Did John Roberts Deliver the 2020 Election to Donald Trump?

People who are pro-life generally believe that abortion is wrong in all or most cases because it involves the willful killing of a human being and that Roe v. Wade, which ruled that obtaining an abortion is the constitutional right of any pregnant woman, is wrong both morally and as a matter of law. Most would agree with Justice Thomas, that nothing in the Constitution was intended to create such a right or did so inadvertently. Therefore, we believe that the decision in Roe v. Wade should be reversed.

In light of the number of lives taken by abortion, we see abortion as one of the greatest evils of our time, and reversing Roe is a high priority. For many, it is the highest priority. A few of us see facts such as the decades-long decline in rates of abortion and the fact that States could still allow abortion even if Roe is reversed as reasons not to make it the single determining factor in how we vote.

It had seemed that with the appointment of Justice Kavanaugh there was a solid “conservative” majority on the Court — Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh — which would reverse Roe when it got the chance. That belief could lead some pro-lifers to decide to base their vote for president on factors other than the appointment of conservative Supreme Court justices. Now CJ Roberts has called that belief into question, if not contradicted it.

In the Louisiana case just decided, June Medical Services, L.L.C. v. Russo, CJ Roberts found a Louisiana law unconstitutional, when only four years ago he thought a similar Texas law was constitutional. He claims that he still believes that the Court was wrong four years ago when it disagreed with him. But now he followed the decision he disagrees with and became the swing vote to strike down theLouisiana law. He did so based on a principle called “stare decisis,” which he describes as follows:

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. 

It has long been “an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” 

Stare decisis is not an “inexorable command.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (slip op., at 20) (internal quotation marks omitted). But for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly. The Court accordingly considers additional factors before overruling a precedent, such as its adminstrability, its fit with subsequent factual and legal developments, and the reliance interests that the precedent has engendered. See Janus v. State, County, and Municipal Employees, 585 U. S. ___, ____–____ (2018) (slip op., at 34–35).

Stare decisis principles also determine how we handle a decision that itself departed from the cases that came before it. In those instances, “[r]emaining true to an ‘intrinsically sounder’ doctrine established in prior cases better serves the values of stare decisis than would following” the recent departure. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 231 (1995) (plurality opinion). Stare decisis is pragmatic and contextual, not “a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 U. S. 106, 119 (1940).

If he feels bound to follow a precedent he thinks is wrong and that is only four years old, how can he overrule a precedent that he thinks is wrong (if he does) and that is 47 years old? There can be grounds for overruling a precedent, as stated in the quotes. But would any of them apply if Roe v. Wade were directly challenged?

Is Roe difficult to administer? There have been numerous cases with respect to laws States have enacted. The question is whether they are the power os States to regulate abortion or whether they place an “undue burden” on women seeking abortion.

Are there new “factual and legal developments?” There are none I can see that call Roe into question.

As for “reliance interests,” certainly people have grown accustomed to having a legal right to an abortion.

Was there an “intrinsically sounder” doctrin established by a previous line of cases? No. This was a new area, not one in which previous decisions were set aside?

Maybe CJ Roberts could find the distinction between the right of women to abort their unborn children and the right of States to legislate standards of safety and to protect viable fetuses is too difficult to administer. But there is certainly no guarantee that he would do so. And apart from that, what he says here suggests that he would feel compelled to uphold the precedent of Roe v. Wade in any case that sought to overturn it.

To me, the decision just shows that you can never be sure how a justice will vote, so voting for a candidate just so he’ll nominate a conservative to the Court is no guarantee of getting the decision you want. And even if Roe is reversed, that won’t end abortion. Trump is so terribly unfit for office that we have to get rid of him; but I still can see how some people could decide in the light of CJ Roberts’ decision that they have to vote for Trump.

The result is that for pro-lifers who believe that overturning Roe v. Wade outweighs all other considerations, voting to reelect Donald Trump becomes an absolute obligation. Before this decision, they could have thought that there was a solid majority already on the Court and based their decision on other issues. But by clearly signaling his unreliability, Chief Justice Roberts has certainly delivered a number of voters to Donald Trump. The question is whether the election will be close enough for their votes to decide the outcome in a State or States which will change the electoral college majority.

A New Birth of Federalism

The response around the United States to the coronavirus pandemic has given prominence to the governors and to differences between States. Perhaps this could be an occasion for people to become more aware of federalism as one of the basic elements of our polity, and maybe even to think about it.

When I was in school, I learned about our founding: the revolutionary war, the inadequacy of the Articles of Confederation, the Constitutional Convention, the ratification of the Constitution, and our history under the Constitution. Central to this study was the work of the Constitutional Convention. The delegates recognized the need for a stronger federal government than that established by the Articles of Confederation, but they knew that they must prevent the central government from becoming a monarchy. To prevent a monarchy or a tyranny from arising, they developed three principles for the federal government: limited government, separation of powers, and federalism. Limited government meant that the federal government’s authority would be limited to the areas specified (“enumerated”) in the text of the Constitution. Separation of powers meant that the powers of the federal government would be divided among three branches of government — legislative, executive, and judicial — each independent of the others and each having only some portion of the overall authority of the government. And federalism meant that the States, having held sovereign power before the adoption of the Constitution, retained full governmental sovereign power except for the enumerated powers granted to the federal government.

I suppose that this was widely taught to members of my generation in history and civics classes. Every “boomer” should have learned it. Unfortunately, I fear the lesson has been lost or forgotten over the decades with the result that now most people look to the federal government to solve all major problems, and tend to consider the president responsible for everything that the federal government does. There are several factors for this development. The first goes back many generations. The Civil War, with its emphasis on preserving the Union, shifted people’s focus from their States to the Union. Nowadays, virtually nobody would feel the kind of loyalty to his State which was commonplace in 1860, an example of which is Robert E. Lee’s decision — as a Virginian — to join the army of the Confederacy. A second factor is the expanding reach of the federal government, especially as the economy became more unified — for example the Interstate Commerce Commission. There were also such things as Social Security and the establishment of the Department of Health, Education, and Welfare. Finally, it seems to me that civics education is no longer mandatory in schools, with the result that recent generations have grown up with many people unaware of limited government with enumerated powers, separation of powers, and federalism as fundamental to our form of government. I fear that Donald Trump spoke for many in his generation and following ones when he stated that the authority of the president is total.

In all this, the prominence of governors and the recognition that it is appropriate for different states to have different rules provides a reason for a bit of hope. If influential people with wide audiences begin to speak seriously about federalism, perhaps the principle can again become one which guides political thought and action — to the benefit of liberty. It will probably require academics to make themselves heard on talk shows. If enough manage to do it, the message can become heard and discussed even among those who are inclined to look first and always to Washington.

Covington Catholic Boys, Native Americans, and Black Hebrews

Here’s my take, after spending Monday and Tuesday, January 21 and 22, looking at all the videos I found of the incidents on the steps of the Lincoln Memorial, reading some articles, and tweeting, retweeting and responding to tweets about them.

Nobody seems to have noticed that the lengthy video from the Black Hebrews begins with them engaging the Native Americans. They say that God took the NA’s land from them and gave it to the white people because the NA’s were worshipping idols and false gods. In other words, the BH’s initial target was Nathan Phillips’ group.

Boys from Covington Catholic High School arrived to wait for the buses to take them back home. At some point they began to heckle the BH’s. The BH’s then turned to the CCH boys and started accusing them of racism. They also used homophobic rhetoric. When the BH’s said Trump is a homosexual and said the U.S. is a hypocrite nation because we give rights to “faggots,” the boys booed loudly. The boys eventually started doing school cheers, one of which looked sort of like a haka by the boy who led it.

When the first video went viral, Nathan Phillips and his supporters claimed that the students had surrounded his group and blocked them as they were conducting a ceremony which they intended to complete by ascending to the top of the steps of the Lincoln Memorial. When additional video showed that Phillips had actually walked into the midst of the students singing and beating his drum, and that there was plenty of room on the steps for them to get to the top without plowing through the students, Phillips gave the explanation that he and others were concerned that the confrontation between the Covington boys and the Black Hebrews was about to become violent, so he went between them with his chant to defuse the situation.

If defusing the situation was his purpose (or if they just wanted to go up the steps), the boys had no way of knowing that, since no one explained it to them. On several videos students can be heard asking themselves, “What’s going on?” On another some are chanting, “What protest is this?” (or something like that).

Video shows Phillips walking up to Nick Sandmann singing and drumming, and getting in his face while continuing to sing and drum. Nick just stood where he was. Video shows room on either side of him, so that Phillips could have gone around him. Thus Sandmann was not blocking Phillips. Technically, it seems that Phillips assaulted Sandmann. At different points, videos show Sandmann smiling, with the expression widely characterized as a smirk, and looking slightly bewildered. One image shows him leaning slightly backwards as Phillips confronts him. At one point someone off camera says, “Be strong.”

Video also shows some of the boys jumping and imitating Phillips’ song. One boy is seen doing the tomahawk chop. Of course, this is not respectful. On the other hand it is not nearly as disrespectful as it would have been if they had been told Phillips was performing some sort of sacred ceremony. Still, it would be good for the school to do something to teach to boys to be more respectful of other cultures.

One of the NA’s is seen arguing with a student that his people have been here two or four generations while his have been here “millions.” When the student says that the NA’s came from Asia over a land bridge, he says that’s nonsense and proposes another theory which is inaudible. The student smilingly shouts, “We should all go back to Africa!” Some people have mistakenly taken the words “go back to Africa” as directed at one of the groups confronting them. Nick Sandmann is seen looking briefly at that student and motioning him to quiet down.

Eventually the boys leave to go to their buses, some chanting, “Let’s go home.” One of the NA’s says, “I got it.” Nathan Phillips raises his arms, seemingly in triumph, while dancing and loudly vocalizing.

A few of the boys, including Sandmann, were wearing Make America Great Again hats. I saw maybe five or six in the crowd. Some people have tried to say that wearing MAGA hats proves that the Covington boys are racists. Apart from the fact that there were few of them, and it’s wrong to attribute it to the whole group, it’s not accurate to say that MAGA hats simply mean racism the way KKK hoods do (which some commentators have asserted. After Trump was elected, there were several articles attempting to explain why people voted for him. Prominent among those reasons were concerns about jobs and the economy. Another reason many people voted for him was his claim to be pro-life. Given that the boys had come from the midwest to a pro-life march, there are clear easons for them to support Trump without any racism involved.

I saw no explicit racism, or attempt to interfere with the NA’s on the part of the Covington boys. It seems clear to me that Nathan Phillips singled Nick Sandmann out for confrontation, and I suspect that it was because hew was one of the few wearing a MAGA hat.

The NA’s should have regarded the CCH boys and themselves as allies united in opposition to the positions of the BH’s. Instead, the fact that a very brief snippet was originally posted with a false characterization of the event (along with the “I got it” and the “victory dance” by Phillips) suggests that the whole thing was a set-up by the NA’s.

See also this excellent article by Andrew Sullivan analyzing the way the matter played out and what it tells us about our current situation.

Justice Kavanaugh and the Opposition

I think it was necessary for the good of the country that Justice Kavanaugh be confirmed. It was necessary not because he is the only person fit for the seat on the Court, or even necessarily the best available. It was necessary in order to defeat the opposition.

Those who opposed him did so because they were afraid of what positions he would take on certain cases that may come before the Court. In my opinion, it is wrong for the Senate to try to tip the scales of justice, to assure a certain outcome of a case yet to be litigated. Their job is to see to it that the nominee is qualified to serve on the Court. In that regard, before the hearings began, the American Bar Association gave him their highest rating.

It is true that both parties have recently opposed nominees on the grounds of overall philosophy — originalist or expansionist — but focusing on specific issues as a basis for opposing a nomination violates our constitutional separation of powers. It is senators attempting to decide cases. Yet that is what has happened here, as well as in some earlier hearings.

 

Senator Ben Sasse gave an insightful speech on how the nomination process has become so politicized. He sees it as stemming in considerable measure from the Court becoming politicized, which in turn is the result of Congress’s passing laws that are unclear. Whether better legislative practice is the solution, it is clear that there are cases in which legislatures have declined to pass legislation some people wanted, and people brought a case claiming that the Constitution compelled the result they desired, and the Court agreed — e.g. abortion, same-sex marriage. This in turn, creates a situation where one side in the debate hopes that the Court will reverse its decision and the other side fears reversal. There can also be questions —e.g., legislative apportionment — where one side hopes for a change in law by judicial means and the other opposes it.

When Senators come to see it as their right to determine the outcome of cases they consider important, they also tend to see it as legitimate to use all tactics at their disposal to defeat nominees they consider a threat. Interest groups who agree with them also use all tactics at their disposal. This includes distortion of the nominee’s record, personal vilification based on those distortions, and apocalyptic speculation about the consequences of the nominee’s being confirmed.. (Mischaracterization of decisions was Kennedy’s standard tactic against Bork.) Having misrepresented the nominee, they then find it easy to incite campaigns — letter-writing, e-mails, telephone calls, angry demonstrations, face-to-face physical intimidation, screaming from the Senate Gallery.

 

And so it happened that Democrats and interest groups were opposing the nominee before he had been selected. No nominee would be acceptable to them, regardless of qualifications, and they used any weapon that came to hand. Finally when it was clear that their tactics were not working, someone betrayed Dr. Ford and made her their weapon (seemingly) of last resort. If Dr. Ford’s allegation could have been substantiated, Senators would have needed to decide whether an attempted rape by a high schooler countervailed an adult record of distinguished public service. But, as it was, there was no substantiation beyond Dr. Ford’s own testimony, and in the estimation of 51 Senators, that was insufficient to conclude that Judge Kavanaugh was unfit to serve on the Court. The argument was raised and continues to be raised, that the confirmation sends the wrong message to women, namely, that their testimony is disregarded. That is clearly false on its face. Dr. Ford’s testimony was respectfully heard and considered, to the extent of reopening the FBI investigation. More broadly, this was not a decision about women, it was about one man. To try to make it about all women, or all victims of assault, is a politically motivated misrepresentation of the case

Under those circumstances it would have been wrong to let the tactics of the opposition succeed in this case. It would also be bad because of the encouragement it would give them to continue to use these tactics.

What we ultimately need is for both sides to return to the role of assessing a nominee’s qualifications based on the quality of his/her work, not how they hope/fear the nominee will decide cases that may come before the court. For now, it is essential that Republicans continue to control the Senate until Democrats agree to abide by that standard. What about Republicans agreeing to it? I think enough already do for it to be not a problem in the overall scheme of things. I’d suggest that if the nomination of Merrick Garland had been permitted to come to the floor of the Senate, a number of Republicans would have recognized his fitness to serve, and he’d have been confirmed. The only way Mitch McConnell, taking the politicized approach, could prevent confirmation was to keep the nomination from ever coming up.

I want to see originalists on the Court, but if a president nominates someone qualified who holds a different judicial philosophy, I’ll say, “Dang!” and move on. I might write an e-mail to my Senators, but I won’t demonstrate, sit in, shout, or engage in other disruptive behavior —  even if some organization encourages me to. And I’ll continue to try to find qualified candidates for president who promise to appoint originalists to the courts.

 

Kavanaugh Thought Experiment

Suppose you are a member of the House of Representatives, and someone comes forward making charges against Supreme Court justice Stephen Breyer. The charges are of attempted rape when both were in high school. The charges are identical in every respect with those of Dr. Blasey Ford regarding Judge Kavanaugh, and the state of the evidence is the same as that currently known concerning Judge Kavanaugh.

A member of the House brings a resolution of impeachment against Justice Breyer for attempted rape.

Do you consider attempted rape by a high school student an impeachable offense? Do you vote for the articles of impeachment?

Now suppose the House has voted articles of impeachment against Justice Breyer on the grounds stated above and you are a Senator trying the case. Suppose further that the evidence is identical to the evidence currently known publicly regarding Judge Kavanaugh. Do you vote to convict him of attempted rape, thus removing him from the Court? Do you vote to acquit him and leave him on the Court? Why do you decide as you do?

If you don’t vote to impeach or convict Justice Breyer, do you think that allegations which are insufficient to remove him from the Court are sufficient to keep Judge Kavanaugh off the Court?

Senator Jeff Flake: Hero of the Republican Party

Until the allegations of Christine Blasey Ford were made public, the nomination of Brett Kavanaugh to the Supreme Court was proceeding as usual. Democrats, having decided to be terrified of any nominee of Donald Trump, were nearly unanimous in opposition from before the nomination was announced. Republicans were nearly unanimous in support. A couple of Democrats from states that supported Trump might have voted for Kavanaugh, and a couple of Republicans who support abortion might have considered voting against him; but the clear expectation was that he would be confirmed by the Senate.

 

Dr. Blasey Ford’s charge changed all that. The charge could not simply be ignored: she had to be given at least an opportunity to testify. As discussions dragged on, it seemed reasonable to believe (and still does) that Democrats were engaged in delaying tactics, especially since it gave time for people to emerge with less plausible allegations. If Dr. Blasey Ford hadn’t finally agreed to testify, the Judiciary Committee couldn’t have been blamed for proceeding. Once she gave her testimony, the call to reopen the FBI investigation became very plausible despite the Republicans’ claims that it would be inconclusive, and therefore useless.

 

Even if further investigation would be useless, refusing to do it would have given the Democrats a powerful campaign issue against Republicans in November. Whether Jeff Flake saw the matter in political terms or just as a question of satisfying himself that he had the information he needed, the decision to call for the FBI to investigate in fact took a powerful weapon out of the Democrats’ hands, and probably thereby saved tens of thousands of votes for Republican candidates, possibly enough to allow the GOP to keep control of one or both houses of Congress.

 

The only thing that could change this dynamic is if the investigation is inadequate. It will be no surprise if the Democrats try to make the argument that more investigation (and thus more time) is needed. But if Senator Flake is satisfied and gives a good explanation of why he is, that should be good enough for those who, like him, have been undecided.

 

 

Hold Israel to a Higher Standard?

In the course of an argument yesterday on Twitter about the U.S. withdrawal from the U.N. Human Rights Council, someone tweeted, “Maybe the council does hold [Israel] to a higher standard, I believe they should be. They are the Chosen, have been enslaved, kicked out of their homeland and stolen from their homeland for thousands of years so should know better and see wrong for what it is”

The Tweeter did an excellent job of encapsulating 2 1/2 millennia of mistreatment in a single sentence. It could be expanded into an article, a book, or an encyclopedia, and I think it is  well for us to remember the Babylonian Captivity, the expulsion from and destruction of Jerusalem by the Roman, dhimmitude in Moslem lands, anti-Semitic violence in Europe culminating in the Holocaust, followed by destruction of ancient Jewish communities in the post WWII Middle East and North Africa. Finally, we need to realize that when the State of Israel was proclaimed, with U.N.  recognition, in 1948, the immediate reaction of the Palestinians and front line Muslim states was to invade and try to destroy it.

Seventy years later, although Jordan and Egypt have made peace with Israel, the Palestinians have not, and therefore are still at war with Israel. And this is not merely a technicality, a “phony war” on paper. For decades, Palestinians have been engaging in terrorism in Israel. Israel has responded with defensive measures, some of which have been criticized as excessive. None of those, however, would have occurred if the Palestinians had chosen to live in peace with Israel.

Even apart from the history of the past 70 years, the Tweeter’s suggestion strikes me as perverse. If Israel wants to say to itself, “We have Torah and the prophets, and we can’t expect the other nations to be as holy as we are,” that would be okay. Even that, however would not entail giving up the right of self defense. But for the rest of the world to say to Israel, “Because of all that the Jews have suffered at our hands up to 1948, we are not going to tolerate actions by you that we tolerate from others,” — which is what a higher standard means — is surely adding insult (and further injury) to injury.

Given the millennial history of suffering the world has inflicted on the Jewish people, the world should, if anything, be cutting Israel some slack in its current situation, not holding it to a higher standard.

The Crisis with Children of Immigrants

It occurs to me that Fathers Day is a good day to think about this. The Republican Party has often claimed to support family values. The current handling of children of illegal immigrants, like the case of Elián González in 2000, is inconsistent with that claim. The right of parents to raise their children, which implies the right to custody of them, is one of the basic principles concerning families. Here, however, as in the González case, that right is being denied, not for the good of the children or out of some overriding necessity, but for political reasons.

Elián González. Here is a link to a synopsis of the case. After his mother drowned in the attempt to take him by boat from Cuba to the United States, he was placed with relatives in Florida. They resisted his father’s request that his son be returned to him. The resistance was not on the grounds that the father was an unfit parent but because they preferred that the boy be in the United States rather than under the Communist regime of Fidel Castro. In other words, the Florida relatives and their sympathizers in the United States, including many Republicans, were  willing to ignore parental rights for political reasons. On the other hand, the fact that refugees from Cuba entered the country illegally was not a problem for any significant number of people of either party.

Trump/Sessions Policy. Senator Susan Collins (R, ME), in a letter (apparently to a constituent), explains the situation as follows:

In May, U.S. Attorney General Jeff Sessions announced that the Department of Justice would begin prosecuting individuals who crossed the southern border illegally, which could mean that parents who are apprehended at the border could be separated from their children in some cases.

She goes on to write about the dangers of the voyage from the parent’s home to the border and the the apparent belief of the parents that if they can reach the United States they will be allowed to stay. Although she does not explain what that has to do with the new policy or the treatment of the children, it seems consistent with the argument others have advanced that when the policy becomes known, it will discourage others from trying to immigrate this way.

“In May … would begin …” In other words, contrary to Trump’s claim that this was necessary because of some “horrible law” enacted by the Democrats, this is a new policy, freely chosen by Jeff Sessions. It is not necessary under current law.

“the southern border” The Constitution requires equal protection of the laws. To have a set of rules for those entering across the southern border which is not applied equally to those entering across the northern border or at any port of entry by sea or air is clearly unequal on its face. The obvious difference between those coming across the southern border and those entering elsewhere is that the former are Hispanic while the others generally are not. In other words, this policy is based on ethnic bigotry.

“parents … could be separated from their children …” The only hint of a rationalization for the deliberate change of policy which produces this result is not that the parents are unfit but that it will send a message to other, unrelated individuals, to discourage them from coming here. As with Elián González, people want to take children from their parents for political purposes.

Comments and Conclusions. Regrettably, it seems that many Republicans — now as then — are, at best, selective in their support of family values or ignorant of what they entail. It seems that an anti-immigrant fervor, which is directed only at Hispanics and Muslims, takes precedence for them. The bigotry of the Administration and their supporters makes them comfortable with using the children as pawns/hostages in their attempt to get funding for the border wall. Those who recognize the rights of children and parents are being pressured to fund the wall as part of a deal to end this unnecessary policy.

It should be noted that one difference between the González case and the current situation is that Elián was with family members, whereas the children now are not being placed with loving and caring relatives. Presumably, in the vast majority of cases there are no such known relatives, so they are being held in custody. This raises the point that if parents and children alike are in custody, it should be possible for them to be together in custody. This is not like the situation which often occurs in other sorts of criminal cases, in which a child  can be placed with other family members when a parent is in custody.

It is true that the United States cannot be expected to allow open borders. We need to have sensible immigration policies and procedures, including better border controls. But that need doesn’t mean that anything goes or that the natural rights of parents and children may be disregarded.

What we need now is an immediate reversal of the DOJ decision of last May. Then we need serious immigration reform. Until such reform is enacted, immigration enforcement should be limited to cases of serious criminals, the “bad hombres” Donald Trump pretended to be concerned about. People who have merely violated immigration laws or are convicted of non-violent crimes should be allowed to remain until Congress passes comprehensive legislation; and that legislation should allow those who have already made a peaceable life for themselves here to remain.

Mass Killing in Parkland, Florida

The killing of 17 people at the high school in Parkland on February 14 has led to renewed calls for various forms of gun control, including measures to prevent those with mental health problems that make them dangerous from having access to firearms. There have also been people who have said, “Let’s not politicize the tragedy.” Speaker Ryan cautioned against a “knee-jerk reaction” before all the facts and data are known.

My response to Speaker Ryan is, “If you won’t do anything about Parkland, there are many previous mass shootings about which all the facts and data are known. Do something about them.”

As for politicizing the issue, the question is what is meant by “politicizing.” If it means, “seeking solutions through governmental action,” there is clearly nothing wrong with doing that. That is part of our rights as citizens. If it means “attempting to win advantage for one political party over another,” the real possibility that some people will politicize the matter is not a sufficient reason for others to ignore the problem. Such hyper-partisanship is an increasing problem in our politics*, but rather than yielding to it, we should refuse to let it stop people of good will from seeking to resolve problems.

            *The fiasco on February 15 in the Senate on immigration legislation, leaving the Dreamers unprotected is the most recent example.

The proposals I’m aware of include general restrictions on sales of guns — background checks, banning sales at weapons shows, waiting periods, etc. — banning certain types of weapons and accessories frequently used in mass shootings, such as AR-15 rifles and bump stocks; and restrictions on persons, preventing dangerous individuals from owning or purchasing firearms. I think all approaches have merit, and I see no validity in saying only one facet — sales, weapon types, or mental health — is the problem. All contribute to an intolerable situation, and all should be addressed.

Some people will claim that the Second Amendment prevents some of the proposed actions. But the courts have already recognized that the Second Amendment is not absolute. It would be absurd to suggest that individuals have a right to possess nuclear devices or guided missiles. When there are types of arms unknown to the framers of the Amendment, it is at least questionable whether the original intent of the Amendment was to include them. Therefore, it is proper for legislative bodies to consider whether they should be restricted and for courts to decide whether such restrictions are constitutional.

The response of the students themselves gives me real hope that this time something will be different. In addition to grieving the loss of life and honoring those who responded heroically, this time they are angry, and they are articulating that anger powerfully in a clear demand for long overdue action. I believe that this anger-driven demand for action is likely to a effective movement driving politicians to respond with legislation, not just the empty pieties that have followed past acts of this sort.

Dreamers Aren’t Most Senators’ Priority

Looking at the voting on the roll calls in the Senate last Thursday, I must conclude that for the vast majority of Republican Senators, building the “Wall” is more important that letting the “Dreamers” stay in the U.S., while for the vast majority of Democrats, stopping the “Wall” is a higher priority that protecting the “Dreamers.”

On the first roll call, all 48 Democrats and “Independents,” except Manchin, voted in favor along with four Republicans, Senators Flake, Gardner, Graham, and Murkowski. The remaining Republicans — except John McCain, who was absent due to illness and took no part in any of the voting — all voted against the bill.

On the next roll call, all 40 Republicans present voted in favor and were joined by Democrats Donnelly, Manchin, McCaskill, and Stabenow. The two “Independents” and the remaining 43 Democrats voted against it.

On the third roll call, eight Republicans — Alexander, Collins, Flake, Gardner, Graham, Isakson, Murkowski, and Rounds — joined 44 Democrats and both “Independents” in favor.  Three Democrats joined the remaining 42 Republicans in opposition.

 

The point I’d make is that if the “Dreamers” aren’t taken care of now, they’ll be gone as a group forever, while the “Wall” and questions of family reunification and visa lottery can be revisited another time. Yet there are only four Democrats and four Republicans who considered them the top priority. Republicans Alexander, Collins, Isakson, and Rounds were ambiguous, but it could be argued that by supporting the “Dreamers” when their preferred version failed, they made them the top priority. As for the other 45 Democrats and “Independents,” and the other 42 voting Republicans — the “Dreamers” just weren’t that  important to them. So let’s have no criticism of the President or other party from those 87 insufficiently caring Senators.

 

Among those whose message to the “Dreamers” is, “Drop dead,” are my state’s two Democrats, Elizabeth Warren and Ed Markey.