We have recently heard renewed calls for reparations for American slavery.

A few presidential candidates seeking the nomination of the Democratic Party have endorsed the idea.  This is not surprising or even coincidental.  The recent reparations discussion among candidates and commentators is not about paying a debt to black Americans; it is about politics.

It is not about paying a debt because no one believes that checks will ever be issued to blacks.  It is about politics because black Americans have been a key part of the Democratic Party’s coalition and the twenty-plus candidates competing for the nomination want those votes.  Endorsing reparations, many believe, signals to black voters that those candidates are on their side.

The political benefits of the reparations issue go beyond the contest for the Democratic nomination.  Polling indicates that black support for President Trump is higher than for prior Republican presidents.  Republican presidential candidates normally get about 10% of the black vote, though it was lower in 2008 (4%) and 2012 (6%).  The Rasmussen poll typically shows black approval of Trump above 20%.  If that is indicative of 2020 voters, Democrats are in real trouble.  Reparations talk could lower Trump’s support among black voters.

A few days ago, Congress held hearings on the issue of reparations.  Specifically, the discussion centered on whether to pass a bill that would study the issue.  Among those who testified were actor Danny Glover (in favor), author Ta-Nehisi Coates (in favor), Columbia University student Coleman Hughes (against), and former NFL player Burgess Owens (against).  Some of the justifications for reparation offered were (1) the immorality and brutality of slavery, (2) the current prison population, (3) the historical and current existence of racism, (4) the current disparity in wealth and health between the races.

Nearly everyone today agrees that slavery was immoral.  However, no one alive today was a slave or slave owner.

Since no former slave is alive to request compensation for the injustice of being enslaved, it is difficult to justify paying out money now — over 150 years after abolition — to black Americans.

If the United States were to compensate black Americans today, there is a challenge identifying who is eligible for payment.  If one is identifiably black but none of his ancestors were slaves, such as children recent immigrants from Africa, they would not be eligible for reparations.  If slave descendants’ ancestors were slaves but were slaves in the one of the Caribbean islands, they would also be ineligible.

Even if we could identify who has American slave ancestry, intermarriage over the decades, particularly between blacks and whites, would complicate the amount of payment.  Would the amount get prorated according to the extent of European blood (or Asian or non-slave African blood)?  How would we fairly determine how much to decrease the amount of payment compared to someone with ancestors who lived in America between 1619 and 1865, all of whom lived in bondage?  What about people living as white Americans?  This would be an administrative nightmare.

Assuming we could come up with a reasonable way to administer making payments to all those who could claim slave ancestry, there is the question of whether someone living today, who was never a slave, owed reparations.

The less-than-ideal conditions today for some the black Americans cannot be easily linked to slavery, if at all.  Conditions such as the disparity of wealth, health and life expectancy, incarceration rates cannot be entirely be blamed on slavery.  Much of this is due to the breakdown of the traditional family, by government programs (expanded welfare, etc.) that incentivized behavior that kept families from forming.  Fatherless children are more likely to grow up and remain poor, to drop out of school, have children before or without marriage, and are more likely to commit crimes.  Such behaviors result in less wealth creation, shorter lifespans, and a greater likelihood of being involved in the criminal justice system.

After the nation adopted the Thirteen Amendment, the Fourteenth Amendment, and the Fifteenth Amendment, the former slaves we promised, respectively, freedom from involuntary servitude, U.S. citizenship and legal protections, and voting rights.  For much of the period after these amendments were adopted, they were not enforced, and black Americans were confined to second class citizenship.  For decades after the 1870s, many parts of the nation remained racially segregated, and blacks did not enjoy the full rights of American citizenship.  This formally ended when the Civil Rights Act of 1964 was signed into law.

One could argue that black Americans who lived between the post-Civil War Reconstruction and pre-Civil Rights Act deserve reparations.  After all, by adding these amendments to the Constitution, the nation was making its citizens a promise.  For the most part, the nation broke its promise to black Americans.  Many of those Americans are still living.

Consider this formula for amends to those citizens.  The amount of money would be arbitrary, but let’s say $1,000 per year of living during the segregation era.  This would amount to roughly three dollars per day.  Not only can we identify who lived during this time, we can award an amount based on the length of time they lived during this era.  We can call this the 3-Bucks-a-Day Plan.  Those eligible would get $3.00 for every day they lived prior to July 2, 1964, the day President Lyndon Johnson signed the Civil Rights Act into law.

The issue of slavery is difficult to settle.  The victims and perpetrators are dead.  Most of the descendants of slaves have very little connection to the institution.  There are some senior citizens who perhaps met a grandparent or great-grandparent who was a slave but that is not a strong connection.  It is difficult to put a price tag on the effects of slavery.

To make amends, if possible, it would take a gesture.  One possible gesture is for white Americans to volunteer to live as slaves for the next 250 years.  Few would volunteer and it would be difficult to compel future generations to honor such an arrangement.

It turns out that a gesture that could address the sin of slavery has already be offered.

Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

A. Lincoln – March 4, 1865

President Lincoln, in his second inaugural, makes the case that the war was God’s way of punishing America – North and South – for its participation in the slavery institution.  The war would last as long as was necessary, to spill as much blood as necessary, to address the length and the brutality of that institution.

Let us assume though that we as a nation could put a price on slavery and segregation, and we could also identify those who should get payment.  The issue, unfortunately, would not end there.

After the necessary number of states voted to ratify the amendment in 1865, a few other states voted to ratify in short order, but others did not bother.  One of those states was Mississippi, which voted to ratify the amendment in 2013.  Some would say better late than never, but I’m not so sure.  Some press reporting on the 2013 vote stated that Mississippi finally ratified the amendment and that it took 148 years for it to happen, as if Mississippi was for all those years trying to repeal the amendment.

If America paid reparations for slavery now, it could be seen as a way overdue payment.  The fact that it took over a century and a half to formally make amends, could, in itself, be seen as an insult.  Given the troubled history of race in America, the psychology of much of black America could never simply move on after reparations.  There is simply too much bad history, as well as real and perceived bad racial experiences in the present, to end the animus and distrust.

We as a nation would be better off not trying to perform the difficult task of appropriately compensating descendants of slaves in America.

Consider the following thought experiment.

We’re in the month of October and the country’s baseball fans are watching or, at least, following the World Series.

Team A wins games 1, 3, and 5; Team B wins games 2, 4, and 6.

The best-of-seven contest goes to a seventh game.

Team A emerges victorious in the final game and wins the Series.

Some fans of Team B do not accept the legitimacy of the Team A’s World Series win.  Why?  Turns out that in games 1, 3, 5 and 7, Team A won by a score of 1-0 in each game.  In games 2, 4, and 6, Team B won by a score of 10-0 in each game.  Over the course of the series, Team B had 30 runs to Team A’s four runs.  Team B, in the eyes of these fans, wins the series by a score of 30-4.

To any sane baseball fan, the idea that Team B should take home the Commissioner’s Trophy would be an absurdity.  And it is an absurdity.  The rule is: the team that wins four games wins the World Series, plain and simple.

This notion, that each game is a separate contest, however, does not sit well with many Americans in the way we elect our presidents.  Each U.S. presidential election is actually 51 elections.  Each of our 50 states and the District of Columbia have separate contests.

Each jurisdiction, depending on the size of the population, gets a specific number of electoral votes.  The presidential candidate that amasses at least 270 electoral votes (a majority) wins the election.

This is the system we have had in place since the country adopted the Constitution.

The problem arises when the candidate who wins the majority of electoral votes but loses the national vote, some Americans question the legitimacy of the winner.

The legitimacy question arises mainly due to the education system.  Many Americans simply were never taught in school about the Electoral College system and, more importantly, why it exists.  So, when George W. Bush won the 2000 election but was the runner up in the national vote, and, in the most recent election, Donald Trump won the electoral vote contest but also came up short in the national vote to Hillary Clinton, there were many who simply would not accept the outcome.

In fairness, at first glance, the way Americans elect the president is pretty kooky.  Why not just count the votes from across the country, and award the one with the highest tally with the keys to the White House?  Why have 51 individual contests?  And does it not seem a little unfair that some states (Florida, Ohio), under the current system, get lots of media attention and many visits from the candidates and some states (Oklahoma, Vermont) get virtually no attention during the general election?

Because of these and other questions, there is a movement — The National Popular Vote Interstate Compact or NPVIC or NPV – to sidestep the electoral vote process in favor of a national popular vote.  If enough states join the compact, each state will award its electoral votes to the national vote winner instead of the candidate who won the state contest.  As bad an idea as this is, I do not see the Compact as unconstitutional (I hope I am wrong).

NPV is a bad idea for the following reasons.

• It will urbanize presidential elections since much of the nation’s population is in major cities. Candidates will campaign and govern appealing to urban voters at the expense of the rural population.
• It is at odds with the federal character of the nation. The states came together and formed the nation with the understanding that the several sovereign states would elect the president.  NPV violates the spirit of that agreement.
• The Electoral College system isolates voter irregularities to the state where it occurs. If there is a need for a recount, it would be limited to the state or states where there are problems; there would be no need for a national recount.  NPV would nationalize the consequences of voter fraud.

This is not an exhaustive list of reasons, just three that strike me as important reasons not to go through with this proposed compact.

To my earlier devil’s advocate questions, the reasons I gave to reject NPV addresses why we should not just count the votes from around the country.  Having 51 separate contests will produce presidents who will have broad national appeal (Bill Clinton, in 1992, although only winning 43% of the national vote, won states in every part of the country: South, Northeast, Midwest, West Coast, Southwest, and Montana).

As far as the fact that some states get more attention than others, the states that are competitive have changed over time.  New York, in the modern era, is a lock for the Democrats, but in an earlier time, it was a swing state.  California is also currently a lock for the Democrats but for a good chunk of the 20^th century, its electoral votes were awarded to the Republican nominee.  And in 1916, it was one of the closest contests and the late vote tally kept Woodrow Wilson in the White House.  There other examples of states that were once competitive and now less so, and vice-versa.

The push to abolish or sidestep the Electoral College is not new.  An effort to abolish it by constitutional amendment was attempted a half-century ago.  That effort was the result of the previous (1968) presidential election where the popular vote was close, but Richard Nixon won a decisive victory in the Electoral College.

NPV has gained steam as a result of the 2016 election.  The fact that the national vote and electoral vote are at odds are only part of the reason for the increased effort.  For many Americans (numbered in the tens of millions), the election of Trump was an unacceptable result.  For these Americans, any electoral system that could produce that result is, on its face, illegitimate.

I also happen to believe that the desire to change the way we elect our presidents goes beyond any particular election or any president.  It even goes beyond the belief among some Democrats that given the fact that Republican nominees have lost the national popular vote in five of the last six presidential contests, the NPV would benefit them electorally.

There is talk of abolishing the U.S. Senate because each state, regardless of size, gets the same representation in the body.  Both the Senate and the Electoral College are anti-democratic creations of the Founding Fathers.  The men who gave us the Constitution and the nation are seen today as deeply flawed individuals who either owned slaves or tolerated slavery.  Many Americans today see the Constitution itself as a defense of the institution, an incorrect interpretation.  A rejection of the Electoral College is a just rebuke of the Founding Fathers to many.

Sadly, these feelings of rebuke cannot be easily reasoned away, even with a simple baseball metaphor.

Happy 2019!

https://www.foxnews.com/politics/kavanaugh-sworn-in-as-114th-supreme-court-justice-hours-after-senate-votes-to-confirm

In 2006, looking toward the presidential election of 2008, my top choice to lead the country was Mitt Romney.  At the time, he was serving as governor of Massachusetts.  Given his time in the private sector, where he made loads of money leading Bain Capital, his time successfully rescuing the 2002 Winter Olympics in Salt Lake City, and his time as governor, where he was gaining valuable experience as chief executive of a state, I felt he would be the best person to succeed President George W. Bush.

I had no knowledge as to whether he would actually run for president.  He struck me as a likely candidate for a number of reasons: he was a governor who seemed to be very ambitious (he waged an effective, if unsuccessful, challenge to Ted Kennedy in Massachusetts in the 1994 Senate election); he would be continuing a family tradition (his father, Governor George Romney of Michigan, ran for president 40 years earlier); and he just seemed to look the part.  I was for Mitt Romney before it was cool.

In January 2008, I drove from New Jersey to New Hampshire to help the Romney Campaign in Portsmouth a few days before the primary election.   I made telephone calls and knocked on doors.  Senator John McCain was gaining momentum in the state and we Romney supporters were doing what we could to get out the vote for Mitt.  He would lose the primary and, a few months later, the nomination to McCain.  The Senator would lose the general election in November.

In 2012, Romney managed to get the Republican nomination for president.  Unfortunately, Mitt would suffer the same fate as McCain in the November general election.

After waiting six long years for Mitt Romney to be elected President of the United States, it was depressing to see him go down in defeat, especially given my belief that Mitt was the more qualified candidate.  It was difficult for me to understand why so many Americans – an absolute majority – did not agree with me.

I share my Romney story because of the way many Americans react to President Donald Trump.

In the wake of the 2012 election, I had a few contentious discussions about the election results.  One of them sticks out in my mind.  I recall making the case that Romney’s track record of success (creating jobs in the private sector, turning around the troubled Winter Olympics, etc.) would be a real asset in a president.  My sparring partner did not see this at all.  He, like others I would speak to about the election, simply liked President Barack Obama.  Really liked.  It was no secret to anyone I knew that I did not share those feeling for Obama.  Still, if I felt Obama was doing a good job as president, I might not vote for him, but I would understand why others would.  I did not feel that Obama was doing a good job and had trouble processing why he was rewarded with a second term.

A few years later, something occurred to me that could, in part, explain the 2012 election, or at least my understanding of the outcome.

When I decide who to support for president, I want to know where the candidate stands on a variety of issues (taxes, immigration, the courts, reforming entitlements, etc.).  Some issues are more important than others but the candidate who is most aligned with my thinking is likely to get my backing.  Millions of Americans have a similar approach in selecting their favored candidate.  Millions of other Americans have a different approach.  Those Americans may also look for a candidate who generally agrees with them on a few issues.  However, a great deal of weight is given to other factors.  How the person speaks.  How the person looks.  Where the candidate went to school.  The race and/or sex of the candidate can matter a lot.  Where the person stands on social values.

Some of these and other similar considerations matter to me as well but I give them far less weight in my decision making.

Both types of Americans also give quite a bit of weight to political party, which serves as a kind of short hand in indicating values and policy positions.

In the case of Obama, his race was a net plus.  It was not the only thing that helped him cross the finish line though.  Unlike the speaking style of recent Republican presidents, he neither rambles or is syntactically-challenged.  He has calm demeanor.  He is in good condition and looks great in a suit.  He has a lovely family.  Obama is essentially America’s Prince William.

For many Americans, when they’re choosing a president they are principally voting for a head of state.  They want someone who looks and acts the part of president.  They want someone who can handle the responsibilities of the office as well but there is a high priority given to an ability to represent the country and having traits that suggest that the individual could be a something of a role model.

I like the idea of someone who can be an effective head of state.  During times of national tragedy, having a leader who can help heal the nation is valuable.  I, however, tend to prioritize getting policies enacted (or repealed).  It helps a great deal to have a president who can effectively champion good public policy.  Many Americans who feel this way, and vote accordingly, are principally selecting a prime minister.

In American politics, there is a clear divide between Republicans and Democrats.  There is another divide that is essentially overlooked.  That divide is between republicans and monarchists.

Nations like the United Kingdom have a hereditary monarch as their leader.  In the UK, the monarch is the head of state, while there is a separate person who serves as prime minister, who is the head of government.  After the American Revolution, the Founding Fathers created a republican form of government for the United States, in response to and in rejection of a monarchy.  The President of the Unites States is both head of state and head of government.  Though formally, we do not have a monarchy, many American voters view the presidency as an elected monarch.

Back to Donald Trump.  Many monarchists see Trump as an obscenity.  This feeling is particularly intensified because of Trump’s immediate predecessor.  Obama was seen by many as an elegant and intellectual individual who played the part of head of state well, even if there were sharp disagreements over policy.  In contract, Trump, who is brash, often vulgar, wears ill-fitting suits, and has been branded by many as being a racist and misogynist, is intensely disliked by a big chunk of the American public, even among those who are sympathetic to his policy positions.

The monarchists want a president they can admire.  The republicans want presidential accomplishments they can admire.  Monarchists and republicans are not just different but often do not understand one another.

Though he has been in office less than two years, Trump is well-positioned to have a successful presidency.  His slashing of regulations and the tax reform law he signed into law have contributed to economic growth and lower unemployment.  He is nominating Constitutionalists to federal judgeships, including to vacancies on the Supreme Court.  He appears to be having success in foreign affairs.  Whatever concrete successes Trump has during his presidency, the left-of-center monarchists, who despise him, will never give him credit (“It was a trend that started in the Obama era.” , “Presidents don’t actually create jobs.”, etc.).  However, the republicans who generally support him will be happy that the President has kept his promises and will be able take pride in the fact they voted for him in 2016, even if they originally had some reservations.  For the right-of-center republicans, Trump is essentially America’s Winston Churchill.

This is a repost, with slight modifications, of a piece posted December 18, 2015.

The War Between the States; War of Northern Aggression; Second American Revolution; War of 1861; War for Southern Independence; Mr. Lincoln’s War; American Civil War; Civil War; or simply, the War.

These are some of the names that have used to describe the military conflict in the United States between 1861 and 1865.  The War of the Rebellion – the official name of what most Americans refer to as the Civil War – is the subject of many books.  In some book stores, there is a section called U.S. History and a separate section called The Civil War.  The Civil War holds a special place in American history.  This is not surprising given that the war produced over 600,000 casualties, more than all other American wars combined.  Also, the divisions in the country then, which helped ignite the conflict, still exist today.  The cultural differences between the North and the South are still with us.  The sectional political differences that existed then persist to this day (most states in the South are reliably “Red” and most states in the North are reliably “Blue”).  And, of course, the racial divide, which often meant the difference between bondage and freedom early in our history, has not quite healed.

The different names referring to the conflict also, in some ways, reflect the differing in the reasons and perspectives for the conflict.

Ask random people why there was a war, and you will invariably hear “slavery” was the reason.  Some will cite “state-rights” as the core issue.  A few will even point to “the tariff” as the cause.  It is quite telling that Americans cannot quite agree on what caused a national crisis that resulted in Americans taking up arms against each other for four long years.  This lack of clarity is one reason of many reasons why there have been so many books written on the subject and continue to be written.

The question of why there was war between the two regions is one worth answering.

In November 1860, American voters went to the polls and elected the Republican Party nominee President of the United States.  The presidential nominee, Abraham Lincoln, was the country’s first Republican president.  Both houses of Congress were also controlled by the Republican Party.  The party was only six years old, having been founded in Wisconsin in 1854.  Wisconsin, itself, had only joined the Union six years earlier.  The Republican Party had been put together by former Whigs, Free Soilers, and a few Democrats.  The new party had adopted most of the platform of the Whigs, namely, economic protectionism and modernization.  The Republican Party had also adopted the position that it wanted to stop the spread of slavery within the United States.

To many in the Southern states, this must have been quite shocking.  A brand new party; with no base of support in the South; founded by abolitionists; opposed to the spread of slavery; formed in a relatively new state, so far north it may as well been part of Canada, had just taken over the U.S. government.  It is no surprise that several of the Southern states would announce their intentions to leave the Union.

The consensus of the rest of the country was that the nation breaking apart would be a bad thing.  It could easily set the precedent of other states wanting to leave the Union.  It would also suggest that the experiment of self-governance did not, and, perhaps, could never work.  Abraham Lincoln did not want to be the president that presided over the dissolution of the United States of America.

The South, led by Jefferson Davis, wanted to leave the Union and was willing to use military force to achieve this goal, since it was not in its interest to stay.  The North, led by Abraham Lincoln, wanted to keep the country together and was willing to use military force to do so, since it was not its interest for the South to go.  “And the war came.”

The intentions of the South warrant closer scrutiny.  In 1861, Lincoln stated in his inaugural address that he would not interfere with the institution of slavery where it already existed.  Lincoln also tacitly approved in the same address a proposed amendment to the Constitution (Corwin Amendment) that would prevent any future amendments from interfering with the institution of slavery.  These concessions would not deter the Southern states from their intentions to leave the Union.

Why did Lincoln’s words not reassure the South?  Why would the Southern states risk war by attempting to secede?  What did Southerners fear?

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war.

Lincoln, Second Inaugural, March 4, 1865

Those three sentences in Lincoln’s 1865 address may provide useful clues.  First, in reference to slavery itself, Lincoln acknowledges that the institution was somehow the cause of the war.  He seems to be saying that slavery had something to do with the conflict but may not have been the primary cause.  Second, it may be helpful to refer to the census of 1860.  South Carolina, the first state to announce its intention to leave the United States, has a slave population that represents 57% – an absolute majority – of the total residents of the state.  Mississippi, the second state to announce its intention to leave, has a slave population that represents 55% – also an absolute majority – of the total residents of its state.  The next four states to announce their intentions to leave were Florida, Alabama, Georgia, and Louisiana.  Those states had slave populations as a percentage of their entire state of 44%, 45%, 44%, and 47%, respectively.  It is almost the case that the higher the slave population percentage, the sooner the state announced its intention to secede from the Union.  The other clue in Lincoln’s address was that one-eighth of the whole population were colored slaves.  Had the slaves been Irish or French, there probably would not have been a war.  It is very likely that the people of the South were less in love with the institution of slavery but more in favor of keeping the United States a white nation.  Had the slaves been white or some other non-black race, in the face of war, slavery may have ended sooner and without bloodshed.  Since the slaves were black (or “mulatto”) and clearly ethnically different from American whites, it would not have been in the interest of Southern planters to free those in bondage because it could have meant sharing or surrendering political power and resources with those easily identified as former slaves.  This may have led to intermarrying with individuals whose ethnic features would have been difficult to breed away.  Fearing the emergence of a “mongrel” race that could have real political and economic power was of concern to Americans, particularly those in the South.

Slavery ultimately became a tactic to control those of African descent in the (Southern) United States.  We know this because shortly after the war ended, Southern legislatures passed laws that were known as “Black Codes” and these laws were a tactic designed to control the conduct of those of African descent in the (Southern) United States.

The Reluctant Conservative believes that for the American South, secession and war were about race and national identity.  Since blacks were mostly localized in the southern part of the nation, Southerners were far more concerned about demographics than their northern counterparts.

On this 150^th anniversary of Secretary of State William Seward issuing a proclamation of the ratification of the Fourteenth Amendment, which, among other things, extended U.S. citizenship to the former slaves, it is worth revisiting how the amendment came to be.

On this day 150 years ago, the people of the United States formally welcomed five million of the nation’s residents into the American family.  That day would mark the end of a long and brutal pathway to citizenship.

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Justice Anthony Kennedy announced on Wednesday that he will be retiring from the bench, effective July 31.  President Trump is expected to nominate his successor by July 9.  The Senate Committee on the Judiciary will hold hearings on the nomination in the coming weeks.  Assuming the nomination moves out of the Committee, the full Senate will vote to decide whether to approve the nomination.  Among those voting will be the Republican Caucus’s most liberal member, the senior Senator from Maine, Susan Collins.

Senator Collins (R-Maine) stated on This Week with George Stephanopoulos on July 1, 2018, that the most important quality in a potential justice for the U.S. Supreme Court is respect for precedence.

I believe I am in good company in believing that the most important quality in a potential justice would be fidelity to the Constitution of the United States.  After all, the justice upon taking office would pledge an oath to God to support and defend the U.S. Constitution, NOT to support and defend prior rulings of the Court.

The issue for Senator Collins is not fidelity or respect for precedence; it is the abortion rulings from 1973 (Roe v. Wade) and 1992 (Planned Parenthood v. Casey).  She does not want these rulings, which guarantee a Constitutional right to an abortion, overturned.

It is fine for Senator Collins to have this opinion, but she ought not hide behind the legal doctrine of stare decisis (stand by matters decided).  The fact that abortion is not mentioned in the Constitution or that the legal reasoning behind both abortion decisions is legally shaky does not seem to matter to her.  As a member of the legislature, she does not seem troubled that the Court, in both cases, made law in violation of the separation of powers principle.

Had the Court come to opposite outcomes in 1973 and 1992, where not only does the Constitution not guarantee the right to an abortion, but stated that under the Fourteenth Amendment, an abortion would be the taking of a life without due process of law — thus making abortion unconstitutional — would the Senator be arguing for the respect for precedence?  I suspect not.

We should be careful about this issue of precedence.  It is true that stare decisis does promote stability in the law.  However, stability that does violence to the Constitution is not stability that should be respected.

In 1896, the Court issued its decision in Plessy v. Ferguson, which upheld the “constitutionality” of racial segregation and institutionalized the doctrine of separate but equal.  That decision was effectively overruled in 1954 – 58 years later — in the Brown v. Board of Education case.

As of this writing, Roe v. Wade is 45 years old.  Senator Collins believes that, given the longevity of this ruling, it should be considered “settled law” by any future Supreme Court.

Question: Does Senator Collins, using her own standard, believe that the Supreme Court was wrong to unanimously overturn the 58-year-old separate but equal doctrine in 1954?  I suspect not.

During her This Week interview, Senator Collins laid out the following as important qualities that a Supreme Court justice should have: judicial temperament, integrity, intellect, experience, qualifications, fidelity to the rule of law and the Constitution.  She also said, “most important of all” respect for precedent.  All the qualities she lists are important, but she is wrong that the respect for precedent should be the most important consideration.

When Senator Collins votes on the nominee, she ought to consider each of the traits she mentioned; however, the commitment to precedence should get diminished consideration.

An early Christmas gift!

https://www.yahoo.com/finance/news/justice-kennedy-retiring-trump-gets-2nd-supreme-court-180417906–politics.html

This week, possibly as early as tomorrow, the U.S. Supreme Court will issue its opinion in the federal travel ban case Trump v. Hawaii.

It is surprising that this case went all the way to the Supreme Court.  The travel ban applies to residents of seven countries (Chad, Iran, Libya, North Korea, Somalia, Syria, and Yemen).  Six countries have majority Muslim population.  Many of the President’s critics refer to his executive order as a Muslim ban.

The travel ban omits the majority of the Muslim world, including Saudi Arabia and Indonesia.  This is not a Muslim ban.

The countries covered by the ban are instead ones that fail to provide the minimum baseline of information needed to vet their nationals.  Given that the U.S. continues to face the threat of terrorism from the Muslim world, this policy would seem rational; but in my view, it does not go far enough toward providing security to residents of the United States.

A portion of the oral arguments focused on the First Amendment: does the travel ban violate the Free Exercise Clause?  The answer is no, since the U.S. Constitution does not apply to foreign nationals on foreign soil.  This would be true even if the executive order were an outright Muslim ban.  There would be no constitutional problem with excluding Muslims on account of being Muslim.  It may, however, violate federal law.

Unfortunately, because of our country’s history of discrimination based on race, nationality, and religion, American today are very sensitive and will make great efforts to distance themselves from that history, even if doing so makes the country less safe.

This sensitivity also leads to an incentive to identify bigotry where none exists, then publicly and loudly oppose it.

The critics of the President are desperate to demonstrate that he is, among other evils, some sort of bigot.  And they are willing to endanger the American people to prove it.

Should the Supreme Court do the unthinkable, Donald J. Trump, President of the United States, in his role as Commander-in-Chief of our Armed Forces, must defy the Court’s ruling, striking down the executive order.  The Court has no business second guessing how the President defends the nation.  This could create a constitutional crisis and may lead to impeachment, but the President simply cannot let stand such a dangerous ruling from the Court.