The attack on the U. S. Constitution is done by ICE and new voting initiatives.
No Kings Day on Saturday, March 28th, was a great success because there were marches around the country and the globe doing the kind of demonstrations I admire: friendly, non-violent and, like MLKJr., they brought their own security to insure grandmas and grandchildren were safe. The potsters on No Kings Day were free to speak their minds and so were unlike the pro Palestinian encampments where only official spokespersons were allowed to speak to the press. Protesters assembling around a slogan that summarizes the message, which in this case is constitutionalism, the defense of the balance of power and the Bill of Rights and principles as old as the English Bill of Rights from 1689, even though organizers have added on gas prices and grocery prices and the war on Iran to take advantage of what polling numbers say are the issues of the day.. A bit of sunshine in a gloomy time. To my mind, however,the heart of “No Kings” remains constitutionalism
Many of Trump’s actions that were regarded as unconstitutional have become regarded by courts as at least illegal though often for other reasons. A court found that the new ballroom could not proceed because it required congressional authorization while I also thought it was also unconstitutional because it was an emolument because donors rather than the treasury was footing the bill, the emoluments and the purse strings amounting to the same thing. Another court found that Trump could not defund NPR and PBS while I thought any number of agencies, such as USAID could be stripped of their funds also without congressional authorization. The biggie is the court decision that allows citizens to sue Trump concerning damages about January 6th despite the Supreme Court decision that the President cannot be sued for events related to his official capacity. The loophole is that any Presidential action that is illegal is ipso facto outside his official capacity and so fomenting a riot is not a part of his discretion but subject to judicial action. Trump will be hounded to death until he dies.
But there needs to be some elaboration of old Trump violations of constitutionalism and the description of some other ones to show just how horrendous is Trump’s assault on the Constitution. A central point is that the activities undertaken by ICE to detain residents and deport them without due process of law is not just a cudgel Democrats use to embarrass some mistakes that unfortunately died in Minneapolis and is an atrocity case that disrupts a legitimate policy. Instead, it goes to the heart of constitutionalism as that is enunciated by the first and fourth amendments and so is not just a political edge the Democrats might get. The first amendment says that freedom of speech is to be understood as observing what is happening in the public streets and protesting about that behavior so long as the protesters do not interfere with the work of officials. The protesters used whistles to let residents know that ICE was on the prowl. They are providing groceries to peo[ple afraid to go out of their houses. The protesters jeer the ICE agents. Those could be considered interference with ICE agents only if normal commerce and free speech were considered interference because of displeasure being expressed and if ICE agents arrested people for jeering for interference and grocery trips as abetting criminals. Not even ICE has gone that far.
the fourth amendment says that all people and not just citizens are entitled to be safe in their homes unless a judge has given a warrant to go into that house.The fourth amendment does not say a judge has to do that but it is not necessary to look at what the term wartrent meant in the eighteenth century to understand its plain and clear meaning. Look at the nature of the activity. A warrant is sworn to under oath because it is an adversarial procedure. The judge is reluctant to allow people’s houses to be intruded so as to promote the sanctity of the home. The executive agency wants to intrude on the house because they think foul play is involved or the person inside the home is arrestable. The petition for the warrant on the penalty of perjury suggests that the seeker of a warrant may stretch things or just lie. Therefore, it makes sense for someone outside the executive branch will decide if the warrant is justified. Other executive agencies might rubber stamp one another as might happen if administrative warrants, which simply acknowledge that a paper trail procedures took place. So executive agencies can’t provide warrants. Neither can the legislative branch. Legislative warrants led to the execution of Charles I and the French Reign of Terror. Only an independent judiciary can be entrusted to provide warrants. That is bedrock for the rule of law.
Here are some other Trump assaults on the Constitution. Trump tries by executive order that birthright citizenship is to be abolished even though the Fourteenth Amendment says that all persons born within the confines and under the jurisdiction of the United States are citizens by birth. The exceptions at that timer were native Americans, who were not under control and so part of American jurisdiction or, prospectively, children born within a part of the United States that was occupied by a foreign power. That includes people who are tourist births, meaning people who have travelled to Guam so that a Chinese person could be born there so as to have a child who has American citizenship, as also happened when Jews returned to Germany so as to get reparations but flew to the United States so that their children would have American citizenship. You never know when you might need an American passport. The fear here is that America would be overwhelmed by their tourist children. But there are not that many and, anyway, we want the Chinese children to locate in the United States and become the next generation of American scientists. That is the way previous generations of scientists were developed: Americans trained in Europe who came back or immigrant children who stayed here. The problem for America is not whether foreigners want to come here. The problem is when people might want to leave, and that is happening for some graduate students from abroad who now find Trump immigration policy unsettling, non-citizen residents being harassed and so no longer welcome.
Moreover, there is a very fundamental issue at stake as to the nature of being American. Doing so is not a matter of ethnicity. France is for the French. The Germans are in Germany. The Jews are in Israel. But the American Republic was founded on a very different principle. It had no ethnicity even though it was originally settled by British and Scottish stock. Membership in the Republic was the result of having allegiance to the Constitution. It was a voluntary contract for adults who came and granted to their children by their birthplace rather than their putative ancestry. This radical principle is chal;langed by those very much in the Right wing who think that there are legacy citizens, which means people who have been in the United States for sufficient generations to be considered true Americans, but that is a slippery slope. Blacks are heritage Americans however turbulent their history or present because they have been here a long time and Hispanics who have even arrived illegally into the United States and have been law abiding for ten or twenty years could qualify as heritage citizens even if Ice does not recognize them as having earned that status while fellow Minnesotans, for example, clearly regard these people as their own.
Another test of the constitutional framework is raised by the recent Supreme Court case concerning whether Mississippi can extend mail balloting to those ballots mailed in and postmarked by Election Day and challenged that such ballots are illegitimate. That assertion goes against the idea that the conduct of elections is under the jurisdiction of the states rather than the federal government so as to ascertain that the federal government cannot interfere with elections, manhandling elections so as to get what the incumbent administration wants. It is an arbitrary decision in that it does not preclude mail in ballots before election day and is just a way to eliminate the voters of the incumbent administration who think that the mail in ballots favor the opposing party. The idea of democracy that embellishes this states rights point of view is that the government’s aim is to make voting as easy as possible, neither insisting on travelling long distances or suffering poll taxes or literacy tests to eliminate people, and, I would suggest, providing election day as a holliday. The role of the federal government was to intrude on states only because it was shown that statues were circumventing voting on the basis of race and that allowing citizens to vote could not be curtailed by the states. A clear test of whether a voting bill is inclusive or exclusive is whether the state or the federal government provides the means whereby voting can be made easily available. Those who want voter id cards backed by a passport or a birth certificate do not provide in the legislation for an easy access number whereby the government will quickly address the necessary paperwork to get a voter id card. The burden is on the citizen and given the fact that there are so few, some miniscule number, of illegal voters, it is clear that this is a solution with no problem, only an attempt to discourage the vote.
Another election issue is also a threat to American constitutionalism. ICE officers are present at airports so as, supposedly, to facilitate screening of passengers, But their presence is a threat to any undocumented alien who might be travelling. Will they be picked up at the terminals? The same fear holds with elections. ICE people might be stationed at polling places. That might discourage citizens from voting because their Hispanic visage or accent leads ICE people to detain and deport them/ That creates a chilling effect on voting which is the life blood and the final resort of the citizenry, even beyond free speech and freedom of assembly. Military figures have already said that it would be illegal for the military to be posted in voting places, but the goon squad of ICE, beholden only to the President, might be told to intrude. And that way democracy, which has gone on for two hundred years, just fifty years short of the life of the republic, could become undermined.