Trump’s Supreme Court appointee should get a hearing and a vote

Article II of the United States Constitution states that the President:

…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President nominates Supreme Court justices and the Senate advises and consents. That’s how it works.

When Antonin Scalia died in February 2016, Barack Obama did his constitutional duty and nominated Merrick Garland to replace Scalia. The Senate, under the leadership of Mitch McConnell, refused to give Garland a hearing. He said that it was inappropriate for Obama to nominate a new justice in an election year. The next Supreme Court nomination, McConnell argued, should thus be left up to the new President. Trump won the November election and appointed Neil Gorsuch.

We are now 43 days away from an election and the recent death of justice Ruth Bader Ginsburg has reignited the same debate about the right of a president to appoint a new justice during an election year. The Republicans in all their hypocrisy are now demanding that Trump should appoint Ginsburg’s successor. Here is Lindsey Graham, the head of the Senate Judiciary Committee, 2016:

Graham is now suggesting that Trump should get to pick the next justice.

Of course this should not surprise us. Politics is not about integrity, ethics, or standing by one’s word. It is about power. And let’s not pretend that the Democrats wouldn’t do the same thing if they were in the GOP’s shoes right now. Plague on all their houses!

Two wrongs do not make a right. McConnell was wrong in 2016. Merrick Garland should have received a hearing and an up or down vote. In 2020, Trump’s appointee should receive a hearing and get an up or down vote. If the Senators believe that it is in the best interest of the country to let the next president choose a justice, then they can vote accordingly.

In March 2016, I wrote a Fox News piece on the whole Garland mess while I was in residence at George Washington’s Mount Vernon. Read it here.

Court Evangelicals gather in Georgia

Paula White Georgia

This weekend court evangelical Paula White hosted a face-to-face event in Alpharetta, Georgia as part of the “Evangelicals for Trump” wing of the Trump 2020 campaign. Watch it here.

Speakers included Jenetzen Franklin, Harry Jackson, Ralph Reed, Alveda King, Richard Lee, and White.

Jenetzen Franklin says that evangelicals who believe in the Bible, the sacredness of life, supporting Israel, and law and justice “must “speak now or forever hold your peace, you won’t have another chance.” If Trump does not get elected, Franklin says, Christians will not have freedom of religion or freedom of speech. This line got a standing ovation. Franklin says that we only have three months (November) to save America. This is evangelical fear-mongering 101.

Harry Jackson calls for racial healing in the country. The applause is a lot more tepid than the applause Franklin received. No one seems to think that his support for Confederate flag-loving Donald Trump might contradict this message.

Ralph Reed starts by thanking the “God-fearing, Bible-believing Christians” of the state of Georgia for making sure Stacy Abrams did not win the governorship in 2018. Instead of Abrams, the people of Georgia got this.

Reed calls Abrams the “most radical, extreme, far-Left, governor” in the history of the South. It is worth remembering that Abrams would have been the third Black governor in the history of South and the first woman. Since the Civil War, the former Confederacy has had only two Black governors. P.B.S. Pinchback was governor of Louisiana for about a month (December 9, 1872 to January 13, 1873) and Douglas Wilder was governor of Virginia from 2005-2009. Only about 11% of white evangelicals in Georgia voted for Abrams. Reed, of course, knows how to appeal to the Trump base.

Reed also says that he senses “God’s anointed in this place.” He speaks with an arrogant certainty about the will of God and claims to know that God is on Trump’s side. Reed sees through a glass clearly.

Reed tells a story about how “thunderstruck” and upset he was when Antonin Scalia died in February 2016. He thought God had abandoned the country by allowing Scalia do die so close to the presidential election. But when Senate majority leader Mitch McConnell said that he would not give the Obama nominee Merrick Garland a hearing, and would wait until after the 2016 election to start Senate proceedings on Scalia’s replacement, Reed knew God had intervened in human history and had answered the prayers of all true Christians. This story speaks volumes about the political playbook of the Christian Right. Trump said he can shoot someone on Fifth Avenue and still win in 2016. I think Trump can shoot someone on Fifth Avenue and still have conservative evangelical support in 2020 as long as he appoints conservative justices.

Alveda King, the niece of Martin Luther King Jr., read some scriptures. I am not sure what she was trying to say, but she is Alveda King’s niece and she supports Trump.

Richard Lee, the author of the The American Patriot’s Bible, spoke next. He praised Trump for trying (unsuccessfully) to repeal the Johnson Amendment. I doubt that he ever considered that the Johnson Amendment is actually good for the church.

Lee says we should vote for Donald Trump because he is a “man’s man.” (Later today I am interviewing historian Kristin Kobes Du Mez about her new book Jesus and John Wayne so this kind of tough-guy masculinity is fresh on my mind right now).

In response to mayors and governors who are trying to protect people from the coronavirus, Lee says: “Get your hands off the church of Jesus Christ. Don’t tell me what to do. Don’t you tell my congregation what to do. You think we’re idiots. You don’t think we know to protect ourselves?” He tells evangelical pastors that they should be “scared to the core” because “they’re gonna come for ya!” He even tells them to whistle the theme song to the television show COPS:

White evangelicals have believed that “they” (Thomas Jefferson, the Illuminati, abolitionists, modernists, the Supreme Court, “big government,” the Clintons, Obama) have been “coming for them” for a long time.

Lee concludes that the church should be a “shock force” for a “moral revolution” in this country. Something tells me that this is not the kind of moral revolution that Jonathan Wilson-Hartgrove and others are preaching.

The last speaker is Paula White. She tells about her history with Trump and praises the moral character of the entire Trump family. She calls Biden a “trojan horse” who will bring the “radical left” into the mainstream of America. At this point she gets pretty fired-up and starts ripping through Christian Right talking points.

It is hard to get a good look at the crowd, but I do not see many masks. The only person on the stage wearing a mask during the final prayer is Alveda King.

Thoughts on Trump’s Proposed “National Garden of American Heroes”

 

Trump Rushmore

At his July 3, 2020 speech at Mount Rushmore, Donald Trump said:

More here.

And here is the text of the executive order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Purpose.  America owes its present greatness to its past sacrifices.  Because the past is always at risk of being forgotten, monuments will always be needed to honor those who came before.  Since the time of our founding, Americans have raised monuments to our greatest citizens.  In 1784, the legislature of Virginia commissioned the earliest statue of George Washington, a “monument of affection and gratitude” to a man who “unit[ed] to the endowment[s] of the Hero the virtues of the Patriot” and gave to the world “an Immortal Example of true Glory.”  I Res. H. Del. (June 24, 1784).  In our public parks and plazas, we have erected statues of great Americans who, through acts of wisdom and daring, built and preserved for us a republic of ordered liberty.

These statues are silent teachers in solid form of stone and metal.  They preserve the memory of our American story and stir in us a spirit of responsibility for the chapters yet unwritten.  These works of art call forth gratitude for the accomplishments and sacrifices of our exceptional fellow citizens who, despite their flaws, placed their virtues, their talents, and their lives in the service of our Nation.  These monuments express our noblest ideals:  respect for our ancestors, love of freedom, and striving for a more perfect union.  They are works of beauty, created as enduring tributes.  In preserving them, we show reverence for our past, we dignify our present, and we inspire those who are to come.  To build a monument is to ratify our shared national project.

To destroy a monument is to desecrate our common inheritance.  In recent weeks, in the midst of protests across America, many monuments have been vandalized or destroyed.  Some local governments have responded by taking their monuments down.  Among others, monuments to Christopher Columbus, George Washington, Thomas Jefferson, Benjamin Franklin, Francis Scott Key, Ulysses S. Grant, leaders of the abolitionist movement, the first all-volunteer African-American regiment of the Union Army in the Civil War, and American soldiers killed in the First and Second World Wars have been vandalized, destroyed, or removed.

These statues are not ours alone, to be discarded at the whim of those inflamed by fashionable political passions; they belong to generations that have come before us and to generations yet unborn.  My Administration will not abide an assault on our collective national memory.  In the face of such acts of destruction, it is our responsibility as Americans to stand strong against this violence, and to peacefully transmit our great national story to future generations through newly commissioned monuments to American heroes.

Sec. 2.  Task Force for Building and Rebuilding Monuments to American Heroes.  (a)  There is hereby established the Interagency Task Force for Building and Rebuilding Monuments to American Heroes (Task Force).  The Task Force shall be chaired by the Secretary of the Interior (Secretary), and shall include the following additional members:

(i)    the Administrator of General Services (Administrator);

(ii)   the Chairperson of the National Endowment for the Arts (NEA);

(iii)  the Chairperson of the National Endowment for the Humanities (NEH);

(iv)   the Chairman of the Advisory Council on Historic Preservation (ACHP); and

(v)    any officers or employees of any executive department or agency (agency) designated by the President or the Secretary.

(b)  The Department of the Interior shall provide funding and administrative support as may be necessary for the performance and functions of the Task Force.  The Secretary shall designate an official of the Department of the Interior to serve as the Executive Director of the Task Force, responsible for coordinating its day-to-day activities.

(c)  The Chairpersons of the NEA and NEH and the Chairman of the ACHP shall establish cross-department initiatives within the NEA, NEH, and ACHP, respectively, to advance the purposes of the Task Force and this order and to coordinate relevant agency operations with the Task Force.

Sec. 3.  National Garden of American Heroes.  (a)  It shall be the policy of the United States to establish a statuary park named the National Garden of American Heroes (National Garden).

(b)  Within 60 days of the date of this order, the Task Force shall submit a report to the President through the Assistant to the President for Domestic Policy that proposes options for the creation of the National Garden, including potential locations for the site.  In identifying options, the Task Force shall:

(i)    strive to open the National Garden expeditiously;

(ii)   evaluate the feasibility of creating the National Garden through a variety of potential avenues, including existing agency authorities and appropriations; and

(iii)  consider the availability of authority to encourage and accept the donation or loan of statues by States, localities, civic organizations, businesses, religious organizations, and individuals, for display at the National Garden.

(c)  In addition to the requirements of subsection 3(b) of this order, the proposed options for the National Garden should adhere to the criteria described in subsections (c)(i) through (c)(vi) of this section.

(i)    The National Garden should be composed of statues, including statues of John Adams, Susan B. Anthony, Clara Barton, Daniel Boone, Joshua Lawrence Chamberlain, Henry Clay, Davy Crockett, Frederick Douglass, Amelia Earhart, Benjamin Franklin, Billy Graham, Alexander Hamilton, Thomas Jefferson, Martin Luther King, Jr., Abraham Lincoln, Douglas MacArthur, Dolley Madison, James Madison, Christa McAuliffe, Audie Murphy, George S. Patton, Jr., Ronald Reagan, Jackie Robinson, Betsy Ross, Antonin Scalia, Harriet Beecher Stowe, Harriet Tubman, Booker T. Washington, George Washington, and Orville and Wilbur Wright.

(ii)   The National Garden should be opened for public access prior to the 250th anniversary of the proclamation of the Declaration of Independence on July 4, 2026.

(iii)  Statues should depict historically significant Americans, as that term is defined in section 7 of this order, who have contributed positively to America throughout our history.  Examples include:  the Founding Fathers, those who fought for the abolition of slavery or participated in the underground railroad, heroes of the United States Armed Forces, recipients of the Congressional Medal of Honor or Presidential Medal of Freedom, scientists and inventors, entrepreneurs, civil rights leaders, missionaries and religious leaders, pioneers and explorers, police officers and firefighters killed or injured in the line of duty, labor leaders, advocates for the poor and disadvantaged, opponents of national socialism or international socialism, former Presidents of the United States and other elected officials, judges and justices, astronauts, authors, intellectuals, artists, and teachers.  None will have lived perfect lives, but all will be worth honoring, remembering, and studying.

(iv)   All statues in the National Garden should be lifelike or realistic representations of the persons they depict, not abstract or modernist representations.

(v)    The National Garden should be located on a site of natural beauty that enables visitors to enjoy nature, walk among the statues, and be inspired to learn about great figures of America’s history.  The site should be proximate to at least one major population center, and the site should not cause significant disruption to the local community.

(vi)   As part of its civic education mission, the National Garden should also separately maintain a collection of statues for temporary display at appropriate sites around the United States that are accessible to the general public.

Sec. 4.  Commissioning of New Statues and Works of Art.  (a)  The Task Force shall examine the appropriations authority of the agencies represented on it in light of the purpose and policy of this order.  Based on its examination of relevant authorities, the Task Force shall make recommendations for the use of these agencies’ appropriations.

(b)  To the extent appropriate and consistent with applicable law and the other provisions of this order, Task Force agencies that are authorized to provide for the commissioning of statues or monuments shall, in expending funds, give priority to projects involving the commissioning of publicly accessible statues of persons meeting the criteria described in section 3(b)(iii) of this order, with particular preference for statues of the Founding Fathers, former Presidents of the United States, leading abolitionists, and individuals involved in the discovery of America.

(c)  To the extent appropriate and consistent with applicable law, these agencies shall prioritize projects that will result in the installation of a statue as described in subsection (b) of this section in a community where a statue depicting a historically significant American was removed or destroyed in conjunction with the events described in section 1 of this order.

(d)  After consulting with the Task Force, the Administrator of General Services shall promptly revise and thereafter operate the General Service Administration’s (GSA’s) Art in Architecture (AIA) Policies and Procedures, GSA Acquisition Letter V-10-01, and Part 102-77 of title 41, Code of Federal Regulations, to prioritize the commission of works of art that portray historically significant Americans or events of American historical significance or illustrate the ideals upon which our Nation was founded.  Priority should be given to public-facing monuments to former Presidents of the United States and to individuals and events relating to the discovery of America, the founding of the United States, and the abolition of slavery.  Such works of art should be designed to be appreciated by the general public and by those who use and interact with Federal buildings.  Priority should be given to this policy above other policies contained in part 102-77 of title 41, Code of Federal Regulations, and revisions made pursuant to this subsection shall be made to supersede any regulatory provisions of AIA that may conflict with or otherwise impede advancing the purposes of this subsection.

(e)  When a statue or work of art commissioned pursuant to this section is meant to depict a historically significant American, the statue or work of art shall be a lifelike or realistic representation of that person, not an abstract or modernist representation.

Sec. 5.  Educational Programming.  The Chairperson of the NEH shall prioritize the allocation of funding to programs and projects that educate Americans about the founding documents and founding ideals of the United States, as appropriate and to the extent consistent with applicable law, including section 956 of title 20, United States Code.  The founding documents include the Declaration of Independence, the Constitution, and the Federalist Papers.  The founding ideals include equality under the law, respect for inalienable individual rights, and representative self-government.  Within 90 days of the conclusion of each Fiscal Year from 2021 through 2026, the Chairperson shall submit a report to the President through the Assistant to the President for Domestic Policy that identifies funding allocated to programs and projects pursuant to this section.

Sec. 6.  Protection of National Garden and Statues Commissioned Pursuant to this Order.  The Attorney General shall apply section 3 of Executive Order 13933 of June 26, 2020 (Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence), with respect to violations of Federal law regarding the National Garden and all statues commissioned pursuant to this order.

Sec. 7.  Definition.  The term “historically significant American” means an individual who was, or became, an American citizen and was a public figure who made substantive contributions to America’s public life or otherwise had a substantive effect on America’s history.  The phrase also includes public figures such as Christopher Columbus, Junipero Serra, and the Marquis de La Fayette, who lived prior to or during the American Revolution and were not American citizens, but who made substantive historical contributions to the discovery, development, or independence of the future United States.

Sec. 8.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Does Trump think he is building another Trump Tower?

I digress.

Just to reiterate, there will be statues of: John Adams, Susan B. Anthony, Clara Barton, Daniel Boone, Joshua Lawrence Chamberlain, Henry Clay, Davy Crockett, Frederick Douglass, Amelia Earhart, Benjamin Franklin, Billy Graham, Alexander Hamilton, Thomas Jefferson, Martin Luther King, Jr., Abraham Lincoln, Douglas MacArthur, Dolley Madison, James Madison, Christa McAuliffe, Audie Murphy, George S. Patton, Jr., Ronald Reagan, Jackie Robinson, Betsy Ross, Antonin Scalia, Harriet Beecher Stowe, Harriet Tubman, Booker T. Washington, George Washington, and Orville and Wilbur Wright.

Quick thoughts:

1. We should not get too worked-up about this order because there is a chance Trump will be voted out of office in November 2020. In other words, this national garden may never happen.

2. Let’s not get too caught-up in debating who should be “in” and who should be “out.” This is actually what Trump wants to happen. Historians should just ignore these plans. By giving too much attention to this we lend credibility to the proposal. (I know–I should be taking my own advice here!).  This is not a debate over state history and social studies standards.

3. How much will this national garden cost the American taxpayer? If Trump really cares about history he should fund its study in schools. His budgets should provide more money for already existing historic sites and teacher training.

4. Let’s say Trump wins in 2020 and this national garden becomes a reality. Would I visit it? Maybe. But I would not go there to teach my students about the lives of these so-called “heroes.” I rely on my classroom lectures and discussions, primary sources, legitimate public history sites, and good books and articles to do that. I would, however, consider taking students to this place to teach them about the Trump administration much in the same way that I take students to Confederate monuments at Gettysburg to teach them about the Lost Cause. This is what historians mean by contextualizing monuments. Like the Confederate monuments we are fighting over today, monuments often tell us more about the time when they were erected than the moment in history that they commemorate. Confederate monuments were erected in the early 20th century as symbols of white supremacy and Jim Crow. Some of the figures Trump wants to memorialize in his national garden seem like random choices, but others speak volumes about Trump’s America and his 2020 re-election bid.

For example, the founding fathers are revered by Trump’s white conservative base. Good history teachers visiting this garden might say something to their students about founders chic. They might note that on the very day of this executive order millions of Americans were watching a movie-version of a Broadway play about Alexander Hamilton. All of this explains why George Washington, John Adams,  Hamilton, Benjamin Franklin, Thomas Jefferson, and James Madison were chosen. (I don’t know why Dolley Madison was chosen over Martha Washington and Abigail Adams). I am sure Abraham Lincoln was chosen as an honorary founding father.

The African American selections (there are no native Americans) are Martin Luther King Jr.,  Frederick Douglass, Harriet Tubman, Booker T. Washington, and Jackie Robinson. These are all safe choices, although a good history teacher might show this video in preparation for the class trip. There are reasons why W.E.B. Du Bois, Malcolm X, or Barack Obama were not chosen. (Future students will certainly wonder why the first Black president in American history was not selected). When viewed in the larger context of the Trump presidency, a legitimate argument could be made that these men and women were picked in an attempt to show Trump is not a racist.

Trump and his people are obsessed with military strength. We thus get Joshua Lawrence Chamberlain, Audie Murphy, George Patton, Ronald Reagan, and Douglas MacArthur.

And Trump needs his white evangelical base in November. He hopes a statue of Billy Graham, or at least the announcement of such a statue, might help deliver these votes.

Trump has an obsession with space and aviation. (Trump mentioned going to Mars during his Mount Rushmore speech). I would have my students read or watch his recent Cape Canaveral speech before we visited the national garden. We thus get Christa McAuliffe, Amelia Earhart, and the Wright brothers. Frankly, I am surprised he did not pick Charles Lindbergh, an early proponent of “America First.”

Was Henry Clay, the architect of the American System, chosen because of Trump’s infrastructure plans? Future history teachers will tell students that these plans never got off the ground, despite multiple “infrastructure weeks,” because Trump undermined them with tweets and other self-initiated scandals.

And, of course, any historian would have a lot to say about why Antonin Scalia made the cut instead of John Marshall, Thurgood Marshall, Sandra Day O’Connor, Hugo Black, or Oliver Wendell Holmes.

But in the end, I would put money on this national garden of heroes going the way of Trump’s border wall and many of his other grandiose plans.  It won’t happen.

 

Monday night court evangelical roundup

Trump-Bachmann-Pence-religious-right

What have Trump’s evangelicals been saying since our last update?

Mike Pence’s nephew hosted a court evangelical conversation with Paula White, Johnnie Moore and Samuel Rodriguez. This is an event sponsored by the Trump campaign. Watch:

At the 5:30 mark, Moore starts out with a lie. Joe Biden does not want to prosecute people for going to church. Moore is outraged that St. John’s Church in Washington D.C. was burned during the protests earlier this month. Please spare us the sermon, Johnnie. If this was any other moment, Moore, who likes to fashion himself a “modern day Dietrich Bonhoeffer,” would be attacking the rector of the church and its congregation for its liberal Protestant theology and commitment to social justice. (By the way, Bonhoeffer adhered to both liberal Protestantism and social justice. Moore’s Bonhoeffer comes directly out of the pages of Eric Metaxas’s popular, but debunked biography).

If you watch this video, you will see nothing but fear-mongering.

At one point in the conversation, Paula White says that Trump is fighting for the First Amendment and the Second Amendment. Since when was the right to bear arms a Christian concern? White claims that the Democratic Party platform says that it is a “party of the Godless.” Just to be clear, there is no such language in the platform. She also goes into what I call the “they are coming for our Bibles” mode. Here’s White: “We can basically kiss our churches goodbye, our houses of worship…we very well could be home churches at that.” As I wrote in Believe Me, this kind of fear-mongering reminds me of the Federalists during the election season of 1800 who thought Thomas Jefferson, if elected, would send his henchman into New York and New England to close churches and confiscate Bibles. (It didn’t happen. In fact, Jefferson was a champion of religious liberty). White believes that we are in a spiritual war for the soul of America. She mentions a conversation with Ben Carson in which the HUD Secretary told her that the forces of Satan are working to undermine Trump.

Moore defends Trump’s record on global religious freedom. Indeed, Trump seems to have made religious persecution abroad a priority. Only time will tell how successful this campaign has been or will be. But notice that Moore says nothing about the president’s approval of Muslim concentration camps in China. Why? Because Moore is not here to tell the whole truth about Trump as it relates to religious freedom. He is here to help Trump get re-elected. Or maybe talking about the religious persecution of Muslims in China won’t help Trump with white evangelical voters, many of whom still believe Obama was a Muslim. Most of Trump’s evangelical followers only talk about religious liberty when it relates to their own causes. Moore knows this.

Moore then attacks Democratic governors for trying to close churches during COVID-19. He has a lot of nerve. It was Democratic governors like Andrew Cuomo (and GOP Ohio governor Mike DeWine, among others) who showed leadership during the coronavirus while Trump was tweeting “liberate Michigan.”

Samuel Rodriguez basically says that if you vote for Trump, you are voting against the legacy of Martin Luther King Jr.

OK, that was hard to stomach. Let’s move on.

Moore is also tweeting. He is upset about today’s Supreme Court decision on abortion, especially Chief Justice John Roberts’s decision to join the liberal justices in blocking a Louisiana abortion law restricting abortion rights:

What does Moore mean when he says that this is the “Scalia-moment” of the 2020 campaign? Here is a passage from Believe Me: The Evangelical Road to Donald Trump:

Already hitting his stride with his base, [GOP presidential candidate Ted] Cruz gained a new talking point in mid-February, with Super Tuesday only a couple of weeks away. When conservative Supreme Court justice Antonin Scalia died suddenly on a quail hunting trip in Texas, and it became clear that the Republican-controlled Senate would not provide a hearing for Merrick Garland, Barack Obama’s appointee to replace Scalia, the presidential election of 2016 became a referendum on the future of the high court. Scalia was a champion of the social values that conservative evangelicals hold dear, and it was now clear that the newly elected president of the United States would appoint his successor.

Cruz seized the day. Two days after Scalia died and five days before the 2016 South Carolina primary, Cruz released a political ad in the hopes of capitalizing on evangelical fears about the justice’s replacement. With a picture of the Supreme Court building as a backdrop, the narrator said, “Life, marriage, religious liberty, the Second Amendment. We’re just one Supreme Court justice away from losing them all.” In an interview with NBC’s Meet the Press, Cruz said that a vote for Hillary Clinton, Bernie Sanders, or Donald Trump could lead American citizens to lose some of their rights. “We are one justice away from the Second Amendment being written out of the constitution altogether,” he said. “And if you vote for Donald Trump in this next election, you are voting for undermining our Second Amendment right to keep and bear arms.” Cruz pushed this appeal to evangelical fear even harder at a Republican Women’s Club meeting in Greenville, South Carolina. He told these Republican voters that the United States was “one justice away” from the “the Supreme Court mandating  unlimited abortion on demand,” and for good measure he added that it was only a matter of time before the federal government started using chisels to “remove the crosses and the Stars of David from the tombstones of our fallen soldiers.”

I wonder if the modern-day Dietrich Bonhoeffer has learned the right lesson from 2016? Some might say that the recent Bostock decision, and today’s Louisiana abortion decision, should teach evangelicals to stop relying on the Supreme Court to “reclaim” America, especially when such an approach to “Christian” politics requires them to get into bed with a president like Trump. But, alas, Moore would never even consider such a lesson because it does not conform to the Christian Right’s political playbook.

Meanwhile, Paula White is supernaturally praying for her Twitter followers:

I’m just curious. Is there  a way to “pray” for a non-“supernatural provision?” Sorry, I had to ask.

Jentezen is also upset about the SCOTUS decision:

Tony Perkins too:

I agree with the idea that every life is valuable, including unborn babies. But putting faith in SCOTUS and POTUS is not the answer.

Robert Jeffress is still basking in the idolatrous glow of yesterday’s Lord’s Day political rally at his church. Here is his retweet of Mike Pence:

A spokesperson for Liberty University’s Falkirk Center retweets Princeton University scholar Robert George. As you read this retweet, please remember that The Falkirk Center supports Donald Trump and Trump is a pathological liar:

She is also upset with John Roberts:

And this:

Sadly,  in light of what we have seen thus far from the Trump presidency as it relates to race and Confederate monuments, this “idiot activist” seems to be asking a reasonable question.

Charlie Kirk is also mad at John Roberts:

It looks like the court evangelicals are very upset about an abortion case in the Supreme Court, but they have said nothing about Trump’s racist tweet over the weekend. I guess this falls under the “I don’t like some of his tweets, but…” category.

John Zmirak, who is an editor at court evangelical James Robison’s website The Stream, is back on the Eric Metaxas Show. He is comparing Black Lives Matter to Jim Jones and Jonestown. The entire conversation, ironically, is about people blindly putting their trust in a strongman. Metaxas wastes no time in connecting Jonestown to today’s Democratic Party. A Christian Right bromance may be forming between these two guys.  Metaxas tells Zmirak: “we are so glad you are on the program today, thank the Lord.”

They also condemn Black Lives Matter. Zmirak calls BLM a “slogan, a “trademark,” and a “brilliant piece of marketing” that is “raising money off of white guilt.” Sounds a lot like another slogan, trademark and brilliant piece of marketing. This one is raising money off of white supremacy.

In another part of their conversation, Metaxas and Zmirak say that Black Lives Matter is wrong from a Christian point of view because all men and women are created in the image of God. In other words, anyone who wants to say that only Black lives matter is actually racist (reverse racism, as they say) because in God’s eyes “all lives matter.” I’ve heard this argument before. Here is a quick response:

Indeed, Christians believe that we are all created in the image of God. As the civil rights movement taught us, Christian faith offers plenty of theological resources to combat racism. Moreover, the Black Lives Matter movement is very diverse. Author Jemar Tisby makes some important points in this regard in Episode 48 of The Way of Improvement Leads Home Podast.

I am sure Metaxas and Zmirak are correct about some of the abuses of the Black Lives Matter movement. But notice what is going on here. Metaxas and Zmirak are really only interested in attacking the Black Lives Matter movement. Since the killing of George Floyd, Metaxas has not offered any sustained empathy or acknowledgement of the pain and suffering faced by African-Americans, either now or in our nation’s history. Yes, he had some black guests on the program, but they were invited on the show for the purpose of undermining Black Lives Matter and rejecting systemic racism. At this moment, when white evangelicals have a wonderful opportunity to think more deeply about the problems of race in America, Metaxas has chosen to divert attention away from these issues by going after the extreme fringes of a generally anti-racist movement.

In his second hour, Metaxas hosts a writer named Nick Adams, the author of a book titled Trump and Churchill: Defenders of Western Civilization. He runs an organization called The Foundation for Liberty and American Greatness. Adams makes it sound like Trump has some kind of agenda to save Western Civilization. This strikes me as very far-fetched since I don’t think Trump even knows what Western Civilization is. Metaxas, of course, loves his guest’s ideas, going as far to say, in reference to World War II (Churchill) and COVID-19 (Trump) that both men carried their respective nations through their “darkest hours.”

Until next time.

When it comes to Supreme Court decisions, context matters. But whose context?

Context

Earlier today, I published two posts on yesterday’s Supreme Court decision on LGBTQ rights. The first post addressed the politics of the decision and what it means for white evangelical support for Donald Trump. The second post dealt with the religious liberty issues at stake. I encourage you to look at them to get up to speed. Here and here.

In this third post, I want to think historically about both the majority and dissenting opinions.

Over at Think, Jessica Levinson, a law professor at Loyola Law School in Los Angeles, explains the conservative judicial philosophy Justice Neil Gorsuch employed in coming to his decision in Bostock v. Clayton County, Georgia and the other consolidated cases. Title VII of the Act forbids “discrimination because of race, color, religion, sex , or national origin.” The debate, of course, is over the meaning of the word “sex.” Gorsuch interpreted “sex” to cover LGBTQ rights.

In another piece, Levinson describes Gorsuch’s textualism. She writes,

Typically, conservative judges and lawyers adhere to the idea that in determining the meaning of words in a law, you look only at those words. You do not look at the context in which the law was passed, or congressional intent. This is called textualism.

No historian would treat a text this way. Frankly, I am not entirely convinced that Levinson offers an accurate description of how most textualists interpret a text. As we will see below, it is certainly not how Justice Samuel Alito or Justice Brett Kavanaugh understand textualism.

But historical context can also be a tricky thing. Gorsuch appears to have ignored it. He writes in his majority opinion:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination of the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statue give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

A couple of quick observations about these two paragraphs:

  1. Does the meaning of a word really exist outside of its historical context? Are we to assume that all words have universal meanings across time? A historian would answer both questions with an emphatic “no.” Historians do not subscribe to the kind of textualism that Gorsuch describes here.
  2. Is Gorsuch correct when he says that the “those who adopted the Civil Rights Act” could never have imagined it being applied to the gay community? This is an honest question. I am assuming Gorsuch is correct, but I am not up to speed on the scholarship here.

In their dissenting opinions, Samuel Alito and Brett Kavanaugh also appealed to the text of the Civil Rights Act of 1964, but they interpreted the meaning of the word “sex” in historical context.

Here is Alito:

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of the five specified grounds: “race, color, religion, sex [and] national origin. Neither “sexual orientation” nor “gender identity” appears on that list.

Alito argues that unless the document specifically says “sexual orientation” or “gender identity,” the Civil Rights Act could not have encompassed these things. He suggests that “sexual orientation” and “gender identity” do not fall under the category of “sex.”

Alito challenges Gorsuch’s textualism with the ideas of the late Antonin Scalia:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion  is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated–the theory that courts should “update” old statues so that they better refelct the current values of society.”

Alito argues that we need to understand the meaning of the word “sex” in the context of the 1960s. He writes:

Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender” status. In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.”

Alito continues:

Thus when textualism is properly understood, it calls for an examination of the social context in which a statue was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statues as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.

For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity?

The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination between sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. 

Alito is writing like a historian here. He wants to understand the 1964 Civil Rights Act in context. This is historical thinking 101. But while judges use historical thinking skills, they are not historians. They are tasked with applying the past to the present.

Brett Kavanaugh’s dissent is shorter, but it also draws on historical context. Here is a taste:

As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from , and not a form of, sex discrimination.

He adds:

[The majority opinion rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is…a mistake of history and sociology.

Again, any historian would have to agree, to some extent, with Kavanaugh’s logic. We try to get our students to see that Seneca Falls and Stonewall were indeed different movements in the same way that the American Revolution, the French Revolution, and the Russian Revolution were fundamentally different “revolutions.” We resist the social scientist’s tendency to clump all “revolutions” or “reform movements” together. Each movement took place in a particular time and place amid a different set of circumstances.

At the same time, we also treat Seneca and Stonewall as part of a larger story of American reform. It is appropriate, at times, to talk about common themes–such as the appeal to the ideas of the Declaration of Independence–that drive this larger and broader story.

But, again, historians are not justices. We are not primarily in the business of telling people what to do with the information we provide and the skills we teach. Kavanaugh was a history major at Yale. During his years studying history, he no doubt learned about Seneca Falls and Stonewall. He also learned to think critically,  make an argument, understand historical context, and reflect on the many ways the past relates to the present. He is now using those skills, guided by a particular judiciary philosophy, to make Supreme Court decisions. His professors at Yale taught him these skills, but they could not tell him how to use them in service to the law. (Although I am imagining that some of them tried).

What strikes me about yesterday’s Supreme Court decision is the fact that it played out, at least in the opinions, as a debate over how to interpret Antonin Scalia’s judicial philosophy . This happened because Chief Justice John Roberts assigned the majority opinion to Gorsuch rather than to one of the Court’s liberal justices.

If Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan wrote the majority opinion, I imagine it might have also appealed to historical context, but in a much broader way.  Levinson suggests what such an interpretation of the Civil Rights Act of 1964 might look like in this case if one of the liberal justices had weighed-in:

Liberal judges and lawyers, however, generally believe that it is appropriate to look beyond the words of the law and at the history and context around the law. But there was no such thing as sexual orientation protections in the 1960s, when the Civil Rights Act was passed, so “sex” in the history and context of the law was not meant to apply to LGBT Americans.

As a matter of policy, LGBT rights should be situated clearly within the larger struggle for civil rights, and discrimination on the basis of gender identity or sexual orientation  should be outlawed in every workplace in the nation.

Again, context is tricky and this case shows that much of the law rests on how much weight a given justice gives to this important “C” of historical thinking.

What Did the Founders Mean By “Bear Arms?”

Reenactment

Here is J.L. Bell at Boston 1775:

Last month Dennis Baron, a professor of English and linguistics at University of Illinois at Urbana-Champaign, published an op-ed essay in the Washington Post on the language of the Second Amendment to the U.S. Constitution:

Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare—they’re almost nonexistent.

A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.

Lawyer Neal Goldfarb checked more variations of the phrase in the same databases and came to the same basic conclusion.

In the 2008 Heller case, as everyone involved in this discussion knows, the U.S. Supreme Court decided otherwise. Writing for the court, Justice Antonin Scalia treated “bear ams” not as an idiom with a military meaning but as a general phrase about carrying weapons.

The data shows otherwise—hardly anyone in the eighteenth century used it as Scalia did. As with the Reynolds case I wrote about here, the court’s finding is simply at odds with historical facts. The Heller ruling overturned legal understandings that prevailed for most of the twentieth century and changed the law going forward, but such rulings can’t change the actual past.

Read the rest here.

What Would the Founding Fathers Think About Originalism?

22c0d-united-states-constitution

Andrew Shankman, author of Original Intents: Hamilton, Jefferson, Madison, and the American Founding and the author of my favorite review of one of my books, says “not much.”

Here is a taste of his piece at History News Network:

President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.

Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.

Testing originalism by investigating the first great constitutional conflict after ratification undermines the claim that the Constitution had one single and stable public meaning for the founding generation. In December 1790 Hamilton, the Secretary of the Treasury, issued a report calling for the national government to grant a corporate charter for a national bank. The bank would manage the large public debt and safely house federal tax revenue. Madison, a national congressman, and Jefferson, the Secretary of State, were appalled and insisted that the bank was unconstitutional because the Constitution did not grant the national government the authority to charter corporations.

Read the rest here.

I also recommend Jonathan Gienapp’s piece at Process, “Constitutional Originalism and History.”

Chief Supreme Court Justice John Marshall Was a Lame-Duck Appointment

MarshallOver at the blog of Oxford University Press, historian R.B. Bernstein reminds us that John Marshall, the man who many consider to be the most influential Supreme Court Justice in American history, was a so-called “lame-duck” appointment.

Here is a taste:

Those who argue that lame-duck presidents should not nominate justices to the Supreme Court have forgotten or ignored the most consequential appointment in the Court’s — and the nation’s — history: President John Adams’s 1801 appointment of John Marshall as the nation’s fourth Chief Justice.

The vacancy in the Chief Justiceship did not arise until after the 1800 presidential election, in which Adams lost his bid for a second term, and the disputed tie between Thomas Jefferson and Aaron Burr persisted into 1801. Chief Justice Oliver Ellsworth, whom Adams had sent to France to negotiate a treaty to bring an end to the 1798-1800 “quasi-war” between France and the United States, sent the treaty that he had negotiated to President Adams – accompanied by his letter of resignation from the Court….

The Ellsworth resignation complicated President Adams’s life far beyond what he could have foreseen. Adams faced a multi-level crisis in American politics — how to respond to the seeming failure of all efforts to break the deadlock in the House of Representatives between Jefferson and Burr for the presidency; how to deal with the Federalist-dominated Congress’s efforts to reform the federal judiciary, both to make it more efficient and effective and to create many new judicial posts for Federalists; and whom to choose to replace Ellsworth.

Many Federalists called on Adams to name a die-hard High Federalist, in particular advocating the nomination of Justice William Paterson, a man whom Adams distrusted as an ally of such High Federalists as Alexander Hamilton and not a friend or supporter of the President. Adams also faced suggestions that he promote another Associate Justice, William Cushing, to the chief justiceship – even though Cushing had turned down such a promotion back in 1795, after the resignation of the first Chief Justice, John Jay, to become governor of New York. Some Senators even proposed that Adams name himself the new Chief Justice, an idea that the president rejected with scorn. Adams instead chose to name Jay to his old job, and the Senate confirmed the appointment. Though Jay seemed an ideal choice, liked by both factions of Federalists and a holder of the position from 1789 to 1795, nobody had asked Jay whether he wanted to return to the Court. On receipt of the news of his nomination by the president and confirmation by the Senate, Jay wrote to Adams thanking him for the honor but frostily rejected his reappointment, on the grounds that the federal judiciary was neglected, undervalued, and frustrating for those serving on it, and declaring his absolute refusal of reappointment.

In turn vexed by the choices before him, Adams turned to Marshall, his Secretary of State. Marshall was a loyal supporter of President Adams, a Virginia Federalist, an excellent attorney, and a widely-praised diplomat; in addition, Marshall had served Adams well as Secretary of State for a year when Adams decided to nominate him for the Chief Justiceship. Adams nominated Marshall with only weeks remaining in his presidency. Though the Federalist Senate at first was reluctant to agree, preferring a High Federalist like Justice Paterson, they knew that Adams would not nominate him (something that Adams had already told Marshall with considerable heat). The Senators realized that rejecting Marshall would create a deadlock that would leave the vacancy on the Court to be filled by Thomas Jefferson or Aaron Burr. Such a prospect was too dangerous for them to accept, and they confirmed Marshall.

John Marshall served 34 years as Chief Justice and left an extraordinary mark on the nation’s history and on American constitutional development. His judicial opinions on such matters as judicial review, federalism, national supremacy, and interstate commerce form the spine of American constitutional law. Nearly two centuries later, we live in the constitutional world that John Adams and John Marshall helped to create, a world that is now the nation’s heritage. And the Marshall precedent cuts against claims by leading figures in today’s Republican Party that no lame-duck President should make an appointment to the nation’s highest court.

Read the entire post here.

Stephen Colbert “Salutes” Antonin Scalia

I always knew Scalia was a polarizing figure, but the hatred toward the man that I have been seeing on social media this week has been disheartening.  These comments seem to go beyond just ideological difference.

As a historian, I want my students to understand the “original intent” of the United States Constitution.  But I also want them to see that the document is a product of the late-18th century.  In other words, it is a product of a very different world than the one we live in today.  So I have always been somewhat suspect of the kind of originalist interpretations that Scalia espoused.

But I digress…

I am enjoying some of the stories of Scalia’s humanity being passed along by those who disagreed with him.  For example, check out David Axelrod’s story about a conversation with Scalia concerning current Supreme Court justice Elena Kagan.

And now Stephen Colbert has entered the mix:

The Response to Scalia’s Death

Scalia

Three thoughts:

  1.  Political posturing was already taking place within minutes of the announcement of Scalia’s death.
  2.  After the announcement of Scalia’s death a lot of liberals, glad to see the conservative judge dead, turned to social media to write very negative comments of the “good riddance” variety.
  3.  Conservatives appalled by these anti-Scalia comments wrote social media posts to criticize the liberals who wrote them and, in the process, score their own political points.

A Lesson from the Scalia-Ginsburg Friendship

Scalia Ginsburg

Antonin Scalia and Ruth Bader-Ginsburg disagreed on just about everything, but they were very good friends.  They would spend New Year’s Eve together.   They took trips together. From all reports they really enjoyed one another’s company.

I am guessing that such a relationship was possible because they realized that life is more than just ideology.  Scalia and Ginsburg knew one another not merely as rival constitutional thinkers, but as human beings.  They were more–much more–than merely the sum of their beliefs.

There is a lesson in there somewhere.

Ted Cruz’s Commitment to Original Intent Will Be Tested Tonight

The death of Justice Antonin Scalia will shape tonight’s GOP debate and will, of course, shape the rest of this presidential campaign. That almost goes without saying.  I fully expect that tonight in Greenville, South Carolina the debaters will use Scalia’s death to stress the importance of this election.  Yes–all three branches of government are now “up for grabs” in November.

Ted Cruz has already weighed in on Twitter:

Here is what Senate Majority Leader Mitch McConnell had to say: “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

I am trying to be objective as possible here.  I have my views about what I would like to see in the next Supreme Court justice, but I am not going to go there in this post.  I am curious, however, about the proper procedure for nominating Supreme Court justices.

According to Article 2 of the Constitution, the President of the United States is responsible for the appointment of Supreme Court justices.  If I understand the original intent of the Constitution, this is to be done by a sitting president, not a future president.  Unless I am missing something, Barack Obama is the sitting president of the United States.  He still has about 25% of his term left.

So I guess I don’t understand the argument that Cruz and McConnell are making.  The framers of the Constitution did not say that the people have a direct role in choosing Supreme Court justices.  They have an indirect role.  In other words, the people elect the POTUS (well, technically the Electoral College does, but we won’t go down that road right now) and the POTUS picks the justices.  In 2012, the American people chose Barack Obama as POTUS.

I don’t see how someone like Cruz–a defender of “original intent”–can see this any other way.  Unless, of course, Cruz and McConnell think it is OK for politics to trump original intent.

What am I missing?

Antonin Scalia R.I.P.