It’s supported by more than half the Democrats in the Senate, along with independents Bernie Sanders and Angus King; not a single Republican had the courage or patriotism to sign onto it….
The Nixon regime was known at the time as an "imperial" presidency. During the regime of Bush 43, Dick Cheney was advancing the notion of a "unitary executive". This idea of replacing democracy with autocracy has been a long-term corporate/Republican wet dream. This didn't start with Trump, and it won't stop after Trump.
Kavanaugh and Gorsuch were part of the Bush team attack dogs that began devising ways to empower the presidency over all the other branches. Now those people are on the court and they have made the court the most powerful. However, they may have weakened the court as fewer and fewer Americans recognize them as legitimate authorities and are finding ways to subvert their rulings. If the Dems get control of both houses the court will be reformed.
I'm in a very Blue State with two nearly pitch-perfect Progressives in the Senate. I usually gloat about the fact that I don't have to make a lot of calls. This information and your link to the No Kings Act, however, gave me a mission. One of my Senators is signed-on, the other isn't.
Time to get to after it---only takes a few minutes. Thanks for doing all the work, Thom. You are such an important voice, and we must all amplify it.
In her speech last night, Former First Lady Michelle Obama certainly bitch-slapped He Who Would Be King. Doug, the Obama's, and that ceremonial role call were all brilliant, all HEART, and such great fun!
This court has proven to be even more dangerous than Trump. They have stayed in power even after he lost his. The realized that they have lifetime appointments and think of themselves as accountable to no one. They have become isolated, arrogant, extreme and corrupt. They will do everything they can to restore Trump to power. That is why it will be necessary for Harris not not just win, but win big. The Dems will also have gain control of th House and Senate. Then they will find ways to reform the court, hopefully including impeachment.
The Supreme Court has been interfering in elections for decades. A strong president would simply close the Court, empty and shutter the building until the next president takes office. People might say " He can't do that." To paraphrase President Obama, "Yes he can."
The court itself said that the president is immune. But Biden is too much of an traditionalist to violate the Constitution, even if the court does it with almost every ruling.
Agree. A good argument for a general rule in politics: Twenty years (cumulative) in Federal office(s) is the limit. Anything more is sure to corrupt the individual no matter how good a moral code that person has. The saying is "Power corrupts...."
The hyper lying, greedy and aggressive right wingers, can't wait to be in total control. They can't wait until they have control of our military and start using it domestically and they have control of all the police departments. Almost all criminals want total control of the law!
It is hard for a criminal to be told to act civilized and not harm other people. I see it all around me in rural Arizona. The cult don't care if their dogs are barking at all hours bothers their neighbors and they don't care if their septic tank emits odors and they don't care if their watering trees in the desert grows cockroaches. It is hard for a right winger to consider their neighbors, let alone, "Love thy neighbor"!
In my humble opinion, if the whole world were right wingers, it would be all over by now. They would have had one big war, because they annoy each other also! Two takers can't get along!
Dark Money buys congress people, senators, judges, at all levels & most disturbingly even at the Supreme Court level. We are encouraged to vote so that the Democrats will be in the majority. That of course will be most helpful but the biggest stumbling block to that is that it is apparent that trump is not depending on votes. He is depending on chaos during the certification process.
I imagine that they have gamed out different scenarios to plan for anything that Democrats can throw at them. And, I still can't get rid of that feeling that trump will call out 'his' Proud Boys et al. I feel pretty certain that they are chomping at the bit to bash some heads & shoot people as well as intimidate voters with their "uniforms" & long guns proudly on display.
It is exciting to be energized & to feel the good will & joy that Harris/Walz elecit as they make the rounds on their campaign tour(s). I just hope we can keep the joy going & install sanity & cheerfulness & real patriotism into the American psyche.
I ‘ m not surprised that not a single Republican signed on to support the Constitution.
They do not have the knowledge required for reasonable debate and determination of the real issues. This because whatever they had in common sense has been tossed aside to accommodate DJTs lies.
Assuming some of them had common sense. Might be a leap to assume that .
However they’ve sold their intelligence along with their souls to the devil. Allowing them to care not one bit what’s right or Just.
Speaking of Justice. We now are manned by appointed Justices( by DJT of course ) who have no interest in justice .
Their interest is in soothing the egos of their leaders in the Heritage Foundation and the Federalist Society, who strongly support the Craven Fascist Project 2025 .
It’s time to remove these corrupt politicians and the corrupt judiciary .
Thomas , Alito, Gorsuch, the dishonest rowdy beer drinking fellow , just can’t place his name ‘I like beer” comes to mind . And Amy .
Congress needs an overhaul .
We need people willing “ to serve “ the people , not prop up the corrupt wannabe King.
And this report is why the current Republicans want to destroy the American educational system: they don't want anyone to know or explain the way that they are twisting and corrupting the way the country operates.
This is the most accurate description I have yet read of the SCOTUS decision to grant immunity to the president. It makes no sense in a country with a Constitution that says no man (or woman) is above the law. The six justices who ruled to grant the protection for “official acts” broke the law laid out in our Constitution, and as such, should be subject to the law themselves. They have put themselves above the U S Constitution, and their own immunity should be revoked by Congress.
The history demonstrates an unresolved conflict of legal systems. This is often not understood even by legal scholars in the U.S. But, it needs to be resolved by Congress.
The English legal system is often seen as the basis of the American system. That is only partially correct. One can understand the difference by comparing the English and U.S. constitutions.
In the UK there is often discussion of a British constitution. Yet, there is no single defining document for a UK constitution. Rather it is a collection of laws, judicial decisions, and traditions. The situation reflects the evolution of UK law as a series of judicial decisions in what is called a "common law system." It is often said that the UK is more a collection of interests than a country.
The U.S. constitutional authors took a different approach and adopted what is today called a "civil code system," based somewhat on the Roman legal system. They grafted a partially developed civil code system on a common law tradition. Beginning with the Napoleonic Code in France a couple of decades later in 1800, we start to see a modern implementation of a civil code system.
The U.S. constitutional authors used immature models in the 1780s. The ideas were later evolved by Napolean's commission in 1800, again following the European Civil Wars in the 1840s (e.g., Switzerland) and yet again after WWII (e.g., the 1949 German constitution). The use of the immature model of the 1780s has resulted in an unresolved conflict between a common law system that is not scalable and the deficiencies of an early version of a civil code system. The U.S. Supreme Court took advantage of the unresolved conflict in Marbury vs. Madison to claim jurisdiction to rule on the constitutionality of laws.
Moving forward, there are solutions to resolve this conflict legislatively. Some ideas include.
First, Congress can create a constitutional court as a panel for the Supreme Court.
Second, the jurisdiction of this panel can be defined similarly to how the German system defines that of the Federal Constitutional Court (Bundesverfassungsgericht) as applying only to parties before it and having a limited precedential effect.
Last, the venue for any constitutional challenge can be changed to be ONLY in the U.S. District Court for the District of Columbia and the D.C. Court of Appeals.
It occurred to me that our government is like a used car I bought to get me to work. The alignment was off and always pulled to the right, but the price was right, and I needed a car immediately. Over the years, I replaced the tires, brakes, radiator, gaskets, and belts. It was all worth it not to have to buy another car. Then the a/c and heater went out, and I just endured the temperature rather than spend the repair money or buy another vehicle. Finally, when the mechanic noticed the frame was rusting through when I was replacing a tire, I realized I could no longer rely on the car to get me to work. I had to pay and buy another vehicle.
Since the inception of our nation, the Founding Fathers made compromises, such as the decision to have two Senators per state, regardless of population size. They also sought to address the concern that the 'rabble' might not vote rationally, leading to the creation of the Electoral College. However, over time, the Supreme Court has granted itself powers that were not part of the original plan. These deviations have led us away from the original intent of creating a government 'of, by, and for the people '.
So, my question is, should we continue to try to repair the system, or is it time to start over again? Could the Progressive wing of the Democrats or a new party make such a proposal? Is it time?
How timely, but not quite relavent, but a spin off from your used car story.
I have a 2001 PT Cruiser, piece of junk, only22,000 miles, been in storage for years,took it out every year to keep the oil circulating and bushings flexible, etc.
I use it now only to drive to town once or twice a week, a 7 mile round trip to buy food, pick up mail and packages.
Last month it started to pull to the right, so I scheduled an appointment to check it out, it took almost a month, only one reputable and professonal mechanical service.
I drove it in Monday and it scared me, I was afraid a wheel would come off Mechanic put it up on the rack, could find nothing, then the boss checked the left front tire.
24 years old, 22,000 miles, tread like new, but the tire had delaminated. Awaiting arrival of all four tires, since I only put maybe a 1,000 miles or less a year on it,damn thing is like new, I ordered the cheapest tires available.
I am as you, I had a 1970 Maverick and drove it into the ground. A car is only transportation.
The frame on our 20 year old Chevy S-10 was nearly rusted through, but my youngest son welded a piece onto it. If we ever end up in a Mad Max world, he is the person you would want to know.
Typically systems evolve and build on history. That is healthy and realistic given the complexity of social systems.
Much has been learned by constitutional democracies since the 1780s. A restructuring of the Supreme Court to represent more of what Germany has done makes sense. The changes in Gemany came in part due to the failed fascist regime of the 1930s and 1940s.
Reforming the presidency to be a collective such as the Swiss Federal Council would be another area. Electing a single person to a presidency of a large, diverse country is simply crazy. A system mistake, such as occurred in 2000 and 2016, can have devastating consequences. The Swiss used the U.S. Constitution as a model in the 1848 reforms and decided that they would not trust a single person to be an elected monarch. After all, the Swiss Conferation was founded in opposition to the Hapsburg Empire and its emperors.
There are better ways to govern a country that doesn't result in inequality that can't be overcome within the system. In grad school for health services administration we learned why new companies overcome old companies. Policies, people, and stakeholders resist change and the system becomes unwieldy.
What about a Constitutional Convention or at least an exploratory committee? The system is not working and is deteriorating. The 2025 Plan is evidence that the right is thinking in those terms. The majority needs their interests represented more fairly than can possibly happen in the unjust system in which we are now living.
Gloria,An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.
There are 50 states and over half of them are Republican controlled. What kind of constitution do you think that MAGAt state legislatures will agree on..?
I know how the system is supposed to work and why it doesn't. The Founders only created the perfect system if they intended to protect the wealthy and create an oligarchy. Maybe they say a revolution starting from the bottom up and decided they, being rich and superior, should get out ahead of it. Come to think of it, they were the oligarchy at the time.
From what I know, I agree. The sacred founding document, had no recognition of the common man, and he had to be brought on board by distribution of propaganda, like The Rights of Man or Common Sense. Excellent books that refuted Edmund Burke and other defenders of the elite.
Work they did, all too well,because by the time the Royalists decided it was no longer worth the expenditure of money (after all France was their real enemy and threat), the common man in the former colonies, had objected to replacing
English nobility with home grown nobility,
The founders gave us a Republic. Americans have no idea what a Republic is, it is a government ruled by wise men, meaning the property owners, this is the government that JD Vance and the Heritage foundation want to return to. Trump doesn't think in those terms, he simply wants to be a dictator, and they are riding his coat tails.
The constitution gave us a democratic Republic, where the land owning, white man elected it's representatives, we didn't get a real democracy until 1919 and the ratification of the 19th Amendment, the 15th and 17th were stepping stones, but didn't complete the task.
Gloria - I have long advocated that the progressives need to define an agenda for constutitional reform. I am starting to see evidence that there is thinking that the time is now. Lawrence Tribe's remarks in several videos of late lead me to believe he is moving in this direction.
Social change requires a vision and making that vision real. Progressives need to do better. There are some lessons for the ways to do this can come from the EU's efforts are remaking itself as it grows to include even more members.
A negative reaction to Project 2025 is justified but these types of agendas go back to the Reagan administration. It is time for progressives to be just as open about progressive ideas, rather than just reacting to and resisting neo-con ideas.
Dr. Doug, I agree with you. I'm going to follow up on Lawrence Tribe. Remember that JFK said that those who make peaceful revolution impossible make violent revolution inevitable.
We have a mixed system. Common law is referenced several places...e.g. the 7th Amendment. The 9th Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". It was ratified on December 15, 1791. The amendment's purpose and applicability have been debated by constitutional scholars and judges, and the courts have rarely relied on it. But there is no doubt that we have common law rights. How about the right to vote. Sit on a jury? Posse comitatus?
In my first state, Pennsylvania, we were mainly a common law state until a Constitutional Convention in 1966-68. I was around when the law was codified.
In the Federalist papers, 81-85 Levine (you know him as Alexander Hamilton) sayeth: ".... there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion."
To me, that means that common law doctrines, like "constitutionality," the "rights/remedies" dichotomy, extraordinary writs like quo waranto, mandamus and habeus corpus. etc still apply.
In the German system constitutionality, rights/remedies, etc. are matters of civil code that are to be developed by elected legislators rather than monarchs operating as judges.
The experiences in Germany following the Enablement Act of 1933 definitely left an impression about how to deal with fascism. Some lessons for us.
When you sign a mortgage, Property is transferred in what is called Fee Simple.
The origin of he name lies in the word Fee (Feudal right)
The History of Fee Simple goes back to Edward I, he faced a rebellion for his barons, he needed their money and arms, but the barons resisted. Because the King was sovereign by allodial rights (the right of conquest, passed on via primogeniture where the eldest son inherits the land and title (King, Duke, Baron, etc)
Heretofore the Sovereign would dispossess a baron and give his title and land to a court favorite, happened often.
The barons wanted security in perpetuity, and Edwards compromise was fee simple, they could hold title to it, so long as they were loyal subjects, obeyed the laws of the sovereign, and provided arms and men when needed
I know of no law enacted by congress which carries forth this concept, yet it remains in all 50 states, and this is where problem begins, each state is sovereign, so each state has it's own judicial system, voting system, and legal system. The several states are bound together by the UCC (Uniform Commercial Code) and the Constitution
The UCC was passed to facilitate commerce between the several states,and has been used in the past by SCOTUS in ruling in cases.
The average American does not fully realize that each state is its own sovereign entity,, and that to take a criminal from one state to be tried in another, requires and extradiction.
When westen states were still territories the US Marshall had ultimate jurisdiction, when they became sovereign countries (states) the Marshall had to defer to the state, except in the case of federal law that all states have ratified by their representatives.
This is why marijuana is legal in Washington State,but not legal in Arkansas, and why a pot shot can't use the banking system, because in federal law (which the FDA could change in a flash) marijuana is a schedule 1 drug, and thus proceeds from it's sale is considered illegal because of the Federal Reserve System. Same with abortion, gay marriage and many, ,many other laws.
Back to fee simple. I know of no federal law that created the system, it is a hand me down from England's Edward I.
What we were discussing above is legal procedure and interpretation. The Constitution contained only a fraction of existing authority. Congress was expected to lay out statutes that were the actual black letter law to be followed.
Most property law follows state law. In western states land was laid out in plots (a/k.a plats) so that they could be easily identified. Not true in most eastern states. Under common law property was passed by livery of seizin. The owner broke a twig symbolically to pass title, now a deed, which had to be registered at the county court. Insurance companies usually only go back 50 years or so but in many cases ownership is questionable. Many of the properties in my home county were granted to Revolutionary War soldiers. Many were devised even before that. I used to see deeds that said something like lands of Smith, starting on the post road surveyed by Col Geo, Washington, west by the Beaver River, north by lands of White, south by lands of Black. The river may have meandered a mile or so after Washington surveyed the land. Meanwhile we recognized common law doctrines like adverse possession and easements by necessity, so that fee simple was not that certain. Squatters or the government could assert superior rights to fee simple.
At the same time, the government can own property. In Pennsylvania, a lot of the mountainous areas were never devised. There are "commons" in places like Philly, which also had esoteric concepts involving stuff like "party walls" and "land rents" that are unknown in Pennsyltucky.
The Uniform Commercial Code was written when my dad was in law school. I took a course on it, used it daily. It is NOT federal law, rather had to be adopted by the states. Because I was in the ABA House of Delegates, I was involved with many state compacts -- and many that never came into being. I wasn't a member of the Center for Interstate Compacts, but many of our members were. https://compacts.csg.org/
The Constitution has a full faith and credit clause derived from Article IV, Section I of the Constitution. Its purpose is to prevent conflict among states and ensure the dependability of judgments across the country. The clause requires states to:
*Pay attention to other states' statutes, public records, and court decisions
*Follow judgments made on the same issue in another state
*Prevent relitigating issues that did not receive favorable judgments in previous cases
*Honor out-of-state laws, regulations, and judgments
*The clause also allows Congress to decide how to prove these materials in court and what effect they will have .
William - One more bit of complication is that in parts of the Western States, some land property rights trace back to Spanish land grants with an overlay of tribal treaties. California, Arizona, and the Southern half of Colorado share this legacy.
The territories that were part of the Louisiana Purchase may well have elements of French Civil Code law carrying through land ownership systems.
It is indeed a patchwork system of distributed governance. The power grabs by the U.S. Supreme Court move in the direction of a centralized authoritarian regime. The risk of this growing authoritarian tendency by SCOTUS is that, at some point, the parts of the whole may declare their defiance and independence.
Very enlightening, thanks Doc, you just added a dimension I never thought of, a patchwork indeed, Louisiana civil law is based on the French Civil code. I know that I lived in Louisiana.
Isuspect that we are at the breaking point, if Kamala wins the election, Trump will activate his cult and civil war can break out. If Trump wins, the Democrats will sit in their seats, mumbling like we do on substack, shitter and Facebook, but eventually tension will build,demonstration after demonstration and each time the national gurd, or 82nd or 101st Airborne, not to mention the Constitutional Sheriffs and Peace Officers Association, ready to bust heads and shoot us liberals, will be called out to "restore order".
Scary times ahead. I support this but will that be enough? Is there enough will in the people to support this or are the voters so jaded by now that they have become truly apathetic to the congress and it's business? I am anxious to see how this works out.
I believe the voters will decide when they elect Kamala Harris in November. If they also giver a blue Senate and House, your question will be answered.
People are not as stupid as the GOP thinks they are. Women are very angry about the overturning of Roe, and will likely vote for the party that will restore reproductive rights.
Well past time Congress strip the Supreme Court of its abuses. End bribery and countering the constitution clear and valid logic of law. How long will it take replacements to undo the obvious damage of this court?
It is absurd on its face to allow 9 persons to rule on matters of importance to the electorate as a whole, especially when the court is occupied by partisans who subscribe to ideologies that aren't supported by the electorate as a whole. Hartmann does an important service to the people to add substance to the argument that SCOTUS has overstepped in its recent rulings that have no basis in the constitution or anywhere else.
Thom, as always, your thoughtful pieces are base in facts and recognized history. Thank you for timely, perennially relevant information and scholarship.
Republicans will not cooperate. The only thing we can do is win the election.
DO SOMETHING. Register more Democrats.
https://www.fieldteam6.org/
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
The Nixon regime was known at the time as an "imperial" presidency. During the regime of Bush 43, Dick Cheney was advancing the notion of a "unitary executive". This idea of replacing democracy with autocracy has been a long-term corporate/Republican wet dream. This didn't start with Trump, and it won't stop after Trump.
Kavanaugh and Gorsuch were part of the Bush team attack dogs that began devising ways to empower the presidency over all the other branches. Now those people are on the court and they have made the court the most powerful. However, they may have weakened the court as fewer and fewer Americans recognize them as legitimate authorities and are finding ways to subvert their rulings. If the Dems get control of both houses the court will be reformed.
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
I'm in a very Blue State with two nearly pitch-perfect Progressives in the Senate. I usually gloat about the fact that I don't have to make a lot of calls. This information and your link to the No Kings Act, however, gave me a mission. One of my Senators is signed-on, the other isn't.
Time to get to after it---only takes a few minutes. Thanks for doing all the work, Thom. You are such an important voice, and we must all amplify it.
In her speech last night, Former First Lady Michelle Obama certainly bitch-slapped He Who Would Be King. Doug, the Obama's, and that ceremonial role call were all brilliant, all HEART, and such great fun!
This court has proven to be even more dangerous than Trump. They have stayed in power even after he lost his. The realized that they have lifetime appointments and think of themselves as accountable to no one. They have become isolated, arrogant, extreme and corrupt. They will do everything they can to restore Trump to power. That is why it will be necessary for Harris not not just win, but win big. The Dems will also have gain control of th House and Senate. Then they will find ways to reform the court, hopefully including impeachment.
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
The Supreme Court has been interfering in elections for decades. A strong president would simply close the Court, empty and shutter the building until the next president takes office. People might say " He can't do that." To paraphrase President Obama, "Yes he can."
The court itself said that the president is immune. But Biden is too much of an traditionalist to violate the Constitution, even if the court does it with almost every ruling.
Agree. A good argument for a general rule in politics: Twenty years (cumulative) in Federal office(s) is the limit. Anything more is sure to corrupt the individual no matter how good a moral code that person has. The saying is "Power corrupts...."
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
The hyper lying, greedy and aggressive right wingers, can't wait to be in total control. They can't wait until they have control of our military and start using it domestically and they have control of all the police departments. Almost all criminals want total control of the law!
It is hard for a criminal to be told to act civilized and not harm other people. I see it all around me in rural Arizona. The cult don't care if their dogs are barking at all hours bothers their neighbors and they don't care if their septic tank emits odors and they don't care if their watering trees in the desert grows cockroaches. It is hard for a right winger to consider their neighbors, let alone, "Love thy neighbor"!
In my humble opinion, if the whole world were right wingers, it would be all over by now. They would have had one big war, because they annoy each other also! Two takers can't get along!
Dark Money buys congress people, senators, judges, at all levels & most disturbingly even at the Supreme Court level. We are encouraged to vote so that the Democrats will be in the majority. That of course will be most helpful but the biggest stumbling block to that is that it is apparent that trump is not depending on votes. He is depending on chaos during the certification process.
I imagine that they have gamed out different scenarios to plan for anything that Democrats can throw at them. And, I still can't get rid of that feeling that trump will call out 'his' Proud Boys et al. I feel pretty certain that they are chomping at the bit to bash some heads & shoot people as well as intimidate voters with their "uniforms" & long guns proudly on display.
It is exciting to be energized & to feel the good will & joy that Harris/Walz elecit as they make the rounds on their campaign tour(s). I just hope we can keep the joy going & install sanity & cheerfulness & real patriotism into the American psyche.
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
I ‘ m not surprised that not a single Republican signed on to support the Constitution.
They do not have the knowledge required for reasonable debate and determination of the real issues. This because whatever they had in common sense has been tossed aside to accommodate DJTs lies.
Assuming some of them had common sense. Might be a leap to assume that .
However they’ve sold their intelligence along with their souls to the devil. Allowing them to care not one bit what’s right or Just.
Speaking of Justice. We now are manned by appointed Justices( by DJT of course ) who have no interest in justice .
Their interest is in soothing the egos of their leaders in the Heritage Foundation and the Federalist Society, who strongly support the Craven Fascist Project 2025 .
It’s time to remove these corrupt politicians and the corrupt judiciary .
Thomas , Alito, Gorsuch, the dishonest rowdy beer drinking fellow , just can’t place his name ‘I like beer” comes to mind . And Amy .
Congress needs an overhaul .
We need people willing “ to serve “ the people , not prop up the corrupt wannabe King.
Let’s do this .
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
And this report is why the current Republicans want to destroy the American educational system: they don't want anyone to know or explain the way that they are twisting and corrupting the way the country operates.
This is the most accurate description I have yet read of the SCOTUS decision to grant immunity to the president. It makes no sense in a country with a Constitution that says no man (or woman) is above the law. The six justices who ruled to grant the protection for “official acts” broke the law laid out in our Constitution, and as such, should be subject to the law themselves. They have put themselves above the U S Constitution, and their own immunity should be revoked by Congress.
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
GOTV, Elect Harris, Elect Senate and House Majorities, end the 40 vote filibuster, and pass the No Kings Act.
The history demonstrates an unresolved conflict of legal systems. This is often not understood even by legal scholars in the U.S. But, it needs to be resolved by Congress.
The English legal system is often seen as the basis of the American system. That is only partially correct. One can understand the difference by comparing the English and U.S. constitutions.
In the UK there is often discussion of a British constitution. Yet, there is no single defining document for a UK constitution. Rather it is a collection of laws, judicial decisions, and traditions. The situation reflects the evolution of UK law as a series of judicial decisions in what is called a "common law system." It is often said that the UK is more a collection of interests than a country.
The U.S. constitutional authors took a different approach and adopted what is today called a "civil code system," based somewhat on the Roman legal system. They grafted a partially developed civil code system on a common law tradition. Beginning with the Napoleonic Code in France a couple of decades later in 1800, we start to see a modern implementation of a civil code system.
The U.S. constitutional authors used immature models in the 1780s. The ideas were later evolved by Napolean's commission in 1800, again following the European Civil Wars in the 1840s (e.g., Switzerland) and yet again after WWII (e.g., the 1949 German constitution). The use of the immature model of the 1780s has resulted in an unresolved conflict between a common law system that is not scalable and the deficiencies of an early version of a civil code system. The U.S. Supreme Court took advantage of the unresolved conflict in Marbury vs. Madison to claim jurisdiction to rule on the constitutionality of laws.
Moving forward, there are solutions to resolve this conflict legislatively. Some ideas include.
First, Congress can create a constitutional court as a panel for the Supreme Court.
Second, the jurisdiction of this panel can be defined similarly to how the German system defines that of the Federal Constitutional Court (Bundesverfassungsgericht) as applying only to parties before it and having a limited precedential effect.
Last, the venue for any constitutional challenge can be changed to be ONLY in the U.S. District Court for the District of Columbia and the D.C. Court of Appeals.
It occurred to me that our government is like a used car I bought to get me to work. The alignment was off and always pulled to the right, but the price was right, and I needed a car immediately. Over the years, I replaced the tires, brakes, radiator, gaskets, and belts. It was all worth it not to have to buy another car. Then the a/c and heater went out, and I just endured the temperature rather than spend the repair money or buy another vehicle. Finally, when the mechanic noticed the frame was rusting through when I was replacing a tire, I realized I could no longer rely on the car to get me to work. I had to pay and buy another vehicle.
Since the inception of our nation, the Founding Fathers made compromises, such as the decision to have two Senators per state, regardless of population size. They also sought to address the concern that the 'rabble' might not vote rationally, leading to the creation of the Electoral College. However, over time, the Supreme Court has granted itself powers that were not part of the original plan. These deviations have led us away from the original intent of creating a government 'of, by, and for the people '.
So, my question is, should we continue to try to repair the system, or is it time to start over again? Could the Progressive wing of the Democrats or a new party make such a proposal? Is it time?
How timely, but not quite relavent, but a spin off from your used car story.
I have a 2001 PT Cruiser, piece of junk, only22,000 miles, been in storage for years,took it out every year to keep the oil circulating and bushings flexible, etc.
I use it now only to drive to town once or twice a week, a 7 mile round trip to buy food, pick up mail and packages.
Last month it started to pull to the right, so I scheduled an appointment to check it out, it took almost a month, only one reputable and professonal mechanical service.
I drove it in Monday and it scared me, I was afraid a wheel would come off Mechanic put it up on the rack, could find nothing, then the boss checked the left front tire.
24 years old, 22,000 miles, tread like new, but the tire had delaminated. Awaiting arrival of all four tires, since I only put maybe a 1,000 miles or less a year on it,damn thing is like new, I ordered the cheapest tires available.
I am as you, I had a 1970 Maverick and drove it into the ground. A car is only transportation.
The frame on our 20 year old Chevy S-10 was nearly rusted through, but my youngest son welded a piece onto it. If we ever end up in a Mad Max world, he is the person you would want to know.
LOL, your lucky
Typically systems evolve and build on history. That is healthy and realistic given the complexity of social systems.
Much has been learned by constitutional democracies since the 1780s. A restructuring of the Supreme Court to represent more of what Germany has done makes sense. The changes in Gemany came in part due to the failed fascist regime of the 1930s and 1940s.
Reforming the presidency to be a collective such as the Swiss Federal Council would be another area. Electing a single person to a presidency of a large, diverse country is simply crazy. A system mistake, such as occurred in 2000 and 2016, can have devastating consequences. The Swiss used the U.S. Constitution as a model in the 1848 reforms and decided that they would not trust a single person to be an elected monarch. After all, the Swiss Conferation was founded in opposition to the Hapsburg Empire and its emperors.
There are better ways to govern a country that doesn't result in inequality that can't be overcome within the system. In grad school for health services administration we learned why new companies overcome old companies. Policies, people, and stakeholders resist change and the system becomes unwieldy.
What about a Constitutional Convention or at least an exploratory committee? The system is not working and is deteriorating. The 2025 Plan is evidence that the right is thinking in those terms. The majority needs their interests represented more fairly than can possibly happen in the unjust system in which we are now living.
Gloria,An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.
There are 50 states and over half of them are Republican controlled. What kind of constitution do you think that MAGAt state legislatures will agree on..?
I know how the system is supposed to work and why it doesn't. The Founders only created the perfect system if they intended to protect the wealthy and create an oligarchy. Maybe they say a revolution starting from the bottom up and decided they, being rich and superior, should get out ahead of it. Come to think of it, they were the oligarchy at the time.
From what I know, I agree. The sacred founding document, had no recognition of the common man, and he had to be brought on board by distribution of propaganda, like The Rights of Man or Common Sense. Excellent books that refuted Edmund Burke and other defenders of the elite.
Work they did, all too well,because by the time the Royalists decided it was no longer worth the expenditure of money (after all France was their real enemy and threat), the common man in the former colonies, had objected to replacing
English nobility with home grown nobility,
The founders gave us a Republic. Americans have no idea what a Republic is, it is a government ruled by wise men, meaning the property owners, this is the government that JD Vance and the Heritage foundation want to return to. Trump doesn't think in those terms, he simply wants to be a dictator, and they are riding his coat tails.
The constitution gave us a democratic Republic, where the land owning, white man elected it's representatives, we didn't get a real democracy until 1919 and the ratification of the 19th Amendment, the 15th and 17th were stepping stones, but didn't complete the task.
Gloria - I have long advocated that the progressives need to define an agenda for constutitional reform. I am starting to see evidence that there is thinking that the time is now. Lawrence Tribe's remarks in several videos of late lead me to believe he is moving in this direction.
Social change requires a vision and making that vision real. Progressives need to do better. There are some lessons for the ways to do this can come from the EU's efforts are remaking itself as it grows to include even more members.
A negative reaction to Project 2025 is justified but these types of agendas go back to the Reagan administration. It is time for progressives to be just as open about progressive ideas, rather than just reacting to and resisting neo-con ideas.
Dr. Doug, I agree with you. I'm going to follow up on Lawrence Tribe. Remember that JFK said that those who make peaceful revolution impossible make violent revolution inevitable.
We have a mixed system. Common law is referenced several places...e.g. the 7th Amendment. The 9th Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". It was ratified on December 15, 1791. The amendment's purpose and applicability have been debated by constitutional scholars and judges, and the courts have rarely relied on it. But there is no doubt that we have common law rights. How about the right to vote. Sit on a jury? Posse comitatus?
In my first state, Pennsylvania, we were mainly a common law state until a Constitutional Convention in 1966-68. I was around when the law was codified.
In the Federalist papers, 81-85 Levine (you know him as Alexander Hamilton) sayeth: ".... there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion."
To me, that means that common law doctrines, like "constitutionality," the "rights/remedies" dichotomy, extraordinary writs like quo waranto, mandamus and habeus corpus. etc still apply.
In the German system constitutionality, rights/remedies, etc. are matters of civil code that are to be developed by elected legislators rather than monarchs operating as judges.
The experiences in Germany following the Enablement Act of 1933 definitely left an impression about how to deal with fascism. Some lessons for us.
Here is one for you Daniel.
When you sign a mortgage, Property is transferred in what is called Fee Simple.
The origin of he name lies in the word Fee (Feudal right)
The History of Fee Simple goes back to Edward I, he faced a rebellion for his barons, he needed their money and arms, but the barons resisted. Because the King was sovereign by allodial rights (the right of conquest, passed on via primogeniture where the eldest son inherits the land and title (King, Duke, Baron, etc)
Heretofore the Sovereign would dispossess a baron and give his title and land to a court favorite, happened often.
The barons wanted security in perpetuity, and Edwards compromise was fee simple, they could hold title to it, so long as they were loyal subjects, obeyed the laws of the sovereign, and provided arms and men when needed
I know of no law enacted by congress which carries forth this concept, yet it remains in all 50 states, and this is where problem begins, each state is sovereign, so each state has it's own judicial system, voting system, and legal system. The several states are bound together by the UCC (Uniform Commercial Code) and the Constitution
The UCC was passed to facilitate commerce between the several states,and has been used in the past by SCOTUS in ruling in cases.
The average American does not fully realize that each state is its own sovereign entity,, and that to take a criminal from one state to be tried in another, requires and extradiction.
When westen states were still territories the US Marshall had ultimate jurisdiction, when they became sovereign countries (states) the Marshall had to defer to the state, except in the case of federal law that all states have ratified by their representatives.
This is why marijuana is legal in Washington State,but not legal in Arkansas, and why a pot shot can't use the banking system, because in federal law (which the FDA could change in a flash) marijuana is a schedule 1 drug, and thus proceeds from it's sale is considered illegal because of the Federal Reserve System. Same with abortion, gay marriage and many, ,many other laws.
Back to fee simple. I know of no federal law that created the system, it is a hand me down from England's Edward I.
Enforced by the police power of the sovereign.
Is there such a law?
What we were discussing above is legal procedure and interpretation. The Constitution contained only a fraction of existing authority. Congress was expected to lay out statutes that were the actual black letter law to be followed.
Most property law follows state law. In western states land was laid out in plots (a/k.a plats) so that they could be easily identified. Not true in most eastern states. Under common law property was passed by livery of seizin. The owner broke a twig symbolically to pass title, now a deed, which had to be registered at the county court. Insurance companies usually only go back 50 years or so but in many cases ownership is questionable. Many of the properties in my home county were granted to Revolutionary War soldiers. Many were devised even before that. I used to see deeds that said something like lands of Smith, starting on the post road surveyed by Col Geo, Washington, west by the Beaver River, north by lands of White, south by lands of Black. The river may have meandered a mile or so after Washington surveyed the land. Meanwhile we recognized common law doctrines like adverse possession and easements by necessity, so that fee simple was not that certain. Squatters or the government could assert superior rights to fee simple.
At the same time, the government can own property. In Pennsylvania, a lot of the mountainous areas were never devised. There are "commons" in places like Philly, which also had esoteric concepts involving stuff like "party walls" and "land rents" that are unknown in Pennsyltucky.
The Uniform Commercial Code was written when my dad was in law school. I took a course on it, used it daily. It is NOT federal law, rather had to be adopted by the states. Because I was in the ABA House of Delegates, I was involved with many state compacts -- and many that never came into being. I wasn't a member of the Center for Interstate Compacts, but many of our members were. https://compacts.csg.org/
The Constitution has a full faith and credit clause derived from Article IV, Section I of the Constitution. Its purpose is to prevent conflict among states and ensure the dependability of judgments across the country. The clause requires states to:
*Pay attention to other states' statutes, public records, and court decisions
*Follow judgments made on the same issue in another state
*Prevent relitigating issues that did not receive favorable judgments in previous cases
*Honor out-of-state laws, regulations, and judgments
*The clause also allows Congress to decide how to prove these materials in court and what effect they will have .
https://www.law.cornell.edu/constitution-conan/article-4/section-1/overview-of-full-faith-and-credit-clause
William - One more bit of complication is that in parts of the Western States, some land property rights trace back to Spanish land grants with an overlay of tribal treaties. California, Arizona, and the Southern half of Colorado share this legacy.
The territories that were part of the Louisiana Purchase may well have elements of French Civil Code law carrying through land ownership systems.
It is indeed a patchwork system of distributed governance. The power grabs by the U.S. Supreme Court move in the direction of a centralized authoritarian regime. The risk of this growing authoritarian tendency by SCOTUS is that, at some point, the parts of the whole may declare their defiance and independence.
Very enlightening, thanks Doc, you just added a dimension I never thought of, a patchwork indeed, Louisiana civil law is based on the French Civil code. I know that I lived in Louisiana.
Isuspect that we are at the breaking point, if Kamala wins the election, Trump will activate his cult and civil war can break out. If Trump wins, the Democrats will sit in their seats, mumbling like we do on substack, shitter and Facebook, but eventually tension will build,demonstration after demonstration and each time the national gurd, or 82nd or 101st Airborne, not to mention the Constitutional Sheriffs and Peace Officers Association, ready to bust heads and shoot us liberals, will be called out to "restore order".
1. Once upon a time, the Department of Interior had a group of judges that ruled on Spanish land grants and Mexican claims, mainly in New Mexico.
2. I personally think those groups are mostly bullshit. Heavily infiltrated.
3. Louisiana is the only Napoleonic Code jurisdiction.
4. In the west, the Treaty of Guadalupe Hidalgo, 1848. rises to the same level as the Constitution. Arguably Mexicans still have superior rights. https://en.wikipedia.org/wiki/Treaty_of_Guadalupe_Hidalgo
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
Scary times ahead. I support this but will that be enough? Is there enough will in the people to support this or are the voters so jaded by now that they have become truly apathetic to the congress and it's business? I am anxious to see how this works out.
I believe the voters will decide when they elect Kamala Harris in November. If they also giver a blue Senate and House, your question will be answered.
People are not as stupid as the GOP thinks they are. Women are very angry about the overturning of Roe, and will likely vote for the party that will restore reproductive rights.
Well past time Congress strip the Supreme Court of its abuses. End bribery and countering the constitution clear and valid logic of law. How long will it take replacements to undo the obvious damage of this court?
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
It is absurd on its face to allow 9 persons to rule on matters of importance to the electorate as a whole, especially when the court is occupied by partisans who subscribe to ideologies that aren't supported by the electorate as a whole. Hartmann does an important service to the people to add substance to the argument that SCOTUS has overstepped in its recent rulings that have no basis in the constitution or anywhere else.
Oldsalt65
just now
If you're on facebook (I'm not ) maybe you get something started like "Mr President close SCOTUS now!"
Thom, as always, your thoughtful pieces are base in facts and recognized history. Thank you for timely, perennially relevant information and scholarship.
So another Putin loyalist? Or is it HAMAS and Islamic Jihad.