Trump and Flag Burning

flag-burning

So the political world (mostly those on the left) is all up in arms over a tweet sent out by @realdonaldtrump today, which stated:

Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

Now, upon first glance, it appears that President-Elect Trump is simply speaking in hyperbole, that is to say, an “obvious and intentional exaggeration”. But of course, those who already disagree with him on everything else are certain that he’s fully intent on stripping people’s constitutional rights.

Nonetheless, it does raise a good question, and that is whether or not we as a country should allow flag burning as an acceptable means of protest. Flag burning is nothing new, but every few years or so, depending on the political climate and the crisis of the day, the question arises again.

For example, one Massachusetts college decided to remove the U.S. flag from its main flagpole, and has experienced flag burnings since the election. A group of veterans appeared and conducted a counter-protest, presumably standing for freedom and respect for the flag.

The legality of flag burning as a form of protest or freedom of speech has long been decided. In 1989, the Supreme Court, in Texas v. Johnson struck down criminal laws banning the burning of the flag as a form of protest. Certainly, President Trump will not have the ability to imprison or strip one’s citizenship for doing so.

But the real question I pose here is SHOULD we declare flag burning illegal? After all, if we as a country decide that flag burning as a means of protest should be illegal, we could simply amend the Constitution. Then the Texas v. Johnson case would no longer have any legs.

But what are we saying if we do that? What would be the purpose behind such a ban? The primary argument that I hear in favor of such a ban is that burning the flag is incredibly offensive. It essentially spits in the face of our veterans, many of whom have given their lives for our freedoms.

Certainly, burning the flag is highly offensive to many Americans. This fact alone, however, should not make it illegal. As Americans, we should (and do) have the freedom to engage in many activities and speech that others find offensive. In fact, offensive speech is the very speech that needs constitutional protection. Speech that is generic, friendly, neutral, and so forth needs no such safeguards, as nobody would try to restrict it. Offensive speech, however, is often the very speech that causes necessary changes in our society, forces us to engage in critical debate, shifts our paradigm, and makes us better.

For those veterans who are protesting, I would ask them what they are really standing up for. If they are standing for freedom, how does banning something they find offensive actually support the notion of freedom? If the government has the ability to decide what is offensive, where does that end?

I don’t really want my government to have that ability. As deeply distasteful as I may find flag burning, I strongly support fellow citizens’ right to engage in protest speech, as long as it does not cross the line into inciting to riot, destruction of someone else’s property, or something along those lines. If I see someone standing in the public square burning a flag, I don’t get offended. I may think the person is stupid, unpatriotic, or an idiot. But in this country, there is no law against citizens being idiots. Thankfully, because each of us has probably fit that description at one time or another.

Freedom is a costly notion. It is not something that we should treat haphazardly or restrict without considering the consequences.

The Curious Case of Ben Shapiro

November 21, 2016

ben-shapiro

Over the last few weeks, we’ve witnessed several interesting stories in the news. The underlying facts centered around Ben Shapiro, Barronelle Stutzman, the election protestors/riots and Mike Pence. While the major players seem to be unrelated, there is a common thread running throughout the events, and that is the issue of free speech.

In the case of Barronelle Stutzman, a small florist in the state of Washington has been ordered by the government to provide flowers for same sex marriage ceremonies, an activity that violates her religious beliefs. Because she declined, her very livelihood has been threatened. While her religious freedoms have been violated, it should also be remembered that her freedom of speech is squarely being threatened as well.

If the government has the ability to force a small florist to create artistic expressions in a specific way and for a specific purpose, then the government is forcing her to speak in the manner the government finds appropriate. Yet the U.S. Supreme Court has rightly stated that the Constitutional right to free speech “includes both the right to speak freely and the right to refrain from speaking. Here, there is no doubt that Ms. Stutzman should have the right to refrain from speaking in this way. I am hopeful that the Washington Supreme Court will agree.

Next we come to the case of Ben Shapiro:

WATCH: DePaul Threatens to Arrest Ben Shapiro for Stepping Foot on Campus

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Mr. Shapiro was invited to campus by the Young America’s Foundation student chapter at DePaul to speak on the topic of “intolerance on campus”. But instead of allowing him to speak, the university threatened to have him arrested if he stepped foot on the campus. And they had armed security personnel ready to carry out those threats!

Why did DePaul threaten to arrest Ben Shapiro? Surely they were concerned that he intended to commit terrible crimes against the students. No? Perhaps they were worried that he would destroy property. Not that?

No, the concern they had was that he might anger their liberal snowflake students who disagreed with his conservative political views. The DePaul authorities even admitted that they didn’t have proper security to keep the audience (those who disagreed with Shapiro) under control. The authorities referred to a previous event which involved a different speaker, and the audience simply could not handle his words and attacked the speakers. So instead of appropriately dealing with the violent actors (those who disagreed with the speech), they issued a ban against “controversial” speakers.

So the real concern was violence from those who might disagree with him – in other words, the liberal snowflakes. On the one hand, those students may be so frustrated as to lose all control of themselves, resulting in the commission of crimes ON THEIR PART. On the other hand, the problem might be that their psyches were so delicate that they couldn’t emotionally handle a different political viewpoint. Either way, if I’m a DePaul student, especially a liberal one, I would be infuriated with the administration having such little faith in my ability to reason and my self-control.

While DePaul is a private university and has the ability to restrict Ben Shapiro from appearing on campus, what is it saying to its own branch of Young America’s Foundation students, the ones who invited him in the first place? Basically, DePaul is telling its own students that while they have the right to speak, their speech must be pre-approved and fall in line with the views of the administration. That “freedom” seems pretty oppressive to me.

The real message this sends is that as long as liberals threaten violence in response to any potential conservative speaker invited to campus, the university is within its rights to simply cave in to the bullies instead of foster the open exchange of ideas. Perhaps the university’s overreaction was the best proof Shapiro could have found in support of his topic – intolerance on campus.

Finally, we turn to the protestors/rioters who are disappointed in the Presidential election, and the case of Mike Pence. We’ve now seen almost two weeks of protests and riots from those angry that Hillary CLinton was not elected. From the #NotMyPresident crowd which is upset that Clinton received more popular votes yet lost the electoral college, to those issuing death threats against the electors if they dare to vote Trump, the vitriol is frightening.

But neither Obama nor Clinton herself have tried to calm the protestors or rioters, or even asked them to stop committing crimes, destroying property, and blocking interstates. Instead, President Obama specifically stated that he would not tell the protesters to be silent. Obama stated that protesting against a President is a normal part of the process – i.e. free speech.

What about committing crimes against property and people, Mr. President? What about blocking interstate traffic? Are these activities protected free speech? Apparently, but only if the protestors come from the left.

Then we get to Vice President-elect Mike Pence. He had the gall to attend the Broadway show Hamilton last Friday night, where the cast delivered a “special message” to him after the show. In fact, Mr. Pence had already started leaving when the cast began delivering their statement, but reports are that he stayed in the hallway and heard the full message.

Nonetheless, many of those on the left have been excoriating Pence for not staying in the auditorium and listening. They have tweeted that Pence should have stayed in the auditorium as a public servant and listened. For his part, Pence has stated that he wasn’t offended at all by the statement, and that this is what “freedom sounds like”. Regardless, many on the left have stated that he was required to listen to the speech.

So here we have four stories that all deal with the issue of freedom of speech. From these, I can only conclude that to the liberal left, free speech is defined as follows:

Conservatives CANNOT speak (as in the case of Ben Shapiro, safe spaces on college campuses, etc.), and if they do, any violence that results from such speech is the fault of the conservative.

Conservatives MUST speak in only pre-approved ways (in the case of Barronelle Stutzman), and if they refuse, their livelihood may be taken.

Liberals MUST be allowed to speak even when such speech is accompanied by criminal activities (as in the rioters/protestors, death threats to electors, bullies on campus).

Conservatives MUST be forced to listen to liberal speech (as in Pence).

This is not “what freedom sounds like” to me at all.

The Intersection of Religion and Business

Washington State Supreme Court

It’s possible that you’ve never heard of Barronelle Stutzman. If you don’t live in the state of Washington, and you don’t follow constitutional freedom cases closely, you may have missed her story. But the stand she has taken, and the court decision that may impact her entire life, should cause you great concern.

Barronelle, by all accounts, is a kind-hearted, loving Christian in Richland, Washington. For a number of years, she has operated a flower shop called Arlene’s Flowers, and has served a very diverse clientele. In fact, she has both employed and served people who identify as homosexual. However, her world was turned upside down when one of her long-time customers, Robert Ingersoll, asked her to provide flowers for his same-sex ceremony to another man. Although she had served Mr. Ingersoll on many other occasions, this request was something she simply could not fulfill without violating her religious conscience. So she declined, and provided Mr. Ingersoll a reference to another florist.

That sounds perfectly reasonable, doesn’t it? Unfortunately for Barronelle, that was the beginning of a long and difficult road, which on November 15, 2016, resulted in a visit to the Washington Supreme Court, which is hearing oral arguments on her case. She was sued by the ACLU and the Washington Attorney General, who claim that she unlawfully discriminated against Mr. Ingersoll.

To read more about Barronelle’s case, click here.

Barronelle lost in the lower court, and she appealed to the Washington Supreme Court with the assistance of her attorneys at Alliance Defending Freedom.

So what does this have to do with the rest of us? Consider for a moment the consequences from a case such as Barronelle’s. If the government – whether state government in her case or the federal government, or even local government – has the ability to force us to act in a certain way, even though that act violates our sincerely held religious beliefs, then what would keep the government from doing whatever it wants?

If the government can require Barronelle to use her artistic talents in support of a same-sex wedding in violation of her religious beliefs, what would stop them from forcing any of the rest of us to do the same? Are you a baker? Then you are required to bake a cake for a same-sex wedding. Are you a Muslim photographer? Get ready to photograph the baptism of a former Muslim converting to Christianity. And don’t think you’ll be let off the hook if you’re an atheist business owner, because you’ll soon be in the crosshairs as well.

Some have said that a good business practice would be to simply take the clients as they come, and fulfill their requests. After all, if Barronelle had simply provided the flowers, those attending the wedding would likely not assume that to mean she approves of the ceremony itself.

The problem with that argument is that it ignores the freedom that Barronelle has to choose for herself. It eliminates her ability to exercise her religious freedom in the way she believes to be appropriate for her. In Barronelle’s own words: “Does anyone really believe that a government that gives itself the power to force people to believe (and not believe) things and can order artists to create state-sanctioned messages will only use that power to bend one small-town florist to its will – and then leave everyone else alone?” Read Barronelle’s article here.

Barronelle’s words are strikingly similar to the famous poem by Pastor Marin Niemoller about the cowardice of German intellectuals regarding the Nazi’s rise to power:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Barronelle is exactly right. If the state of Washington has the power to force her to violate her conscience, there is really nothing it can’t do. And this power would not be limited to a “small-town florist”.

This is why today, I stand with Barronelle. #JusticeForBarronelle.

Please share this blog if you’re willing to do so, and share Barronelle’s story.

Electoral College and the State of the Union

I get it. I hear you. The electoral college is archaic! It’s ridiculous! We should just go with the popular vote! There’s no reason for this!

Trump and Clinton

We hear these same arguments every four years during Presidential election season. And the cries to eliminate the electoral college are much stronger if we happen to have a candidate who wins the popular vote but loses the electoral college count, such as in 2000 and then Vice President Al Gore.

Fortunately, those occasions are extremely rare. At the time of writing this blog, the official counting of votes is not complete, but it does appear possible that Hillary Clinton will finish ahead in the popular vote, even though she lost in the electoral college. So it does happen.

Understandably, then, Clinton’s supporters have raised the outcry to abandon the electoral college altogether. But is that really such a good idea?

The purpose of today’s blog is not to discuss all of the pros and cons of the electoral college. That has been done numerous times over the years. If you’d like to read one such article, go here. Instead, I’d like to consider what might result if we eliminate it.

Take a look at this graphic:

Breakdown of Democrat and Republican Voting

The red areas reflect those counties where President-Elect Trump prevailed. The blue areas went for Clinton. As you can see, the vast majority of the country land-wise went for Trump, and it’s not even close. The blue areas are typically large urban centers, such as New York City and Los Angeles, which almost invariably favor the Democrats. While this graphic is from 2016, the maps from previous Presidential elections look very similar.

Now, imagine a scenario where only the popular vote mattered. It is possible, and perhaps even probable, that the entire country would be controlled by the will of the people in those blue, mostly urban, areas. Does that seem fair?

It seems to me that it wouldn’t take very long for the millions of people in the red areas to recognize that they don’t really have a voice. Moreover, they might not have a voice for a very long time. What do you think those people and those states would do? Remember “taxation without representation”? At some point the people in those states would want out of the union altogether.

But because of the electoral college, those red areas are critical. Those states have votes, even though they aren’t as populous as California or New York. Presidential candidates ignore them at their own peril. The interests of the people in those red areas, which those in large cities may not understand at all, must be taken into account.

Could it be that the electoral college is one of those brilliant ideas from the founding fathers that actually holds our country together?

Shutting Down The Debate

I am not a Trump supporter. During the Republican primaries, he was my last choice. I started out with a Ben Carson bumper sticker, I warmed up to Carly Fiorina, and eventually moved to Ted Cruz as people were dropping out of the race. Like many people, I was appalled at some of the characteristics I saw in Mr. Trump. In the end, of course, he became the nominee.

While I am not a Trump supporter, I did vote for him. My vote was not based on any belief in him as a candidate or as a person. I drew some solace in the fact that he seemingly surrounded himself with some good people, such as Mike Pence and Ben Carson. And he released a pretty good list of potential Supreme Court candidates. However, I never reached the point where I actually believed he would fulfill the promises he made.

But for me, I recognized that on Wednesday, November 9, 2016, this country would have elected either Donald Trump or Hillary Clinton as our next President, and there was NOTHING I could do to stop that. A vote for a third party candidate (in THIS election), most of whom we had never heard of, was not going to change that fact, although it might change which one of the two would win. But either Trump or Clinton would be elected, and there was no question about it.

So I had to look at Trump and Clinton and see which one I felt would best serve this country. Both of them are deeply flawed. Trump’s flaws were obvious in his character, his business affairs, etc. Clinton’s flaws were equally apparent, with her numerous scandals throughout her entire public life. There’s no point in recounting them here.

In the end, I believed that Trump (and Pence) would be the better of the two choices. So I voted for him.

Based on that SINGLE act, I have been repeatedly called, in the media, on social media, and elsewhere, a racist, a bigot, a sexist, a misogynist, uneducated, a redneck, and so forth. Now, anybody who actually knows me on a personal level would find it extremely difficult to support any of those labels. But nonetheless, millions of voters who chose NOT to vote for the anointed one, Hillary Clinton, have been described in the same way. (In fact, as we all know, Clinton herself called at least half of Trump’s voters “a basket of deplorables.”)

Now, most of the stories making such baseless claims try to soften the blow with disclaimers: “Not ALL of the Trump voters are these things… Just most of them…” Or “I have some friends who voted for Trump and they aren’t sexist bigots. But the rest of them are…” None of these ridiculous disclaimers are helpful in the least.

It is disturbing to me that we can’t seem to disagree politically without having such nonsensical labels immediately thrown into our faces. As far as I can tell, those applying the labels hope to accomplish two equally abhorrent purposes: First, they hope to shut down the debate of the moment. If I disagree with Obama on some policy issue, for instance, I’m labeled a racist. Thus, the one calling me a racist hopes that I will no longer express my viewpoint on that particular issue.

Second, they hope to keep me from expressing my views on FUTURE issues. After all, if I live in constant fear that any expression of disagreement will result in yet another highly offensive label (had Clinton prevailed, for example, there would no doubt be a constant deluge of “sexist” accusations in the face of any disagreement with her), then I lose my will to engage at all.

Both of those purposes are bereft of any intellectual honesty. If we disagree on a political (or personal) issue, we should be able to have a rational dialogue about it. In the end, perhaps one of us would alter our stance, based on logic and further understanding. If so, we both benefit. If we don’t change our minds, we at least respected each other enough to communicate fairly. If one or both of us has to resort to name calling and baseless accusations, that says more about the accuser than the accused. And it also means the accuser is having a difficult time supporting his logical view in the first place.

If one side of a political debate is never even heard because of fear of these labels, then nobody benefits, regardless of which side you’re on. Nothing positive is gained by simply shutting down the debate. And sadly, that’s what I’m afraid may be coming our way.

I voted for Trump, but I didn’t support him. And I assure you that Clinton being a woman had absolutely nothing to do with that.

Is Trump Required By Law to Release Tax Returns?

Here we go again… Recall that during the 2012 campaign, Harry Reid and other Democrats were constantly demanding that Mitt Romney release his tax returns. When Romney refused, they predictably began claiming that he was likely a felon and probably hadn’t paid any taxes for ten years. Did the Democrats have ANY proof of that? Of course not. Who needs proof when the accusation itself is so damaging?

During the midst of all the clamoring and posturing, some reporters actually decided to do some research (amazing, isn’t it?) to find out what the legal requirements actually were. Even MSNBC, certainly no conservative organization, admitted that there was no law requiring presidential candidates to release their tax returns. In fact, MSNBC concluded that “no law requires presidential candidates to release their tax returns, but history does..” You can find MSNBC’s article here.

Seriously? History “requires” it? I was unaware that history had the ability or authority to “require” anything. MSNBC even states that history MANDATES the release. Ummm… “Mandates” implies that something is “mandatory”, required, NOT optional… you get the picture.

Sorry, MSNBC, but history does not and CANNOT “mandate” this. When we look at what is “required”, we look at this thing called the LAW. I know, that’s a confusing concept for the Democrats. So in an effort to help them out, I’ve done some of the research for them.

According to the U.S. Office of Government Ethics (an oxymoron if ever there was one), a presidential candidate must file Office of Government Ethics Form 278 (OGE Form 278), which is a very detailed financial report. You can find the form here.

Nowhere is a tax return listed as a requirement. The OGE form appears to contain more detail than a tax return would. But regardless of any of that, it is clear that a presidential candidate is NOT required to release his tax returns. If it were, Hillary CLinton and her cronies would identify the specific legal requirement and demand that Trump fulfill such requirement. Because since it doesn’t exist, they have to resort to accusations and hope that the voters go along with it. Unfortunately, many of their supporters just march right in line without giving it a second thought.

It is clear that Trump is NOT required to release his tax returns. While many presidential candidates over the years have voluntarily done so, that does not translate into a requirement.

Trump has every right to reject these nonsensical accusations from the left and their unsupported demands that he release his tax returns. If he complies with OGE Form 278, he’s done what the LAW requires.

Laws, Laws and More Laws!

So all eyes have been on the Republican National Convention this week, and for good reason. The nomination of Donald Trump will likely go down in history as one of the most bizarre political events in the 21st century. Never have we seen a campaign cycle quite like this one, and it’s unlikely to happen again in our lifetimes.

On Tuesday night, Mitch McConnell took the stage, but he wasn’t particularly well-received, which is at least somewhat encouraging. One of the things he said, however, was disturbing. He stated: “with Donald Trump in the White House, Senate Republicans will build on the work we’ve done and pass more bills into law than any Senate in years.”

Watch Mitch McConnell Speak at the Republican Convention

Now perhaps I’m reading too much into this, but I have a problem with the idea that passing more bills into law is somehow a GOOD thing. It seems to me that every time Congress passes a law, our freedoms suffer the consequences. But for some reason, Americans have this notion that if Congress is not passing laws, it’s not doing its job.

Several years ago, the Washington Post published an article titled: “14 reasons why this is the worst Congress ever”. https://www.washingtonpost.com/news/wonk/wp/2012/07/13/13-reasons-why-this-is-the-worst-congress-ever/

While the article certainly made some valid points about Congress at that time (it’s unpopular, it’s polarized, it engaged in budget shenanigans…), what was the Number 1 reason why it was the worst, according to the Washington Post? “They’re not passing laws.” Seriously?

I understand how it works. Bills are passed by the Congress and signed as laws by the President. No problem. That’s civics 101. But that doesn’t mean that the worth of each Congress should be somehow measured by the AMOUNT of bills it passes! If most laws restrict our freedoms in some way, why in the world would we want each successive Congress to simply build on the ridiculous laws enacted by the previous ones?

Forget about protecting Americans from enemies both foreign and domestic. Congress has for years simply invited the enemies in or coddled those already here. Forget about protecting the freedoms of American citizens. No, Congress has consistently restricted those freedoms. And don’t even think about providing an environment in which small businesses can thrive and provide jobs and economic security for future generations. No, Congress would rather put so many rules and regulations in place that some hapless American with dreams of being an entrepreneur can’t even get off the ground!

Instead, Congress simply creates more and more laws that limit what we can do as Americans. The founding fathers understood that one of their primary objectives in drafting and instituting the Constitution was to protect the citizens from the Government. For most of my lifetime, the government has completely reversed that. Our representatives seem to be more concerned about protecting themselves from the citizens. It’s absolutely ridiculous.

And the fact is, most American citizens no longer recognize what freedom really is. Instead, they believe that the role of Congress is to continually pass more and more laws, and they measure the “success” of Congress by the number of laws they pass.

This mindset is troubling for future generations of Americans. Those of us who cherish our freedoms must do our part in trying to reverse this.

Trump and Essay Tests

We’ve all been there. At some point during high school, college, or even in law school in my case, we’ve taken essay tests. Likely, we’ve had at least one essay question where we didn’t have a clue about the correct answer. So we had a choice to make: we either left the answer completely blank, or we wrote something that we hoped could fool the teacher or professor. Of course, that probably didn’t work, but we tried it anyway.

That’s what happens when we aren’t adequately prepared. We try to “wing it”. It might work in high school, but the chances of success under this method decrease significantly as the stakes are raised. In college, this probably didn’t work. I can personally attest that it is a complete failure in law school AND on the bar exam.

Yet this is the only explanation I can give for the Donald Trump approach to his campaign. It becomes clearer by the day that he has not adequately prepared for this moment. Don’t misunderstand me: I’m not saying he hasn’t prepared to run a viable campaign. The fact that he continues to lead in the race for the Republican nomination would disprove that completely.

What I’m saying is that he hasn’t adequately prepared to LEAD the country in the event he is actually elected. He has not educated himself on the principles of federalism, limited government, state’s rights, the freedom of the individual, or basic governing methods.

Just the latest example of this arose during his interview with Anderson Cooper on March 29.

For a transcript of the interview, go here:

http://www.cnn.com/TRANSCRIPTS/1603/29/acd.02.html

Most commentary from this interview is focused on the exchange between Cooper and Trump about Trump’s ridiculous tweet of Ted Cruz’s wife, in which Trump made her look like a monster. Trump defended his tweet by saying “He started it!” Cooper rightfully pointed out that Trump sounded like a 5 year old with his response. And of course that exchange has been great political fodder (although it is unlikely to sway any of Trump’s supporters, who tend to back him no matter what he says).

But what I find intriguing about the interview is Trump’s response to an audience question:

QUESTION: Good evening, Mr. Trump. In your opinion, what are the top three functions of the United States government?

TRUMP: Say it again?

QUESTION: In your opinion, what are the top three functions of the United States government?

TRUMP: Well, the greatest function of all by far is security for our nation. I would also say health care, I would also say education. I mean, there are many, many things, but I would say the top three are security, security, security.

Later, Cooper follows up with this exchange:

COOPER: So in terms of federal government role, you’re saying security, but you also say health care and education should be provided by the federal government?

TRUMP: Well, those are two of the things. Yes, sure. I mean, there are obviously many things, housing, providing great neighborhoods…

(CROSSTALK)

COOPER: Aren’t you against the federal government’s involvement in education? don’t you want it to devolve to states?

TRUMP: I want it to go to state, yes. Absolutely. I want — right now…

COOPER: So that’s not part of what the federal government’s…

(CROSSTALK)

TRUMP: The federal government, but the concept of the country is the concept that we have to have education within the country, and we have to get rid of common core and it should be brought to the state level.

These are the responses from someone trying to “wing it” on an essay test. Trump clearly has no understanding of the different purposes of the federal government and the state government. He has called for terminating the Department of Education, yet here he appears to be in support of federally controlled education. Yet he also tries to voice support for state run education in the same breath.

Moreover, he believes that two of the three most important roles of the “United States government”, which was the premise of the original question, are health care and education. He doesn’t seem to have any question regarding the federal government’s role in either of those issues in the first place. And then he even mentions “housing, providing great neighborhoods…” as within the federal government’s purview.

Seriously? He believes the federal government is responsible for providing housing and great neighborhoods?

This is not a man who has adequately prepared to lead this country. He has no understanding of Constitutional issues. He does not recognize the freedom of the individual (which is why he supports eminent domain so strongly). And he really doesn’t care about state’s rights, as the exchange with Anderson Cooper demonstrates.

Trump simply says whatever comes to his mind at a given moment. He knows that his supporters don’t care, as they’ll vote for him anyway.

But we have to consider what we’ll have if he actually becomes our President. Will we have someone who has prepared to govern? Or will we have a high school student hoping we won’t notice he has no clue what he’s talking about?

Role of the Senate in Supreme Court Nominations

Supreme Court

Now that President Obama has announced his nomination for the Supreme Court, all eyes have turned to the Senate. What actions will the Senate take? Should they be required to hold a hearing? Are the Senators refusing to do their “duty” if they do not hold hearings?

There seems to be a prevailing notion that the Supreme Court is REQUIRED to have 9 judges. That’s simply not the case, as the Constitution does not set any number at all. In fact, the court has had different numbers of judges over the years. The number is to be set by Congress, as specifically provided in Article III of the Constitution. So it’s not determined by the President or the judicial branch. This is part of the “checks and balances” we all learned about as kids. Of course, because the court has had 9 judges since 1869, much longer than any of us have been alive, it’s easy to see why we have become so accustomed to that number that we believe it must stay that way. But that is not what the Constitution requires, and Congress could change the number at any time.

The Supreme Court is more than capable of meeting its Constitutional duties and requirements without a 9th Justice. The Court began with 6 judges, and has had up to 10. That also means that it has had an even number of judges on several occasions in the past, so it was perfectly able to carry out its duties even without an odd number to break a tie.

Since the death of Justice Scalia in February, the Supreme Court has handed down 10 opinions, all in March. 5 of the opinions were unanimous. 4 of them were 6-2 rulings. Only one of them was 4-4. (An 11th decision was a case of “original jurisdiction”, where the Supreme Court was not reviewing a lower court’s decision, but was instead the original court of trial.) So of the 10 opinions since the tragic death of Justice Scalia, only one would have relied on his input. Even if he disagreed with the others, the rulings would have been the same. That’s not to say that his dissents, if any, would have been lacking entertainment, of course…

It is clear, then, that the Supreme Court is currently functioning in exactly the way it was designed, even with an empty chair. So the Senate has every right to hold a hearing, refuse to hold a hearing, or even participate in enacting a new law limiting the number of judges to 8 (or some other number), which would make the current nomination a complete nullity.

Or, the Senate could hold hearings, take a vote, and REJECT the nomination. That’s perfectly acceptable, and has been done on numerous occasions. (Anybody remember Judge Bork?)

Of course, I expect the Republicans will cave in to political pressure and hold hearings, and likely confirm the nomination. The current crop of Republican leaders (in both the House and the Senate) seem to cave in on most things.

But that’s different than saying the Senate is REQUIRED to hold hearings, vote, or consent to the nomination. They are not required to do any of those things by the Constitution. And as indicated above, there is no emergency situation which would dictate some immediate action. President Obama has made his nomination, which is all he is permitted to do, unless and until the Senate consents, at which point Mr. Obama may then appoint him. In the meantime, he can only sit and wait, and apply political pressure. We will soon see how much of that political pressure the Senate is able to withstand.

Supreme Court Checks and Balances

Everyone is of course talking about the Supreme Court. Who will Obama nominate? Does the Senate have the responsibility or duty to confirm the nominee?

Here’s what the Constitution says: “The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .” (Article II, Section 2, Clause 2).

So it’s a three step process. First, the President nominates. Second, the Senate gives “advice and consent”. Third, if the Senate actually “consents”, the President appoints. (In fact, the President has the ability to change his mind about the nominee, even if the Senate has already confirmed, as long as the President has not already taken the third step of appointing the nominee.)

It is clear that the Senate is not simply to “rubber stamp” the nominee. If that were the case, it would be wholly unnecessary to include them in the process. (Note that the House of Representatives is excluded from the process.) Furthermore, if the Senate is expected to do MORE than rubber stamp the nominee, that necessarily includes the ability to REJECT the nominee. Otherwise, the only other option would be to consent, which would bring us back to “rubber stamp”.

Imagine the result if the Senate could NOT reject a nominee, or was not even part of the process. You would lose the entire system of checks and balances, as the President would have the sole power to appoint whomever he/she chooses to both the Supreme Court, as well as the lower federal courts. The founders never intended that, as you can imagine.

The Constitution remains the most important document ever written, outside of the Bible. Even in this most critical political process of appointing a Supreme Court justice, our founders had the incredible foresight to implement sufficient checks and balances.

I’m hoping the current Senate will take their obligations seriously. I have my doubts, as most of the Republicans in the Senate are weak. But I remain hopeful nonetheless.

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