The Judicial Branch

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Constitution, Article I, Section 1.

“The executive Power shall be vested in a President of the United States of America.” U.S. Constitution, Article II, Section 1.

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Constitution, Article III, Section 1.

The above first sentences of each of the first three articles of our Constitution lay out the separation of powers in our government.  This separation provides important safeguards for our freedom: each branch serves as a check on the others, ensuring that no one branch overshadows, usurps, or diminishes the power of the others, and in so doing ensures that the people themselves do not lose their power and their liberty.

Judicial power itself is defined by Black’s Online Legal Dictionary as, “Authority, both constitutional and legal, given to the courts and its judges (1) to preside over and render judgment on court-worthy cases; (2) to enforce or void statutes and laws when scope or constitutionality are questioned (3) to interpret statutes and laws when disputes arise.”

Judges do not make the law and to ask or expect them to do so reveals a very basic misunderstanding of our Constitution.

The court’s job is not to legislate but is to address the existing law and how it applies to specific facts before it.  Judges explain what the law is; they interpret it and uphold it, even when they personally do not like it.  Only when a specific law or action is challenged will the judicial branch become involved and its role will be to evaluate the constitutionality or legality of that law or action in light of existing law and the Constitution.  Even when emotions run high about issues involved in the case, a court ideally does not let emotion rule the day.

Our elected legislators, representing our will, make the laws.  When we are unhappy with a law our recourse is to ask our legislators to change that law or, if we are dissatisfied with our legislator’s representation then our recourse is to vote for a different representative at the next election. 

Similarly, if we are unhappy with the actions of our executive branch when acting within its legal and constitutional authority, then our recourse is, again, to go to our legislature and lobby for a change in that legal authority and/or to vote for someone else in the next election.      

What is not given its own branch of government is personal subjective emotion.  Personal feelings are certainly a guiding force for one’s own behavior.  Many people with common emotions can use those emotions as a basis for advocating changes in law or policy.  Judges, like all humans, have personal predispositions and biases.  But, we cannot let personal feelings negate the rule of law.

We expect our judiciary to set aside personal prejudices and render disinterested and unbiased opinions.  We expect the judiciary to stay above the political and often emotional turbulence of the day and instead render decisions that will logically and rationally as well as legally stand up to the test of time, even when popular or political emotions change.  We expect our judiciary to focus on the legal questions presented by a case and to decide those cases fairly. Indeed, these expectations are necessary in our system of government.

We see this concept explained by Justice Roberts in the opinion upholding the president’s travel ban.  Justice Roberts wrote: “Plaintiffs argue that this president’s words strike at fundamental standards of respect and tolerance in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” He further noted that assertions that the president’s order was a bad idea, rather than supporting a finding of its unconstitutionality, were more simply statements of disapproval of the order or of the president.  “But”, he wrote, “we cannot substitute our own assessment for the Executive’s predictive judgments on such matters.”

The point is, that just because we don’t like something does not mean that it is, nor does it make it unconstitutional.  We in this country are governed by laws, not by a judge’s or anyone else’s personal beliefs or values.  We rely on the Court to recognize this principle and to remind us of it.  It prohibits us from substituting our own personal preferences as definitive of permissible Constitutional activity. 

It is the objective reasoning of the Judiciary that, along with the other two branches, protect our freedom as it exists under our democratic form of government.  Replacing that system of government with rule by popular or personal emotions is more dangerous than any of the rhetoric from the president or from other politicians on either side of the aisle.  Allowing personal feelings to eclipse our Constitution or to silence fact, reason, or opposing views can lead to only two results: anarchy or some form of dictatorship.

This concept is especially on my mind now as the discussion begins on the replacement for the retiring Justice Kennedy.  At this point in our history, when understanding of our Constitution and the role of law seems to be waning, and when the power of personal feelings as a method of decision making and control are seemingly at an all-time high, it is more than ever important that we select a jurist who understands his or her role as a Supreme Court Justice and also one who is willing to put his or her own emotions and biases aside when making judicial decisions.

I am concerned that too many elected politicians as well as their constituents will be looking for someone whose personal views agree with their own rather than someone who will be able to put those views aside and objectively review specific cases within the existing laws and Constitution.  I am concerned that some will be looking for someone who is willing to go beyond the assigned role of the judiciary in an effort to implement personal or political agendas.

The judicial branch serves a crucial purpose as do the other two branches of government.  Let us all take the time to both understand and support those purposes and demand that our fellow citizens do the same.

Silencing and Name-calling as Agents of Change

Favoring enforcement of the law, even when it calls for prosecution of illegal immigrants, does not make one racist.  In the past week I have been called that along with “anti-American,” “not human,” “a heartless devil,” “evil,” “un-caring,” “a Jew” (used in the pejorative – “even though I assume you are a Jew, you should still have some compassion”), “ignorant,” “selfish,” and “privileged.” I have been told my “exhausting and conformist” views (of following the law and our democratic process for its change) leave “zero room for change to help as many people as possible.”

No matter.  I stick to believing that in a country of laws, all laws must be enforced.  In this country we have a process for changing laws we do not like.  That process does not include name calling and other personal attacks.  It does, however, allow infinite room for change and has the ability to help enormous numbers, especially when the laws are equally and fully applied.

Yet, along with a prevalent misunderstanding or ignorance of our laws and Constitution, there is an even more dangerous attitude that is so prevalent that it is becoming a societal norm within this country.  That attitude is that it is OK to silence those with whom one disagrees; and, the preferred method of doing so is name calling and other personal attacks.  People who simply want to have a rational dialog or share information with others of varying views on an issue are shamed, silenced, and made to feel guilty about opposing views.

Even the American Civil Liberties Union (upon whose local board of directors I once sat) seems moving toward that norm.  That (previously) staunch defender of the First Amendment which includes the right of free speech, has now stated that "Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed.”  The ACLU will no longer defend all speech, but will weigh it against other social justice issues.  Certainly, social justice issues are important, but so is the right of everyone in in this country to exercise their Constitutional right to free speech, even when that speech is unfavorable to many.

The danger of this, of allowing free speech only when one’s views are acceptable, is that it gives enormous power to those deciding exactly what is acceptable as well as whom can be silenced.  Such a model is one of dictatorship where, eventually, the people have no voice at all.  The founders of our democratic republic, in contrast, stated that free people need a free marketplace of ideas.

Governments that place all power in one individual can be kind and benevolent, but they can also be cruel and inhumane.  In current and recent history alone, we can see examples of countries where the people have no voice and their only recourse is to violently rise up against their leaders until the protestors are either fully silenced, even to the point of death, or until some form of coup is successful.

Thankfully, in this country we the people have a voice that we can exercise productively and peacefully to bring about change.  I realize that some anti-Trump propaganda would have us believe that he is some form of dictator, but that is just not the case.  He may or may not want to be king (I personally doubt it), but he currently does not have that power and our system of government does not allow it.  Only when we fail to follow that system does it make the idea of kingship more possible.

Demanding that we follow our laws and follow our Constitutional process for changing unacceptable, outdated, or otherwise offensive laws does not mean that one is racist, evil, or the Devil.  More importantly, name-calling is not an effective agent of change, and the possible consequences of using it as such are more in line with 1984 than a government that cares about its people.   

A desire to follow the process to change a law does not necessarily reflect lack of compassion for those affected by the law.  Rather, it reflects a true belief in America and all that it stands for, including a government of, for, and by the people, a country where diverse views and opinions are welcome and can be discussed rationally, a country where we listen to and have tolerance for the opinions and views of others, even when those views are not ours.

Today's Thoughts and Observations on the Border Protests

1.   Crocodile Tears?

Where were all the tears, where was all the outrage when President Obama separated families at the border?  When he did that, anyone who criticized him was called racist.  So when did all these people suddenly find compassion for these children?  Or is it not compassion at all but really hatred – hatred of Donald Trump?

This is what I see.  I see masses of people who can’t think for themselves.  They are being used as they allow emotional manipulation to direct their behavior.  They don’t bother to know what the actual facts are about a situation – they just allow their emotions to be riled up by (often fake) photos and other emotional triggers, and then, as encouraged, scream, cry, and attack the Trump administration.

I really do not understand why people are so willing to allow themselves to be used.  Was their love of the previous president and/or their hatred of the current president so strong that they lost their ability to think and to see what is actually going on?  Do they not understand the emotional propaganda that is being used to keep them riled up and working as pawns for someone else’s very political agenda?

2.  Do You Know What You Want?

What is it the protestors want?  They said it was to keep families together, but they would not work to actually change the law, the enforcement of which requires separation.  Instead, they attacked the President for doing his job and enforcing the law.  (As Democratic Senator Schumer stated, the Democrats will reject any legislation to fix the border crisis. They want to “keep the focus on Trump.”) 

When President Trump saw that these people would not even attempt to work on legislation, he signed an executive order that at least temporarily keeps families together.  One would think that would satisfy the screamers.  But no.  Now they are angry that he signed the order.  Hmmm – is it the children they care about or is it really about hating Trump? What is it these people want?  Now it seems that many have moved on to demanding entirely open borders.  Do they even understand what that means or the consequences, both short and long term,  to our country?  I sincerely doubt that.

3.  Government 101

I also don’t understand how so many people in this country can have so little understanding of our government and how it works.  Anyone, with even a simple Google search, can find the basic role of each branch of government:  The legislative branch (Congress) writes and passes legislation (laws). The executive branch (the executive departments and the President and cabinet at the federal level) makes sure that laws are enforced and allocates necessary funding. The judicial branch (the court system) evaluates the laws passed by the legislative branch and determines whether they comply with the Constitution.  This is all laid out in the Constitution which I hope (but often doubt) that every citizen has read at least once.

In every election in which there is more than one candidate someone will lose, and the supporters of that person will not be happy.  But our job as citizens is to accept that the people have spoken and support the winner of the election in carrying out his or her duties.  If we are not happy with the winner, our course of action is not to assault him or her daily, but it is to support a different candidate in the next election.  While under our current government we do have the right to free speech, simply screaming and launching ad hominem attacks is not productive.  That is not how we unseat our elected officials.  In this country we vote.

4.  How Best to Change the Immigration (Or Any Other) Law

Even with just this basic information about the government, one wonders why those who are unhappy with our current immigration laws, are protesting against the executive branch which is simply doing its job of enforcing those laws (the same laws that were in effect when Obama was president and under which he prosecuted nearly 500,000 illegal immigrants, resulting in the separation of many families).  Either the people seem to think that the president has the powers of a dictator (he doesn’t) or they are simply using a situation as an excuse to attack the president.   

The immigration laws can be amended and rewritten in the legislature and that is why those who are unhappy with the law should be contacting their legislative representatives. Several bills have or will be introduced regarding immigration.  The Republicans in Congress have several times proposed bills that would overrule the 1997 order and allow children to be kept with their parents. The Democrats have opposed these bills.  Some bills call for complete immigration overhaul; others provide smaller fixes.  Some want open borders. 

I realize that the legislative process takes time (sorry, no instant gratification!), but it is the way in which the people govern. We elect our representatives and they speak for us in Congress. There are amendments and changes to bills. As in any negotiation, those representing various positions try to get as much as they can while giving up as little as possible. If the parties are willing to listen to and work with one another, they will come up with a bill that essentially represents the will of the people. That is called compromise! It is how we end up with government of/by/for the people. It is how our government works. And, those who are truly interested in fixing the problems they see with our current immigration laws should be reviewing the proposed changes and contacting their congresspeople to express their views. 

5.  Some Notes on the Law Itself

Many protestors also seem to be unfamiliar with the law itself.  In most instances, what people are complaining about is the treatment of people who enter the country illegally.  We have a legal process of immigration, we have legal ports of entry, and those who follow the immigration laws will not have violated the law and therefore will not be prosecuted.  That is, it seems that he protesters are attacking a problem that goes away if the families attempting to cross illegally would instead choose to follow the law. 

Those who enter our country illegally have broken the law and can be prosecuted under the law just as anyone who breaks any law can be prosecuted. The illegal immigrants are detained under the law. When an adult is detained in an adult facility, children cannot be kept there (just as children are not sent to prison with their parents who may be jailed for other violations of law). A 1997 court order requires the government to place immigrant children with a close family member or friend, and until that is accomplished to keep immigrant children in “the least restrictive means possible.” Hence, the children are kept in juvenile facilities. President Trump’s order now keeps families together, but that order can be challenged as violative of the 1997 court order. 

When one enters legally, there is no prosecutorial detention. (Note:  those seeking asylum at a legal port of entry will still be detained while the asylum claim is investigated and verified.   That is, just because one wants to enter, even when following legal processes, not every request will be granted.  To allow any one in without question would be to create open borders).  Those seeking entry are yet not citizens or legal residents. 

There is a distinction between legal and illegal which many either do not understand or have chosen to forget.  This makes many of their complaints unclear and ineffective.

6.  Inaccurate Words and Analogies

Screaming protests are especially not effective when they are based on either misinformation or lack of information.  For example, in the current immigration debate I keep hearing the words law and policy used interchangeably.  President Trump's policy is to fully enforce the law. He cannot change the law. The law is written by the legislative body. While President Obama’s policy was not one of zero tolerance, nonetheless, children were separated from families at the border under Obama whose administration was following the same law as the Trump administration. 

Particularly troubling is the comparison of this border crisis with the holocaust.  Not only does this show an appalling lack of understanding of both the law and the holocaust, it is simply an inaccurate comparison.  The facts reveal that the border situation is nothing at all like the holocaust in which Jewish and other residents of Germany where sent to concentration camps based on their religion or other identifiable characteristics and were in many instances then killed.  To call our border situation equivalent is to cheapen Nazism and genocide by making them simply synonyms for a bad or allegedly inhumane situation.  Anyone who thinks that is all that the holocaust was is completely ignorant on that piece of history.

7.  Don’t You See You’re Being Conned?

I don’t understand how the protestors do not feel that they are being duped.  By now we know that many of the most emotional photos are not of children currently separated from families.  Even the little crying girl, used to raise hundreds of thousands of dollars and appearing on the current cover of Time magazine as part of an attempted shaming of the President, was never separated from her mother according to her father and others.

What I don’t understand is why people allow themselves to be used by politicians who I suspect care little if at all for the children or the immigrants, but are instead simply using the protesters’ very laudable compassion to further their own political agenda, to attack Trump, and to enhance their own power.  How many of these people doing the bidding of the progressive leadership even know the details of the agenda they are supporting?

8.  My Request

I really don’t think that the many protestors are ignorant or stupid.  What I do think is that they are being conned.  I have great respect for those who have compassion for a crying child.  But I think that compassion is being exploited by some who have little concern for those children.  But, for those truly concerned with the immigration problem and fixing it, the focus needs to be on the legislature.  I simply wish that everyone would take a minute to understand why they are screaming.  Is it for the children? Is it for immigration reform?  Is it simply a primal scream of hatred of the president?  Or, are the screams simply being provoked by ones who are using a very noble and genuine compassion for a less noble agenda supporting only their own power? My request is that everyone stop for a moment and consider all of this.

On Screaming, Children, and Politics

Allison Hrabar, a DOJ paralegal and a member of the Democratic Socialists of America was among the group that accosted the Secretary of Homeland Security earlier this week and screamed at her while she attempted to eat dinner in a restaurant.  Hraber stated, “It feels really good to confront people who are actually responsible, which is what we have a unique opportunity to do in D.C.”  Sadly, this statement reveals much about the approach of many towards the responsibilities and problems of adult life.

“It feels good.”  Look at that statement.  It is not about constructively discussing an issue with others holding varying positions and viewpoints.  It is a self-centered statement.  It is not about productively presenting one’s views to another or about working productively to change a policy or law with which one doesn’t agree.  It is about confrontation and how that makes the confronter feel good.

Since Trump was elected many who favored another candidate or just didn’t want to see him as president have engaged in a perpetual temper tantrum.  In part, this is ginned up by opposition and establishment leaders who need soldiers in their fight against Trump and his threat to their power.  But it also reflects the sad state of the mind and maturity of many in this country, not to mention a lack of education about how our country works.

Throwing a temper tantrum makes a child feel better.  Tantrums and screaming are how children, who (appropriately developmentally) are self-centered,  show they are upset or frustrated, often because they cannot get something or do something that they want.  “Tantrums are common during the second year of life, a time when language skills are starting to develop. Because toddlers can't yet say what they want, feel, or need, a frustrating experience may cause a tantrum.” (https://kidshealth.org/en/parents/tantrums.html)

With only developing language and reasoning skills, a tantrum is the only way young children know to deal with a frustrating situation.   “As language skills improve, tantrums tend to decrease.”  The part of the brain that regulates emotion and controls social behavior should begin to mature about age four.  Additionally, the often irrational outbursts result from the fact that toddlers and preschoolers think magically, not logically.  This results in confusion and fear of events that are understandable to adult minds but not to children. The heightened arousal that this anxiety creates results in the child screaming or throwing a tantrum  (https://www.parenting.com/article/toddler-temper-tantrums). 

Tantrums are developmentally appropriate for young children.  They are not, however, appropriate in adults.   By the time they are 8 or 9, most children have learned to otherwise deal with the strong tantrum causing emotions.  When tantrums continue past the appropriate developmental age, it is either because the behavior is being rewarded or because there is a problem with the child’s development of the skills of impulse control as well as negotiation, problem solving and communication skills  (https://www.understood.org/en/learning-attention-issues/child-learning-disabilities/executive-functioning-issues/why-does-my-child-still-have-temper-tantrums).

I think there is a clear correlation between the behavior exhibited by many anti-Trump folks and a child’s temper tantrum.  These protestors are so overwhelmed by emotion that they can’t think. They seem self-centered, making everything about them. They are unable to have a rational adult dialog in which they discuss facts and issues.  So, they scream.  They shout down opposing views rather than respond and hold a dialog with those who disagree with them.  They end conversations by name-calling.  They simply cannot handle those who do not hold their views – like a child throwing a tantrum when mom says “no” they scream at anyone who disagrees.  Just like the toddler who is incapable of having a rational discussion with mom, these political screamers seem incapable of having a rational conversation about any issue with more than one viewpoint.

I don’t know why this is, but I have a few guesses.  First, I think we have a number of people who are used to always getting what they want.  In that sense, they are like spoiled children and when told no, they scream.  But, why not instead respond by opening a dialog to understand the viewpoint that is contrary to theirs?  I think because the education in critical thinking and problem solving is sadly lacking.  A number of people in this country seem incapable of understanding and evaluating facts; and, they seem incapable of separating fact from opinion.  When rational and logical thinking skills are under-developed, one will operate by emotion.   Add to all this the fact that many in this country have very little understanding of our country’s history or its government and how and why that government works. 

All of this can be used to the advantage of one who wants to create turmoil.  With little understanding of our government, with little capacity to critically think about issues, and with hearty emotions without a mature impulse control, it is easy to use emotional propaganda to incite what essentially amounts to a tantrum. 

I understand why those who are focused primarily on their own power find it useful to encourage these tantrums.  But I am so very troubled that this has become a predominant form of expression in this country.  Even those who should be our leaders have fallen to this unproductive and often destructive form of expression. 

In the past week we have seen many examples of childish behavior.  For example, the leader of the House Hispanic Caucus, Michelle Lujan Grisham, led her group to scream until blue in the face outside a meeting in which the president was attempting to resolve the border crisis.   She said this was the most important issue in her history as a legislator.  Yet, instead of attempting to address the problem productively with dialog and through legislation, she chose to simply scream.   Name calling (another childish coping behavior) has become almost the norm as leaders, entertainers, and just common folk hurl obscenities at the president, his family, and members of his administration.  The famous who launch obscenities are cheered by their peers as well as their followers.  Threats made to kidnap the president’s son and leave him with pedophiles, to rape the Secretary of Homeland Security, to kill and rip out the hearts of ICE agents are among just a few of the very troubling assaults that this week alone seem to have gone unnoticed or excused. 

When a 2 year old throws a tantrum I can ignore it knowing she will grow out of it.  I cannot ignore such behavior when it comes from alleged adults.  It will not stop unless we all refuse to encourage and accept it.  We must find a way to teach these screamers that: 1. They are likely being used by those who actually care very little about the screamers’ emotional issue, but are instead using the emotions in their own campaigns to retain or return to their own power; and, 2. That the screamers’ emotional position may indeed be valid and have a place in a discussion on an issue, but that discussion must take place in an adult and rational manner in which people with varying positions listen to one another and rationally problem solve toward a solution.

Please, screamers, stop screaming.  Use the ability that exists within your mind and think.  Listen to others, take time to research and evaluate facts before forming an opinion and then actually have a mature and rational dialog with someone holding a differing viewpoint.  Listen to their opinions and the rationales for them and try to understand that issues can have many possible and reasonable solutions, that those holding views alternate to yours are not the enemy, and that mature adults can discuss these things without name calling and can problem-solve with one another to reach good compromises.  This is what we used to do in this country and I pray that we begin doing it again.

Stop Letting Them Use Your Emotions to Control You!

The issue of the day is immigration.  We see photos of a crying little girl.  We are told babies are being torn from their mothers’ breasts.  We are told children are being placed in “concentration camps.” Of course, these are selective assertions, some of which are blatantly false.   All of this is used to motivate anti-Trump sentiment while making people so emotional that they can’t, don’t want to, or refuse to objectively look at all the facts and, more importantly, to THINK for themselves. 

Regarding emotional facts and their use as propaganda, Psychology Today states:

Propaganda traffics mostly in emotions, and not just negative ones. Propagandists appeal to our fears but also to our courage, our hatred and our love. The fact that propaganda is at heart an emotional manipulation also does not mean that our emotions and "emotionality" are bad. It means that our emotional system can be manipulated to destructive ends.

The antidote to the process of propaganda is the process of finding factual truth. The best way we have for doing that is through scientific inquiry, which referees competing claims systematically based on evidence. The propagandist process subordinates the facts to an agenda, even at the price of distorting or ignoring the facts altogether.

(The Con of Propaganda by Noam Shpancer Ph.D., https://www.psychologytoday.com/us/blog/insight-therapy/201702/the-con-propaganda )

The current propaganda attack about immigration plays to your compassion.  That human compassion that so many are feeling about the children at the border is a noble emotion.  But, sadly, it is being used to manipulate and exploit that emotion in a very un-noble and political agenda.

In the current emotional propaganda on immigration and children, you are not shown the actual housing for the children or the many services that are provided for them there.  You are not given the facts and statistics of the immigration laws, the numbers of those attempting to cross our borders illegally without any attempt to follow our very generous legal immigration laws and procedures, you are not told the numbers of criminals attempting to cross our borders, the child trafficking that occurs across the border, the number of “catch and release” families that have been allowed into the U. S. and then never followed through with appropriate paper work to become legal and indeed disappeared without returning for court hearings.  You are not told that there has been an enormous increase in the numbers of adults trying to cross with children that they fraudulently claim as family members.  And, you are certainly not reminded that those who are separated from their children are those who have broken our laws and committed an illegal act.   These are all facts that are relevant to this issue, as is the simple fact that we are a country of laws, not men (see earlier blog post On Law and Freedom, http://ps.pinkspolitics.com/2018/06/on-law-and-freedom.html ). 

I encourage everyone who is being swayed by the propaganda offensive  to listen to today’s briefing by the Secretary of Homeland Security which gives a much fuller picture of the problems at the southern border as well as actual facts about separations of children from parents:  https://www.c-span.org/video/?447252-1/homeland-security-secretary-nielsen-calls-congress-fix-immigration-policy&vod

We have laws and we cannot let emotion alone negate those laws.   We cannot let our sound and good emotions be manipulated for political gain.   If we become a country of emotion, not law, then we are certainly well on our way to anarchy.  Children on a playground let emotions rule their behavior.  Adults may be guided by their underlying emotions and values, but they create rules and then follow them while demanding that they be enforced.   At least, that is what adults in this country used to do.

Our government, as it should, is simply enforcing the law.  Congress makes the laws.  People who, upon examination of all relevant facts, would like to see the laws changed, should contact their Congress people.  I think that most everyone would agree that we need to resolve and update our immigration laws.  But we have a process for doing that, and it is not done by manipulating emotions and demanding that laws simply not be enforced.

Do not let emotional photos and misleading or incomplete facts keep you from using your mind.  Yes, consider the heart-wrenching facts and your emotional responses, but also consider other emotional facts that are more likely to cause feelings of fear or anger than compassion (such as the number of criminals illegally crossing and then lost in our country or the parents who separate themselves from their children and send them across the border alone or with criminals.) 

Objectively consider these things along with the existing law and what is the role of law in our society.  Those reciting the emotional anti-administration narrative also demand that the President and the executive branch “pause” enforcement of the law out of compassion.  Consider what a slippery slope this would create:  if whenever we have compassion that in some way conflicts with the enforcement of a law we just suspend the law, we eventually could have very few laws being enforced and those that are being enforced would be enforced subjectively and unevenly.  Moreover, by allowing this emotional control one sets the stage for even more manipulative propaganda.  And, propaganda is rarely used for the benefit of others, but rather for the benefit and power of the propagandist.

Perhaps you want to be a part of the fight for open borders or simply to unseat President Trump.  You have every right to make the decision to take that stand.  I only hope that it is indeed your decision to do so based upon all the relevant facts and not simply a result of emotional propaganda.

Ask yourself whether this is the direction you truly choose, or if your compassionate heart and legitimate emotion about children is instead being used by those whose agenda has little to do with children or immigration and more to do with amassing foot-soldiers in a far more calculated political agenda?  An agenda which is ultimately intended to create and maintain the power of those who are tampering with your kind heart.

On Law and Freedom

“A government of laws, and not of men.”

       – John Adams, Novanglus Essays, No. 7.

This quote keeps coming to mind as I listen to the cacophony of voices objecting to the separation of minor children from parents at the border.  The rhetoric is for the most part directed at the President as the name calling cast his way becomes more and more horrific.    I understand that when people are shown a picture of a crying 2 year old allegedly about to be separated from her mother that there is something wrong with their hearts if they do not ache for the poor child.  But, that heartache does not mean that we should not enforce our country’s laws.

Let’s take a breath for a moment and consider the facts.  John Adams also wrote  “Facts are stubborn things, and whatever may be our wishes, or inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” (Argument in Defense of the British Soldiers in the Boston Massacre Trials, Dec. 4, 1770).

So, what are some of the facts relevant to the separation of children from their parents?  First, we have immigration laws that prohibit illegal border crossings.    When adults illegally cross the border, they are placed in an adult detention center until it can be determined if they have a justifiable reason for entering the United States.  If not, they are returned to their side of the border.  If they have children with them those children are not placed in the adult detention center (would you really want that crying 2 year old or any other child placed in adult detention where a variety of criminals are also residing?).   Instead, those children are placed in a facility specifically designed for them.  No, it’s not home, but it has clean beds, activities, 3 square meals a day.  It is safe for a child until he or she can be reunited with his or her parents.   (We should also note that not all children placed in these centers crossed with their parents or other family members; some were unaccompanied minors and some were with adults unrelated to them who were crossing with the children for a variety of reasons, some very questionable at best).

It may seem cruel to separate these children from their parents, but this is simply a result of enforcing laws that are on the books.  No one complains when someone is placed in detention for breaking other laws and when so placed is separated from their child.  When someone breaks the law there are consequences and, when that someone has minor children then those children will likely suffer some of those consequences. 

And let’s also not forget that the parents of these children are knowingly committing an illegal act and choosing to bring their children into that illegal situation with all of its consequences.  These parents could choose to follow the legal immigration procedures and in so doing not subject their children to the possibility of separation from their parents.

Does this sound cold?  Perhaps so, but actually it is far fairer and more in line with our government and its freedoms than is an inconsistent enforcement of law.  For, when only some laws are enforced, then we become not a government of law, but of men.  And, when we let one or another decide which laws to enforce, or against whom those laws will be enforced, then we are turning over our power and our freedom.

This idea of the rule of law and its connection to freedom is not new.  John Locke wrote that freedom means being subject only to laws made by a legislative body that apply to everyone. (“The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it” Second Treatise of Government, 1690). Aristotle wrote that “It is more proper that law should govern than any one of the citizens.” (Politics, Book 3) The Oxford English Dictionary definition of “rule of law” includes “the principle whereby all members of a society are considered equally subject of publicly disclosed legal codes and procedures.”

John Adams first wrote the phrase “a government of laws and not men” in an essay published in the Boston Gazette in 1775.  In 1780 the Massachusetts Constitution used the phrase in the section outlining the separation of powers.   More recently, the term occurred in  the 1996 State of the Union Address  when President Clinton used the phrase in the context of immigration.  He spoke of his administrations “strong stand to stiffen the protection of our borders,” and then stated, “We should honor every legal immigrant here, working hard to become a new citizen. But we are also a nation of laws.”

We have a legislative branch of government which writes the laws.  The legislators are the duly elected representatives of the people of this country.  Once those laws are enacted we should be able to expect that they will all be enforced and enforced equally.  It is the job of the executive branch of our government to enforce those laws.  It is not up to the executive branch to decide which laws it will and which it will not enforce.  It we allow our executive to do that, then we are turning over our power to one person or group to rule us, perhaps at their whim, but even if done with what we see as compassion it is far more in line with an autocratic rather than democratic form of government.   It is this rule by a select or elite few and their ability to unfairly and arbitrarily apply rules that our founders hoped to protect us from as they created our Constitution and its separation of powers.   

So, next time you see the crying 2 year old, or hear the anti-Trump verbiage about his not stopping the separation of families at the border, remember that all he and the executive branch are doing is enforcing the laws – all of them.   They are doing their jobs.   It is not his or the executive branch’s place in our democratic republic to pick and choose which laws to enforce.  And really, is that a power that you would hand to any president?  That is, would you really rather have a government of men than of law?  A government where the ones in power could select what laws apply and to whom?

If you do not like a particular law, then demand that your legislators rewrite it.  Do not ask that it be ignored.  If the laws are subjectively enforced, then we no longer have a government of laws, but of a selective few who hold power at any given moment.  Wouldn’t you rather have a government in which the people, through their designated representatives in Congress, make the laws and then trust that the executive branch will enforce ALL those laws and apply them equally.    For that is what freedom is.   And that is why I stand behind the full enforcement of all the laws, even when it separates a mother from her child.

Depth of Thought – The Cake Case

For years many have been watching and arguing about the case of the Colorado baker who would not bake a wedding cake for a gay couple.  The case has been wending its way through the courts and outside of that process the arguments have, for the most part consisted simply of a re-articulation of one or more of the following phrases: “gays are protected/gays have rights”; “religion is protected/its expression is a right”; “gays are good/bad”; “religion is good/bad.” The line between two sides was well marked and as a result there was no hope of real communication or understanding, let alone any resolution.

Enter the Supreme Court of the United States and its final decision in the case issued this morning.  While the decision may not resolve the entire debate, and I am sure that folks will now begin a debate about the opinion itself, what that opinion also does is give us a good example of depth of thought and understanding.

Here is a link to the full opinion:  https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf.   I encourage everyone to read it.

Actually, the full opinion/decision consists of several opinions.  Justice Kennedy wrote and delivered the opinion and judgement of the court with which Chief Justice Roberts along with Justices Breyer, Alito, Kagan and Gorsuch joined.  Justice Kagen also wrote a concurring opinion (an opinion which agrees with the ultimate conclusion of the majority, but for different or additional reasons) with which Justice Breyer agreed.   Justice Gorsuch also filed a concurring opinion with which Justice Alito agreed.  Justice Thomas filed an opinion that concurred in part and concurred with the judgement; Justice Gorsuch joined that opinion.  Justice Ginsburg filed a dissenting opinion (one which disagrees with the holding/ultimate judgment of the court) and Justice Sotomayor joined in that dissent.

This may seem like a lot of opinions about one case and one might wonder why, instead of 59 pages the Court can’t simply state that the bakeshop won 7-2.  

We need these 59 pages for many reasons.  Following is the one that is the point of this blog.

These opinions, while displaying a depth of thought about and understanding of the issues involved in the case, also underscore the complexity of those issues.  Each opinion explains the basis of the author’s position and why, in that author’s opinion that position is superior to other differing yet also reasonable positions.  They reveal each author’s attempt to understand the complexities of the issues involved as well as to understand the reasoning behind each position on those issues.  These opinions are, in effect, a written dialog between the members of the court in which they present their understanding and support for their positions while listening to and respectfully responding to differing understandings.

This decision puts to rest the particular case of Masterpiece Cakeshop vs. Colorado Civil Rights Commission, but, this and other debates over this and other issues will undoubtedly continue.  What we all can learn from this opinion is that issues are far more complex than day to day rhetoric and sound bites allow.  In this opinion we have an example of the depth of understanding that we all should make an effort to achieve on all issues. 

It is only with respect for and understanding of opposing views such as we see displayed in this decision that we can ever have a true dialog which, if not able to completely resolve an issue at least allows us to continue a reasonable, respectful, and rational dialog rather that simply engaging in hate-filled debate.  Taking sides and throwing about rhetorical solutions solves nothing.  Depth of understanding and an open dialog which includes both explanation of the support for one’s assertions along with an open-mindedness to understanding of opposing reasoning is the only way that a free society can truly move forward and ultimately resolve the many issues with which it is faced.

So, read the opinion.   Whether or not you agree with the Court’s decision in this particular case, read this opinion as an example of how one can support one’s position with more than simple buzz words and phrases.  Read the opinion as an example of the sort of explanation and support that gives strength to the assertion of any particular conclusion. 

We are not all Supreme Court Justices, but we can all use this opinion as a model for our own discussions with others on issues and as a model for the type of understanding that we should strive for before asserting a particular position on an issue. When faced with someone with whom you disagree, try to emulate the sort of respect, discussion, and understanding that is apparent in the opinion.  Obviously, it requires work to reach this level of understanding about any issue, but that work is far more productive and positive than simply shouting down and not even listening to those who disagree.  Let depth of thought be our goal for it will lead to understanding and real dialog.

Jobs Report, Politicians, and Courage

Today the monthly job report for May was good news for anyone looking for work in this country.  The economy added about 223,000 net new jobs in May and the jobless rate hit an 18 year low at 3.8 percent.

This should please anyone who cares about the well-being of this country and its people.  Yet, in checking my afternoon news feed, the first headline I see is: “May Jobs Report is Great News for Everyone Except Democrats” and similar stories focused on how this will affect Democrat chances in November.

And therein lies a huge problem in this country.  Rather than caring about the well-being of the country, too many politicians care more about their own political success and power.  Rather than support and cheer successes of opponents when those successes are good for America, they prefer to cheer only when their opponent fails, not realizing that a failure of any politician, even an opponent, is a failure for the country if the opponent was working for the country's good. 

People, and especially the majority of politicians, take sides and rigidly sit there, attacking successes of those not in their own party and cheering failures of their opponents.  Am I crazy to think that there was once a time when people actually cared about the country, a time where politicians put that country first and above any particular party?

Currently in my state there is a race for Congressional Representative (the seat will be open because the current incumbent, a Democrat, is running for a different office, so the field is wide open).  The primary will take place next week and there are currently 5 (there were 6) Democrats vying for the chance to represent their party in the November election.  One would hope that any one of these people, if ultimately elected, would represent all the people of the District upon their arrival in Washington.  This, however, is likely not the case.

In a debate last month, the first question put to the field of 6 candidates was whether they would stand with the Democratic party and vote to impeach the president.  The first 4 answers were basically a simple “Yes.”  A fifth was more of a “yes, eventually.”  Only one candidate gave the thoughtful answer that he would want to let any investigation play out and then review all the facts before arriving at a decision on this issue.  Responses to most other questions followed a similar pattern.  Of course, the candidate whose answers were deep, thoughtful, and not just a regurgitation of party line is running behind in the polls. 

These 5 (previously 6) candidates are a microcosm of problems with politics and political leadership today.  Most simply say they will make things better or take care of this or that problem but provide no concrete plan of how they will do so.  Many voters seem to be willing to accept platitudes without more.  Most (candidates and voters) fail to see the depth and interconnections of many issues.  They seem to accept party rhetoric without thought or investigation of actual facts.  Many are playing the identity politics game:  the woman, the Native American, the son of immigrants, the homosexual.  While they (and many of their followers) may think that alone is a reason to vote for them, I would prefer to vote for someone for less superficial and more substantive reasons.  I would prefer to vote for a candidate with the courage to think for him or herself.

Sadly, across America we have candidates and voters who are willing to make major decisions based on such superficiality.  I realize it takes work to understand the duties of a particular elected office and to research and understand the substantive abilities and qualities of a candidate.  But this is work that it is any American’s responsibility to undertake.

Today we have many elected representatives not representing the entire body of their constituents, but rather representing their party.  Now it is fine to run on a party ticket; that allows voters to understand generally how the candidate will lean on various issues.  But, once elected, the representative is supposed to represent the people of the district – all the people – and not just those who are members of the same party.  But, because a majority of our politicians don’t seem to understand that, we have little more than robots in Congress:  individuals who fail to think for themselves but simple repeat and vote for the party line, regardless of whether that is best for their district or for the country.

And what is the result?  The answer is what we see daily:  two sides securely dug in, unwilling to actually carry on a dialog with those with opposing views and seemingly only capable of name-calling and otherwise attacking those who do not walk in lock-step with their and their party’s rhetoric.

I, personally, see this problem far more entrenched in the Democrats.  Perhaps that is simply because they are currently out of power or still looking to unseat the duly elected president whose election so shocked them to the point that many still think of him as illegitimate.  I don’t know.  But I do know that when we see things like Democrats being upset with a very positive jobs report, when we see them so focused on finding something – anything (as they grasp at straws) – with which to charge the president, when we see them and their supportive MSM ignoring the many accomplishments of this administration and/or actively tearing them down, then I do know that when I see this I become dismayed about the future of our country.   

So, today I will pray that there will be some Democrats, even those facing elections in November, who will have the courage to stand and applaud this jobs report along with other accomplishments of this administration that are positive for our country.  I will pray for the courage of politicians to care more about the country than their party of themselves.

(Note:  the specific election to which I refer above is that for Congressional District One in New Mexico; the candidate that I see as having courage to think for himself and go beyond mere party rhetoric is Paul Moya).