Even the Law is Dead in America

Amy Coney Barrett (the one not clapping)

W.J. Astore

This snippet just showed up in my email (courtesy of the Boston Globe):

Supreme Court nominee Amy Coney Barrett declared Monday that Americans “deserve an independent Supreme Court that interprets our Constitution and laws as they are written,” encapsulating her conservative approach to the law that has Republicans excited about the prospect of her taking the place of the late Justice Ruth Bader Ginsburg before Election Day.

Now, I know this is coded talk. The idea of a close and literal reading of the U.S. Constitution and related laws is meant to tell conservatives that she is not an activist, that she is not liberal in any way. But it also means that she’s mainly, in a bizarre way, a clerk rather than a judge — if her statement was meant to be the truth, the whole truth, and nothing but the truth. But it isn’t.

Barrett is spouting half-truths, since conservative judges are just as activist as their liberal counterparts on the bench. They simply disguise their activism using terms like literalism, which is “strict” and “conservative” and allegedly in keeping with what the Founders intended, as if we can be mind-readers. And even if we could be mind-readers, hasn’t the world changed a lot in roughly 250 years?

Look, I’m a historian, not a lawyer. I’m no expert on judging the law, but I can view the law in historical terms. And in those terms the law is organic, not static, as is our understanding of it. Put differently, the law should be made and remade for us, not we for the law. Because we’re human, we’re imperfect, the societies we create are imperfect, and so too are the laws we create.

Our goal should always be to form a more perfect union, to grow in understanding and compassion. Such is also true of the law. If all these judges do is to issue rulings simply on what is written in the documents before them, why do we even need a Supreme Court?

A static system of laws based on the writings of men who lived 250 years ago is not only unwise: it’s inhuman. Even the law is dead in America.

Update (10/13/20):

I used “literalist” when “textualist” and “originalist” seem to be the preferred terms for this judicial approach.

But judicial literalism echoes the Biblical literalism that is consistent with this judicial approach: the idea the Bible, like the law, should be read plainly, literally, based on the text, with no changes based on new scholarship.

It’s a mindset, an alleged quest for certainty through “simple” readings, but what it’s really all about is a deference to authority figures in the here-and-now who claim to know how to make these “simple” readings. And when they do, these readings are always in their favor.

Surprise! God favors a conservative patriarchy, just as the law does. Who knew?

Update 2 (10/14/20)

It beggars belief that an educated adult in America would have no firm opinion on climate change. Heck, even Trump has admitted there’s a human component to the same. But Amy Coney Barrett says she has no “firm views” on climate change; meanwhile, her father has been a lawyer with Shell Oil for decades. And a major case involving Shell on climate change is pending before the Supreme Court. Coincidence? See this article by David Sirota & Co.

https://www.dailyposter.com/p/upcoming-scotus-climate-case-involves

What’s sad about these sham senate hearings is how nominees like Kavanaugh and Barrett end up effectively perjuring themselves with their answers. I know: I’m not a lawyer and technically it’s probably not perjury. But they essentially answer questions dishonestly in their quest to be confirmed. Here’s an example:

https://www.theguardian.com/us-news/2020/oct/13/kamala-harris-amy-coney-barrett-senate-hearing

Finally, a friend made two fine points about Barrett. The first is she’s smart with the law; the second is she’s a person of faith. But what kind of smarts, and what kind of faith? Smarts that are limited, uninformed by compassion and an appreciation for the human condition, can be sterile. Faith that is rigid and shaped by a patriarchal church can be hidebound, conveying certainty and a holier-than-thou attitude.

Will the U.S. Military Hammer Strike the Citizen Nails?

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Caption at the Guardian: Members of an airborne military unit are deployed on the streets of Washington DC on Thursday. Photograph: Win McNamee/Getty Images

W.J. Astore

When the only tool you have is a hammer, all problems begin to look like nails.  This year alone, the U.S. government will spend roughly $740 billion on its military, though the real figure when you add in all costs exceeds a trillion dollars.  With so much “invested,” as the Pentagon likes to say, in that military, there’s a strong tendency to see it as the solution to the most stubborn problems.  All problems become nails either to be whacked down or pulled out and discarded depending upon which end of the military hammer our rulers choose to employ.

Americans are used to “our” military being used to hammer home American exceptionalism in faraway, foreign places.  But what about when that hammer is deployed to Main Street USA to hammer peaceful protesters into line?  Or, alternatively, to pull them out of the streets and into the jails?  That hammer doesn’t seem to be such a solid “investment,” does it?

It appears the Trump administration has now backed away from plans to commit regular federal troops to “dominate” protesters.  Opposition from retired generals and admirals like James Mattis, John Allen, and Mike Mullen may have helped.  But if and when protests become more widespread or embarrassing to Trump personally, don’t be surprised if the “bunker boy” calls again for troops to be committed, the U.S. Constitution be damned.  After all, he’s described peaceful protesters led by clergy in Washington, D.C. as “terrorists,” and we should all know by now what a “war on terror” looks like, led by generals like that same James Mattis.

Remember when a militarized hammer was a symbol of that Evil Empire, the Soviet Union?  Remember when violent suppression of peaceful protests was something “they” did, you know, the bad commies, in places like Hungary and Czechoslovakia?  As Paul Krugman has noted, today much of the GOP would cheer on Trump if he launched a military coup in the name of “law and order.”

Echoing this, one white American from Michigan told a reporter he “applauds” Trump’s crackdown and “fully supports” Trump if he orders federal troops into American streets to suppress protests.  In the same story from the Guardian, reporting from the white suburb of St Clair Shores, many residents “share the president’s world view that the police and national guard are heroically battling violent agitators, not brutally suppressing largely peaceful protesters.”

The story noted that “Several men who were part of a construction crew called the protests ‘stupid’ and a ‘waste of time and energy.’  Some even suggested Floyd was at fault for his death because he allegedly committed a crime, despite general worldwide outrage at the brutal manner of his killing and the criminal charges it has now brought against the officers involved.”

So, you have Americans who support the brutal murder of George Floyd, with the police acting as judge, jury, and executioner, simply because Floyd allegedly passed a counterfeit bill.  They even support a military crackdown, again in the name of “law and order.”

Who’s the evil empire now, America?

The U.S. Military, the Founders, and Original Intent

war weary
It’s too easy to speak of war in the abstract … the Founders knew better

W.J. Astore

In America, you sometimes hear talk of “original intent” (or strict constructionism) from conservatives, usually applied to the courts and especially to the Supreme Court.  The idea is to neuter “activist” judges by pressuring them to stick to the letter of the U.S. Constitution as written in the 1780s (as if that document has never required amendment), thereby upholding the original intent of the Founders (as if those men were gods who never got anything wrong).

Why is it, though, that original intent is never applied to America’s vast military establishment?  Because when you read the Founders, you learn they were strongly against large standing armies and vehemently criticized the anti-democratic nature and sheer wastefulness of wars.

James Madison was especially eloquent speaking against war.  In 1793, he wrote that: “In no part of the constitution is more wisdom found than in the clause which confines the question of war or peace to the legislature, and not to the executive department. War is in fact the true nurse of executive aggrandizement.”

Madison knew presidents could readily enlarge their powers by waging constant wars, just as Britain’s kings had.  So he and his fellow Founders did their best to subjugate the army to Congress through various laws, such as funding it for only two years while also having each member of the House stand for reelection every two years.  An unpopular and wasteful war, Madison figured, wouldn’t be funded after two years, forcing a president to put an end to it.  Voters, meanwhile, would act to get rid of Members of Congress who foolishly or selfishly supported such a war.

Madison, of course, lived in a time when America’s vast and powerful military-industrial complex didn’t exist.  That Complex is now a fourth branch of government that the Founders didn’t anticipate.  But what if the Complex either didn’t exist or could be reined in, and what if “original intent” could be applied to America’s Department of Defense?  We’d see a few things change:

1. No large standing army, thereby reducing American foolhardiness in places like Iraq, Afghanistan, and elsewhere.
2. Only defensive wars.  An end to the Iraq and Afghan wars would be a start.
3. Gun ownership would be contingent on the willingness and ability to serve in the militia (National Guard or Reserves).
4. No wars, no “overseas contingency operations,” without a formal Congressional declaration.
5. Firm Congressional oversight of all military operations.  An end to secrecy — the military must be accountable to the people.

The president, of course, serves as commander-in-chief.  But here the intent of the Founders was to firmly subordinate the military to civilian control.  It was not to empower the president as a quasi-generalissimo.  So the days of presidents making near-unilateral decisions to commit American troops abroad must end, as it is totally contrary to the original intent of the U.S. Constitution.

Of course, I’m not arguing that we slavishly follow the Founders — in that case, we’d still have slavery, and in more ways than one.  The point is that if we’re going to look to the Founders and celebrate their wisdom, let’s not do that merely for narrow partisan political gain.  Let’s do it in a way that truly nourishes and enlivens democracy.  Ending our permanent state of debilitating and destructive militarism and warfare would be a fine start.  Madison, I think, would approve.

Note: to read more on this subject, see Greg Foster’s “Why the Founding Fathers Would Object to Today’s Military” (2013) at https://www.defenseone.com/ideas/2013/07/why-founding-fathers-would-object-todays-military/66668.  As Foster notes, the Founders were not anti-military; they were anti-militarism.  And, having experienced the pains of war, they took pains to prevent future ones.  Let’s emulate them here.

What Will “Freedom” Mean in a Trump Administration?

Big Brother
Remember the 1st and 4th Amendments?

W.J. Astore

What will freedom mean in a Trump administration?  During his campaign, why did Trump harp on the Second Amendment but none of the others?  How did our country come to define freedom as buying lots of guns and ammo without restrictions, or flying objectionable symbols such as Confederate battle flags?  What kind of “freedom” is the freedom to spend lots of money on guns? What kind of “speech” is flying a symbol that is highly offensive and hateful to many Americans?

The “freedom” to fly a flag associated with slavery, rebellion, oppression, and racism doesn’t seem to me to be much of a “freedom.” The same is true of the “freedom” to spend lots of money on guns and ammo. What is so “free” about that?

The “freedom” of the average Joe has come to be defined as the right to carry guns or the right to fly racist flags. But what about the right to a living wage, the right to privacy, the right to good health care, the right to a decent education, the right to clean water and fresh air, the right to have a real say in the political process?  These rights are being increasingly abridged, yet so many Americans see no infringement to their “freedom” here.

Surely one of the great triumphs of the power elite has been the redefinition of “freedom” such that the freedoms that are allowed, like buying lots of guns, make no impact on the elite’s ability to rule and to exploit.

A couple of sobering facts.  During his campaign, Trump railed against the press, suggesting that he’d work to change libel laws so that he could sue and punish the press for writing critical stories about him.  Also, Trump has suggested some kind of national registry for Muslims, and members of his staff have suggested internment camps for unreliable elements, citing the internment of Japanese-Americans during World War II as a laudable precedent.

What the hell?

As the Trump administration takes shape, apparently with men like Jeff Sessions as Attorney General and retired General Michael Flynn as National Security Advisor, Americans would do well to read and re-read the Bill of Rights, all of them, not just rights like the Second Amendment.  For what good is it to be able to buy lots of guns if you need to worry about your religion, your right to privacy, your ability to organize and protest, and your right to a press that is untrammeled by the government?

Alarmist?  Consider the following facts about retired General Flynn, according to FP: Foreign Policy:

Earlier this year, Flynn Tweeted that “fear of Muslims is RATIONAL,” and just last month offered his support for a prominent Alt-Right writer and activist. In his book Field of Fight released earlier this year, Flynn wrote, “I’m totally convinced that, without a proper sense of urgency, we will be eventually defeated, dominated, and very likely destroyed” by Islamic militants, FP’s Paul McLeary and Dan De Luce noted in a story about the book.

Sitting in your walled bunker, surrounded by guns as well as the stars and bars and “Don’t Tread on Me” flags, is not much of a “freedom” if the government is illegally watching you, or getting ready to intern you in a camp because you worship God in the name of Allah instead of Yahweh or Jehovah, or getting ready to deport you because not all of your papers are perfectly in order.

First they came for undocumented immigrants, and I did not speak out, for I was not undocumented.  Then they came for the Muslims, and I did not speak out, for I was not Muslim.  Then they came for the protesters, and I did not speak out, for I was not a protester.  Then they came for me–and there was no one left to speak for me.

Last Night, Donald Trump Disqualified Himself

Donald Trump
Hail the Leader (Trump at FreedomFest, July 11, 2015 (AP Photo/John Locher)

W.J. Astore

As a retired military officer, I watched last night’s Republican debate from Detroit (transcript here) with a special focus on which candidate is qualified to lead the military as commander-in-chief.  I knew, of course, that Donald Trump had promised in the past to use torture against America’s enemies (last night, he called them “animals”), that he would pursue and kill not only terrorists but their families (apparently because the families always know, according to Trump, what their father/brother/sister is up to, as if there are no secrets in families).  Trump, in short, is an Old Testament “eye for an eye” man: if they behead us, we’ll torture and kill them, end of story.

But Trump was put on the spot when he was asked what he would do if the U.S. military failed to carry out his unlawful orders.  Instead of saying he wouldn’t issue unlawful orders, that he would support and defend the U.S. Constitution, which as president would be his sworn duty to uphold, Trump boasted that the military would follow his orders no matter what.

America: those are the words of a dictator.

Here’s what was said:

BAIER: Mr. Trump, just yesterday, almost 100 foreign policy experts signed on to an open letter refusing to support you, saying your embracing expansive use of torture is inexcusable. General Michael Hayden, former CIA director, NSA director, and other experts have said that when you asked the U.S. military to carry out some of your campaign promises, specifically targeting terrorists’ families, and also the use of interrogation methods more extreme than waterboarding, the military will refuse because they’ve been trained to turn down and refuse illegal orders.

So what would you do, as commander-in-chief, if the U.S. military refused to carry out those orders?

TRUMP: They won’t refuse. They’re not going to refuse me. Believe me.

BAIER: But they’re illegal.

TRUMP: Let me just tell you, you look at the Middle East. They’re chopping off heads. They’re chopping off the heads of Christians and anybody else that happens to be in the way. They’re drowning people in steel cages. And he — now we’re talking about waterboarding.

This really started with Ted, a question was asked of Ted last — two debates ago about waterboarding. And Ted was, you know, having a hard time with that question, to be totally honest with you. They then came to me, what do you think of waterboarding? I said it’s fine. And if we want to go stronger, I’d go stronger, too, because, frankly…

(APPLAUSE)

… that’s the way I feel. Can you imagine — can you imagine these people, these animals over in the Middle East, that chop off heads, sitting around talking and seeing that we’re having a hard problem with waterboarding? We should go for waterboarding and we should go tougher than waterboarding. That’s my opinion.

BAIER: But targeting terrorists’ families?

(APPLAUSE)

TRUMP: And — and — and — I’m a leader. I’m a leader. I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it. That’s what leadership is all about.

Our military does not follow blindly orders issued by “The Leader.” Our military swears an oath to the Constitution.  We swear to uphold the law of the land.  We don’t swear allegiance to a single man (or woman) as president.

Trump’s performance last night reminded me of Richard Nixon’s infamous answer to David Frost about Watergate: “When the president does it, that means it’s not illegal.” No, no, a thousand times no.  The president has to obey the law of the land, just as everyone else has to.  No person is above the law, an American ideal that Trump seems neither to understand nor to embrace.

And that disqualifies him to be president and commander-in-chief.

The Military Officer’s Oath

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W.J. Astore

The U.S. military exists to win America’s wars.  But even more fundamentally, the military exists to support and defend the U.S. Constitution, i.e. America’s laws.  America is supposed to be a nation of laws.  The military, as a defender of the Constitution, must uphold those laws to the best of its ability.

Here is the key sentence I recited as a regular officer in the U.S. military: “I do solemnly swear to support and defend the Constitution of the United States against all enemies, foreign and domestic.”

The oath says nothing directly about obeying the president as commander-in-chief.  It says nothing directly about the need to “win” wars.  Its primary meaning is clear.  Uphold the Constitution.  Defend it.

Indeed, it would be better to lose a war than to subvert the Constitution.  Wars come and go, but the Constitution and our laws must be permanent.  They are the nation’s bedrock.

As Thomas Paine wrote in Common Sense in 1776, in a newly forged America, the law was to be made “king” — the law was to be our monarch and our guiding light.

It all sounds idealistic, but that’s where the rubber meets the road, and too many of our most senior officers don’t recognize this.  They are far more concerned with enlarging the Navy, or the Army, or the Marines, or the Air Force, as well as protecting their service’s (and the military’s) reputation.  Hence the misleading “progress” reports in Iraq and elsewhere.  Better to lie (or to be economical with the truth), they think, than to be honest and to “hurt” the services.

So, in lying to protect their service branch, they harm the Constitution — indeed, push the lie far enough and you end up betraying the Constitution you’ve sworn to uphold.

It takes men and women of courage and integrity to speak the truth when those truths are uncomfortable.  We don’t have enough of such officers today.  As a first step in reinvigorating our republic, officers need to look to the oath and meet its demands on their integrity and their courage – most notably their moral courage.