“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Preamble to the US Constitution is not law – it is an introductory aspirational statement that articulates the intent and values of the framers concerning the nature of America’s republic and democratic character. Contrary to conservative “originalist” constitutional interpreters who regard the Constitution as a static document, progressive constitutional scholars understand that the Constitution is imperfect and that much was left unaddressed in 1787.

Five values under-gird our American constitutional system – a democratic government, effective governance, justice, liberty, and equality. With these values in mind, the current state of our electoral system obviously needs reform. The Congress has an opportunity to address many of the imperfections now that both houses of Congress and the presidency are in Democratic Party hands.

There are a number of bills that the House of Representatives passed in the last term but were blocked from consideration by the Senate by Republican Majority Leader Mitch McConnell. Now, however, the new Majority Leader Chuck Schumer can bring these bills to the Senate for consideration and a vote and President Biden can sign them into law (see https://www.dailykos.com/stories/2019/3/8/1840627/-Voting-Rights-Roundup-Democrats-pass-historic-bill-to-ban-gerrymandering-and-secure-voting-rights).

In addition to the many remedies in our electoral system that these bills seek to address including our undemocratic Electoral College system, partisan gerrymandering, Citizens United, excessive money in politics, and voter suppression, the Senate is decidedly a non-representative body. The vote totals in the last three elections covering all 100 Senate races show how this is true:

• 2020 election – Democratic candidates earned 44.1 million votes; Republican candidates earned 42 million votes.
• 2018 election – Democratic candidates earned 53.1 million votes; Republican candidates earned 35 million votes.
• 2016 election – Democratic candidates earned 45.2 million votes; Republican candidates earned 39.3 million votes.
• The total number of votes cast for Senate in these 3 elections is 258.7 million votes. Democratic candidates won 142.4 million (55%) over Republican candidates who won 116.3 million (45%). That’s a difference of 26.1 million votes and 10% of the total, a Democratic “landslide.” Yet, the Senate remained in Republican hands with a Republican Party majority until this year. Today, despite the wide discrepancy in the popular vote, the Senate is split evenly at 50-50 with a tie-breaking vote by Vice President Kamala Harris.

It’s time that the electoral reform bills passed by the Democratic Congress be moved forward for consideration and a vote in the Senate to be signed into law by President Biden. Among the top priorities ought to be the reform of the Electoral College system to make it representative of the national majority popular vote, granting of statehood to Washington, D.C. (700,000 residents) and Puerto Rico (3.2 million residents), and elimination of the Senate filibuster to be replaced by a simple majority vote.

These reforms would go a long way to fulfill more completely the democratic values as articulated in the US Constitution’s Preamble and thereby have a major impact on public policy and Joe Biden’s presidency.

On February 13, 2017, only weeks after Trump was inaugurated President, I wrote a blog about Trump’s mental condition and whether it ought to disqualify him as president.

I’m certainly not a prophet nor the son of a prophet in the sense of predicting the future or in any other way. That said, the biblical prophet displayed only the capacity (regarding predictions) to see reality clearly as it was, to project forward the consequences of that reality, and then to be able to predict doom based upon the moral failures of the present. In that sense, the psychologists, psychiatrists, psychoanalysts, political thinkers, historians, and friends of Trump that I cited characterized accurately who Donald Trump was and what America could expect going forward with him as President.

Nothing I said in that blog four years ago wasn’t true, and all of it has been borne out these past years and since the November election. Though I and many of us are shocked by what we’ve witnessed since the election, none of us should be surprised.

Trump, thankfully, will be gone from the White House on January 20, but we are hardly rid of him and his destructive, illiberal, autocratic, seditious, treasonous, anti-democratic, and anti-American presidency because he has infected his malignantly narcissistic toxicity into the hearts and minds of millions of followers who hail to him as their noble “leader.”

You can read my blog from four years ago here – https://rabbijohnrosove.wordpress.com/2017/02/13/should-trumps-mental-condition-disqualify-him-as-president/

“To allow Trump to serve out his term, however brief it may be, puts the nation’s safety at risk, leaves our reputation as a democracy in tatters and evades the inescapable truth that the assault on Congress was an act of violent sedition aided and abetted by a lawless, immoral and terrifying president.”

-NY Times columnist Bret Stephens

I could not agree more!

Further, every Republican office holder in Congress or in the states who aided and abetted this lawless autocrat of a President over the last few years should be defeated handily at the polls in the next election.

Those who quietly acquiesced to Trump’s increasing bullying and mob-boss cruel leadership without standing up and saying “J’accuse” are accountable and responsible for what happened yesterday in Washington and for the carnage he has effected and promulgated throughout his presidency, including Senator Mitch McConnell, House Minority leader Kevin McCarthy, and numerous members of Congress. Nothing they say today can cleanse their moral palate.

Silence in the face of criminality and immorality is complicity. We Jews have learned this lesson over the course of our history. In a free America, hopefully we’ve relearned these lessons in the past year at the least.

Yesterday reminded me of Kristallnacht, November 9, 1938 in Germany when the Brownshirt Nazis attacked Jews, synagogues, shops, murdering and pillaging everywhere. It can happen here. It did yesterday.

The following is a remarkably powerful, articulate, and insightful tweet by Steve Schmidt, a founder of the Lincoln Project and the former Republican campaign manager for the 2008 John McCain for President Campaign. If you didn’t see it, I wanted to post it here for the record.

I have followed Schmidt closely over the last several years, and no one speaks as clearly and defiantly as he does about the corrosive illiberalism, authoritarianism, and corruption of Donald Trump and his followers.

The following was posted this morning (January 4) on the Daily Dos:

“Steve Schmidt, the former Republican strategist and newly minted member of the Democratic Party, went on Twitter Sunday evening to explain how January 6 will spell doom for the Republican Party. Much like the Whigs before them, the Republicans are about to plunge into a civil war that will pit the authoritarian and anti-authoritarian factions against each other.  

Being the ultimate insider and political operative, Schmidt knows the Republican Party as well as anyone. He successfully weaves the historical parallels and understanding of the inter party factions.  

As we know, he was the campaign manager for a campaign that gave us the proto-Trump, Sarah Palin, but he was known to have resisted her as the choice for VP and appears to have been aware of the potential danger that Palin represented and is now working to fight the anti-democratic urges that she and her political spawn, Donald Trump, represent. 

The fact is, there is only one viable option at the moment for anyone willing to fight authoritarianism, and that is through the Democratic Party. Schmidt may not agree with us on many policy goals, but we can all agree that this is a perilous moment for Democracy. 

This is a tweet thread by Schmidt. To be clear, he is not predicting the Republican Party is going to dissolve overnight or that this failed coup attempt will not cause significant damage. For all of those who think 2021 will be a cakewalk compared to 2020, think again. There will be an epic fight unfolding to preserve the nation as we know it. 

2021 will be a hard year in the life of the American nation. There is a great struggle that lies before us, and our disbelief at its arrival must not blind us to the lethal danger it poses to the American experiment. The poisonous bounty of Trump’s catastrophic presidency is ready for harvest, and the whole world will get to watch his seditious antics play out during a joint session of Congress on Jan. 6th. It will play out as a farce, and it will fail.  Nearly 100 years on, America will have its version of the Beer Hall Putsch. The danger lies in the act, not the outcome. We are in a dangerous moment, and I’d like to try my best to explain how I see it. Before I start, there is an important matter of fact which unfortunately needs restating. Joe Biden won the presidential election decisively. The election was free, fair and legitimate. There is no evidence of any widespread fraud. Allegations of fraud are premeditated lies being made by a rancid assortment of Trump’s stooges and propagandists. With the exception of a few of the more addled House GOP members, like Louis Gohmert, every single House Member and every U.S. Senator that participates in denying this reality, and thus the legitimacy of our election, does so as a cynical act, which they know for certain has no legitimate basis. Such actions are a grievous sin against American democracy and a brutal betrayal of their oaths of office and duty. They will be desecrating the blood sacrifices of 13 generations of American patriots of all creeds and origins who died so that our children could be free. They are fighting to maintain the power of a defeated president against the sovereign will of the American people, as lawfully exercised under the Constitution of the United States. They are fighting to establish a tyranny. They are deliberately poisoning faith and belief in American democracy.  Democratic Republics cannot survive such a collapse. The system is rooted in the willingness of one side to cede power to another at the will of the people. There are no other systems of government except for this type that are free. The legitimacy of that system is being strangled by Trump’s lies and the lies of his movement. That movement is an autocratic one with fascistic markers. It is hostile to the American Constitution, the rule of law and the highest ideas and ideals of American liberty. Jan. 6 will be an historic day in America. The battle lines will be drawn. The autocrats will step forward into the light. They will include a majority of the House GOP conference. After the 6th, Kevin McCarthy will be the leader of House autocrats, and Liz Cheney will be the leader of House conservatives. They will include a substantial number of GOP Senators, and almost all of the known GOP presidential aspirants. The Rubicon will be crossed on the 6th. The ruthless and amoral cynicism of Ted Cruz and Marco Rubio and James Lankford and Josh Hawley will be on appalling display. It must be opposed fiercely. It must be recognized for what it is. Another storm is gathering in the constant struggle between liberty and her enemies. Trump has unleashed the fury and has found his following. It will be a long fight. At the hour of his defeat and defenestration, Trump has done his greatest damage. This is a movement that is fueled by lies, conspiracies, corruption, greed, extremism, racism, grievance, resentment, cynicism and a profound absence of love for America. It is right to feel anger and contempt toward its leaders and enablers. There is only one proposition that America’s pro-democracy coalition can offer to these people. “We win-you lose.” It’s that simple. Sedition is the precise word, and the right word, to describe what we have been witnessing. Never before have so many American leaders betrayed their country. We will watch their eternal disgrace on live TV.  The evidence of their ignominy will exist forever, as will the memory of their monumental betrayal. Shame on them all.”

On December 21, I wrote that the long, cold, and dark days of winter usher in my least favorite season of the year; and in this era of Covid, so much the more so – see https://rabbijohnrosove.wordpress.com/2020/12/21/stars-visible-on-earth/

Though we are still eleven weeks from my most favorite season of spring, the anticipation of its lengthier, lighter, and warmer days inspire, even now, renewal and hope.  

To all who’ve been stricken by the coronavirus, may these words bring a measure of comfort, and for those who’ve lost their loved ones, may they find a pathway towards restoration and meaning:

“The snow has not yet left the earth, but spring is already asking to enter your heart. If you have ever recovered from a serious illness, you will be familiar with the blessed state when you are in a delicious state of anticipation, and are liable to smile without any obvious reason. Evidently that is what nature is experiencing just now. The ground is cold, mud and snow squelches under foot, but how cheerful, gentle and inviting everything is! The air is so clear and transparent that if you were to climb to the top of the pigeon loft or the bell tower, you feel you might actually see the whole universe from end to end. The sun is shining brightly, and its playful, beaming rays are bathing in the puddles along with the sparrows. The river is swelling and darkening; it has already woken up and very soon will begin to roar. The trees are bare, but they are already living and breathing.”
―Anton Chekhov, The Exclamation Mark

“Ring out false pride in place and blood, / The civic slander and the spite; / Ring in the love of truth and right, / Ring in the common love of good.”

-Alfred, Lord Tennyson

May you and yours be healthy in the New Year.

To paraphrase Dr. McCoy of the original Star Trek series – ‘I’m a rabbi, not a lawyer!’

That thought came to me four years ago when I watched Khir Khan, an Muslim lawyer and father of an American soldier killed in combat, speak at the Democratic National Convention about his love for America, faith in the U.S. Constitution, and disdain for Donald Trump’s Islamophobia and bigotry. Mr. Khan said before the nation:

“Donald Trump, you are asking Americans to trust you with our future. Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of law.’”

Mr. Khan then pulled a copy of the Constitution from his breast suit pocket and showed it to the nation.

I confess that I had never read the Constitution. Mr. Khan’s speech inspired me to do so, but I wanted a teacher to guide me because the Constitution is an imperfect document and the complexities of American jurisprudence require experts to interpret it.

A few months ago I learned of a book entitled We the People – A Progressive Reading of the Constitution for the Twenty-First Century” by Erwin Chemerinsky, dean of the UC Berkeley Law School and a noted legal scholar (a disclaimer – Erwin was for a brief period a member of my congregation in Los Angeles until he accepted the position as dean of the law school at Duke University. From there he returned to California to become dean of the UC Riverside law school, and then to UC Berkeley’s law school in 2017. I have followed him mainly through his op-eds in the LA Times and always found what he had to say instructive and clarifying).

I just finished reading Erwin’s clear and concise book and recommend it to anyone interested in gaining a progressive understanding of the Constitution, its amendments, and many key rulings in light of the multiple challenges Americans have faced historically and today given the new reality of a nine-member Supreme Court dominated by six conservative justices.

Erwin lays out his case for a progressive vision of the Constitution by shining a light on the core values articulated in the Constitution’s Preamble with one additional core value as advanced in the 12^th, 13^th, 14^th, and 19^th Amendments outlawing slavery, giving citizenship and the right to vote to former slaves, and granting suffrage for women. Here is the Preamble which I learned by memory in elementary school before reciting the pledge of allegiance:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Preamble, Professor Chemerinsky notes, is often ignored by conservative legal scholars. But, he affirms, the four values under-girding our American constitutional system are contained in it and ought to be applied to every case coming before the Court: a democratic government, effective governance, justice, and liberty. To these he adds a fifth – equality – based on the above amendments.

Erwin considers the weakness of the “originalism” argument (Justices Scalia and Thomas advocated for it), the differences between liberal and conservative opinion, and how a justice’s political values often affect his/her rulings despite what he/she says in Senate confirmation hearings.

He discusses free speech and corporate funding in elections (i.e. Citizens United), gun ownership and the right to carry weapons of mass destruction, the unfairness of the electoral college giving inordinate power to small states, the sometimes lack of majority rule in national elections, the distortions brought about by partisan gerrymandering by state legislatures, the suppression of the vote and racial discrimination, equal protection, states’ rights, federalism, the separation of powers doctrine, just policing, fair trials, punishment and unfair incarceration based on color, the unconstitutional death penalty as cruel and unusual punishment, unfair sentencing, prison reform, the right to privacy, freedom of choice, due process, separation of church and state, racial discrimination and the constitutional justification for affirmative action, minimum entitlements, and judicial enforcement.

In his conclusion, Erwin counsels against despair even in light of the current make-up of the Supreme Court:

“It is easy to become demoralized when confronted with a very conservative Court that likely will remain that way throughout most of the rest of my life. The temptation is to give up on the idea of using the Constitution for social justice. But such surrender is shortsighted. Arguments that today fall on deaf ears can be the basis for future action. A constitutional right to minimum entitlements is not going to happen in the foreseeable future. But if it will happen at all, it will result from progressives developing and defending and fighting for this vision for the Constitution.”

I recommend this wise and clearly written volume to anyone seeking a progressive understanding of past, current, and future rulings of the Supreme Court.

On the winter solstice most years, the darkest day of the year, I’m reminded of the children’s memorial at Yad Vashem, Israel’s Holocaust Museum in Jerusalem. One enters into the darkened hall of mirrors and hears the names recited of the 1.5 million children murdered by the Nazis. Only a few candle flames are in fact burning, yet the visitor sees thousands of flames reflected endlessly in the mirrors. Each flame represents a single soul of a murdered child flickering perpetually in the ether of memory.  

Winter is my least favorite season of the year because of the long nights, low angle of the sun, and the cold. Yet, as the winter solstice comes and goes, I know that spring soon will arrive, that the days will lengthen, the sun will rise higher in the sky, new growth will sprout with the grasses and trees, and flowers will appear again.

Though the immense tragedy caused by the coronavirus here and around the world is different in kind and extent from the death and destruction during the Holocaust, I think this year also of all who lost their lives and loved ones this past year.

The Hungarian Jewish poet Hannah Senesh left pre-statehood Palestine, parachuted into Yugoslavia on March 14, 1944, and crossed the Hungarian border to save Jewish children in her native land. She was immediately arrested by Hungarian gendarmes, and because she was carrying a British radio transmitter, was interrogated, tortured, tried, and executed by firing squad at the young age of 23 years on November 7, 1944. Among other famous poems set to music in Israel, Hannah wrote these words as an epitaph for the victims:

“There are stars whose radiance is visible on Earth though they have long been extinct. There are people whose brilliance continues to light the world though they are no longer among the living. These lights are particularly bright when the night is dark. They light the way for humankind.”

It is an understatement to say that American democracy was challenged by the sitting United States President aided and abetted by a sycophantic Republican Congress and 74 million Republican voters who followed a president lockstep despite his autocratic cravings and blatant disrespect for core democratic institutions and norms.

The following reflections about autocracy, oligarchy, democracy, journalism, the media, an informed public, and public morality are instructive as we look back upon what we Americans experienced during these past four years and in our 2020 election. Great damage was done to our democracy and it likely will take time for the nation to heal from the chaos and abuse.

“There is a story, often told, that upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: ‘A republic, if you can keep it.’ The brevity of that response should not cause us to under-value its essential meaning: democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health.” -Dr. Richard Beeman, professor of history and dean of the College of Arts and Sciences, University of Pennsylvania

“It is acknowledged, namely, that there are in the world three forms of government, autocracy, oligarchy, and democracy: autocracies and oligarchies are administered according to the tempers of their lords, but democratic states according to established laws.” – Aeschines (389-314 BCE), Greek statesman and orator

“Journalism is one of the devices whereby industrial autocracy keeps its control over political democracy; it is the day-by-day, between-elections propaganda, whereby the minds of the people are kept in a state of acquiescence, so that when the crisis of an election comes, they go to the polls and cast their ballots for either one of the two candidates of their exploiters.” – Upton Sinclair (1878-1968), writer

“I know a whole generation has been raised on the notion of multiculturalism; that all civilizations are just different. No! Not always. Sometimes things are better! Rule of law is better than autocracy and theocracy; equality of the sexes, better; protection of minorities, better; free speech, better; free elections, better; …Don’t get so tolerant that you tolerate intolerance.” -Bill Maher, satirist, commentator, television host

As so many Americans watch with horror and dismay the blatant anti-democratic moves by Trump, 17 state Attorneys General, 100 Republican members of Congress, and right-wing talk show hosts, the words of the Russian Nobel Laureate and human rights activist Aleksandr Solzhenitsyn (1918-2008) are chilling:

“Let us not forget that violence does not live alone and is not capable of living alone: it is necessarily interwoven with falsehood. Between them lies the most intimate, the deepest of natural bonds. Violence finds its only refuge in falsehood, falsehood its only support in violence. Any man who has once acclaimed violence as his method must inexorably choose falsehood as his principle.”

Once Trump loses his appeal to the Supreme Court (and I pray that he will), is violence in our streets inevitable? That’s the next threat our democracy will be forced to confront.

Federalist Paper No. 51 (by James Madison or Alexander Hamilton) anticipated Trump’s effort at subversion of our republic with these words:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

These are dangerous times indeed!

Note: Since writing this blog another 26 Republican congressional representatives have shamelessly joined the law suit and the Supreme Court dismissed it unanimously as without basis. Now we’ll have to wait and see what Trump and his most violent-prone sycophants do.