A day after the 2022 midterm elections it is looking like the projected Red Wave turned into a Red Swell. I have spent many hours in the Atlantic Ocean and many times what looked like it might be a wave while it was still way out ended up being nothing more than a swell by the time it reached us. That certainly seems to be the case with these elections.
Two weeks ago, Oliver Wiseman, writing for The Spectator World, headlined his column “All signs point to a red wave.” He began with, “It’s now just under two weeks until the midterms. Judging by the mood music on both sides of the aisle, all signs point to a very good night for the Republican Party.” He concluded his comments on the midterm with this: “Midterms tend to be a referendum on the party in power, and Democrats have every reason to believe that the verdict will be unfavorable.”
While not all results are yet in, and which party will control the Senate is still unclear, we do know that the verdict was actually not unfavorable for the Democrats—or at least not very unfavorable. It was, however, unfavorable for the Republican party as a whole and for Donald Trump and his minions in particular.
Someone suggested to me today that the media had done a good job of gaslighting everyone—that the best way to discourage people from voting is to make them think that the outcome was in the bag. He was specifically suggesting that some voters who would have voted Republican did not bother to vote because they were sure the Red Wave was coming. I disagree, though.
There really was every reason to expect a Red Wave. And I will even go so far as to suggest that without Donald Trump, there would have been one. President Biden currently has an approval rating of 41.4% according to FiveThirtyEight. That means that almost three out of every five Americans do not approve of the job that he is doing as president. Every president since Franklin D. Roosevelt had a higher approval rating at this point in his administration than Joe Biden currently has—with the president closest to Biden’s rating being Donald Trump. By the way, I suspect FDR’s approval rating was higher, too, and probably many other presidents, but FiveThirtyEight only has data back to Truman.
The makeup of the Senate is currently 50-50 (including two Independents who caucus with the Democrats), with the Democrats being in the majority thanks to Vice President Kamala Harris being the tiebreaker. That means that the Republicans needed a net gain of only one seat in order to take the majority. Politico rated ten Senate races as toss-ups or likely narrow wins. As of right now, Democrats held three and flipped one, Republicans held three and three are still undecided—Arizona, Georgia and Nevada. Georgia is all but certain to be headed to yet another run-off, since neither incumbent Raphael Warnock nor Herschel Walker managed to get a majority of the vote. Somehow only two-thirds of the vote in Arizona have been counted thus far, but Democratic incumbent Mark Kelly currently has a lead of five percentage points (roughly 90,000 votes). In Nevada, 77% of the vote has been counted. Adam Laxalt, the Republican challenger, has a narrow lead over Catherine Cortez Masto (less than 23,000 votes). Interestingly, Laxalt leads in every county but one, yet his victory is by no means certain. He does not currently have a majority of the vote, either; as of the most recently reported results, 24,608 people voted for one of three other candidates or for “None of These Candidates,” an option Nevada has offered since 1975.
The Republicans retained the seat in Wisconsin, but Ron Johnson barely defeated Mandela Barnes, winning by about 27,000 votes out of more than 2.6 million cast. Barnes actually achieved the exact same percentage of the vote as Joe Biden did in 2020—49.5%. That was enough for Biden to carry the state and pick up Wisconsin’s 10 electoral votes, but not enough for Barnes to win; 1.7% of the voters in 2020 cast their votes for one of several third party candidates, whereas only Barnes and Johnson were on the ballot for Senate yesterday.
That the GOP did so poorly yesterday is certainly not a sign of confidence in or approval of Joe Biden. Instead, it is, mostly, a refutation of Donald Trump. Don’t get me wrong—Trump candidates did well in several races. Ron Johnson, for example, was linked to some election shenanigans in 2020 and originally said he would not vote to certify Biden’s victory, though he changed his mind after the January 6 riots. And J.D. Vance, a political newcomer who said that the election was stolen from Trump, won in Ohio. Sarah Huckabee Sanders was one of the earliest candidates endorsed by Trump, having served as his Press Secretary, and she won handily in Arkansas—but she is also the daughter of a popular former Arkansas governor.
But in Arizona, it is a different story. Kari Lake, the Trump-endorsed candidate for governor and a political newcomer who thought she was such an influential figure that she made campaign ads for candidates in other states, is not leading with two-thirds of the vote in. She is at least close. Secretary of State candidate Mark Finchem, however, who has ties to QAnon and the Oath Keepers, is considerably behind Adrian Fontes for Secretary of State.
In Alaska, with about 75% of the vote in, it seems that either Kelly Tshibaka or Lisa Murkowski will win the Senate race, but it is not clear which one. And Alaska has an interesting new ranked voting system in place. Trump has been clearly, consistently and adamantly opposed to Murkowski; if she wins, it will be a clear repudiation for Trump by Alaskans. And Trump-endorsed Sarah Palin has a slight lead over fellow GOP candidate Nick Begich for the a House seat, Democrat Mary Peltola has a sizable lead over both of them.
In Michigan, Democrats swept the statewide offices. Gretchen Whitmer, one of the most authoritarian governors amidst the COVID pandemic, won handily over Trump-endorsed Tudor Dixon. Incumbent Secretary of State Jocelyn Benson defeated Trump-endorsed Kristin Karamo, who denies the legitimacy of the 2020 election, even more handily.
In New Hampshire, Karoline Leavitt lost her bid to unseat incumbent Chris Pappas. Leavitt’s website proclaims that she “worked tirelessly” to get a position in the Trump White House and she later served as Assistant Press Secretary to Kayleigh McEnany. After that she was Communications Director for Congresswoman and House Republican Conference Chair, Elise Stefanik. But she came up short. Trump also endorsed Donald Bolduc in the New Hampshire Senate race, but he came up a full 9 percentage points behind incumbent Maggie Hassan.
In Pennsylvania, Trump-picked Mehmet Oz lost the Senate race to John Fetterman. While it is true that Fetterman is the incumbent lieutenant governor, the fact that he defeated Trump’s guy is noteworthy. Trump received 48.58% and 48.84% of the vote in Pennsylvania in 2016 and 2020 respectively. Oz received 46.8%. Fetterman’s own website describes him this way: “John doesn’t look like a typical politician, and more importantly, he doesn’t act like one. He supported legalizing marijuana before it was popular, officiated a same-sex marriage before it was legal, and pushed for single payer healthcare long before it was mainstream.” He regularly appears in a black hoodie. He did put on a suit and tie for his one debate with Oz, but the tie was not cinched up all the way. Oh, and because of a stroke, Fetterman had the assistance of a closed captioning device for the debate. Still, his performance was rough—so rough that Axios called the reaction to the debate “brutal.” Last Thursday, a poll done by Emerson College and The Hill showed Oz leading Fetterman. And yet….
Donald Trump held a big shindig at Mar-a-Lago last night to watch the election results. Earlier in the day, he released what CNBC called “a four-page press advisory detailing how much he had done to help Republicans up and down the ballot.” During the evening, radio host Jason Miller said that Trump should get the credit for GOP victories because “he is the inspiration and he is the one who has recruited a number of the MAGA candidates to run…no one has been out working harder for the candidates, he is still the kingmaker when it comes to the primaries and he’s the one who can turn people out in the general election.”
Hmmm. Sadly, Trump is a credit hog but spurns any responsibility at all when things go poorly. To his credit, he at least acknowledges it. He said, in an interview with NewsNation that was shown yesterday, “Well, I think if they win, I should get all the credit. And if they lose, I should not be blamed at all. But it will probably be just the opposite.”
In a column posted at 3:30 a.m. today, David Siders wrote, “Trump’s place in the party is far weaker after Tuesday. Truth is, if not for the former president’s interventions, the night could have been a lot better for the GOP.” What does he mean by that? Consider…
In New Hampshire, Bolduc lost to Hassan, receiving 267,594 votes, while Chris Sununu, a Republican not endorsed by Trump, won re-election to the governor’s office with 341,907 votes. In Georgia, Herschel Walker received 1,906,246 votes while Governor Brian Kemp, a Republican not endorsed by Trump (in fact, Trump endorsed someone to run against Kemp in the primary) received 2,109,105 votes. In Ohio, where Trump-endorsed J.D. Vance did prevail in his senate race against Tim Ryan, Vance received 2,147,898 votes, while Mike DeWine, the incumbent Republican governor, won re-election with 2,528,018 votes. In Vermont, Republican governor Phil Scott won re-election, receiving 201,316 votes. He was not endorsed by Trump. Gerald Malloy was endorsed by Trump for the Senate, but he garnered only 80,330 votes, losing badly to Peter Welch. In Maryland, Larry Hogan is the incumbent. He is term-limited and cannot run again, but he won with 51% of the vote in 2014 and with 55% of the vote in 2018. In 2018 he became the second Republican ever to be re-elected governor in Maryland, receiving the most votes of any governor in Maryland history in so doing. For 2022, he endorsed Kelly Shulz. Given his track record, you would think Republicans would pay attention. But Hogan is not a Trump lapdog, and Trump instead endorsed state delegate Dan Cox. Hogan refused to support Cox, calling him a “QAnon whack job.” How did that work out for the Republicans? Cox lost in a landslide, picking up only 37% of the vote, while Wes Moore, who has never before held political office, collected just shy of 60%. In Arizona, which has not yet been called, Trump tapped Kari Lake, who won the GOP primary over Karrin Taylor Robson. At the moment Lake is trailing Democrat Katie Hobbs. Chuck Coughlin, a GOP strategist in Phoenix, said, “I mean, come on. This should be a walk in the park for Republicans … If Karrin Taylor Robson was the [gubernatorial] nominee, it would be an a**-kicking this cycle.”
Kevin McCarthy is in line to become the Speaker of the House if the Republicans do, in fact, gain the majority. But if they do, it will be with a much smaller majority than McCarthy previously predicted. In fact, a year ago he suggested a 60-seat gain for the GOP. There are 46 House races that have not yet been called, and the Republicans only need to win 12 of those to take the majority, so it seems that that will happen. But even if they won all 46 of those races—which will not happen—they would not pick up the 60 seats McCarthy predicted last year.
It’s time for a reality check. Any efforts to truly make America great again will not involve Donald Trump. The sooner the Republican party realizes that the better.
The Republican party—or at least a significant, influential and very vocal part of those who claim to be the Republican party—have been drinking the Trump-provided MAGA Koolaid for years now, including the almost-two years since Donald Trump failed to win reelection. Any Republican who dares to cross Trump does so at his or her own risk, as has been seen, most notably, by Rep. Liz Cheney of Wyoming, who not only spoke out against Trump and called for his impeachment, but served on the January 6 Committee (officially, the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol).
As one would expect from Mr. Trump, he has since made Cheney a target of his adolescent name calling, saying that she is a “warmongering fool” (April 2021) and a “despicable human being” (July 2022) among other things. When she lost her primary race against Trump-backed Harriet Hageman, Trump said Cheney “can finally disappear into the depths of political oblivion” (August 2022). Last weekend, Cheney made headlines when she said at an event in Texas that if Trump wins the GOP’s nomination in 2024, “I won’t be a Republican.” And I have to say, I do not think that Cheney is alone in that. She may be the only one, or one of the only ones, saying that out loud right now, but there are very good reasons to be extremely concerned about both Donald Trump’s possible nomination and about many of the candidates that he has been endorsing over the past year.
And he has been endorsing like crazy, issuing more than two hundred endorsements in campaigns for House, Senate and executive offices at the state level. TheWashington Examiner said that Trump was embracing the role of kingmaker, but NPR said that while Trump-endorsed candidates did have an overwhelmingly winning record, three-fourths of them were likely to win anyway, with many of them running unopposed in their primaries. That is an important observation, because, as of the beginning of September, while 99% of Trump-endorsed incumbents won and 91% of Trump-endorsed candidates in open races won, only 40% of Trump-endorsed challengers won their races (4 out of 10)—and none of the four Trump-endorsed candidates for state executive office won their races. It is also important to note that some of the Trump-endorsed candidates who won likely would have won without that endorsement—or did, in the cases of J.R. Majewski, an Ohio candidate endorsed by Trump thirty days after he won the primary; Katie Britt, an Alabama Senate candidate endorsed by Trump 17 days after the primary (and after Trump had retracted his endorsement from Mo Brooks, who urged Trump to move past his claims that the 2020 election was fraudulent); and Markwayne Mullin, an Oklahoma Senate candidate Trump endorsed 11 days after he won the primary. Trump’s chosen candidates faired particularly poorly in Georgia—especially David Perdue, whom Trump tapped to take on Gov. Brian Kemp, whom Trump is known to loathe, but who was defeated by Kemp 74% to 22%. Trump-endorsed Morgan Ortagus, who was Trump’s State Department spokesperson and who moved to Tennessee last year and intended to run for the House in Tennessee’s 5th District, was removed from the ballot by the Tennessee Republican Party after its Executive Committee ruled that Ortagus (and two others) failed to meet the requirements of being a bona-fide Republican according to the party’s bylaws.
Of the candidates Trump endorsed, 58 of them had his endorsement for less than a week, including 13 who received his endorsement the day before their win and six who received it the day of their election. In those cases for sure it looks much more like Trump wanting to attach his name to a winner than it does that his endorsement had any impact on the outcome. There were a dozen or so candidates who carried Trump’s endorsement for more than 400 days, including his former press secretary Sarah Huckabee Sanders, who is running for governor in Arkansas. One of those candidates was Madison Cawthorn, who was defeated in his re-election bid, and one was Jody Hice, candidate for Georgia Secretary of State who was defeated by the incumbent Brad Raffensberger—he of the infamous phone call with Trump.
Side note – Trump has also endorsed Brazilian President Jair Bolsonaro, who is not expected to win reelection, though he is advancing to the runoff.
All of this is essentially a recap; what’s the point? Why would I start this post clearly implying that Trump’s endorsements are not a positive thing for the Republican party (or the country)? Well, the same reason why Eric Lutz said that the Republican party has nominated “a bunch of bozos” (August 2022). I am no fan of Mitch McConnell, but he is a wily political operative, and he has seen the handwriting on the wall. He told a Kentucky group in mid-August, “I think there’s probably a greater likelihood the House flips than the Senate. Senate races are just different. Candidate quality has a lot to do with the outcome.” Unspoken but still crystal clear: many Republican Senate candidates are not high quality.
Why would McConnell, who stands to regain his position as Majority Leader if the Republicans do retake the Senate, say such a thing? Well, because it’s true. And, whatever else he may be, he is pragmatic. (Which is why he also, just recently, showered praise on Arizona Democratic senator Kyrsten Sinema at the McConnell Center at the University of Louisville. McConnell called Sinema, who has riled her Democratic colleagues by protecting the filibuster and pursuing a moderate course, “the most effective first-term senator I’ve seen.”)
So, what about the Republican candidates? Well, here’s a look at just a few of them…
Mehmet Oz, the celebrity doctor who became famous in no small part thanks to Oprah, is running for Senate from Pennsylvania. He shot a pretty horrible video in April in which he claimed to be shopping for elements of a “crudité,” which is a French appetizer consisting basically of raw vegetables and a dip. Nothing wrong with that per se, setting aside the fact that very few people use the word crudité, and his use of it did not help Oz in his effort to be relatable. He also mispronounced the name of the store where he was shopping, picked up salsa for the crudité, which I am pretty sure no one else does, and then, after lamenting the price of his veggies and salsa, added, “And that doesn’t include the tequila.” Again, I don’t know of anyone who commonly pairs tequila with veggie platters. To make matters worse, when attention was brought to the cringeworthy video, the Oz campaign fired back at Oz’s opponent, Lt. Gov. John Fetterman, by saying, “If John Fetterman had ever eaten a vegetable in his life, then maybe he wouldn’t have had a major stroke and wouldn’t be in the position of having to lie about it constantly.” Elsewhere, Oz asserted that he owns two homes, when it was later revealed that he in fact owns ten. The bottom line is that Oz fits the Trump mold—he became popular through TV, because he has been as much an entertainer as a doctor he has said a lot of things he probably now regrets, he has more money than he needs, and he really has no business serving in elected office.
Kelly Tshibaka is the Trump-endorsed opponent of Republican incumbent Lisa Murkowski. A video of her talking about speaking in tongues and God finding it “so cute that the only person in the world who can understand me is him” raised some eyebrows among Alaska voters, but Tshibaka is certainly not the only person who believes in speaking in tongues—and that belief is consistent with her position as co-pastor, along with her husband, of Foursquare churches. Perhaps more concerning than that would be her claim in 2015 that God has told her, “I’ve made you a Deborah. I’ve made you a mother to a nation.”
J.D. Vance is the Trump endorsed candidate for Senate from Ohio. Vance is a political newcomer; he has no previous political experience at all, at any level. He is a former Marine and a venture capitalist who wrote the New York Times bestseller Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, which also became a Netflix film directed by Ron Howard. TIME called the book one of six books to read to help understand Donald Trump’s election to the presidency. And Vance once called himself a “never-Trump guy.” But none of that means that he is a viable candidate for the Senate. In May, Axios said that if he wins the election, Vance will be “arguably the hardest-edged populist nationalist in the Senate GOP.” That’s quite a statement. A July 2021 article in The Atlantic was entitled “The Moral Collapse of J.D. Vance,” with a subtitle calling him “a contemptible and cringe-inducing clown.” But none of that necessarily means he is not a good candidate for the Senate. But last month many GOP leaders in Ohio were questioning where Vance was and how effective—or not—his campaign had been. CNN quoted one Ohio Republican saying that Vance was “like the dog who caught the car,” that he did not know what to do after he won the primary election. A Cincinnati-area radio talk show host said that winning the general election would be easier if one of Vance’s primary opponents had won—and that if Vance does not win, “it’s his own damn fault. Worse than that, in an August column on Cleveland.com, Brent Larkin called Vance’s campaign “a stain on the GOP,” writing that Vance “has awful political instincts, not an ounce of class and a tendency to embrace views parroted by political maggots he considers friends.” What’s most troubling of all, though, is some of the things that Vance has said himself. In May 2021, on The Federalist Radio Hour, he said, “We really need to be really ruthless when it comes to the exercise of power.” In September 2021, on the podcast of Jack Murphy, Vance said, “We need like a de-Baathification program, a de-woke-ification program,” and that is Trump wins the presidency in 2024, he should “fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts stop you, stand before the country, and say—quoting Andrew Jackson—‘the chief justice has made his ruling. Now let him enforce it.’” Last October he tweeted that Indigenous Peoples’ Day is a “fake holiday created to sow division.” In February, talking to Steve Bannon, he said, “I gotta be honest with you, I don’t really care what happens to Ukraine one way or another.” There is definitely a question of “candidate quality” here.
Herschel Walker is a familiar name to football fans, especially in Georgia, where he won the Heisman while playing for the University of Georgia. He is also a friend of Donald Trump and was endorsed by Trump for the Senate to defeat incumbent Rafael Warnock. Like Trump, Walker has a spotty record when it comes to his relationships with women, his business dealings and his ability to tell the truth. He claims to have been in law enforcement, including working for the FBI, neither of which is true (though he evidently did spend a week in training at Quantico). In May Walker told an Atlanta radio station that he had never heard Donald Trump claim that the 2020 election was stolen. If that’s true, he’s the only person in the country who can make the claim. Walker acknowledged in his 2008 book Breaking Free that he has struggled with dissociative identity disorder, claiming to have twelve alternate personalities. There is a lengthy list of allegations against Walker pertaining to violence and domestic abuse, and he has admitted holding a gun to the head of his ex-wife. Twenty years ago he was accused of stalking a woman who has been identified as a former Cowboys cheerleader. He supposedly talked about having a shootout with the police in 2001. Now, just days ago, a woman who has a son with Walker has claimed that Walker both encouraged her to abort that pregnancy in 2011 and paid for her to have an abortion in 2009. Walker has denied that he paid for an abortion, saying in a statement, “I deny this in the strongest possible terms.” I obviously do not know if that happened or not, but it is troubling—and does not, sadly, seem implausible given Walker’s record and the things he has admitted to doing. Also sad is the response of some Republican leaders. Ralph Reed, who founded the Christian Coalition and later the Faith and Freedom Coalition, said last week that reports of Walker paying for an abortion are “unlikely to resonate with voters in Georgia. It’s based on an anonymous allegation that is 13 years old.” Being translated, that means, “We’re not letting anything stand in the way of retaking the Senate.” Many prominent Republicans have been supporting Walker, including Nikki Haley, former governor of South Carolina and Ambassador to the U.N., who is considered a possible candidate for the GOP nomination in 2024. Senators Rick Scott, Tom Cotton and Lindsey Graham have expressed support, as has RNC chair Ronna McDaniel. Pitifully, Dana Loesch, a conservative radio host, said, “What I’m about to say is in no means a contradiction or a compromise of a principle. And please keep in mind that I am concerned about one thing, and one thing only at this point. I don’t care if Herschel Walker paid to abort endangered baby eagles. I want control of the Senate.”
Fivethirtyeight.com is calling the Georgia race a toss-up, but projecting Warnock to win. Oz is projected to lose in Pennsylvania. Ohio is leaning Republican. Alaska is considered solid Republican, but it is unclear if Tshibaka or Murkowksi will be the winner. I didn’t talk about Trump protégé Blake Masters here, but he is projected to lose decidedly in Arizona. Leora Levy doesn’t seem to have a chance in Connecticut. Nevada is a toss-up but seems to be leaning slightly to incumbent Democrat Catherine Cortez Masto.
Bottom line: if I had to make a prediction one way or the other, I would not pick the Republicans to take control of the Senate. And to be honest, there’s really no excuse for that. With the current president’s issues and the state of the economy, it should have been a no-brainer to say that the Republicans would take control. The American Presidency Project posted in August that “In the 22 midterm elections from 1934 -2018, the President’s party has averaged a loss of…four Senate seats.” Furthermore, based on historical trends, the site said, “we would expect Democratic seat losses of around 30 in the House and 3 in the Senate.” The president’s party has only gained seats in the Senate six times since 1934, and it has not gained more than two Senate seats since 1934. If the Democrats gain three or more seats in the Senate—which I am not necessarily predicting, but also would not rule out—they would do something that neither party has managed to do since the first midterm election following Franklin D. Roosevelt’s first election to the presidency. If that happens, I hope it it’s the final nail in Donald Trump’s political coffin.
Today is January 6. I would love to say that is only noteworthy for those who celebrate Epiphany, those who, like my nephew, have a birthday today, or because of the historically significant events that occurred that day prior to last year. There are several of those by the way—Samuel Morse unveiled the telegraph, Theodore Roosevelt died, New Mexico joined the U.S. as the 47th state, and it is the day on which both George Washington and George H.W. Bush got married. For pop culture fans, it is the day on which “Wheel of Fortune” premiered. For sports fans, it is the day that Nancy Kerrigan got attacked in 1994. Hopefully in the long run at least some of those events will prove more memorable than what happened one year ago today.
On January 6, 2021, something happened in Washington, D.C. Sadly, what you think of the event, even what you call the event, seems to be heavily influenced by your political leanings. A riot seems to be the most frequently used term, as well as the term that I find to be accurate. Dictonary.com gives three definitions for the noun riot: “a noisy, violent public disorder caused by a group or crowd of persons, as by a crowd protesting against another group, a government policy, etc., in the streets; a disturbance of the public peace by three or more persons acting together in a disrupting and tumultuous manner in carrying out their private purposes; violent or wild disorder or confusion.” All three are fitting for what happened on that day.
History.com says that “a mob of President Donald Trump’s supporters descend on the U.S. Capitol, attempting to interfere with the certification of electoral votes from the 2020 presidential election. The rioters assaulted the Capitol police force and ransacked the complex, destroying property and sending members of Congress and their staff into hiding in officers and bunkers. A protester who was shot by police, died in the chaos, and more than 100 police were injured.” None of that is really debatable, though there are plenty of attempts being made to spin those events.
Mike Huckabee, writing yesterday, said, “Get ready for a surreal couple of days during which the Capitol Hill breach will be presented as ‘one of the darkest days of our democracy’ (quoting Colorado Rep. Jason Crow) and worse than the Civil War, Pearl Harbor and 9/11. Combined.” Huckabee is noted for his wit and sarcasm, but trying to minimize what happened last year through hyperbole is not only ineffective, it smacks of disregard for the reality of what occurred. To be fair, Vice President Kamala Harris did say in her speech this morning, “Certain dates echo throughout history, including dates that instantly remind all who have lived through them where they were and what they were doing when our democracy came under assault. Dates that occupy not only a place on our calendars, but a place in our collective memory. Dec. 7, 1941. Sept. 11, 2001. And Jan. 6, 2021.” I don’t think last year’s riot rises to the level of Pearl Harbor or 9/11 in its magnitude or long-range impact, but at the same time, January 6, 2021 was the act of U.S. citizens and cannot be minimized.
At least Huckabee used the word riot when describing the events later in his piece. Just that word sets some people off. One of the commentors on Huckabee’s web site is a perfect example; he wrote, “it distresses me to the point of anger when anyone refers to what happened last Jan 6 as an ‘insurrection’ or ‘riot’ Both of those involve violence and destruction of property of which there was little if any… at least not at the Capitol building.” Such is the denial of reality we see among Trump followers.
But Huckabee took issue with Brit Hume’s comments two days ago. ““We are not living in normal times. What we need is for people to calm down. The bitter divisions that we see in this country are exacerbated by this tendency to exaggerate, and to do so grossly,” Hume said. Huckabee seemed okay with that part of it. But he took exception (his words) with Hume saying, “It was a cockamamie scheme by Trump that was bound to fail and did.” Huckabee countered that with, “He had called for a peaceful protest that was PRO-democracy. And we certainly can’t blame him for the riot.”
That, of course, is the recurring theme among Trump supporters—he cannot be blamed for the riot.
In An AP article by Jake Coyle, published yesterday, it was reported that a Quinnipiac poll found that 93% of Democrats considered the riot an attack on the government while only 29% of Republicans felt that way. A separate poll found that 40% of Republicans saw the riot as violent while 90% of Democrats did so. In what has to be the most idiotic statement I have come across about the entire event, Representative Andrew Clyde, a Republican from Georgia who is in the pictures of a door to the House chamber being barricaded by men with guns drawn against the mob, said last May, “Watching the TV footage of those who entered the Capitol and walked through Statuary Hall showed people in an orderly fashion staying between the stanchions and ropes, taking videos, pictures. You know, if you didn’t know the TV footage was a video from January the 6th, you would actually think it was a normal tourist visit.” Florida Representative Matt Gaetz has uttered plenty of baloney about that day, but then uttering baloney is what Gaetz does best.
I am not going to get into whether or not Trump provoked, or inspired, the riot. There are plenty of others out there who have commented on both sides of that. It is a fact, though, that as he concluded his speech that morning, Trump said, ““We fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore. So we are going to walk down Pennsylvania Avenue – I love Pennsylvania Avenue – and we are going to the Capitol.” We do know that Trump did not act to deter the riot or to distance himself from it. His first tweet during the event was to say that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution….” Not until 4:17 p.m. did Trump release a video asking those in the Capitol to go home, while also calling them “very special.” That was more than two hours after the Capitol was breached and five minutes shy of two hours after Pence was escorted out of the Senate chamber. Trump’s tweet about Pence lacking courage went out, by contrast, two minutes after Pence was escorted out.
Albert Mohler, who has maintained his support for Donald Trump, opined about the riot in his WORLD Opinion piece posted today. He writes of three Americas revealed by discussions of the January 6 events and rightly suggests that “mainstream America” is probably in agreement that “the events were a national embarrassment, a riot against lawful order, a stark portrait of political violence, and a sobering vision of a crowd out of control.” I am pleased that Mohler has the courage to call the events “horrifying, and bizarre,” and to acknowledge the Capitol was broken into by force, that the lives of elected officials were threated and that the Capitol was desecrated. He said that American witnessed a mob “expressing total disdain for our constitutional order. A nation that tolerates this kind of behavior and lawlessness undermines its own legitimacy.” He even said that “the passions behind those events were incited and flamed by the 45th president of the United States, Donald J. Trump. The mob was encouraged by the president….”
Trump and others are trying to downplay the event even today. Conservative radio host Jesse Kelly tweeted that “All the January 6th stuff this week is a distraction technique….” Matt Braynard has asserted that “January 6th was America’s Tiananmen Square.” Trump himself said that President Biden’s speech this morning “used my name…to try to further divide America.”
In the midst of the riot I posted this on Facebook: “This nonsense in Washington, D.C. is not okay, folks…. Storming the Capitol is not a protest. This is no different, and no more excusable, than the CHOP foolishness in Seattle last summer. Anyone who really loves this country and really believes in the principles on which this country is founded should condemn this. Looking through the pictures of the hooligans inside the Capitol makes me sick…both angry and painfully sad.” I feel no differently now. The riot was exactly that—a riot. It was not a protest, it was not peaceful and it is nothing to be proud of, by any stretch of the imagination. I believe that there were peaceful individuals and events in D.C. that day, and I am sure that there were some people who got swept up into the crowd and even went into the Capitol who had no intention of defacing property, attacking anyone or engaging in criminal behavior. There is, though, a reason why “wrong place, wrong time,” is a cliché. The bottom line is that our nation is deeply divided. Donald Trump plays a considerable role in that division but neither he nor anyone else can bear the blame alone. Every one of us who truly cares about our country, about the ideals upon which it was founded and about basic, common decency must stand up for our convictions. We have to speak the truth and we have to demand the truth. We cannot allow ourselves to go along with unscrupulous individuals or to contribute to the division because it seems to be the best available option or the candidate most likely to win at the time.
Please note that I am not suggesting that we compromise on our convictions or beliefs. (Quite the opposite, in fact. Had more conservatives not compromised by deciding to support Donald Trump we would probably not be in this position right now). Convictions are good. The United States government was designed to allow for disagreement and to work slowly so as to prevent quick changes and knee-jerk reactions. Amy Gutmann, in the Fall 2007 issue of Daedalus, wrote, “In a democracy, controversy is healthy,” adding, shortly thereafter, “The public interest is well served by robust public argument.” She was absolutely right. But she was just as right when she said later, “when disagreements are so driven and distorted by extremist rhetoric that citizens and public officials fail to engage with one another reasonably or respectfully on substantive issues of public importance, the debate degenerates, blocking constructive compromises that would benefit all sides more than the status quo would.” That was published before Donald Trump was elected, indeed before Barack Obama was elected. And yet, in the fourteen years since it was published, we have seen her words come alive. Disagreements are distorted. Extremist rhetoric is used on both sides. Politics has become a zero-sum game, with both leading parties casting aside members who dare to hold to their convictions rather than party demands. Just look at Tulsi Gabbard, Liz Cheney and Mitt Romney as three recent examples or consider the opposition Kyrsten Sinema and Joe Manchin have faced for refusing to support the repeal of the filibuster or the passage of Biden’s bloated spending plan.
Last year, shortly after the riot, John Horgan, Distinguished University Professor of Psychology at Georgia State, said in an interview, “The United States is in a very precarious spot right now. We’ve witnessed a steady erosion of democratic norms, with increased polarization and radicalization that has reached a boiling point.” He later added, “The country is now so polarized it will take years to heal. It will require positive, constructive leadership at many levels, bipartisan reconciliation and a very basic recognition that we came close to losing a sense of what it means to be a democracy. I don’t believe we realize just how perilous things are right now.”
Gutmann was right and so was Horgan. Sadly, President Biden has not brought positive, constructive leadership. Sadly, Donald Trump has not only continued to demonstrate the same kind of attitude he had while in office, but he is considered the front runner for the Republican nomination in 2024. We don’t need Joe Biden and we don’t need Donald Trump. Nor do we need political parties that pursue victory at any cost.
In 1780 John Adams wrote, “There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.” Two hundred and forty years later, I think we have seen that he was right.
Robert Jeffress, pastor of First Baptist Church in Dallas, welcomed Donald Trump to their service this past Sunday morning. The church’s website proclaimed: “The focus of the music and message this Sunday will be on the most important event in human history—the birth of Jesus Christ. President Trump is known for his love for Christmas and what it represents. We are thrilled to have him join us this Sunday morning.” Apparently Trump was in Dallas for a rally that afternoon with Bill O’Reilly, but Jeffress seized the opportunity to have him at First Baptist.
Readers of this blog know that I am not a fan of Donald Trump. In the interest of full disclosure, I should say now that I am not a fan of Robert Jeffress, either. To give you an idea why, consider the biography of Jeffress that appears on the First Baptist web site. It begins, “Dr. Robert Jeffress is Senior Pastor of the 14,000-member First Baptist Church, Dallas, Texas and a Fox News Contributor. He is also an adjunct professor at Dallas Theological Seminary.” It then proceeds to tout his “more than 4,000 guest appearances on various radio and television programs” before listing some of the shows he has appeared on. After mentioning his radio program, TV program and books, it says, “Dr. Jeffress led the congregation in the completion of a $135 million re-creation of its downtown campus. The project is the largest in modern church history and serves as a “spiritual oasis” covering six blocks of downtown Dallas.” Presumably that means First Baptist’s modern church history because if it means modern church history in the broader, worldwide sense then it is an outright lie, but either way…brag much? Jeffress seems to fully embrace the notion of “celebrity pastor.”
Having said that, Jeffress does seem to teach biblical truth. I may not like his personality, his arrogance or his priorities, but I am unaware of any heresy he preaches.
Before preaching his sermon, Jeffress said that Trump’s remarks would be the “climax and conclusion of the service.” While Trump spoke of the biblical account of Christmas, in words he admitted were prepared for him by the church, he added references to Afghanistan, police reform, America first and his never-ending crusade to “make America great again.” He even managed to work in his irritation with the press that Melania Trump received for her selection of White House Christmas decorations while Trump was president. Trump then received a standing ovation that included some chanting “U.S.A.!”
Absurdly, the church’s executive pastor then took the stage and said, “While we were very honored to have the 45th president of the United States with us today, I must remind you that it is our longstanding policy as a church that we do not endorse or oppose any political candidate for public office or otherwise intervene or engage in any political campaign.”
Interestingly enough, the church’s website even contains a small-print disclaimer that appears on every page and reads, “First Baptist Church of Dallas does not endorse or oppose any candidate for political office. Instead, any information, videos, appearances, posts, etc. related to any political topic are provided for informational purposes only, and represent the personal views or opinions of the individual expressing them, but do not necessarily represent the views or opinions of First Baptist Church of Dallas.”
Trump made it clear that he was going well astray of the remarks that had been prepared for him, but since Jeffress has been an unabashed supporter of Trump all along there is no way he could truly have been surprised. After all, Donald Trump has never stuck to a script in his life and he is not going to pass up any opportunity to make something about him. I am not embellishing here, either; while introducing Trump, Jeffress called him one of his closest friends. He even said that Trump was “the most consequential president since Abraham Lincoln.” After the service Jeffress had the temerity to say that he did not think that Trump had said anything political and that the “full house” at First Baptist was evidence of Trump’s popularity.
Trump’s visit to First Baptist is certainly not the first time a political figure has attended a church service. That happens often and on both sides of the aisle. It is not the first time a political figure has been acknowledged at or given the opportunity to speak at a church service. Again, happens on both sides of the aisle. But a politician should never be the center of attention at a church service. Indeed, no human should ever be the center of attention.
It is incredibly sad that Robert Jeffress would preach a message that was, by all accounts, biblically accurate and invited unbelievers to salvation, yet call Trump’s remarks the climax. That absolutely sends the wrong message. Intended or not, Jeffress essentially declared that the account of Christ’s birth is nice, but Donald Trump is better. There is no greater climax than the birth of Jesus Christ in human form, coming to earth as a baby, knowing He would grow up to die on the cross for the sins of humanity. How tragic that minutes after that truth was proclaimed—and thankfully it was proclaimed—the congregation was chanting about human politics. A church service should never become a political rally. Chants of “U.S.A.!” in a worship service should sadden any true believer.
Unless you have been living under the proverbial rock, you have heard and/or seen the phrase “Let’s Go Brandon!” The use of the phrase began with a NASCAR race on October 2 in Talladega. Driver Brandon Brown was being interviewed by a reporter who suggested that the crowd was chanting “Let’s Go, Brandon!” That was not at all what the crowd was saying, though; turns out the actual words were far less encouraging. In fact, they weren’t even polite. The crowd was actually saying, “F— Joe Biden!” I did not take long for “Let’s Go Brandon!” to catch on as a way of expressing dislike for President Biden.
The only good thing about it is that it does not contain the actual profanity the crowd was chanting, which, sadly, I have seen displayed numerous times in public, often on flags using the same design as pro-Trump banners but with the other words. It was not that long ago that publicly displaying the “f-word” would have been considered extreme and unacceptable. Now people are literally flying it from their front porches.
In an AP article, Colleen Long called “Let’s Go Brandon” the “G-rated substitute for its more vulgar three-word cousin.” The problem is that despite it G-rating, everyone now knows exactly what the phrase means. And precisely because it is, in and of itself, G-rated, people who would never utter what the NASCAR crowd was chanting or fly profanity from their porch are perfectly comfortable displaying and/or being seen with the child-friendly alternative. You can find it on flags, stickers, t-shirts…even “ugly sweaters.”
In the same AP article quoted above, Long pointed out that Republican Rep. Bill Posey of Florida ended a speech on the House floor with the phrase, South Carolina Republican Jeff Duncan wore a “Let’s Go Brandon” face mask at the Capitol, Republican Senator Ted Cruz of Texas posed with a “Let’s Go Brandon” sign at a World Series game and the press secretary for Senate Majority Leader Mitch McConnell of Kentucky retweeted a picture of a sign in Virginia bearing the phrase. Colorado Rep. Lauren Boebert famously wore a dress with the phrase on the back to meet with former president Donald Trump. (The dress was also a dig at Rep. Alexandria Ocasio-Cortez’s “Tax the Rich” dress worn to the Met Gala). When Boebert tweeted a picture of herself in the dress standing next to Donald Trump giving a thumbs up, she headlined it with “It’s not a phrase, it’s a movement! #LGB”
In late October a pilot for Southwest Airlines concluded his address to passengers with the phrase. Just a few days ago I saw someone wearing a t-shirt emblazoned with the phrase at a Christian school. Jim Innocenzi, a founding partner at Sandler-Innocenzi and a prominent figure in political advertising for the GOP called the phrase “hilarious” and said, “Unless you are living in a cave, you know what it means. But it’s done with a little bit of a class. And if you object and are taking it too seriously, go away.”
Well, I have news for Mr. Innocenzi: G-rated or not, that’s not okay. There is no way to say “f—” with class. Not even a little bit. To normalize such a profane insult toward any elected official, much less the President of the United States, is not appropriate or respectful. While it is true that we enjoy freedom of speech in the United States, and the ability to express our displeasure with and dislike of our elected officials should not be taken for granted or infringed, there is still something to be said for basic decency.
Just yesterday Amanda Prestigiacomo published an article on The Daily Wire in which Mike Rowe of Dirty Jobs fame defended the use of the term. Rowe, according to Prestigiacomo, said that the phrase is “a refutation of not only the president, but of the media and the Left’s effort to change the meaning of language.” I am afraid Mr. Rowe is being too clever by half. While he is correct that much of the American public is growing tired of the mainstream media telling them “that what they’re seeing and what they’re hearing is not what they’re seeing and hearing,” he is bestowing upon “Let’s Go Brandon” far more intention and meaning that it really has. There is zero evidence that Kelli Stavast, the NBC Sports reporter who claimed in the interview with Brandon Brown that the crowd was chanting “Let’s Go Brandon!” did so with any intentionality. Bruce Haring, on Deadline, said that Stavast “is either hard of hearing, or a very, very quick thinker.” There were immediate claims that Stavast was gaslighting the public and that the media would do anything to protect Joe Biden. I suspect, however, that Stavast is not hard of hearing and that her misinterpretation of the chant was not quick thinking on her part. She was trying to conduct an interview. No doubt she had an earpiece in, was trying to hear Brown, and was trying to do all of this with a noisy crowd screaming to be heard on the live camera. Stavast certainly could not repeat what the crowd was actually chanting, and it is entirely plausible that she thought the crowd was showing support for Brown’s first victory. It strains credulity to think that Stavast was intentionally, as Rowe suggests, trying to tell the television audience that they were not hearing what they eventually realized they were hearing.
Later in the Daily Wire piece, Rowe is quoted as saying, “I don’t think people who yell it are necessarily enemies of the president. I think they’re enemies of being told that what they’re seeing and what they’re hearing isn’t real, that it’s somehow a figment of their imagination. People are sick of that.”
I am sure they are. But let’s not try to excuse a euphemistic means of saying “F— Joe Biden” by instilling in the phrase something that it is not. To do so is to do exactly what Rowe claims people are sick of—to claim that what people are saying is not what they are really saying. Stavast was in an of-the-moment situation with conditions that were not ideal. Rowe is speaking a couple of months after the fact, having had plenty of time to think through what he is saying. If anyone is gaslighting here, it is Rowe. He makes valid points that are worthy of attention. Unfortunately, he detracts from a valid and important discussion that needs to be had by claiming that those legitimate concerns are encapsulated in “Let’s Go Brandon.”
So, I have a better idea… Go away, Brandon. Please.
To the astonishment of…no one…Mitch McConnell announced within hours of the death of Justice Ruth Bader Ginsburg that a nomination from President Trump to fill the seat “will receive a vote on the floor of the United States Senate.” No surprise here. The Republicans wouldn’t consider an Obama nomination eight months before the 2016 election, but they’re determined to get Trump’s a month and a half before the 2020 election. Shameful. Embarrassing. Partisan nonsense. No one should be proud of this. Mitch McConnell needs to go.
It is not just Mitch McConnell, though. John Thune, the Majority Whip, echoed his leader, saying, “As Leader McConnell has said, President Trump’s Supreme Court nominee will receive a vote on the floor of the U.S. Senate.” Not wanting to be left out, Texas senators Ted Cruz and John Cornyn promptly jumped on board Mitch McConnell’s hypocrisy train. According to the Texas Tribune, Cruz announced on Friday that an “urgent confirmation” was needed. In an opinion piece for FOX News on Sunday, Cruz insisted that Trump “must nominate a successor next week and…the Senate must confirm that successor before Election Day.” His reasoning? It is why the American people elected President Trump and a Republican Senate, there is historical precedent, and, given the possibility of a contested election in November, America cannot be left with an eight-member Supreme Court.
A few thoughts here…
First, using George Washington’s election-year nominations as an example doesn’t even really count. His two nominations in 1796 were both confirmed the very next day. John Adams and Thomas Jefferson both made election year appointments too, and their nominations were confirmed within a week. But politics have changed so drastically since then that those examples cannot really be considered fairly.
In an article published last month in the National Review, Dan McLaughlin made the same point, insisting both that “History supports Republicans filling the seat,” and that doing so “would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016.” Really? Let’s see…
McLaughlin makes the same point that Cruz did, citing “twenty-nine times in history” when there has been an election year or lame duck session appointment. He names Washington, Adams and Jefferson. Then he mentions Abraham Lincoln. Lincoln nominated Salmon Chase as Chief Justice, to replace Roger Taney, on December 6, 1864. Four things about this appointment are noteworthy. First, it is a real historical travesty that Roger Taney was ever on the Supreme Court, given his decision in the Dred Scott case. Second, Chase was confirmed the same day that Lincoln nominated him, beating even the quick confirmation that Washington received for his nominees. Third, as I mentioned, Lincoln appointed Chase on December 6. The election took place in November, and Lincoln won. Given that as far as anyone knew at that time Lincoln would be president for another four years, any delay would have been pointless. Fourth, however, and perhaps most importantly for this discussion, Taney died on October 12, 1864—four days shy of one month before the election. But Lincoln did not appoint Chase until two days shy of one month after the election. If Cruz, McLaughlin and Company want to use Lincoln as a precedent, it is not one in their favor.
McLaughlin also points out Ulysses S. Grant as an example. But, like Lincoln, Grant appointed Ward Hunt to the Supreme Court during an election year, but after the election—he appointed him on December 3; it was after Grant had already won re-election; and Grant appointed Hunt to replace Samuel Nelson, who retired from the Supreme Court on November 28, 1872, twenty-three days after the election—meaning that there was no vacancy prior to the election, and the appointment was not during a lame duck session.
Taft’s nomination was in February of the election year. Wilson’s were in January and July of the election year. Hoover’s was in February of the election year. FDR’s was in January of the election year. These would have been terrific precedents in support of Barack Obama’s nomination of Merrick Garland in 2016, but they do not do much to help McConnell and friends in this instance.
Oddly, McLaughlin claims “Dwight Eisenhower did it” but he didn’t. Eisenhower made appointments in 1955 and in 1957, but not in 1956, which was the election year.
LBJ nominated two in June of an election year and both were withdrawn–one due to a filibuster of the nomination to move Abe Fortas to Chief Justice, and the other because Homer Thornberry had been nominated for the Associate Justice position Fortas would have been vacating. Ronald Reagan nominated Anthony Kennedy one year before the 1988 election, but he was confirmed in February of the election year–by a Democratically-controlled Senate. (And any true conservative now wishes that the Democrats would have declined!)
Second, the Republicans put themselves in the position they are now in. President Obama nominated Merrick Garland in March 2016. That means Obama still had 20% of his term remaining. But the Republicans refused to even consider the nomination; they wouldn’t even allow it to come to a vote. Even if Trump were to make a nomination tomorrow, he has only about 7% of the current term remaining. Outside of Washington, Adams and Jefferson, there has never been a nomination made later than July of a presidential election year and before the election, with one exception. That exception was Millard Filmore’s nomination of Edward Bradford on August 16, 1852—and there was no action taken by the Senate. So, Cruz’s appeal to historical precedent falls woefully flat. Even John Tyler, who nominated three men a total of five times in the first six months of 1844 quit in June and did not act again until after the election, when he tried twice more in December.
The bottom line is that if Mitch McConnell and the Senate Republicans would have allowed the Garland nomination to proceed in 2016 this would be a completely different situation. But they did not, and now they find themselves faced with waiting or becoming guilty of obscene hypocrisy…and I think we all know which they are going to choose.
President Trump should absolutely make the nomination. Indeed, doing so could even help the Republicans in the November election, and he has every right to do so. But the Senate should not act on it. In fact, acting on it could well come back to bite McConnell and friends. As Russell Berman wrote last Friday in The Atlantic, “A number of Republican senators have already said they’d want to fill a Supreme Court vacancy while Trump is still in office. But McConnell would need the votes of 50 out of his 53 members to allow Vice President Mike Pence to break a tie (assuming all Democrats voted against Trump’s nominee), and the numbers may not be on his side.” In reality, Berman was being kind. Republican senators Susan Collins and Lisa Murkowski are already on record opposing a confirmation at this stage, and just about everyone knows that Mitt Romney is not going to support Donald Trump on this one.
Ironically, McLaughlin states in his article, “Norms are crucially important. If parties cannot trust that the other side will abide by established norms of conduct, politics devolves rapidly into a blood sport that quickly loses the capacity to resolve disagreements peaceably within the system.” He’s right, of course—only he is not right in the way that he thinks he is. He thinks history is on his side, and that that Senate should act to confirm. As we have seen, though, he is wrong about that. The norm of conduct that the Republicans established in 2016 is simple—no confirmation during an election year. No amount of foaming at the mouth or attempting to stretch historical precedent to fit their narrative will change that. The Republicans set the precedent, now they need to follow it. If they do not, they will have only themselves to blame when the tables are turned—which eventually they will be—and when voters express their displeasure—which at least some will.
Additional irony for the fire – since 1981, the only SCOTUS nominee to be appointed and confirmed within the amount of time that is available now before the November election was Ruth Bader Ginsburg.
Image credit: Gage Skidmore, with the conductor cap added by Jason Watson.
I realize that some people considered my post about the unconstitutionality of government restrictions on gatherings to be alarmist. We are in the midst of an unusual situation that calls for unusual measures in order to save lives, after all. Before I go on, let me clarify that at no time did I intend to suggest that all recommendations and guidelines should be ignored or that COVID-19 is a farce. I understand that the virus is real, I understand that there may be need for precautions and even extraordinary steps to be taken. At the same time, please realize that there are real, informed and legitimate differences of opinion on what those steps should be. Even more importantly, please realize that someone—namely, at the moment, me—can simultaneously value life, acknowledge the threat that is COVID-19 and still believe that the Constitution should not be violated. I happen to believe that constitutional protections are there for a reason and need to be protected even when they are most inconvenient.
When I posted Unconstitutional Limitations I actually hoped that my concerns were a bit overwrought…that the restrictions on group gatherings, and thus on religious gatherings, was going to be the extreme end of end of government violations of the Constitution. I hoped that we would make it through COVID-19 and then, as cooler heads prevailed, people would look back and realize that the actions taken during the scare were not okay and could not be permitted to happen again. Sadly, I was wrong.
In the past week, there have been more, and more egregious, examples of government overreach and constitutional violation by state and local governments. President Trump still seems to realize the constitutional limitations on the federal government and has even expressed them in explaining why he is not issuing a national stay-at-home order. Just yesterday, at his White House briefing, CNN’s Jeremy Diamond asked President Trump why he is not following the recommendations of Dr. Fauci and others and issuing such an order. “We have a thing called the Constitution, which I cherish, number one,” was Trump’s response. He did not stop there, though. He continued, regarding the eight governors that have not issued state-wide stay-at-home orders, “Number two, those governors, I know every one of them, they’re doing a great job. They’re being very, very successful with what they’re doing. And, as you know, I want governors to be running things. In some cases, we’ll supersede.” That is called federalism, and that is exactly how the United States is supposed to operate.
My own state’s governor, Kristi Noem, is one of those that has not issued such an order. When asked why, she said, “South Dakota is not New York City. The calls to apply for a one-size-fits-all approach to this problem is herd mentality. It’s not leadership.” She expressed her respect for the Constitution, and then said, “The people themselves are primarily responsible for their safety. They are the ones that are entrusted with expansive freedoms. They’re free to exercise their rights to work, to worship, and to play. Or to even stay at home, or to conduct social distancing.” It is indeed a sad day when it is newsworthy and even controversial for a governor to say that the people have been entrusted with “expansive freedoms” and are responsible for the how the utilize those freedoms.
Last Monday, Rodney Howard-Browne, the pastor of The River at Tampa Bay church, was arrested for “‘intentionally and repeatedly’ defying emergency orders mandating that people maintain social distance and stay at home,” according to the New York Times. The Hillsborough County sheriff announced that he had the arrest warrant and Howard-Browne turned himself in. He was freed less than an hour later after posting bond. The sheriff, Chad Chronister, said this regarding the arrest:
His reckless disregard for human life put hundreds of people in his congregation at risk and thousands of residents who may interact with them this week in danger. Our goal here is not to stop anyone from worshiping, but the safety and well-being of our community must always come first.
As best I can tell from a very cursory exploration of The River at Tampa Bay’s web site, I do not agree with a lot of what they teach and practice. But that doesn’t matter. What matters is that a pastor was arrested for exercising his constitutionally-granted rights to religion and assembly.
The good news is that the Hillsborough County Council recognized the dangerous ground upon which their sheriff had tread and voted on April 2 to reverse its order and recognize churches as essential. The mayor wanted to impose ten-person limits and six-foot distancing requirements on churches by the Council overruled her recommendation. Also, on April 1, Florida governor Ron DeSantis issued Executive Order 20-92, amending 20-91, and declaring religious worship as an “essential activity.” DeSantis said, “I don’t think the government has the authority to close a church. I’m certainly not going to do that.” Governor Greg Abbott issued a similar executive order on March 31, GA 14, which includes “religious services conducted in churches, congregations, and houses of worship” as essential services. According to an article in The Guardian, Delaware, Louisiana, Michigan, Mississippi, New Hampshire, Tennessee and West Virginia have also issued exemptions for religious gatherings and, as mentioned in the previous post, Michigan has exempted them, as well.
Robin Fretwell Wilson, Brian Smith and Tanner Bean authored the essay “Defiant Congregations in a Pandemic: Public Safety Precedes Religious Rights,” which can be found on the web site of the Canopy Forum. “Now is not the time to stand on our rights. It is not the time to pursue contentious religious freedom claims in the courthouse. Instead, it is a time to lead by example, as so many congregations and people of faith have done,” they wrote. I have to disagree. Congregations need to prayerfully and carefully consider whether or not to meet in person, and I am by no means recommending that all churches decide to do so. But it is absolutely the time to stand on our rights. It may not be the best time to file “contentious religious freedom claims in the courthouse” but if it comes to that then yes, such action should be taken. Hopefully, that is not likely to happen. Hillsborough County was facing a lawsuit over its arrest of Howard-Browne, and it chose to back down.
Some leaders, though, may choose to push the matter, and if they do, laying down and allowing our constitutional rights to be trampled is not what anyone should do. On
March 27, New York City mayor Bill de Blasio said of churches and synagogues, “[Law enforcement] will inform them they need to stop the services and disperse. If that does not happen, they will take additional action up to the point of fines and potentially closing the building permanently.” Permanently. Jeremy Dys of First Liberty Institute said, “The American people will tolerate a lot during a time of a national pandemic. They will not tolerate government threats to permanently close Houses of Worship.” Ken Ham, founder and president of Answers in Genesis, tweeted, “It’s a warning for the future when one person claims they have the power to close churches permanently. That’s what we’ve seen in China & Cuba.”
Thankfully, the backlash against de Blasio was swift. Kristen Waggoner, of Alliance Defending Freedom, wrote an editorial for the New York Daily News entitled “Sorry, mayor, you can’t close churches permanently: De Blasio’s wild overreaction to houses of worship that buck social distancing.” News outlets all over the country reported on the threat and most of the stories included the remarks in opposition and even explanation as to why de Blasio could do no such thing.
There are other examples of government overreach this past week, too. They do not relate to religious freedom specifically, but they should be as alarming to anyone who loves the Constitution. Governor Andrew Cuomo of New York said in his April 3 briefing,
I’m going to sign an executive order that says the state can take ventilators and PPE from institutions that don’t need them now and redeploy them to other parts of the state and other hospitals that do need them. Those institutions will either get their ventilator back or they will be reimbursed and paid for their ventilator so they can buy a new ventilator.
The Wall Street Journal was incredibly kind to Cuomo in its report on his briefing, headlining its story, “New York State to Shift Ventilators to Hospitals in Need.” Thankfully, the sub-heading was more accurate, reading, “Gov. Cuomo to sign order allowing state to take unused ventilators, masks from institutions.” Bob Lonsberry, of Syracuse’s 570 WSYR radio station ripped Cuomo’s announcement; his post started this way:
You’ve been triaged, upstate New York.
The governor put the black tag around your neck.
Some will live and some will die and, well, you don’t get to live.
That’s what Andy Cuomo’s decree of Friday means. Your ventilators go to his voters and when you get the COVID, well, good luck to you. If all goes well, your family can have a memorial service in a year or two, after the Chinese sell us the vaccine.
Maybe you think that’s an overreaction, but I imagine that if someone was promising to confiscate the ventilators from your local hospital you would be upset too.
And in Los Angeles, Mayor Eric Garcetti encouraged Angelenos to snitch on anyone violating his Safer at Home order. At his March 31 briefing he said,
If any non-essential businesses continue to operate in violation of the stay at home order, we’re going to act to enforce the safer at home order and ensure their compliance. You know the old expression about snitches. Well, in this case, snitches get rewards.
He later said, “We want to thank you for turning folks in and making sure we are all safe.”
I don’t know what the rewards are, and I don’t want to know. What I do know is, encouraging people to spy on and report their neighbors sounds an awful lot like the U.S.S.R. I simply cannot imagine that that is the United States of America that anyone really wants to live in.
Shredded Constitution photo credit: Shutterstock.
Kristi Noem photo credit: U.S. Department of Agriculture/Public Domain .
We are truly living in strange times. Every day there is more news about COVID-19—and every day the news we receive continues to be conflicted. For every news report shouting how bad things are I can find one that says the opposite. For every report that says things are going to get worse, I can find one that says the worst is over. For every report that says COVID-19 is far worse than the flu and is going to take tens, if not hundreds, of thousands of lives, I can find one that says those estimates are vastly overblown and the mortality rate is about the same as the flu. But I am not going to discuss all of that right now. What I am going to discuss is the ongoing, flagrant violation of the Constitution that is happening all over the United States.
One of my favorite movies is A Few Good Men. My friend Dave and I watched it many times in high school as we imagined our Mock Trial successes leading us to influential (and lucrative) law careers. In that film, Kevin Bacon’s character, the prosecutor, says, “These are the facts of the case. And they are undisputed.” My dreams of a career in law never came to fruition, but I am about to present the facts…and they are undisputed. When I get to the part where I share my opinion I will make that clear.
On Monday, March 23, Ralph Northam, the governor of Virginia, issued Executive Order Number 53 (2020). The very first part of the directive states this:
Effective 11:59 p.m., Tuesday, March 24, 2020 until 11:59 p.m., Thursday, April 23, 2020, all public and private in person gatherings of 10 or more individuals are prohibited.
Northam, when asked if churches could meet, said, “Any time that there’s a gathering of more than 10 people, we would certainly discourage that.” Discourage? That is not what the executive order says. The wording above is explicit: if there are more than ten people present, the gathering is prohibited. There is nowhere in the order that exempts churches or says anything about church services being discouraged. In fact, the end of the executive order says:
Violation of paragraphs 1, 3, 4, and 6 of this Order shall be a Class 1 misdemeanor pursuant to § 44-146.17 of the Code of Virginia.
The ban of public and private gatherings of more than ten individuals is in paragraph one. The order is remain in effect until it is “amended or rescinded by further executive order.” Therefore, Ralph Northam has declared that attending church services, if there are more than ten people present, is a crime.
Northam’s order, by the way, lists “essential retail businesses” that are exempt from the order and are allowed to remain open. Among them are lawn and garden equipment retailers and beer, wine and liquor stores.
Two days later, on March 25, Northam signed another executive order, this one ordering the postponement of elective surgeries due to COVID-19. The order did not, however, apply to abortions; those can continue.
In short, Ralph Northam has made it a crime to attend church but declared that liquor stores are essential businesses and abortion is essential surgery. I lived in Virginia for ten years; I have never been so glad I do not live there now.
Roy Cooper, the governor of North Carolina, issued an executive order in mid-March restricting mass gatherings to less than one hundred people. On March 23 he issued a new order, Executive Order No. 120, restricting such gatherings to less than fifty people (after twenty paragraphs trying to justify his decision that all began with “Whereas”). Four days later, on March 27, he issued Executive Order No. 121, ordering all individuals in the state to stay at home other than for exceptions granted in the order. Wisely, Cooper included travel to and from places of worship as permissible travel, but he later specified that religious gatherings, including funerals, are subject to the limitations on gatherings listed later in the order. What is that limit? Ten people in a single room or space at the same time. Oh, and the provisions of that limitation will be enforced by state and local law enforcement, with violations punishable as a Class 2 misdemeanor.
Eric Holcomb, the governor of Indiana, issued Executive Order 20-08, a Stay at Home order. It states, “All businesses and operations in the State of Indiana, except for Essential Businesses and Operations, are hereby required to cease all activities within the State” except for minimum operations. It bans all public and private gatherings of any number of people outside of a single family home, and any gathering of more than ten people is prohibited unless exempted. Religious gatherings were exempted “provided they adhere to the CDC’s guidance on social gatherings.” Of course, that doesn’t help a whole lot, because the CDC’s guideline says that if there is minimal-to-moderate community transmission, gatherings up to 250 people are okay, but “the cutoff threshold is at the discretion of community leadership.” The CDC’s recommendation to cancel is only applicable if there is “a substantial level of community transmission.” This is the equivalent of a child asking mom for permission to go to a party, mom says, “My answer is no, but ask your father.” Dad then says, “I don’t see a problem with it, but you have to listen to your mom.” So, Eric Holcomb creatively made it a crime to attend church. He can point to the order to say that he didn’t, but in reality, he did. And the order is enforceable by state and local law enforcement.
Governor Tim Walz of Minnesota, issued Executive Order 20-20 in which he ordered that “all persons currently living within the State of Minnesota are ordered to stay at home or in their place of residence except to engage in the Activities and Critical Sector work set forth below.” The only allowance made for religious activities was for “officials, workers, and leaders in houses of worship and other places of religious expression or fellowship, wherever their services may be needed. This category also includes workers necessary to plan, record, and distribute online or broadcast content to community members.” In his order, Walz urged Minnesotans to “voluntarily comply” but added that “a person who willfully violates this Executive Order is guilty of a misdemeanor and upon conviction must be punished by a fine not to exceed $1,000 or by imprisonment for not more than 90 days.”
I could keep going, because it is certainly not just these four governors that have signed executive orders like these. If I go through every example, though, most readers will lose interest and miss the point I am endeavoring to make. To make that point, I am going to focus in particular on the orders signed by Tim Walz in Minnesota and Ralph Northam in Virginia. But before I do, it is necessary to look first at the United States Constitution.
The First Amendment reads,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I am sure you noticed that there is no exception given. There is no caveat. No asterisk. No escape clause. Congress cannot make a law that prohibits the free exercise of religion or the peaceable assembly of “the people.” You can read through Articles I and II of the Constitution if you would like, but you will find nothing there giving either the Congress or the President any authority to violate the First Amendment. There is, therefore, no constitutional authority for the federal government to restrict peaceable assemblies or to prohibit the free exercise of religion.
More than any of the other executive orders cited here, Tim Walz relies heavily on the recommendations and actions of the federal government to justify his order. “This Executive Order is consistent with a growing nationwide effort to contain the spread of COVID-19,” the first full paragraph on page two begins. He cites President Donald Trump’s March 16 guidelines to limit gatherings to not more than ten people and points out that as of March 24, “twenty-four states representing almost 200 million Americans have issued orders or public health directives closing non-essential businesses or limiting residents from participating in non-essential activities.” You have to give Walz credit for his efforts to legitimize his order, but there is a significant problem. Neither President Trump nor any of those twenty-two states have the authority to do what Walz is claiming validates his actions. To say that because twenty-two states have issued similar orders is about as valuable as telling a police officer who has pulled you over for speeding that everyone else is doing it. Neither popularity nor commonality equal legality.
Walz references President Trump and he even correctly states that the president issued guidelines. It is true that those guidelines say “avoid social gatherings in groups of more than 10 people. But a guideline is not a law. A guideline cannot carry a legal penalty. A guideline is, by definition, “a general rule, principle, or piece of advice.” Synonyms for “guideline” include recommendation, suggestion and advice. Regardless of what you think of President Trump, he has, thus far, recognized that he cannot violate the Constitution—even for what some might claim is the best interest of the country.
Walz’s order says that “practicing social distancing at all times” is “required to mitigate the community spread of COVID-19 in Minnesota and nationwide.” The italics are mine, but those are important words, because they leave no wiggle room. There is no exception to “all times” and no exception to “required.”
Walz also cites the Department of Homeland Security’s Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response, issued on March 23. That’s all well and good, but if you check that guidance you will find that it says, in bold print, “This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard.” Why is it only advisory in nature? Because the Department of Homeland Security is a federal agency and no federal agency can violate constitutional rights. Furthermore, this guidance is designed to prevent state and local governments from shutting down work that is absolutely essential for national security and other necessary infrastructure.
Walz’s order cites Minnesota Statutes 2019, section 12.21, subdivision 1, as giving him the authority to “control the state’s emergency management as well as carry out the provisions of Minnesota’s Emergency Management Act.” Here’s the rub, though: that statute only gives the governor such authority when there is “a national security emergency,” when there is “an energy supply emergency,” or “during the existence of an emergency resulting from an incident at a nuclear power plant that poses a radiological or other health hazard.” None of those apply to the COVID-19 situation.
Minnesota Statutes 2019, section 12.21, subdivision 2 allows the governor to declare a peacetime emergency. The only allowance for such a declaration that fits with COVID-19 is if the virus is considered an “act of nature.” That could be debated, but let’s give him the benefit of the doubt. The emergency also has to be one that “endangers life and property and local government resources are inadequate to handle the situation.” Well, the virus does endanger life, but are the local resources inadequate? That could be debated too, since the actual numbers are no where near the projections, but again, let’s given him the benefit of the doubt.
This is where it becomes necessary to look at the Minnesota Constitution. It includes a right to free exercise of religion but, interestingly, it also includes a caveat. Here is how Section 16 reads:
The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.
Here is why it is interesting. First, it contradicts itself. Notice that it says that the right to worship God “shall never be infringed” but then later says the this right “shall not be so construed as to excuse acts… inconsistent with the peace or safety of the state.” So, in Minnesota, your freedom of religion cannot never be violated…except when it can. Second, it violates the First Amendment of the Constitution of the United States. Or does it? The Tenth Amendment is an important one, especially for those who favor a limited federal government. It says,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
We have already seen that the Congress does not have the power to infringe upon the free practice of religion; the First Amendment says that in no uncertain terms. But unless the Constitution prohibits states from doing so, does the Tenth Amendment mean that states can infringe upon that right? Yes, that is what it would mean…but for the fact that Constitution does prohibit states from doing so. Specifically, in the Fourteenth Amendment. It reads, in part:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Legal scholars call this the incorporation doctrine, and acknowledge that prior to its ratification in July 1868, the Bill of Rights only applied to the federal government. In the 1934 case Hamilton v. Regents of the University of California, the Supreme Court’s decision states, in part, “There need be no attempt to enumerate or comprehensively to define what is included in the ‘liberty’ protected by the due process clause.” In his concurring opinion for that case, Justice Cardozo said, “I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states.”
In the 1940 case Cantwell v. Connecticut, the Supreme Court’s ruling stated, “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.” The decision also states,
The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.
Incompetent here does not mean that the state legislatures do not know how to; it means what that word literally means—that they are not able to. And they are not able to because the Constitution prohibits it. The decision goes to say,
Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. … it safeguards the free exercise of the chosen form of religion.
The Cantwell decision also states that while the freedom to believe is absolute, the freedom to act is not. “Conduct remains subject to regulation for the protection of society,” the decision says. If there is any justification for the government—state or federal—to infringe upon the free exercise of religion, this is where such exceptions would be found. The decision, then, is vital to understanding this entire situation.
Before looking at what the decision says, it is worth noting the details of the case. Newton Cantwell and his two sons, who were Jehovah’s Witnesses, were arrested and charged with violating Connecticut law. The three men had been going house to house, peddling books and tracts and soliciting financial donations. One of the books, entitled Enemies, attacked the Catholic faith—and 90% of the residents in the neighborhood where the Cantwells were arrested were Catholic. The statute the Cantwells were accused of violating read,
No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council.
The Cantwells claimed that their actions were not within the statute because they were only distributing printed material. However, the trial court found that,
in addition to the sale of the books and the distribution of the pamphlets, the defendants were also soliciting contributions or donations of money for an alleged religious cause, and thereby came within the purview of the statute.
That court claimed that it was not the free exercise of their religion that prompted the charges against the Cantwells, but their solicitation of funds. The court also held that the statute was legal, since it was “an effort by the State to protect the public against fraud and imposition in the solicitation of funds for what purported to be religious, charitable, or philanthropic causes.”
Now, with that understanding, what the Supreme Court say were justifiable exemptions to the absolute right of religious freedom?
The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate the terms of the guarantee.
If this were the extent of the ruling, it would leave orders banning religious gatherings on tenuous ground. Protecting the health of the public may be a “permissible end,” and since livestreaming and other means of preaching or disseminating religious views are still available, one could argue that banning in-person church gatherings is permitted per the Cantwell decision. That ignores the caveat, though, that such regulations must not “unduly…infringe upon the protected freedom.” One could argue that prohibiting the in-person gathering of religious groups does unduly infringe—especially for adherents to the Bible, which includes the instruction not to give up meeting together (Hebrews 10:25).
This was not, however, the extent of the ruling. It continued,
It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment.
Most of this is not applicable to the current situation, because I am not discussing solicitation or meeting occurring on public streets. The permission given here for “other respects” is confined to safeguarding the “peace, good order, and comfort of the community.” It would have to be successfully argued, then, that prohibiting religious gatherings is a justifiable prohibition for the government to enact and enforce in order to safeguard those things. Church gatherings ted to prompt peace, so that’s out. Good order and comfort could, arguably, apply to the COVID-19 situation, but again, the successful argument that violating the First Amendment is justified has not been made by anyone that I have seen.
The decision later asserts,
Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury.
But the “injury” here is not physical injury or physical health. It refers to the injury of fraud. That is made clear in the decision. And later, the decision states that part of Cantwell’s conviction is to be set aside because the state’s interests did not outweigh Cantwell’s. Specifically,
The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State’s interest … has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact.
So, here’s the conclusion of the matter:
When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.
What does all that mean? For the purposes of this discussion, it means that states can only ban religious gatherings of more than ten people if they can prove that allowing such gatherings poses an immediate threat to public safety. To ban them only “under the guise of conserving desirable conditions” is not permissible. It is, in short, unconstitutional. To wit, the Cantwell decision continues,
[T]he people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
The essential characteristic of these liberties is that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.
I realize that this is getting quite lengthy, but I want to also point out DeJonge v. Oregon, a 1937 case in which the Supreme Court ruled that the state cannot violate the freedom of assembly even if the what is said at such a meeting violates the freedom of speech by inciting violence.
If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.
The decision was, then, that abuses themselves could be dealt with by the state, but the freedom of assembly could not be curtailed. For COVID-19, then, this means that if a church were to engage in activity that would knowingly cause or contribute to the spread of the virus, there may be consequences for that—but that fact that a religious gathering might contribute to the spread of the virus cannot be used to violate the freedom of assembly. Government, put simply, cannot punish people, or curtail their rights, for something that they might do.
Now, what about Ralph Northam’s executive order?
Well, Northam, too, tries to manipulate the CDC recommendations to serve his own ends. His order reads, in part,
Guidance on School Closures from the Centers for Disease Control and Prevention indicates that medium term closures (8-20 weeks) have greater impact on minimizing the spread of COVID-19 than shorter term closures (2-8 weeks).
That is true, but only partially true. First of all, the CDC defines medium-term closure as 4 weeks. A closure of 8-20 weeks is classified as long-term. The CDC’s guidelines for school closure say that closures of 8-20 weeks have a greater impact on stemming spread based on “[m]odeling data for other respiratory infections where children have higher disease impacts….” No doctor anywhere has suggested that children have a high disease impact with COVID-19. Just the opposite, in fact.
Furthermore, the CDC’s guidelines say that long-term closure is likely to increase the amount of student congregating outside of school, which is also problematic, since such gatherings…
Will increase risk to older adults or those with co-morbidities, as almost 40% of US grandparents provide childcare for grandchildren. School closures will likely increase this percentage.
Plenty of other health care organizations and officials have echoed the probability that students are safer going to school than staying home. But I am getting sidetracked, as my primary focus here is the lack of governmental authority to prohibit religious gatherings.
Northam cites Article V, Section 7 of the Constitution of Virginia as the authority for his order, but if you read Article V, Section 7 you will find absolutely nothing even remotely related to Northam’s order. Even a creative reading of the section would leave you stumped trying make a connection. But Northam also cites § 44-146.17 of the Code of Virginia as authority, so what about that?
Well, at least this one has some semblance of relevance, as it deals with emergencies and disasters. And it does seem, at first, to allow Northam to do what he has done, as it reads, in part,
Executive orders, to include those declaring a state of emergency and directing evacuation, shall have the force and effect of law and the violation thereof shall be punishable as a Class 1 misdemeanor in every case where the executive order declares that its violation shall have such force and effect.
Such executive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth.
But what else does Virginia law say? The Code of Virginia, in § 32.1-48.05, says,
Upon a determination by the State Health Commissioner that exceptional circumstances exist relating to one or more persons in the Commonwealth who are known to have been exposed to or infected with or reasonably suspected to have been exposed to or infected with a communicable disease of public health threat…the State Health Commissioner may invoke the provisions of this article relating to quarantine and isolation.
But how are quarantine and isolation defined? One need only look to § 32.1-48.06 to find out:
“Isolation” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are infected with or are reasonably suspected to be infected with a communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other uninfected and unexposed individuals.
“Quarantine” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are present within an affected area, as defined herein, or who are known to have been exposed or may reasonably be suspected to have been exposed to a communicable disease of public health threat and who do not yet show signs or symptoms of infection with the communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other unexposed and uninfected individuals.
Notice that isolation requires infection, or reasonable suspicion of infection, and quarantine requires known or reasonably suspected exposure to the communicable disease or location within an affected area. Northam, like so many others, is declaring his entire state to be an affected area. The code, however, clearly indicates the existence of unexposed and uninfected individuals. The next part of the code says, “Any quarantined persons shall be confined separately from any isolated persons, to the maximum extent practicable.” That does not seem to allow for state-wide quarantining. Furthermore, it says, “Any quarantined or isolated persons shall be immediately released from quarantine or isolation upon a determination by the State Health Commissioner that such quarantined or isolated persons pose no risk of transmitting the communicable disease of public health threat to other persons.” That would mean that even if state-wide quarantining is permissible, the state would be required to test every person in the state in order to determine whether or not they pose a risk of transmitting the disease.
The code goes further. Specifically,
In the case of any person who has been quarantined or isolated in a location other than a medical care facility, the State Health Commissioner shall authorize health care professionals to enter the premises of quarantine or isolation. No person, other than such authorized health care professionals, shall enter the premises of quarantine or isolation, unless authorized by the State Health Commissioner.
If you this section is applied literally, if the entire state is quarantined, no one other than a health care professional is allowed to enter the state, or any area of the state, unless the State Health Commissioner gives authorization for them to do so. I am guessing that the commissioner has not issued 8.5 million such authorizations.
The code also says that anyone in Virginia subject to a quarantine order can appeal it by filing a petition for an appeal and serving it to the State Health Commissioner or his legal representative. Any such appeal is to be heard within 48 hours. Of course, precisely because he does not have the authority to order a state-wide quarantine or isolation, and he no doubt is not interested in dealing with appeals, Northam has not used the words “isolation” or “quarantine” in his executive order.
The Virginia Code includes a great deal about isolation and quarantine. It even includes, in § 32.1-48.017, the authority for the State Health Commissioner to require the use of a public or private building to implement orders of quarantine or isolation. What it does not anywhere include is the authority of the governor or the State Health Commissioner to prohibit the use of public or private buildings for any reason, and certainly not for religious gatherings.
Virginia’s constitution includes a Bill of Rights, and Section 16 deals with religion. That section includes this glorious run-on sentence:
That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion , according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities.
By prohibiting public and private gatherings of more than ten people, and not making an exception for religious gatherings, Ralph Northam is violating the Constitution of the Commonwealth of Virginia.
I am by no means the first person to address the questionable constitutionality of so many executive orders stemming from COVID-19, specifically when it comes to banning religious gatherings. But many of the others dealing with this issue are concluding that the states do have the right to ban them. Damon Root, writing for Reason, for example, says that “the Supreme Court has also said that religious liberty does not trump all forms of government regulation, even when the regulation clearly impacts a specific religious practice.” In support of that assertion he cites Justice Scalia’s decision in Employment Division v. Smith (1990). In that decision, Scalia said the use of peyote as part of a Native American church ceremony was not protected in so far as that when its use resulted in a failed drug test the state could still withhold public benefits from the individuals who failed the tests. In his decision, Scalia wrote, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” That is exactly the point, though; the state is not free to regulate religion or the free exercise of religion. Root suggests that because the bans on mass gatherings apply across the board and not only to religious gatherings, “they would therefore likely pass muster under Employment Division v. Smith.” I disagree wholeheartedly, and I feel rather confident that Justice Scalia would too if he were still here for us to ask him.
David French, writing for The Dispatch, says that the “underlying statutory structure is complex and varied at the federal, state, and local levels, but the relevant constitutional principles are relatively simple, they make sense, and they’ve been understood and applied since the nation’s founding to safeguard public health.” States, French says,
possess a general police power—an inherent authority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation.
Ahem. I believe we have clearly established that there is a specific limitation. It is in the First Amendment, extended to the states in the Fourteenth Amendment, and it exists in state constitutions.
French also asserts that “the Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact ‘quarantine laws’ and ‘health laws of every description.’” That is true, but is taken out of context. That 1824 case dealt with the regulation of navigation and commerce and the differentiation of state and federal powers when it comes to such regulation. “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress,” the decision says. The entire focus of the case deals with competing steamboat licenses possessed by Ogden and
Gibbons, one granted by New York and the other granted by Congress. The case is important both for confirming congressional authority over interstate commerce and for confirming that federal law trumps state law. But if we could get Chief Justice John Marshall’s opinion I am quite confident that he would say that nothing in his opinion was intended to relate in any way to the COVID-19 fiasco.
French also quotes Jay Cost of the American Enterprise Institute, who tweeted that “a state legislature has ‘the sovereign power to make you go home if you are a menace to “public health.”’” I agree with that, but it would necessitate confirming that someone is indeed a menace to public health. French, too, quotes Employment Division v. Smith and says that the executive orders would not violate the neutral law of general applicability since they limit gatherings not only in churches but also in restaurants, bars, theaters, etc. In fact, French goes so far as to state that
Even laws that directly curtail First Amendment freedoms will be upheld if they can pass a legal test called “strict scrutiny,” which requires the government to demonstrate that its actions advance a compelling governmental interest and are enacted through the least restrictive legal means.
This is where differences of opinion and legal interpretation come into play. French says churches get no special treatment or consideration because the ban on gatherings is neutral. I say the ban on gatherings is itself a violation, but that churches are entitled to special consideration because the freedom of religion is so sacrosanct. French says the orders would pass any test questioning whether or not the least restrictive means were utilized. I disagree. According to French,
At present, that test would be easy to pass. There is unquestionably a compelling governmental interest in protecting the public from COVID-19, a communicable disease far deadlier than the flu. Because it is so easily transmitted through person-to-person contact, it’s easy to argue that even broad bans on public gatherings are among the least restrictive means of advancing the government’s interest.
Again, I disagree. To say that such an argument could be made so easily is to ignore the fact that some states, and other countries, have not implemented such draconian measures, to say nothing of the fact that they are not even consistent with the recommendations of the CDC.
John Inazu, a professor of law and religion at Washington University, wrote an article on this subject in The Atlantic. In it, he writes,
Let’s assume for the sake of argument that a church challenging a shutdown order would receive the highest level of legal protection, a test referred to by courts as “strict scrutiny.” Under this test, the government would need to articulate a compelling interest, and its directive would need to be narrowly tailored and executed in the least restrictive means toward accomplishing its interest. That’s a very high standard, and one that is not usually satisfied. But the government is likely to meet it here. The widespread protection of human life is clearly a compelling government interest, and in the specific circumstances of this crisis, given what we know now of the virus, a shutdown order, especially one aimed at gatherings over a certain size, is both narrowly tailored and the least restrictive means.
You will not be surprised to learn that I disagree. First, a shutdown order prohibiting gatherings over ten people is not narrowly tailored. Second, if the protection of human life is a “clearly a compelling government interest” that justifies shut down orders, then any and every state government should be allowed to shut down abortion providers permanently. Instead, we have Ralph Northam calling them essential. The Atlantic tends to be incredibly liberal, but Inazu’s article is thoughtful and reasonable. I just do not agree with his conclusion.
I do not think that the ban on religious gatherings is the only unconstitutional thing happening right now, but I have chosen to keep that my focus here. Churches should absolutely consider not having in-person services during this time, and churches should consider guidelines from government and health professionals. But the government cannot force churches not to meet. If we make exceptions now, for this crisis, we will putting ourselves into a precarious position from which we may never recover.
Gretchen Whitmer, the governor of Michigan, issued Executive Order 2020-21, instituting a “Temporary requirement to suspend activities that are not necessary to sustain or protect life.” Part of that order stated that, outside of exceptions given, “all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.” It is effective from March 24 to April 13 and “a willful violation of this order is a misdemeanor.” However, her order includes an exception:
Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 14.
In an appearance today on FOX News Sunday, Gov. Whitmer said, “That’s an area we don’t have the ability to directly enforce or control.” Michigan’s Speaker of the House, Lee Chatfield, said on Facebook,
People have a God-given right to assemble and worship, and that right is secured by both the United States and Michigan Constitution. While I do not think that that right can be taken away by an Executive Order, I believe that as Christians we also have a duty to love our fellow man and play our role within society. My recommendation is to find ways that you can abide within the order to the best of your ability.
Whitmer and Chatfield have it right. Michigan is not the only state that has it right, but there are far more that do not than there are that do. If you live in the United States, check carefully the orders being issued by your governor. I am no fan of Andrew Cuomo, governor of New York, but I do admire him for saying, on March 26, regarding the shut down in New York,
If you rethought that or had time to analyze that public health strategy, I don’t know that you would say quarantine everyone. I don’t even know that that was the best public health policy. Young people then quarantined with older people was probably not the best public health strategy because the younger people could have been exposing the older people to an infection.
That’s an admission we seldom hear from elected officials. The COVID-19 virus is real. Common sense, appropriate precautions should be taken.
These decrees — issued by those who have no legal authority to issue them, enforced by cops who hate what they are being made to do, destructive of the freedoms that our forbearers shed oceans of blood to preserve and crushing economic prosperity by violating the laws of supply and demand — should all be rejected by an outraged populace, and challenged in court.
You’ve no doubt heard the old proverb that politics makes strange bedfellows. Never have I experienced the reality of that on a personal level more than I have over the past couple of months, thanks specifically to the impeachment of Donald Trump.
Back in December, Mark Galli, who was the editor in chief of Christianity Today, wrote an editorial advocating for the impeachment of President Trump. I do not disagree with what Mark Galli said about Trump as a person, but being immature and nasty on Twitter is not an impeachable offense. Galli’s assertion that the “facts are unambiguous” about Trump’s phone call with Ukraine shows his lack of political understanding and his fervent desire for Trump to go. Sadly, he failed to realize that using impeachment to remove Trump because you don’t like him is just as wrong for evangelicals as it is for Democrats.
Shortly thereafter, Timothy Dalrymple, CT’s president, wrote to effectively defend Galli’s editorial. Dalrymple made some valid points, but he politicizes the term “evangelical.” What Dalrymple fails to acknowledge, and what was a huge problem with Galli’s editorial, is that if those who dislike Trump’s character and personal baggage–and I count myself in that group–allow that to become justification for impeachment, an incredibly dangerous precedent will be set. Impeachment has to be reserved for that for which it was intended or we risk seriously weakening our form of government. Does Trump have flaws? Absolutely. Should we jump on board the silly allegations from House Democrats to remove him? Absolutely not. The ends do not justify the means.
That whole situation left me, in the eyes of many anyway, defending President Trump, which is not something I have been inclined to do. He has done some wonderful things as president, including recognizing Jerusalem as the capital of Israel, appointing pro-life justices to the Supreme Court, defending prayer in schools, attending the March for Life Rally, etc. But he has also demonstrated immaturity, lack of tact and badgering/belittling behavior toward his opponents. In short, he has usually been anything but presidential. For those reasons, I cannot say that I like President Trump. It is almost a reversal of what the situation was like when Ronald Reagan was president. Many people who did not agree with Reagan politically liked him personally. Now, I agree with Trump politically quite often, but I cannot stand him personally.
Last week my proverbial bedfellow changed when I asserted my respect for Mitt Romney’s decision to vote to convict President Trump on one charge of the impeachment. I said then, and I say now, I do not agree with his conclusion, but after listening to Mitt Romney’s interview with Chris Wallace I do respect his decision to vote his conscience. Is that not, after all, exactly what we expect our elected officials to do?
Well, that position met with some opposition among my own friends but it met with far more opposition among Republicans and conservatives around the nation. One friend insisted to me that conscience was not what senators were to use to inform their vote; instead, they were to rely on the Constitution and on the facts that were presented. But I disagree; the two are not separate. Obviously, Mr. Romney felt like the actions of Mr. Trump were consistent with the constitutional threshold for impeachment. He said as much in the interview. Accordingly, he was voting his conscience and the Constitution by voting guilty on one charge. Article II of the Constitution specifically says “high crimes and misdemeanors.” Romney thought Trump’s actions rose to that level. He interpreted the “facts” as rising to the level of impeachment and thus, based on those facts, he believed guilty was the right vote. His conscience dictated that he vote accordingly–according, in other words, to his understanding and interpretation of the facts. He interpreted the Constitution strictly and that is precisely why he voted the way that he did–he believed that an impeachable offense had occurred, based on the facts and evidence he had received.
So, whether we agree with him or not–and as I said, I don’t–Romney’s conscience dictated that he do what he thought was consistent with his oath. Romney heard the facts that were presented, and in his interpretation, they met the threshold for impeachment. He then voted what he thought the facts warranted–guilty on one charge, not guilty on the other. He did what he thought was right, not what he knew his party wanted him to do. And that, by the way, is constitutional. He was faithfully executing his responsibility, just as he swore he would do. The fact that I, or seemingly most any other Republican, did not agree with his interpretation of the facts does not mean that he was wrong. (To throw another strange proverbial bedfellow into the mix, for these same reasons, I also respect Tulsi Gabbard’s earlier decision to vote “present”).
No “high crimes” are found in the Constitution. Article II, Section 4 says, “Treason, Bribery, or other high Crimes and Misdemeanors” (emphasis added). Obviously, then, impeachment can occur for offenses other than treason and bribery, but what those other offenses are is no spelled out. Abuse of power would certainly be one of them. If I thought Trump had abused his power then I might even agree with Romney. Based on the testimony I heard, I do not think he did, so I disagree with Romney. But I still respect his willingness to vote what he thought was right, knowing full well—as he was reminded by Chris Wallace—that he would face the full wrath of Donald Trump and an ongoing cold shoulder from his party. In short, there was no good reason, politically, for Mitt Romney to vote the way that he did. He knew that President Trump was not going to be convicted because there was no way there were going to be enough votes to meet the required two-thirds supermajority. So while others have chosen to attribute his vote to his personal animosity for Donald Trump, I am choosing to take Mitt Romney at his word. I cannot fathom any other reason why he would take the political risk he took to vote that way. And those consequences came swift and heavy. One person who had the audacity to say “Good for Romney” in response to a post on the Huck’s Army Facebook page stating that Romney was going to vote to convict, and asking for comments, received an immediate response from another individual saying “You are a jerk.” Really? Having a difference of opinion on Romney’s actions from the expected condemnation makes him a jerk? Why? Plenty of others called Romney pathetic, a disgrace, a traitor, a turncoat, a snake, a moron, a RINO and a Democrat masquerading as a Republican. Let’s not forget that just eight years ago Mitt Romney was the Republican nominee for President of the United States!
Furthermore, I was deeply troubled by how many people—professional pundits and social media commentators alike—who ridiculed Romney for invoking his faith as one of the reasons for doing what he thought was right regardless of the political consequences. We cannot want a politician to be both influenced by his faith and to ignore his faith. Many Republicans, and particularly many conservative Republicans, advocate for political positions, and even political action, that is based on and derived from a sense of morals that is often rooted in Judeo-Christian faith. Romney is a Mormon, of course, but most Mormons are quite conservative morally and socially. Would we really want a candidate or an elected official who was not influenced by his faith? How deep, sincere or meaningful would such faith be, anyway, if an individual were able to set it aside when considering some of the most important decisions he would ever make?
Finally, Romney’s vote also brought to light another matter that is worthy of serious consideration. Much has made of the fact that with his vote to convict, Romney became the first U.S. senator ever to vote to convict a president of his own party. That’s troubling to me, but not for the reason you probably think. Many seem to be taking the position that Judge Jeanine Pirro so obnoxiously took yesterday on her FOX show “Justice with Judge Jeanine.” “Permit me to introduce you to a non-leader,” Pirro began, before reminding viewers that Romney was the first senator to ever commit such a perfidious act. “How dare he!” she went on. “How could he? And why would he?”
Pirro went on to call Romney an “embarrassment” and to say, “Your jealousy of this man [Trump] is a constant rage burning within you because you can never rise to the heights that he has. Because guys like you fold like wusses and you don’t have any selflessness or the ability to think about others, as Donald Trump has thought about making America first.” Pirro later concluded her childish rant saying, “How about you get the hell out of the United States Senate?”
(By the way, add Pirro to those who lambasted Romney’s reference to his faith. She said, “Do you ever wonder why people never mention God or religion — only bring it up when they get caught doing something or when they need an excuse for something they did? What a bunch of phonies.” I don’t know how often Pirro expects Romney to mention his faith in order for it to satisfy her standards, but this is certainly not the first time he has mentioned it).
By now you have likely gathered that I was not only unimpressed with Pirro’s monologue but also with her position. I said that I am troubled by the fact that Romney is the first senator to vote to convict a president of his own party—but the reason that troubles me is because it hasn’t happened before. Donald Trump is the third president to be impeached, joining Andrew Johnson and Bill Clinton on that short list. There were eleven articles if impeachment filed against Andrew Johnson, though senators decided that eight of them were objectionable and only considered three. Like Trump, Clinton faced two charges. Why would it take until the sixth impeachment charge for a senator to vote for conviction of a president of his own party? That fact reveals two possibilities, neither of which are appealing.
On the one hand, it could indicate that impeachment charges thus far have always been politically motivated. That would be tragic. As I have already argued in this space, impeachment is to be used for “Treason, Bribery, or other high Crimes and Misdemeanors.” Those are not political matters. If we allow our elected officials to pursue impeachment out of political motivation then we will have a serious problem.
On the other hand, if impeachment articles have been legitimate and not motivated by politics, Romney’s first-ever vote could indicate that senators are more loyal to their party than they are to what is right. How did I reach that conclusion? Well, it seems improbable that there could be six articles of impeachment that were not politically motivated and yet all proved to be erroneous charges. But if the impeached presidents were actually guilty of even one of those charges, and the evidence supported that conclusion, but no senator of the president’s own party would vote accordingly, what other conclusion could there be? The votes on Trump’s impeachment actually confirm this likelihood, as it also was the first time ever that no member of the opposing party joined in support of the president.
George Washington warned sternly against “the baneful effects of the spirit of party” in his Farewell Address. Blind allegiance to party, said Washington, “serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions.” In other words, no good can come of it! Washington’s advice then? “[T]he common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”
As he so often has, Washington proves once again to be prophetic. We are seeing unmistakable examples of the “spirit of party” in the United States just about every day. This does not bode well for our nation or for our future.
Oh, one more thing regarding strange bedfellows… I don’t even like Mitt Romney.
After all of the attention given to NFL players sitting or kneeling during the National Anthem over the weekend of September 24, I decided to share on Facebook this simple truth:
So, (federal) minimum wage is $7.25 an hour or about $15,000 per year. Each year the minimum salary in the NFL increases by $15,000; this year it is $465,000.
According to the U.S. Census Bureau, the average household income was $73,298 in 2014. The average NFL salary in 2015 was $2.1 million.
If for no other reason than that, then, every player in the NFL should be standing proudly at attention every time the National Anthem is played, giving thanks that they live in a country where the lowest paid person in their profession can make thirty-one times the federal minimum wage…for playing a game.
I stand by that assertion. Whatever it is that NFL players are intending to protest or express their displeasure for by failing to show proper respect to the American flag, they are at the same time disrespecting a flag that represents a country in which they have the opportunity to make a very comfortable living for playing a game.
Not surprisingly, my post generated lots of attention—from both sides of the debate. Quite a few people agreed with my sentiments, “liking” or even “loving” the post. But certainly not all. While I did not receive any Facebook emojis symbolizing anger with the post, there were comments shared, and “likes” for those comments, that made clear the fact that there is definite difference of opinion on this matter as well as a clear lack of understanding over the real issue.
For example, one friend commented, “I know my view point is not a popular one, but here you go. Every NFL player has the constitutional right to take a knee for what they believe. It’s the same right that our president has to say they should all be fired. I do find it heartbreaking that there is so much divide in our beautiful country.”
Well, I agree with the last statement wholeheartedly. There is entirely too much division within our country, especially on matters of race, and there appears to be far more attention given to those who exacerbate that divide than to those who seek to heal it. But my friend’s comment missed the point. I was not saying that football players do not have the right to sit or kneel during the anthem. I agree wholeheartedly that they do. But not everything that some has a right to do is right to do. What are they accomplishing by sitting or kneeling? By failing to show proper respect for the flag of the country that allows them the opportunity to earn millions of dollars playing a game, are they contributing to a healthy discussion about whatever it is they are protesting? No. Are the bringing solutions to the table? No. I think the president’s comments were ill-advised too (but then what’s new?). I am not saying he is right and they are wrong. I am simply stating my opinion that what they are doing is not contributing to a solution and is, if anything, drawing attention to themselves, not the issues they are seeking to draw attention to—whatever they may be.
Then another friend chimed in. A former student of mine, in fact. She said, “They aren’t disrespecting the flag though and they aren’t protesting the flag.” To the second part of that statement, I agree, which is why I also said their protest is ineffective. By sitting or kneeling during the National Anthem they are not really addressing whatever it is they are trying to protest. To the first part of the statement though, all I can say is this: they aren’t? How is failing to stand for the National Anthem not disrespecting the flag? There really is no denying that fact. If someone fails to stand in court when the judge enters and the bailiff announces “all rise,” I guarantee you it will be seen as disrespect for the office the judge holds if not for the entire judicial system. That individual would either find himself sitting all day in court waiting for his case to be called (best case scenario) or find himself in contempt of court. Remember, the right to free speech is not absolute—and it is certainly not absolute within the four walls of a courtroom!
This friend went on to say, “And though our country does allow them the opportunity to make millions, it doesn’t allow everyone that right. In fact there are some pretty glaring injustices within our country and some pretty obvious failures staring us in the face.” Here we have another error. No one has the right to make millions of dollars. There is no government system on the face of the earth that could really grant or enforce such a right. However, everyone in the U.S. does have the opportunity to earn millions of dollars. That is what a free market economy is really all about—equality of opportunity. Any young man in the United States has the opportunity to make millions of dollars playing in the NFL. Very few of them will, because some do not have the athletic ability, others do not have the drive or passion to do so, and even some who have both of those things may suffer an injury that ends their chance to make it to the pros. Every man and woman (legally) in the U.S. has the opportunity to make millions of dollars per year in any number of fields. Sports is one, of course, but so is entertainment or writing or business or…fill in the blank! Last August, Bustle.com reported that Simone Biles, the 2016 U.S. Olympic team gymnastics phenom, has a net worth of $2.5 million. “Not too shabby considering that Biles can barely legally vote,” the report stated. The 2012 all-around gymnastics gold medalist, Gabby Douglas, has a net worth of $3 million according to a January 2017 article in Gazette Review, and she’s just 21.
More on these young ladies later. Back to my friend, though, her comment continued,
They aren’t contributing a solution as I imagine it’s difficult to present such a manifesto on the playing field but many nfl players are active in charities showing at least some concern for their fellow man off the field. Does it draw attention? Yeah that’s kind of the point to protest. And it does draw attention to them though in Kaepernick’s case it wasn’t exactly good attention. But everyone knows why he protested. A quick Google search tells you that. Plus it’s started all this conversation. So I’d say it got the point across pretty well because we’re still talking about it.
Well, let’s examine this line of thinking. Is it difficult to present a manifesto on a playing field? Perhaps so. Perhaps rightly so. After all, the playing field is for playing, after all. But if it is true that the players protesting are unable to adequately communicate the motives of their protest through their actions, the protest is, by definition, unsuccessful. Are many NFL players active in charities off the field, showing “at least some concern for their fellow man”? I am sure they are. What in the world does that have to do with anything, though? Does someone’s participation in a charity make it excusable for him to disrespect the flag of the United States? No. Do his attempts to show some concern for his fellow man allow him to behave in way that blatantly shows disrespect for both his country in general and others of his fellow men (and women) who fought, and died, for what that flag represents? No. And, for the record, there are plenty of people who are active in charities and show concern for their fellow man that are adamantly opposed to the flag/anthem protest. So, this is really a non sequitur.
Is the point of a protest to draw attention? Actually, no. Drawing attention may be a necessary element of achieving a protest’s real point, but the point of a protest is to address wrongs and bring about their correction. Protesting the American flag and the National Anthem brings attention to the individuals refusing to stand, not to whatever those individuals think they are protesting. My friend says everyone knows why Colin Kaepernick protested and then says, “a quick Google search will tell you that.” Well, those statements are contradictory. If everyone knows, a Google search would not be necessary. And if a Google search is necessary, then the protest was ineffective. If it is necessary for someone to look up the reason for a protest action, said action is a poorly-selected means of protest. When the Sons of Liberty tossed tons (literally) of tea overboard into Boston Harbor, no one had to wonder or ask around to find out what they were protesting. The parades, pageants and picketing that went on in the pursuit of women’s suffrage left no doubt what the protest was seeking to accomplish. When Rosa Parks refused to give up her seat to a white person, no one wondered what she was protesting. When the Montgomery bus boycott resulted, no one wondered what they were protesting. When sit ins occurred, individuals were respectfully, but immovably, sitting at the very lunch counters that would not serve them. They were protesting the wrong directly and in a manner that left no one wondering what they wanted.
Finally, in this quote anyway, my friend suggested that the protest started this whole conversation and therefore was pretty successful because we are still talking about it. But therein lies the rub. We are talking about it—the protest—not whatever it is that is being protested. That’s due in no small part to the fact that very few people seem to know what exactly is being protested!
My friend suggested a Google search to find out what motivated Kaepernick, so I took her advice. In doing so I found the explanation provided by Kaepernick himself, who said in an interview, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” Eric Reid, who protested with Kaepernick, wrote in the New York Times, that they were protesting “systemic oppression against people of color, police brutality and the criminal justice system.”
Okay, so since Kaepernick started it, we might assume that is what is driving it. Last Sunday, however, the majority of those participating the protest were not doing so because of systemic oppression or police brutality but in response to the ill-advised words of President Trump.
The NFL, by the way, is not helping this situation. On that note, President Trump was right. The league is creating a double standard by allowing this “speech” that violates its rules yet fining players over other “speech” such as Brandon Marshall wearing green shoes to promote Mental Health Awareness Week, William Gay wearing purple cleats to direct attention to domestic violence, DeAngelo Williams being denied the right to wear pink cleats and accessories to bring attention to breast cancer, and being fined for wearing eye black stating “Find the Cure.” After the deadly police shooting in Dallas, the Dallas Cowboys requested that the league allow them to wear an “Arm in Arm” decal on their helmets to honor the slain officers; the league said no. The league threatened fines for players wearing custom cleats to commemorate 9/11, and only yielded after a strong public backlash. NFL players are not permitted to yell t officials, taunt other players or even dance in the end zone after scoring a touchdown. Apparently violating league rules about the National Anthem will bring no consequence, though. According to USA Today, an NFL spokesman said on September 25, “that players would not be punished for breaking a league rule that says they must appear on sidelines during the national anthem. Players on the Seattle Seahawks, Tennessee Titans and Pittsburgh Steelers all skipped Sunday’s anthem.” Hmmm. Is it really free speech when the NFL is deciding whether or not it is permissible? No, it is not. It is sanctioned speech.
But back to the motivation for these protests. My friend who suggested a Google search for identifying Kaepernick’s motive focused on income disparity in her Facebook comments. When I replied to her comment above by saying that no one has the right to be a millionaire but everyone has the opportunity, she shot back with this:
No[t] everyone does not have the opportunity. I, as a white woman, make $0.85 to every $1 a white male makes. Black women earn $0.65. Hispanic women earn $0.58. Plus minimum wage isn’t even livable in most states which makes it rather hard to get the ‘opportunity’ to make millions. There are lots of reasons for this wage disparity, including discrimination. But my point is that the reality is not everyone had that opportunity. It’s why there is a top one percent and then the rest of us. It’s unrealistic to assume “well I’ll work hard and one day before a millionaire”. But for some it’s equally unrealistic to imagine a life outside poverty or a life reasonably comfortable.
Well, this is interesting. I don’t think it has anything at all to do with the anthem protests, but let me address it anyway. Is there some income disparity in the U.S.? Yes, there is. Is it as horrific as the liberal Kool-aide vendors would have us believe. In April 2017 the Pew Research Center reported that the gender gap in pay has narrowed since 1980 and that among young adults (ages 24-35) the gap is down to 10 cents per dollar earned difference between men and women. IN 1980 it was only 67 cents per dollar. That is a significant improvement. The disparity is not purely a result of some conspiracy to discriminate against women, however. The Pew Research report indicated that women were considerably more likely than men to take breaks from their careers to care for family members: 28% of fathers had reduced their work hours at one time or another to care for family while 42% of mothers had done so; 24% of fathers had taken a significant amount of time off, while 39% of mothers had done so; 10% of fathers had quite their job completely, but 27% of mothers had done so. It is not unreasonable to think that women who reduce work hours or temporarily leave employment completely will see their wages increase at a slower rate than men who do not, all other things being equal. After all, rarely can someone leave the work force for a time and re-enter at the same salary he or she left. The report indicated that women were almost twice as likely as men to say that they had been discriminated against at work because of their gender, but that was still only 18% to 10%. No gender-based discrimination is appropriate, but “only” is appropriate in that sentence because it indicates that gender-based discrimination alone cannot account for the disparity in pay.
And minimum wage? It is not supposed to be livable for a family, and not even for very long for an individual. By its very name the wage is the minimum someone can earn. That necessarily implies someone with minimum skills doing the work. There are innumerable studies to indicate that education and experience contribute mightily to improved earning power. And in a free market economy, the market is supposed to drive wages anyway. The very existence of a minimum wage goes against true free market economic principles and creates an artificial floor.
I do not want to get too side-tracked on this income disparity issue but I want to go back to Simone Biles and Gabby Douglas for a minute. I selected them as examples on purpose. They are both female and both African-American. What’s more, they both come from families that do not typify the likelihood of high earnings. According to what I have read and heard, Douglas was raised by a single mother. Biles’ mother was unable to care for Simone and her siblings due to her drug and alcohol addiction, and the children were in and out of foster homes before being adopted by their grandparents. Both of these young ladies persisted and worked hard to pursue their dreams, overcoming what could be seen as domestic obstacles, historic obstacles and even the obstacle of pursuing a sport that has had very few African American competitors at the highest levels. After all, Dominique Dawes, in 1996, became the first male or female black athlete to win an Olympic medal in gymnastics. So to my friend, I would suggest that both Douglas and Biles are proof that the opportunity to become highly successful—and highly compensated—is indeed available to all.
Sticking with the theme of the Olympics, by the way, ask Jordyn Wieber in 2012 or Douglas herself in 2016 what they think of artificially leveling the playing field. Both gymnasts were the victims of the ridiculous Olympic gymnastics rule that restricts all-around finalist competitors to not more than two per country despite the fact that their performances rightly earned them a place in the finals if only the highest qualifiers were allowed to advance. Given that both of them have experienced in an athletic context what it is like to have their hard work and legitimately-earned opportunity negated by a silly rule that seeks to level the playing field, I wonder if they would be in favor of silly rules leveling the economic playing field?
There are so many factors involved in economic disparity that it cannot be diluted down to a simple “white guys make more money than everyone else” conclusion. Location makes a difference, experience does, education does, skill does, industry does… So, by the way, does personal choice. I currently serve as the superintendent of a small Christian school in South Dakota. I also have three graduate degrees and nineteen years of experience. Yet, an African American female with no teaching experience and only a bachelor’s degree will make more money as a first-year teacher in New York City this year than I will in my position. Seeks like a disparity doesn’t it? Sure… But the cost of living in New York City is exponentially higher than it is in the middle of South Dakota. When I was the executive director of a non-profit ministry providing residential childcare for at-risk youth I was making more than twice as much money each year as I do now, with even more lucrative benefits than I have now. But it is not the fault of any person or any system that I am not in a position with lower compensation.
But, back to the flag protests. The same friend who brought up the wage disparity issue later in the Facebook exchange said that the problem was unfair sentencing practices.
African Americans and whites use drugs at about the same rates but the imprisonment rate of African Americans for drug related charges is almost six times higher than whites. The imprisonment of female African Americans is twice the rate of female whites. Total, African Americans are incarcerated more than five times the rate of whites. If African Americans were imprisoned at the same rate as whites, prison populations would decline by almost forty percent. African Americans make up thirteen percent of the population but forty two percent of death row inmates and thirty five percent of those executed. Forty eight percent of whites were able to receive a sentence less than death through plea bargaining but only twenty five percent of black and twenty eight percent of Hispanics were able to receive plea bargains in exchange for life sentences.
Okay, so this a completely different path now, but it needs to be addressed as well. Interesting, isn’t it, how someone who said that the reasons for the protests were obvious is now on her third different explanation for the reasons? My friend is quoting almost verbatim from the NAACP’s Criminal Justice Fact Sheet. Fair enough. It is true that African Americans and whites tend to use drugs at approximately the same rate. And it is also true that African Americans tend to be incarcerated more often than whites. Michael Tonry, an American criminologist, is the McKnight Presidential Professor of Criminal Law and Policy at the University of Minnesota Law School, and he explained to Politifact.com in February 2016, “Whites are more likely to sell to people they know, and they much more often sell behind closed doors. Blacks sell to people they don’t know and in public, which makes them vastly easier to arrest.” In July 2016, Politifact.com reported, “Blacks arrested for drugs are more likely to be sent to jail because they’re more likely to have had a previous run-in with the law. Police tend to patrol high-crime areas more aggressively, which tend to be the poor areas, which have a higher proportion of minorities. Thus, they’re more likely to be stopped for something and have a rap sheet once a drug charge comes along.”
Back in 1995, Dr. Patrick Langan, Senior Statistician for the Bureau of Justice Statistics at the U.S. Department of Justice did some research on this disparity, and his report was titled, “The Racial Disparity in U.S. Drug Arrests.” What did he find? Well, for starters, he said this: “Drug users are not all equally at risk of being arrested for drug possession. Certain factors (for example, frequent use) place some drug users at greater risk than others.” Those factors, Langan reported, included type of drug used, frequency of use and location of use. He then concluded, “Although blacks are 13% of drug users, they should comprise over 13% of drug possession arrests since the type of drugs they use, the frequency with which they use them, and the places where they use them, put blacks at greater risk of arrest.” He went on to state, “How much in excess of 13% cannot be precisely determined…but the data do allow estimates to be made.”
Before I give you his estimates, let me tell you this: the NAACP Criminal Justice Fact sheet states that “African Americans represent 12% of monthly drug users, but comprise 32% of persons arrested for drug possession.” Interestingly, those numbers have changed little from 1995 when Langan made his report; he wrote, “Blacks are 36% of drug possession arrests but 13% of drug users, a disparity of 23 points.” If the NAACP figures are accurate then there is now a disparity of 20 points. But what else did Langan find? He reported that “although blacks were 13% of drug users, given how they differed from whites with respect to increased risk, they should amount to 23% of arrests, or ten percentage points beyond the 13% figure.” And that disparity of 23% that he reported? “The analysis revealed that 10 of the 23 points were attributable to race-neutral factors,” he concluded. If that analysis holds true today, than the percentage points of disparity attributable to factors that are not race-neutral (i.e., racism and discrimination) have decreased from 13 points to 10 points since 1995. There is still much room for improvement, of course, but it would appear that progress is being made in the right direction.
It is true that African American make up 42% of death row inmates and only 13.3% of the population according to the U.S. Census Bureau. Those classified as “white alone, not Hispanic or Latino” make up 61.3% of the population and 42% of the death row population. Those who are Hispanic or Latino make up 17.8% of the population and 13% of death row inmates. But there are other factors to consider in this argument as well. For example, African Americans do make up 35% of those executed on death row, but whites, on the other hand, make up 56% of death row executions. So blacks and whites represent virtually equal percentages of those on death row, but the percentage of executions is 21% higher for whites than blacks. That part of the conversation seems to have been overlooked by my friend…. (All of those statistics, by the way, come from the Death Penalty Information Center).
Well, I need to quit. This has turned much too long already. Here’s my point, though. The American flag/National Anthem protests are not working. They are drawing attention to players, not to issues—as demonstrated by the fact that no one seems to even know for sure what the issue is! Furthermore, the en masse NFL protests last week were directed far more at President Trump than at racism or police brutality or wage disparity or incarceration disparity or whatever else the alleged issue being protested may be. What’s more the “take a knee” protest is spreading to colleges and even high school sports and, with all due respect, I doubt seriously that many of those high school students have any idea what they are really—supposedly—protesting. Is there room for improvement in race relations in the U.S.? Yes, there is. Is that going to be achieved by anyone, regardless of race, gender, profession, income, or numerical participation, taking a knee, taking a seat or refusing to take the field during the singing of the National Anthem? No. Every player for every team could take a knee every time for the rest of the season but it will, in and of itself, do no good. Therefore, I urge those who really do have a legitimate concern they would like to see address, to find a meaningful, productive and effective means of protesting or, more beneficially, engaging so that solutions can be found.