Connect with us

Americas

Did the U.S. Supreme Court Just Nullify the U.S. Constitution?

Published

on

On June 26th, the U.S. Supreme Court issued its 5-4 majority decision in the landmark case of “Trump v. Hawaii”, about President Trump’s commonly misnamed ‘Muslim ban’. This decision probably established a new precedent: that national security is an interest that overrides the First Amendment to the U.S. Constitution. Here is how it does this outrageous thing, which is so shocking for such persons — who are oath-bound to uphold the U.S. Constitution — to do:

The First Amendment to the U.S. Constitution says, in full:“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 traditionally-called “Establishment Clause” is the part of the First Amendment that says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

On the opening page of its 92-page decision, the Supreme Court says, “We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment.” On the 7th page, it says, “Plaintiffs [the ‘Hawaii’ side in the case of ‘Trump v. Hawaii’] further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam.” Page 26 says, “The First Amendment provides, in part, that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ Our cases recognize that ‘[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another’.”

The Court’s decision asserts, first, that Trump’s Muslim ban, of any immigrants from any of the five nations of Iran, Syria, Yemen, Somalia, and Libya — all of which 5 nations have Muslim majorities — is not discriminatory on the basis of religion; and that therefore no religious denomination is being officially preferred over another, in that ban or “Proclamation.”

Second, here is how the decision asserts — at least provisionally, and (as will be shown) likely permanently — that national security overrides the Establishment Clause (and therefore overrides the Constitution itself): On page 29, it says, “plaintiffs seek to invalidate a national security directive. … Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right [right to “the free exercise thereof”] and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy.”

The Court’s decision then entirely ignores — and never even so much as touches upon — the “sincerity” matter, at all, or in any form. Therefore, the majority decision is implicitly asserting that the sincerity of the rationale that Trump gave for his “Proclamation” (his so-called ‘Muslim ban’) is immaterial to this case, not relevant to determining whether or not the Proclamation “officially” prefers any religion over any other. The 5-member majority are, in effect, asserting that, by the term “officially,” is meant “explicitly,” or publicly admitted. For example (in another hotly-debated historical instance): If Adolf Hitler did not publicly admit that his intention was to exterminate every Jew on Earth, then (according to this reasoning from those five jurists) he was not responsible for the Holocaust (the attempt by his followers to exterminate Jews, within each of those officials’ own sphere of authority, as granted to them by Hitler). Those five jurists are saying that, since Trump never publicly admitted that he was a bigoted person and never explicitly asserted that religion had anything to do with his Proclamation, Trump’s Proclamation simply did not violate the Establishment Clause. That’s the end of the story — Hawaii’s assertion that Trump’s publicly declared reason needs to be challenged on the basis of its sincerity is simply, and peremptorily, rejected — to “ask the Court to probe the sincerity of the stated justifications for the policy” is placed, by them, simply out-of-bounds.

However, prosecution for any crime requires any court to consider what the motivations of any possible defendant for that crime were in the given matter. To obtain a criminal conviction, the prosecution must establish the presence of two elements at the time of the alleged crime — namely, actus reus (“guilty act”) and mens rea (“guilty mind”); but these five members of the U.S. Supreme Court effectively rule out-of-bounds the very possibility that a U.S. President (or, specifically, this U.S. President) might, on any occasion (but specifically, this occasion), have been “insincere” (or had “a guilty mind” — guilty of actually having violated the First Amendment, in this case). So: these five jurists proved their own guilty minds — and they thereby impose upon the entire nation this nullification of our nation’s Constitution, simply casting aside both executive accountability and the Constitution’s supreme legal authority in our land. Is that treasonous? It certainly violates their oaths-of-office. But is it treasonous?

It is, in any event, the way that these 5 judges dismissed any consideration of Trump’s motive for his ‘Muslim ban’ — this particular “entry policy” issued by the Proclamation. However, what about the question itself, of “whether the entry policy violates the Establishment Clause of the First Amendment.” Well, if you aren’t being allowed to question what its motive was, then you aren’t being allowed to question the Constitutionality of the ban, either.

The Court’s mega-scandalous decision closes: The Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. 

[Section]

Because plaintiffs have not shown that they are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. Winter v. Natural Resources Defense Council, Inc., 555  U. S. 7, 32 (2008). The case now returns to the lower courts for such further proceedings as may be appropriate. 

They declare (but are they sincere about this?) that “We express no view on the soundness of the policy.” They bounce the matter back down to “the lower courts,” without even so much as having considered the mens rea issue — which was central to the case before them. The President’s having avoided admitting the fact that bigotry was involved in his Proclamation, has been accepted as final on the matter, for these five jurists. But would it be final if Hawaii were to continue in “the lower courts” to challenge the Proclamation? According to CNBC’s news-report about the decision: “Neal Katyal, attorney for the challengers, said in a statement. ‘Now that the Court has upheld it, it is up to Congress to do its job and reverse President Trump’s unilateral and unwise travel ban’.” Obviously, Ketyal won’t take the matter back down to the lower court in the case. Perhaps his challenge to the ban had actually been only political, to embarrass Republicans, in order that the Democratic Party can continue to holier-than-thou moralize their supposed superiority above the bigotry and/or sheer stupidity, of the President’s (and Republican-supported) “ban.”

Here is the actual type of “establishment of religion” that I believe that Trump is here imposing (and which the five far-right jurists today are trying to help him to impose upon the nation) — it’s more against Shiite Muslims than against Sunnis — who constitute the vast majority of Muslims and virtually the entirety of the ones who have perpetrated terrorism anywhere other than in Israel (and this President is not supposed to be the President of Israel):

This case is not, as Hawaii (Ketyal) was asserting, a Trumpian bigotry against Islam. Only five nations were included in the ban, and so it applies to only a small percentage of the world’s Muslims. Though the Court accepted the President’s flimsy assertion that these, and only these, nations pose such a national-security threat to the United States as to warrant a total immigration-ban, the actual evidence regarding Islamic terrorism in the United States has been overwhelming that virtually only fundamentalist Sunnis have perpetrated it; no Shiites have

. With the lone exception of Somalia, none of these five banned nations is Sunni majority and Sunni controlled — they’re all either Shiite majority or Shiite-dominated, or (in the case of Libya) failed states without any nationwide government because of the U.S.-and-allied invasion in 2011. (And so, Trump is banning refugees from that country which his Democratic predecessor Obama had destroyed — let them escape to Europe instead!) The U.S. Deep State has been trying since 1949 to overthrow Syria’s Government and replace it with one that would be controlled by the fundamentalist-Sunni Saud family who own Saudi Arabia and are allied with the U.S. aristocracy (America’s “Deep State”). Yemen right now is being bombed to smithereens by the U.S.-Saudi-UAE alliance, and this operation is supporting, instead of opposing, fundamentalist Sunnis (such as ISIS in Yemen, and Al Qaeda in Yemen, neither of which group of jihadists is in the Shiite region of Yemen, which we’re bombing and destroying, while we’re claiming that this is ‘anti-terrorist’). The actual facts indicate that any “Muslim ban” should be focused against Saudi Arabia — and this ban would be authentically to protect against terrorism, not to disadvantage any particular religion — but Trump instead sold the Sauds $350 billion of U.S.-made weapons. That global all-time-record high U.S. military sale to the Sauds gives them far more clout over the U.S. Government than the U.S. Government has over them. No wonder why the U.S. Government protects them for 9/11, etc.

Regarding Somalia, the only article online about “Somalia-United States Relations” is at Wikipedia and doesn’t indicate any terrorist incidents in the U.S. as having been at all Somali. Furthermore, Wikipedia’s article “Foreign Relations of Somalia” goes country-by-country, but doesn’t indicate anywhere any link to terrorism, against any country, at all.

However, notwithstanding the actual facts in this case, these five far-right jurists just trashed the U.S. Constitution, and thereby allowed this President’s bigoted and/or stupid Proclamation, which possesses no authentic national-security justification whatsoever, to become imposed, regardless even of whether it is sincere, or comports with the Establishment Clause. The precedent here is carte-blanche to this President and to any of his successors. A U.S. President’s will, supersedes the U.S. Constitution, if a ‘national security’ excuse — no matter how flimsy or even counterfactual — is being asserted. His/her sincerity — and even the facts as opposed to the mere allegations from a President — cannot be challenged in U.S. courts.

Hawaii’s (Ketyal’s) challenge, under the Establishment Clause, was sloppy, presuming as it did, that Trump is “anti-Musim” instead of anti-Shiite, which seems to be more like the reality. But, in any event, both the challenge, and the way that the U.S. Supreme Court handled it, were incompetent, at best. This pathetic Court decision establishes not only the precedent for banning consideration in U.S. courts of whether a sitting President may effectively be challenged as to his sincerity on a given matter, but also precedent for treating “national security” as being more important than the U.S. Constitution itself. If Trump had intelligently formulated his ban on the basis of the relevant data, then maybe these five jurists could have put together some sort of intelligent case to uphold his ban. But, instead, those jurists made a mess of everything, and a zero of the U.S. Constitution that they are duty-bound to uphold.

No lower court can make good on the harm that those jurists — Roberts, Alito, Thomas, Gorsuch, and Kennedy — did and do. Mark Joseph Stern’s article at Slate opened with an accurate summary of it: On Tuesday, the Supreme Court affirmed and expanded the president’s power to exclude entire classes of immigrants from the country. Its 5–4 decision in Trump v. Hawaii is a historic triumph for Donald Trump and a crushing blow to immigration activists, who had hoped the courts might rein in the president’s sweeping order. Justice Neil Gorsuch, Trump’s appointee to the court, cast the decisive fifth vote to uphold the ban. While Chief Justice John Roberts’ opinion for the court strives to rise above politics, Hawaii will almost certainly be remembered as a deeply partisan opinion in which five Republican appointees willfully ignored the flagrant bigotry of a Republican president.

Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010

Continue Reading
Comments

Americas

Rejoining the UNHRC will be the State Department’s first diplomatic mistake

Published

on

As over the last days US Vice President Harris swore in Linda Thomas-Greenfield as the new US Ambassador to the UN, US Secretary of State Blinken announced in parallel that the US is now seeking election to the UN Human Rights Council, in an attempt to rejoin the UN system. But that’s not the right first move back at the UN that the US should be making. And that’s not what the progressive left had in mind when the real left groups put in office the new Biden Administration.

My perspective comes from having worked in the UN human rights system and as a finalist for UN Special Rapporteur on freedom of speech last year – but also as a progressive left voice.

The days when UN engagement defined Democrats vis-a-vis Republicans are over.

Shunning the UN has always been a Republican hallmark but backing and pouring so much funding into an old style, corrupt bureaucracy that has little to do with “diplomacy” is not what the new, awaken progressive left wants either.

Several weeks ago, I made the estimate that the 10bln dollars which the US government pours into the black hole called the UN equals the Covid relief that 16mln struggling American people could be getting now. The Biden Administration’s State Department diplomats have to remember who put them in office.

Democrat centrist diplomats have more in common with the UN in terms of ways, goals, style and world view than they do with the progressive left. Backing the UN means backing the old, corrupt ways, which the real progressive left voted to break last year.

The decision to announce the US’s goal to rejoin the UN Human Rights Council comes in the same week when President Biden finally announced his real stance on the Black Lives Matter ‘defund the police’ goals. Biden, it turns out, unsurprisingly does not support that. That’s not what the progressive left signed up for, either.

The UN institutional funding inertia by the US government does not define the Democratic Party anymore. That’s not what the left voters want. 

The left’s reasons for not embracing the UN and the UN Human Rights Council have little to do with the usual Republican ‘go it alone’ at the international stage.

Yes to diplomacy and multilateralism. No to the corrupt, faceless UN. “International diplomacy” is no longer the same thing as the UN system.

The wave that rose across American political life last year, with so many young black activists and so many people voting for the first time, signaled a big resounding No to old ways and old institutions, which have little concern for the actual needs of the people.

The new US Ambassador to the UN, Thomas-Greenfield, will have the tough job of reforming the UN, and in my opinion, even defunding the UN.

The days when love for the UN defined Democrats are certainly over. It’s time for the Biden Administration to do what it was elected for, which is to not simply go back to the same old, same old corrupt, faceless bureaucratic institutions swimming in money. This is not what we want. The progressive left voted for change and now that also includes the UN.

Continue Reading

Americas

U.S. Climate Policy Could Break the Ice with Russia

Published

on

Photo: Fiona Paton/ flickr

“In the midst of every crisis, lies great opportunity” — Albert Einstein

Within the climate crisis lies strategic opportunity for the United States. Climate change offers the chance to earn back the good will of allies, to prepare American cities for an urgently needed increase in immigration, and to reinvent U.S.-led institutions that have gone stale. Perhaps most of all, foreign policymakers should remain cognizant of how climate action can help the U.S. navigate relations with the other great powers.

As a recent report from the Center for a New American Security details, synergy between China and Russia is more problematic for U.S. interests than the sum of the challenges that each nation poses individually. Similarly, a recent Atlantic Council publication observed that “allowing Russia to drift fully into China’s strategic embrace over the last decade will go down as the single greatest geostrategic error.” Chinese and Russian interests do currently align on defense, economics, and the degradation of the U.S.-designed world order, but the nature of their alignment does not constitute an alliance.

In characterizing the relationship, this distinction is paramount. For as long as China and Russia remain merely convenient partners, rather than ideologically kindred allies, it is possible to keep these neighbors at arm’s length. To this end, the U.S. must reorient its approach to Russia. It is the Russian perception that world politics are rigged to benefit the U.S. at Russia’s expense that has prompted its support for China.

Russia’s national interests are rooted in the desire for respect. With this in mind, Russia could pull back from synergy with China if a better opportunity to advance these interests presented itself. Ultimately, the ability of the U.S. to offer a mutually acceptable alternative will hinge on two related factors: the Arctic and NATO. Critically, the issue of climate change is central to both of these factors.

In the Arctic, rapid warming removes barriers to resource exploitation, shipping activity, and great power competition. This has drawn many non-Arctic states to the region. Yet, even with China inserting itself as a “Near-Arctic State,” Russia has expressed the need for a hierarchy of regional influence in which the interests of Arctic states are prioritized over non-Arctic states. On this, American and Russian interests align.

Russian distrust of the U.S. complicates matters, however. Arctic military assertiveness from Russia is evidence of its sensitivity to the NATO alliance. In response, U.S. military branches have been releasing strategies for Arctic-specific forward defense. Such militarism is not conducive to improving relations, securing sovereign influence, or addressing climate change. 

In order to limit undue Chinese influence in the region and stabilize its relations with Russia by securing a multilateral agreement that formalizes an Arctic hierarchy, the U.S. will need to alter its foreign policy so that Russia perceives it to be a viable partner. The alteration should be sufficient for reducing friction with Russia’s core interests, but not so extreme that liberal values or American security are put in jeopardy. Such transactional considerations should include fashioning a new climate-positive role for the U.S. in NATO. After all, the permanent physical presence of roughly 76,000 U.S. troops on the European continent not only irks Russia, but this posture is also expensive, carbon-intensive, and perhaps not even the most effective approach to conflict deterrence. 

Indeed, research has shown that rapid deployment of new forces is significantly more likely to stymie aggression. This suggests that the U.S. should reduce its troop levels in Europe by at least 75 percent while bolstering rapid deployment readiness. This would allow the U.S. to simultaneously reduce its military’s fuel demand and greenhouse gas emissions, earn the good will necessary for stronger diplomacy with Russia, and still honor its security commitment to NATO in the event of a crisis. Moreover, the U.S. could then reinvest the potential savings into both Arctic sustainability and NATO’s capacity to manage climate insecurity.

Through the establishment of a bounded Arctic order and the greening of American leadership in NATO, the U.S. can dispel Sino-Russian synergy in the region and help maintain balance between the great powers. Specifically, these actions would both politically distance China from Russia and give the Kremlin substantial reason to begin feeling more optimistic about its relations with the West. To be sure, similar measures will be necessary in other regions to fully assure balance. However, the Arctic is a natural place for the U.S. to begin this endeavor. Usefully, the themes of climate mitigation and adaptation provide a blueprint for what countering Sino-Russian synergy elsewhere ought to generally entail.

Continue Reading

Americas

Overcoming The Tragedy of Plural Mother Tongue Denial in America

Published

on

Sunday morning , February 21, I was in the  Bangladesh High Commission  in Port Louis, Mauritius.Google reminds us”Bangladesh, to the east of India on the Bay of Bengal, is a South Asian country marked by lush greenery and many waterways. Its Padma (Ganges), Meghna and Jamuna rivers create fertile plains, and travel by boat is common. On the southern coast, the Sundarbans, an enormous mangrove forest shared with Eastern India, is home to the royal Bengal tiger.” 

This  justice and peace oriented mighty  South Asian  country of nearly 162,000,000 citizens, is also renowned for  successfully advocating for what is now  the United Nations recognized   annual February 21 Martyrs’ Day & International Mother Language  Day celebrated today in many countries around the world. It is the reason why…Namely ,when last week  my great friend , Her Excellency Rezina Ahmed , the High Commissioner for Bangladesh in Mauritius , requested I be one of the three judges for their youth essay competition for this day’s celebration focused on the meaning of this critically important day in their country and for the world in understanding the imperatives of mother tongue in human identity,dignity, openness, and achievements such as in education access and attainment. I gladly  reorganized my  overly hectic schedule to participate. 

We devalue, belittle, degrade, and dehumanize others and therefore ourselves as human beings when we deny them the human right  to  learn, express, and just daily be in their native ,that is mother tongue.We create and sustain discrimination, havoc ,and discord in societies and communities and institutions within them when we deny, marginalize, and exclude plural mother tongues and just stress and require in such an unGodly way,a hegemonic dominating one. When we create societies which fail to make room for the respectful and empowering expansion of languages spoken in a nation by its citizens and those populations veying for citizenship, we are sowing seeds for troubles easily avoided if government and civil society leaders recognize and welcome language newcomers rather than being xenopphobic , racist, ethnocentric ,and otherwise hostile towards them.This is especially the case when those of different mother tongues from the original one are positively contributing to the human resources, workforces, and cultural needs of  a nation and  when their diverse  speakers are  upright law abiding citizens in their families , communities, and larger society and world.

As an American whose ancestral mother tongues  were stripped away in the brutality of African slavery  and in the genocidal treatment of indigenous peoples, this day then has deep sentimental value to me.We need to recognize this day in an America deeply troubled by  too long devalued, ignored, and ridiculed plural  mother tongue realities coupled with contempoary rapid growth of mother tongue plurality as we become each day statistically Non-White and not just English speaking. 

In doing so we must confess first from colonial day one to now,America has always been a plural mother tongue state with English being the hegemonic language of the dominant.Our tradition of disregarding and devaluing Americans whose first language is other than English has been the historical roots of  political and economic inequalities, massive wastes of human talents, and the epidemic psychological traumas of millions of tens of millions of Americans stripped of their right to be heard and respected in their mother tongues and of those suffering from their dominant English superiority  complexes which eats away at their own humanity as they dehumanize Non-English speakers.

Spainish mother tongues signs are being  become seen  increasingly in American stores and other consumer and employing insitutions as  more a measure of the growing national size and  economic value of Spainish speaking peoples than needed humane and human  respect for Americans whose native tongue is not English.Trump’s easy fueling of anti-Spainish speaking people sentiment and practices, be they immigrants or not; even in native  English speaking Non-White populations such as African Americans and Asian Americans, was due to the iron grip of English only hegemony which continues to persist  in too many American systems, sectors, communities, and institutions, making English as Second language programs in primary through graduate schools marginal  or nonexistent in too many states with no plural mother tongue federal policy designed and well enforced in sight. It has led to disgraceful  public attacks against Spanish  speakers with more implicit  demeaning attacks against others who don’t speak English  especially when they are and more importantly look like they have Non-European  ancestry. Such bigoted English only idelogies , stereotypes, and actions are  unbecoming for any  democratic nation claiming to be a beacon of exceptional global goodwill.Our American tendency to ignore our historical and contemporary plural mother tongue character and to allow it to be a  disruptive and destabilizing political football adds fire to the view of our allies and foes around the world that our long  exceptional bright star global status is sliding downward on a banna peeling.

Thus, as  we move from the nightmare of the four year Trump era even though Trumpism is an anti-plural mother tongue ideology to be around for awhile, let us take advantage of this Biden-Harris glimmer of sunlight to promote the meaning of this day, to hold it high in opposition to the nightmare we are leaving behind as we grapple and become the open dignified America not back but the kind of emerging  open America we must become and remain..from now on.

Continue Reading

Publications

Latest

Economy1 hour ago

No let-up in Indian farmers’ protest due to subconscious fear of “crony capitalism”

The writer has analysed why the farmers `now or never’ protest has persisted despite heavy odds. He is of the...

Americas3 hours ago

Rejoining the UNHRC will be the State Department’s first diplomatic mistake

As over the last days US Vice President Harris swore in Linda Thomas-Greenfield as the new US Ambassador to the UN, US...

Eastern Europe9 hours ago

Caspian: Status, Challenges, Prospects

An Analysis into the Legal Classification, Security and Environmental Concerns, Geopolitics and Energy Flow Impact of the Caspian Plateau How...

Middle East15 hours ago

A little acknowledged clause may be main obstacle to revival of Iran nuclear accord

A little acknowledged provision of the 2015 international agreement that curbed Iran’s nuclear program explains jockeying by the United States...

Green Planet17 hours ago

Climate politics and the future of carbon emissions

Climate change is no longer a far-off problem, it is happening here, it is happening now and if it is...

South Asia19 hours ago

Ancestral Lineage of Hazaras: from Afghanistan to Pakistan

While the origins of Hazaras are much debated, opinions differ when it comes to the ancestral lineage of Hazara community....

Americas21 hours ago

U.S. Climate Policy Could Break the Ice with Russia

“In the midst of every crisis, lies great opportunity” — Albert Einstein Within the climate crisis lies strategic opportunity for the United...

Trending