It is clear that current events, especially those of a political nature, which used to drive my blogs with frequency, don’t hold the same fascination for me, and I doubt for my readers, whilst the United States is led by the current administration, and a leadership that searches for its moral compass, like a teenager with a flash light searching for his underpants. As if that compass should ever have fallen around congressional ankles! But on July 15th of this year Justice John Paul Stevens passed into history at the age of 99. I’m compelled by the message as I see it – now ‘writ large’.
I write this now, not just because my interest in the US Constitution and its application borders on the eccentric. It is because I am shocked into realizing how numb I had become, how numb we all have become, to the consistent and unrelenting normalization of the unacceptable. This man – Justice Stevens – reminds us of several things that we forget or put aside at our peril. He reminds us of Justice in the United States, not as it is, but as it was, and perhaps most importantly – as it could be. He reminds us that partisan tribalism is not a justifiable reason to appoint someone to the Supreme Court. He reminds us that to ‘talk the talk’, as Justices must do from time to time, it is preferable that those Justices have also ‘walked the walk’. He reminds us that his service in the US Navy from 1941-1945 gave him the unique right to defend with his mind and scholarship, that which he had already defended with his body. (A short ‘aside’, to those who think ‘aw…no big deal’ the Second World War drew every able-bodied young person into its net. Stevens enlisted the day before the attack on Pearl Harbor.) He reminds us that the single duty of every sworn official in the United States, from the President to a local notary public, is to serve, protect and defend the Constitution of the United States. He reminds us what elegance looks like, what it is to be “proper without trying”, from his thought processes and his opinions, his outstanding qualities of decency and courtesy – to his sartorial signature bowtie. He reminds us what America is, the foundation upon which it stands and what it enables in us all. He reminds us what an American icon looks like, and we haven’t seen many recently in public view. He above all, reminds us what a Republican used to be, and in the same measure, how very far from grace the current men and women who serve the GOP in Congress have allowed themselves to fall, whilst in mandatory service of ‘the dear leader’. (DPRK). As his casket was carried up the steps of the Supreme Court and every living law clerk that had ever served with him over 35 years at the court, lined the way they must have thought many things, but I’m certain that their loss was not purely academic or even the deep, respectful grief one feels at the passing of a mentor, but rather the acute loss of a family member.
John Paul Stevens was born, April 20th, 1920 – a lifetime away, in an era of burgeoning industry, corporate greed, segregationist and racist society and an American dream that was less realized on its shores, than it was a beacon for the poor and disenfranchised of Europe. That Europe looked upon America with disdain, dismissiveness and amusement, a distant relative whom one had to laugh off to cover embarrassment. The uncle with whom none of the children were comfortable at Thanksgiving. Stevens saw America change into the dominating and unquestioned World Power, overcoming, at least in principle, its worst demons; fighting for freedom, legitimacy and democracy for the downtrodden at home and abroad– of course packaged and presented within the national interest. A nation that supported, stabilized and where necessary created international alliances that have ushered in a World Order, ( right or wrong ) that has kept the “Old World Powers” from actual, horrifying, bloodletting war, an undeniable historical statistic of their collective DNA. A nation that was intent on passing legislation and forming a body of jurisprudence that granted the equalities of human dignity to all, irrespective of birth or circumstances, bringing to bear a society that would demand the Civil Rights of 1964, a powerful reiteration of the intent of Congress some 100 years earlier- when the 13th, 14th and 15th amendments were ratified. And above all, he saw the nation live up to its reputation – one that enshrined in actions and beliefs the promises of Lady Liberty in New York harbor – and intended that the plenary protections of the 14th amendment would extend to ‘all persons in their jurisdiction’, irrespective of citizenship. It is interesting to note, that the 14th amendment’s protections were the legal guarantor for all women in the United States, until the adoption of the 19th amendment. To understand that the 19th amendment was adopted in Justice Stevens’ lifetime, is to understand not only how much change he witnessed, but also how ‘late to the show’ the rights of women materialized, the consequences of which are collectively suffered to this day.
Stevens unfortunately lived to see the country he loved, and had personally done so much to improve, move past dignity, past 360, and on through the ‘looking glass’ into the raw, visceral, tribal xenophobia of the Trump presidency. We are once more, segregationist and racist in sentiment, once more in an era of unparalleled corporate greed. The American dream is less a reality for people within our borders, and it remains a beacon of hope to so many ‘would be immigrants’. We are back to being the weird relative that everyone laughs off to cover embarrassment and we’re certainly, in terms of world leadership, the uncle that none of the children are comfortable with at Thanksgiving. How did we get here? In this moment, we have decided to review all our past mistakes, encapsulated in SCOTUS decisions – Dredd Scott, Korematsu, Buck, Bowers, Plessey, and decided that we collectively would double down on all these mistakes again –and with gusto. There is no other way to slice this cake, you have to be a giant ignoramus to applaud it and irresponsibly low on IQ to be ok with it. It is a political climate that is much easier explained than it is understood. Though where we find ourselves today was in the making for quite a while, the actual avatar it has taken, has been considerably more problematic than perhaps intended. Justice Stevens – who voicing reason and equity was more often than not either on the liberal side of the court, or leading it – was asked how a Republican could take such ‘seemingly opposite stances, join opinions for so many socially progressive positions and write opinions that provided for equity in commerce and business especially when they trespassed on the day to day lives of Americans? It begs the question, which Republican wouldn’t? He reminded us that it was the Republican party, and not he, that had changed positions, and that we might have forgotten two important things to boot. First, Stevens cut his teeth as an Anti-Trust Lawyer – making considerable impact on the court in jurisprudence that protected the average citizen from the clout of a large conglomerate. His dissent in Citizens United, made it clear that he was a man of principle, who didn’t find his core beliefs in the circling wind. Second, who today believes that a jurist of his caliber could be nominated by the current GOP – a seething mass of intolerance, that is born of self-preservation, vilifying as they have – compromise; debate; and inclusion of the least voice; the only true American values that are required in government – defending which, millions have died and in whose hopeful embrace, millions have been born.
In this moment of remembering and honoring a great champion of liberty and justice – I had not intended to comment on the permanent cascade of idiotic and reprehensible conduct from the president, but even he, who should have been removed for treason long before now, yet again, lowers the un-lowerable bar His tirade against ‘the squad’ – four delegates to the House of Representatives that happen to be women of minority descent – demonstrates how low he and his enablers are willing to stoop, and what damage they are willing to inflict on values we hold dear. And all of it, just to be the center of attention, or to distract the public whilst they scrutinize his malfeasance, or to have the news media chase him as he circles his own gutter. Here’s what the Constitution says on this particular issue. He’s in violation – yet again – of his oath of office. Even if ‘readin’ , ‘ritin’. ..and ‘rithmetic were not core to this White House, perhaps we thought that ‘listenin’…might have been.
They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Because of his incitement to hatred and violence at his political rallies, ‘the squad’ have cited fearfulness in ‘going to and returning from’ their congressional duty – and the Constitution may be considered in the spirit of this text to take ‘arrest’ as meaning – ‘hindered from their work’ – during their time in office. Either way, as congressional delegates they may speak on whatever subject, at whatever time, in whatever manner, and the Constitution expressly prohibits anyone from questioning it, in any place, at any time. It is our duty as Americans to question our government and we send our representatives to congress to do precisely that. For the President to suggest otherwise, and for his enablers to support him, by name and vote in the record, is a travesty. It is not ok to lose our democratic principles, just because the man spouting uneducated nonsense is doing so for those who do not wish to hear anything else. It is clear that the ‘core beliefs’ of these men and women are not held and cherished pillars of principle, but are washable linens delivered on a weekly basis, by the president. They do not dare speak their own mind, if they yet have one, and are terrified into silence. A silence that is consent. This cowardice – when no capital danger confronts them, is a testament to those officials in the DPRK or Putin’s Russia, for that matter, who live in continual mortal danger for standing on principle. That it coincides with the passing of Justice Stevens is all the more reason to cower in shame. History is not kind to cowardice – and their votes are already recorded.
Considering that leading the United States must be a pressure chamber of inordinate complexity, we can rely on two horrifying things. Either certain people in this administration and its political affiliates are not pressured at all, through a complete lack of understanding, a lack of calculus and a lack of long term sensibility that might take them beyond lunchtime, or – they are trying very hard to grapple with those complexities but are just realizing that collectively, they are lacking in understanding, calculus or long term sensibility, and are panicking. Depending on which day you look up, it’s evidently either ‘ignorantly basking in the sun’, or ‘panicking’ – or both.
In her speech at Chatham House, outgoing UK Prime Minister Theresa May admonished those who would consider compromise, genuine debate, or providing for every voice at the table to be heard – as weakness. No matter what you think of her politics, her methods or her processes, they represent a mature, reflective, world view steeped in experience and historical impulses. It’s easy to brush all that aside because you’ve put down the palette knife and would rather have your world mural painted by a bricklayer. It’s a lot easier – requires no finesse – and takes much less explaining, usually to a crowd that don’t want explanations because it gives them a headache. I’m not sure the end result is in any way useful.
She reminded us of all the things we hold dear, and how all of them, seemingly permanent fixtures in our lives and our politics were at one point, hotly contested, debated, and put in place successfully through compromise. It is the only thing that provides a just solution. It is not quick, it has no rewards for its protagonists, …leave alone dirty money…but it is just, and long lasting. The absence of compromise and consensus in the current government of the United States is a clear indicator of who they are, and who they are not. We find ourselves in intolerable territory when it comes to decency and dealing with each other – and we find ourselves dragged here by forces that are short lived, opportunistic and have no interface with what they project as their image. Their true image is – possibly hard to stomach, – a reflection of ourselves as people who, as psychology will warn us, are easily led to water, but just as easily led to a mirage of water in the sand.
Determined to make sure that we didn’t chase a mirage, and very aware of the need for compromise, consensus and debate, Justice Stevens – after a lifetime as guardian of its principles, offered six amendments to the United States Constitution. Some of them seek to correct horrible distortions of the law and common sense, that have emerged in recent opinions of the Court. Stevens is not shy in expressing how this has happened and who is responsible. I urge you to read his book “Six Amendments – How and Why we should Change the Constitution.” As much as I have been a student of the Constitution, and for as long as it has held fascination for me, I have been an admirer of Stevens. His book “Five Chiefs”, which I also highly urge you to read – documents from his stand point, the personality of the Five Chief Justices with whom he was acquainted, -serving on the Supreme Court with three – and how that personality instructed the daily life of the court, and to some great extent, the judicial outcomes during their tenure. Stevens lays waste to the corruption, destruction and mishandled direction of ‘The Anti-Commandeering Rule/ Political Gerrymandering/Campaign Finance/ Sovereign Immunity/The Death Penalty and the Second Amendment – not striking them from the document, but adding and amending their meaning so that clarity is restored for those who were somehow befuddled or tripped up by the original text and intent.
China has spent the last 15 years opening up its borders, acquiring assets and ownership of vast tracts of the globe, indenturing the future world economy to its will, and making sure that critics aren’t critics too long. China has been a good and clever student, and has learnt exactly what to do, in what order, and in what way to gain world dominance. It follows the US playbook of the 1950’s making it impossible to match its industry, now not just copying but innovating at a rate impossible to imagine. One month in China is almost equal to a year of equivalent innovation in the United States. We are old, and in our petulant, self-entitled rationale will close off our borders, pack up our proverbial teddy bears, and sulking, leave the children’s tea party, through lack of attention. That is where the current divisive politicking has brought us. That is where Newt Gingrich has brought us, who first insisted as Speaker of the House under Bill Clinton, that outright distrust and permanent dirty war was the only way that the GOP should operate with its Democratic colleagues. There was only one way the GOP could win the numbers game, where slowly and steadily the immigrant makeup of the United States would not represent the Eurocentric, white, male dominated base of that insular and waning group. Dirtily!!
That is where the US finds itself, permanently stalled on half an engine, half the mind, half the resolve, and half the power. That’s no way to enter any age, much less the age of instant communication and global jousting, an era that we, the United States ushered in, and an era that we are not going to enjoy very much. Not until we become once more, the land of promise, and protection. The land of enjoined interests. The land of opportunity and the land of the free. We also know that to be in the ‘land of the free’, we must first be the ‘home of the brave’. What does that say to the cowardice of those in Washington who will not summon their principles in the face of obvious and debilitating attack.