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      David Brock on Clarence Thomas and supreme court hijack: ‘The original sin’

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      Thirty years ago, David Brock made his name as a reporter with The Real Anita Hill, a book attacking the woman who accused Clarence Thomas, George HW Bush’s second supreme court nominee, of sexual harassment. After tempestuous hearings, Thomas was confirmed. Brock – who memorably characterized Hill, a law professor, in sexist terms as “a little bit nutty and a little bit slutty” – was launched as a rightwing media star.Thirty years on, Thomas still sits on the court, the longest-serving hardliner on a bench tilted 6-3 to the right by three confirmations under Donald Trump. But Brock switched sides long ago, disillusioned by rightwing lies. He apologized for smearing Hill and eventually became a prominent Democratic operative, close to Bill and Hillary Clinton.He founded watchdogs and Super Pacs and kept on writing books. He dealt with his political conversion 20 years ago in Blinded by the Right: the Conscience of an Ex-Conservative. Now, with Stench: The Making of the Thomas Court and the Unmaking of America, he has returned to what he calls “the original sin” of the modern supreme court: “Thomas’s perjury to get on the court” and his allegedly untruthful answers to questions about his treatment of Hill and other women.“That’s my starting point,” Brock says. “And then I show over time that other justices misled the public in their Senate confirmation hearings based on their denial of the fact that they were opposed to Roe all along – which sort of came out in the wash with the Dobbs decision.”Dobbs v Jackson, which overturned Roe v Wade, removing the federal right to abortion, came in June 2022. The way it went down helped give Brock his subtitle. John Roberts, the conservative chief justice, sought to uphold Roe but Dobbs was decided 5-4 anyway, Roberts unable to sway any other rightwinger. As Brock sees it, Thomas now owns the court.View image in fullscreen“That was a tipping point,” Brock says, pointing to major rulings on guns, affirmative action, environmental regulation, corporate bribery, presidential immunity and more, all rightwing wins. “But the other thing about about Roberts is he’s let these ethical issues just sit there. They cast their own ethics code about a year ago – and it has no enforcement mechanism. He’s been a weak leader, I think.”If 2022 was the year of Dobbs, 2023 and 2024 have been the years of gifts and grift: a parade of reports, Pulitzer prize-winning in ProPublica’s case, about how Thomas did not declare lavish gifts from mega-donors with business before the court, prominent among them Harlan Crow, a billionaire with a penchant for Nazi collectibles.For Brock, “all the revelations about Clarence Thomas and the gifts put another layer on top of the book I was writing about the crisis of legitimacy at the court, as a result of the fact Dobbs was so unpopular. You had that ethical crisis as well.”Thomas denies wrongdoing. So do Samuel Alito and Neil Gorsuch, other hardliners with reported ties to rightwing money. Roberts refuses to testify on the issue in Congress. The result, as Brock says, is “a situation where polls show the supreme court is held in very low regard”.Brock holds Thomas in low regard too. On the page, he calls the justice “a scrapper and a battler”, a “supreme court justice turned showman”, and a “Bork without the brains” – a stinging reference to Robert Bork, the hardliner whose nomination failed in 1987, fueling rightwing determination to dominate at all costs.Brock says: “We went for a number of years when Thomas didn’t really speak from the bench at all [but] he’s been much more active in these last few years, and I think he’s a bit emboldened by the fact that he has now at least four colleagues who on many of these cases are going to agree with him.”Another driver of the court’s sharp rightward turn is Leonard Leo, the dark money impresario Thomas once called “the number three most powerful person in the world”. Brock could have used “the Leo Court” for a subtitle too, given Leo was “clearly was responsible for the three Trump justices”, via “an unprecedented move by Trump during the 2016 campaign, to provide lists to the Federal Society [which Leo co-chairs] of who he would nominate, as a way of bolstering his credibility with the evangelical right, which was skeptical of his personal behavior”.Leo also provided ballast for Mitch McConnell, the Republican leader in the Senate, as he ruthlessly blocked Barack Obama’s last pick for the court, Merrick Garland, “and so Trump was able to campaign on there being an open seat, and so … the McConnell strategy and the Leo strategy came together, and that is basically how Trump got elected”.In such terms, Brock has written a broad history of the court’s rightward shift from Nixon to Trump and after. But he has also written an old-fashioned broadside, a 300-page call for political action. Regarding Thomas, Brock wants impeachment.Identifying “eight specific areas of wrongdoing that require further investigation by Congress”, Brock says Thomas should first face scrutiny for his “bald-faced lie” in his confirmation hearings, when he categorically denied “any sexual discussion within the workplace”, a statement challenged by numerous witnesses.Brock’s other counts are linked to Ginni Thomas, the justice’s wife and a prominent far-right activist, and include failure to recuse in cases connected to her lobbying work and involvement in Trump’s election subversion; failure to disclose her earnings from the rightwing Heritage Foundation; and failure to disclose his own gifts from Crow, Leo and others.skip past newsletter promotionafter newsletter promotionView image in fullscreenBrock is not the first to call for Thomas to be impeached. In July, Alexandria Ocasio-Cortez launched her own attempt in Congress. Like the New York Democrat, Brock is a realist: he knows that even should Democrats retake the House and impeach Thomas, a closely divided Senate would be extremely unlikely to convict and remove. But that is no reason not to try.“Sometimes I play this thought experiment with myself about how the Republicans would exploit an opportunity to take advantage of their opponents’ vulnerabilities. I have no doubt that if the shoe were on the other foot and you had a Democratic Clarence Thomas, you’d have hearing after hearing, and I think you probably would have an impeachment inquiry.“And so what I argue is that even if you only get an impeachment hearing or investigation in the House, it would still shine light on all of this, and it’s still worth doing, even though we know we wouldn’t have the votes required to remove him. I think it would be a good experience for the public to air all this out.”Brock also says impeachment “would help make the case for supreme court reform”, yearned for by the left, in the face of staunch rightwing opposition.Another good idea for Democrats in election season, Brock says, is to keep a spotlight on Ginni Thomas. That spotlight may soon grow brighter. Citing two anonymous sources, Brock reports that Liz Cheney, the anti-Trump Republican, was responsible for blocking serious scrutiny of the Thomases by the January 6 committee, even as it uncovered evidence of close involvement in Trump’s 2020 election subversion.It’s an explosive claim – particularly as Cheney recently endorsed Kamala Harris for president. To Brock, it’s simply indicative of the damage the Thomases have done.“I think increasingly people are becoming aware that there’s something rotten at the core of the fact that Thomas refuses to recuse himself from these cases where his wife is actively involved 100% … she’s been a longtime, but very behind the scenes, influential operative.”So of course has Brock. Once, he was on the same side as Clarence Thomas’s most prominent supporters, among them Mark Paoletta, a lawyer and former Trump administration official Brock says “knew the truth of the Anita Hill accusations” but worked to instal Thomas on the court regardless.Strikingly, Brock also once moved in the same circles as Brett Kavanaugh, then a Republican aide and attack dog, now another member of the far-right bloc that dominates the supreme court, his own controversial confirmation, also beset by allegations of sexual misconduct, also part of American history.Such close connections to his subject help make Brock’s book a fascinating read. Asked how he will respond to attacks from former comrades, whether they read the book or not, he says: “Those will come with the territory.”

      Stench is published in the US by Knopf More

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      Erwin Chemerinsky on the need for a new US constitution: ‘Our democracy is at grave risk’

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      Among progressive scholars of the US constitution, Erwin Chemerinsky, dean of Berkeley Law, is widely considered pre-eminent. Now 71, he studied at Northwestern and Harvard and has also taught at DePaul, USC, Duke and UC Irvine. He has argued several cases at the US supreme court and written extensively about it.His last book, Worse Than Nothing, was a broadside against originalism, the doctrine touted by rightwing justices as they take an axe to hard-won rights. In his new book, Chemerinsky goes to the root of the problem with a still starker title: No Democracy Lasts Forever: How the Constitution Threatens the United States.Less than a hundred days from a presidential election which could see the return of Donald Trump, a candidate widely held to threaten cherished freedoms, Chemerinsky says: “I see an American government that is increasingly dysfunctional and that has lost the confidence of the people, in a society that is increasingly politically polarised. I worry greatly for the future of American democracy.View image in fullscreen“I wrote the book to explain how much of the problem stems from the constitution and suggest how it can be fixed.”In conversation, Chemerinsky patiently outlines the problem. It boils down to this: the US constitution is not fit for purpose.It was created in 1787 by a small group of white men who hashed out a deal in their own interests, chief among them protecting smaller states and owners of enslaved people. Those framers made foundation stones of economic and racial inequality and also erected enduring barriers to political equality including an electoral college that makes minority victory possible in presidential elections and two senators for each state regardless of population.The constitution has been changed, significantly in 1791, with the 10 amendments of the Bill of Rights, and between 1865 and 1870, after the civil war, with amendments to abolish slavery, expand the citizenry and give Black men the vote. There have been other major changes, not least the 19th amendment, which gave women the vote in 1920. A century later, though, change seems harder than ever.Consider the plight of the Equal Rights Amendment, which simply says “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” and which, as Chemerinsky describes it, “was passed overwhelmingly by Congress in 1972” as “a simple and un-objectionable statement”, but “even though 38 states at some point ratified it … is still not part of the constitution”.The ERA is stymied by pure politics. Pure politics – as practised by Republicans who benefit most from the enshrinement of minority control, as found in the stubborn persistence of Senate rules such as the filibuster that exist to block change – is of course eternal. And so as another election year grinds on, Democrats hoping to fend off Trump, Republicans seeking to tighten their grip on the levers of power, there the constitution sits, physically in the National Archives in Washington, theoretically near-impossible to change.Chemerinsky offers pointers to how change might be achieved – mostly by Democrats winning majorities in statehouses and Congress and working to sway public opinion towards the need for radical change, via a new constitutional convention. But he concludes with striking pessimism.“Our government is broken and our democracy is at grave risk, but I don’t see any easy solutions,” he writes. “A book that describes problems ideally should offer realistic fixes, but none are apparent … I desperately want to be wrong, either about my premise (that American democracy faces a serious crisis), or my conclusion (that fixing the problems will be hugely difficult or even impossible).”In conversation, Chemerinsky strikes a more hopeful note.“The constitution is revered,” he says, referring not just to the document itself but to rhetoric, teaching and even popular entertainment that has made demigods of Alexander Hamilton, James Madison and other framers. “That reverence has a cost in that it has kept us from focusing on its flaws and how much they contribute to our crisis of democracy.“I have argued that there should be a progressive interpretation of the constitution. But I also think it is time to begin considering a new constitution. I think people could ratify a new constitution even though this mechanism is not provided for in the constitution.”In short, as in most aspects of politics, it’s all a matter of will.On the page, Chemerinsky also devotes space to the question of free speech, a right guaranteed by the first amendment but forever contested. Among progressives, such contests now rage regarding protests against US support for Israel in its war in Gaza. Last April, that debate burst into Chemerinsky’s backyard – literally. A traditional dinner for students, given with his wife, the law professor Catherine Fisk, was interrupted by protesters.As Chemerinsky wrote, for the Atlantic, he was “stunned to see the leader of Law Students for Justice in Palestine … stand up with a microphone that she had brought … and begin reading a speech about the plight of the Palestinians”.Chemerinsky and Fisk “immediately approached her and asked her to stop speaking and leave the premises. The protester continued. At one point, [Fisk] attempted to take away her microphone. Repeatedly, we said to her: ‘You are a guest in our home. Please leave.’“The student insisted that she had free-speech rights. But our home is not a forum for free speech; it is our own property, and the first amendment – which constrains the government’s power to encroach on speech on public property – does not apply at all to guests in private backyards.”It was one dramatic and traumatic event in an episode that has turned the left against itself. Understandably, Chemerinsky is guarded about what happened in his backyard in April and its implications. But he is happy to explain his approach to free speech issues.“Absolutism rarely makes sense,” he says. “Free speech cannot be absolute. Perjury is speech, but it can be punished. An employer who says to an employee, ‘Sleep with me or you’re fired,’ is engaged in speech, but can be held liable. No one suggests gun rights can be absolute. No one believes that there is a right to have guns in courthouses or airports.”No one in normal society, perhaps. In the age of Trump, extreme beliefs surge.Chemerinsky also grapples with the specter of secession, amid increasing debate over the idea that in an age of deep division, states either right or left, red or blue, might decide to start out anew, perhaps prompting a new civil war.To Chemerinsky, secession by progressive states is just as possible as a rightwing move to secede, particularly if Trump wins the White House and Republicans take full control of Congress.“I do not think secession is likely,” he says, “and I certainly don’t think it is desirable. But I think it is a possible path we could be discussing more in the years ahead if there are not changes.”

      No Democracy Lasts Forever is published in the US by Liveright More

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      Joe Biden is politicizing US supreme court reform – and that’s a good thing | Austin Sarat

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      “Better late than never” is a useful maxim in all of life and in politics as well. On Monday, Joe Biden caught the “better late than never” bug when he unveiled a series of proposals to reform the US supreme court.Those proposals come more than two and a half years after the US president’s presidential commission on the supreme court issued its recommendations, and more than 40 years after Biden called former president Franklin Delano Roosevelt’s plan to impose term limits on the court “boneheaded”.In 2020, during his quest for the White House, Biden again distanced himself from people who were pushing for significant institutional reform at the court.How times have changed. That was before the court overruled Roe v Wade, the ethics scandals of justices Samuel Alito and Clarence Thomas came to light, and before the court gave the president almost blanket immunity from criminal prosecution.Biden announced his new thinking in a Washington Post op-ed, in which he detailed what he called “three bold reforms to restore trust and accountability to the court and our democracy”. They begin with a constitutional amendment designed to reverse the supreme court’s Trump v United States decision granting presidents immunity from criminal prosecution for their official acts.Biden calls it the “No One Is Above the Law Amendment”. It would “make clear that there is no immunity for crimes a former president committed while in office”.The second of Biden’s reform proposals would impose term limits on the justices who sit on the supreme court. It would institute “a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court”.Third, Biden called for enacting “a binding code of conduct for the Supreme Court”. Justices, Biden wrote, “should be required to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest”.While each of these proposals is a wise response to the current crisis of the supreme court, none of them has any chance of being enacted in the near future. Still, Biden has done a service by going public with these ideas and politicizing the court reform question.His op-ed and speech on court reform at an event commemorating the passage of the 1964 Civil Rights Act will help ensure that supreme court reform is a live issue during the remainder of the 2024 presidential campaign.The first of Biden’s proposals, the call for a constitutional amendment, is the most important but also the most difficult to achieve among his three ideas. Like earlier versions of the same idea, it offers an important vehicle for engaging the public in resisting yet another exercise of judicial supremacy by our increasingly rogue supreme court.America has a long history of using the amendment process to reverse repugnant supreme court decisions, like Trump v United States. But as Harvard Law’s Jill Lepore notes, over the long arc of American history, amending the constitution has “become a lost art”.In fact, Lepore noted elsewhere: “The US Constitution hasn’t been meaningfully amended since 1971.”However, by supporting an amendment to reverse Trump v United States, Biden has teed up a winning issue for Kamala Harris. Polls show that 65% of Americans do not think presidents should have immunity for actions taken in office.Among independent voters, that number is 68%.Even larger majorities support 18-year term limits for supreme court justices. As the Biden commission noted: “Up until the late 1960s, the average term of service was 15 years. It has now risen to roughly 26 years, and a number of Justices have served three or more decades, spanning numerous election cycles and presidential administrations.”skip past newsletter promotionafter newsletter promotionThis may be why a Fox News Poll conducted earlier this month found that 78% of the respondents favor that idea. That is up from 66% in 2022.While term limits are popular, it is unclear whether Congress could impose them by ordinary legislation or whether this proposal would also require a constitutional amendment. Even Biden’s supreme court commission was divided on that question.As an article in Forbes explains: “Article III of the Constitution states judges ‘shall hold their Offices during good Behaviour,’ which has been interpreted to mean justices have to hold lifetime appointments. The commission said Congress could get around the issue by having only the most recent justices hear most cases, which originate in lower courts, while still keeping the older ones on to hear cases that originate in the Supreme Court.”“That strategy … would create the ‘effective equivalent’ of term limits without actually violating Article III by kicking justices off the court.”What is clear is that Donald Trump is on the wrong side of the supreme court term limits idea. Earlier this month, the former president branded court reform proposals such as term limits “illegal” and “unconstitutional”.“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court,” he posted on Truth Social. “We have to fight for our Fair and Independent Courts, and protect our Country.”Trump is even out of step with his supporters on the idea of term limits for justices. Newsweek says: “Among those who voted for Trump in 2020, 54% supported term limits, while 20% opposed them.”Finally, a Politico/Morning Consult poll conducted last September showed that “three-in-four voters want the justices bound to an ethics code, the most popular reform proposal in the survey”. This figure reflects what Politico calls “a bipartisan consensus of 81% of Democrats, 72% of Republicans, and 69% of independents”.Here, too, Maga world is on the wrong side politically, as well as on the wrong side of history. Just last month, as NBC News reported, Senate Republicans “blocked a Democratic-sponsored bill that would have required Supreme Court justices to adopt a binding code of conduct”.In the end, no matter how Biden’s proposals play out in the presidential contest, by politicizing the issue, by going public with them in a high-profile manner, the president has offered the people of the United States a chance to make their voices heard about the kind of supreme court they want. It is now up to all of us to take him up on that offer and use our votes to weigh in on this most important question.

      Austin Sarat is a professor of jurisprudence and political science at Amherst College and the author of Lethal Injection and the False Promise of Humane Execution More

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      House Democrat pledges amendment to reverse Trump immunity ruling

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      A Democratic congressman is calling for a new constitutional amendment to reverse the supreme court’s ruling granting presidents broad immunity from criminal prosecution, a decision that could hamstring the federal case against Donald Trump over his efforts to overturn the results of the 2020 election.Congressman Joe Morelle, a New York Democrat, raised the idea on Monday, just hours after the supreme court issued its 6-3 decision, which fell along ideological lines.“I will introduce a constitutional amendment to reverse Scotus’s harmful decision and ensure that no president is above the law,” Morelle wrote on X. “This amendment will do what Scotus failed to do – prioritize our democracy.”But Morelle’s plan is highly unlikely to succeed. A constitutional amendment can be proposed either by a two-thirds majority vote in the House and Senate or by a constitutional convention, which may be called by two-thirds of state legislatures.With Republicans controlling the House of Representatives and a majority of state legislative chambers, that hurdle appears impossible to overcome. Republicans largely celebrated the court’s ruling as a win for the rule of law, despite legal experts’ warnings that the decision could set a dangerous precedent for future presidents.“Today’s ruling by the court is a victory for former president Trump and all future presidents, and another defeat for President Biden’s weaponized Department of Justice and Jack Smith,” Mike Johnson, the Republican House speaker, said on Monday.Even if a two-thirds majority of Congress members did somehow come together to propose Morelle’s suggested amendment, it would need to be ratified by three-quarters of state legislatures to be added to the constitution. Given that Democrats control just 41% of state legislative chambers, ratification efforts would almost certainly prove futile.With few options to challenge the court’s ruling, Democrats seem intent on turning the immunity case into a campaign issue. As he addressed the court’s decision on Monday evening, Joe Biden called on Americans to prevent Trump from returning to the White House at a time when “he’ll be more emboldened to do whatever he pleases”.“Now the American people have to do what the court should have been willing to do and will not,” Biden said. “The American people have to render a judgement about Donald Trump’s behavior.” More

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      Making US public schools display the Ten Commandments isn’t harmless or neutral | Judith Levine

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      I was 10 in 1962, when the supreme court ruled, in Engel v Vitale, that the officially sanctioned recitation of prayer in public schools violated the constitution’s first amendment, which prohibits the establishment of a state religion.Before that, my school day started with the Pledge of Allegiance, followed by an appeal to God. We rose and pushed our chairs under our desks. Then we stood erect, gazed at the flag sticking out at an angle above the blackboard, and placed our right hands over our hearts. After the pledge, we bowed our heads and said a prayer composed by the New York state board of regents, which held authority over the schools: “Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers and our country.”As far as I could tell, none of this presented a problem for my classmates, almost every one of them Italian, Greek, or Irish Catholic. Many kids clasped their hands during the prayer.But as the only Jew in the class and the daughter of militantly atheist socialists to boot, saying these words every day was no simple exercise.To my parents, both the pledge and the prayer constituted authoritarian brainwashing. They had reason to suspect oaths of allegiance. Under the anticommunist regime of Senator Joe McCarthy, my father, a high school teacher, was required to sign a loyalty oath disavowing membership in the Communist party. He refused, and, like other government employees on the left, resigned rather than be fired.Although the Pledge of Allegiance contained no such explicit ideology, in 1954 Congress added the words “under God” to the pledge, a rebuke to godless communism. My parents weren’t thrilled by this conflation of patriotism and theism. But even if the US deserved fealty – and my mom and dad were not convinced it did – they objected to children being trained to give it by rote.It was the prayer that really riled them, though. Its authors called it “non-denominational”, but that did not distract the supreme court, or my parents, from the law’s intent: “to further religious beliefs”, said the justices – a clear breach of the separation of church and state. “In this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,” they wrote.I’d been attending civil rights and Ban the Bomb demonstrations since infancy. I was an unswerving non-believer as far back as I could remember. I was proud to be different, because nonconformity meant rejecting lies and standing up for what was right.Still, a kid wants to fit in. It was hard enough being Jewish. Hurtful to endure casual antisemitism (“I hate Jews,” an erstwhile friend announced one day, out of the blue). Uncomfortable to be left alone with the teacher and the one Protestant girl on Wednesday afternoons, when the Catholic kids were excused for “catechism”.It was dicey being an atheist. In third grade, I was consumed by terror after my three best friends convinced me that if I didn’t start believing in God I would end up in hell, which they described in ghastly detail. Anti-communism also threatened my family’s security – I kept that part of me a secret.Mom and Dad assured me that the law allowed me to remain silent or leave the room during the prayer, and they’d support my doing so even if it were illegal. I wanted to. But didn’t they understand that either act would only call attention to my apostasy?I was destined to betray something or someone – America, God, the truth, my family. Or myself. But what elementary school child knows who that is? What child should be compelled to figure it out?Jeff Landry, the Republican governor of Louisiana, recently signed a law requiring that the Ten Commandments be displayed in every classroom. “If you want to respect the rule of law,” he said, “you’ve got to start from the original lawgiver, which was Moses.”It was a nod to the “Judeo” in the “Judeo-Christian values” the Christian right is forever invoking – never mind that some people are neither Jews nor Christians, but Hindus, Muslims, Buddhists, or none of the above. The Republican state representative Dodie Horton insisted that the law “doesn’t preach a certain religion”, but merely “shows what a moral code we all should live by is”.These statements recall New York’s statement on moral and spiritual training in the schools, in which the “non-denominational” prayer was published three-quarters of a century ago. “We believe that this statement will be subscribed to by all men and women of good will,” the officials wrote, “and we call upon all of them to aid in giving life to our program.”Civil libertarians are challenging the Louisiana law. Its supporters are keen for the challenge, betting that the justices who have begun removing bricks from the constitutional wall of church-state separation will demolish the whole thing this time. Republican politicians in Texas have already indicated they plan to follow Louisiana’s lead.Government-mandated religion is patently unconstitutional. It reproduces the religious coercion that Europeans came to this continent to escape. It is no boon to children’s spiritual or civic education. Rather, it is harmful to children – or some children, as it was to me. And legally and morally, even one is too many.
      Judith Levine is a Brooklyn journalist and essayist, a contributing writer to the Intercept and the author of five books More

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      The Year of Living Constitutionally: a man, a political plan … and a musket

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      Would you fly the Jolly Roger for Uncle Sam? AJ Jacobs tried to. For 12 months, the author and journalist became what he calls “the original originalist”, seeking to live the way the founders envisioned life under the US constitution.That life included the right to piracy on behalf of the US government. It sprang from a tradition predating the constitution, when the Continental Congress granted letters of marque and reprisal, allowing seamen to capture British ships. Noting this precedent, Jacobs brought an unconventional offer to Ro Khanna, a Democratic congressman from California, when the two met in a hotel lobby.“I said, ‘I’m following the constitution and would like to be granted a letter of marque and reprisal,’” Jacobs recalls. “He said, ‘Great, let’s make it happen.’ I explained to him what it was: basically legalized piracy. I would fight our enemies on my friend’s water-ski boat.”After that, Khanna “was a little more like, ‘Maybe this is not going to happen.’”Jacobs didn’t get his Captain Jack Sparrow moment. But he did get a book out of the experience, The Year of Living Constitutionally: One Man’s Humble Quest to Follow the Constitution’s Original Meaning, which has received multiple votes of approval – including from Khanna.“He did like the idea of the book: trying to explain the origins of the constitution, what it really means, what it says.”In 2007, Jacobs published the results of a similar project, The Year of Living Biblically.“They have a similar status in our society,” he says, of the Bible and the constitution. “Some people see them as sacred and try to follow them in the original meaning as it was written.”Others look to adapt the texts for a modern era. For the constitution, this has evolved into a debate between originalists and living constitutionalists. Jacobs interviewed scholars across the spectrum.View image in fullscreen“This was my favorite part. They were super-generous with me.” Some were “people who were the most liberal and progressive and saw the constitution as having no intrinsic meaning, it could be molded like Play-Doh”. Others felt that “whatever the constitution meant then is what it means now. One guy refused to capitalize the S in ‘supreme court’. In the constitution” – as in the Guardian style guide – “the S is not capitalized … It was a wide range.”The originalists have been getting the better of things lately, including on the supreme court. And it was originalism – and the Guardian – that helped nudge Jacobs toward his book idea.After the 2022 supreme court decision Dobbs v Jackson, which overturned Roe v Wade, removing the federal right to abortion, a Guardian editor asked Jacobs to cover an unexpected trend. It related not to abortion, which was suddenly up to the states, but to vasectomies, which a surprising number of American men were choosing to have.“I am the type of journalist who tries things out myself and writes about the effort,” Jacobs says. “I did not feel like getting a vasectomy. I did not know if I was the right person for that interesting storyline.”What he did feel like was exploring the originalist mindset. He came across a startling statistic: at least 60% of Americans, including himself at the time, had not read the constitution from beginning to end, despite it running just four to six pages. It was time to delve into “what it really says, what it really means, instead of getting it filtered from whatever media you happen to be partial to. Let’s read what it actually says.”When it came to the right to piracy, although Jacobs couldn’t sail the high seas he did receive an email from a Khanna staffer addressing him as “Captain Jacobs”. Then there was petitioning the government. Instead of the online approach, Jacobs brought a scroll somewhere near 200ft long into the office of Ron Wyden, a Democratic senator from Oregon. Hundreds had signed the scroll. When Jacobs took some notes using his quill pen, it left ink on Wyden’s carpet. Jacobs added $50 to his taxes to foot the bill. (The subject of his petition was “Let’s have co-presidents”, a cause advocated by some founders, with Benjamin Franklin recommending 12 chief executives at once.)State laws came into the picture too. Free-speech advocates might be surprised by how much states policed what Americans said in the early republic. New York fined those who blasphemed or cursed 37 and a half cents. Jacobs did the same with his three sons, though they declined to come up with a half-cent.“It was not an easy year,” he says. “It was about as hard as The Year of Living Biblically.” That said, there were some differences. With the Bible, Jacobs “grew a huge beard. This did not involve as much facial hair.” But his appearance and lifestyle changed in other ways. He wore a tricorn hat, carried a musket, consumed an unusual amount of cloves, wrote with a quill, and woke up at the hour recommended by Franklin: 5am.View image in fullscreen“I tried to express second amendment rights the old-fashioned way,” he says. “I got a musket off ye olde internet and carried it around the Upper West Side where I live. A lot of people were crossing the street. People gave me a scowl.” When he brought it into a coffeeshop, a customer invited Jacobs to go ahead of him in line.“It’s sort of a good example of how this year went. At times, it was very strange, bizarre and awkward. But it was also, at the same time, incredibly enlightening and fascinating. I do think it gave real insight into how we should interpret the constitution.”He was particularly pleased with one custom: election cakes, meant to spur civic participation. Jacobs got volunteers representing all 50 states to bake election cakes last year. He plans to do it again.Although Jacobs appreciated the chance to adopt an 18th-century detachment from the near-constant news of today, he appreciates the progress America has made, saying: “It was terribly sexist and racist towards women, Black people and Indigenous people. I don’t want to go back to that.“Women’s rights were very constrained, especially married women, who were treated like children. They could not sign contracts. My wife owns a business. She signs several contracts a day.”Jacobs’s wife, Julie, let him take over contract-signing – then fired him after an hour.Jacobs also examined how 19th-century abolitionists saw the constitution. William Lloyd Garrison was so outraged by its stance on slavery that he advocated burning it – and did so. Frederick Douglass, who was formerly enslaved, had the same view but changed his mind and recommended Americans view the constitution as a promissory note.“Douglass says, ‘Let’s work to make America live up to the principles in the constitution.’ It becomes a very powerful way of looking at the constitution. Martin Luther King Jr talks about the constitution as a promissory note. Barack Obama gave a great speech that said the seeds of freedom were planted in the constitution … The solutions to the problems of the constitution are in the constitution itself.”
      The Year of Living Constitutionally is published in the US by Crown More

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      House Republicans’ bid to impeach Alejandro Mayorkas fails in US Senate

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      Senate Democrats on Wednesday dismissed the impeachment case brought by House Republicans against Alejandro Mayorkas, the homeland security secretary, on grounds that the charges failed to meet the bar of “high crimes and misdemeanors” outlined in the constitution as a basis for removing an official from office.In a pair of party-line votes, Democrats held that two articles alleging Mayorkas willfully refused to enforce the nation’s immigration laws and breached the public trust with his statements to Congress about the high levels of migration at the US southern border with Mexico were unconstitutional. On the first article, the Alaska senator Lisa Murkowski, a Republican, voted “present”.Democrats then voted 51-49 to adjourn the trial, just one day after House Republicans presented the articles to the Senate. Chuck Schumer, the senate majority leader, moved to dismiss the charges outright, arguing that a cabinet official cannot be removed from office for implementing the policies of the administration he serves.“It is beneath the dignity of the Senate to entertain this nakedly partisan exercise,” Schumer said in a floor speech opening Wednesday’s session.Constitutional scholars, including conservative legal experts, have said the Republicans’ impeachment case is deeply flawed and weakens Congress’s most powerful tool for holding despots and delinquents to account. But Republicans pushed ahead, arguing that Mayorkas’ handling of the southern border warranted a historic rebuke.“This process must not be abused. It must not be short-circuited,” Mitch McConnell, the Senate minority leader, said, imploring Democrats to hold a full trial. “History will not judge this moment well.”After the Senate convened as a court of impeachment, Schumer offered his plan to hold votes to dismiss the two articles of impeachment after limited debate. Senator Eric Schmitt, a Republican of Missouri, immediately objected to Schumer’s proposal and accused the Democratic leader of “setting our constitution ablaze” by seeking to dispense with the charges against Mayorkas.The majority leader then called for votes to dismiss the trial, setting off a series of procedural maneuvers by Republicans to delay the proceedings, all of which were rejected 51-49 by the Democratic majority.Had they moved to a trial, Republicans still would have lacked the support of two-thirds of the Senate that is needed to convict and remove Mayorkas from office.Mayorkas has denied wrongdoing, defending the work of his agency as it grapples with soaring migration and a refusal by Congress to act.“As they work on impeachment, I work in advancing the missions of the Department of Homeland Security. That’s what I’ve done throughout this process,” Mayorkas said on Wednesday during an appearance on CBS to discuss a new federal initiative to combat online abuse of children.Democrats cast the impeachment effort as election-year political theater designed to draw attention to the situation at the border, one of the president’s biggest liabilities. Donald Trump, the presumptive Republican presidential nominee, has made immigration the centerpiece of his campaign for the White House.“The impeachment of Alejandro Mayorkas has nothing to do with high crimes and misdemeanors and everything to do with helping Donald Trump on the campaign trail,” Schumer added on Wednesday.He charged Republicans instead to join Democrats in passing the bipartisan Senate border bill aimed they derailed at Trump’s behest.Some Senate Republicans have expressed deep skepticism of the impeachment effort. But conservatives have cried foul and are preparing to deploy a series of procedural tactics in an effort to delay the vote ending the trial without arguments.“What Senator Schumer is going to do is fatuous, it is fraudulent and it is an insult to the Senate and a disservice to every American citizen,” said John Kennedy, Republican Senator of Louisiana, at a press conference on Tuesday.By a single vote, House Republicans impeached Mayorkas in February for his handling of the border. It was the first time in nearly 150 years that a cabinet secretary was impeached.But Mike Johnson delayed the transfer of the articles for several weeks, initially to allow the chambers more time to complete work on government funding legislation. Upon returning from a two-week recess, the House speaker again postponed the transfer at the request of Senate Republicans, who requested more time to prepare.The outright dismissal of the charges, without the opportunity to argue their case, was yet another setback for House Republicans, plagued by internal drama and a vanishingly thin majority.In a joint statement, House Republican leaders said: “The American people will hold Senate Democrats accountable for this shameful display.”The White House, meanwhile, applauded Senate Democrats for dispensing with what it called a “baseless” case.“President Biden and Secretary Mayorkas will continue doing their jobs to keep America safe and pursue actual solutions at the border, and Congressional Republicans should join them, instead of wasting time on baseless political stunts while killing real bipartisan border security reforms,” said the White House spokesperson Ian Sams.The proceedings began at 1pm, when Senator Chuck Grassley, Republican of Iowa, administered the oath of office to the Senate president pro tempore Patty Murray, a Democrat of Washington. Each senator was sworn in as a juror and signed their name in an oath book.“Hear ye! Hear ye! Hear ye!” the sergeant-at-arms proclaimed, reminding senators that they are to “keep silent on pain of imprisonment” for the duration of the trial.Had the Senate moved to an impeachment trial, it would be the third time in five years. Trump was impeached twice during his presidency, first over his dealings with Ukraine and later over his involvement in the January 6 assault on the US Capitol. He was acquitted both times by Senate Republicans. More

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      US historians file brief with supreme court rejecting Trump’s immunity claim

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      Fifteen prominent historians filed an amicus brief with the US supreme court, rejecting Donald Trump’s claim in his federal election subversion case that he is immune to criminal prosecution for acts committed as president.Authorities cited in the document include the founders Alexander Hamilton, James Madison and John Adams, in addition to the historians’ own work.Trump, the historians said, “asserts that a doctrine of permanent immunity from criminal liability for a president’s official acts, while not expressly provided by the constitution, must be inferred. To justify this radical assertion, he contends that the original meaning of the constitution demands it. But no plausible historical case supports his claim.”Trump faces four federal election subversion charges, arising from his attempt to overturn his defeat by Joe Biden in 2020, fueled by his lie about electoral fraud and culminating in the deadly attack on Congress of 6 January 2021.He also faces 10 election subversion charges in Georgia, 34 charges over hush-money payments in New York, 40 federal charges for retaining classified information, and multimillion-dollar penalties in civil cases over tax fraud and defamation, the latter arising from a rape allegation a judge called “substantially true”.Despite such unprecedented legal jeopardy, Trump strolled to the Republican nomination to face Biden in November and is seeking to delay all cases until after that election, so that he might dismiss them if he returns to power. His first criminal trial, in the New York hush-money case, is scheduled to begin next Monday.Despite widespread legal and historical opinion that Trump’s immunity claim is groundless, the US supreme court, to which Trump appointed three justices, will consider the claim.Oral arguments are scheduled for 25 April. The court recently dismissed attempts, supported by leading historians, to remove Trump from ballots under the 14th amendment, passed after the civil war to bar insurrectionists from office.In a filing on Monday, the special counsel Jack Smith urged the justices to reject Trump’s immunity claim as “an unprecedented assault on the structure of our government”.Seven of the 15 historians who filed the amicus brief are members of the Historians Council on the Constitution at the Brennan Center for Justice, a progressive policy institute at New York University law school.Holly Brewer, a professor of American cultural and intellectual history at the University of Maryland, said: “When designing the presidency, the founders wanted no part of the immunity from criminal prosecution claimed by English kings.skip past newsletter promotionafter newsletter promotion“That immunity was at the heart of what they saw as a flawed system. On both the state and national level, they wrote constitutions that held all leaders, including presidents, accountable to the laws of the country. St George Tucker, one of the most prominent judges in the new nation, laid out the principle clearly: everyone is equally bound by the law, from ‘beggars in the streets’ to presidents.”Other signatories to the brief included Jill Lepore of Harvard, author of These Truths, a history of the US; Alan Taylor of the University of Virginia, author of books including American Revolutions, about the years of independence; and Joanne Freeman of Yale, author of The Field of Blood, an influential study of political violence before the civil war.Thomas Wolf, co-counsel on the brief and director of democracy initiatives at the Brennan Center, called Trump’s immunity claim “deeply un-American”, adding: “From the birth of the country through President Clinton’s acceptance of a plea bargain in 2001 [avoiding indictment over the Monica Lewinsky affair], it has been understood that presidents can be prosecuted.“The supreme court must not delay in passing down a ruling in this case.” More