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10th Amendment, You’re Fired
The latest from Mr. Constitution:
Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer.
“One of the first things I’d do in terms of executive order, if I win, will be to sign strong, strong statement that would go out to the country, out to the world, anybody killing policeman, police woman, police officer, anybody killing police officer, the death penalty is going to happen,” he said.
The transcript has the unfortunate effect of casting the remarks in Hulk Smash! mode, but you get the point. Defenders of Mr. Trump may point out that we’ll have an overdue conversation about the death penalty for cop-killers, but it would seem to be more instructive to focus on the use of Executive Orders to set the penalty in criminal trials. Unless you’re cool with with the whole “rule by decree” thing, because the other side did it.
Published in General
My concern is that many voters don’t care. We have a sizable group on our side that thinks that Trump, Carson, etc., are really viable as entry-level candidates. That is almost as bad as Obama’s 2012 voters.
Lincoln, as the civil war executive, left volumes of writings on his decisions. If you read up on the suspension of the writ I doubt you would have the impression that Lincoln had not carefully considered the scope of his power. Reagan as governor of California may not have left the same level of written record, but nothing in his campaigns indicated an absence of understanding of our constitutional system.
My simple point is that there are things that are fundamental. Donald Trump says too many things that make it sound like he does not understand or appreciate the power and limits of the executive – which, is one of those things that are fundamental. I’m not sure how this (that he “sounds” that way) could be disputed. If your perspective is that this just does not matter, then you’ve given me some additional insight.
So is the Writ of Habeas Corpus “fundamental” or not? Doesn’t matter how well he researched the subject, he still violated the Constitution didn’t he? And that is okay with you because he learned up on the subject beforehand – incidentally a lot easier for him having been trained as a lawyer?
What needs considering is that the foremost issue with the public seems to be the moribund economy. Doesn’t Trump maybe get extra brownie points for have special skills in that area? Are you a one issue voter or able to expand your view a bit?
I don’t think of myself as an issue voter at all, and maybe that’s at the root of why we seem to be going in circles here.
It is actually written in the constitution that habeus corpus can be suspended if a national emergency demands it. Or something like that.
Well you don’t have to look far on the internet to find a multitude of claims for anti-constitutional conduct by Lincoln. So I don’t get the selective judgment being made here against Trump that spares old Honest Abe a similar judgment just because he came to high office with more legal learning.
Manfred was pointing out that Lincoln initially took this action without the consent of Congress. On the point of whether or not that action would be considered within the powers of the executive I find relevance. To my mind though, that was not the point of the discussion. I’m only commenting again in the interest of fair play.
Perhaps you have a point about legal training and that maybe I take things for granted in that respect. All I can say is that I had a reasonable understanding of the Constitution well before attending law school or becoming a lawyer. Maybe my public schools were better than they seemed.
Beyond this, I take that orientation to being fundamental to any serious notion of citizenship (heck, it’s on the test if you don’t get citizenship via birthright), even before thinking of it as fundamental to fulfilling high office. I mean, you’re right, it’s not about what you know to be constitutional and then deciding to act otherwise as with our current president. That seems worse than appearing to be blindingly ignorant.
Except that (for the last time, and I really mean it this time), my point is not about what Trump might or might not do if elected to the office. My point is that he currently demonstrates that he appears not to understand or appreciate the Constitution. That is not an “issue” in the sense of policy position, but it is a serious thing to consider about a person and their suitability for office.
Well he knows a lot of other things too, right? Like business law inside and out (probably). Isn’t that really, really important if we need a President to spark the economy? Is there anyone else in the race who can say the same? You might consider taking a more holistic view here I think.
Re Lincoln: The suspension clause in Article I, Section 9 of the Constutution says: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” I think that the Civil War clearly qualifies as a “rebellion” that would place Lincoln’s action within the exception.
There is legitimate debate about whether Lincoln had the power to unilaterally suspend habeas corpus, or whether the concurrence of Congress was necessary. Textually, Article I deals with Congress, while Article II deals with the executive, so it might appear that the suspension clause is a limitation on the power of Congress, implying that Congressional authorization is required. I don’t find this argument convincing, because a little later in Article I, Section 9, it says:
This can only be understood as a limitation on the President, not on Congress itself. Congress does not draw money from the treasury; and it is Congress that makes appropriations.
So it is not at all clear, from the Constitutional text and structure, whether Lincoln had the power to suspend habeas corpus without Congressional approval. Given the emergency he faced, I think his action was in good faith.
[Continued]
[Continued]
I think that the best articulation of the rules when the Constitution does not clearly assign power to either Congress or the President is from Justice Jackson’s concurrence in the Steel Seizure Case (Youngstown Sheet & Tube), during the Korean War.
I edit to add a trigger warning, after reading Jackson’s opinion. He used the word niggardly, which is apparently believed to be a racial epithet by leftists unfamiliar with the English language. Though for some reason, they don’t object to the use of truck or buck.
I was lying about the “last time” thing.
Trump knows many things: (edited) – no argument. (edited)
Would it help to think of a job interview as an analogy?
Mr Trump seeks to move from the realm of business to the executive role of our federal government. If this were his TV show instead of an electoral system, he would probably want the apprentice president to know something about the actual job description, something so fundamental that it’s a make or break question. If he asked the applicant, “can a president issue executive orders to enhance criminal sentences on matters before state courts?”, there would be a right answer because this is a simple question and he gave away the answer. If the applicant got it wrong, then he’d say something like “you’re fired!!!!”
It’s not about which apprentice knows the most when it comes to fundamentals.
(edited for tone)
Every time a legitimate topic is raised that could be difficult for the left to handle, Trump jumps in and makes it radioactive. By going to extremes, he turns the issue around so that it becomes a negative for the right rather than for the left.
Like, like, like.
The 10th amendment is a dead letter, and has been for some time. Just ask the Department of Education.
A man who knows what the rule is and why it is, after careful consideration violates it. I give his decision quite a bit more weight than a loudmouth spouting off.
Being a lawyer is, if anything, a detriment. Lawyers tend to get lost in the weeds and minutiae, forgetting the overarching principles. The problem with suspending Habeus Corpus isn’t who gets to do it or when, it’s that it’s a blatant and dangerous threat to liberty.
The economy is secondary to liberty. Always.
Sorry, not following you here. My point is that Trump has some worthy qualifications that others in the field don’t. Sure knock him down for his weaknesses, but why not acknowledge his strengths at the same time? Lawyers/politicians get special consideration because they are somewhat familiar with the intricacies of the law [addressing BW’s point] but, unfortunately, know zilch about the economy, right? Isn’t the last fact as important as the first? I don’t get this double standard.
This is not fair to Lincoln. As I discussed and quoted above, the habeas corpus clause (also called the “suspension” clause) in the Constitution has an express exception allowing suspension “when in Cases of Rebellion or Invasion the public Safety may require it.”
Lincoln was unquestionably correct in believing that the writ of habeas corpus could be suspended in light of the Civil War, which is obviously the type of “Rebellion” contemplated by the Constitutional text. The question was whether the authority to suspend the writ was vested in the President or the Congress, which is not at all clear.
If your argument is that the writ should never be suspended, then this is a policy question, not a Constitutional one. The founders disagreed, and I think they were right. Yes, the drafters of the Constitution were mostly lawyers, but included military men like Washington, and they had personal experience of rebellion and war.
I think that I was unclear in my final paragraph above. I wrote: “If your argument is that the writ [of habeas corpus] should never be suspended, then this is a policy question, not a Constitutional one.”
What I mean is that the Constitution plainly allows suspension of the writ, in cases of rebellion or invasion. The argument that the writ cannot be suspended is a manifestly incorrect Constitutional interpretation. Of course, one is free to disagree about the provisions of the Constitution, which I characterize as a “policy” question. It is a “policy” question in two respects: (1) even when the Constitution allows suspension of the writ, it may be better policy not to exercise that power, and (2) it is perfectly acceptable to argue that the Constitution is wrong, as a matter of policy, in allowing suspension of the writ, and should be amended.
I think that both the founders and Lincoln got this one right.
FYI, Lincoln’s suspension of the writ was narrow, restricted to Maryland. Due to the location of Washington DC, it was extremely important to keep Maryland in the Union, and to prevent Confederate sympathizers in Maryland from sabotaging efforts to reinforce Washington from the north.
Are you going to maintain that A. Lincoln had a spotless record for abiding by the Constitution? Do any of the charges here cause you to reconsider?
Silly James. Doth thou not know that tRump intends to end immigration and all other sources of evil to America. He has said he intends to make America Great Again! And as we all know America is great because it is America. Not because of its founding moral principles which were the culmination of philosophical thought for at least 2,500 years prior to the nation’s founding.
No Likeks, Americans are tired of being beaten in trade deals and getting scalped by foreign nations. We need to completely restructure the system so that it is American! American’s do not care about freedom or religion, due process, or the 10th amendment; they care about what works.
What better example than tRump right? The guy that went to college on his father’s money and then later inherited the family business and all its assests, a business that was literally forged and made beyond competitors due to New Deal Legislation. A man who ran businesses in some of the most highly regulated sectors of the economy with no competition. The man who has fought politically (lobbied) to maintain great state intervention in the market.
A man that doesn’t care about our rights, only about what works. Because that is all that matters, what works. The free market is only okay if it works. Freedom of Religion is only okay if it works. Right to bear arms is only okay if it works. Principles just get in the way.
“Defenders of Mr. Trump may point out that we’ll have an overdue conversation about the death penalty for cop-killers, but it would seem to be more instructive to focus on the use of Executive Orders …”
Whenever I find myself turning a phrase like “it would seem to be more instructive” I pause and check myself. James, you’re enough of a popular culture maven to know that print-oriented dweebs talk that way, and you’re not one of those. You more than most know that Donald Trump’s campaign isn’t textbook, it’s tuned to the Age of Media.
Donald Trump is speaking a different language, okay? Trump-speak is to legalese as ebonics was to SAT test English. (Sometime during his lifetime, way before he took up Twitter, Donald Trump realized that all the English the public wanted to hear was what could be condensed onto the front page of the New York Post. Right above his picture, often enough.)
Trump may say “executive order” but, yes, the part he really means is “strong strong statement,” a bully pulpit kind of deal. Don’t be too literal, because he’s rarely being literal. He does want to influence the national conversation about cop killers, or Moslem immigration, and/or himself, or whatever. He’s been demonstrating that he can take control of the national conversation about anything for several months now, and not with fine-tuned Op-eds and polite private Q&A’s with the Wall Street Journal Editorial Board.
In college, Professor McLuhan sprinkled my thick young head with the notion that the media were really new languages. Written words were becoming less important than the tone, gestures and expressions which accompanied them. Nixon won the debate transcript, but Kennedy got elected, because Nixon was the railroad company lawyer, and JFK was the young sheriff. One day in class he spontaneously predicted that a “smiling Will Rogers type” would be elected President in the near future. (Jimmy Carter was elected 8 years later.)
Several bad Presidents have been lawyers and professors. The best one I remember was an actor. Trump is auditioning for the role of President, and like Reagan, he’s taking his case straight to the public. The wannabee casting directors in the RNC and the chattering class need to understand this.
Everyone knows that Trump can’t decree the penalty phase in local murder trials, but that’s not the point. The point is #PoliceLivesMatter, and we get it, and if he’s elected, some of the jurors in those trials will get it, too.
Other times, as Rush Limbaugh pointed out this morning, it will turn out there’s law and precedent behind the gist of his argument.
Manfred Arcane – I’ve been trying to figure out why you don’t seem to understand the point I’ve been making, and I think the above quote gives me some insight on this.
To many Trump supporters, Jim is right, “that’s not the point.” If that is the frame of reference, then it stands to reason that demonstrations of ignorance about our form of government are not taken seriously. I mean “seriously” in the sense that it doesn’t matter whether Trump is actually ignorant or whether is this is just a “way with words.”
I reject your assertion of a “double standard” because for me there is really nothing else that compares closely with the need for this basic understanding of the Constitution. I don’t mean lawyerly expertise; I mean a basic understanding. It’s not a double standard because it’s the same standard I would apply to any candidate in assessing their worth.
So, from my perspective, it’s looks something like this with respect to knowledge:
So I am not impressed with his candidacy because for me, he fails in the most (really, really, really) important thing. Does that better explain my point?
I understand your point but consider it overly simplistic. In rebuttal, I referenced anti-constitutional acts perpetrated by a President you admire, namely Abraham Lincoln. Also, as J. K. points out, and you don’t seem to get, is that Trump-speak should not be taken literally. You recoil at his nonchalance towards proper procedure in this case like a dog exposed to a high-pitched whistle.
JK explained how Trump works very lucidly: “Trump may say “executive order” but, yes, the part he really means is “strong strong statement,” a bully pulpit kind of deal. Don’t be too literal, because he’s rarely being literal. He does want to influence the national conversation about cop killers, or Moslem immigration, and/or himself, or whatever.”
(Continued from previous comment #54)
Your next question should be something like – “why do you rank knowledge factors they way that you did here?”
I don’t have enough allocation of words to explain all of it, but in short it’s because the power and limits on power of the office underlies every other area of applied knowledge. If, for example, I think that I could “declare war” because, after all, I’m the boss, then I’m demonstrating that I don’t understand the limits of my office but also that I don’t understand how this country has to conduct it’s defense.
Donald Trump seems to enjoy sounding like he wants to be the boss of the country. It seems to be working for him in terms of getting lots of attention. But that’s not what a chief executive in our government is – not even close. Maybe he actually does get it, but I cannot think of any reason to believe that based on what he has said and done so far.
On that point alone, fair enough. As for my not understanding, I’ll repeat this from post #54 (the part of my quote you did not include):
“To many Trump supporters, Jim is right, “that’s not the point.” If that is the frame of reference, then it stands to reason that demonstrations of ignorance about our form of government are not taken seriously. I mean “seriously” in the sense that it doesn’t matter whether Trump is actually ignorant or whether is this is just a “way with words.””
and I’ll leave it at that. I appreciate your efforts in this discussion, but I am not confident that either of us understands the other. I also have to exit the discussion at this point.
Look, Trump will be confined by the constraints of his office because the rest of the government will so constrain him. I take this to be understood, but you seem not to have any sense of this, so maybe you are right we have an irreconcilable disagreement. But I further submit it is you who has no clue what our chief executive’s role is. Your legalistic approach is so gosh-darned sterile it is not funny. Who wants a chief executive who spends his every waking moment fretting over whether he has overstepped some legal nicety or not. Lincoln did what was required, trying to stay as faithful as he could to the Constitution, but opting to do what he considered best for the country when he thought it required.
When we interned the JapaneseGermans during WWII did the Constitution allow it? FDR did this 2 years before SCOTUS ruled in his favor. Was he supposed to wait until that ruling came down? Sheeeesh, that is not how you run a war, for Pete’s sake.
PS. Some have made a strong case that Lincoln’s Emancipation Proclamation was not fully legal. Does this blemish Lincoln’s legacy in your mind?
Sorry. I try to pare my comments down so they’re not overly long and boring. In this case I seem to have pared away the bit where I said that Lincoln in particular seemed to understand the principles at stake behind the laws, and I give him quite a bit of credit in these questions.
It seems I ought to elaborate. Suspending habeas corpus is inherently dangerous. It’s like if you’re working with a beaker of fuming nitric acid. I don’t care if you’re following all applicable OSHA guidelines; if you’re not treating that thing like it’s dangerous then you’re gonna have an accident. I’m significantly less concerned with whether Lincoln could do it on his own power or whether he needed Congress to sign off on it after that fact. And just to be clear, just like it isn’t wrong to use nitric acid, I’m not saying that Lincoln made the wrong move either.
All laws, and here I’m including the constitution, exist to protect the liberties of people. When Lincoln suspended habeus corpus he did it understanding that point, which means he’s less likely to abuse the privilege, and much less likely to do so for, ah, light and transient causes. Trump has not shown any indication of a similar understanding.