s not enough to just nod your head. Silence is approval. Silence is complicity. You must be anti-racist if you want the monsters dead.

Newsweek was overtly racist by publishing Eastman’s racist screed.

USAToday piece is what happens when white people just nod their heads and don’t openly acknowledge racism at work.

Which media outlets recognized the next generation birtherism as racism?

Ask Uncle Ed

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Dear Uncle Ed,

I feel very, very badly for the people who are very scared for their way of life. From what I’m understanding, [Trump is] only really wanting illegal immigrants that have committed crimes to be deported, which I agree with. I feel bad for the lesbian and gay and transsexual community that fear for their way of life. From what I understand, he says he’s not going to mess with that.

Somebody called me a racist because I did vote for Trump. Hold on, you don’t know me. Doesn’t that make you a racist by calling me a racist when you don’t know me? I’m looking for a brighter future for me and my children, and honestly I felt l like our country was kind of at risk if we did elect Hillary.**

Signed, K.H. in AL

Dear K.H.

Uncle Ed is glad to see you acknowledge that lots of people are likely to be harmed by the election of Trump. As to immigrants, you are right to be careful in stating Trump’s position, because he has several. As to his position on the LGBT community, again, you may be quite right. Who knows?

But you seem to think the only issue is what Trump thinks. That’s just not true. Trump was elected as a Republican, and now the federal government is controlled by Republicans. As a group, they have repeatedly promised to get rid of immigrants, as did Trump mostly, and have relentlessly opposed decent treatment of immigrants who live here and their children born here or brought here. They support laws and rules treating the LGBT community as second class citizens.

You didn’t mention the risks facing African-Americans, who are already mistreated by the police, and treated unequally in education, safety and hiring. Trump calls himself the “law and order” candidate, which is Republican-speak for even more aggressive policing and mistreatment of Black communities.

You are offended that someone called you a racist. Uncle Ed is glad you don’t want to be thought of as a racist. But, here’s the thing. Your vote empowered known racists like Steven Bannon, Trump’s campaign manager and now a policy adviser in the White House. The Republican party will do its best to hurt immigrants, the LGBT community, and people whose religion or lack of religion they don’t approve, not to mention Blacks and Latinos.

Uncle Ed doesn’t know what’s in your heart. Uncle Ed doesn’t care. Uncle Ed cares about how you act. If you vote for a racist, if your vote emposers racists, then there is no functional difference between you and the most rabid KKK member in terms of the political outcomes for the outgroups. You are operationally a racist.

The most that can be said is that you are willing to accept racism if it makes your life better. That’s how you defend your vote. You claim just you want a brighter future for yourself and your children. As you put it: “…our country was kind of at risk if we did elect Hillary.” Again, what makes you different from self-acknowledged racists?

What about all the other minorities who will be harmed directly by installing racists in the White House and racism in Congress? You are willing to sacrifice all of them and their children. You are willing to deny them their claims to equal dignity and equal rights in whole or in part.

Equal dignity and equal rights are a crucial part of what it means to be an American. The Declaration of Independence says that all of us are entitled to equal dignity. The 14th Amendment to the Constitution says that all of us have equal rights under law. Those ideas, however imperfectly we have lived up to it, are the heart of our democracy.

Now, thanks in part to you, we are governed by a party that flatly doesn’t believe in that kind of equality. They are perfectly willing to ignore some or all the rights and interests of vast numbers of Americans. the LGBT community, women, Muslims, and who knows, maybe even white male coastal elites like Uncle Ed. They don’t think we are real Americans. They expect those despised groups to follow all their laws, to respect their politicians, and to pay taxes, but they do not intend to treat us equally in rights or dignity.

You violated a core American principle. It was thoughtless of you to act this way. Uncle Ed wishes you hadn’t. Calling you a racist seems like a mild reproof when you consider the likely consequences for millions of your fellow citizens. Uncle Ed hopes you continue to think about people other than yourself in the future, and refuse to vote for any politician whose first principle is to deny any of us our rights as Americans to equal dignity, and to be treated equally by our government.

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* This is perhaps the first of an occasional series. I’ve been trying to figure out how to respond directly to the stated reasons people give to explain their vote for Trump. It’s mostly a way for me to justify my own position. I’ve been debating whether to post this, but today I saw the movie HIdden Figures, which helped me make up my mind.

Lefties, liberals, coastal elites, all of us are constantly told we need to understand and sympathize with the concerns of Trump voters. Trump voters are never told they must work to understand and sympathize with people who voted for the Democrat. In fact, Trump voters are told that liberals are their enemies, that we hate them and want to hurt them. Of course, they don’t read my posts, and I know I won’t ever persuade anyone that they made a terrible mistake. But I do wish they were forced to think about why those they believe are The Other might be so angry.

** This is quoted from this New York Times article.

The Unstated Constitutional Problems With Obama “Using the 14th”

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As about everyone knows by now, the great debate is still ongoing on the issue of the debt ceiling. The frustration of those on the left with the intransigence of the Republican Tea Party, coupled with the neutered Democratic Congress, has led many to call for President Obama to immediately “invoke the 14th”. The common rallying cry is that legal scholars (usually Jack Balkin is cited), Paul Krugman and various members of Congress have said it is the way to go. But neither Krugman nor the criers in Congress are lawyers, or to the extent they are have no Constitutional background. And Balkin’s discussion is relentlessly misrepresented as to what he really has said. “Using the 14th” is a bad meme and here is why.

The Founders, in creating and nurturing our system of governance by and through the Constitution provided separate and distinct branches of government, the Legislative, Executive and Judicial and, further, provided for intentional, established and delineated checks and balances so that power was balanced and not able to be usurped by any one branch tyrannically against the interest of the citizenry. It is summarized by James Madison in Federalist 51 thusly:

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.
….
We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

which must be read in conjunction with Madison in Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

This is the essence of the separation of powers and checks and balances thereon that is the very Read more →