James Madison and the Philadelphia Gang of Six have taken quite a beating lately.  Recent tirades have focused more on amendments to the Constitution than the original document.  Particular topics of debate include:

• The establishment clause of the First Amendment.
• The right to bear arms in the Second Amendment.
• Section 3 of the 14th Amendment which prohibits certain individuals who have engaged in insurrection from holding public office.

I will address them one by one, beginning with the current debate over the meaning of the establishment clause of the First Amendment which reads as follows.  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Subsequent Supreme Court decisions have added definition to the phrase “establishment of religion,” while enumerating instances in which religious institutions can take advantage of federal funding (e.g., the provision of community services such as food programs and mental health counseling).

However, the individual who is now second in line in presidential succession Speaker of the House Mike Johnson rejects this balance as he explained during a CNBC interview.

The separation of church and state is a misnomer. People misunderstand it. Of course, it comes from a phrase that was in a letter that Jefferson wrote. It’s not in the Constitution.

Even if the Founding Fathers were less than clear when they drafted the Bill of Rights, the New Testament is not.  Therefore, one must assume Johnson’s copy is missing the page which includes Matthew 22:21.  “Then render to Caesar the things that are Caesar’s; and to God the things that are God’s.”  Like Jefferson’s letter on religious freedom, this too is not in the Constitution, but Johnson claims the Bible must be taken literally.  Except, of course, when it contradicts his vision of America as a Christian theocracy.  I am still waiting for Johnson to inform Louisiana crabbers and shrimpers they must stop trafficking in taboo products according to Leviticus 11:12,  “That which has no fins nor scales in the waters, that is a detestable thing unto you.”

When it comes to the Second Amendment, rather than biblical verses, I will paraphrase work gang Captain (Strother Martin) in Cool Hand Luke, “What we’ve got here is…a failure of imagination.”  The Founding Fathers were visionaries in most cases, but not all.  Proponents of gun safety legislation regularly suggest the drafters did not envision individual citizens carrying assault weapons.  Maybe we give Madison, et. al., more slack than they deserve.  The weapon of choice when the Bill of Rights was ratified (1791) was the Brown Bess musket, a state of the art firearm which could fire three to four shots per minutes (dare I call it a barely-automatic assault weapon).  The introduction of flint to ignite the gunpowder was a major advance from earlier muskets, much less knives, bayonets, spears, rocks and clubs.  If only the Founding Fathers had anticipated firearms would continue to evolve over time, they might have distinguished between weapons for personal protection and national security. 

The Supreme Court could still do that, though I am not holding my breath.  They need only rely on the phrase “organized militia,” you know, what we now call the National Guard.  In other words, if someone wants to wield an assault weapon, instead of “playing” soldier, they can join the Guard, live out their fantasy under trained supervision once a month, and show that they actually support the military.  On occasion, they might actually mobilize to put down an insurrection, not by rebellious slaves, but by, again you know, cultists who storm the U.S. Capitol to overturn a free and fair election.

Which brings me to Section 3 of the 14th Amendment.  Colorado Judge Sarah Wallace is under scrutiny due to her response to efforts to keep Donald Trump off the primary ballot for having “engaged in insurrection.”  The language contained in her decision has drawn more attention than the decision itself.  While she found Trump had incited the January 6 attack on the U.S. Capitol “within the meaning of Section 3 of the 14th Amendment,” she declared the clause does not apply to the president.  The plaintiffs have appealed Judge Wallace’s decision.  They cannot believe the president is not included in the laundry list of positions to which the ban applies, especially the catchall phrase “officer of the United States.”

This one we have to lay on “Founding Fathers: The Next Generation” who drafted the language which passed Congress in 1866 and was ratified on July 9, 1868.  And again it was a failure of imagination resulting from  wrong assumptions.  The Civil War was an insurrection against an institution, the federal government.  Abraham Lincoln’s assassination was an assault on the leader of that institution.  This latter event may well have influenced the language when it comes to the omission of a sitting president from the positions to which Section 3 applies.

Sponsors of the 14th Amendment quite logically may have assumed that a president, chief executive of the federal government, would never engage in an insurrection against himself.  It might come from a band of disgruntled citizens, rogue members of Congress or even his own cabinet, but not at his own direction.  They also assumed the executive branch would be the target of insurrectionists, an assumption we now know was also false.

It appears no one foresaw the situation in which a sitting president would refuse to leave office after having been rejected by voters or through impeachment and conviction of high crimes and misdemeanors.  Ironically, the question should have come up at the exact time the 14th Amendment was before the states for ratification.  On February 24, 1868, the House of Representatives impeached President Andrew Johnson by a vote of 126-47.  The Senate trial began March 5, 1868 ending in an acquittal on May 26, 1868.  What if Johnson had been convicted?  Since the executive branch under Article II is responsible for enforcing the law, who would ensure a president vacated the White House?  Was it possible the drafters of Section 3 understood this conundrum and decided the possibility a chief executive would turn against his own government was so slim they saw no need to resolve it?

Whatever one thinks of the ex-president and his right to serve in office again, a federal judge can only rule based on the law she is given.  As much as I wish Trump could not be a candidate in 2024, Judge Wallace faithfully executed her oath of office.  If only others followed her example.  Additionally, she would not have been in this position if the Founding Fathers and future lawmakers had adopted the mantra of this blog, “Consider All The Possibilities.”

For what it’s worth.
Dr. ESP

If nothing else, Joe Scarborough is consistent when it comes to his schadenfreude over Donald Trump’s promise to his followers, “You will get tired of all the winning.”  Before viewing the following Tweet or tuning into today’s edition of “Morning Joe,” I knew how he would begin his recap of last night’s off-year elections.

He then pointed out why Democratic handwringing over a spathe of weekend polls was premature and why this seventh consecutive poor showing in the only poll that matters (an actual election) does not rest solely on the shoulders of the twice impeached, four times indicted, wannabe autocrat.  However, what he failed to do was explain it in simple enough terms even the leaders of his former party could understand.

There are only two factors which determine an election’s outcome.  The candidate and the issues on which he or she runs.  The sweet spot in politics is an intersection between the two.  However, sometimes the issues don’t matter.  John Kennedy comes to mind.  Analyses of Kennedy’s and Nixon’s 1960 platforms suggest their respective stances on the major issues of the day were almost indistinguishable.  Sometimes it is the nominee who is a non-factor.  Most Americans did not feel any personal affinity to Lyndon Johnson in 1964, but his commitment to carry on Kennedy’s agenda versus the (what  then seemed) extremist views voiced by firebrand Barry Goldwater made LBJ’s brash and often crude persona irrelevant.

Which brings us to the 2024 presidential election.  The Democratic Party will have a nominee who certainly does not make most Americans swoon.  But as we saw again last night, it stands with a majority of American on most key issues.  And when it articulates those positions in a way that resonates with even more Americans, Democrats win. 

Take the extreme example of Kentucky Governor Andy Beshear.  His opponent Daniel Cameron made an issue of Beshear’s veto of what the Associated Press described as “a sweeping Republican bill aimed at regulating the lives of transgender youths that includes banning access to gender-affirming health care and restricting the bathrooms they can use.”  Beshear knew he needed to frame his decision in a way that appealed to (or at least did not offend) the same people who wanted more parental control over the curriculum in their children’s schools.  In his veto message, he said, “This bill allows too much government interference in personal healthcare issues and rips away the freedom of parents to make medical decisions for their children.”  The result?  Beshear’s margin of victory against a Republican touted as an up-and-comer with a future on the national political stage was five percentage points higher than his narrow win four years earlier.

In contrast, the GOP will have a candidate who has an approval rating lower than Joe Biden’s.  In addition, the party’s position on most issues is the polar opposite of that of an overwhelming majority of American voters.  Reproductive rights, gun safety, American democracy and voting rights.  Gay rights.  Separation of church and state.

Any campaign, going into 2024, would prefer to have both an exciting candidate and a platform that resonates with a majority of voters.  But given the current landscape, one party is batting .500 while the other is 0 for 7 since 2016.  Despite the most recent polls, common sense should tell us Biden’s chances are much brighter than they appear.  But as Scarborough suggested on Monday morning, bad polls, regardless how accurate they may be, send the candidate and his campaign a message.  “Work harder!”  The same applies to every individual who dreads a second Trump term.

For what it’s worth.
Dr. ESP

At first it was just aberrant behavior.  One can argue it began with Richard Nixon and his 1972 re-election campaign’s “dirty tricks.”  Their success by bending the rules is best described by Mark Felt (aka Deep Throat) in the film All the President’s Men. based on Bob Woodward’s and Carl Bernstein’s book of the same title.

Nationwide–my God, they were frightened of Muskie and look who got destroyed–they wanted to run against McGovern, and look who they’re running against. They bugged, they followed people, false press leaks, fake letters, they canceled Democratic campaign rallies, they investigated Democratic private lives, they planted spies, stole documents, on and on– don’t tell me you think this was all the work of little Don Segretti.

Fast forward to October 3, 2023, the day House Speaker Kevin McCarthy was voted out of office by eight members of the Freedom Caucus, a subset of the larger group which forced 15 floor votes before McCarthy obtained the speakership.  As early as January 3, 2023, more pragmatic members of the GOP caucus referred to the dissenters as the “Taliban 19.”  This was nothing new.  Former Speaker John Boehner once referred to the Freedom Caucus as “legislative terrorists.”  After the chaotic attempts to replace McCarthy, it is hard to disagree.

More importantly, the self-proclaimed leader of the MAGA wing of the GOP House considered these descriptors a call to arms.  According to POLITICO.COM, “Rep. Mat Gaetz (R-FL) called the comments ‘hurtful’ and ‘false,’ though he added, ‘I too am prepared for an extended battle I will ultimately win.'” On October 24, 2023, win he did with the ascension of Mike Johnson (R-LA) to Speaker of the House.  Neither Gaetz or Marjorie Taylor Greene could ever dream the House gavel would be wielded by such a Trumpy, election denying, America First, homophobic Christian nationalist who explains his guiding principle as follows. 

Someone asked me today in the media, “People are curious, what does Mike Johnson think about any issue under the sun?” I said, ‘Well, go pick up a Bible off your shelf and read it. That’s my worldview.”

Imagine the response by every one of the 220 GOP members of Congress who voted for Johnson if an Irani Ayatollah said, “What do I think about any issue under the sun?  Go pick up the Koran and read it.  That’s my worldview.”

Now that Gaetz, et. al., have demonstrated terrorism works, you can bet the farm this is not the last time they will use it.

POSTCRIPT–Election Deniers

If you think the 2020 “Big Lie” was a one-off or it only applies to inter-party contests, look no farther than the eventual choice of Mike Johnson as Speaker of the House.  Until last Tuesday, the rule which governed GOP caucus votes, named after former Speaker and convicted pedophile Dennis Hastert, though not specifically stating such, implies that the members of the party will abide by the wishes of a majority of the total GOP conference.

On October 11, the conference nominated Majority Leader Steve Scalise as the party’s choice for speaker.  The secret ballot vote was 113 for Scalise and 99 for Jim Jordan.  The MAGA wing of the GOP conference, however, refused to accept the outcome.  When Scalise withdrew his nomination two days later, the conference nominated Jim Jordan over seven other contenders using (drum roll) ranked voting, something the RNC opposes for national elections.  Again the losers failed to fall in line, denying Jordan the 217 votes on the House floor to secure the gavel.  The conference then nominated Tom Emmer by a vote of 117 to 97.  Within four hours (what one pundit referred to as a tenth of a Scaramucci), Donald Trump torpedoed Emmer’s nomination  because he refused to go along with the Big Lie.

Only after Johnson received 128 votes in  last Tuesday’s secret ballot, just 57.9 percent of the 221 GOP conference members, his supporters declared victory and demanded the entire GOP membership get behind him.  One more example the GOP continues to believe the only legitimate elections are those in which their candidates prevail.

For what it’s worth.
Dr. ESP