“Sedition In The Name Of Patriotism”: Cynical Opportunists In League With Sectarian Fanatics
On many occasions during the last few years, as I heard talk of secession and nullification, and of defiance of the courts, and of duly enacted statutes representing slavery and tyranny, and of Higher Laws and a Right to Revolution, and most recently, of allegiance to a foreign government–all more or less countenanced by one of our two major political parties–I’ve thought of a historical parallel, as described in one of my favorite books, George Dangerfield’s The Strange Death of Liberal England.
The period in question was just prior to World War I when a Liberal majority government committed by mandate and party alliance to Home Rule for Ireland was obstructed by a Tory minority in alliance with Ulster Unionists which explicitly and implicitly threatened civil war. Here’s how Dangerfield describes a crucial lurch into sedition, when Tory leader Bonar Law traveled to Belfast to pledge allegiance to Ulster and its political leader, Sir Edward Carson, at a huge rally:
At this historical gathering the sedition being preached by Mr. Bonar Law, who led off with a scholarly appeal to Ulster’s worst fighting instincts, was nearly surpassed by Mr. Walter Long. “If they put Lord Londonderry and Sir Edward Carson in the dock,” roared Mr. Long, “they will have to find one large enough for the whole Unionist Party.” Whereat Mr. Bonar Law and Sir Edward Carson turned toward each other, clasped hands, and maintained this affecting attitude long enough for the whole assembly to realize that they were doing their level best to look like generals on the eve of battle. And then, while everyone stood with bared heads, Sir Edward released Mr. Law, and strode to the front of the speakers’ stand. “Raise you hands,” he shouted. “Repeat after me–never under any circumstances will we submit to Home Rule.” In the centre of the show grounds there was a signalling tower, with a flagstaff ninety feet tall, and while the audience, and the Marquess of Londonderry, and the Protestant Primate, and the Presbyterian Moderator, with obedient thunder intoned those words after Sir Edward, a Union Jack was broken from the flagstaff. It measured forty-eight feet by twenty-five. It was the largest ever woven. Patriotism could do no more.
Sedition in the name of patriotism should sound familiar today. Just over a century ago in England, the seditionists–aptly described by Dangerfield as cynical opportunists in league with sectarian fanatics–won. The country recovered, but was never quite the same. Are we headed in that same direction?
You have to wonder, as does Paul Waldman today at the Plum Line:
The American political system runs according to a whole series of norms, many of which we don’t notice until they’re violated. For instance, the Speaker of the House can invite a foreign leader to address Congress for the sole purpose of criticizing the administration, and he can even do it without letting the White House know in advance. There’s no law against it. But doing so violates a norm not only of simple respect and courtesy, but one that says that the exercise of foreign policy belongs to the administration. Congress can advise, criticize, and legislate to shape it, but if they simply take it upon themselves to make their own foreign policy, they’ve gone too far.
But as has happened so many times before, Republicans seem to have concluded that there is one set of rules and norms that apply in ordinary times, and an entirely different set that applies when Barack Obama is the president. You no longer need to show the president even a modicum of respect. You can tell states to ignore the law. You can sabotage delicate negotiations with a hostile foreign power by communicating directly with that power.
I wonder what they’d say if you asked them whether it would be acceptable for Democrats to treat the next Republican president that way. My guess is that the question wouldn’t even make sense to them. After all, that person would be a Republican. So how could anyone even think of such a thing?
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, March 10, 2015
“Ferguson, Missouri, Is Not An Exception”: The Whole Darn Country Has A Habit Of Racially Stratified “Justice”
By now, it should come as news to no one that Ferguson, Missouri, has a lousy excuse for a police department.
The behavior of many of its officers, as seen in news reports during last year’s protests and rioting over the shooting of Michael Brown, was thuggish, unprofessional, and contemptuous of the people they supposedly serve. Still, it’s welcome news that a new Justice Department report quantifies the department’s failings, vindicating the mostly African-American populace that has complained about them for years.
It lacerates Ferguson for “a pattern or practice of unlawful conduct … that violates the First, Fourth and Fourteenth Amendments … and federal statutory law.” Ferguson police, according to the report, treat the mostly black and largely poor inhabitants of the St. Louis suburb as a municipal money machine. “City and police leadership,” says the report, “pressure officers to write citations independent of any public safety need, and rely on citation productivity to fund the City budget.”
We also learn that Ferguson police are in the habit of harassing and arresting people without any legal basis. One man, for example, was sitting in his car when an officer approached and, without a shred of reason, called him a pedophile and demanded to search the vehicle. When the man declined, citing his Fourth Amendment rights, the officer is said to have pointed a gun to his head and arrested him. He ended up charged with eight counts, including “making a false declaration.”
It seems that when asked for his first name, he gave a shortened version: “Mike” instead of “Michael.” The man lost his job because of that arrest.
That race is at the root of this mistreatment is attested to by statistics. For instance, the report tells us black drivers in Ferguson are more than twice as likely as white ones to be searched during traffic stops even though white drivers are significantly more likely to be found with contraband. It’s also attested to in emails sent by city officials, such as a “joke” about an African-American woman who has an abortion and is later sent a reward check from Crimestoppers.
That the Justice Department released this report at the same time it exonerated Officer Darren Wilson in the Brown shooting seems designed to make a point: That particular Ferguson police officer may not be guilty, but the Ferguson Police Department most certainly is.
Even that condemnation, though, is ultimately too small. To process this report as just an indictment of one small town is to provide an escape hatch for the many people disinclined, through their own lack of moral courage and intellectual honesty, to admit that the whole darn country has a habit of racially stratified “justice.” We miss the point if we treat Ferguson as some bizarre exception.
So let’s close the escape hatch. Ferguson’s statistics are not shocking. To the contrary, they are replicated nationally. And the Kafkaesque experience of “Michael” reflects everyday reality: Last January, a black man named Chris Lollie was arrested in St. Paul, MN for sitting on a public bench in a skyway between buildings, waiting for his children to get out of school. In September, a black man named Levar Jones was wounded by a state trooper in Columbia, SC, who shot him while he was obeying the trooper’s orders. Last Thanksgiving, a black man named Brandon McKean was stopped in Pontiac, MI, for walking with his hands in his pockets in 32-degree weather.
And so on. Black men and women being manhandled, mistreated and misjudged by the “justice” system is the opposite of uncommon. To whatever degree we pretend the biggest issue here is the sins of one small town, we sanction that ongoing injustice and postpone a reckoning long overdue.
Ferguson is not an exception. It’s an example.
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, March 9, 2015
“Slavishly Beholden To A Small, Vocal Wing Of The Party”: Can John Boehner’s Catastrophic Speakership Get Any Worse?
House Speaker John Boehner (R-Ohio) is not very good at his job. Or maybe he just hates the Republican Party. It’s impossible to tell anymore.
On Tuesday, Boehner finally threw in the towel on his foolhardy attempt to block President Obama’s immigration order via a fight over Homeland Security funding. It was a doomed attempt from the start, premised as it was on the belief that Democrats would magically give in to his demands. In the end, Boehner admitted a DHS shutdown was “simply not an option” and accepted the Senate’s bipartisan bill to fully fund DHS.
So what did Boehner accomplish from all this? Aside from placating his caucus’ insatiable right flank for a few months, nothing.
The DHS funding gambit was an exercise in cynicism from the start, and a transparent one at that. Boehner insisted for weeks that blame for a DHS shutdown should lie with Senate Democrats. But polls showed that a significant majority of Americans would have blamed Republicans. Even Fox News didn’t buy it.
By picking the losing fight anyway, Boehner once again painted his party as obstinate and clueless, and himself as slavishly beholden to a small, vocal wing of the party. It could have been worse. Had Boehner really allowed a DHS shutdown to occur — and weeks ago he said he was “certainly” willing to let that happen — it would have been a PR disaster for the party. Terrorism in the Middle East and Europe have dominated headlines for months, and a Homeland Security shutdown would have given Democrats a golden opportunity to assail Republicans for leaving America vulnerable.
Speaking of PR disasters, Tuesday also saw another calamity of Boehner’s creation, when Israeli Prime Minister Netanyahu delivered a divisive speech to Congress blasting the Obama administration’s ongoing nuclear negotiations with Iran. The speech was condemned as a partisan stunt, in large part because Boehner invited Netanyahu without first informing the White House. Many Democrats refused to attend, and Minority Leader Nancy Pelosi (D-Calif.), who did go, came away calling it an “insult to the intelligence of the United States.”
Tuesday was a terrible, horrible, no good, very bad day for Boehner, but it was only the latest dismal chapter in his disastrous speakership.
Since grabbing the Speaker’s gavel, Boehner has been unable to figure out how to get around his party’s right wing. In every battle, Boehner must weigh the demands of an obstreperous cadre that considers “compromise” a four-letter word against a course of rational governance. And when the hardliners’ demands win out, Boehner forges ahead with no game plan to extricate his party from disaster. The fiscal cliff, the debt ceiling standoff, the government shutdown, the DHS fight, and on and on — all are products of Boehner’s floundering political machinations.
At times, Boehner’s stumbles have blown up in epic fashion. On multiple occasions, he canceled votes at the last minute when it became clear he lacked the votes to avoid humiliating revolts from his own caucus. In his race to please the base, he couldn’t even sue Obama properly, as two law firms quit his long-promised litigation over the Affordable Care Act.
Boehner’s bumbling makes sense to a point. In limp fits of self-preservation, he kowtows to the right before making a show of grudgingly dealing with Democrats. This would be perfectly understandable if not for the fact that Boehner keeps harming his own party in the process. The government shutdown torpedoed the GOP’s image. More petulant brinksmanship will only bring more of the same.
And to what end? Either Boehner truly believes he can stare Democrats into submission — and now that he’s formed a pattern of caving in fight after fight, there’s no reason why Dems would ever crack in the future — or he’s doing this all to save his own skin. Either he’s a horrible tactician, or a self-interested leader willing to save himself at his party’s expense.
In other words: Boehner is either terrible at his job, or he hates the GOP.
By: Jon Terbush, The Week, March 9, 2015
“Alabama’s Dangerous Defiance”: A Disturbing Line Of Thinking In The History Of American Federalism
On Tuesday the Supreme Court of Alabama prohibited the state’s probate judges from issuing marriage licenses to same-sex couples. This decision effectively throws down the gauntlet, challenging the federal courts to make earlier federal rulings stick — including last month’s refusal by the United States Supreme Court to stay a federal judge’s decision requiring the state to recognize same-sex marriages. It draws on a disturbing line of thinking in the history of American federalism, one that, were it to gain currency as a model, could compromise our entire system of law.
The court’s position is that under the Constitution, it does not have to follow the rulings of lower federal courts; in its ruling, it promises to “defer only to the holdings of the United States Supreme Court.” (That said, Chief Justice Roy Moore’s public statements have been more equivocal; he told a radio host in Birmingham, Ala., “It would be a very hard decision, because I know there’s nothing in the U.S. Constitution that authorizes the Supreme Court of the United States or any federal court anywhere to misinterpret the word marriage.”)
Such extreme states’ rights positions first appeared during an epic battle between the great chief justice John Marshall and Spencer Roane, a member of the Virginia Court of Appeals. The two were bitter political and ideological enemies in the early years of the republic, and Roane had long railed against the authority of the federal Supreme Court over state courts. He repeatedly declined to implement federal decisions with which he disagreed, and refused to recognize the authority of federal courts to review state court rulings. In the end, however, Marshall prevailed.
And yet extreme states’ rights have been asserted more often in political rhetoric than in judicial proceedings. Even in the period of Southern “massive resistance” to Brown v. Board of Education, the Supreme Court’s 1954 desegregation decision, state supreme courts did not try to interpose their own interpretations of the Equal Protection Clause or issue conflicting injunctions against state officials to block desegregation orders by lower federal courts (though some state legislatures did attempt to block Brown’s implementation).
Since the United States Supreme Court will rule on gay marriage in June, it’s easy to dismiss the Alabama court’s ruling as quixotic. But it raises a real issue: not what state courts can do, but rather what they should do. Because state and federal courts operate on entirely separate tracks, the state court’s position that it need not follow lower federal court rulings is technically correct. Yet if our judicial system is to function smoothly, both court systems must, from time to time, refrain from exercising their legal discretion to ignore the other’s handiwork.
The gay-marriage rulings bring this aspect of the state-federal relationship, called comity, into close focus. Alabama’s probate judges are subject to the jurisdiction of both state and federal courts. If both judicial systems exercise their authority concurrently and independently, issuing conflicting constitutional rulings, the probate judges are caught in a Catch-22. Respecting one court’s order necessarily will involve a failure to respect the other’s.
This isn’t just about state courts bowing to federal authority; federal courts have a number of “abstention” doctrines designed to respect the autonomy of state courts. The most famous, called Younger abstention, provides that federal courts should not intervene in pending state court criminal proceedings — even if a credible allegation of a federal constitutional violation exists.
In turn, state courts will often extend comity to the decisions of the local federal courts. Although state courts are not bound by lower federal court decisions, state officials are required to follow federal court orders (this distinction probably explains, at least in part, the willingness of state courts to voluntarily follow lower federal court precedents).
Gay marriage is exactly the sort of issue on which state courts should — and do — defer to lower federal courts. Five federal appellate courts have recently decided whether the Constitution requires a state government to recognize same-sex marriage: Four said yes; only the Sixth Circuit has held that they need not do so. The state courts and governments within these circuits have all acquiesced (Alabama is in the 11th Circuit, which has not ruled on the issue). In fact, Alabama’s State Supreme Court is the only one in the country to go to war with the local federal courts on the issue.
If State Supreme Courts followed the Alabama Supreme Court’s lead, a system of dual courts simply would not work. The United States Supreme Court, which hears only 80 to 90 cases per year, would not be able to disentangle the legal morass that would result if state courts routinely thumbed their noses at the decisions of their local lower federal courts.
Chief Justice Marshall observed, “If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.” This holds just as true if state courts exercise an identical nullification power over federal court orders.
The Alabama Supreme Court’s action represents an unfortunate departure from the cooperative norm that must prevail between these independent judicial systems. Other state judiciaries would do well not to follow its example.
By: Ronald J. Krotoszynski, Jr, Law Professor at the University of Alabama; Op-Ed Contributor, The New York Times, March 6, 2015
“GOP Lawmakers Are Violating The Logan Act”: Playing With Fire; Senate GOP Tries To Sabotage Nuclear Talks
In a practical sense, when congressional Republicans invited Israeli Prime Minister Benjamin Netanyahu to deliver a joint-session address, it was part of a larger sabotage campaign. GOP lawmakers, without so much as a hint of embarrassment, are openly trying to derail international diplomatic talks with Iran, and Republicans had no qualms about partnering with a foreign government to undermine American foreign policy.
The GOP gambit arguably marked a new low. But after hitting the bottom of the barrel, Republicans dug a hole and fell just a little further.
A group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration won’t last after Obama leaves office. […]
“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system…. Anything not approved by Congress is a mere executive agreement,” the senators wrote. “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”
Josh Rogin’s report makes clear that the signatories “hope that by pointing out the long-term fragility of a deal with no congressional approval … the Iranian regime might be convinced to think twice” about striking a deal with Americans and our negotiating partners.
The letter was organized by Sen. Tom Cotton (R-Ark.), a right-wing freshman who has spent months bragging about his hopes of destroying any diplomatic agreement intended to stop Iran’s nuclear ambitions.
The list of the 47 GOP senators who signed on to the letter is online here. Note, that list features several presidential hopefuls, including Ted Cruz, Rand Paul, and Marco Rubio. (Only seven Senate Republicans decided not to endorse the letter: Lamar Alexander, Dan Coats, Thad Cochran, Susan Collins, Bob Corker, Jeff Flake, and Lisa Murkowski.)
Norm Ornstein noted this morning that he’s “flabbergasted” by the “astonishing breach of conduct.” That’s clearly the appropriate response. But I’m also struck by how dangerous the Republicans’ conduct is.
As we discussed back in January, when the broader sabotage campaign came into focus, there is no real precedent for this in the American tradition. The U.S. system just isn’t supposed to work this way – because it can’t. Max Fisher explained that we’re looking at “a very real problem for American foreign policy.”
The Supreme Court has codified into law the idea that only the president is allowed to make foreign policy, and not Congress, because if there are two branches of government setting foreign policy then America effectively has two foreign policies.
The idea is that the US government needs to be a single unified entity on the world stage in order to conduct effective foreign policy. Letting the president and Congress independently set their own foreign policies would lead to chaos. It would be extremely confusing for foreign leaders, and foreign publics, who don’t always understand how domestic American politics work, and could very easily misread which of the two branches is actually setting the agenda.
The United States and our allies have reached a delicate stage of diplomacy on a key issue, but as far as congressional Republicans are concerned, the United States isn’t really at the negotiating table at all – the Obama administration is. Republican lawmakers not only disapprove of the process, they also feel justified conducting their own parallel, freelance foreign policy, which includes partnering with foreign governments and sending a message to the very rival the United States and our allies are negotiating with.
In other words, for the first time anyone can remember, we’re watching American elected officials brazenly trying to sabotage American foreign policy.
Under the circumstances, it’s no longer ridiculous to wonder whether GOP lawmakers are violating the Logan Act.
As for the GOP’s legal argument to Tehran, Jack Goldsmith added, “It appears from the letter that the Senators do not understand our constitutional system or the power to make binding agreements.”
Unfortunately, that’s not the only thing they fail to understand. They seem equally confused about propriety, U.S. protocols, and how American foreign policy is supposed to work.
By: Steve Benen, The Maddow Blog, March 9, 2015
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