Things Aren’t Normal

ConstitutionWhen the U.S. Supreme Court, in a clearly partisan move, anointed George W. Bush as president, I was mad, but I recall saying, “Well, at least we don’t live in a country where this will lead to rioting in the streets.” A couple of years later, I found myself saying, “We should have rioted in the streets.”

I still think the damage Junior Bush and his apocalyptic army did to this country is incalculable, but it pales by comparison to the current situation. The con man currently occupying the White House is completely unqualified for the job and presents a threat not just to the kind of government we need and should have, but to the country as it has always existed. The U.S. has never been the exceptional place we were taught about in school — our flaws are legion — but it’s been considerably better than this.

This is a constitutional crisis of massive proportions, because there is a real possibility that this overgrown toddler will put in place authoritarian policies that undermine all our shared principles and the rule of law. Or worse. He is like the main character in Jerome Bixby’s “It’s a Good Life,” except that he’s in his 70s.

But all too many of our institutions are pretending that he’s really the president, and giving him the benefit of that authority. There are lots of reasons for that, the most reasonable of which is that we try to interpret our constitution and laws in a way that transcends the people in public office.

I’m a retired lawyer. Most of my life, I have held to the idea that the rule of law and the Constitution will keep our country on an even keel. I believe strongly in the freedom of speech and press (and from the establishment of religion) guaranteed in the First Amendment, and have in the past agreed with the ACLU when they defended hateful people in free speech cases. But I’m beginning to rethink my position on all this.

Our system does not have a fast response button for the times when things really go off the rails, and this is one of those times. Impeachment and removal from office is a slow process (as well one impeded by partisan nonsense in this situation). We have no means to set aside a flawed election, or even to take quick steps to investigate one that appears to have had some serious shortcomings (at a minimum).

In short, we have no official legal means to stop something that is dangerous to our well-being as a country.

We do, however, have some legal approaches that can be applied by our courts if they want to ensure that the country is not destroyed by our toddler in chief.

Dahlia Lithwick wrote an wonderful piece on this subject and also pointed to an excellent law review article by law professors Sandy Levinson of my alma mater, the University of Texas, and Mark Graber of the University of Maryland. (The link is to the abstract, but you can download it on that page as a free pdf if you’re inclined to do some light legal reading.)

In arguing that the current not-normal state of affairs requires courts and others to treat Trump differently from other presidents, Levinson and Graber maintain that the “that the Article II [of the U.S. Constitution] powers of a president manifestly unfit for office are different from the Article II powers of a president who has the character and capabilities appropriate for exercising those powers.” To answer the scholars who have said all presidents must be given the same authority, the authors argue that those who have written on the subject before never “considered the possibility that a bigoted, uninformed, serial liar would assume the powers of the oval office.”

They point to Brown v. Board of Education and New York Times v. Sullivan, two significant decisions by the U.S. Supreme Court under Chief Justice Earl Warren that took into account the racist abuse of law against African Americans in making rulings on school segregation and the right of public figures to sue for libel. Those of you interested in the legal theory can read the article to understand the details, but the overall point is that even the Supreme Court is not constrained to consider reality, especially in a time of national crisis.

Lithwick also takes on the brouhaha over Michelle Wolf’s program at the White House Correspondents Dinner, and makes it clear that the press needs to stop pretending that this is a normal administration and get out there and fight.

Things aren’t normal. Pretending that they are will only make things worse. As Levinson and Graber say, “The flying saucers have landed.”

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Things Aren’t Normal — 12 Comments

  1. I keep hoping that politicians, especially the most egregiously self-serving ones, will finally realize that their careers will not be enhanced by letting this wannabe Putin act like he’s Putin.

    I hope our Constitution will survive this mass of ass-clowns, but it’s getting a real workout.

  2. We’ve survived more than one year. Home stretch now, to November. The first Tuesday — be there. I’m planning to take the day off and drive people to the polls. We can, please God, hang on for six more months.

  3. If we flip both houses of congress, that will put a little restraint on the administration. Vote in November and urge all your friends to do the same.

    • I always vote. I even vote in off-year elections and bond elections. And here in California, where we have ballot initiatives, I spend a good bit of time figuring out how I’m going to vote.

      I wish I thought voting was enough to fix the mess we’re in, but flipping both houses and getting rid of some of the nuts on the state level will be a good start.

  4. In France, from where I returned yesterday, the university students and the unions are out in the streets. Particularly were they out on May 1st, May Day.

    But then, the French are far better educated, at any age, than we are, in every way. Right this very minute, in California, one of our host’s grand-daughters, age 11, is being taught by her teacher in American History that Vermont was one of the thirteen colonies that rebelled against King George. This is a very expensive private school; the teachers all have graduate degrees.

    Until we actually do something about our media, our so-called entertainment and education, and government by the wealthiest of the obscenely wealthy oligarchy, nothing will change here, mid-terms or not. Dems and midterms and women in offices won’t be eradicating our nation’s founding principles of white supremacy, every (white, male) individual’s right to violence, anti-intellectualism, exceptionalism and hatred of centralized government.

    BTW every impeachment has been partisan, very partisan, and ruled by money corruption. The only one that didn’t win out with money was Nixon’s, who resigned first — which is why he resigned. There weren’t enough of the money brokers who wanted him to remain in office. The only reason Andrew Johnson wasn’t convicted in his impeachement process was bribery on a scale so massive that just reading the sources makes one’s head hurt. He dodged impeachment by a single vote, that was finally bought by a squeaker before the tally. Later, like Clinton, he was pardoned. And so was Nixon, btw.

    Even if / when (which seems highly unlikely at this point) dumberest is impeached, things will not change. He’ll still be in office. He won’t be convicted of anything. And if he were, Pence is far more acceptable to the crony-donor whacko Rethugs, to jail women who terminate pregnancy, talk back to their spouses, use birth control, etc.

    • That’s why I’m not banking on impeachment. Or even elections, though they can help us get back to something approximating sanity.
      What I’m in favor of is getting rid of the pretense that this situation is any way normal.

      (And as an aside: Back when I was in elementary school, my social studies teacher taught us that Nanking was the capital of China. That was what the book said, because the book was published in 1935. I’m old, but this was considerably after 1935. My mother was appalled, and, in fact, soon thereafter transferred me to another school district where the social studies teachers weren’t PE teachers dragooned into teaching something else.)

      • In France, unlike the US and the UK, amazon has failed to kill the publishing industry and bookstores. Books (and newspapers and magazines) are sold / available widely everywhere. So many of the stores we passed, looked into, had entire tables dedicated to books about their student “revolution of 1968” — it was being commemorated this spring, and it is a very big national deal.

        Suddenly, today, the NY Times remembers it too:

        https://www.nytimes.com/2018/05/05/world/europe/france-may-1968-revolution.html?

        Back then, the French students provided a model for the rebellions here.

        BTW, currently, still, Paris is on fire with protest and demonstrations of all kinds.

        It had begun to look as though the high school students were going to do this time around here what the university students did — they were not afraid to publicly protest and demonstrate. But here it is — school term for the year is nearly over. These were seniors, who are now thinking of their college days. And things seem to have gotten quiet again, and all we think about is sex scandals and crimes by the WH corruption crony criminals, and all stays the same.

        More and more people are being deported. In the Chesapeake region, for instance, there is no work force for either the crab or oyster season. The plants are empty, not working because the labor force on which they depended are gone.