Monthly Archives: August 2022

Forum columnist Jack Zaleski recently wrote an article berating Republicans for their reaction to the FBI raid against Trump . This letter is not about Trump; rather its about a disgusting comment Zaleski made, completely devoid of any historical awareness.

For context, Trump invoked the Fifth Amendment to the US constitution during New Yorks tax case against him. This means he is refusing to testify in court or speak with law enforcement.

In response, Zaleski said,Resorting to the 5th is just short of admitting guilt. The text says no person shall be compelled in any criminal case to be a witness against himself... No criminal case. The implication is obvious: The 45th president knows hes guilty of a crime.Anyone with a shred of civics education should call that out for what it is: a crock of bulls***.

The criminal justice system in the U.S. is not perfect. Criminals are rarely caught red-handed. It is the job of law enforcement to gather evidence, find a suspect, then it is the job of a prosecutor to prove that suspect is guilty.

There was a time when suspects were required to testify for their own defense. If they did not testify, they had no defense. But because prosecutors make careers out of convicting thousands of suspects, this exchange is always weighted against the defendant. The defendant, even if they are purely innocent, may misspeak. They may make an assumption that turns out to be false and the prosecution will accuse them of lying. They may be a victim of misidentification and their testimony would only entrench this mishap.

If the prosecution has a solid case against the defendant, they must be able to make that case without relying on the testimony of the suspect.

According to the U.S. Supreme Court, the purpose of the Fifth Amendment is to protect innocent people who otherwise might be ensnared by ambiguous circumstances. (Grunewald v US, 1957)

In 1966, the court expanded Fifth Amendment protections to apply in police interrogation rooms. Too often police will lock people in windowless rooms for hours on end until they say something incriminating. But according to the case Miranda v. Arizona, all people have a constitutional right to not be interrogated by the police.

According to the Innocence Project, of all the convictions that are proven to be false with DNA evidence, 29% made a false confession. Police can and frequently do use psychological techniques to induce people to make incriminating statements, even if theyre false. A suspect sitting alone in that room doesnt stand a chance against the resources of the state, but with one exception: they have the Fifth Amendment to protect them.

In Ullmann v US (1954), the Supreme Court said, "Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege."

That is exactly what Zaleski did in his letter. I am not defending Trump. Trump made similar statements when Hillary Clinton invoked her Fifth Amendment rights. Trump was just as wrong as Zaleski. But Zaleski should know better. Hes not a politician trying to woo a crowd.

Invoking ones Fifth Amendment right to stay silent is not an admission of guilt. It is not evidence of any crime. It cannot be used in court to suggest you did anything wrong.

Every defense lawyer will tell you to take full advantage of your constitutional rights, especially if you are innocent.

William Smith lives in Fargo.

This is letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

Read the original here:
Letter: Invoking the Fifth Amendment is not an admission of guilt - INFORUM

GRAND RAPIDS, MI Multiple potential witnesses in the Gov. Grethen Whitmer kidnap trial invoked Fifth Amendment protections against self-incrimination.

Stephen Robeson, described as a double agent for helping the FBI, then sharing information with defendants, and Brandon Caserta, acquitted in an earlier trial, were among those who refused to testify.

The jury trial in U.S. District Court in Grand Rapids ended Tuesday, Aug. 23, with Barry Croft Jr., 46, of Bear, Delaware, and Adam Fox, 38, of Wyoming, Michigan, convicted of conspiracy to kidnap and conspiracy to use a weapons of mass destruction.

An earlier trial ended in a mistrial for Croft and Fox when jurors, who acquitted Caserta and Daniel Harris, could not reach a unanimous decision.

The various people who refused to testify in the trial that featured nearly two weeks of testimony was one of several themes that took hold.

Here are five takeaways of the latest trial:

Taking the Fifth

Several witnesses, including those who acted as informants, invoked the Fifth Amendment.

Robeson, a Wisconsin man who provided information to the FBI in the 2020 investigation, was referenced repeatedly at both trials but did not testify.

By my signature below, I hereby assert, invoke, or otherwise claim my rights under the 5th Amendment to the United States Constitution to not be compelled to offer testimony that may be incriminating, he said, in a filing by his attorney, Lawrence Phelan.

Adam Fox, front row on left, and Barry Croft Jr., back row, third from left, are on trial in U.S. District Court in Grand Rapids for allegedly conspiring to kidnap Gov. Gretchen Whitmer. (Illustration by Forrest Miller)

As an informant, he allegedly set up meetings and field-training exercises and encouraged others involvement in the kidnapping plot. He also told a defendant about an upcoming arrest and urged another to get rid of evidence, the government said.

Caserta, who was acquitted at the first trial, invoked his Fifth Amendment protections.

But outside of the Gerald R. Ford Federal Building and U.S. Courthouse, he told FOX 17: I think its ridiculous that the governments still going to try to continue to push this narrative that these people are actually terrorists, and that actually wanted to do violence.

He said the men were a group of dudes who shoot guns and talk crap.

The FBI

Defense attorneys accused the FBI of orchestrating a domestic-terrorism plot - with undercover agents and a dozen informants - to boost careers. Christopher Gibbons, representing Fox, said the FBI worked to turn the defendants big talk into some type of actionable plan.

He noted that an FBI special agent told an informant to get Fox focused on the plan.

Crofts attorney, Josh Blanchard, said his client had no previous connection to Fox or the Wolverine Watchmen, a Michigan militia allegedly tied to the kidnap plot, until the FBI and informants put them in touch. He said Croft became a target for his online criticism of the FBI an anti-immigration fugitives death in Texas.

Assistant U.S. Attorney Nils Kessler called the claims nonsense.

This whole thing was (Crofts) and Adams idea, Kessler told jurors.

Hapless defendants

If they werent facing such serious charges, Croft and Fox might have had their feelings hurt at trial. Their own attorneys portrayed them as pot-smoking losers incapable of plotting Whitmers kidnapping never mind getting others to buy into the idea. A Delaware State Police trooper, assigned to a terrorism task force, said Croft was known as bonehead by investigators.

When asked if he referred to Croft as a moron in a text, he said: It could be Mr. Croft or it could be anyone in the group.

Hes frankly high on marijuana all the time, Blanchard said.

Gibbons called Fox hapless and told jurors that Fox was so enamored by an informants military-combat background that he drew the ire of his girlfriend.

Public officials a target

Top law-enforcement officials said the verdicts were important to protecting public officials and the public.

No governor, no public official should have to contend with what Gov. Whitmer contended with here. All of our elected officials, everyone, deserves to live in safety, not in fear.

James Tarasca, special agent in charge of the FBIs Detroit field office, said: These defendants believed their anti-government views justified violence. Todays verdict sends a clear message that they were wrong in their assessment.

State Attorney General Dana Nessel, whose office is handling state cases related to the alleged kidnapping plot, issued a statement, too: Those who threaten the lives of public officials must be held accountable. No one should have to forfeit their safety or that of their loved ones in exchange for pursuing public service.

In their own words, actions

With two undercover FBI agents and a dozen informants, investigators had real-time information about the defendants. The FBI got past op-sec, or operation security, using, for instance, hidden recorders in key fobs. Adam Fox required attendees of a meeting in the basement of a Grand Rapids-area business Vac Shack, where the unwitting owner let him live as a favor - leave their cellphones upstairs.

The FBI had audio, video, encrypted text messages and social-media posts even a sign up sheet at one event that were shown to jurors. The defense acknowledged that Croft and Fox had strong anti-government views but said it was just talk, protected by the First Amendment. The two had no way of carrying out what has been called a fantastical plot.

The words of the defendants were apparently damning to jurors. They had talked about kidnapping Whitmer at her Elk Rapids summer home and putting her on trial for treason. There was video of training sessions. Jurors saw a smiling Fox light up a Taser.

Assistant U.S. Attorney Christopher OConnor said: Theres no doubt what they wanted to do and who they wanted to kidnap.

Related:

Judge in Whitmer kidnapping plot trial explains why juror wasnt dismissed after attorney complaint

Guilty verdict in Whitmer kidnap case highlights anti-government threats to public officials

Men found guilty of leading plot to kidnap Gov. Whitmer

Did FBI save lives or is it to blame? Jury deliberates Gov. Whitmer kidnap case

Defendants in Gov. Whitmer kidnap trial called pot-smoking morons

FBI pushed hapless client into Gov. Whitmer kidnap plot, attorney says

Prosecutor rests in Gov. Whitmer kidnap case after undercover FBI agent recalls secret trip to her house

Lawyers object to limit on cross examination in Gov. Whitmer kidnap case

Kidnapping Gov. Whitmer was all they talked about, former co-defendant testifies

Man in Gov. Whitmer kidnap case wanted to hang her on TV, witness says

Alleged leader of Gov. Whitmer kidnap case excited driving past her home, recording shows

FBI says defendants in Gov. Whitmer kidnap case posed threat; defense raises concern about juror

Suspect in secret recording played at trial suggested killing Gov. Whitmers security detail

Defendant in Gov. Whitmer kidnap case wanted to build an army, jury told

Defendants in alleged plot to kidnap Gov. Whitmer were big talkers, had no plan, attorneys tell jurors

Retrial of 2 suspects in alleged plot to kidnap Gov. Whitmer ready to begin

Defense attorney says Gov. Whitmer was never in any real danger

More:
Taking the Fifth, FBI attacked: 5 takeaways of Gov. Whitmer kidnap trial - MLive.com

The investigation into potential mishandling of classified documents has dominated the headlines since the home of Donald Trump was raided earlier this month. On Friday the affidavit justifying the FBI search was made public, outlining the extent of Trumps legal woes, but it is far from the only investigation into the former President.

The Trump Organization is the subject of two probes in New Year investigating business affairs dating back decades.

Earlier this month former Trump Organization chief financial officer Allen Weisselberg pleaded guilty to 15 criminal tax fraud charges. Weisselberg admitted to being involved in a series of schemes that allowed top Trump executives to avoid paying taxes. Manhattan DA Alvin Bragg said Trumps eponymous firm is directly implicated in a wide range of criminal activity.

Simultaneously, New York Attorney General Letitia James is conducting a separate civil investigation into claims that Trumps business misrepresented the value of its properties to evade taxes and secure additional loans. Trump was recently questioned by state officials and reportedly invoked the Fifth Amendment 440 times in a single day.

Over the years Trump has gained a reputation for wriggling out of financial investigations, but he is attempting to see off these latest threats while fighting numerous other lawsuits. Even if he is to avoid any personal convictions for his companys business practices, Trump could be forced to foot the bill for some fairly hefty fines.

Yahoo! Finance consulted with a number of legal experts to gauge how severe the punishment could be for Trump, if prosecuted in New York.

Miriam Baer, a former Manhattan federal prosecutor, said that the financial penalties for the Trump Organization could be tough. She predicts that a conviction would lead to a very severe fine at the very least.

During Trumps first impeachment trial Norm Eisen served as special counsel, and he can offer insight into the likely legal path for Trump in these New York Investigation.

Im anticipating very, very serious penalties, said Eisen, floating the possibility of corporate death penalty if the Trump Organization is convicted of the more serious financial crimes. This could see his flagship business wound up, something that has happened to his business concerns in New York before.

The New York Attorney Generals office won a $2 million judgement against a Trump-controlled foundation and was involved in a $25 million decision against Trump University. Both of those organisations folded in the aftermath of those decisions.

Most crucially, while it is the Trump Organization that is under investigation, the former President will likely feel the consequences of any ruling that is handed down against it. Dan Alexander, a senior editor at Forbes and author of a book on Trumps businesses, explains that Trumps personal wealth will take the hit of any financial punishment.

If there are penalties placed on the Trump Organization, this wont be coming out of some other shareholders pocket or something like that, says Alexander. If they get fined $5 million or $20 million or $100 million, that will be directly subtracted from his personal net worth.

Read the original post:
How much money could Donald Trump have to pay in fines if his businesses are penalized? - AS USA

Hey there!

Alyssa Burr here, MLives resident statewide legislature reporter covering the Michigan Senate, to bring you your weekly recap of Michigan political news.

In this epic pic below with my fellow politics crew, you can find me to the far right repping my soon to be graduate school alma mater the one and only Syracuse University (go orange!).

MLive's politics reporters on the Michigan Capitol steps. Left to right: Ben Orner, Jordyn Hermani, Simon Schuster and Alyssa Burr.Daniel Shular | MLive.com

The MIGOP nominating convention kicked off Saturday, Aug. 27 in Lansing, but infighting within the Michigan GOP party shows no sign of letting up.

The convention includes delegates from every county who will solidify the GOPs November ticket, including lieutenant governor, attorney general and secretary of state. Its a critical opportunity for party unity, considering Democrats control the governorship, AG and SOS. But on Saturday, the Michigan Republican convention started in chaos Saturday as Mark Forton, the formerly recognized chair of the Macomb County GOP, brought a local fight to a statewide stage.

As MLive political reporter, Ben Orner reported: Minutes after the convention commenced, Forton supporters led a challenge of Macomb Countys 199 delegates. Dueling Republicans factions held county conventions in Macomb this month after Forton was voted out as county chair in April but refused to hand over the reins.

Related: Convention chaos: Snubbed Michigan county GOP chair leads swap of Macomb delegates

The Michigan GOP and co-chair Ron Weiser recognized the opposing slate of Macomb delegates for Saturdays convention, who were led by Eric Castiglia. But a vote by delegates from the other 82 counties rejected that list Saturday and swapped in Fortons, which he said is a rebuke of Weiser and win for the GOP grassroots. In a process that lasted more than two hours, county delegates on the Lansing Center floor stood and raised their credentials high in support of Fortons slate of delegates. Needing more than two-thirds of the vote, Fortons challenge was successful, as overwhelmingly more people stood to support Fortons slate than the MIGOPs preferred slate.

Shane Hernandez gets GOP Lt. Gov pick

As MLive political reporter Jordyn Hermani reported from Saturdays convention: Shane Hernandez will remain Republican gubernatorial candidate Tudor Dixons choice for lieutenant governor despite threats to his ticket.

Despite a push by former gubernatorial candidate Ralph Rebandt to whip up support for his name to replace Hernandez, those attempts fizzled out and Hernandez handily won the nomination on Saturday.

Republican Attorney General candidate Matt DePerno, in a speech nominating Hernandez to for the lieutenant governor position, said the former lawmaker understands the grassroots fights that we are in and would work to court blue collar union workers and minorities to vote Republican.

Debate debacle

With Republicans seeking to take control of the states top government offices and Democrats fighting to keep it, more conflict this week as incumbent Gov. Gretchen Whitmer and Republican challenger Tudor Dixon have yet to work out scheduling for two statewide televised debates.

As someone who has watched the governors race from almost the beginning, my colleague Simon Schuster reports that there actually may be more at stake for the incumbent governor and the political newcomer than the debate itself.

Early Wednesday, Whitmers campaign announced they accepted invitations for debates on Oct. 13 and Oct. 25.

On the other hand, Dixons campaign said they accepted the same two invitations while proposing a number of different dates. Sept. 20, 22, 27 or 28 for a debate hosted by WOOD-TV in Grand Rapids; Oct. 17 or 24 for a second debate hosted by WXYZ-TV in metro Detroit.

Simon spoke with Oakland University political science professor Dave Dulio about why this may be about more than dates on a calendar. Dulio said campaigns going into elections with the upper hand may be less open to the vulnerabilities a debate can introduce.

You see this in campaigns across the country, where those campaigns who perceive themselves as having an advantage, lets say, are less likely to want to debate, Dulio said. Im not saying thats the case with the Whitmer campaign. My hunch is that theyre pretty confident, but you know, oftentimes its the incumbent who wants to shy away from putting themselves out there.

Dixons campaign argues that no-reason absentee voting (a voting method which saw record numbers in the August primary) is enough cause to move the first debate up. For the general election, local clerks are supposed to have absentee ballots in hand to send to voters Sept. 29.

Related: Michigan voters can now request absentee ballots for November general election

The debate hosts and Dixons campaign remain mum to publicly announce next steps, but political science research shows that incumbent candidates have an innate advantage against newcomer opponents.

Men found guilty of leading plot to kidnap Gov. Whitmer

In other news, a chapter in the plot to kidnap Gov. Whitmer came to a close earlier this week after a jury found two men guilty for their role in the scheme.

Barry Croft Jr., 46, of Bear, Delaware, and Adam Fox, 38, of Wyoming, Michigan, face up to life in prison.

They were retried on charges of conspiracy to kidnap and conspiracy to use a weapon of mass destruction after a jury in April failed to reach verdicts in their cases.

Tuesdays verdict followed nearly two weeks of testimony in U.S. District Court in Grand Rapids.

Grand Rapids Press reporter John Agar has followed the case from almost the beginning. Following the guilty verdict, he reported these five takeaways which played a role in the trial: the Fifth Amendment, FBI involvement, Hapless defendants, the protection of public officials and real-time investigative action.

Michigan abortion, voting proposals should make ballot, signature checkers say

Abortion rights activists continue to make headway as a constitutional amendment to secure abortion rights in Michigan has more than enough signatures to make the ballot, the state Bureau of Elections said Thursday.

Staff have completed signature checks of Reproductive Freedom for All, which needed 425,059 valid signatures each to make the ballot, and found RFFA submitted a record 752,288 signatures.

Bureau staff conducted a facial review of petition sheets to find errors that may dismiss entire papers. Then they took a random sample of possibly valid signatures. Each line is examined to make sure, for example, the signee is registered to vote in that papers jurisdiction and their signature matches state records.

Reproductive Freedom for All had 596,379 valid signatures, bureau staff estimated.

Another constitutional amendment to increase voting access, Promote the Vote 2022, passed the Bureau of Elections signature checks this week. PTV submitted 664,029 signatures and had 507,780 validated a figure well above what was necessary, reported fellow political team member Ben Orner.

RFFA would give Michiganders a constitutional right to an abortion, superseding a 1931 ban on the procedure currently paused in court after the fall of Roe v. Wade. PTV would mandate nine days of early, in-person voting, prohibit harassment while voting and allow people to permanently vote absentee, among other measures.

The elections bureau recommends the Board of State Canvassers approve the amendments for the Nov. 8 ballot. This means these two hot button issues could wind up being left up to the voters if the proposals go through at the boards next meeting on Wednesday, Aug. 31.

What Michigan borrowers need to know about a student loan forgiveness plan

While a student debt plan announced by President Joe Biden Wednesday has some rejoicing, others are wary of potential economic fallout they believe could happen as a result.

The Biden administration plans to forgive $10,000 per borrower and $20,000 per Pell Grant recipient who are making less than $125,000 individually or $250,000 for households. A pause on student loan repayments will also be extended one final time through Dec. 31. And the income-driven repayment plan is being overhauled to reduce costs for borrowers.

In Michigan, there are 1.4 million student loan borrowers holding $51.3 billion in debt, federal data shows. About 700,000 of those with federal student loans will see their debt cut in half or erased completely, according to the governors office.

Keep an eye out, though, as the plan will likely be challenged in court.

About 59% of Americans are worried student loan forgiveness will worsen inflation, a recent CNBC Momentive Poll found. Deputy director of the National Economic Council Bharat Ramamurti disputed these concerns saying the restart of payments will bring billions of dollars a month to the federal government.

The Wharton School of the University of Pennsylvania estimated this week a $10,000 forgiveness plan with a $125,000 income limit will cost the federal government about $300 billion.

Read more in Michigan politics:

Michigan using $63M in federal dollars to aid homeless and at-risk renters

Auto crash survivors cant have lifetime benefits cut retroactively, Michigan Court of Appeals rules

$350 tax credit possible for safe gun storage, training under bipartisan bill package

House bill to ban card-only parking in Michigan may address bigger issue of socio-economic inequalities

Mental health, teacher retention focus of Whitmer roundtable with Novi school community

See more here:
A high stake debate and tension at the GOP convention: Your guide to Michigan politics - MLive.com

The recent set of watershed Supreme Court opinions pulsates with the language of democratic accountability. Dobbs v. Jackson, overruling Roe v. Wade, makes its refrain the promise to return the abortion question to the people and their elected representatives. Concurring in West Virginia v. EPA, which restricts regulators ability to decarbonize the electricity grid, Justice Neil Gorsuch explained that the point of the decision was to keep power in the hands of the peoples representatives rather than a ruling class of largely unaccountable ministers. In New York State Rifle and Pistol Association v. Bruen, which struck down New York States 117-year-old limitation on carrying weapons, Justice Clarence Thomas presented the Courts severe, originalist approach to the Second Amendment as a vindication of a judgment by the people against wishy-washy federal judges who had let the restriction stand. Indeed, while these opinions have little in common besides their conservative outcomesDobbs eliminated a personal right, Bruen expanded a right, and West Virginia curtailed agency interpretations of statutes such as the Clean Air Actthey all claim to protect the rightful power of the people.

David Litt: A court without precedent

Liberal critics, in turn, have appealed to democracy in attacking the Court as radical and illegitimate. Majorities tend to support abortion rights, climate action, and gun control, they point out, so whatever mythic people the justices have in mind, they are going against those people as they actually exist today. Calls to add justices to the Court, deny it jurisdiction over certain cases, or even impeach some conservative justices all come in the name of greater democratic control. Some progressives hope to get back to a more democratic Constitution, whether it is in the spirit of the reformist Warren Court of the 1950s and 60s (the Court that gave us Brown v. Board of Education and the one-person-one-vote principle); the New Deal vision of a second bill of rights, including rights to good work and economic security; or even an abolition constitution rooted in radical traditions of freedom and equality.

But the Constitution is too fundamentally antidemocratic a document to serve democratic purposes reliably. If we want to make it genuinely and lastingly democratic, we will first have to consider changing it in the most basic way: by amending Article V, which governs amendments and so serves as the gatekeeper for living generations to say what theywebelieve American fundamental law should be. This would be a way of empowering ourselves to become founders, over and over, and not just inheritors.

The feeling that the Court is dangerously abusing its power is a new experience for many of todays liberals (not so for conservatives, who denounced the Court for decades before finally taking it over), but it is just the latest episode of a long-standing dynamic that we might call the Iron Law of Judicial Oligarchy. Because the Constitution establishes fundamental law and is itself hard to amend, judicial interpretation is always a key lever of power in American politics. Because power attracts agendas, various constituencies are always crowding around the Court. Before the Civil War, the justices upheld the prerogatives of slaveholders and the interests of the white oligarchies in the slave states, forming a key part of Southern Democrats grip on national power. Thats why, in his first inaugural address, Abraham Lincoln warned that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, then the people will have ceased to be their own rulers. From the 1880s through the 1930s, the Court protected capitalist interests from populists, unions, and other radicals, striking down labor regulations, an income tax, and other forward-thinking policies. Progressives rallied against it. In 1912, Teddy Roosevelt promised to put the fear of God into judges who had struck down labor legislation. In 1924, the great reformist senator Robert La Follette of Wisconsin proposed a constitutional amendment authorizing Congress to override Supreme Court decisions that invalidated federal lawsa proposal whose insurrectionary spirit future Justice Felix Frankfurter praised in The New Republic, lamenting of the pro-business jurisprudence of his time, we have never had a more irresponsible Supreme Court.

What has been unusual in the past 70 yearsthat is, all of living memoryis that the Court has been mostly seen as, on balance, a liberal institution, partly on the strength of now long-past desegregation and voting-rights cases, partly because of high-profile LGBTQ-rights cases in more recent decades. That progressive reputation has been largely misplaced for a while. The Court has been expanding protection for big money in politics since 1976, with dramatic developments since Citizens United in 2010. It cut the legs from under the Affordable Care Acts Medicaid expansion in 2012 and from Voting Rights Act enforcement in 2013. It announced a personal right to bear arms outside militia service in 2008. But the term that ended in June 2022 sounded a trumpet blast that no one could ignore. The Court is now seen for what it is: a node of conservative power in American government that will persist for years, regardless of elections and popular opinion.

The flip side of the Iron Law of Judicial Oligarchy is a recurrent populist counterblast to the Courts power, which denies the Courts legitimacy in the name of democracy. Who are these old, politically connected lawyers to tell us what our fundamental law is? Who do they think they are (as Justice John Roberts asked in dissent in Obergefell v. Hodges, the 2015 case establishing a right to same-sex marriage)? Progressives asked the same question when the Court was striking down labor laws a century ago. Todays liberals belong to a party, and often to movements, in which elite lawyers have long been overrepresented, and going to court has tended to be the first response to any new political conflict. They are rediscovering that the Court is an oligarchic institution and trying to remember how to be its populist critics. This is a change in worldview, even in identity, for people who have spent their lives regarding the Court as the bulwark of constitutional legitimacy, even against decades of growing counterexamples.

Adam Serwer: Republicans cowardly excuses for not protecting marriage equality

The Constitution produces judicial oligarchy (and inspires populist backlash) through several of its features: federal judges life tenure, their nomination by the president (twice in this century elected by someone who won the Electoral College but lost the national popular votesomething that would have happened again in 2020 with a switch of fewer than 50,000 votes), and their confirmation by the Senate (whose Republican majority during Donald Trumps presidency represented significantly less than half of the countrys population).

But the root of judicial oligarchy is that the Constitution is almost impossible to change. Article V requires that amendments be ratified by three-quarters of the states, either through the state legislatures or in special conventions. (The convention route has happened only once, when the Twenty-First Amendment repealed Prohibition in 1933.) The upshot is that it takes only 13 states to block a proposed amendment. And to send an amendment to the states in the first place, the proposed language must be approved by a two-thirds vote of both houses of Congress.

There is an alternative route, in which two-thirds of state legislatures call on Congress to establish a special convention, which then proposes language to the states; this has never happened. With these hurdles in place, its no wonder that no meaningful amendment has been ratified in 50 years, nor that the fundamental changes in constitutional law for the past centuryupholding the New Deal, pressing desegregation and voting rights, embracing and then rejecting abortion rights, protecting money in politics, establishing a personal right to bear armshave all come through judicial interpretation of the Constitution, not democratic decisions to update the Constitution itself.

It may be hard to see the judicial monopoly on constitutional change (and, by the same token, on constitutional stasis) as the problem with the Constitution, because we are so accustomed to it. How else could a constitution work? But there is an answer right on the face of our Constitution, which opens with the words We the People. That we is the subject of the first sentence of the Constitution, and it goes on to ordain and establish everything that follows. On its own terms, it is law because we made it law.

Nikolas Bowie and Daphna Renan: The Supreme Court is not supposed to have this much power

But that we isnt us. When that language was ratified in 1789, its we was all male, nearly all white, and mostly restricted to property holders. Every one of its members lived in an 18th-century agrarian republic and died a very long time ago. Even the Fourteenth Amendment, the basis of many modern constitutional rights, was ratified in 1868 by male citizens of a patriarchal country that had just abolished formal slavery. Almost all of those men have been dead for a century or more.

As striking as the demographic differences are between who counted as the people in 1789 or 1868 versus today, the most fundamental problem is the tyranny of the past over the present. If todays Americans could freely decide that the Second Amendments right of the People to keep and bear arms should remain our fundamental law today, it wouldnt really matter that the language was, in a sense, proposed to us by members of a very different, long-ago society. The real scandal of the Constitution is that it gives the living people no real choice in the matter. Past generations dictate our fundamental law.

Indeed, even if those past political processes had been much more inclusive, they would still belong to the past. If we take seriously the democratic principle of ratification that the phrase We the People suggests, then nothing can make another generations fundamental law count as ours except our consenting to it. In American constitutional law, silencethe fact that we have not amended the Constitutioncounts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.

Plenty of efforts have been made to square this circle, but none has really worked. The justices of the Supreme Court interpret an old and rather brief Constitution, and they do so under constant pressure from talented lawyers to find new meanings in phrases such as equal protection of the laws, words like liberty, or the general pattern of authority that the Constitution creates among the states and the national government. No wonder so many of the justices opinions seem to come down to what W. E. B. Du Bois in Black Reconstruction impatiently called incantation and abracadabra.

At the moment, the most notorious abracadabra is originalism. The method of the Courts recent gun-rights decisions, and deeply influential in its rejection of Roe (although Justice Samuel Alito presented his analysis in Dobbs as more traditionalist than strictly originalist), it purports to anchor constitutional interpretation to the public meaning the words had when they were ratified. Originalism strikes its critics as ancestor worshipworse, the selective worship of some Americans white, property-holding, male ancestors. But as the late Justice Antonin Scalia often explained, the basic theory of originalism is that the Constitution changes only when the people mobilize to change it. The alternative, he warned, was that it would change whenever five justices changed their minds, which would put ultimate political power in the hands of the Court. Originalism makes what sense it does because it is a way of defining the justices power as compatible with democracyat least notionally.

Due to its premise that legitimate constitutional change comes only from the people, originalism would be a pretty solid way to interpret a constitution that living majorities had meaningful power to change. Were the amendment process a lower hurdle, it really would make sense to say that if we havent made new fundamental law, that must show that we are content with the old law. But our Constitution is not that kind.

Because constitutional text is effectively closed to change, anti-originalist justices have felt justified in finding new constitutional meanings in the old language. After all, the world changes; who else but judges will change the Constitution accordingly? The passage of time brings new insights, former Justice Anthony Kennedy replied to Justice Scalia in Obergefell, and only expansive interpretation can bring those insights into the old text. Freedom and equality have very different meanings in our lives today than in 1868, when the Fourteenth Amendment was adopted. Why should the Constitution be stuck when the rest of us are moving on, using old words in new ways?

Each side can clearly see Du Boiss abracadabra in the other. Each is partly right about the others democracy problem. Living constitutionalism is sincerely motivated, but its originalist critics are not wrong: It does amount to saying that, on key issues, the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court, as Justice Scalia pungently put it. By the same token, with a frozen constitutional text, originalism can handcuff a diverse and changing country to old and unwelcome principlesa colonial-era right to bear arms, or, as Justice Thomas has proposed, a constitutional ban on most federal environmental law (ecology having been far from the Founders minds).

But even saying that originalism keeps us trapped in the past takes it too much on its own terms: What it does, rather, is carry us into the future in the way preferred by a handful of right-wing jurists. Its appeals to a certain kind of constitutional democracy do not make it any less a version of judicial oligarchy. Originalism is not conservative in the sense of preserving legal principle. Rather, it is radical: a recipe for uprooting key features of modern law, including (at least) labor and safety regulations as well as environmental law. And originalists have no special mind-meld with the founding generation or with constitutional principle. Like anyone else playing the judicial-review game, they decide questions of fundamental law through the votes of nine politically connected judges.

Ryan D. Doerfler and Samuel Moyn: Reform the Court but dont pack it

The real irony in originalisms march to the heights of judicial power is that, under the banner of loyalty to law, history, and the prerogatives of democracy, originalists (and the rest of the conservative legal movement) pursued a strategy that showed just the opposite conviction: In an oligarchy, power belongs to those who choose and train the oligarchs. Over more than four decades, the Federalist Society has recruited, trained, and placed a right-wing legal elite in the countrys top institutions. It has done so because conservatives in the 1970sthe last decade when it was really possible to regard courts as vehicles of broad progressive reformsaw the legal profession as suffused with broadly liberal politics and jurisprudence. Legal liberals regarded their hegemony as the natural and proper state of the law. They recruited, trained, and placed their own legal elite, and thus provided the model for right-wing institution-building. The difference was that many liberals had grown complacent enough to forget that they were engaged in an ideological battle for control of oligarchic institutions. The conservative insurrectionaries did not forget.

Both originalism and living constitutionalism are versions of judicial oligarchy, fought out in battles for control of the courts. They cannot be anything else in a country with a frozen Constitution and partisan courts. The judicial opinions that the public reads are a kind of bookkeeping, documenting the balance of power. The Dobbs opinion had been written for years, in originalist dissents from abortion cases, in Federalist Society talks and journals. Justice Alitos 79 pages, plus appendices, is how the Supreme Court writes 63. That is six votes out of some 330 million Americans. But then again, Obergefell had only five.

So do we need to line up with our preferred oligarchs and fight like hell for control of judicial seats? Quite understandably, this has been the progressive attitude. It has the virtue of pragmatism. But it has the vice of accepting that we live under a basically undemocratic Constitution.

A more directly democratic approach would bring that pregnant phrase We the People back to life in the 21st century. This would mean amending Article V so that living generations could amend the Constitution and make a fundamental law that is actually our law.

The concrete results could be dramatic. Based on public-opinion polling, they might well include reinstating a baseline national abortion right, allowing for gun regulation that promotes public safety, and reauthorizing Congress and state legislatures to limit the campaign spending of corporations and wealthy individuals. Constitutional amendment could reform or eliminate the Electoral College, empowering national majorities to choose the president. It would be an opportunity to take on gerrymandering for House seats and the Senates two-seat-per-state structureboth major vehicles for minority rule.

There would be a more basic benefit too. A constitution makes democratic sense as a fundamental law, a limit on what legislatures and executives and even majorities of citizens can do with government power, if and only if those who live with it can consent to it when they wish, and change it otherwise. This was very clear to some of our Constitutions Framers, such as James Wilson (also an early Supreme Court justice), who insisted that the people would be able to change the Constitution whenever and however they please. This is a right of which no positive institution can ever deprive them. Although James Madison wrote that the Constitution he did so much to design was marked by the total of exclusion of the people in their collective capacity from any share in governmentthat is, our system boxes out direct democracyhe also held that the power to alter or abolish its established government always resided with the majority. (He justified the Constitutions arcane amendment process by denying that the United States was a nation; he considered it a hybrid of a nation and a confederationa position that far fewer citizens would find plausible today than in 1787.) To boil it down: Constitutional commitments have authority, as the Constitutions first words indicate, because they are the peoples commitments.

Its fine and good for judges to enforce these commitments and inevitably disagree about their meaning, as long as the people can give the final word. Originalisms basic problem is that living generations have no real way of consenting to the old Constitution. Living constitutionalisms basic problem is that living generations have no decisive way of stating what fundamental law they would prefer. Enhancing the democratic power to change or reaffirm the Constitution would solve both problemsand dissolve the need for both originalism and living constitutionalism as we know them.

How should we go about changing the Constitution, if we could? There is a lot of value in giving constitutional change a separate track from ordinary politics, so it does not become just another partisan football. Constitutional principles should come from the people in a different sense than laws, presidential elections, or midterms do. One way would be to hold a constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experience. The convention might proceed in two stages: state, local, or regional versions channeling their results and some of their personnel into a national convention. The convention would propose any constitutional changes its members endorsed, which would then go to a special national referendum. Offered, say, a proposal to reinstate Roe, authorize campaign-finance regulation, or rebalance the Senate, the people would speak via this process as a we.

Constitutional conventions have about the same odor in liberal circles as citizen sheriffs and the posse comitatuscranky tricorne-hat stuff interesting only to the populist right. This impression gets a boost from the ongoing conservative effort to call a convention through state legislatures, with the goal of amending the Constitution to require a balanced budget, term limits for federal regulators, and perhaps some other right-wing goals. But nothing about constitutional revision is intrinsically conservativequite the contraryand if it seems cranky, that is only because liberals became too comfortable with the idea that the Constitution was basically democratic enough and that the courts were politically congenial. Those conceits are hard to sustain now.

The most basic reason for constitutional change is not partisan at all, despite the fact that the right benefits from a frozen, anti-majoritarian Constitution and liberals are currently angry at the Supreme Court. Re-creating a constitutional politics for living citizens would make democratic self-rule a reality for everyone. The highest civic compliment we could pay one another would be to prefer the results of deliberation and voting today to an old Constitution interpreted by a few judges.

Could it really happen? After all, we start out in the world of Article Vs high barrier to change.

The first thing to see is that it will never happen if we dont think it will. Mass movements for constitutional change did succeed in the past, before all constitutional politics went to the courts. Mobilized citizens stripped the power to appoint senators from their state legislatures (and forced those same legislatures to ratify the change), authorized a federal income tax, granted women the vote, and, for better or worse, adopted and then repealed Prohibition.

Second, as noted, important constitutional Framers argued that the right to reform the Constitution belonged inalienably to the people. There is something to be said for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority. Constitutional rules are important, and backroom or minoritarian coups are always illegitimate, but if a constitution is about letting a people set their own fundamental law, then the people should be able to act democratically in order to make a more democratic constitution.

What about the dangers of majority rule? Generations of Americans have learned that constitutional barriers protect us from the tyranny of the majority. Would a more democratic Constitution dissolve those barriers?

There is no reason to expect that it would. A periodic convention to reassess the Constitution is a far cry from rolling referenda on whatever question arouses a moments passion. The First Amendment, the Fifth Amendment, the equal-protection clause, and so forth would be re-ratified in almost any imaginable constitutional processperhaps with some clarification that, for instance, freedom of speech does not mean unlimited money in politics. In any case, if majorities really wanted to reject these principles root and branch, courts would not save them from themselves for long.

Any government can hurt people. Power is always dangerous. Recent Supreme Court decisions are a reminder that channeling power through old texts and the decisions of robed lawyers does not mean it ceases being power. Democracy is the gamble that, all things considered, we are our own best rulers, and can trust one another further than we can trust any version of minority rulejudicial, geographic, class, or otherwise. To come closer to that principle, we need a Constitution that empowers us, the people (no need for capitalization), to set our own fundamental law.

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We Can Be Framers Too - The Atlantic