I want to bookmark and celebrate a particular
interchange in the conversation from a recent town hall
that featured Kamala Harris and Liz Cheney together.
The remarks by Cheney capture what I think could be an important shift the political
dialog on reproductive health, trigged by the anger and
revulsion of many women to the Dobbs decision,
the recent Supreme Court ruling in
Dobbs v. Jackson Women’s Health Organization that
overturned Roe v. Wade
I suspect this is why, traditionally, the pro-choice community has said it's
about “choice,” not “abortion.” Still, it was enormously
encouraging to watch Cheney put this into plain and heartfelt terms of her own.
Harris:
And then, of course,
I feel very strongly the government should not be telling any woman
what to do with her body.
And when Congress passes a law reinstating the reproductive freedoms of
women, I will gladly and proudly sign it into law because I
strongly believe one does
not have to give up or abandon their own
faith or beliefs to agree that—not the Government telling her
what to do. If she chooses she will consult with her priest, her pastor,
her rabbi or imam, but not the government.
We have seen too much harm, real harm, happen to women and the people who love them
around our country since that decision came down,
including women who have died.
And I don't think that most people who,
before the Dobbs decision came down who had strong opinions about this
I don't think most people intended that the harm we've seen would have
actually happened.
Cheney:
Can I add to this? Just to—Because I think it's such an important point.
And I think there are many of us, around the country, who have been pro-life,
but who have watched what's going on in our states since the Dobbs decision,
and have watched the state legislatures put in place laws that are resulting
in women not getting the care they need, and so I think this is not an issue
that we're seeing break down across party lines, but I think we're seeing
people come together to say what has happened to women, when women are facing
situations where they can't get the care they need,
where in places like Texas, for example, the attorney general is talking about suing—is suing—to get access to women's medical records, that's not sustainable for us
as a country, and it has to change.
Author's Notes:
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If we're lucky enough not to spiral down into dictatorship
during this fall's Presidential election in the US, we need to have a ready-made to-do list
for repairing democracy.
To start off a conversation on that, here's my current thinking…
Draft Proposed “Freedom Amendment” to the US Constitution
(Rationales, in green, are informational, not part of the amendment.)
In order to solidify and preserve democratic rule within these United States,
these changes are hereby ordered to all United States policies and procedures:
Voting
No Electoral College.
The Electoral College
is hereby dissolved.
Presidential elections shall henceforth be determined directly by majority
vote of all United States citizens who are eligible to vote.
No commercial interference in elections.
No for-profit corporation or company, nor any non-profit corporation or company that as their primary business
offers products or services for commercial sale, may contribute to campaigns or other activities that could
reasonably be seen as trying to affect election.
(The ruling in Citizens United v. FEC is vacated.)
Restore the Voting Rights Act.
The ruling in Shelby County v. Holder that voided section 4 is hereby reversed,
restoring this Act to its full form and asserting full Constitutional backing to the Act.
Preclearance is hereby required for all 50 states equally.
No “gerrymandering.”
The practice of gerrymandering
while drawing district boundaries at the federal and state levels
is hereby disallowed.
Ranked-choice voting.
All federal elections shall be handled via a
ranked-choice voting process.
Ethics & Oversight
Supreme Court Ethics Code.
The Supreme Court shall henceforth be governed by the same ethics code that binds all federal courts.
Congress and the Supreme Court shall be subject to term limits.
Senators may be elected to no more than 3 terms.
Representatives may be elected to no more than 5 terms.
Supreme Court Justices may serve no more than 18 years.
No one is above the law. Elected members of all three branches of government
are subject to all laws, just like any other person, even though prosecution of such
a person for crimes must wait until that person leaves office. In cases where
immediate prosecution might be important, impeachment is an option.
Senate impeachment votes are not optional. If the House impeaches someone,
the Senate must immediately perform all business necessary to assure a timely vote
on that impeachment; this process is not optional and may not be postponed. Once an
actionable concern has been raised that a public official might have committed a crime,
the public has an interest in swift resolution.
House and Senate impeachment votes are temporarily private. Impeachment votes
by both House and Senate will be recorded and tallied privately, preferably electronically,
with only the aggregate result reported immediately. Individual votes will be
held securely in private for a period of ten years, at which time all such votes
will be made a public part of the historical record.
Public office is not a refuge to wait out the clock on prosecution.
Any clock for the Statute of Limitations does not run while prosecution is not an option.
This applies for all elected persons for whom indictment or prosecution
is locked out due to participation in public office, but in particular for POTUS.
It may be necessary to the doing of orderly public business
not to prosecute a President while in office, however public office is not a refuge in which someone
may hide out until the clock runs out on otherwise-possible prosecutions, whether that clock began before
or during time in office.
Pardon power is subject to conflict-of-interest (COI) restrictions.
It is necessary to the credibility of all public officials in a free society that there be some reasonable
belief that rules of law do not create options for corrupt officials to abuse the system.
Presidents and other state and federal officials embued with the pardon power may never apply such power
to themselves, their families, or any other individuals with whom there is even an appearance of conflict
of interest. No such person may solicit any action by anyone on promise of a pardon. Any single such action,
attempted action, or promise of action where there is a conflict of interest that is known or reasonably
should have been know to the party exercising pardon power is an impeachable offense
and a felony abuse of power subject to a penalty of ten years in prison.
Independence of Department of Justice.
The head of the Department of Justice shall be henceforth selected by a supermajority (2/3)
vote of the House of Representatives, without any special input from or deference to the Executive.
Rationale: Assure DOJ operates independently of the Executive,
its mission being to fairly and impartially uphold Law,
not to be a tool of partisan or rogue Presidential power.
Independence of the Supreme Court.
Justices of the DOJ shall be henceforth selected by a supermajority (2/3)
vote of the House of Representatives.
Rationale:
1.
When SCOTUS must rule on the validity of Presidential action,
a conflict of interest is created if those Justices might be appointed
by that same President or even a majority party.
2.
Since the Constitution requires a supermajority to change its intent,
an equivalent degree of protection is essential for choosing those will will interpret that intent.
Recent history has suggested that it was easier to change the Court than to change
the Constitution, with catastrophic effect decidedly unfair to the majority of citizens.
3.
A President is more than Appointer of Justices, yet
that singular capability
is so powerful and lasting that it often dominates election campaigns.
Citizens need to be free to hire Presidents for other reasons more unique to the moment,
such as good judgment;
logistical, management, or negotiating skill;
expertise in technical or scientific matters; or even just empathy with public issues.
Rights of People
Corporations are not people.
Corporations are legal constructions, nothing more.
Rationale:
To say that they are independent people,
is to give some actual people (those who own or control them)
unequal, magnified, elitist, or otherwise distorted power over others.
There is no place for this in a democracy that purports to speak of
all people being created as equals.
No Implicit Rights of Corporations.
Any powers and duties of corporations must be explicitly granted to them, as coporations,
whether by the Constitution or by legal statute,
and henceforth must never be derived from any implication of imagined personhood.
Explicitly Enumerated Rights of Corporations.
Long-standing legal powers and duties of corporations such as
the right to sign contracts,
the right to own property,
the responsibility to pay taxes, and
any legal responsibility under tort law
are hereby acknowledged by express enumeration
in support of demonstrated corporate need
and are no longer intended to be inferred as part of
any preposterous fiction that corporations
are just another kind of person.
Non-Rights of Corporations.
Alleged rights such as, but not limited to,
rights of free speech
and religious rights for corporations are hereby
clarified to be nullified and without basis.
A corporation has no automatic rights of people
extending from any metaphor of being person-like.
Politics is the province of individual persons, not corporations.
Corporations exist for sales, subject to the rules of laws
made by individuals, not vice versa.
Bodily autonomy right.
All mentally competent people have a right to autonomy over choices of medical
procedures affecting their own body.
No Forced Pregnancies.
From the time of conception to the time of birth,
no government nor any other person may have a superseding say
over a pregnant person as to any matter relating to a fetus.
Rationale:
This should already follow from the Religious Freedom Clarification,
but it is too important to leave to chance. To say that any other person
could make such choices would be to allow their religious freedom to
infringe the religious freedoms of the pregnant person.
Also, the term “pregnant person” is used here intentionally to
include that adulthood is not a requirement of bodily autonomy.
In general, any person who has not been legally ruled mentally incompetent
is entitled to self-determination on matters like this.
Not even a parent should have superseding control, since a parent will
not have to live a lifetime with the consequences.
Fetal Disposition is a Private Matter.
Whether a pregnant person wishes to refer to a fetus as simply a fetus,
a potential life, an unborn child, or an actual child is a personal
religious choice to be made by that pregnant person.
No law shall impose a policy on this.
Rationale:
To say otherwise would be to deny the obvous fact that people simply
differ on this matter. To assume there were some single right way that
everyone must adhere to would be to give dominance to some religious
philosophies over others.
It's a compromise, but the only one that
it allows each person the best guarantee of at least some autonomy
in a society where not everyone
agrees and we are not likely to change that fact by fiat.
Also, and importantly, some pregnancies are
not successful and even in a society where we permit abortion for those
who weren't wanting to be pregnant, it would be callous and undignified
not to acknowledge the legitimate loss to others who sincerely wanted
to carry a pregnancy to term but were unable. It is possible to be
respectful in both situations, by feeling the grief of someone who wanted
a child and not manufacturing grief for someone else who did not.
Right to Choose a Marital Partner.
Among consenting adults, the choice to choose who to marry must not be restricted due to
race, religion, gender or sexual orientation.
Rationale:
This has been accepted already and it is not appropriate to roll that back.
It was a good idea anyway, though, because happy families add an extra level of safety net
protection to society. Family members try to take care of one another during sickness and
other hard times, and this hopefully reduces some amount of stress on public safety nets.
Religious Freedom Clarification.
The right to religious self-determination is a basic human right.
Religious Choice.
All people have the right to explore religous choice on their own timeline and terms.
No one is required to pick any particular philosophy, or any philosophy at all,
or even to make a choice.
Religious Equality.
Religious protections span all religious choices (and non-choices), and hence
are accorded equally to all people. No person may be accorded second-class legal status
on the basis of their religious philosophy—or lack thereof.
Rationale:
So atheists, agnostics, etc. are still due religious freedom protection.
Answers to “Is there a God?” are still due religious protection
if the answer is “no” or “I don't know” or “I haven't decided”
or “I don't know what that means” or “This is not a binary question.”
No State Religion.
The so-called “establishment clause” of the First Amendment is hereby
clarified to mean that the United States takes no position that might give the
appearance of preferring
one religon over another.
Rationale:
We are not, for example, a Christian nation. Nor a Jewish nation. And so on.
And yet the US is a nation that
intends to treat each religion and non-religion in the same supportive and
respectful way, and expects each of these religions to be respectful of others.
This is how balance is maintained in pluralistic society.
Religion is not a Popularity Contest.
The fact that one religious philosophy
might at any given point be more common than another does afford that philosophy a
greater or lesser status.
No Bullying in the name of Religion.
The freedom of religious choice is not a right to bully or coerce, nor to violate law.
Each person's right of religious choice extends only to the point where it might infringe
on the equivalent rights of others.
Yes, this could be done by separate amendments. But it would be a lot of them,
and the discussion would be much more complex. I say do it all at once because
every one of these things is absolutely needed.
If anything, there might be a few things I left out.
Author's Notes:
If you got value from this post, please “Share” it.
This post was catalyzed by a single tweet by me on ex-Twitter,
but it has been hugely elaborated since, after all, this venue does not have a 280 character limit.
The odd graphic of the scales of justice under repair was created by Abacus.AI's ChatLLM facility, using Claude Sonnet 3.5 and Dall-E and the prompt:
Draw a picture of a grayscale statue of a woman holding the scales of justice in one raised hand and a small wrench and a pair of needle-nose pliers in the other hand, lower, at her side. part of the statue should include a toolbox next to her feet that is open and presumably where she's taken the wrench from. the woman should be wearing a flowing gown, as is traditional for this kind of statue, but she should have a pair of goggles on her head, as one would use in a metal shop to protect one's eyes. The woman should have a pair of protective goggles, like one would use for metal working, over her eyes.
And, yes, I'm aware I did not get the needle-nose pliers got left out. And on this iteration I didn't ask for her to be seated, though I had been thinking of requesting she be seated at a work bench to resolve some unwanted aspects of previous attempts, so I went with this as the best of several tries.
«The Supreme Court’s late-term decision recognizing a dangerously expansive immunity from criminal prosecution
for former presidents effectively cut off any chance of the original indictment in the January 6 case
against former President Donald J. Trump going forward.»
The article goes on to talk about what Jack Smith has done to salvage the case.
Good for him. It shouldn't be necessary to work under the preposterous constraints
recently imposed by the Supreme Court, but I'm glad he's up to the challenge.
And that's the immediate concern, so it makes sense that Eisen and Vance would
focus commentary on something so topical.
But I want to draw back and reshape this same set of observations to highlight a few other things that have been bugging me as the rest of this immediate drama runs its course.
“This nation was founded on the principle that there are no kings in America.
Each — each of us is equal before the law.
No one — no one is above the law, not even the president of the United States.
With today’s Supreme Court decision on presidential immunity, that fundamentally changed. For all — for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.
This is a fundamentally new principle, and it’s a dangerous precedent because the power of the office
will no longer be constrained by the law, even including the Supreme Court of the United States.
The only limits will be self-imposed by the president alone.”
Wrapping our heads around the problem
Sometimes when there are big statements made (like that a President has “no limits” or is “above the law”),
it's hard to see the practical reality that is lost inside. I notice this when trying to excite people about the urgency of
Climate Change, as well. Sometimes, instead of saying
the world might end, one needs to say that there will be no more Christmas vacations, orchids, poetry, or reruns of Groundhog Day.
Something more personal. Because the vast scope of “anything” or “everything” is just too hard for the
brain to wrap itself around.
I'll tie this all together in a moment, but first one more quote.
«As a result, Trump’s attempts to weaponize the Department of Justice to his own private ends are no longer part of the case. Gone is the allegation that he pressured the Department to release a letter falsely claiming that the election was marred by outcome-determinative fraud. Gone is the allegation that he sought to use the Department to press state officials to certify his electors, rather than those of President Joe Biden. And gone is the allegation that he attempted to install his now-excised co-conspirator, Jeffery Clark, as the Acting Attorney General to implement his scheme when other officials resisted.»
So, yes, as Biden noted, Presidents will be above the law.
But as the reduced indictment implies, included in the President's broad immunity,
which SCOTUS has made up out of nowhere, are the following truths:
It isn't a crime, just a routine day at work, when the President perpetrates a fraud on citizens of the US,
or solicits those who work for him (including DOJ) to do so.
It isn't a crime, just a routine day at work, when the President meddles in state or national elections.
It isn't a crime, just a routine day at work, for the President to solicit state officials to do his bidding in ways that would be illegal for others.
It isn't a crime, just a routine day at work, when the President organizes conspiracies against the United States government, in violation of his oath to protect and defend the Constitution.
Smith is doing what he must do in order to get this past a corrupt Supreme Court.
But what they are asking him to accept as a premise is just utterly preposterous.
The above examples are just the tip of the iceberg.
Forget the fact that we're talking about crimes that probably happened.
Forget that it's Trump.
Just ask yourself: If you were designing a nation, would these be intended consequences of your design?
Can you even imagine our founders intended this? Keep in mind that these are the people that brought us the Declaration of Independence,
which said, among other things:
“… The history of the present King … is a history of repeated injuries
and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.
…
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
…
He has made Judges dependent on his Will alone
…
He has combined with others to subject us to a jurisdiction foreign to our constitution,
and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation…”
Independent of the prosecution of Donald Trump, independent of the sweeping nature of presidential immunity,
these specific truths that we already know from the mere fact that Jack Smith felt it necessary to remove them
from the
indictment, and which are only the tip of a very ugly iceberg,
are not suggesting a positive direction for our nation's future.
I would like to live in a country where Jack Smith did not have to fear prosecuting such things would be cruelly laughed out of Court.
We must drive stakes in the ground to keep the Overton window from moving.
Dictatorship vs democracy
Democracies have a lot of problems.
The back and forth of democratic decision-making can be messy, processes run slowly, and outcomes are not always pretty.
Democracies are said to offer the best of worst case outcomes, not the best of the best.
For example, they are supposed to resist capture by a single individual.
They are supposed to have checks against becoming dictatorships.
And, let's be honest, a benevolent dictatorship might sound better.
Someone who knows good things need to be done and can do them efficiently.
But the problem is that there is no such realizable system as a reliably benevolent dictatorship.
Even if it started out that way, it would risk in every moment becoming malevolent.
And if that happened, and it would, there would be no protection.
We've been too trusting in the US for too long and have allowed, little by little, for various changes
that have weakened our democracy's safeguards. We have seen them burrowing in at democracy's weakest points,
and instead of responding aggressively by filling observed gaps, we have let them drive a wedge.
So, at this point we find ourselves preparing for an election that many have described as having
placed democracy itself on the ballot, because Donald Trump has promised that if elected, he will
be a dictator.
Just for a day, he says, but not everyone is Joe Biden. The history of power is that people
do not step back from it easily. If Trump achieves any approximation of dictatorship, expect him to decide
he likes it and wants to keep it that way. And the Supreme Court seems poised to back that.
After all, he seems to think he can be a dictator on day one if he wants. But the Supreme Court has not said
anything that distinguishes any day from any other. If he has the power to be a dictator by his own choice
on day 1, he has the power to be dictator by his own choice on any day. The Supreme Court
seems to have made that pretty clear.
That he's hinting only about a single day has no predictive value.
His promises are worth nothing. He changes like the wind.
The only consistency he has is his narcissism.
Meta-dictatorship
But, wait a minute, why does the Supreme Court get to decide these things?
Well, that's just their role and always has been.
They are charged with making decisions that are true to the Constitution,
but who polices that? They do. Or they don't.
But, either way, no one else can tell them they're wrong.
Pardon the use of technically precise language here, but
they just say shit, and it becomes true, stink and all.
They don't exactly make law, but they tell lawmakers what laws are OK to make.
They don't exactly enforce law, but they tell enforcers which laws may be enforced.
That's a lot of power. Too much.
They are, effectively, a team of meta-dictators.
That's kind of always been there, just waiting to rear its ugly head.
A President is suddenly a king. How? That wasn't previously true.
The Supreme Court says so. So we believe it.
They claim the power to say that someone is a dictator,
above the law and immune to question.
How do you do that if you're not already a dictator yourself?
So why are we talking about a future world that only might have a dictator after the election.
The problem is real, and here, and now.
We have a team of dictators already—a weirdly constituted team
that has a minority voice that's like an ignored conscience,
unable to have an effect but still able to speak out, alerting us to danger.
In spite of that, collectively, they are dictators.
Nothing has recently changed about the power of the Supreme Court other than its composition.
It has been a potential dictatorial mob for a while, just awaiting two things to align:
the right composition, to take advantage of the power that was there.
the death of shame, so they won't be embarrassed doing it.
Now that those conditions are met, the Supreme Court's danger,
a danger that has been there all along, is starkly visible.
In a sense, the story of the US Supreme Court is the story of a dictatorship
that started out benevolent and decayed before our eyes, just as I was saying one
should expect from any such attempt. As soon as we get the chance, we need to correct
its structure so that it has much stronger protections. In the past, our various
Congresses and Presidents have seen the Supreme Court's design as something sacred,
that works well, not realizing they were simply relying on luck. Democracy must be built
upon firmer stuff. It needs solid checks against corruption. Nothing less will suffice.
Leave it to the United States of Capitalism to bring on dictatorship
fashioned in its own image, as a board of directors, not quite dictating directly,
but freely controlling who is allowed to be the country's CEO
and under what parameters they are permitted to operate.
It's a bad look. But it's what money has bought.
Author's Notes:
If you got value from this post, please “Share” it.
For the flag logo, I tried to generate an image at Abacus.ai using various
models and Dall-E or Flux.1, but all of them made a complete mess of simple instructions,
so finally I asked just "make a simple black and white logo in the style of a clenched fist.
make sure the fist has 4 fingers and a thumb" (because many times it gives too few fingers),
and I had to edit it onto the flag myself, using a public domain image of a flag downloaded from publicdomainpictures.net.
Edit: The penultimate paragraph in the main article above,
beginning “In a sense, the story of the US Supreme Court…”
had been intended originally but ended up lost due to editing.
It was added back the day after initial publication when its absence was noted.
US politics has lost its civility. Civility kept progress on the Conservative agenda slow,
and it created time and opportunity for opposition response.
In recent years, this pressure has intensified in speed and scope,
making it hard to respond effectively in any civil way.
Trump is not the only player in this. Others, working patiently over decades, laid a foundation
that was ripe for the arrival of someone like him. The system has been weakened over time.
Gerrymandering, the Citizens United ruling, and the stacking of the Supreme Court are examples.
But Trump has been a definite innovator in the sociopathic governance space.
His two primary innovations, either one of which would be sufficient to explain
the reverence of the rich and power-hungry, have been:
The outright shredding of shame,
and the important social safeguard that shame had previously provided.
Prior to this, there were a great many things no politician would dare try because of fear of being found out; Trump showed that fear to be a waste of time.
Far too many voters are willing to turn a blind eye to shameful behavior that comes from a politician that otherwise serves them,
which has allowed the GOP to very rapidly morph into the Party of Machiavelli.
The observation that massive numbers of voters don't check truth or consistency.
Prior to this, politicians feared injuring their own supporters, which led to a natural reserve in how nasty a policy could be; Trump has shown that it's a productive strategy to create policies actively hurtful to one's own base, who will notice the pain but not bother to find out where it comes from, preferring to just be blindly angry, without direction, and to just wait to be told by tribal leaders who they should be angry at.
The consequences of these shifts are legion, far too numerous to discuss here in detail,
but they include corrupt behavior to acquire and keep office, and the open
incitement of and condoning of political violence, even to include outright insurrection.
These also include ever more blatant acts of
judicial activism by a questionably seated and plainly corrupt majority of the
Supreme Court. Openly scornful of any suggestion that they be bound by an ethics code,
they are apparently bent on taking a buzz saw to long-standing readings of the Constitution
in favor of uglier ends—probably to include the present trend of the Republican party toward
White Christian Nationalism.
The basic problem is that the founders did not anticipate this speed and scope.
The safeguards they built in were few, and the presumption was that the system would be self-correcting,
patching small holes on a one-off basis as they came up.
The Supreme Court
was designed for perhaps a challenge or two per Presidential term.
Even if it was still functioning in a properly ethical way,
it would not be up to the present onslaught of challenges—as
I had warned about in a tweet on ex-Twitter
a month before the 2016 election:
"Trump…involved in a startling 3,500 legal actions".
If you got value from this post, please “Share” it.
The graphics were created at abacus.ai via its ChatLLM facility.
The prompt for the paperwork graphic, created by FLUX.1 was "create a black and white graphic that
shows someone with a xerox machine that is rapidly spewing out legal documents in the direction of a model of the supreme court".
I'm not sure what I expected as a result of that. A smaller court building, for one. But I guess this was sort of responsive.
The prompt for the shame graphic, created by DALL-E, was "create a simple black and white graphic sketched graphic
of a man whose face is vaguely like donald trump, but feeling shame with one hand over his face
and the other hand extended into the foreground, palm up and out, in a stop gesture intended
to hold nearby people at bay." You can see it ignored parts of my request.
This is an amazing amount of power,
as we are on track to learn once Biden finishes wasting this power doing nothing
and leaves us with Trump as his successor.
“This nation was founded on the principle that there are no kings in America.
… Each of us is equal before the law.
… No one is above the law,
not even the President of the United States.
With today’s Supreme Court decision on Presidential immunity, that fundamentally changed.
… For all practical purposes,
today’s decision almost certainly means that
there are virtually no limits on what a President can do.
This is a fundamentally new principle and it’s a dangerous precedent because the power of the office
will no longer be constrained by the Law, even including the Supreme Court of the United States.
The only limits will be self-imposed by the President alone.”
Trump is not just Biden’s adversary, but he is the adversary of free society.
He has said so.
He has promised to be a dictator on day one,
and he means it.
He will not waste this newly conjured kingly power doing nothing,
but rather undoing what Biden has done for
gun safety,
gender equality,
environment, etc.
Alongside all that, he will proceed immediately to do rampant evil,
as laid out in detailed published plans
that his ultra-conservative allies are calling
“Project 2025.”
For a few months, though, such extraordinary power resides in Biden.
And what will he do with this power?
He rushes to promise us that he will not use it, not even for good,
not even to assure that we do not end up with Trump as dictator.
Nor to assure that these ridiculous changes by the Court are rolled back.
Note also that We The People are helpless here, glued to our TVs and phones,
sifting news and social media for clues about what will happen to us.
Give any one of us the power that the Supreme Court gave Biden, and we could do a lot of good,
fix a lot of problems, and make the US safer for democracy than Biden is promising to do.
We know that because Biden is promising to do nothing with this extraordinary power.
That’s a pretty low bar for any one of us to exceed.
Failing to Protect Us
Biden wants to do things in the same old tired way.
He wants to use his centrist tools of inaction,
treating any real opportunity to make a difference as something not to do.
Something too radical. Not his preferred way.
He’d rather labor slowly, expecting consensus with the MAGA crowd when there is none to be had,
and he would rather not use the new tool,
a tool that Trump and the MAGA-majority Supreme Court are counting on him not to use.
They have given him a loaded weapon and are counting on him to deliver it, still loaded, still unused,
to his successor,
who will not leave it unused,
who will in all likelihood use that weapon to assure he does not ever have a successor,
that he just stays in power for life.
“At the outset of our nation,
it was the character of George Washington, our first President,
that defined the Presidency. He believed power was limited, not absolute,
and that power always resides with The People. Always.
Now, over 200 years later, with today’s Supreme Court decision,
once again it will depend on the character of the men and women
who hold that Presidency that are going to define the limits of the power of the Presidency
because the Law will no longer do it.
I know I will respect the limits of the Presidential powers that I have for three and a half years.
But any President, including Donald Trump, will now be free to ignore the Law.
I concur with Justice Sotomayor’s dissent today.
… She said,
‘In every use of official power, the President is now a King above the law.
With fear for our democracy, I dissent.’
So should the American people dissent. I dissent.
”
We are in danger. Biden sees the danger, but does not see that he is part of the planned
delivery mechanism for that danger, and that he is willingly and complacently accepting that role.
It's like Biden sees someone coming at him with a club or a knife in a dark alley
and decides to use debate to protect himself even as someone is trying to hand him a pistol.
All well and good if he's by himself and can take full personal responsibility for that ridiculous choice,
but he is charged here with protecting the Constitution and the nation.
We Need Real Action
Strong language, politely delivered, will not protect us here.
An offer of centrist consensus-building with the MAGA right will not protect us either.
Oh, sure, he can probably find something to collaborate with MAGA about,
but it will amount to mere distraction,
one of those inconsequential things that still loses us our democracy
even as it adds to his list of accomplishments.
Part of the problem is that Biden thinks that the doing of everyday horse trading
is his job. At this point, it is not.
He doesn't need more legislative successes.
If the successes he has are not impressing anyone, adding more will not fix that.
He has a lot of experience as a Senator, but at this point, we need him to stop
being some kind of Senator in Chief
and just be the Commander in Chief.
He needs now to secure democracy. That is his job.
And it cannot be done by compromising with the party that seeks to disassemble democracy.
It must be done by actually confronting that party, using any and all tools at hand.
He thinks he's doing all he can, and maybe he is doing all he can.
But he is not doing all that could be done.
Inaction at this point is dangerous.
The tool he's been given, this new superpower, may not be Biden's preferred tool,
but it IS adequate to the task.
He is just choosing not to use it because he doesn’t like the look of it.
That alone is sufficient reason for We The People to want a different leader,
both now while that power exists and in the next Presidential term if possible.
Coaxing the Genie back into the Bottle
It’s good that Biden knows this new Presidential immunity poses a danger to democracy,
but it’s not enough to just know it.
He needs to insist that the Court take back that power now,
not taking “no” for an answer.
Inaction is insufficient. Fortunately, given this new superpower,
better options are available.
I’ll offer a hypothetical, just for conversation,
but hopefully it will demonstrate that
stronger and more effective action is possible,
and that it is neither necessary nor advisable to wait until the election.
After all, the election could go very awry. It is reckless to wait and hope it will not.
This new reality entitles him to not just suggest but insist it be dealt with now.
He can insist that the Supreme Court
create ethics rules, term limits, and accountability.
So here is my hypothetical scenario for discussion:
Biden could explain that,
in order to preserve Democracy and hold Monarchy at bay,
he is ordering poor old Seal Team Six
to hunt down and execute all conservative justices on the Supreme Court
so that he can install judges with better sense, but
that he has stayed execution of that action—for which he has absolute immunity—by 3 weeks,
just in case the Court can move (expeditiously, for once) to find a better way
to protect the Constitution and the nation with less bloodshed,
for example by vacating their recent extraordinarily ill-advised
and outright reckless ruling, removing the power of Presidents to take such actions confident of their immunity.
I like to think that such an approach would end with better accountability for Presidents and no one injured.
It might seem an extreme way to get there,
but it absolutely pales by comparison to what we should expect if Trump is elected.
Supreme Blind Spot
An action with parameters such as I’ve described would also help SCOTUS see the very real danger they’ve created.
Fixing the problem would allow a happier outcome for us all, even SCOTUS themselves.
They may not realize it, but they are in danger due to their own ruling
in ways that they’re not taking seriously enough.
They blithely discuss a President authorizing SEAL Team Six to take out political rivals,
yet fail to see that they themselves might be such rivals?
It leaves me questioning not just their lack of neutrality, but their competence.
It is short-sighted and dangerous,
and poor judgment to the point of recklessness.
I expect more of Supreme Court Justices.
Biden Isn't The Leader We Need
This is no time for Biden to sit on his hands.
It’s a time for bold actions proportional to the danger,
actions suddenly well within the scope of Biden’s new powers,
and capable of being done with noble purpose,
not that the new Supreme Court ruling requires noble purpose for President acts any more.
That's part of the problem.
The Court has given Biden this power, so they must intend him to use it, right?
Or maybe they just intended the power for Trump and calculated that Biden was too wimpy
to use it.
I'd concur with them on that calculation, by the way. He is too wimpy.
He's confirmed that by prematurely promising not to use it. That's a self-inflicted wound.
He didn't have to say that, for the same reason that Presidents don't say “we won't strike first with atomic weapons.”
It's not that we plan to, but we don't want our adversaries relying on our self-restraint.
I don't think Biden wargamed this. I think he just tied his own hands without thinking.
Now, if he uses the power, even to help eliminate it,
he'll have people fussing at him.
But so be it.
I see it as dereliction of duty if he declines to use it.
Letting his successor, probably Trump, be the first to explore this unlimited power is terrifying
because it will be too late at that point for the public to react in any meaningful way to defend itself.
It was reckless even just to say out loud that he wouldn't use the power.
I get why he wanted to. I get why it's uncomfortable.
But right now he is the one we have elected to do the uncomfortable things.
Better him than Trump. He, at least, is acting in the nation's best interests, not just his own.
Sadly, I’m pretty confident Biden isn't up to it.
I think he'll disappoint us.
Not just disappoint us, but outright fail us.
He sees its use as lacking decorum,
even as somehow he sees no lack of decorum in abrogating his responsibility to protect us
and leaving us at material risk of a Trump presidency with unlimited power still in full effect.
He thinks by saying these are the stakes that surely no one will elect Trump.
That's a dangerous game and one we're all too likely to lose.
Telling us to go vote is just not adequate.
Assuring us that we have the final say would be laughable if not so serious.
It will be great to rely on voting once a proper democracy is restored,
but right now there is no guarantee of the vote’s outcome,
or that the outcome won't be challenged,
ultimately winding up in the Supreme Court to be overturned by the same folks that brought us the recent Presidential immunity ruling.
They have meddled in elections before,
and nothing stops them from doing it again,
especially now that they have lost all shame.
Immediate action is needed to put things to right, while Biden has the power.
He must use that power. Carefully. But he must use it.
The safety of the Constitution and the nation demands it.
I doubt he is up to this most important of tasks. But I'll be happy to be surprised.
A Nation of Laws
Our nation needs to be a nation of laws. For everyone. No exceptions.
We already make exceptions for acts that are necessary.
We have laws against murder, but we let people off if it’s self defense.
We have laws about copyright violation, but we let people off for fair use.
But we have not had laws that expressly said that people could walk free merely for who they are,
only laws that insist they are doing things for good motive.
Will that scare some Presidents?
It’s never scared them in the past.
Or maybe the ones that it did scare didn't run for office. Good for them.
Presidents have always had to fear that breaking laws might get them in trouble
and yet the nation has functioned well for two and a half centuries.
Let Presidents continue to fear the Law.
Let them continue to have to justify deviations.
If a President hesitates to start a war
or authorize a covert action
or explode a weapon of mass destruction, well,
that’s good.
Hesitation isn’t bad.
I want a President to know that breaking the law cannot be a casual decision.
It cannot be just another day on the job.
They must be prepared to later justify questionable actions.
Having to account is part of the job.
It is what makes us a democracy.
The President is accountable to The People, not the other way around.
Let Presidents assume that We The People understand these are hard decisions,
and that we’ll make exceptions for technical breaches of law that are justly done in the best interest of the nation.
But let them sweat a bit. That’s healthy.
By contrast, this newly conjured law, brought into existence out of nowhere Monday by a rogue Court, not Congress, that says Presidents must not be made to sweat, must not be asked to account, is not healthy.
Some have advanced the fairytale notion that voting is how Presidents should be called to account.
But it is not a crazy hypothetical to think that a President might try to stay illegally in power.
We’ve seen evidence that Trump might do this.
He’s said aloud that it’s something he thought about.
And, anyway, there is a lot of damage that can be done in the four years between elections,
if we're lucky enough to ever have them again after a President decides he wants to be a dictator.
So elections are not an appropriate check.
We need better.
Let Presidents sweat. We’ll be safer for it.
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It seems to be the case that much of the pro-Life camp regards Roe v. Wade as a kind of left liberal “pro-abortion” plot of some sort. It is not.
Although I can see how if you live at the extreme end of the spectrum, anything toward the center might be regarded as a plot, or perhaps a capitulation, I don't think it's politically useful to think this way.
Let me begin by identifying that my personal position is pro-choice. That is, I think the question of whether to have an abortion or not must be chosen by the woman who is pregnant. That isn't to say that I think one should always have abortions or always not have abortions. I think these are things anyone can hold individual opinions on, and yet I also think the ultimate choice at any time during pregnancy in the sense of legally authorizing an action and in the sense of being immune from legal prosecution should be with the woman who is pregnant. That's what I think is right and just. But it's not a position I will argue for here as an outcome.
My analysis here is not for the purpose of advocating my personal preference. If it were, other people would just express their personal preference and there would be a lot of “Oh, yeah, so who put you in charge?” or “What makes your position any more valid than mine?” While I don't agree with the positions others take on this, I think that in a pluralistic society, one has to regard the positions of others, especially large numbers of others, with a degree of respect at least to the extent of hearing them out and seeing if they can be accommodated. I expect the same of those on the other side, of course.
I begin with the assumption that this debate will not be won by everyone on one side changing the mind of everyone on the other side. Therefore, I think that, absent genocide (which I'm going to assume most rational people do not want), the right answer will not be at one end of the spectrum or the other. So we can line out “no abortion” and we can line out “unconditional abortion any time for any reason.” I can see the pro-Life camp wincing because already it's as if their mission has failed. But what you should understand is that I may have already pissed off a great many pro-choice women by this remark. Even people I agree with on principle.
I don't make this first observation out of some desire for a particular outcome, however. I am merely observing that these are not legitimate hopes for anyone with any understanding of politics. They will not, as a practical reality, happen. Or, if they do, it will be a period of time in American history that is as unstable as Prohibition was. Whatever your feeling about alcohol, there's simply no question that outlawing it was not a good plan. The same will be true with either a law that allows no abortion or a law that allows utterly unfettered abortions.
It's hard to summarize a whole movement in concise form, so I won't attempt to. I'll assume anyone reading this has read and discussed the matter extensively before and I will appeal to shorthand descriptions that others have used before me. For simplicity of discussion, let's assume this comes down to a question of whether personhood begins at conception or at birth. The entire argument seems to revolve around this. If you believe that a group of a few cells is “a person” that's going to lead you to a certain line of thinking whereas if you think it's not, it will lead you to a different line of thinking. And that's how the discussion ends up breaking down. So where is the middle ground?
Well, speaking in my role as neutral arbitrator, and leaving my personal preference aside, it's pretty clear that there's a continuum between these points of view. The pro-Life group is quick to point out that if something is a person at the moment of birth, then it's hard to argue that it's a not a person just a moment before. But let's be careful. This implies a certain transitivity that may apply locally in a kind of ad hoc way, but that clearly doesn't apply as you get farther away in time, away from birth and toward conception.
For example, by the same fuzzy argument, Boston is close to San Francisco. How do I know this? Well, ten feet away from anything is close to something. And so if I'm only ten feet away from something that's close to something, surely I must be close. And if ten feet away from Boston is close, then so is ten feet away from ten feet away. And so on. Until ten feet turns into three thousand miles. Clearly, at some point I'm far away. But where? Does the fact that I cannot articulate that precise point at which I am far rather than close mean that I am never far away? Or is the precise point simply elusive? There may not even be a single point in the sense of working for all purposes. Philadelphia may be close to Boston for some purposes and far for others. In fact, western Massachusetts may be close to Boston for some purposes and far for others.
And so one possible analysis (not my personal way of analyzing this, incidentally—I'll write about that another day) is to say that at one end of the pregnancy, there is personhood, and at the other end there is not, and so presumably in the middle it gets a little fuzzy, with properties of each.
And so along comes Roe v. Wade, which I will argue reached the most politically optimal and correct conclusion, even if for the wrong reasons. The rationale offered in Roe was based on viability, which seems to me an objective quality that is irrelevant. Moreover, it is a messy quantity because viability clearly has no uniquely determined sense. Relying on such a definition puts the debate into the hands of those in control of dictionaries rather than leaving it in the control of public discourse between aggrieved parties. So I don't like the rationale for the reasons that the terminology has been possible to co-opt and manipulate. What I do like, not in my personal point of view but in my role as neutral arbitrator, is structure of the decision. That is, it's a good decision for reasons independent of its stated rationale.
I think what saves Roe is that it creates a staged transition between opposing communities unlikely to agree. A trimester in which those who claim that a fetus is not a lot like a person have a strong case to make, a trimester at the other end in which those who claim a fetus is a lot like a person have a strong case to make, and a trimester in between when there are interests on both sides, and where some negotiation seems possible.
Structurally, as a political compromise, this is not ideal for either side. And this is what makes it a good political compromise.
I think the pro-Choice community already sees Roe v. Wade, as a compromise, and there are those who seek for greater autonomy. I personally think they are right. What they say is compatible with my personal theory of how the world operates. But they ask for anything beyond this compromise at some peril in a world where the opposing side seems committed to pushing back.
By contrast, I think the pro-Life community mostly does not see Roe v. Wade as a compromise. I think they view it as a victory for what they call the “pro-abortion” side. I think this is a political mistake because I think they can't do better than this middle point without risking backlash.
The two sides should recognize this impasse and agree to terms. I think pushing this forward risks eternal strife and to no good end.
I also doubt the pro-Life camp will take my advice. They will continue to push, and so this notion of compromise will have no purpose. In that world, expect me to simply champion the pro-Choice position right up to birth. Adopting this middle ground is only useful in exchange for a promise of cessation of conflict, and I think would be well worth that price.
Then again, in the coming years, as population increases further on a crowded planet of finite size, this issue may become moot.
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On a site like Open Salon, it's often assumed one is a Democrat. I'm not.
I'm an Independent. I do admit it's hard to tell the difference
sometimes, but is that my fault? The Republicans seem never to
offer me a credible alternative.
Of course, you could make the claim I should be checking out the Green
Party or the Libertarian Party. Nice try, but no dice. There are a
couple reasons for this. First, I'm old enough to have thrown away my
vote on third-party candidates before; been there, done that. Voting
on principle is nice, and I'm all for changing our voting system to
use preference-order voting, but absent that, I'll vote where my vote
can make a difference, thank you.
And, frankly, I think the thing that holds these third parties back is
their stubborn insistence on principle. Principles are great, but as I
discussed in
The “Two Unprincipled Parties” System,
it's the unprincipled
nature of the Democratic and the Republican parties that keep them
in active contention. That nature allows the parties to dynamically adjust
their platform in order to respond to changes in public sentiment.
Contrast this with the Green Party or Libertarian Party which are wedded to ideas
and hence incapable of changing in order to acquire more votes.
There are occasions where I've gone so far as to call myself a
“Republican Wannabe,” not because the Republican
Party of late (by which I'm afraid I mostly mean “within my lifetime”)
offers much of anything I'd ever
“want to be” but because the words the Republicans often
say they are about don't sound bad.
I wish there really were a Republican Party
that was about small,
fiscally responsible government that cares about personal liberty and
privacy.
They sometimes spout such words, but their actions don't match,
and I just can't bear it.
I did actually vote for Bill Weld,
a Republican, to be Governor of Massachusetts.
He was socially liberal, compassionate, strong on crime,
and fiscally responsible. A good mix, I thought.
But, alas, not typical of what the Republican is selling these days.
Also, my desire for small government is not dogmatic in nature.
So while I liked how Jesse Ventura borrowed from Lincoln in saying
that government should only do for
people what they can't do for themselves, I find it's not always so easy to say
exactly what people can and cannot do for themselves.
For example, it might seem that health care is something
people can arrange for themselves. But I've watched health care play out
over a lifetime, and it's clear to me that health insurance has gone from
a well-meaning pool that protected people from unknown health risks to a cynically
and scientifically run system that tries to most efficiently separate people from
their money, maximizing profits while minimizing its own responsibilities.
Saying health care is something people can do for themselves
depends on whether you just mean that there are insurance policies for sale
or whether you mean that people have a legitimate and compassionate set of choices.
So just because I favor small government over large doesn't mean I favor it for
arbitrary reasons; there are a lot of reasons to suppose that the smallest workable
and fair government really does need to address health care, and to
believe that this cannot be left to the individual.
So please don't assume when I say I'm for small government that I mean to say I oppose
some particular set of issues. What I mean, rather, is that if all other things are
equal, I prefer small to large. But sometimes small doesn't work, and I'm open to
discussion on some matters that others might not be.
What I want from the various parties is to provide me a different perspective about
how to think about problems. I want options I can evaluate freely without regard to
where they came from. I assume that the very different
perspectives of each party will provide me with a rich variety of options.
What I care about is workability to really solve the stated problem, not some idealized
notion of a problem.
And there are two things that really catch my eye a lot with Republican
options: First, they seem to go out of their way to be mean-spirited and to make life
miserable for people who are just trying to get by—they're forever trying to sell
their policies by demonizing someone, and in the process they often don't actually
solve the problems they set out to solve. And second, their solutions are often very fragile.
They work really well if you make the right assumptions about the people involved, the order
in which things happen, etc., but they leave people helpless if they deviate even a little
from the norm (often, but not always, a norm characterized by being economically well-off,
healthy, white, straight, male, and Christian).
The Republicans say they're about family values, but that turns out to be code for something much
more sinister. To me, family values means something that promotes the notion of people
helping people, of people treating each other kindly, of people within a family loving
one another, of people wanting children to grow up happy and healthy. But many gay families
pass this requirement and yet are shunned by the so-called party of family values.
The Republicans say they're about fiscal responsibility, yet they orchestrated the worst economic
catastrophe in the history of the world. And why? Because they effectively enshrined the
notion that “greed is good,” a claim that is so obviously ridiculous it's a
wonder it wasn't laughed out of the room the moment it was first said. But, of course,
people who desperately want to believe a selfish thing will find themselves highly motivated
to stretch in what they are willing to believe.
The Republicans say they're about the Constitution, but when attempts are made to
enforce privacy rights or free speech rights, we find them making
exceptions. In fact, I honestly think that before the neocons took over the party, the
Republican Party really was about this one. And there are a few lonely voices even
now within the Republican Party that pay lip service to this issue. But when push comes to
shove we see party line votes on matters that do not uphold free speech and privacy rights.
I really just don't like the idea of aligning with a party;
I fear the notion of “toeing someone's party line.”
I like independently evaluating issues on their merits.
When I voted for Weld in the Massachusetts primary,
I was going to be out of town and had to vote absentee. To do that,
I had to declare a party and was temporarily a Republican for a few weeks near the
election. I recall worrying that I would
die in an accident and that my tombstone would read “he died a Republican.”
So maybe it's not fair to say I actually want to be a Republican.
But I do covet the issue space that the Republicans allegedly care about,
and I do think they're falling down in their duty to offer me options that fit in that space.
I refuse to give in and simply call myself a Democrat. I continue to hold out
the hope that the Republican Party will surprise me one day with good ideas that will give
my preferred status as an Independent a legitimate sense of identity distinct from being
a member of the
Democratic Party. But some days keeping that hope alive is like trying to keep a candle
burning in the winds of a hurricane.
Here I sit, trying to decide what I think of Judge Sotomayor.
In spite of her being the clear choice of Obama and the Democrats,
I'm really quite annoyed by that controversial ruling Judge Sotomayor has
written about controversial free speech rights of school children, the one
Paul Levinson
has written extensively about. The details of that
ruling trouble me a great deal. I'd like to ask her a great many questions about it.
But even as I'd like to consider the ruling, and the candidate, with an independent eye,
I have my television tuned in to all kinds of ridiculousness from the sitting Republicans
that once again threatens to embarrass me if I go that way. I am incensed about the
petty set of things the Republican Party has chosen to make into talking points, stupid
issues that are not at all good reasons not to make this woman a Supreme Court Justice.
Quiet down, Republicans. I can't figure out if this candidate is a good choice
for the Court, but if you don't stop saying completely idiotic things in opposition, I'm
going to feel driven to side with her merely because you have once again made it utterly
unpalatable to ever even consider the possibility of an opposing point of view.
For once, please don't be your own worst enemy. Just once, I'd like to feel I had a choice.
Author's Note:
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Originally published June 1, 2009 at Open Salon, where I wrote under my own name, Kent Pitman.
Tags (from Open Salon): politics, republican, independent, democrat, republican wannabe, own worst enemy, shooting itself in the foot, republican party, sonia sotomayor, sotomayor, supreme court, court, justice, appointment, supreme court justice, candidate, bill weld, jesse ventura
![[image of a woman in a flowing gown, seated gracefully on the floor with the scales of justice helld in one hand and a wrench in the other, taken from a nearby toolbox, as if waiting to adjust something, perhaps in the scales]](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhENfbCQnaoLgYZpD9FdFQulIUNJvLKKOClrVg0mySb7kpfisr8i4LoerDoj1PxHijazl33fHa5me0lVdxBj7I7ux8zLTkB6FWa1y005r0SSjaIQdFlWqMMNcCQL_tUSRfMzUFb-Ry7lpj1kD1v4r73PTaiCJJwzehOYH1pySAFlt4G4uygstJHNkZwbj8/s1024/scales-of-justice-seated-repair-grayscale%281024x1024%29.jpg)
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