Posts Tagged ‘Constitution’

I love my country and I respect our flag. I put up my flag for Independence Day and leave it up through Labor Day. I stand for the National Anthem even when I’m just hearing it at home. I help my wife with her “Tools for Troops” nonprofit. I visit the Vietnam Memorial 100% of the time I go to D.C., even though I despise that war. I applaud for returning military when I see them in the airport. I thank every military person I see for their service. I have gone to Arlington National Cemetery for the laying of the wreath at the tomb of the unknowns even when I detested the President who laid it. I read both the Cato Institute’s and the American Constitution Society’s annual Supreme Court case reviews. I love America.

So, you might think I don’t approve of NFL players who kneel during our National anthem. You would be wrong. Here’s why.

The primary thing that makes me so love America is our theoretically unbounded notion of liberty. Unlike China or North Korea we don’t have state controlled media. Unlike Iran, Iraq, Malaysia, Afghanistan, and most Muslim countries we don’t have law tied to Religion. Unlike England, we don’t have a state sanctioned church. We have a notion of Liberty that is broader than any other country. Not democracy – LIBERTY.

Unfortunately, the man we have elected President is the anthesis of all my concept of America represents. He will propose firing NFL players who kneel while praising white supremacists as including some good people. He stereotypes Muslims. He wants to stop our free media. He wants to let fundamentalist Christianity drive our laws. He is – in short – the exact opposite of me.

President Trump has the liberty to divide America all he wants. But, we citizens – NFL Players included – have been afforded equal liberty by our constitution. So, even though I revere our country, I love the flag, and I will always stand for the anthem, I revere far more the liberty upon which those things are founded. So, like it or not, I unconditionally support the NFL players, coaches, and owners who exercise their first amendment rights to protest the aspects of our country against which they feel it necessary to fight.

I stand for the first amendment and must thus stand with the NFL.

Dear Mr. President. 

I know you are doing exactly what your supporters want. They are happy to see you “doing what you said”. I will admit, that is a rare trait and I know why your supporters approve. I, personally, don’t approve – but the magic of American polity is that I don’t have to. 

There is something else magical about the American political system. That is its built in infrastructure of checks and balances. As you do all the things that you promised your supporters, I urge you to remember that this system is not only critical but it is, to paraphrase you, exactly the unique attribute that “makes America great”. If you want to “make America great again” then the you should strengthen, not weaken, our system.

Please remember that there are 3 branches of government. The whole purpose of that is to have these crucial pillars of checks and balances. 
Understand that the position you hold is only one of the 3 pillars. As you pursue the will of your supporters, you must not forget the other 2 pillars. 

Your power is expressly limited and that is on purpose. Perhaps the pillar most associated with these checks and balances is our independent judiciary. I urge you to remember two things.

First – You are a president not a king.

Second – Just because a Judge does not agree with you does not make him a “so called Judge”. 

Please learn to deal with the rest of our government with professionalism and respect. You are but one of 3 EQUAL branches. In fact, if you read the constitution you will find that yours is the most limited branch of all. 

Our Declaration of Independence freed us from the rule of a king. Our Articles of Confederation tried, but failed, to loosely bind us. Our Constitution came into being to truly unite the people of this land in a way that created a single federal government but not a single governing body. It is a work, however flawed, of genius. But, it only works with 3 equal branches and a politically independent judiciary. Let it work.

I know how easy it is to want to be the king but, we the people don’t want a king. You won an election. Now govern according to the rules.

Please give it some thought and let me know if you want me to send you one of my Cato pocket constitutions. I’m happy to share.

Your citizen,


I love the United States of America. I love our freedom, our concept of personal liberty, and the ability we have to freely write blogs like mine. This is the only country I want to live in. That’s why I’m here. That’s also why I feel like I  need to speak out when I have concerns. That is why I want to share some highlights from an article that well expresses my fears and why I want to share some personal thoughts on it. So, here goes…

Two days ago, The Atlantic Monthly published a piece by Connor Friedersdorf that says exactly what I wish I had said, only much better than I could have said it. I want to thank Mark London Williams my cousin and dear friend for directing me to the piece. Friedersdorf begins with an extremely opened minded potential assumption that says:

Let’s assume that George W. Bush, Dick Cheney, Barack Obama, Joe Biden, their staffers, and every member of Congress for the last dozen years has always acted with pure motives in the realm of national security. Say they’ve used the power they’ve claimed, the technology they’ve developed, and the precedents they’ve established exclusively to fight al-Qaeda terrorists intent on killing us, that they’ve succeeded in disrupting what would’ve been successful attacks, and that Americans are lucky to have had men and women so moral, prudent, and incorruptible in charge.

He then goes on to remind us that our government is biennially and quadrennially in flux by reminding us that:

The American people have no idea who the president will be in 2017. Nor do we know who’ll sit on key Senate oversight committees, who will head the various national-security agencies, or whether the moral character of the people doing so, individually or in aggregate, will more closely resemble George Washington, Woodrow Wilson, FDR, Richard Nixon, Ronald Reagan, John Yoo, or Vladimir Putin.

He continues by expressing a concern that I have held, and continue to hold. He says this:

What we know is that the people in charge will possess the capacity to be tyrants — to use power oppressively and unjustly — to a degree that Americans in 1960, 1970, 1980, 1990, or 2000 could’ve scarcely imagined.

This conclusion, which he again states better than could I, is:

Bush and Obama have built infrastructure any devil would lust after. 

This, Friedersdorf says, is because we have taken the our fear of terrorism and converted it into a simple mechanism that allows our leaders to forsake accountability in the name of safety. Consider this:

…we’re allowing ourselves to become a nation of men, not laws. Illegal spying? Torture? Violating the War Powers Resolution and the convention that mandates investigating past torture?

No matter. Just intone that your priority is keeping America safe. Don’t like the law? Just get someone in the Office of Legal Counsel to secretly interpret it in a way that twists its words and betrays its spirit.

You’ll never be held accountable.

And, why do we let these guys do this? Friedersdorf:

…we’re so risk-averse — not that we’re actually minimizing risk — that we’re “balancing” the very rights in our Constitution against a threat with an infinitesimal chance of killing any one of us…

In other words, by allowing the federal government to use secret, virtually unconditional, minimally constrained surveillance to implement a “big data” project whose target is American citizens, we  undermine the foundational premises of America. We sacrifice liberty and freedom to assuage fear.

So, let’s return to the first. very generous, assumption that everyone involved so far is moral, ethical, of total integrity, and only doing what’s they truly believe to be in our citizens’ best interest. In such a scenario we can ask: “is it okay to give up some liberty for some safety?” The answer may well be: “yes“. But remember that this is a very slippery slope. So, let’s re-consider the concept a bit and think about this:

Is it okay to build a comprehensive infrastructure, and to set a wide variety of precedents, that would allow a future leader, who may NOT have our best interests in mind, that allows American liberty to be undermined in the name of “safety” and “protection”? My personal answer is “no”. My opinion comes from the fear of the “slippery slope” and the very small step necessary to move from “protecting America” to autocracy and dictatorship. Even if that ultimate situation is very unlikely, unconstrained surveillance is not all that far from “Big Brother” in action; so, in my mind, along our current path we are…

… Stumbling toward Totalitarianism.

(Oh, by the way, “hi guys”.)

I am clearly the product of the 1960s and 1970s. Many of my first political views came about while running around Telegraph Avenue in 70’s Berkeley. But, over the years, I moved very far toward the center from the positions of my youth. In some cases I have to admit I moved right of the center point.  One of those areas was that of constitutional interpretation. I used to read both the Cato Supreme Court Review and the constitutional analysis from the American Constitution Society; only the former was anything I could really relate to. Even though I’ve become more tolerant of those who broadly interpret the constitution, I still read the Cato Supreme Court Review every year and I think it’s the only solid annual summary of the supreme court year. But, my mind is much more open than it once was.

A digression (But not really)…..

One thing I really dislike about organized religion is dogma. I admit that I have very little tolerance for fundamentalist Christians, Muslims  Jews, or anyone else who will set aside science and rational discourse purely because they believe every single word of their holy scriptures. For example. when someone denies the science of evolution through random variation because their old book says the Earth was created in 6 days, I really don’t get it at all. Some of the smartest people I know fall into that group and I don’t understand how. I love studying Torah. But, I can’t take a single word of it as anything but multiple layers of meaning. Jews don’t study the bible as if it has only one single literal meaning. We look at it as being a beautiful text of manifold layers. In particular, there are 4 distinct layers of meaning in Torah study. They are:

The P’shat Layer

P’shat level is the plain sense of meaning of the words. We read that G-d created Eve from Adam’s rib and we understand the story. This it the level where my fundamentalist friends stop.

 The Drash Layer

Drash is the first interpretive level in which we try to understand what the story means, even allegorically, to us personally. This is the level that I am most interested in. What does “6 days of creation” mean? Six Earth days? Six “God days”? Six increments of geological strata? What? And what can we learn from it? This is what I like to do.


The Remez Layer of a story provides deeper hints about what the story might be telling us if we analyze it closely. For example, Remez might consist of understanding the  gematryia (or numerical value) of each letter or word. I’m not saying that I believe this, I’m just saying it’s a technique. Here we look for deeper meaning.


This is a level of mysterious and coded meaning. It is generally a mystical interpretation that I have to admit I enjoy discussing but which I don’t believe has all that much relevance for myself.

A Return…

So, here I was: acting like a strict constructionist about the US Constitution but constantly getting visibly agitated by those who take the same hard-line toward scripture. And the realization of that hit me like a rock. All of the sudden Ruth Bader Ginsberg’s interpretive method made sense to me! By no means does this mean arbitrarily rewriting the constitution. I love it too much to believe we can do that. But it does mean that I need to be willing to accept that some very smart people can, should, and will try to adapt its words to the 21st century. I don’t have to agree with them when they try to use the commerce clause to justify all manner of legislation that they feel like trying to pass, for example. But I do need to respect them even if they don’t think what I think they should think. My rationale is simply that I can’t be intolerant towards people who want to take a hard-line stance on a document like the Bible and then take the same hard-line stance on other documents, myself. It’s just not in my nature.

Perhaps we can learn a lot by applying religious texts to our modern life and, perhaps, we can learn equally much by applying the words of our founders to that same modernity. Unless, of course, you want to assume the infallibility of either document. In the latter case, we know it’s not perfect because we have an amendment process born of the inherent compromises in its creation (unless you think the 3/5 rule, for example, indicates infallibility!). In the former case, my opinion is that no religious document is infallible because I refuse to believe that only one group of the world’s people is “right”. That too is not in my nature.

A Conclusion…

So, I will still use the Cato review as my gold standard for constitutional review. But, these days, I’m far more flexible when in comes to progressive interpretation. I may disagree with some progressive interpretations but I don’t think it’s “wrong” to interpret.

Then again…….. I could be wrong 🙂

‘Course… That’s not in my nature either.

Rick Perry wants to be the President of the United States. There are folks who might think that’s a great thing but, I’m here to tell you today that he should be disqualified and should not even be able to be on the ballot.

The United States of America is NOT a Christian country. This country is a country of diversity and inclusiveness. WELL NOT TO MR. PERRY! He says this:  “As a nation we must come together and call upon Jesus to guide us through unprecedented struggles and thank Him for the blessings of freedom we so richly enjoy.” Brother Perry, I’m sorry to tell you this but we have an establishment clause in our constitution. It says that the government “shall make no law respecting an establishment of religion…” You are free to exercise your right to talk to Jesus all you want but you can’t tell the rest of us that we should do it. That is strike one, my friend.

Now, some evangelical Christians will say that the founders of this country were Christians and established the country on Christian values. Aside from that simply being nonsense, in general, even the founders themselves deny it. For example, the great John Adams, among our country’s most active founders, himself stated: “It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses.” He also began the 1797 Treaty of Tripoli with the words: “As the Government of the United States of America is not, in any sense, founded on the Christian religion,...” Now, if Adams doesn’t speak for the founders then who does? Surely not Bachamnn and Perry, and Pawlenty, then their ilk. Indeed not. The founders themselves disagree with you Rick. That is strike number two.

Finally, here is what the good Mr. Perry said about how much he and his followers love our country: “Indeed the only thing you love more is the living Christ”. That is not the nice sentiment that it seems to be, my friends. Oh no. What I think that Mr. Perry just said is that  fundamentalist Christian doctrine supersedes American constitutional doctrine. That violates the establishment clause; but, more importantly it violates the foundational principle of our leadership: to swear to uphold the constitution of the United States of America. How can you swear to uphold a constitution whose doctrinal essence you directly state is subservient to the doctrine of your religion!  As far as I’m concerned that disqualifies Perry to even contend for the job of  the lead defender of the American Constitution. Not only is that strike three, my friend, but it would disqualify you even if there weren’t 2 other strikes ahead of it.

So, my response to Governor Perry is this: I think not. I think that you are dangerously close to placing Christianity above Americanism. My people have made it through life without “the living Christ” for thousands of years. The American people have made it through two centuries of defending the most profound constitution of government in the world with not only “the living Christ”, but also with Buddhism, Judaism, Islam, Hinduism, Atheism, Agnosticism, Mormonism, Catholicism, and a hundred other -isms. “The living Christ” is your path and that is an awesome thing for you. But it does not qualify you to govern and, if you put it above all else, then it certainly does not qualify you to defend the American constitution.

So, in my humble opinion Rick Perry should simply be disqualified. QED