Tag Archives: Founding Fathers

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Parsing the founders’ language in the 2nd Amendment

Of all the amendments to the U.S. Constitution — all 27 of them — the one that gives me the most serious case of heartburn is the Second Amendment.

Here is what this amendment says. It’s brief, but it’s so damn confusing in my humble view: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

Americans are talking yet again about this amendment. Events in Las Vegas over the weekend have thrust this issue to the top of our minds once more. We’re talking about gun violence, gun control. We’re even debating whether we should be debating this issue at this time. I believe we should.

But I want to look at the Second Amendment’s sentence construction. I’ve read it thousands of times over my many years on this good Earth. I don’t understand what it’s saying.

The founders were smart men. They did a good job of developing a fairly cogent and concise bill of rights that are contained in the first 10 amendments to the Constitution. The Second Amendment, though, seems to make two points that are not connected to each other.

Indeed, the first 12 words preceding the comma seem to be lacking an ending. It refers only to a “well-regulated” militia and the necessity to have one to maintain “the security of a free State.” That’s it!

The following clause could stand as a complete sentence in that it contains a subject, some verbs and a predicate.

Those who favor stricter controls on firearms point to the first clause as their rationale. Those who oppose such controls look to the clause after the comma as their rationale.

My sense is that here is where the debate over this amendment seems to break down. Those on opposing sides of this mammoth chasm place their emphases on separate clauses. One means something different from the other one.

I know that courts have ruled countless times that the amendment means that Americans can own firearms, that it’s protected in the Constitution.

The Bill of Rights was ratified Dec. 15, 1791 and thus, the Constitution was established to form a framework for our representative democracy.

The founders got it mostly right when they crafted that framework. They wrote the Bill of Rights almost without exception with sentences that make sense; nine of the 10 amendments comprising the Bill of Rights were constructed in ways that make sense to laypeople such as yours truly.

The Second Amendment, though, gives me heartburn.

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‘All men are created equal … ‘

I hope the debate over the nation’s founding documents continues for a good while. We need, as Americans, to remind ourselves of what the founders wrote and try to parse what they meant when they wrote these words.

While steering away from specific mention of the current controversy swirling around the nation, I feel a need to examine briefly this particular passage from the Declaration of Independence.

“All men are created equal.” 

I suppose you can look at that phrase and take it one of several ways. Yes, all “men” were “endowed with … certain unalienable rights.” That, of course, excludes women, who were left out of that formula. They couldn’t vote; indeed, it took the United States of America until the early 20th century to get around to granting women that right.

There’s a discrepancy worth noting here. “All men” didn’t really mean “all.” You see, we had this portion of our population at the time the Declaration of Independence was written that wasn’t even considered fully human. They were the slaves. They were kept in bondage by many of the men responsible for founding the nation.

I will try to insert myself into Thomas Jefferson’s skull for a moment. The principal author of the Declaration perhaps intended for it to mean “all.” Whatever his intent or his idea at the time he put that thought down on paper, it doesn’t negate for one instant its fundamental truth.

All men — and eventually all women — are endowed by the rights laid out in the Declaration of Independence.

Fast-forwarding to the 21st century, it is preposterous in the extreme to accept the presence of those who pretend to be members of a “superior race” of human beings.

We’re in the midst of yet another national discussion about hate groups, about so-called “white supremacists” and those who adhere to a political philosophy against which we entered a world war. 

They will insist that they are the patriots among us. That they know the meaning of our nation’s founding.

They … know … nothing.

The founders didn’t get everything quite right when they penned those cherished words. Those who came along later have sought to amend and improve that high-minded language.

We’re not quite at the point of pure perfection. But we’re a lot closer to it now than we were at our nation’s beginning.

The preamble to the U.S. Constitution declares our intention to “form a more perfect Union.” I read that to mean that we’ll never quite reach the finish line. That does not mean we should stop reaching for it.

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Yep, the founders got it (mostly) right

Two hundred forty-one years later, it’s good to look back on what the nation’s founding fathers signed.

They stated in that document of independence declaration that “all men are created equal.” They put their names on the Declaration of Independence, many of them picked up their muskets and then went to war against the British Empire.

The fighting stopped in 1781. Then the founders went to work crafting a governing document we now know as the U.S. Constitution.

Did they get it 100 percent right when they signed off on that framework? Not really. I can think of two egregious errors of omission in that document.

The founders did not grant “all men” equal rights. Black men were enslaved. They were considered to be three-fifths of a human being. All men were created equal? No. The Emancipation Proclamation would set the slaves free in 1863, but it would take the nation two more years to ratify the 13th Amendment to the Constitution that abolished slavery once and for all.

Nor did the founders grant women full rights of citizenship, although they likely thought they were doing so at the time. Women couldn’t vote. They were mere spectators. It took the government a good bit longer to correct that error. In August 1920, the 19th Amendment was ratified, granting suffrage to women.

Thirty or 40 years ago, I might be inclined to dwell on those negative elements of our nation’s history. Today, I choose to concentrate on what the founders did right.

Their forebears came to this new land to escape religious persecution. Thus, the founders created a secular Constitution. They granted every citizen religious freedom, which also means they were free to not worship if they chose.

The founders separated the government into three co-equal branches, granting equal power to each of them. The president proposes laws; Congress disposes of them; the courts ensure their constitutionality.

The great Winston Churchill famously declared that representative democracy is the worst form of government ever created, but is superior to anything else. The founders, of course, didn’t anticipate such wisdom coming from the British Bulldog.

I also am quite certain they would agree with him.

Therefore, I choose to salute the founders’ success today. Their government is being tested yet again. I remain confident it will continue to function as those great men intended.

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‘I, alone … ‘ should have been given us a clue

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Donald J. Trump’s time as president has lasted all of about 122 days — give or take — yet it seems like forever already.

As I look back on this man’s stunning political ascent, I am struck by one moment that I believe in hindsight should have given us a clue on what we might expect.

He stood before the Republican National Convention this past summer in Cleveland and declared that “I, alone” can repair all the things he said are ailing the country.

Setting aside for a moment or two the myriad problems that are bedeviling this man and his administration — and which might cost him his office — that particular statement suggested to me at that moment that this fellow really doesn’t get it.

He doesn’t understand one of the principal tenets of governing, which is that he is participating in a team sport. It’s so critical to understand that notion at the federal level, where the founders established a triple-layered governmental system where one branch holds no more power than the other two.

The presidency is but one branch; it must work in tandem with the Congress. Waiting in the wings to ensure that the executive and legislative branches don’t violate the Constitution are the federal courts, comprising actual judges, not the “so-called” types who render decisions that might go against whatever the president wants to do.

Donald Trump ignores political decorum, custom and practice. As some have noted, he does so either out of ignorance or does so willfully. I’ll take Trump at his word that he is a “smart person,” which means he is invoking a willful disregard for how the federal government is supposed to work.

The concept of governing by oneself does not work. It cannot work. The president is getting a real-time civics lesson in how the nation’s founders established this government of ours. He has vowed to run the country like his business. Yeah, good luck with that.

A business mogul can fire people at will. He can order underlings around, make them do this or that task. He can threaten, bully and coerce others.

When he takes the reins of the executive branch of the federal government, all of that prior experience gets thrown out the window.

How does the president tell Congress — comprising 535 individuals with constituencies and power bases of their own — to do his bidding? And how does the president actually defy the federal judiciary, which the founders established to be an independent check on every single thing the president and Congress enact?

Yes, the Republican Party’s presidential nominee gave it all away when he stood there in Cleveland and bellowed “I, alone” can fix it.

No, Mr. President. You cannot. Nor should you have ever tried.

Moreover, I believe his repeated efforts to trample over Congress and the federal courts are going to bite him hard in the backside as he seeks to defend himself against the other troubles that are threatening him.

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Break up the 9th U.S. Circuit? C’mon, get real

Donald J. Trump keeps ratcheting up his open combat with the federal judicial system.

The president wants to break up the 9th U.S. Circuit Court of Appeals because — doggone it, anyway! — the judges keep issuing rulings with which he disagrees.

Poor guy. That’s how it goes sometimes, Mr. President.

The 9th Circuit has ruled against the president’s ban on refugees seeking entry into this country from majority-Muslim countries. That just won’t stand in Trump’s world. So his solution is to dismember the court, which is based in San Francisco and is considered to be arguably the most liberal appellate court in the federal judicial network.

He said lawyers shop for friendly judicial venues and the president believes the 9th Circuit is a favorite forum to hear cases pitting the federal government against anyone else.

Give me a break.

Conservative courts have ruled against liberal presidents. Indeed, liberal courts have ruled against conservative presidents as well. Have presidents of either stripe been so thin-skinned that they’ve sought to break up an appellate court? Not until this one took office.

Leave the court alone, Mr. President.

A better option for the president would be to craft laws that can withstand judicial challenge. Federal judges in Hawaii, Washington state and Maryland all have found sufficient fault with the Trump administration’s effort to ban refugees to rule against them. Appellate judges have upheld the lower court rulings.

In a strange way this kind of reminds me of when President Franklin Roosevelt sought to tinker with the federal judiciary by “packing” the U.S. Supreme Court with justices more to his liking; he sought to expand the number of justices on the nation’s highest court. He didn’t succeed — thank goodness.

To be sure, Trump isn’t the only recent president to bully the federal judiciary. Barack Obama called out the Supreme Court while delivering a State of the Union speech in 2010 over its Citizens United ruling that allowed unlimited political contributions by corporations. The president was wrong to do so — in that venue — with the justices sitting directly in front of him.

The nation’s founders sought to establish an independent federal judiciary that ostensibly should be immune from political pressure. The president is seeking to bully the court system through a number of methods: He calls out judges individually and criticizes the courts’ decisions openly and with extreme harshness.

The 9th U.S. Circuit Court of Appeals needs to remain intact and the president needs to live with the consequences of how it interprets the U.S. Constitution.

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What has the president learned in 100 days?

Let’s turn away for a moment from what Donald Trump might have accomplished during his first 100 days as president to what he might have learned during that time.

The president’s list of accomplishments is pretty damn skimpy.

His learning curve, though, has been steep. I hope it’s beginning to flatten out.

What’s the most glaring eye-opener for the president? It’s that you cannot run the federal government the way you run a business.

At virtually every turn along the way since taking office, the president has been forced to swallow that bitter pill. A man who became used to getting his way because he demands it has learned that the federal government is structured — on purpose — to function on an entirely different set of dynamics.

The nation’s founders crafted a brilliant governing document. When you think about it, while the U.S. Constitution grants the president significant executive authority, it does not imbue the office with ultimate governing authority. The founders divvied up power among three branches of government: executive, legislative and judicial.

It’s that darn legislative branch — the U.S. Congress — that has a say in what becomes law. Donald Trump’s business experience doesn’t mean squat to many of the 535 men and women who comprise both chambers of Congress. They, too, have their constituencies to which they must answer. Yes, the president represents the nation, but Congress — as a body — also represents the very same nation.

Can you govern the nation like a business? No. Never. Not a zillion years.

Trump needs to understand that governance is a team sport. He cannot threaten members of Congress if they resist his legislative proposals. He cannot exclude members of the “other” party from key negotiations. He must abandon the “I, alone” mantra — which he bellowed at the Republican National Convention this past summer — that threatens to haunt him for as long as he is president.

And then there’s the judicial branch. The federal judiciary comprises individuals who hold lifetime appointed jobs. Their mission is to ensure that laws do not violate the Constitution. The founders granted them independence from the executive and legislative government branches.

Those judges have the constitutional authority to knock down executive orders, or to put the brakes on laws enacted by Congress. They aren’t “so-called judges” whose status as “unelected” jurists doesn’t diminish their authority.

I hope the president has learned at least some elements of all this during his first 100 days. If he doesn’t, then we’re all going to be in for an extremely rough ride.

However, we’re all just spectators. The president will need to hold on with both hands if he has any chance of getting anything done during his time in office.

We are witnessing the consequence of electing someone with zero public service experience. Mr. President, the federal government bears no resemblance — none! — to the businesses you built.

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Government teaches POTUS a stern, necessary lesson

It’s been a lot of fun watching the president of the United States getting the education of his life about how the U.S. government actually works.

It’s not how he wants it to work. Donald J. Trump cannot snap his fingers and make things happen just because, well, he can. Oh no. The system is designed precisely to prevent such things from happening.

Trump got elected while promising to “drain the swamp” and get things done. “I alone” can repair what ails the country, Trump declared at his nominating convention this past summer.

No, sir. You alone can’t do a damn thing!

Which is fine by me. Think of it.

* He seeks to repeal and replace the Affordable Care Act with something called the American Health Care Act; then he and congressional Republican leaders run smack into the TEA Party caucus within the GOP, which hates the AHCA. Oh, and those damn Democrats hate it, too!

* Trump declared his desire to ban all Muslims from entering the United States. Then after being elected he cobbles together a measure to ban refugees from seven Muslim-majority nations from entering the United States. Who steps in? The courts. No can do, Mr. President. A federal judge in Washington state strikes down the first ban; then the 9th U.S. Circuit Court of Appeals upholds the judge.

* He tries again. Trump reintroduces what he calls a “watered-down version” of the first ban. The courts strike again. Uh, Mr. President, this order violates the Establishment Clause of the U.S. Constitution, the one that says government cannot favor one religion over any other; it’s in the First Amendment, Mr. President. You ought to read it.

* His budget? The president seeks to boost defense spending by $54 billion while cutting myriad programs that help poor Americans. Meals on Wheels … for example? Gone. Congress has declared the president’s proposed budget to be essentially DOA, which is the way it’s done in Washington, Mr. President.

As it’s been said often, sir: The president proposes, while Congress disposes.

He’s getting grief from Americans who are angry because his wife and young son aren’t living in the White House, costing the government many millions of extra dollars to keep them safe while they live in Trump Tower — in New York City!

More grief is coming from those who wonder why the president keeps jetting off seemingly every weekend to his glitzy, decadent resort in Palm Beach, Fla. That’s costing a lot of dough, too.

It’s all not very, um, populist of you, Mr. President.

This business mogul is used to getting things done his way. He is learning that the presidency doesn’t allow that kind of thing.

You see, one cannot govern the United States of America the way you’d run a business. I don’t give a damn what anyone says to the contrary. You see, the founders had it right when they crafted a government full of all kinds of restraints, checks and balances, and assorted roadblocks to prevent an omnipotent presidency.

Welcome to the world of governance, Mr. President.

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Establishment Clause derails latest refugee ‘ban’

The nation’s founders were wise men. They didn’t craft a perfect governing document, but they got it mostly right.

They established the seven Articles within the U.S. Constitution, then set about to fine-tune it, tinkering with amendments, the first 10 of which guaranteed certain civil liberties to the citizens of the day.

The First Amendment is under discussion today as the nation ponders this idiotic idea by the current president to ban refugees from six Muslim countries.

Two federal judges have suspended the new rule on the grounds that it violates the Establishment Clause set forth in the very first amendment.

Interesting, yes? I think so. Here’s why.

The First Amendment protects three civil liberties: religion, the press and the right to assemble peaceably. It’s fascinating in the extreme to me that the founders constructed the First Amendment to prohibit the enactment of laws “respecting an establishment of religion, or prohibiting the free exercise thereof … ” Of the three liberties outlined, the founders listed religion first.

Donald J. Trump’s Muslim Ban 2.0 does essentially the same thing  — with a few modifications — as the first executive order that a federal judge struck down. It targets Muslims, discriminating against them as they seek to enter the United States.

Sure, the president insists he seeks only to protect Americans against terrorists.

Three federal judges, though, have said violating the Establishment Cause is illegal. Judges in Washington state, Hawaii and Maryland have concurred that such an order is discriminatory on its face.

No can do, Mr. President.

Therein perhaps lies the beauty of our form of government, the one crafted by the founders who knew the value of restricting the power of the executive branch. They did it by parceling out power equally to the legislative and, yes, the judicial branches of government. They allowed for lifetime appointments of federal judges ostensibly to liberate them from political pressure and to enable them to interpret the Constitution freely.

The judicial branch has exerted its rightful authority yet again. It did not commit, as the president said, an “unprecedented overreach” of judicial power.

It has recognized the importance of the Establishment Clause in the First Amendment, understanding that the founders thought enough of that clause and the contents of that amendment to enact it first.

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President gets real-time lesson on government limits

Donald Trump had zero government experience when he became president of the United States.

He seemed to think he could step into the presidency, assume the role of CEO and everyone would do his bidding.

He is now finding out that it doesn’t work quite that way. He is learning in real time that the founders established a government that limits presidential power. They created a government that allows two other branches to rein in an executive branch that could overstep its authority.

Congress is controlled by men and women who belong to the same political party as the president. Thus, the legislative branch might roll over. This leaves the final check to the judicial branch, which is flexing its muscles in this struggle over Trump’s executive order that restricts travel to the United States from those who hail from seven Muslim-majority nations.

The struggle now seems headed to the Supreme Court. The nation’s highest court likely will get to decide whether to uphold two lower-court rulings that have stalled the execution of Trump’s executive order.

If the Supremes uphold the earlier rulings — either with an actual ruling or a tie vote created by the unfilled vacancy — then the president will have to consider another way to “make America safe again.”

Perhaps the next tactic he employs will be considered more carefully and executed with more thought than the cluster-fudge he rolled out with this refugee ban.

Will any of this humble the president? Will it give him pause to consider his next action? Probably not, but it still gives me some comfort to know that the founders knew how to create a government that works.

And just for the record, if the Supreme Court rules in Trump’s favor and overrules the lower courts, then I’ll consider that — as well — to be a demonstration of a functioning federal government.

However, my concern were that to occur would be that it would embolden a president to misread the limitations on power that the founders wrote into the framework that built this nation.

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Founders got it right, as Trump is demonstrating

Benjamin Franklin, Thomas Jefferson, John Adams, James Madison … wherever they are, must be enjoying what they are witnessing in the country they helped create.

They are possibly witnessing a supreme test of checks and balances as they intended for them to be used.

Donald J. Trump, the nation’s 45th president, is setting up a yuuuge fight with the federal judiciary. That would pit two of the three co-equal branches of government against each other.

Trump issued an executive order that bans refugees from seven Muslim-majority countries. He cited national security as his reason. He seemingly wants to ban Muslims from entering the country and is using “extreme vetting” procedures to find the bad guys among the refugees who are fleeing their native lands for the Land of Opportunity and Freedom.

A federal judge has ruled that the executive order is discriminatory on its face. A federal appeals court is considering whether to uphold the ban or side with the judge.

Trump, meanwhile, is embarking on a social media campaign to blast the judge who issued the order staying the president’s order, thus possibly enraging other federal judges — namely the eight individuals who sit on the U.S. Supreme Court who might be asked to issue the final ruling on the president’s order.

Thus, a showdown may be born.

The founders established an “independent judiciary” for the best reason possible: to protect federal judges from political coercion. They serve as judges for life. They are supposed to interpret the U.S. Constitution without pressure or coercion from politicians.

But wait! Trump is seeking to apply that very pressure by badgering the judges. He called the federal jurist who struck down the ban a “so-called judge”; he said the nation should “blame” him and the federal court system if a bad guy sneaks into the nation.

Trump is using Twitter to make his specious case against the federal judiciary.

All the while, the founders are looking down while patting each other on the back. “Yep,” they might say to each other, “this is precisely what we had in mind.”