Radical Republicans, SCOTUS, and justice


For Constitution Day, which is September 17, I want to discuss the Radical Republicans. No, not Gym Jordan, Elise Stefanik, and many in the current GOP, who are indeed radical but not for justice.

On August 15, Professor Stephen E. Gottlieb, professor emeritus at the  Albany Law School, presented a talk,  Should We Abolish the Supreme Court? He referenced his book Unfit for Democracy. and The Case Against the Supreme Court by Erwin Chemerinsky.

Professor Gottlieb noted that those in his party who put Abraham Lincoln’s feet to the fire were labeled Radical Republicans. Gottlieb remembers this designation was offered as pejorative when he attended public school. My recollection of my school days is the same.

“The American Battlefield Trust preserves America’s hallowed battlegrounds and educates the public about what happened there and why it matters.” The organization offered up this article.

“The Radical Republicans were a group of politicians who formed a faction within the Republican party that lasted from the Civil War into the era of Reconstruction. They were led by Thaddeus Stevens in the House of Representatives and Charles Sumner in the Senate. The Radicals were known for their opposition to slavery, their efforts to ensure emancipation and civil rights for Blacks and their strong opinions on post-war Reconstruction.”

After engaging in a bloody Civil War, incrementalism was not on the minds of many Republicans, whose party was only about a decade old.  “While President Lincoln wanted to fight the war largely for the preservation of the Union, the Radical Republicans believed the primary reason for fighting was for the abolition of slavery.”

The Civil War amendments

It would have been impossible for the Thirteenth, Fourteenth, and Fifteenth Amendments to have passed without the Radical Republicans. “The Civil Rights Act of 1866 was an effort by the Radical Republicans to reinforce the Thirteenth Amendment that abolished slavery and had been passed the year prior. With this Civil Rights Act, the radicals were also taking steps towards establishing citizenship for Blacks by defending their civil rights and granting them equal protection under the law. In 1867, they were successful in passing the Fourteenth Amendment, which granted citizenship to Blacks…

“New Reconstruction Acts were passed and called for each rebel state to draft a new constitution as well as ratify the new Fourteenth Amendment… Congress, meaning primarily Radical Republicans, would then have to approve these new state constitutions before readmitting the rebel state back into the Union…  Furthermore, they deployed military troops to the South to maintain order and to protect the rights of Black citizens. In 1870, the Fifteenth Amendment was passed, granting Blacks the right to vote.”

The legislation inhibiting Andrew Johnson’s ability to remove his own cabinet members, which led to the impeachment of the President in 1868, was an overreach. While the Radical Republicans dominated the late 1860s, their power dwindled in the early 1870s.  Corruption seeped into the party, including fights over civil service reform. Beyond that, figures like Sumner “believed that the era of Reconstruction was successfully completed and no longer needed Radical supervision.”

Then the Tilden/Hayes election of 1876 killed Reconstruction, and Jim Crow ruled, not just in the South.

A century later

The justice that was supposed to have been codified in the 1860s and 1870s had been thwarted, in large part because of the Supreme Court’s decisions such as the “separate but equal” Plessy v. Ferguson (1896).

As a result, civil rights for Black people had to be relitigated, mainly in the 1950s and 1960s. It was addressed in legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

But it was also manifest in decisions by the Warren Court (1953-1969), not only overtly about race (Brown v. Board of Education in 1954, Loving v. Virginia), but cases of justice regardless of race. Professor Gottlieb suggested that this period was the highlight of the Supreme Court’s history.

“In 1961, Mapp v. Ohio strengthened the Fourth Amendment’s protections by banning prosecutors from using evidence seized in illegal searches in trials. In 1963, Gideon v. Wainwright held that the Sixth Amendment required that all indigent criminal defendants be assigned a free, publicly-funded defense attorney. Finally, the 1966 case of Miranda v. Arizona required that all persons being interrogated while in police custody be clearly informed of their rights—such as the right to an attorney—and acknowledge their understanding of those rights—the so-called ‘Miranda warning.'”

More recently

This reminded me of the SCOTUS decision by the Roberts Court in June 2013, which “struck down a section of the Voting Rights Act, weakening a tool the federal government has used for nearly five decades to block discriminatory voting laws.” It was as though the justices decided that “we have overcome.”

Many, including me, were then SHOCKED when SCOTUS provided a significant victory for voting rights in 2023. “It handed down a 5-4 decision in Allen v. Milligan that preserves longstanding safeguards against racism in US elections, strikes down a gerrymandered congressional map in Alabama, and all but assures that Democrats will gain at least one congressional seat in the next election from that state.”

The arc of the moral universe is undoubtedly long. Whether it bends towards justice, I’m less confident.

A more perfect union

The Second Amendment — probably one of the most sloppily written rights ever endowed to a people.

a more perfect union
From here: https://www.alumni.hbs.edu/stories/Pages/story-impact.aspx?num=7033

I came across an article modifying absolute adjectives. Think “more unique.”

“The general rule is that absolute adjectives can’t be modified. And yet … sometimes writers do it.”

“We the People of the United States, in order to form a more perfect Union…” — The Preamble to the United States Constitution.

“To form a ‘more perfect Union’ is different from forming ‘a perfect Union.’ The accurate version implies that the People are attempting to get closer to perfect, not that they have created something perfect. It’s a subtle but important distinction.”

I thought about this as we suffered under the myth of Originalism from the current Supreme Court. If a right wasn’t enshrined by our very perfect founders in 1787 or 1791, it isn’t a “real” right?

You say you’ll change the constitution.

In The Boston Globe, Abdallah Fayyad noted that FDR argued “for what he called a second Bill of Rights — guarantees from the federal government for a base level of economic comfort for every American. Among those rights were health care, employment, housing, social security, freedom from monopolies, and more. Roosevelt did not go so far as to say that these rights required constitutional amendments; they had already become economic truths that the nation ‘accepted as self-evident’ as a result of the New Deal and therefore had to be guaranteed by the government if it sought to truly fulfill the political rights enshrined in the Constitution.”

FDR’s ideal was that we would become freer people. Instead, SCOTUS, in the last decade or so, has gone backward. The “logic” of Alito in overturning Roe is tortured. As I feared, post-Roe may be, in some substantial ways, worse than pre-Roe. At what precise point might the woman’s life be endangered, and will the courts agree with the doctor’s assessment?


Fayyad continued: “Take a look at the Second Amendment — probably one of the most sloppily written rights ever endowed to a people. There are many people, including conservatives, who believe that the Second Amendment is unclear, but too few who speak seriously and earnestly about updating and clarifying it. As a result, the United States has the distinction of having the most heavily armed population in the world.” Kelly, too, noted how weird A2 is.

The Fifth Amendment is very important, even as djt mocked people who would embrace the right not to self-incriminate in the fall of 2016. I think it’s unfortunate that people assume the guilt of a person doing so. Still, I took some pleasure in reading that the case against djt may have become “immeasurably stronger” because he pled the 5th.

Understandably, confidence in SCOTUS has sunk to a historic low. I don’t know how to right the ship in the near term. Packing the court, which gets bounced around, is not going to happen because even people who would agree with the outcome would wince at the process.

Other than wringing our hands…

Ultimately, to create justice, we need to fight for it. Jon Meacham says, “The battle begins with political engagement itself.” Humanities Washington offers a “media project that explores the complexities of our democracy in order to help strengthen it.”

Adam Russell Taylor, president of Sojourners, wrote in his book, A More Perfect Union: A New Vision for Building the Beloved Community: “It is time to choose a path that acknowledges and repents for the ways we have failed to live up to America’s promise. It is time that we boldly pursue a shared vision of a future rooted in our most deeply held religious and civic values.

And “it is time to embark with even greater urgency on the task of building the Beloved Community, which will enable us to achieve a more perfect union and a radically more just nation.”

It won’t be easy. Happy day before Constitution Day.

Indian Citizenship Act centennial: 2024

What it means to be an Indian Nation today

CitizenshipBannerThe status of the Native American or American Indian in the United States is most peculiar. This article reminded me that the centennial of the Indian Citizenship Act is coming up in 2024.

As you may know, Article I, Section 2 reads: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.”

Article I, Section 8: “The Congress shall have Power To… regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Even the Fourteenth Amendment notes: “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.”

Silent Cal

From the article: “The Indian Citizenship Act [was] signed into law on June 2, 1924, by President Calvin Coolidge. As the very title of the legislation states, the act made all Indians in the United States citizens of the United States.”

According to the act, … all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

“The debate [following the 14th Amendment] was so pronounced that the Senate Judiciary Committee pondered the issue. In 1870 it rendered its verdict:

… the 14th amendment to the Constitution has no effect whatever upon the status of the Indian tribes within the limits of the United States…

“Strangely enough in the infamous Dred Scott decision in 1857, the frequently reviled Chief Justice Roger Taney had argued that American Indians could, in fact, become citizens. The caveat was that it had to be under congressional and legal supervision. In 1924, that is exactly what Congress did.”

This leads to some interesting arguments about how “to address what it means to be an Indian Nation today in the 21st century.” Read some more about the implications of the Indian Citizenship Act of 1924.

Building confidence in US elections (2005)

“Measures to encourage and achieve the greatest possible participation in elections”

“I wish that we could just have someone out there say in 2005, Jimmy Carter and James Baker did the Carter-Baker Commission to both tried to expand voting and make it more secure. They had 87 recommendations. Adopt them all. It means you won’t have ballot harvesting, but it means it will be easier to vote.”

I heard someone suggest this on one of those talking-heads shows two months ago. It made sense in building confidence in US elections.

The Commission had “five sturdy pillars.”

“Voter registration that is convenient for voters to complete and even simpler to renew and that produces complete, accurate, and valid list of citizens who are eligible to vote.”

This means not having wholesale purging of voter lists. Voters who move more often – students, renters, e.g. – should not be disenfranchised.

“Voter identification, tied directly to voter registration, that balances election integrity without introducing new barriers to voting, including the casting and counting of ballots.”

Prior to the pandemic, I never had to show my ID when I voted. The last two times, once involving early voting at a central location, and the other in an alternative site, I did. This is not to say it might not be onerous for others.

I’m suggesting something that’s a bit of a bugaboo for some: an option for people to receive an identification card that is FREE and not onerous to obtain. Or, in the alternative, a wider array of verification documents that don’t discourage the franchise.

When requiring, say, a driver’s license/non-driver’s license and the nearest DMV is two bus rides away with long lines, THAT is a barrier to voting. Too often, the ID requirements have been used to, de facto, disenfranchise.

More participation

“Measures to encourage and achieve the greatest possible participation in elections by enabling all eligible voters to have an equal opportunity to vote and have their votes counted.”

Having one drop-off box for ballots per county may seem fair in the abstract. But when one county has a few hundred and another has a few hundred thousand – well, no. People standing in long lines because there are too few polling places in “selected” communities.

I’ve been consistent in giving ex-felons the right to vote. It’s our duty as a nation to rehabilitate. How does that happen when the formerly incarcerated are denied the franchise?

“Voting machines that tabulate voter preferences accurately and transparently, minimize under- and over-votes,
restricting mail-in voting and allow for verifiability and full recounts”

This means non-hackable computers and paper records.

“Fair, impartial, and effective election administration.”

This would preclude a former elected person from asking an official to “find” him some votes.

My great fear is that if we can’t find a way to have elections that most people recognize as legitimate, the country will not exist. That may seem melodramatic, but I firmly believe it.

Amendments 15, 19, 24, 26

As I’ve noted many times, the arc of the Constitution bends towards greater participation in voting by its citizenry. Letting black people and women and 18-year-olds vote. Getting rid of the poll tax. Ultimately, we should be heading forward in making

BTW, the suggestion was offered up by Sarah Isgur, a veteran of the Trump Justice Department, who’s now a political analyst for “The Dispatch.” She suggested it on the July 11 episode of This Week

Read the 2005 report. It’s only 113 pages long, and it has pictures! What do you think can be done to create a more perfect union that enough people can get behind?

Things we learned from djt

Our democracy is fragile

On Facebook last week, I made a request. What are things we learned from djt and his last four or five years in public life?

One couple has downloaded the Constitution, referring to it often for the past 4 years. Another has learned more about the document, “in particular the 12th amendment. But also the 13th and the 25th.”

Of course, I knew about the Electoral College, but prior to the 2020 presidential election, I’d thought of the post-Election Day aspects of it as often as I’ve considered gravity. The recent machinations on December 14 and January 6 are like the wedding guests storming the officiant’s office demanding to see the couple’s license.

A friend chimed in: “The legal meanings of the word treason and what distinguishes it from sedition; and the federal statutes regarding both. How martial law works.

Also, “the structure of the United States District Courts; how and the meaning of SALT (in addition to Strategic Arms Limitation Talks).” Are you referring to that Angelina Jolie movie?

My buddy Steve noted: “The difference between simple corruption and an actual impeachable offense.” I thought when he was impeached they should have gone after him over the emoluments clause.

A friend suggests “There are innumerable norms that have provided guidelines for presidential behavior.” That’s irrefutably true. Will the other members accept djt into the former prez club? Doubtful. It got me thinking of the fact that I can’t remember half the people in his Cabinet.

Who knew the Hatch Act was so ineffectual on the highest-ranking folks? Who has violated it? Ivanka Trump, repeatedly. Kellyanne Conway, ditto.  And others.

You folks have done well

A parent noted “The names of dictators around the world, as well as names of responsible world leaders.” Yow, me too, and I hadn’t thought about it. Their child wants to know whether “there is any better leadership anywhere in the world, especially related to COVID and climate change.”

“Inherently good people can become mean and vindictive when pushed to their limits. Let’s hope that’s just a temporary condition and they can heal.” Unfortunately, the “good” and “temporary” nature I’m just not feeling.

The January 6 insurrection one can trace to a time before djt. In the last four years, it runs from Charlottesville (2017) to the planned kidnapping of the Michigan governor (2020) and beyond.

Some other responses:
Our democracy is fragile
The danger executive orders pose for human/civil rights. Methods a political party uses to suppress the vote of American citizens.
The “loving thy neighbor” commandment is frustrating and confusing. I knew that already but nothing brought it home as these four years have.

What “deplorables” can accomplish when they work together and by extension what any group can accomplish when they work together.
Some people are happily embracing their prejudices, and that empathy is a quality to be embraced.
Misogyny is our biggest problem. The majority of folks would rather have a racist president than a woman President.
There are more bigots and haters than I could ever imagine. And it makes me sick

Our culture is suicidal.
There are no checks and balances in our government.
The process of the transition of the president on inauguration day.
How is it that nearly one-half of the country could support after living through 4 years of narcissism, bigotry, and daily lying?

[“I learned…”] Not everyone who lives in America loves America and respects the Constitution. The symptoms of malignant narcissism. How easily we could go from a democracy to an autocracy. That I could really hate someone with every fiber of my being.

His accomplishments

Someone I do not know says, “Anyone saying Trump didn’t do a good job as President is full of Fake News BS…Pelosi is promoting sedition and Treason…this Congress is a Malcontent Group of vindictive people…Hillary Lost…period…now listening to PBS. I’m beginning to think the Durham Durham investigations have found out WASHINGTON is Corruption…and the best way to avoid exposure is for the Corruption to Cheat and Lie. Shame on Congress…”

If you’ve read my blog over the past quadrennial, you’ll note that I have a different POV. I will give him credit for two things, though. The First Steps Act. “The act was… an effort to improve criminal justice outcomes, as well as to reduce the size of the federal prison population…”

The other is to pour money into getting a COVID vaccine. Unfortunately, he totally undercut that effort by denying the pandemic’s seriousness, contradicting CDC guidelines on mask-wearing, failing to provide any federal coordination for PPE acquisition, and holding superspreader events, among other failures.

The big lie

Unfortunately, lies can trump the truth.

There was a bit of dialogue:
“I have learned is how effective ‘The Big Lie’ technique can be.”
“A man said the bigger the lie, the more people believe it because a big lie has the quality of being unbelievable, therefore people don’t believe that someone would make it up. So they believe it’s true.”
“If everyone believes it then it must be true. I have been debating the election fraud story with believers of it. I have shown and proved how everything they believe is not factual but even then, they won’t admit to the lie or acknowledge even a part of the truth.”

And in fact, part of that quote is attributed to Nazi propagandist Joseph Goebbels. It probably wasn’t him, though he is cited on millions of webpages.

Conversely, “When someone shows you who they are, believe them the first time.” That’s a quote by Maya Angelou

Back in August of 2020, he said, “The only way we’re going to lose this election is if the election is rigged.”‘ He was announcing his strategy for undermining the election, attacking the postal service, et al. That was the birth of the series of baseless post-vote challenges.

In the midst of a 2020 election debated, he made a statement to the Proud Boys. “Stand back and stand by.” That dog whistle was blown just a few months later. Afterward, he tells the insurrectionists, “We love you. You’re very special. Go home.” How sweet.

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