No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
June 22, 2022 (Wednesday)
There’s a lot going on, but I did not take a night off over the weekend and it’s catching up to me. Going to take the night off and get a good night’s sleep so I can be back at it tomorrow with a clear head for the next public hearing of the January 6 committee.
Buddy, too, is hard at it these days as the lobsters are starting to come in. Here was the view on his way to work at a quarter past four this morning. He labeled it: “Headed out to the gold fields.”
[Photo by Buddy Poland.]
June 23, 2022 (Thursday)
Then-president Trump’s demand of Acting Attorney General Jeffrey Rosen on December 27, 2020 was simple: “Just say the election was corrupt and leave the rest to me and the Republican congressmen." But the election wasn’t corrupt, and Rosen wouldn’t do as Trump asked.
Today’s fifth public hearing of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol was a barnburner. It explored Trump’s attempt to pervert the Department of Justice (DOJ), whose mission is “to enforce the law and defend the interests of the United States…and to ensure fair and impartial administration of justice for all Americans,” to the service of Trump alone.
By now, the committee has firmly established that there was no evidence for Trump’s insistence that the election was stolen from him. Instead, recounts, court cases, and investigations all showed that Biden was the true victor by more than 7 million votes in the popular count, and by 306 to 232 votes in the Electoral College, the same count by which Trump won in 2016 and which he called a “massive landslide.” There was no evidence for his claims, and Trump knew that. His own appointees, including his attorney general William Barr, had told him repeatedly that the incidents he cited as proof were not, in fact, real. Barr called his arguments “bullsh*t.” But Trump continued to push them, quite possibly simply to lay the groundwork for keeping control of the government by force.
Led by Representative Adam Kinzinger (R-IL), the committee members today questioned officials who served in the Trump administration at the end of his term: Jeffrey Rosen, who replaced Barr as acting attorney general in December 2020; Richard Donoghue, acting deputy attorney general and also a 20-year military veteran; and Steven Engel, assistant attorney general for the Office of Legal Counsel during Trump’s administration. Engel helpfully explained that the Office of Legal Counsel is essentially the lawyer for the attorney general and the president.
Rosen told the committee that Trump repeatedly pressured him and Donoghue to say that the 2020 election had been marred by fraud. But while they investigated his accusations, they found no evidence to support them. So Trump began to pressure them through public statements, telling television viewers as early as November 29, 2020, that the DOJ was “missing in action,” its leaders refusing to do their job. Members of Congress, who knew the allegations were false, echoed him. They included Louie Gohmert (R-TX), Andy Biggs (R-AZ), Paul Gosar (R-AZ), Matt Gaetz (R-FL), Jim Jordan (R-OH), and Mo Brooks (R-AL).
On December 21, a number of members of Congress met with Trump. Marjorie Taylor Greene (R-GA) was the only newly elected member; she would not be sworn in until January 3. The rest appeared to be members of the far-right so-called Freedom Caucus, formed in 2015 by Mark Meadows, then a congress member from North Carolina, and Mick Mulvaney, then a representative from South Carolina. (Both Meadows and Mulvaney would serve as Trump’s chief of staff during his presidency.) Jordan was the caucus’s first chair; Meadows was its second; Biggs was its third. Scott Perry (R-PA), who was there, is close to Jordan and Meadows.
Meadows, then White House chief of staff, tweeted that they had met to fight back against “voter fraud.” The next day, Perry went back to the White House with an environmental lawyer from the DOJ, Jeffrey Clark.
On December 24, Trump mentioned Clark to Rosen in passing. On December 26, Rosen asked Clark why Trump knew him. Clark admitted that he had met with the president when Perry took him—unexpectedly—to the White House. Clark was defensive, in part, perhaps, because there are strict guidelines to keep the DOJ and the White House separate to make sure there is neither impropriety nor the implication of impropriety when the DOJ investigates crimes. Clark promised Rosen it would not happen again.
And yet, Perry continued to text Meadows to urge him to put Clark at the head of the DOJ in place of Rosen. Trump told Perry to call Donoghue to push Clark’s elevation, saying Clark would get into the job and, unlike Rosen, “get in there and do some stuff.”
As Trump continued to press, he called Rosen and Donoghue at their homes late on December 27. Donoghue took notes. When Donoghue said the “DOJ can’t and won’t snap its fingers + change the outcome of the election,” Trump replied it didn’t have to. “Just say it was corrupt and leave the rest to me and the Republican congressmen.”
On December 28, Clark emailed to Rosen and Donoghue a letter alleging that the DOJ had “significant concerns that may have impacted the outcome of the election in multiple States.” It urged state legislatures to “consider objections” to the certified ballots and “decide between any competing slates of elector certificates.” The allegations in this letter were straight up false, but Trump wanted the Department of Justice to give them credence. Clearly, there was no time to actually conduct another investigation into the election before January 6; the letter was designed simply to justify counting out Biden’s ballots or, failing that, to create popular fury that might delay the January 6 count.
This attempt to use an investigation to corrupt politics echoed Trump’s attempt to get Ukraine president Volodymyr Zelensky to announce an investigation into the actions of Hunter Biden in 2019 to seed the idea in the U.S. press that Biden was corrupt. It also recalled the 2016 drumbeat of an investigation into Secretary of State and Democratic nominee Hillary Clinton’s use of a private email server. Indeed, the Republicans have deliberately used “investigations” to convince the public of things that are not true since 1994 investigations of “voter fraud” that elected Democrats, and even back to Senator Joe McCarthy’s “investigations” of communists in the government in the 1950s. In each case, the goal was not actually to find the truth; it was to plant in the public mind the idea that there were crimes being committed…for why would anyone investigate if something wasn’t amiss?
Clark wrote the letter on official DOJ letterhead and left places for Rosen and Donoghue to sign it. Both of them rejected it out of hand, in strong language. Clark continued to push, and then to call witnesses and start his own investigation. Clark was working with Ken Klukowski, who arrived at the DOJ on December 15 and who was working with John Eastman, the lawyer pushing the idea of Pence counting out the Biden electors in states Trump wanted to win, suggesting that Trump had installed a conspirator directly in the DOJ to work with Eastman on the project.
On December 31, Trump asked both the DOJ and the Department of Homeland Security to seize voting machines that he insisted had shifted votes; Rosen said they had investigated and the machines were fine. At the end of that meeting, Trump warned that he thought he should just get rid of Rosen and Donoghue and put Clark in charge because then things would get done.
Rosen continued to debunk the election claims Trump and his allies were sending and tried to stop Clark from egging Trump on; Clark doubled down and demanded they sign the letter. On January 3, Clark told Rosen that Trump had offered him the job of attorney general, replacing Rosen, and that he would decline the job if Rosen signed the letter.
Rosen asked for a meeting with Trump, Engel, and White House counsel Pat Cipollone. At that point, only four people knew what Clark and Trump were up to, but Rosen now included the assistant attorneys general, all of whom said they would resign if Trump replaced Rosen with Clark. Both Rosen and Donoghue vowed to quit, too. But White House call logs—which the Trump administration tried to keep private—show that Trump and Clark had been in constant contact, violating official policy, and by 4:19 that afternoon, Trump was already referring to Clark as the attorney general.
“What have I got to lose?” Trump demanded. In a meeting of more than two and a half hours, Rosen, Donaghue, and all the other lawyers present except Clark warned Trump that there would be mass resignations from the DOJ if he went through with his plan, and that his decimation of the DOJ would overshadow all of his claims about the election. Cipollone called the idea a “murder-suicide pact.” Trump backed down then, but at the Ellipse three days later, he repeated all his debunked claims about the election.
Trump called neither Rosen nor Donoghue on January 6, although they spoke to all other top lawmakers, including Vice President Mike Pence.
After the attack on the Capitol, the congress members who had participated in the December 21 planning meeting asked for presidential pardons. Those members included Biggs, Greene, Brooks, Gaetz, Gohmert, and Perry. (Gaetz is under investigation for sex trafficking a minor; presumably a blanket pardon would have covered that issue, too.) Biggs, Gaetz, and Gohmert sit on the House Judiciary Committee, which oversees the DOJ.
Jordan asked more generally about pardons for members of Congress who had worked with Trump to overturn the election. Trump awarded Jordan the Medal of Freedom, the nation’s highest civilian honor, on January 11, 2021. House Minority Leader Kevin McCarthy (R-CA) initially named Jordan, the top Republican on the Judiciary Committee, to serve on the January 6th committee and withdrew the other Republicans when House Speaker Nancy Pelosi (D-CA) rejected Jordan and Jim Banks (R-IN).
And Brooks wrote to Trump’s executive assistant Molly Michael, saying “President Trump asked me to send you this letter…. I recommend that President give general (all purpose) pardons to…[e]very Congressman and Senator who voted to reject the electoral college vote submissions of Arizona and Pennsylvania.”
When interviewed about the letter, Clark repeatedly took the Fifth Amendment against self-incrimination and invoked executive privilege. Yesterday, federal investigators executed a search warrant on Clark’s home in suburban Virginia. They seized his electronic devices.
At the end of today’s hearing, Representative Liz Cheney (R-WY), the January 6 committee’s vice chair, directly addressed Trump supporters: “It can be difficult to accept that President Trump abused your trust, that he deceived you. Many will invent excuses to ignore that fact. But that is a fact. I wish it weren’t true, but it is.”
June 24, 2022 (Friday)
At yesterday’s hearing of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, we heard overwhelming proof that former president Trump and his congressional supporters tried to overturn the will of the voters in the 2020 presidential election and steal control of our country to keep a minority in power.
Today, thanks to three justices nominated by Trump, the Supreme Court stripped a constitutional right from the American people, a right we have enjoyed for almost 50 years, a right that is considered a fundamental human right in most liberal democracies, and a right they indicated they would protect because it was settled law. Today’s Dobbs v. Jackson Women’s Health Organization decision overturned the 1973 Roe v. Wade decision that recognized a woman’s right to terminate a pregnancy. For the first time in our history, rather than conveying rights, the court has explicitly taken a constitutional right away from the American people.
These two extraordinary events are related. The current-day Republican Party has abandoned the idea of a democracy in which a majority of the people elect their government. Instead, its members have embraced minority rule.
The Dobbs decision marks the end of an era: the period in American history stretching from 1933 to 1981, the era in which the U.S. government worked to promote democracy. It tried to level the economic playing field between the rich and the poor by regulating business and working conditions. It provided a basic social safety net through programs like Social Security and Medicare and, later, through food and housing security programs. It promoted infrastructure like electricity and highways, and clean air and water, to try to maintain a basic standard of living for Americans. And it protected civil rights by using the Fourteenth Amendment, added to the U.S. Constitution in 1868, to stop states from denying their citizens the equal protection of the laws.
Now the Republicans are engaged in the process of dismantling that government. For forty years, the current Republican Party has worked to slash business regulations and the taxes that support social welfare programs, to privatize infrastructure projects, and to end the federal protection of civil rights by arguing for judicial “originalism” that claims to honor the original version of the Constitution rather than permitting the courts to protect rights through the Fourteenth Amendment.
But most Americans actually like the government to hold the economic and social playing field level. So, to win elections, Republicans since 1986 have suppressed votes, flooded the media with propaganda attacking those who like government action as dangerous socialists, gerrymandered congressional districts, abused the Senate filibuster to stop all Democratic legislation, and finally, when repeated losses in the popular vote made it clear their extremist ideology would never again command a majority, stacked the Supreme Court.
The focus of the originalists on the court has been to slash the federal government and make the states, once again, the centerpiece of our democratic system. That democracy belonged to the states was the argument of the southern Democrats before the Civil War, who insisted that the federal government could not legitimately intervene in state affairs. At the same time, though, state lawmakers limited the vote in their state, so “democracy” did not reflect the will of the majority. It reflected the interests of those few who could vote.
State governments, then, tended to protect the power of a few wealthy, white men, and to write laws reinforcing that power. Southern lawmakers defended human enslavement, for example, a system that concentrated wealth among a few white men. Challenged to defend their enslavement of their neighbors in a country that boasted “all men are created equal,” they argued that enslavement was secondary to the fact that voters had chosen to impose it.
The originalists on today’s Supreme Court have repeatedly emphasized that the states, rather than the federal government, should determine the laws under which we live. So, for example, in the Shinn v. Martinez Ramirez case decided on May 23, the court overturned a previous decision to say that two men on Arizona’s death row who had received ineffective legal assistance at their trials could not introduce new evidence at the federal level that would exonerate them. The decision said that such a review would “intrude on state sovereignty.”
And today, by a vote of 6 to 3, the court overturned Roe v. Wade, arguing that the right to determine abortion rights must be returned “to the people’s elected representatives” at the state level, even as states are restricting the right to vote. Justice Samuel Alito, who wrote the majority opinion, claimed that the Constitution does not protect the right to abortion because it does not mention that right. While the court says it is willing to protect some rights not mentioned, they must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” In a concurring decision, Justice Clarence Thomas suggested the court should also revisit the right to use birth control and to engage in gay relationships or marriage.
We are still waiting on another potentially explosive decision in West Virginia v. Environmental Protection Agency, in which the court will decide if Congress can delegate authority to government agencies as it has done since the 1930s. If the court says Congress can’t delegate authority, even if it waters that argument down, government regulation could become virtually impossible. Having taken the federal government’s power to protect civil rights, it would then have taken its power to regulate business.
And yet, just yesterday, the court struck down a New York state law restricting the concealed carrying of guns on the grounds that history suggested such a restriction was unconstitutional. In fact, in both the Dobbs decision and the New York State Rifle & Pistol Association v. Bruen, the court used stunningly bad history, clearly just working to get to the modern-day position it wanted. Abortion was, in fact, deeply rooted in this nations history not only in the far past but also in the past 49 years, and individual gun rights were not part of our early history.
The court is imposing on the nation a so-called originalism that will return power to the states, leaving the door open for state lawmakers to get rid of business regulation and gut civil rights, but its originalism also leaves the door open for the federal government to impose laws on the states that are popular with Republicans. Already, the same day that the court handed down a decision striking down Roe v. Wade on the grounds that laws about abortion should come from the states, Republican politicians are calling for a federal law banning abortion everywhere.
In its imposition of minority rule first by insisting on state’s rights and then by demanding federal protection of laws it wants, the Republican Party is echoing the southern Democrats before the Civil War. Like today’s Republicans, as they lost support they entrenched themselves first in the machinery of the federal government and then in the Supreme Court.
And, finally, when northerners realized that enslavers had gamed the system to spread slavery across the nation, they came together from all different parties to protest and to stand against that attempt to destroy democracy and hand the country over to a few rich men. Ironically, that was the birth of the Republican Party that, under Abraham Lincoln, worked to create a government “of the people, by the people, [and] for the people.”
Tonight, there are protests around the country.
June 25, 2022 (Saturday)
Today marks the anniversary of the Battle of the Little Bighorn in 1876, when Lieutenant Colonel George Armstrong Custer, who led the 7th Cavalry, lost his entire command to Lakota warriors after falling on them unexpectedly in their own territory. The only army survivor of the battle from Custer’s immediate command was a horse, Comanche, who became the 7th Cavalry’s mascot, trotted out draped in ceremonial black for years after the event itself.
The road to the Little Bighorn started during the Civil War. In 1862, Santee warriors in Minnesota rose up against settlers there after the U.S. government, financially strapped by the Civil War, stopped providing the food promised to the Santee by treaty. Soldiers put down the “Santee Uprising”—now known as the Dakota War—brutally, and terrified survivors fled west to what is now Montana to take shelter with their relatives, the Teton Lakotas.
The Lakotas welcomed their eastern relatives but discounted their horrific tales of the revenge enacted on the Santee insurgents (although the army had, in fact, hanged 38 Santee in December 1862 in the largest mass execution in American history). The Lakotas rarely saw an American, and they could not believe the lone traders who passed through their territory were a threat.
Lakota nonchalance ended abruptly in November 1864, when Northern Cheyennes, their allies to the south, straggled into Lakota villages with even worse stories than the Santees had told: stories of the massacre of women and children at Colorado’s Sand Creek, where drunken soldiers first killed surrendering Cheyennes and then mutilated their bodies, taking human remains as trophies. By 1864, American miners were pushing into Lakota territory over the new Bozeman Trail that stretched from the old Oregon Trail up to the Montana gold fields. Stories of the Sand Creek Massacre convinced the Lakotas that the interlopers must be resisted.
By 1865, the conflicts, now known as the Lakota War, had escalated to the point that after Confederate General Robert E. Lee’s surrender at Appomattox Court House, army leaders transferred General William Tecumseh Sherman from the southern battlefields to the Plains. To his intense frustration, he found it impossible to protect both the Union Pacific Railroad, which stretched across the middle of the country, and the Bozeman Trail, which went north, from Lakota attacks.
Caught between these two demands, the government chose to protect the railroad. In 1868, it abandoned the Bozeman Trail, giving the Lakotas control of what became known as the Great Sioux Reservation. This reservation covered most of the land from the Missouri River that runs through the center of what is now South Dakota west to the Big Horn Mountains. The treaty each side signed guaranteed that land to the Lakotas forever.
Forever turned out to be short.
Rising Lakota leaders Sitting Bull and Crazy Horse vowed to keep Americans off their land, but miners wanted gold and businessmen wanted railroads. By 1874, army officers decided to build a fort in the Black Hills to intimidate the warriors skirmishing with intruders. In 1875, they sent out the Boy General, George Armstrong Custer, along with a thousand soldiers, teamsters, scouts, and reporters, to find a place to build. Custer brought back ideas for a fort, but, more importantly, he also brought back news of gold in “them thar hills”—hills that belonged to the Lakotas.
Within months, prospectors in the Black Hills had thrown up boomtowns like Deadwood, which attracted about twenty thousand people in its first year. The government tried to buy the Black Hills, but Lakota leaders refused. “We want no white men here,” Sitting Bull said. “The Black Hills belong to me. If the whites try to take them, I will fight.”
Government officials interpreted Lakota refusal to sell as hostility. In December 1875, authorities told Sitting Bull, Crazy Horse, and other “hostiles” to report to agencies more than 250 miles away on the eastern side of the reservation by the end of January, or to expect war. For their part, Sitting Bull and Crazy Horse, who had never frequented the agencies, made no attempt to set off on a long journey in the brutal cold of a Dakota winter. It’s not clear they even got the message.
So on February 1, 1876, the War Department commanded the army to subdue the “hostile” Lakotas. A month later, General George Crook led 800 men into Lakota territory, hoping to fight the Indigenous Americans while their ponies were still weak from the winter. In mid-March, half of Crook’s men attacked a camp of Cheyennes on the Powder River, mistaking it for a village of Crazy Horse’s men. Cheyenne survivors took refuge with Sitting Bull, who had had enough. “We are an island of Indians in a lake of whites,” he told his people. “We must stand together, or they will rub us out separately. These soldiers have come shooting; they want war. All right, we’ll give it to them.”
Sitting Bull sent runners across the reservation, calling men who wanted to fight to meet at the Rosebud River to stand against the soldiers. By spring 1876, thousands of men had rallied to him. In early summer 1876, Sitting Bull’s camp was the largest in Lakota history; there were at least 1400 lodges, with individual men sleeping on their own or as guests in others’ tepees.
Badly underestimating the number of warriors he faced, Crook planned a three-pronged attack. Columns from west, east, and south would converge where the Lakota were hunting. Crook’s plan was crippled on June 17, when his own column, moving up from the south, crossed Lakota warriors near the Rosebud River. In a confusing battle obscured by dust and gunpowder, the Lakota managed to knock Crook’s men out of the campaign for the next six weeks.
Those weeks would prove crucial. As the other two columns continued their march, Indigenous Americans celebrating the outcome of the Battle of the Rosebud continued to pour into Sitting Bull’s camp, bringing the numbers up to about 7000 people, 1800 of whom were warriors. In the vibrant atmosphere, families visited, couples courted, and warriors danced. The numbers meant that the Lakotas and their allies had to keep moving to provide enough food for the horses. By June 24, they had settled on the river they called the Greasy Grass, the one soldiers knew as the Little Bighorn.
Unaware of the two columns approaching, the Lakotas were watching Crook’s soldiers but knew his battered troops were hunkered down. On June 25, a hot, buggy day, the Lakotas were lazing, the women digging wild turnips and the men swimming and lying about in the heat, when Custer’s troops fell on one end of their mile-long encampment. The soldiers cut down some women and children, but the Lakotas mounted their horses quickly.
Custer had divided his men into three battalions. He had sent one under Captain Frederick Benteen up the valley and out of action, and sent one under Major Marcus Reno to attack the camp. Recovering from their initial surprise, the Lakotas chased Reno and his men into the bluffs on the other side of the river. Then Custer’s battalion entered the fight. Custer ordered his men to dismount. The Lakotas promptly stampeded the army horses. Then, surrounding the desperate troops, the Lakotas killed the soldiers to a man. The U.S. Army lost 263 men that day, the Lakotas about 40.
“I feel sorry that too many were killed on each side,” Sitting Bull said, “but when Indians must fight, they must.”
June 26, 2022 (Sunday)
Defenders of the Supreme Court’s decision overturning Roe v. Wade insist that Dobbs v. Jackson Women’s Health does not outlaw abortion but simply returns the decision about reproductive rights to the states.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Samuel Alito wrote. He quoted the late Justice Antonin Scalia, who wrote: “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” This, Alito wrote, “is what the Constitution and the rule of law demand.”
The idea that state voters are the centerpiece of American democracy has its roots in the 1820s, when southern leaders convinced poorer Americans that the nation was drifting toward an aristocracy that ignored the needs of ordinary people. The election of 1824, when established politicians overrode the popular vote to put John Quincy Adams into the presidency, seemed to illustrate that drift. Supporters of Adams’s chief rival, Andrew Jackson, complained that a wealthy elite was taking over the country and, once in charge, would use the power of the federal government to cement their control over the country’s capital, crushing ordinary Americans.
The rough, uneducated Andrew Jackson, who promised to break the hold of northeastern elites on the government and return democracy to the people, began to articulate a new vision of American government. He insisted that democratic government should actually look like a democracy: it should be formed by the votes of local people, not those from some far-off capital, and it should be made up of those same ordinary voters, not eastern elites like Adams, whose wealthy president father, John, had reared his son to follow in his footsteps.
Jackson’s new vision made ordinary Americans central to the democratic system. Democratic government put the power into the hands of individual voters. Local and state government was the most important stage of this system; the federal government always ran the risk of being taken over by an elite cabal that could override the will of the people. It must always be kept as small as possible.
But there was a power play in this argument. By the time Jackson was elected president in 1828, white southerners already knew they were badly outnumbered in the nation as a whole. In that year, quite dramatically, a congressional fight over tariffs ended up with a strong bill that hurt the South in favor of northern manufacturing. Outraged, southern leaders with Vice President John C. Calhoun of South Carolina at their head claimed the right to “nullify” federal laws. (Jackson later said that one of the two regrets he had at the end of his term was that he “was unable to…hang John C. Calhoun.")
Congress lowered the tariff and the southerners backed down, but the idea that states were superior to the federal government only gained strength among southern enslavers as they felt the heat of a growing movement to abolish slavery. When it became clear that the U.S. might well acquire territory in Latin America, Democrats sympathetic to the South pushed back against the national majority that wanted to stop the spread of slavery into those lands by insisting on the doctrine of “popular sovereignty”: permitting the people who lived in a territory to decide for themselves whether or not to permit enslavement in it (although Mexico had outlawed enslavement in 1829). The U.S. acquired the vast territory of the American West in 1848, and two years later, Congress turned to popular sovereignty to try to avoid a fight about enslavement there.
The issue turned volatile in 1854 when Illinois Senator Stephen A. Douglas pushed through Congress a law overturning the 1820 Missouri Compromise and organizing two super-states out of the remaining land of the 1803 Louisiana Purchase. Rather than being free as the Missouri Compromise had promised, those huge states of Kansas and Nebraska would have enslavement or not based on the votes of those who lived there. This, Douglas insisted in his debates with Illinois lawyer Abraham Lincoln in 1858, was the true meaning of democracy:
“I deny the right of Congress to force a slaveholding State upon an unwilling people,” he said, “I deny their right to force a free State upon an unwilling people…. The great principle is the right of every community to judge and decide for itself, whether a thing is right or wrong, whether it would be good or evil for them to adopt it…. It is no answer to this argument to say that slavery is an evil, and hence should not be tolerated. You must allow the people to decide for themselves whether it is a good or an evil….” “Uniformity in local and domestic affairs,” he said, “would be destructive of State rights, of State sovereignty, of personal liberty and personal freedom.”
A strong majority in the U.S. opposed the extension of enslavement, but Douglas’s reasoning overrode that majority by carving the voting population into small groups the Democrats could dominate by whipping up voters with viciously racist speeches. Then, in the 1857 Dred Scott decision, a stacked Supreme Court blessed this plan by announcing that Congress had no power to legislate in the territories. In our system, this would mean that states taken over by pro-slavery zealots would eventually win enough power at the federal level to make enslavement national.
“A house divided against itself cannot stand," Lincoln warned Americans. “I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South.”
After the Civil War had proved the power of the federal government to defend the will of the majority from the tyranny of the minority, Congress found itself once again forced to override the will of state governments. When state legislatures put in place the Black Codes, which created a second-class status in the South for Black Americans, Congress passed and the states ratified the Fourteenth Amendment to the Constitution, overriding the Dred Scott decision to make Black Americans citizens, and establishing that “[n]o 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.”
Almost 80 years later, it was this amendment—the Fourteenth—to which the Supreme Court turned to protect the rights of Black and Brown Americans, women, LGBTQ, and so on, from state laws that threatened their health and safety or treated them as second-class citizens. In using the power of the federal government to guarantee “the equal protection of the laws,” it made sure that a small pool of voters couldn’t strip rights from their neighbors. It is this effort today’s Supreme Court is gutting.
When today’s jurists talk of sending decisions about civil rights back to the states, they are echoing Stephen Douglas. “Citizens trying to persuade one another and then voting” is indeed precisely how democracy is supposed to work. But choosing your voters to make sure the results will be what you want is a different kettle of fish altogether.
Why do i suspect Alito’s position will “evolve” when the fascists try to put through a national ban?
unfortunately, his position already claims a ban is constitutional. he says that it’s not a protected right. so either the states, or the federal government are free to ban it.
where we’ll see his views suddenly evolve is if congress is able to pass national protections.
given how he was totally fine with overriding ny’s modest gun violence protections, im sure he’ll be more than happy to say they can’t