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.
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.
In Praise of the Lioness of Law: Ruth Bader Ginsburg and her Jurisprudence
The death of the US Supreme Court Judge Ruth Bader Ginsburg has created an abyss in the court for the liberal voice where justice Ginsburg was seen as the linchpin of the liberal block of the Supreme Court at a time when that block was shrinking. Especially late judge had vociferously advocated for women ‘rights, environmental issues and often came up with unique dissents in delivering her judgements which were propelled by her jurisprudence which embodied the solemn ideal in American legal system “Equal Protection under the Law “. She was on a quest to defend the delicate balance between honoring the timelessness of American Constitution and recognizing the depth of its enduring principles in new centuries and under new circumstances.
She grew up in an era where men held the helm in every aspect of social life and especially the legal profession was utterly dominated by men. Recalling her legal studies at Harvard law school in the 50’s judge Ginsburg had stated later how she was once asked by the Dean of Harvard law school to justify her position as a law student that otherwise would have gone to a man. Yet she had the spunk to overcome all the obstacles stood on her way and excelled as a scholar becoming the first female member of the Harvard Law Review.
In tracing her legal career that it becomes a salient fact, Judge Ginsburg marked her name in American legal history even decades before she joined the bench. While at the American Civil Liberties Union in the early seventies she made an upheaval in American in legal system in famous Supreme Court Case Reed Vs Reed. In Reed Vs Reed the brief drafted by Ginsburg provided an astute analysis on the 14th Amendment to the US Constitution, the Equal Protection Clause. Ginsburg’s brief changed the aged long practice existed in the State of Idaho on favoring men over women in estate battles by paving the path for a discourse on gender equality rights in the USA.
Judge Ginsburg’s appointment to the Supreme Court in 1994 during Clinton administration marked the dawn of new jurisprudential chapter in the US Supreme Court. Two terms later, in the United States v. Virginia (VMI), Justice Ginsburg applied her lucid perspective to a sharply disputed constitutional claim. The United States challenged Virginia’s practice of admitting only men to its prestigious military college, the Virginia Military Institute. Writing for six Justices, Ginsburg held this policy unconstitutional under the Equal Protection Clause. In reaching this result, Ginsburg adroitly cut away potentially confounding issues about women’s participation in the military or the advantages of single-sex education.
Her robust activism in securing gender equality often attracted the admirations of the feminist scholars and activists, but it should be noted that her contribution was not only confined to the protection of gender equality. She was a robust critique of racial dissemination which still pervades in American society and she frequently pointed out how racial discrimination has marred the constitutional protections guaranteed to every citizen. Especially in the case of Gratz Vs Bollitnger, she stressed on the commitment that the state ought to fulfil by eliminating the racial biases existing employment and education. Moreover, disabled citizens. In Olmstead v. Zimring, she held that “unjustified institutional isolation of persons with disabilities is a form of discrimination” violating the Americans with Disabilities Act.45 She elaborated a two-fold concept of discrimination, noting that unneeded institutionalization both “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life”.
In remembering the mortal departure of this prudent judge that one cannot forget her keenness in incorporating international law into her judgements regardless of the disinclination shown by conservative judges like Antony Scalia. Going beyond the mere textualism approach to the law, Ginsburg’s jurisprudence was much more akin to using international law to make substantive decisions. For instance, in her concurring verdict in Grutter Vs Bollinger, Justice Ginsburg relied upon international human rights law, and in particular upon two United Nations conventions, to support her conclusions.
Indeed, the demise of Ruth Ginsburg is a major blow for the liberalists in the USA, especially in an era where liberalist values are at stake under the fervent rise of populist waves propounded by Donald Trump. Especially late judge had been one of the harsh critics of Trump even before ascendency to the Oval office. The void created by the demise of judge Ginsburg might change the role the US Supreme Court if the successor to her position would take a more conservative approach and it will fortify the conservative bloc in the US Supreme Court. Trump has already placed Justices Neil Gorsuch and Brett Kavanaugh and the third pick would more deeply entrench the conservative views in the US Supreme Court, which would inevitably undermine the progressive policies taken during Obama’s administration towards issues such as the environment. The political storm appeared after the death of the late judge has already created a tense situation in US politics as president Trump is determined to appoint a judge to fill before the presidential election in November.
The Politics of (In)security in Mexico: Between Narcissism and Political Failure
Security cannot be that easily separated from the political realm. The need for security is the prime reason why people come together to collectively form a state. Providing security is, therefore, one of the most basic functions of the state as a political and collective entity.
Last Friday, the Mexican president, Andrés Manuel López Obrador (AMLO) laughed during his daily morning press briefings over a national newspaper headline about 45 massacres during his presidency. This attitude summarises in a macabre way his approach to insecurity: it is not his top priority. This is not the first time that AMLO has showed some serious and deeply disturbing lack of empathy for victims of crimes. Before taking office, he knew that insecurity was one of Mexico’s biggest challenges, and he has come to realise that curbing it down will not be as simple as he predicted during his presidential campaign.
Since the start of the War on Drugs in 2006, Mexico has sunk into a deep and ever-growing spiral of violence and vigilantism as a result of the erosion of the capacity of the state to provide safety to citizens. Vigilantism is when citizens decide to take the law into their own hands in order to fill the vacuum left by the state, or to pursue their own very particular interests. Guerrero, Michoacán, Morelos, Tabasco, Tamaulipas and Veracruz have over 50 vigilante organisations that pose substantial danger to the power of the state.
Vigilantism is not the only factor exacerbating the security crisis in Mexico: since 2006, young people have also started to join drug cartels and other criminal organisations. There are important sectors of the population who feel that the state has failed to represent them. They also feel betrayed because the state has not been able to provide them with the necessary means to better themselves. These frustrations make them vulnerable to the indoctrination of organised crime gangs who promise to give them some sort of ideological direction and solution to their problems.
As a result, it is not enough to carry out a kingpin arrest strategy and to preach on the moral duties we have as citizens as well as on human dignity. People need to be given enough means to find alternative livelihoods that are attractive enough to take them out of organised crime, Mexico can draw some important lessons from Sierra Leone who successfully demobilised and resettled ex-combatants after the armed conflict. Vigilantism, recruitment by organised crime, and insecurity have also flourished because of a lack of deterrence. The judicial system is weak and highly ineffective. A large proportion of the population does not trust the police, or the institutions in charge of the rule of law.
A long-term strategy requires linking security with politics. It needs to address not only the consequences but also the roots of unemployment and deep inequality. However, doing so requires decisive actions to root out widespread and vicious corruption. Corruption allows concentration of wealth and also prevents people from being held accountable. This perpetuates the circle of insecurity. Mexico has been slowly moving towards a borderline failed state. The current government is starting to lose legitimacy and the fragility of the state is further perpetuated by the undemocratic, and predatory governance of the current administration.
Creating a safer Mexico requires a strong, coherent, and stable leadership, AMLO’s administration is far from it. His popularity has consistently fallen as a result of his ineffective policies to tackle the pandemic, worsening insecurity, and the economic crisis. Mexico has reached over 72,000 Covid-19 deaths; during his initial 20 months as incumbent president, there has been 53,628 murders, among them 1800 children or teenagers, and 5888 women (11 women killed per day) This criminality rate is double than what it was during the same period in the presidency of Felipe Calderón (2006-2012); and 55% higher than with the last president, Enrique Peña Nieto (2012-2018). Mexico is also experiencing its worst economic recession in 90 years.
Insecurity remains as the issue of most concern among Mexicans, seeing the president laughing about it, can only fill citizens with yet more despair and lack of trusts in the government and its institutions. AMLO’s catastrophic performance is not surprising, though. Much of his failures and shortcomings can be explained by both ideology and a narcissistic personality. Having someone with both of those traits ruling a country under normal, peaceful times is already dangerous enough, add an economic crisis and a pandemic to the mix and the result is utter chaos.
AMLO embodies the prototypical narcissist: he has a grandiose self-image; an inflated ego; a constant need for admiration; and intolerance to criticism. He, like many other narcissists, thinks about himself too much and too often, making him incapable of considering the wellbeing of other and unable to pursue the public interest. He has a scapegoat ready to blame for his failures and mistakes: previous administrations, conservatives, neoliberalism, academics, writers, intellectuals, reporters, scientists, you name it, the list is long and keeps getting longer.
AMLO keeps contradicting himself and he does not realise it. He has been claiming for months that the pandemic is under control: it is not. He declares Mexico is ready to face the pandemic and we have enough tests and medical equipment: we do not. He says Mexico is on its way to economic recovery: it is not. He states corruption is a thing of the past: it is not. He says Mexico is now safer than ever before: it is not. When told the opposite he shrugs criticism off and laughs, the behaviour of a typical narcissist.
AMLO, alike narcissists, due to his inability to face criticism, has never cared about surrounding himself by the best and brightest. He chose a bunch of flunkies as members of his cabinet who try to please and not humiliate their leader. A further trait of narcissistic personalities is that they love conflict and division as this keeps them under control. The more destabilisation and antagonism, the better. AMLO since the start of his presidency has been setting states against states for resources and for pandemic responses, instead of coordinating a national response. He is also vindictive: playing favourites with those governors who follow him and punishing those that oppose him.
Deep down, narcissistic leaders are weak. AMLO is genuinely afraid to lead. He simply cannot bring himself to make decisions that are solely his. This is why he has relied on public referendums and consultations to cancel projects or advance legislation. He will not take any responsibility if something goes wrong: It was not him who decided, it was the people, blame them. He inherited a broken system that cannot be fixed during his term, blame the previous administrations, not him.
AMLO is a prime example of a textbook narcissist, unfortunately he is not the only one: Donald Trump, Boris Johnson, Recep Erdogan, Rodrigo Duterte are only a few more examples of what seems to be a normalised behaviour in contemporary politics. Every aspect of AMLO’s and other leaders presidencies have been heavily marked by their psychopathology. Narcissism, however, does not allow proper and realistic self-assessment, self-criticism, and self-appreciation therefore such leaders will simply ignore the red flags in their administration and have no clue how despicably and disgracefully they will be remembered.
Minor Successes And The Coronavirus Disaster: Is Trump A Dead Duck?
That reminder from the Bible, ‘He who is without sin, let him cast the first stone’ may give us pause — but not journalists who by all appearances assume exemption. And the stones certainly bruise.
Evidence for the bruises lies in the latest poll numbers. Overall, Joe Biden leads Donald Trump 50 to 43 percent, a margin that has continued to increase since January. It is also considerably wider than the few points lead Hillary Clinton had over Trump four years ago. It gets worse for Trump.
In the industrial states of Michigan and Pennsylvania, which Trump in 2016 won by razor thin margins, he is losing by over 4 percent. Also key to his victory was Wisconsin where, despite his success in getting dairy products into Canada, he is behind by a substantial 7 percent. Key states Ohio and Florida are also going for the Democrats.
Trump was not doing so badly until the coronavirus struck and during the course of his news conferences he displayed an uncaring persona larded with incompetence. Dr. Anthony Fauci, the man he fired for correcting Trumpian exaggerations became a hero and Trump the bully.
If that bullying nature won him small rewards with allies, he hit an impasse with China and Iran … while bringing the two closer to each other. Then there is the border wall, a sore point for our southern neighbor Mexico. President Lopez Obrador made sure the subject never came up at the July meeting with Trump, Thus Mexico is not paying for it so far and will not be in the foreseeable future.
The United Arab Emirates, a conglomeration of what used to be the Trucial States under British hegemony. have agreed to formalize its already fairly close relations with Israel. In return, Israel has postponed plans to annex the West Bank. Whether or not it is in Israel’s long term interest to do so is a debatable question because it provides much more powerful ammunition to its critics who already accuse it of becoming an apartheid regime. However, it had become Prime Minister Netanyahu’s sop to the right wing who will have to wait. Of course, the reality is that Israel is already the de facto ruler.
If Mr. Trump was crowing about the agreement signed on September 15, although it is akin to someone signing an agreement with Puerto Rico while the United States remains aloof. As a postscript, the little island of Bahrain also signed a peace deal with Israel. Bahrain has had its own problems in that a Sunni sheikh rules a Shia populace. When the Shia had had enough, Saudi and UAE troops were used to end the rebellion. Bahrain is thus indebted to the UAE.
How many among voters will know the real value of these historic (according to Trump) deals particularly when he starts twittering his accomplishments as the election nears?
There things stand. As they say, there is nothing worse than peaking too early. Bettors are still favoring Trump with their money. The longer anyone has been in politics the more there is to mine, and for an opponent to use to his/her advantage. Time it seems is on Trump’s side.
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