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Do They Really Want Viewpoint Diversity?

The Trump administration is pressuring Harvard University to have greater “viewpoint diversity.” The Trumpistas have not defined the term nor is it self-evident. This is an administration that has sought to stop the consideration of certain topics in schools and elsewhere. We do know that they consider discussions of institutional racism and certain gender issues to be verboten in classrooms. Some people cannot enter the country if they have criticized Israel. Lawful residents may get deported if they speak out on behalf of Palestinians. The administration, apart from Harvard, is trying to prevent viewpoints from being heard, not expanding the diversity of them.

Many reports indicate that Harvard has few faculty members who identify as conservative. The inference from the right is that Harvard students are being indoctrinated with liberal thinking and that such indoctrination must change. If there is indoctrination, however, it is in a narrow curricular space. In many courses the political affiliation of the instructor does not matter. The content of math, physics, astrophysics, chemistry, molecular biology, and many other subjects will not be affected by whether the professor is conservative or liberal.

Of course, the political perspective of professors might intrude on certain subjects (political science, economics, etc.), but that does not mean that students are affected by those professorial views. I have not seen, but would like to, a good study of how student political thinking changes during one’s years at Harvard. This study would require the collection of similar data from other colleges to see if any shifts might be the result of Harvard’s education or is simply the normal maturation process that students go through everywhere. Of course, we already know that the supposed liberal indoctrination — if it is, indeed, there — does not always work. Many famous, adamant conservatives have gone to Harvard, including Ted Cruz, Steve Bannon, and Ron DeSantis. If they have escaped the liberal indoctrination and have learned to “think for themselves,” surely other Harvard students can do and have done the same.

A thought experiment: How effective is the so-called “indoctrination” by Harvard? If you personally know any Harvard graduates, how many are in positions that seek to radicalize the country? How many are commie-pinkos? As far as I can tell, Harvard has not been very successful in turning out cadres of radicals. The predominant choice for a starting job for Harvard undergrads is finance. They want to make money, not destroy the country. Something similar is the choice of business, medical, and law school graduates. This, perhaps, is not necessarily good for the country, but not in the way that the Trump administration fears.

And anyway, why should the Trump administration be able to dictate viewpoint diversity at Harvard or any other university? The Trump acolytes have not made that clear, but apparently it is because the federal government gives money to Harvard for research and programs, and they think that Harvard should toe the conservative line if they are to get those funds. That is not a sufficient reason. Title VI of the Civil Rights Act of 1964 (which many conservatives opposed), specifically forbids discrimination by programs and activities that receive federal funds on the basis of race, color, or national origin. (It does not prohibit religious discrimination, but antisemitism has been seen as a form of discrimination on the basis of national origin. That is a story for another day.) However, that Civil Rights provision does not insist on “viewpoint diversity.”

If viewpoint diversity is required of an organization that gets money from the federal taxpayers. shouldn’t that mean that an activity or program that gets all of its money from us taxpayers should have to have viewpoint diversity, too? What entities get all  their funds from the taxpayers? Answer: any division of the federal government. If Harvard is required to have viewpoint diversity, surely the same should be required of the federal government Trump has tried to appoint right wing judges. That should end if his position on viewpoint diversity at Harvard is right. State Department appointments should be viewpoint diverse as should those in the Justice Department. And so on throughout the federal government. Perhaps the Trumpistas should be concerned about winning the day at Harvard. On the other hand, they have never been famous for philosophical consistency.

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The First Was the Third

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment to the Constitution of the United States of America.

The email came from Kelly Shackelford, Esq., the President, CEO & Chief Counsel of First Liberty Institute, an organization that advocates and litigates for what it sees as religious liberty. Shackelford said, “Our Founding Fathers always intended for religious liberty to be our nation’s foundation. It’s why they made religious freedom our First Freedom.” One can argue with that first statement. At least in the formal sense, those founding fathers (as well as their fellow countrymen) were not particularly religious. One can, however, not argue with the second statement. It is flat wrong. The founding fathers, at least in our founding documents, did not make religious freedom our first freedom.

A popular misconception is that the rights in the First Amendment were considered the most important ones by our founders because they come first in the Bill of Rights. Since the religion clauses initiate the First Amendment, they are assumed to be the most essential rights among those collected in the initial amendment.  Shackelford is not alone in this misconception. For example, Trump’s Secretary of Education in his first administration, Betsy DeVos (whatever happened to her?), said in an op-ed piece: “There’s a reason why the First Amendment comes first. Our country was founded upon the ‘first freedoms’ it protects. The freedom to express ourselves — through speech, through the press, through assembly, through petition and through faith—defines what it means to be American.”  Alberto Gonzalez, Attorney General under George W. Bush, said something similar years earlier, stating that religious freedom is the country’s first freedom because our founders saw fit to place it first in the Bill of Rights. We should give primacy to First Amendment rights because they come first, he said, and continuing that logic, we should give primacy to the religious provisions because they are the first of the First Amendment. 

 The rights of the First Amendment don’t come first in the Constitution. They come after the seven articles of the Constitution that were drafted in 1787. Moreover, the initial amendments were drafted in 1789 and didn’t go into effect until December 1791. Our Constitution granted plenty of rights before the Bill of Rights existed, and if rights are to be measured by their placement, then these original freedoms coming years before the First Amendment must be more important than the religious and speech provisions.

For example, Section 9 of Article I prohibits the suspension of habeas corpus except when a rebellion or invasion may require it. The subsequent paragraph prohibits a bill of attainder (a legislative act that declares a person or group of people guilty of a crime and imposes punishment without a trial) or an ex post facto law (one that retroactively changes the legal consequences of an action taken before the law’s enactment). The next Section 9 provision gives yet another right: No direct taxation that is not based on the census. This was an important right until it wasn’t. The Sixteenth Amendment, ratified in 1913, wiped out the no-direct-taxation provision by explicitly authorizing an income tax. Our rights, it turns out, are not immutable.

Section 9 contains two other provisions that we seldom think about but were truly essential foundational rights for this nation, because without them we would not be one country: “No Tax or Duty shall be laid on Articles exported from any State. No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one state, be obliged to enter, clear, or pay Duties in another.” We are welded into one entity because goods and transport can freely travel among the states. Without this provision we would only be a collection of fifty fiefdoms.

The founders also placed important rights in Article III, which provides a narrow definition of treason and requires “the Testimony of two Witnesses to the same overt Act, or on Confession in open court.” It also eliminates punishments for treason that had existed in Europe. Finally, Article III, Section 2 guarantees jury trials for crimes. (If the importance of a right is measured not by its placement in the Constitution, but by the frequency of its protection, then juries are the most important constitutional right since juries are guaranteed not only in Article III but in the Fifth, Sixth, and Seventh Amendments as well.) In other words, First Amendment rights should not be given primacy because they come first; they don’t.

First Amendment rights, however, come first in the Bill of Rights, and surely that indicates our founding fathers saw First Amendment rights as having primacy. Wrong again. In fact those founders did not intend for the First Amendment to be first.

The inaugural Congress submitted twelve amendments to the states, and the First Amendment was, at that time, the Third Amendment. The states in the eighteenth century, however, did not ratify the first two proposals, and the Third became the First. But, you ask, what about the two proposed amendments that were not ratified with the Bill of Rights? Each is an interesting story providing several lessons.

The first proposal, passed by a two-thirds majority of both houses of Congress, said that after the initial census, “there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by Congress that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.”

Got that? The Constitution mandated that the original House of Representatives have 65 members, and after the first census, it grew to 105. It continued to grow but was capped in the early twentieth century at 435 members where it now stands. But what if that initial proposal had been ratified? (And it almost was, falling one state short in 1792.) Its meaning has been debated, but since that proposed amendment did not take effect, we don’t have an authoritative reading. Some scholars, however, have maintained that the unclear language would require a House of Representatives today with as few as 800 and as many as 5,000 Representatives. It is fortuitous that the first proposed amendment was not ratified, and we should learn that those early constitutional drafters like James Madison and his fellows were not superior geniuses with accurate crystal balls.

The second proposed amendment that did not get adopted with the original Bill of Rights reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Here the language and purpose are clear. Our representatives should not be able to raise (or lower, ha ha) their pay until the voters have had the chance to (re)consider those who will receive the remunerative change. Clear, and to the real constitutional nerd, the language is recognizable; it is the text of the Twenty-Seventh Amendment, the last to have been adopted.

Say what? Yes, it’s true. The proposed second amendment was largely forgotten after it failed to be ratified in the 1790s, but in 1982, Gregory Watson, a University of Texas sophomore, wrote a political science paper contending that the old proposal could still be ratified since it had no time limit for ratification. His essay received a “C.” His grader thought Watson’s thesis was farfetched, but Watson set out to show up his teachers. He lobbied state legislatures to adopt the proposed amendment and met with success. States ratified what was once labeled the Second Amendment, and the amendment was officially ratified on May 7, 1992, as the Twenty-Seventh Amendment. A proposal submitted by Congress to the states in 1789 became part of the Constitution two centuries after it was first proposed because of an incredibly determined (or pissed-off) student. (Watson’s grade in the course was retroactively changed in 2017 to an A+.)

There are lessons here. One person can make a difference. A liberal arts education can have value besides consigning the recipient to the Burger King counter. Modern politicians can be responsive. A poor grade can motivate some students. Perhaps there are other lessons to be drawn; I’ll leave them to you. But it is surely not the case that First Amendment rights were meant to have primacy because they come first in the Bill of Rights. The notion that our country’s founders regarded First Amendment protections as the most important because they placed them first in the Bill of Rights is revisionist–dare we say fake–history?

And this fake history misleads. When the revisionists talk about a First Liberty, they are referring to the free exercise of religion, but that only comes second in the First Amendment. It is proceeded by the clause barring an establishment of religion. If it’s first at all, we can say that the first liberty is the right to be free from religion or at least state-sanctioned or -aided religion.

The so-called Establishment Clause is striking because of, among other things, its broad language. The Bill of Rights does not just prevent an established church. It bars any establishment of religion, and it does not just prohibit a formal establishment of religion, it goes much further and says there shall be “no law respecting” such an establishment. The founders did not just want to prevent an established church or the establishment of religion; their language indicates that the United States should not even be on a road that could possibly lead to such an establishment. (This divorce from religion is also evident in Article VI of the Constitution, which states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Some states did have religious requirements for office-holding that lasted into the nineteenth century. New Hampshire, for example, required state officials to “be of the Protestant religion.”)

Neither the placement of the Establishment Clause at the beginning of the First Amendment nor the fact that it serves purposes different from the rest of the amendment means that it is more important than the others. On the other hand, it should be viewed at least as important as the Free Exercise Clause. All interpretations of free exercise must also consider whether a law respecting the establishment of religion is being made.

               Perhaps more on that another time.

Posted on by rjonakait

Snippets

A new word, poorly defined, has entered the official lexicon: wastefraudandabuse.

John M. Barry, writing about catastrophes during the 1920s in Rising Tide: The Great Mississippi Flood of 1927 and How it Changed America, notes about the deference given by many to the wealthy, “They had the power of the times, when it was believed that men with money were not only better than others but acted better.” In the America Barry was writing about, there were often good reasons that supported such beliefs. The small-town banker, lawyer, and local business owner were indeed often the richest people around, but they prospered most when their communities thrived. These wealthy men had a stake in knowing about their towns. Their knowledge, while deep in some ways, was often incomplete in others, as Barry makes clear, but the small towners’ success depended on and benefited others in the community. Thus their decisions often were good for a broad swath of the people around them.

Today we have a country run by the ultra-wealthy. I don’t know how many still believe that these people are not only better than others but act better. I think few. They are unlike the wealthy of the small-town America of a century ago. First of all, they have a lot more money. There are some around Trump who have hundreds of millions of dollars, but they are pikers compared to the many sitting around the table who have billions. A community ethos and concern did not produce their riches. Even so, because they have amassed fortunes beyond our (and maybe even their own) imaginations, they (and maybe a few benighted others) feel they must be meritorious. As Jean Rostand, the French scientist, historian, and philosopher said, “Merit envies success, and success takes itself for merit.” These ultra-wealthy think, “I have made untold money. Therefore, I am successful. Therefore, I must have merit. And therefore, it is right that I should rule over the less meritorious [read, ‘less wealthy’].”

However, success in one field does not necessarily mean wisdom or even common sense in another. You can come up with your own examples, but billionaires in government do not necessarily represent the best, the most meritorious in government.

A wise person said: “There are plenty of people in the world with good reputations who have never been found out.”

Proverbs: “Four things on earth are small, but they are exceedingly wise: the ants are a people not strong, yet they provide their food in the summer; the badgers are a people not mighty, yet they make their homes in the rocks; the locusts have no king, yet all of them march in rank; the lizard you can take in your hands, yet it is in kings’ palaces.”

“Everywhere is walking distance if you have the time.” Steve Wright.

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Feeling Safe

The Trump administration voices a concern about antisemitism on college campuses. In light of that, I found a recent news report interesting. It stated that according to a survey conducted among Harvard students last year,15% of Jewish students said they did not feel physically safe on campus.

Was this a high number? I wanted more context. What percentage of students overall felt physically unsafe? The report did not say.

Interestingly, the survey reported that 47% of Muslim respondents said they do not feel safe. In another aspect of the survey, 61% of Jewish students reported fearing academic or professional repercussions for expressing their political views. However, 92% of Muslim students felt the same. These data would suggest that we should be talking about more than antisemitism, but I am not expecting this broader discussion from our president.

Of course, the survey numbers by themselves could not tell me about the validity of the responses. Perhaps many who felt safe were naïve and more should have felt threatened on campus. On the other hand, some of those who felt apprehensive might not be in any real danger. (Paradoxically, people sometimes feel an increased threat from crime when the data show that crime is falling.)

Who is not in favor of people feeling safe? But the issue is more complex than the knee-jerk response indicates. Making some people feel safe often means circumscribing the actions of others. The feeling-safe-on-campus refrain today is not about guns or disease or child abuse or domestic violence. Instead, it is a reference to college protests by those who criticize Israel’s actions in Gaza and the West Bank.

For much of my half century in New York City, I lived in what authorities described as a high-crime neighborhood. That designation may have come from actual statistics, but it could have been merely a shorthand for saying whites are in the minority, which was true where I lived.

I had reasons to agree with the high-crime label. Our cars had been broken into many times. Our cars, as well as garbage cans and bikes, had been stolen. Our house had been broken into. I was mugged at knifepoint. I was frequently apprehensive and wary on the streets near my house. In other words, I was often fearful. This reached its peak around 1980, when crime was reportedly high in New York City. Some of the time I was working the equivalent of the night shift and arriving at my home subway station at eleven at night. It was only two short blocks to my house, but I was always fearful for those two blocks. Usually I was the only one getting off the train at that stop, but if a young Black man also stepped onto the platform or if I saw young Black men walking towards me on the sidewalk, I became much more apprehensive and wary. I felt unsafe.

If we reflexively agree that I should feel safe, we need to think about what actions would be necessary to make me feel safe. The answer would have been to prohibit young Black men from being on my block at night. Thus, to reduce my apprehension, we would have to substantially curb the activities (not to mention the rights) of others. The reality is that a miniscule number of young Black men constitute a threat to me. While I have been robbed twice at knifepoint by young Black men, I have passed many many many young Black men at night. Tens of thousands. Maybe much more. What are the odds that any single person might cause me harm? The answer is vanishingly small. My odds are better with the lottery.

Similarly, to make some college students feel safer, the suggestion has been to restrain the activities (and the rights) of others. Often the activities sought to be restrained are not those of physical violence or even physical activity. Instead, many want to restrict speech that makes someone feel unsafe even if that speech does not pose a reasonable risk of physical violence.

There are several issues here. First concerns the complicated subject of when and if speech should be curtailed. Volumes, of course, have been written on this topic, but it boils down to context. Some speech is incendiary, but some speech is not. Crowds screaming antisemitic epithets as Jewish students go to their dorm should be prohibited. A speaker at a peaceful rally in an auditorium who suggests that Israel is a colonial power that never should have been created…well, that should not. Restraining speech is about context, but a consideration of context requires a nuanced approach, which too many are unwilling to do.

Making me feel safe by constraining the rights of others is a tricky and a dangerous notion.

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First Sentences

“For a few years during the early 1980s, I lived in Jerusalem for several months at a time, doing research in the private libraries of some the city’s oldest families, including my own.” Rashid Khalidi, The Hundred Years’ War on Palestine: A History of Settler Colonialism and Resistance, 1917-2017.

“I still remember the day my father took me to the Cemetery of Forgotten Books for the first time.” Carlos Ruiz Zafón, The Shadow of the Wind.

“In 1908, one woman’s dream that had become one man’s passion became a reality when The Miriam Osborn Memorial Home opened.” Mark R. Zwerger, Janet M. Malang, and Andrew F. Horn, Images of America: The Osborn.

“It was the best of time, it was the worst of time, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way—in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.” Charles Dickens, A Tale of Two Cities.

“Each man in the squadron carried, along with a sea chest, his own burdensome story.” David Grann, The Wager: A Tale of Shipwreck, Mutiny and Murder.

“All day, the colors had been those of dusk, mist moving like a water creature across the great flanks of mountains possessed of ocean shadows and depths.” Kiran Desai, The Inheritance of Loss.

“I first encountered him in an oil painting, a bizarre rendering that looked like it was painted by a drunken sailor aboard a storm-tossed ship—the brushwork was amateurish, the proportions clumsy, the perspective askew.” Reid Mitenbuler, Wanderlust: An Eccentric Explorer, an Epic Journey, a Lost Age.

“Dear Mr Diamond, This is so difficult. Several tries have ended in the bin already. Please be kind and read to the end before making up your mind.” Peter Lovesey, The Secret Hangman.

“It was the weirdest job description Cassie Bongiovanni had ever read, and she had read a lot of them lately.” Laura Trethewey, The Deepest Map: The High-Stakes Race to Chart the World’s Oceans.

“I let my fingers run along the spine of the book, letting the indentations of the embossed cover guide my skin to something tangible; something that I believed in more than the fiction that was playing out before me.” Evie Woods, The Lost Bookshop.

“Departure day dawned warm and sweet, a merry late-May morning on the shores of the Mediterranean.” Nina Burleigh, Mirage: Napoleon’s Scientists and the Unveiling of Egypt.”

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Born Right

The Supreme Court recently heard arguments concerning Trump’s Executive Order redefining birthright citizenship, “Protecting the Meaning and Value of American Citizenship,” signed on his second first day in office.  The legality of the order was not the issue before the Court. Instead, the arguments were about the propriety of temporary nationwide or universal injunctions prohibiting the enforcement of Trump’s order. The order’s status and the injunctions raise important legal questions, but I set off on flights of fancy and started to ruminate about possibilities if that Executive Order were in effect.

I quickly realized that my birth certificate would now be deficient for citizenship purposes. As the EO recognized, the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” My certificate says that I was born in Sheboygan, Wisconsin, which, to the surprise of some, is part of the United States. That has been sufficient to prove my citizenship, but not under the possible new regime.

The Executive Order went on to say, “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” Trump further elucidated his understanding of the Fourteenth Amendment: “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Trump defines two groups of people (he suggests there are more with the phrase “among the categories of individuals”) not granted the privilege of citizenship by the Constitution. (The EO opens: “The privilege of United States citizenship is a priceless and profound gift.” The citizenship granted by the Fourteenth Amendment is not a privilege or a gift. It is a constitutional right.) To authenticate my citizenship, I would now need to know more than my birthplace. I would also need to know the citizenship or immigration status of my parents, but my birth certificate, and no doubt yours, does not include that information. Given the implied goals of the current administration, I, a critic of that administration, could be deported if I could not prove my parents’ immigration status and hence, my own citizenship. Far-fetched? I hope so.

The EO, however, gives no indication of how the now-crucial fact of the parents’ status will be determined. The birth attendants—doctors, nurses, midwives—are not experts in immigration matters. Whoever fills out the documents would no doubt get the information from the mother and father. Will the parents’ assertions be sufficient? Will there be someone to challenge what a parent claims, or will the proffered information be simply accepted?

 What if the father is not present? Can we accept the mother’s word both as to who the father is and his status? For citizenship in the past, we did not need paternity tests. Will we need them in the future? And what if this is a birth through an (anonymous) sperm donor?

The EO does not explain who makes the citizenship determinations? Or when? A person deemed a noncitizen should have the right to contest that conclusion. That probably cannot be required during the time the person is an infant, which should mean that people prior to reaching adulthood must have a forum in which to establish they are citizens. This, of course, will be a generation after birth, and that will surely present all sorts of problems.

The Executive Order’s definition of birthright citizenship means many people who were assumed to be citizens were not born citizens. I may not be a citizen if my parents did not have proper status. I assumed my parents were citizens because they, too, were born in Wisconsin, but that birth location is not enough. We may have to know the citizenship and immigration status of their parents. And so on. The Executive Order seeks to untangle that jumble of umbilical cords by saying that the order “shall apply only to persons who are born within the United States after 30 days from the date of this order.” That makes sense from a practical perspective. We can somehow, even if not now clear how, start to record the necessary information for each new birth. But if the EO is followed, we will have two kinds of citizenship —  citizens before 2025 and citizens thereafter — something that can’t be found in the Fourteenth Amendment. All this seems to produce a larger mess than even DOGE could create.

There is a way to handle this problem. Legislation could make all those born before 2025 in the United States citizens without going through ancient birth and immigration records. Oh, wait. We already have such a law. A 1952 statute, 8 U.S.C. 1401, states in part: “The following shall be nationals and citizens of the United States at birth: a person born in the United States, and subject to the jurisdiction thereto.”

This statutory provision has meant that the children of illegal immigrants born in the United States are citizens. Trump might say that those who drafted and passed this law accepted this position only because they were following an incorrect interpretation of the Fourteenth Amendment. Even if that were so, the clearly evident public meaning of the statute and the intentions of the drafters and adopters of it were to give birthright citizenship to those born here including children of undocumented immigrants. Conservative interpretive principles mean that neither courts nor an executive order can change the law’s meaning understood and intended by those who enacted it even if the statute, like many others, was based on an incorrect premise. If a statute is invalid because of a faulty foundation, our lawbooks will soon be a lot thinner.

If Trump really wants to change birthright citizenship, Congress needs to pass a new law that tracks Trump’s Executive Order. Gee. I wonder why he hasn’t proposed the new legislation.

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Snippets

The spouse is the leader of the discussion of Sing, Unburied, Sing by Jesmyn Ward. Someone announced she would not attend because they could not make it through the novel even though it won the National Book Award, was on yearly top ten lists, and high on the 100 best books of this century. With its themes of Black and interracial families and the legacy of slavery in southern prisons and much more, this is the book that Pete Hegseth would ban, if he hasn’t already, from the service academies. The woman who pulled out of the book group was a Trumpista. The spouse and I could not help but think that it was the subject matter, not the quality, of the book that was the withdrawal’s motivating factor. With the attacks on DEI, some people may feel that it is unpatriotic even to read Jesmyn Ward. And so it is that America dumbs down.

With summer coming on, I wonder: “If nature is so truly wonderful, then why didn’t she make the mosquito a vegetarian?”

Many political ads last year bemoaned the fentanyl crisis that the ads maintained resulted from a porous southern border. This never made sense. Border patrol officials knew that nearly 90% of the fentanyl that entered from Mexico came in at legal crossings. Furthermore, most apprehended couriers were American citizens, which, of course, makes sense. If you were running the drug smuggling operation, wouldn’t you think that a Mexican or Honduran would be more likely stopped and searched at the border than an American citizen? It was clear that “securing” the border would do little to change our fentanyl crisis. And, of course, the laws of supply and demand mean someone will find a way to bring the opioid into the country as long as there is a market for it. Meanwhile, it turns out that last year while our southern border was so easy to cross according to so many pundits, opioid deaths dropped precipitously. It will be interesting to see with all the government cuts to all sorts of services what will happen to the death rate even with a “secure” border.

I would like to live in a world where data trump beliefs, and ideology does not trump facts. Some days I am an optimist.

A wise person said: An optimist is someone with little experience.

The big, beautiful bill will leave us under a mountain of new debt, which Trump and his supporters now don’t seem to care about. I am reminded of what Kurt Andersen wrote in Evil Geniuses: The Unmaking of America, A Recent History (2020). He reported that neoconservative Irving Kristol said that if tax cuts for the rich “leave us with a fiscal problem,” that is fine because that would force conservative “opponents to tidy up afterwards.”

With the warmer weather, I am again about to confront one of my biggest golf troubles: I stand too close to the ball after I hit it.

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The Process That Should Be Due 

The president asked the interviewer: “They talk about due process, but do you get due process when you’re here illegally?” I have little confidence about what the Supreme Court will say in the future, but the answer as of today is, Yes. Undocumented immigrants in the country are entitled to due process. The Constitution’s Fifth Amendment says: 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 

This provision does not just guarantee rights to citizens or lawful residents. No person, not just citizens, shall be deprived of the double jeopardy or the self-incrimination protections. And no person, not just citizens, shall be deprived of life, liberty, or property without due process of law. In a series of early twentieth century cases, the Supreme Court made clear that these constitutional protections were extended to all aliens within the United States, including those who entered unlawfully. The Court determined that even one whose presence in this country is “unlawful, involuntary, or transitory” is entitled to due process before being deported.  

However, this constitutional protection applies only to people who are within the country. It does not apply to border crossings. Aliens can be excluded from the country at the border without due process. This also applies at points of entry, such as an airport because, while technically on U.S. soil, the would-be immigrants are not considered to have entered the United States. (You, too, have fewer rights when crossing the border. As has happened to many of us when entering the country, you can be searched in ways that the Constitution would not allow within the country.) 

Trump, when told about the undocumenteds’ due process rights, refused to concede what the Constitution commands, but still railed against the practicality of granting due process: “I don’t know. It might say that, but if you’re talking about that, then we’d have to have a million or two million or three million trials.” Surprisingly for Trump, that was an underestimate. He indicates that he wants to remove all those here illegally (except perhaps if they are connected to Elon or to him). Not surprisingly, precise numbers are not available, but the usual estimates are about 11 million illegal aliens are in the country. 

While the Constitution mandates due process, it does not specify what that process entails. The courts have held that it is a variable concept. What Justice Oliver Wendell Holmes, Jr., wrote more than a century ago is still the law: “What is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation.” Justice Felix Frankfurter fifty years later said that due process “is not a technical conception with a fixed content unrelated to time, place and circumstances. . . .  ‘Due process’ cannot be imprisoned within the treacherous limits of any formula.” The procedures are not the same for adjudicating a parking ticket, determining a parole violation, trying a murder charge, or considering the continuation of government benefits or entitlements. 

A famous twentieth-century judge, Henry Friendly, created a list of procedures that would satisfy due process: 

  1. An unbiased tribunal. 
  1. Notice of the proposed action and the grounds asserted for it. 
  1. Opportunity to present reasons why the proposed action should not be taken. 
  1. The right to present evidence, including the right to call witnesses. 
  1. The right to know opposing evidence. 
  1. The right to cross-examine adverse witnesses. 
  1. A decision based exclusively on the evidence presented. 
  1. Opportunity to be represented by counsel. 
  1. Requirement that the tribunal prepare a record of the evidence presented. 
  1. Requirement that the tribunal prepare written findings of fact and reasons for its decision. 

All of these procedures are not necessary to satisfy the Constitution in all circumstances. On the other hand, the consensus holds that at a minimum due process requires notice and a meaningful opportunity to be heard before a neutral decisionmaker. 

In talking about due process in deportations, Trump said that he has “brilliant lawyers that work for me.” (They actually work for the country.) If so, they should be seeking procedures that satisfy due process and that are simple enough to further Trump’s goals. These procedures cannot just be ones that ensure mass deportations. Instead, they must bear in mind what Chief Justice Earl Warren said: “Due process embodies the differing rules of fair play.” Or what Justice Frankfurter said: Due process is a “respect enforced by law for that feeling of just treatment.” 

Removing people who are not legally here may or may not be good for America but procedures that afford fair play and just treatment as well as the perception of fair play and just treatment are a Constitutional requirement. They are important not only to those the government is trying to strip of liberty but to the rest of us who want a fair and just country. 

Posted on by rjonakait

Snippets

The article reported on the weightlifting prowess of women in their 60s, 70s, and even 80s. It concluded that the weightlifters showed that “age is nothing but a number.” Another cliché that is hooey. I have been four and now many multiples of that, and age has never been nothing but a number. I couldn’t drive when I was four and I have trouble cutting my toenails now. If anything, age has my number.

I have a friend whose memory is so good that he can remember sex.

I have thought it possible that Trump was a Russian asset, but now I have my doubts. I have wondered what Putin thinks about Trump proclaiming the United States won World War II, which Trump, disregarding the brutal killing that went on for months longer in the Pacific, maintains ended on May 8, 1945. Of course, one of the turning points of WWII, perhaps the turning point was Stalingrad. Trump should ask Putin how many Russians died during that war. And I am guessing that Trump never heard John and Paul’s song A Day in the Life with its line, “The English army had just won the war.”

Viewpoint is everything. What did one lab rat say to the other? “I’ve got my scientist so well trained that every time I push the buzzer, he brings me a snack.”

For the third straight year, Utah was named the nation’s top state, based on 71 metrics, including education, economy, and crime. The next four states were New Hampshire, Idaho, Minnesota, and Nebraska. The bottom five: Louisiana, Alaska, Mississippi, New Mexico, and West Virginia. I note that four of the bottom five are solidly red states.

I remember when conservatives railed against big government. However, our present administration is trying to take over Harvard. That sounds to me like big government. Where are those conservatives when you need ‘em?

How many Harvard graduates does it take to screw in a lightbulb? Just one. He grabs the bulb and waits for the world to revolve around him.

As a result of Defense Secretary’s war on DEI, West Point, according to a news article, is ordered “to remove any readings that focused on race, gender or the darker moments of American history.” The Defense Department told the Naval Academy to remove 381 books from the library. Hegseth’s order does not just prohibit the teaching of aspects of our history and society; it also commands that the service academies teach that “America and its founding documents remain the most powerful force for good in human history.” And I thought that Pete Hegseth thought of himself as a Christian.

A lot of people these days tell us that this country was founded on Christian principles or, sometimes, being more inclusive, Judeo-Christian principles. I assume that they do not know that North Carolina’s original constitution banned Jews from public office and that in other states only members of specified Protestant denominations could hold office.

Posted on by rjonakait

Sanctuary       

It’s a free country, or so the cliché goes. We (supposedly) have free speech. We can travel and live freely within the country without the need for “papers.” We don’t need government approval to seek a job, an education, a lover, or a meal. We can’t lose life, liberty, or property without due process of law.

And part of the reason it is a free country is that we are not required to be a police informer. We do not have to tell law enforcement about the wrongs or suspected wrongs of others. If the police ask me questions about where I or someone else was last night, I don’t have to answer. I have known undocumented immigrants; I am under no obligation to report them. This is a free country partly because we are not forced to be informants. That basic principle is the foundation for the sanctuary city movement.

There is no official definition of a sanctuary city. However, the term usually refers to a locality that refuses to cooperate or limits its cooperation with federal immigration authorities. Immigration and Customs Enforcement (ICE) officials have sought local assistance in several different ways. ICE asks cities and counties to tell ICE when the localities have encountered an undocumented immigrant. Sanctuary cities usually do not honor these requests. They don’t share their databases with the federal officials. Some localities even forbid the collection of information about immigration status.

ICE often asks to interview people in local jails. Non-sanctuary places may freely allow that. Sanctuary localities, however, may not permit it at all or only if the inmates voluntarily sign a consent form informing them that they don’t have to talk to ICE and are waiving that right.

ICE also lodges detainers asking to be informed when an inmate that ICE believes is deportable will be released from a state or local lockup. Sanctuary cities differ in their responses. Many will tell ICE about the release of someone who has been convicted of a violent offense but not otherwise. Some sanctuaries will not tell ICE about the release of any inmate.

A sanctuary city does not cooperate with federal immigration authorities, and it does not act as an informant. That, however, does not mean that an undocumented immigrant gets sanctuary from deportation. ICE may still arrest undocumented people and deport them even if they are found in a sanctuary city. They just have to do so without local help. (Many states and cities, of course, do cooperate with federal immigration authorities, and some states have banned sanctuary cities within their borders. This cooperation, however, is voluntary.)

Trump, however, has taken steps to change the long-established norms that have led to sanctuary cities. Last month Trump ordered the attorney general to publish a list of jurisdictions “that obstruct the enforcement of Federal immigration laws.” If, after notice, the jurisdictions “remain in defiance of Federal law,” their federal funds may be cut. Lower courts have already preliminarily blocked such Trumpian actions because the constitutional “spending clause” gives Congress, not the president, the power to finance programs.

The Trump administration has also sued some states and cities, including Colorado and Illinois and Denver, Chicago, and Rochester, NY, for laws and policies that restrict or prohibit cooperation with federal immigration enforcement.

I have not been able to find the legal papers filed in the recent Colorado and Denver suits (if you know how to access them, let me know), but news reports say that lawsuits contend that the state and local laws are unconstitutional. The Trumpian actions want to “restore the supremacy of federal immigration law.” I like to think that I have a reasonable grasp of constitutional law, but I can’t figure out the government’s claim. And non-cooperation with federal law enforcement does not destroy the supremacy of federal laws.

A small (but relevant) digression on legal procedure:

The Trump administration recently arrested a Milwaukee judge for a sanctuary-like action. It appears that an undocumented immigrant was appearing in the judge’s courtroom as a defendant in a domestic violence case. ICE agents, armed with an “administrative warrant,” came into the courtroom to arrest the defendant. The judge would not permit the apprehension in her courtroom and told the agents to wait outside. After the court proceeding, she helped the defendant to leave the courtroom by a door not used by the general public. The agents apprehended the man not far from the courthouse and a week later arrested the judge for obstructing their duties.

The judge’s arrest highlights a legal reality: while we free citizens do not have to cooperate with ICE and hand over or identify undocumented people, that does not mean that we can obstruct ICE agents. However, the line between noncooperation and obstruction can be a fine one. Misleading an agent may be obstruction, but lying to a federal officer is a crime. Take my advice: Even though you may lie to friends, relatives, or lovers, don’t lie to law enforcement. You may choose not to speak or respond at all, but don’t actively mislead.

On the other hand, law enforcement agents are not prohibited from lying to or misleading us. An “administrative warrant” is misleading. A real warrant is issued by a judicial officer and gives law enforcement general powers to arrest. An administrative warrant, however, is not issued by a neutral magistrate. It is an in-house document, issued by ICE itself to itself. In essence, it is merely a note-to-self to arrest someone. The administrative warrant gives law enforcement no more authority to apprehend someone than if the warrant did not exist. Without a citizen’s consent law enforcement can only enter a non-public space to arrest someone if they have a judicial warrant. They can’t do so with an administrative warrant. However, if they have good grounds to do so, law enforcement can arrest a suspect in a public place with an “administrative warrant,” but they can also do so without one.  An “administrative warrant” may sound as though it carries some weight, but it doesn’t. It is a meaningless document.

Back to sanctuary cities:

Sanctuary jurisdictions maintain that their lack of cooperation is not only legal but also good policy. They point out that in sanctuary cities local resources are properly allocated to local priorities not to areas under federal government jurisdiction.  The federal government, however, says that sanctuary policies endanger the citizenry. Trump’s press secretary, who might be an Amy Schumer relative if the she had either charm or wit, announced that the sanctuary jurisdictions are giving a safe haven to criminals and endangering residents and that the Trumpian attacks on the states and cities are “focused on protecting American communities from criminal aliens.” Sanctuary cities, however, maintain that they are safer because of their policies.

The jurisdictions highlight that deportation before a verdict and/or punishment (which often happens) deprives communities of the deterrence provided by the criminal justice system. A person returned to his home country before serving a sentence does not send deterrence message to the community that jail followed by deportation is a circumstance to avoid.

The sanctuary jurisdictions also want undocumented people to feel comfortable cooperating with the police. Without that cooperation crimes will not be reported and prosecuted. Undocumented immigrants won’t come forward to report crimes or be witnesses if, as a consequence, they will be deported.  Criminals, whether citizens or not, will go free, and the community will be more crime-ridden.

Furthermore, a city might be healthier, safer, and more of a community if undocumented people become more comfortable interacting with government authorities, not just police, but schools, hospitals, clinics, employment, and housing authorities.

Those opposed to sanctuary policies contend they make places dangerous. They often support that assertion with an anecdote about a single, heinous crime. On the other hand, sanctuary cities point to study after study showing that sanctuary cities are safer than other cities and that sanctuary cities, have, on average, more vibrant economies. The Trump administration, as it often does, avoids or denies the accuracy of such studies and blindly continues its activities unfettered by data and truth.