14th Amendment

“Originalism” And “Textualism”: The Battle For The Future Of Constitutional Government Against The Late 18th Century!

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The battle over how to interpret the Constitution in the 21st century is in full swing, with the extremist right wing Supreme Court majority emphasizing “Originalism” and “Textualism” as their basic ideological doctrine!

They want America to be judged by late 18th century interpretations, which means they challenge Alexander Hamilton and his “broad” interpretation of the Constitution.

Hamilton emphasized a broad interpretation, not a strict interpretation, of the Constitution, saying it needed to be a living document.

Even Thomas Jefferson, the original ideological opponent of Hamilton, came to recognize that Hamilton was correct, and so backed away from his original strict intepretation to support the Louisiana Purchase deal with France in 1803, doubling US territory and insuring that no other foreign power would gain further control in North America.

If one is to judge the Constitution by “originalism” and “textualism”, then America should not have had the multitude of changes that has made America a democracy, including among others:

Creation of Cabinet Agencies
End of African American Slavery by Amendment 13
Civil Rights Laws And Amendments (14, 15)
Women’s Suffrage (19)
Federal Government Agencies and Regulations
Federal Income Tax Amendment (16)
Democratizing of the US Senate by Amendment 17
Limitation of Presidential Terms by Amendment 22

This battle is over the future as compared to the limitations of the past, and America has come too far to allow the right wing interpretation to dictate the future of the nation!

Enforcing 14th Amendment, Section 3, Will Eliminate Threat Of Donald Trump Being President Again!

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A simple solution to the threat of Donald Trump running for President again is to enforce the 14th Amendment, Section 3, as passed and added to the Constitution after the Civil War and during the Reconstruction Era.

Congressman Steve Cohen of Tennessee, the Chairman of the Judiciary Subcomittee on the Consitution, Civil Rights, and Civil Liberties has proposed a measure to enforce this section of the 14th Amendment, and Senator Amy Klobucar, Chair of the Rules Committee, has done so in the Senate.

Section 3 of the 14th Amendment reads as follows:

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

The US Attorney General could move to enforce this section of the Constitution before a three judge panel. Such individual would be disqualified from holding public office, once clear and convincing evidence that an office holder or former office holder engaged in insurrection or rebellion. Such individuals would also forfeit all benefits derived from their service in federal office, and would be prohibited from obtaining contracts with the federal government. And a former President would not be considered such for the purpose of receiving benefits under the Act.

Additionally, members of Congress who were involved in inciting and promoting what happened on January 6, 2021, would face the same penalties and lose their rights to serve or gain benefits from their past service!

Mike Pence, A Dozen Republican Senators, And 140 House Members Are Promoting Treason And Sedition!

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We are about to witness treason and sedition being promoted by Vice President Mike Pence, along with a dozen or more Republican Senators, and at least 140 House Republicans.

What is normally and traditionally a ceremonial counting of the Electoral Vote in a joint session of Congress, presided over by the sitting Vice President, is now becoming a mockery, as Donald Trump contested the result and has lost in every court setting, including twice in the Supreme Court with a Republican majority, including three Trump appointees!

Mike Pence is going along with a challenge in order to promote his own future Presidential candidacy, in the hope that Donald Trump will not run in 2024, and will support him, and the same is the reasoning why Senator Josh Hawley of Missouri and Senator Ted Cruz of Texas are leading a fight that undermines the Constitution and rule of law.

The 14th Amendment, Section 3, makes clear that what these Republicans in Congress and the Vice President are doing is promoting treason and sedition. By all rights, they should all face arrest, trial, and incarceration, as they are provoking dangerous and reckless behavior by Trump and his supporters, leading to likely confrontations, bloodshed, and violence on Wednesday, January 6, and even more seriously, on Inauguration Day, January 20, 2021, when Joe Biden and Kamala Harris are inaugurated President and Vice President.

America is not a banana Republic, but Donald Trump has no issue in burning down the Republican Party, and the future of public safety in the middle of a pandemic worsened by his own lack of concern for human life!

Mike Pence’s job on Wednesday is not to promote his own advancement, but rather fulfill his constitutional duty followed by every Vice President, those on the winning side of an election, but also those on the losing side, as for instance, Richard Nixon in 1961 and Al Gore in 2001.

History will condemn these law breaking Republicans and Mike Pence for the disgraceful actions they are taking, but at the end, Joe Biden and Kamala Harris will be in charge of the government in 17 days!

The Attack On Birthright Citizenship And The 14th Amendment By Donald Trump, Mike Pence, And Lindsey Graham

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Donald Trump has opened up a new area of attack on constitutional law, claiming that he can, by executive order, end birthright citizenship for infants born of undocumented immigrants, bypassing the 14th Amendment’s guarantee of citizenship for all born in the United States in 1868, exactly 150 years ago.

Speaker of the House Paul Ryan, for once, is correct when he says that is not possible legally, as executive orders cannot end what is in the Constitution or its amendments.

It is also a fact, despite some, like Vice President Mike Pence, and South Carolina Senator Lindsey Graham who claim otherwise, that legislation by Congress also cannot end what is in the Constitution or the amendments.

The only way to change what is in the Constitution or its 27 amendments is by another constitutional amendment, as occurred when the 18th Amendment banning liquor (Prohibition) was passed in 1919 and fourteen years later, with much discontent, the amendment was repealed by the 21st Amendment, the only way Prohibition would ever have ended.

If it was that easy to change what is in the Constitution or its amendments, then there would be a move to end the Electoral College, but that will never happen legally unless an amendment is passed by two thirds of each of the two houses of Congress, and three fourths of the states’ legislatures (38 out of 50).

The idea that Lindsey Graham is suddenly a great friend of Donald Trump, after the way that Trump trashed his good friend, the late Arizona Senator John McCain, is infuriating. One can be certain that McCain would fight this idea that Trump has suggested that he has the authority, all on his own, to destroy the language of the 14th Amendment. It is certain that McCain would be angry at Graham for his changed behavior, and it makes one wonder what is going on in Graham’s disturbed mind that he does not know the basic reality of constitutional law.

Of course, those on the Right would say the Supreme Court could justify what Trump wishes to do, and in theory, a lawless Court, which has already made decisions clearly and purely political in the last ten years, could by a 5-4 vote, including compromised Justice Brett Kavanaugh, do such. But it is hard to imagine that Chief Justice John Roberts would wish to be part of a majority that would undermine his reputation and that of his Court in the long run of history.

If such a disgrace were to happen, the Supreme Court would lose its credibility for all time, and would be helping Donald Trump to destroy our democracy, and impose an authoritarian dictatorship on our nation.

There is absolutely no moral or ethical way that this could happen, and be allowed to stand!

And also, the thought that an infant would not have the opportunity for a good life in America, simply because his or her parents were not documented at the time of his or her birth, is to deny the whole point of the Statue of Liberty and Ellis Island, and the reality that tens of millions of immigrants, and not all legal, with many “slipping in” through our borders and not realized what they had done, contributed to our nation’s greatness.

Think of the refugees from Cuba and Vietnam who came to a nation welcoming them from their personal tragedies in the past half century, and think of the refugees who came from all over the world over two centuries to a nation that gave them a chance to succeed and prosper, and benefit all of the American people!

US V Nixon; Clinton V Jones; And Now US V Trump?

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In 1974, the Supreme Court, by 8-0 vote, told Richard Nixon that he had to hand over the Watergate tapes to the Special Prosecutor, which led to Nixon’s resignation a few weeks later.

In 1997. the Supreme Court, by 9-0 vote, told Bill Clinton that he could not avoid trial on sexual harassment charges brought by Paula Jones, simply because of his Presidential duties, which led to the impeachment and trial in 1998-1999.

The point of these two cases, US V Nixon, and Clinton V Jones, is that the President is not in total charge, and can be held to account by the Court system of America.

Donald Trump is about to get the same reality check, as the case involving the ban of all immigration from seven Muslim nations goes to the 9th Circuit Court, after a District Court Judge showed courage in stopping the enforcement of the President’s executive order. This is seen by most legal experts as unconstitutional, as a violation of the First and 14th Amendments, and being used against nations that have sent no terrorists to America, while other nations that have, are not included in the ban.

Donald Trump seems to think he is above the law, and his authoritarian, autocratic and tyrannical behavior must be nipped in the bud right now!

Urgency For Republican Party And Entire Nation To Condemn Donald Trump And Prevent His Presidential Nomination In 2016!

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Racist, nativist, bigoted Fascist demagogue Donald Trump has just gone beyond the pale with his call for the banning of all Muslims to the United States, including any Muslim citizens who are traveling overseas as tourists or on business.

This is against the 1st, 5th, and 14th Amendments to the Constitution, and reminds us of the Chinese Exclusion Act of 1882 and the Japanese American internment in prison camps from 1942-1945!

We cannot sit idly by as this dangerous man is stirring up the extremist groups in America, and even his rhetoric is bound to cause violence against decent, law abiding Muslims in America, which would mean Trump has blood on his hands.

The Republican Party must declare that under no circumstances will they allow Trump to be their nominee, or else they will lose their status as a serious political party, as the party of Lincoln, TR, and Ike, cannot sit idly by as Trump totally destroys their historical image!

Anti Trump rallies must be organized around the nation, and make it clear that anyone who supports Trump on this matter shall be repudiated and isolated by family and colleagues as unAmerican!

The Complete Reversal Of American Politics: Republicans In The South, Democrats In Large Populated Northeastern, Midwestern And Western States!

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The defeat of Louisiana Senator Mary Landrieu on Saturday marks the complete reversal of American politics from the years 1877 to the present.

After the Reconstruction of the South ended, with Union Army troops leaving, twelve years after the Civil War, the South became an area totally dominated by Democrats, resentful of the Republican Party, Abraham Lincoln, the Civil War defeat, and the passage of Amendments 13, 14, and 15, ending slavery, making blacks citizens, and giving the men the right to vote.

The South went into massive resistance, creating Jim Crow segregation to replace slavery, and until the election of Herbert Hoover in 1928 and Dwight D. Eisenhower in 1952, it was always a solid Democratic South with no black voting, due to discriminatory state laws that were ignored by generations of the federal government. Hoover won much of the South due to his Catholic opponent, Alfred E. Smith, in 1928, and Eisenhower won over Adlai Stevenson twice in the 1950s due to his personal popularity and World War II D Day reputation.

But only when the Civil Rights Movement was in full swing, starting in the 1950s, and reaching its peak with the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 under Lyndon B. Johnson, did we see the beginning of a mass exodus of office holders and ordinary white population, to the Republican Party, starting with Senator Strom Thurmond of South Carolina in 1964, switching parties to back Republican Senator Barry Goldwater against President Lyndon B. Johnson.

As the Democrats started to lose power in the South, the nomination of Southern governors Jimmy Carter in 1976 and Bill Clinton in 1992 and 1996, and the rise of “New South” Governors like them and others in the Democratic Party, slowed up the switch to the GOP.

But the election of Barack Obama, considered anathema in the South, has now led to the entire wiping out of Southern Democrats in Congress, except for black and Jewish members of the House in districts gerrymandered that give the Republicans more total Congressional and state legislative seats in the South. Only a few other white non jewish members of the House remain, and they are endangered in the political climate of the South in 2014.

Only Virginia has both its Senators and Governor (Mark Warner, Tim Kaine, Terry McAuliffe) as Democrats, and only Florida has one other Democratic Senator, Bill Nelson at this point, as we enter 2015.

And both Virginia and Florida have Republican dominated legislatures, as well as the other states that made up the Confederate States of America.

And, of course, Florida includes the heavily Northern South Florida, and Virginia has the heavily Northern North Virginia, influenced by being part of the DC suburbs, and otherwise, these three Senators and one Governor would not be in public office.

So the complete reversal of a century and a half ago has occurred, and is unlikely to be changed for a generation or more, at the least.

This means that the South will remain as it is now for a generation or more, and that the issue of race nearly a century and a half ago, again stands out as the key difference that separates that section from the rest of the country.

Meanwhile, the heavily populated areas of the nation in the Northeast, Midwest and West are more Democratic than ever, and are unlikely to change either over time, creating political deadlock long term over the future, stifling change and creating constant political conflict and deadlock!

Conservative Right Wing Attack On The Constitution: The Threat Of Another Constitutional Convention Wiping Out Constitutional Amendments!

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The Founding Fathers gave us a Constitution, admitting in the process that there would always be room for improvements, so made clear that amendments were appropriate over time.

So we have had 27 Amendments, including the first ten that make up the Bill of Rights.

When one looks at the amendments, particularly those that came after the Bill of Rights, one realizes that the vast majority of them were “progressive” in tone, designed to expand democracy in America, or else, amendments dealing with the office of the Presidency.

So the “progressive” amendments included the 13th (ending slavery and involuntary servitude); the 14th (promoting due process and equal protection and making African Americans citizens); the 15th (guaranteeing the right to vote for African Americans and others which had been denied that right); the 16th (providing for a federal income tax to raise revenue to deal with mounting social and economic issues); the 17th (granting the people the right to elect their two United States Senators by popular vote); the 19th (guaranteeing women the right to vote); the 23rd (guaranteeing residents of Washington, DC the right to vote); the 24th (preventing a poll tax for voting); and the 26th (guaranteeing young people 18-21 the right to vote).

So nine of the seventeen amendments after the first ten of the Bill of Rights promote progressive change, while the 12th, 20th, 22nd and 25th deal with the office of the Presidency.

The only amendment that was ever passed to limit the freedom of Americans was the 18th (prohibition of liquor), but later repealed by the 21st Amendment.

Now we have the real threat by right wing conservatives, including the Tea Party Movement, who want a new Constitutional Convention to wipe out these “progressive” amendments!

They do not like voting rights for African Americans, other minorities, women, residents of Washington DC (mostly African Americans) and young people; and they are unhappy that African Americans are considered equal under the law, and if they had the ability to do so, they would love to re-enslave poor people, which by corporate power is occurring in an informal way for many minorities, as well as white lower class people struggling every day to survive!

And they wish they could restore the US Senate elections to the corrupt state legislatures, taking away the popular vote. Finally, they hate the federal income tax, even though many of them avoid substantial taxation by having investments, rather than working for a living like most of us do. So they would prefer a sales tax, which is regressive, and would hurt the middle class and the poor much more than the wealthy elite!

But that is exactly the extremist right wing intention—to restore the “good old days” when they were in charge, and everyone had to kowtow to them!

We must not allow such a threat to develop, so the battle for progressivism is never ending, as a result!

Republicans, Race, And The Confederate South: Successors To Old Southern Democrats!

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The Republican Party, the party of Abraham Lincoln; the Emancipation Proclamation; the 13th, 14th, 15th Amendments; large scale support for civil rights in the 1960s; and having three progressive Southerners as President (Lyndon B. Johnson, Jimmy Carter, Bill Clinton); and many New South Governors (including Jimmy Carter, Reuben Askew, Dale Bumpers, Bill Clinton), has now fully adapted itself to the old Confederate South, the old Southern segregationist Democrats, the South that wants the “good old days” of slavery and discrimination that existed before the Civil War and continued for another century until the civil rights movement transformed the South, or seemed to do so.

The fact is that the old Confederate South still exists, and the Republicans have become the successor to the old racist, Southern Democrats. Many of the members of Congress from the South and the Border States have no problem spewing racist statements, and backing racists, including, just recently: Cliven Bundy, Donald Sterling, Paula Deen, George Zimmerman, Ted Nugent–all of whom identify with the Republican Party.

At the same time, the majority of the Supreme Court, appointed by Republicans, have weakened the Voting Rights Act enforcement and have now made affirmative action something that will be ended, rather than reformed; and the use of abusive language toward the first African American President has been done with absolutely no sign of any respect or deference for a person in the Presidency, who at least has the right to expect that. Some would say that every President suffers abuse, but none since Abraham Lincoln has faced as much hate and personal threats as Barack Obama.

Additionally, the Republican Party has done everything it can to limit the right to vote to African Americans and other minorities as the only way for them to keep power in the South, but also in the heartland, as well!

It is indeed sad that the GOP has become what conservatives love to condemn the old Southern Democrats for doing, but indeed have copied–a party of support of racism and inequality of treatment!

Federal District Court Judges And Same Sex Marriage Bans Collapsing!

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The move toward same sex marriage churns on, with federal judges having utilized the 14th Amendment in four “Red” states in the past two months now to end the discrimination against gays marrying.

So on Valentine’s Day, it now looks more evident than ever that a national Supreme Court decision is in the offing, with Associate Justice Anthony Kennedy, who wrote the majority decision in Lawrence V. Texas in 2003 igniting the gay civil rights movement, likely to be the fifth and decisive vote in any case that goes to the high Court!

Who would ever have thought that Utah, Oklahoma, Kentucky, and now, newly turned “Blue” Virginia (the state of the Loving V. Virginia interracial marriage case in 1967), would see such rapid action to defy the bigots and the haters?

The federal courts have been the herald of the future in so much of modern history, as with Brown V. Board of Education on racial integration, and Roe V. Wade on abortion rights, and Lawrence V. Texas on gay rights, and the courage of federal district judges across the nation to push the Supreme Court toward a final determination of same sex marriage is an indication that often we have to leave it to appointed judges to lead us to our better side of human nature, the ending of discrimination and injustice!

Sadly, we see right wing evangelicals, Catholics, and Mormons fighting a rear guard action, which only makes one realize the evils of these organized groups that have in the past been on the wrong side of many moral and ethical issues, overlooking slavery, segregation, women’s rights, and now gay rights. This is a losing battle long term, and these groups fighting against progress and human rights will pay the price in loss of membership by their willingness to fight a battle that is already lost!