Official Newspaper of Eddy County since 1883
Official Newspaper of Eddy County since 1883
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When 17-year old Darnella Frazier used her cell phone on May 25, 2020, to record the murder of George Floyd - a horrifying episode which, viewers across the globe know, lasted nine minutes and 29 seconds, she probably did not stop to think that she was exercising her First Amendment right of freedom of expression and, perhaps, an element of freedom of the press. As the guilty verdict in the murder trial of Minneapolis policeman Derek Chauvin revealed, she was “filming” not only an American tragedy in real time, but the most impactful civil rig...
President Biden recently signed an executive order creating a bi-partisan commission that will study U.S. Supreme Court reform and, among other things, examine the size of the court and the justices’ lifetime appointments. The order excited partisan debate before the ink was dry. Former President Trump, Senate Minority Leader Mitch McConnell, and a host of republican leaders and commentators have warned that the plan will lead to partisan “court-packing” efforts by Democrats. Some liberals are, indeed, eager to expand the size of the Supreme Co...
The concept of the “personal Constitution,” which we introduced in this column last week, is personified in the First Amendment freedoms, particularly in the rights of religious liberty and freedom of expression. The exercise of these liberties summons the most fundamental beliefs that human beings possess. The First Amendment affords protection for the component parts of the human spirit and the freedom of conscience — emotions, beliefs and reason. Nothing in the Constitution is more personal than this protection. Various views and strai...
Together, the Declaration of Independence and the U.S. Constitution form what Gunnar Myrdal called the “American Creed.” The Declaration, written in eloquent, glittering generalities, invokes the Deity and inalienable rights, speaks of self-evident truths and asserts the right of revolution in the event that government grows tyrannical. It reflects passion, drama, hope and certitude. It speaks of majestic ends, which Abraham Lincoln characterized as the “sheet anchor of the republic.” It is relevant, personal and present. No wonder the masses...
The introduction of H.R. 51, a bill to make Washington, D.C., the 51st state — the “Washington, Douglas Commonwealth” — would grant its 700,000 residents the same rights enjoyed by Americans in every other state — full voting representation in Congress. This historic measure has triggered intense political and partisan controversy because, if enacted, the likely result would be the election of representatives who are Democratic, black and urban in their orientation. Make no pretense about what is at stake for the balance of power on Capitol H...
As we have seen in our recent discussion of tests employed by the U.S. Supreme Court to determine the parameters of speech afforded protection under the First Amendment, the great dilemma confronting our nation occurs when speech appears to incite serious, unlawful conduct. Here’s the problem, in a nutshell. It is a fundamental premise of democracy that citizens should be able to express their political views, particularly criticisms of governmental acts. Yet, society also has the right to protect itself from the commission of crimes. C...
Justice Oliver Wendell Holmes’ invention in 1919, of the Clear and Present Danger Test, in Schenck v. United States, provided little protection for dissenters who opposed America’s role in World War I. Charles Schenck went to prison for encouraging draft resisters. A newspaper publisher was sentenced to prison for publishing anti-draft articles. Eugene Debs, the famous labor organizer, was sent to prison for 10 years, for a speech in which he praised those who resisted the draft. As one prominent constitutional scholar, Harry Kalven, obs...
The question of governmental authority to punish speech in the name of national security came before the Supreme Court for the first time in 1919 in Schenck v. United States, resulting in the court’s first major ruling on the scope of freedom of speech. Schenck involved criticism of America’s entry into the First World War and confronted Americans with a dilemma: Does the Free Speech Clause protect the right to criticize the government in its conduct of war? Schenck was a Russian émigré who supported the Russian Revolution that overthrew the C...
Does the government have authority to curtail speech that might cause injury to our national security? Such power, asserted throughout the history of our nation, raises thorny questions about the nature, meaning and scope of two key constitutional provisions when they collide. On one hand, Congress has authority under Article 1, Section 8, to “provide for the common defense.” Everyone understands that a nation must possess the power and means to protect itself; otherwise, its territorial integrity, sovereignty and very existence may be put to...
The guarantee of freedom of speech, central to Americans’ participation in self-governance and the life of the nation, is secured by the First Amendment of the Constitution. Ratified in 1791, the Free Speech Clause provides: “Congress shall make no law abridging the freedom of speech.” The right to freedom of speech is derived from English law and tradition. At the time of the drafting of the Bill of Rights by the First Congress in 1789, and its ratification by the states two years later, it was understood by the framers that free speec...
The U.S. Constitution is all-Broadway, all the time. Americans may not realize its center stage presence in the life of the nation, but it governs our daily lives, often sight unseen. There are other junctures, however, when disputes about constitutional principles and provisions are unavoidable, in full display on television and capturing page one headlines in the nation’s newspapers. This is one of those times. The Senate trial of former President Donald Trump, carried live by various networks, brings the Constitution into our living r...
The forthcoming Senate impeachment trial of former President Donald Trump, sure to dominate headlines and newscasts, raises a host of constitutional questions with political implications likely to extend for years to come. Last week, we reviewed the question of whether the Constitution permits the Senate to try a former president, and concluded that it does. In short, once the impeachment process has been initiated by the House of Representatives, its continuation and completion may not be derailed by a presidential resignation or the end of a...
Does the U.S. Senate have the authority to hold an impeachment trial for former President Donald Trump? Good-faith arguments have been advanced by both sides in this growing debate, which invites close scrutiny of the scope of the Senate’s power under the Impeachment Clause. As with many constitutional controversies, resolution is aided by logic, common sense and history. Roughly 45 Republican Senators and various legal scholars maintain that the Senate’s authority under Article I, Section 3, of the Constitution to “try all Impea...
Sometime soon, and perhaps this week, private citizen Donald Trump will become the first former president to face a Senate impeachment trial, almost a year to the day when, as President Trump, he was acquitted by the Senate on February 5, 2020, of two articles of impeachment— abuse of power and obstruction of justice. On this second go-round, citizen Trump may not be so lucky. Unlike the first trial, when Sen. Mitt Romney (R-Utah), was the lone Republican to vote with Democrats to convict President Trump of committing impeachable offenses, e...
Memories of the footage of the insurrection at the U.S. Capitol, on January 6, 2021, will be forever etched in the minds of the citizenry. No American since the War of 1812 has seen an assault on our Temple of Democracy. This siege – a failed coup – was incited by President Donald Trump who, in a speech to thousands of his supporters at a rally that he organized, told his faithful, yet again, that the 2020 election had been rigged, that victory had been stolen from him, and that they had to “fight like hell” to take their country back. The vio...
To its horror, America witnessed on January 6, 2021, an insurrection. Millions watched, in real-time. Domestic terrorists laid siege to the U.S. Capitol building in an effort to disrupt Congress from performing its constitutional duty to count and certify the Electoral College results. The attempted coup by supporters of President Trump failed, of course, for after a delay of several hours, Congress was able to resume its business in the damaged chambers of the U.S. House of Representatives, and it duly certified the election of Joe Biden, who...
Efforts by President Donald Trump and congressional Republicans to subvert the clerk-like, ministerial and ceremonial counting of electoral votes on January 6 is a witches’ brew for undermining the Constitution and American Democracy. Sen. Ben Sasse (R-Neb) has justly characterized as a “dangerous ploy” the efforts of President Donald Trump and a handful of congressional Republicans to overturn President-elect Joe Biden’s Electoral College victory. Trump’s pitch to Vice President Mike Pence to throw out the duly certified votes for President...
Unilateral presidential war-making, remarkable for its direct violation of the War Clause of the Constitution, is a sharp reminder of the widening gulf between constitutional principle and governmental practice. It recalls the observation of a 17th Century English judge: “The practice of government is but feeble proof of its legality.” Since 1950, every president, with the exception of Dwight Eisenhower has asserted authority to initiate war and lesser military hostilities on behalf of the American people, despite the fact that the Con...
The decision to go to war represents the most solemn decision any government will make, since it risks the blood, treasure and future of the nation. Those grave consequences, alone, are reason enough for Americans to understand how the Constitution governs the exercise of this awesome authority before they go marching off to war. The war power, John Quincy Adams observed, is “strictly constitutional.” The framers of the Constitution vested in Congress the sole and exclusive authority to initiate military hostilities, including full-blown, tot...
Americans have become accustomed to a steady drumbeat of presidential assertions of sweeping powers in the realm of foreign affairs and national security. They may be surprised to learn, however, that these claims are inconsistent with the constitutional blueprint for foreign relations, which vests the lion’s share of authority in Congress, not the president. The arrangement for foreign affairs reflects the Constitutional Convention’s preference for collective decision-making and its fear of unilateral executive power. As a result, Con...
The outstanding feature of Article II of the Constitution is its grant to the president of relatively few, sharply limited powers, a function of the Constitutional Convention’s determination, in the words of James Madison, to “confine and define” presidential power. The president’s powers are lean and meager in comparison to those vested in Congress. This may surprise Americans who have grown accustomed to executive assertions of sweeping powers in both foreign and domestic realms, but two compelling historical reasons explain the framers...
This presidential transition, from President Donald Trump to President-Elect Joe Biden, represents a timely opportunity for Americans to become more familiar with the scope of presidential authority, as provided under Article II of the Constitution. Greater familiarity will empower citizens to scrutinize the words, actions and policies of the new administration in the spirit of their duty as Madisonian Monitors to hold government accountable. President Biden won’t be writing on a blank canvass. He follows, immediately, a president whose view o...
Abraham Lincoln’s words and wisdom, from Springfield and New York to Gettysburg and Washington, serve to remind Americans today of the manner in which great statesmen confront challenges that threaten the very foundation of the republic. For a nation seeking remedies and solutions to the deep divisions and chasms that characterize and menace our politics, Lincoln’s speeches provide a valuable model of insights, temperament and behavior. Lincoln’s magisterial Gettysburg Address more sharply resonates in our time than at any moment in Ameri...
The 2020 presidential election, prolonged by President Donald Trump’s court challenges and demands for recounts in some states will come to an end, sooner rather than later. Citizens may be assured of that by constitutional and statutory mechanisms. This election, fraught with tension and anxiety, is not nearly the nail-biter that the nation endured in the 2000 campaign, which ended only after the U.S. Supreme Court ruled in Bush v. Gore that the recount in the State of Florida could not continue. That 5-4 decision, delivered on Dec. 12, r...
The peaceful transition of power is a hallmark of American democracy, a national treasure envied throughout the world. Yet, we dare not take it for granted, for its perpetuation depends on the good faith, goodwill and integrity of leaders and citizens alike. The peaceful transfer of power, embedded in the foundation of our constitution, represents a dramatic alternative to authoritarian regimes that systematically ignore the will of the people. This sacred foundational principle is as fragile as the founders’ experiment in republicanism i...
