Exploring Human Potential

The GOP Has Become the Party of Theocrats, and Samuel Alito Is their High Priest.

Posted on | April 23, 2023 | 1 Comment

Mike Magee 

In the realm of historical fiction, Justice Alito and his GOP supporters have proven themselves masterful.  The 7 to 2 decision (with Alito and Thomas in opposition) to leave the FDA alone for now with jurisdiction over the safety and efficacy of Mifepristone, does little to reassure that these Theocrats are men of their word.

Justice Alito’s reliability should be viewed through the lens of the testimony provided by Justices Kavanaugh, Barrett, and Gorsuch, under oath, on the topic during their confirmation hearings. Alito and Clarence Thomas and these co-signers on his leaked Dobbs draft assured us that the dismantling of Roe v. Wade would be self-limiting since  “none of the other decisions cited by Roe and Casey  “involve the critical moral question posed by abortion.”

But the history and performance of these five Justices, their original and current supporters, their documented religious orthodoxy, and the web of conservative schools and think tanks  that nurtured their well-entrenched biases, all suggest a conspiracy that could threaten our democracy.

Elizabeth Fresse PhD, research associate at Auburn Seminary, sounded the alarm a year ago with this warning, “Morality has thus become the reigning justification for the state to infringe upon the liberty of female Americans and to subjugate their reproductive labor to its power. An interrogation of this morality, however, reveals that it is underpinned by a theology that both erases and assumes the subjugation of female gestational labor in procreation to patriarchy. We must shatter this male-dominant moral logic and foreground female personhood and agency in order for every American to be equally free.”

Dr. Linda Rosenstock, Dean Emeritus and Professor of Health Policy and Management at UCLA’s Fielding School of Public Health, has laid it out clearly that the loss of women’s autonomy over birth decisions, most especially unintended pregnancy, would be catastrophic.

“The broader the access to proven family planning methods, the lower the unintended pregnancy rate and the lower the abortion rate. We can’t underestimate the role of educating and empowering women – and men – about these issues.”

These are not simply the opinions or insights of a single health expert. They are backed up by the following facts:

1. Since 1981, abortion rates in U.S. women, age 15 to 44, have declined by nearly two thirds from 29.3 per 1000 to 11.4 per 1000.

2. Approximately half of all pregnancies in the U.S. are unintended.  Of those unintended, approximately 40% of the women chose to terminate the pregnancy by abortion – either procedural or chemically induced.

3.  The decline in the number of abortions has coincided with increased access to long-acting reversible contraception, including IUD’s and contraceptive implants. These options are now safe, increasingly covered by insurers, and more accessible to at-risk populations. Contraceptive reversible implants are now chosen by 16%, IUDs by 21%, and operative tubal ligation by 28%.

4. The increasing inclusion of sex education in middle school and high school curricula (DeSantis antics aside) has been accompanied by a decline in high school sexual activity by 17% between 2009 and 2019.

5. There were 629,898 abortions recorded by the CDC in 2019. For every 1000 live births that year, there were 195 other women who chose to terminate their pregnancies. More than half of the 1st trimester abortions are now chemically induced through Plan B-type pills.

The GOP, bolstered by minority-rule Right to Life advocates, bred and nurtured by ultra-conservative Catholics and Evangelical Christians, have (by their actions) revealed that a broader agenda than simply eliminating abortions is at work here. That broader agenda includes patriarchal control over women’s sexuality and enhancing congregant birth rates in America.

State GOP “dignitaries” want to play doctor and manage miscarriages one the one hand, while limiting contraception to promote handmaiden status on young women on the other. Using one crazy judge in Texas , they seek to dismantle the FDA and PhRMA science. Book sanctions, pedophilia fantasia, insistence that failed “abstinence-only” sex education works, highly organized assaults on women’s services provided by Planned Parenthood? In a climate like this, is it reasonable to assume that Justice Alito is trustworthy?

Other recently granted rights under these privacy precedents include:

Paraphrasing the proverb from a book called The Court and Character of King James by Anthony Weldon, 1651,: “Fool me once, shame on you. Fool me twice, shame on me.”

The GOP Wants To Manage Your Miscarriage – You Good With That?

Posted on | April 17, 2023 | 5 Comments

Mike Magee

Twenty years ago, I headed up a social science think-tank focused on defining the role of the patient-physician relationship in well-functioning democracies. In six countries (including the U.S., UK, South Africa, Germany, Japan, and Canada), our studies revealed a rapidly evolving relationship – one moving toward mutual decision making and team approaches to care.

Perhaps more significant was the revelation that the relationship was advancing the cause of democracy in three ways. First, it promoted trust and confidence across entire populations without prejudice. Second, it processed individual’s fear and worry which, if allowed to build and expand, could have a destabilizing effect on self-governance. And third, it encouraged forward facing optimism while reinforcing bonds between individuals, families and communities committed to joint problem solving.

In short, the patient-physician relationship showed the strength and willingness to individualize and confront complex, deeply personal, and intensely human dilemmas in real time and privately on a 24/7 basis. These very traits were the reason why the Supreme Court in 1973, in Roe v. Wade, entrusted the patient-physician relationship to navigate the wide range of issues involved in women’s autonomy over birth decisions.

Consider for example that 1 in 5 of the roughly 5 million U.S. pregnancies in 2020 ended in miscarriages. 80% of these were in the first trimester, with the remaining 20% almost exclusively in the second trimester.

Health professional management of a miscarriage is an exceedingly complex affair. It requires rapid, same-day, evaluation to assess the mother’s condition, the stage of development and viability (if any) of the fetus, the need for medical or surgical treatment to minimize blood loss or prevent infection, and the short and long term management of grief, depression, and (at times) feelings of guilt for the mother and family members.

Now consider that the cases above are being grouped together by Republican state governors with another  930,000 women in 2020, who for a wide range of reasons, took a different path and chose to terminate their pregnancies. That’s roughly 14 women for every 1,000 women age 15-44 in our nation, with Southern states having 4 times the number of abortions as northeastern states. 54% used the 2-pill regimen for medical abortion, and 46% underwent a surgical procedure. In either case, health professional management was once again time dependent, complex, and required both medical and psychological team support to achieve satisfactory outcomes.

The size and nature of managing the societal challenge of maternal-fetal health is exactly the reason why the Supreme Court in 1973, in Roe v. Wade, entrusted the patient-physician relationship to navigate with women patients the wide range of issues involved in women’s autonomy over birth decisions. The ruling left decision making largely in the hands of women and their doctors during the first two trimesters, and allowed a significant role for government in the third trimester.

At the time, most agreed that this reasoned compromise was both wise and sound, and leaders accepted that “perfect should never be the enemy of the good.” For example, in 1971, America’s leading conservative religious organization, the Southern Baptist Convention, went on record as encouraging its members “to work for legislation that would allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.”

Two years later, both the Southern Baptist Convention and the Christian Medical Society chose not to actively oppose Roe v. Wade, and reaffirmed that position in 1974 and 1976. The Southern Baptist Convention’s views on abortion were part of its long-standing support for the separation of church and state, and Baptist medical communities largely opposed the idea of churches and their pastors wading into delicate health care issues.

Yet thanks to the Dobbs decision by a Court stacked with ultra-conservative Justices, here we go again with male state politicians playing doctor to the detriment of women’s freedom, autonomy, and health.  It’s 2023, and the GOP wants to manage your miscarriage. Are you good with that?

Coverture – The Word You May Not Know But Should.

Posted on | April 11, 2023 | 4 Comments

Mike Magee

All eyes were on Wisconsin – not last week, but in 1847. That’s when Wisconsin newspaperman and editor of the Racine Argus, Marshall Mason Strong, let loose in a speech on the disturbing trend to allow women the right to buy and sell property. It seems the state had caught the bug from their neighbor, Michigan, which was considering loosening coverture laws.

“Coverture”  is a word you may not know, but should. It was a series of laws derived from British Common Law that “held that no female person had a legal identity.” As legal historian Lawrence Friedman explained, “Essentially husband and wife were one flesh; but the man was the owner of that flesh.” From birth to death, women were held in check economically. A female child was linked by law to father’s entitlements. If she was lucky enough to be married, she lived off the legal largesse of her husband. They were one by virtue of marriage, but that one was the husband, as signified by taking his last name.

The practice derived from British law. Women were held in matrimonial bondage in England with the aid of ecclesiastical courts and the officiating presence and oversight of an Episcopalian clergyman. This meant control over getting married as well as the capacity to escape a marriage marred by abuse or desertion. Not that there was much call for divorce. Britain was a divorceless society. The richy rich occasionally could be freed by a special act of Parliament. But this was exceedingly rare. Between 1800 and 1836, there were less than 10 divorces granted per year in England. For the unhappy rest, it was adultery or desertion.

The divorceless society held for the first half of the 19th century in most of the states below the Mason-Dixon line, with South Carolina being the most restrictive. But every New England state had a general divorce law before 1800, as did New York, New Jersey and Tennessee. “Grounds” (which varied from state to state) were presented in an ordinary lawsuit by the innocent party.

Demand for divorce grew as America grew in the first half of the 19th century. With mobility came hardship and “odious abuse’, and increasing recognition that “a divorceless state is not necessarily a state without adultery, prostitution and fornication. It is certainly not a place where there are no drunken, abusive husbands.” And then there was the issue of property rights and its ties to economic growth in this still young nation.

America was rich in land, which rapidly translated into a fast-expanding smallholder middle-class. Relationships could shift on a dime, resulting in property disputes and threats to the legitimacy of children and one’s heirs. The numbers of land owners, fueled by westward expansion were enormous, and each had a stake in society. When push came to shove, economics won out over Puritan instincts – but not without a fight.

There were plenty of voices like Yale’s President, Timothy Dwight, who in 1816, labeled ready divorces as “stalking, barefaced pollution…one vast Brothel; one great province of the World of Perdition.” But, in a male-dominated world that featured desertion, abuse, and confusion over children’s welfare and legitimacy, rights to property, and protection from a missing husband’s debt collectors, “married women’s property acts” began to appear.

The first surprisingly was in 1839 in Mississippi, that is until you learned that the liberalization involved a married women’s rights to “own and dispose of slaves.” In 1844, Michigan weighed in narrowly by protecting a women’s inherited or earned property from her husbands post-mortem debtors.

Three years later Marshall Strong couldn’t help himself, and from his perch in Racine, Wisconsin, editorialized that the “domestic sphere” is under attack, and the consequences will be dire. “Finer sensibilities” are on the chopping block and “every trait of loveliness blotted out.” Summing up a whole family collapse – men are being “degraded, the wife unsexed, and children uncared for.” These new married women’s property laws, he writes, already have played out elsewhere. “It exists in France, and … more than one-fourth of the children annually born in Paris are illegitimate.”

And yet, three years after Strong’s lament, seventeen states, including Wisconsin, had adopted their own versions of gender equalizing property laws. Why? 

According to Friedman, “The real fulcrum of change was outside the family and outside the women’s movement…The number of women with a stake in the economy had increased dramatically.”

Nor was there a big uproar in this mid-century legal turnaround. As Friedman sees it, “Little agitation preceded them; great silence followed them. It was the silence of a fait accompli.” But in history, about faces are not uncommon, and “freedom walks” can flow in both directions. 

Consider the past decade in Marshall Strong’s home state. In 2010, Scott Walker, the son of a Baptist preacher, assumed the governorship of the state and quickly rose to national prominence by aggressively opposing abortion rights and torching union rights to collective bargaining in the state. In 2016 he set his sites on the Presidency, but fizzled and withdrew within two months under withering attacks from Donald Trump. 

One of Walker’s last actions however, before loosing a bid for a third term as governor, was to appoint conservative lawyer, Dan Kelly, to a seat on the Wisconsin Supreme Court being vacated by retiring Justice David Prosser. Kelly’s conservative radicalism on women’s autonomy and comparing affirmative action to slavery was apparently a “bridge too far”, and he lost his seat in the 2020 reelection bid to liberal Judge Jill Karofsky. This was only the second time an incumbent judge had lost reelection in Wisconsin in the last half century.

Not to be deterred, Kelly ran again last week, and once again went down by double digits, this time to liberal circuit court judge Janet Protasiewicz. Kelly had thus single-handedly (with an assist from Scott Walker) flipped control of the Court from 5-2 conservative to 4-3 liberal.

But Kelly did not go quietly. As he stated in his concession speech, “I think this does not end well.” He plans to return to his prior passion, providing legal cover to Republicans redrawing statewide electoral maps. As for Protaciewicz, she seemed well aware that the ghost of Marshall Strong lives on in Wisconsin, saying simply, “There is still work to be done.”

The Two Marks of “Repugnancy” – Trump and Dobbs.

Posted on | April 5, 2023 | Comments Off on The Two Marks of “Repugnancy” – Trump and Dobbs.

Mike Magee

This week’s very public indictment of former President Donald Trump was a substantial moment in American history, as much for what it wasn’t (a bloody spectacle as Trump had predicted) as for what it was (an opportunity for the likes of Senator Lindsey Graham to tearfully beg FOX viewers for donations, not for Trump, but for himself.)

But in such a politically charged environment, it would be easy to miss a major civics lesson that played out in broad daylight this week. This was the week that Judicial Review as a weaponized strategy of politics came back to bite its supporters.

Our American legal system is derived from British Common Law. It is based on “Case Law”, the gradual, continuous layering on of adjudicated resolutions to real-life disputes, which together constitute our nation’s “social development unfolding through time.” Our law and our culture are built in part on prior decisions or precedents.

The system to manage these cases has evolved over several hundred years. It is a shared responsibility of municipalities, states and our federal government, and possesses the power to bring citizens to heel. Though “no man is above the law”, various checks and balances including “presumed innocence”, “the right to legal council” and “due process” are embedded in our Constitution to counter-balance the heavy weight of government.

In courts across the land, crime and punishment are married in our system, and the weight of proven guilt varies greatly based on whether an offense is classified as a “misdemeanor” or a “felony”, and whether the judgement is part of a “civil” or “criminal” case.

Trump’s alleged criminal offenses – before, during, and after his Presidency – are of course historic and significant. But lost in the glare of this weeks legal circus was a more significant legal event that played out in Wisconsin on the very day of Trump’s arraignment.

It involves the process of Judicial Review. To set the stage, dating back to the early 1600’s, the British government took pains to reinforce that laws and ordinances should take care not to be “contrary and repugnant” so as to avoid loosing the faith and confidence of those governed. 

By the late 1600’s, all laws generated by the 13 British colonies in America had to be sent to England for review, and if “repugnant” (as roughly 5% were) they would be disallowed. That same word – “repugnant” – was used six different times by Supreme Court Chief Justice John Marshall in the 1803 decision Marbury v. Madison, which codified for the first time Judicial Review in this country. The Court now had the power to, in effect, declare a law unconstitutional.

This week, “repugnancy” surfaced once again in fueling an historic defeat of Wisconsin’s conservative Judicial candidate, Dan Kelly. His 10 point defeat by liberal judge Janet Protasiewicz was largely the result of the Trump endorsement of his failed run in 2020 and the reinstatement of a  Wisconsin  “19th century-era ban on abortions” which took effect after the recent Dobbs decision overturned Roe v. Wade. 

Judge Protasiewicz publicly opposed this law as “repugnant”. In winning,  her 10-year term gives control of that state’s highest court to liberals for the first time in 15 years. 

This is just the latest in a string of defeats tied to two markers of “repugnancy” – Trump support and Dobbs. The Dobbs decision turned on a Judicial Review dominated by conservative judges that were “stacked” into the Supreme Court, fulfilling a campaign promise by Donald Trump that he would only nominate judges that opposed Roe v. Wade.

Court packing on a federal level, and even more importantly by Republican leaders on the state level, has tipped the power of our nation toward minority rule, allowing repugnant leaders to seize control of our legal system. That power has been used over the past decade to allow passage of laws that attack existing rights such as women’s power and autonomy over their own bodies, or construct barriers that obstruct the popular will of the people.  Examples include promoting  extreme gerrymandering and voter suppression, dead ending the Dream Act, or allowing citizen access to weapons of war and a permitless gun-carry law in Florida.

The size of the defeat, especially in Wisconsin swing districts that Trump easily carried in 2020, is frightening to Republican party officials. Leaders like Charlie Kirk, CEO of conservative Turning Point USA acknowledged as much saying, “Trump arraigned . . . and Democrats flip Supreme Court in Wisconsin. Very bad day. No spin, no bs. Country is in collapse. We need God and dutiful action.”

But when our Founders created a tripartite government, carefully balancing the Legislative, Executive, and Judiciary branches as checks and balances against each other, they were not counting on divine intervention to finish the job.  Their intent was to limit “repugnancy” tied to “tyranny of the minority” by leaders like Charlie Kirk.

What the Founders who supported federalism could not have imagined is that in a single week, 236 years after their signing of the U.S. Constitution, the nation would tack back toward majority rule and normalcy, by winning a local judicial election in one midwestern state only a few hours after indicting a former President for felony violations of New York’s state law.

In doing so, the Republican’s subversive strategy of Trump-enabled Judicial Review has misjudged the public. By going one step too far, they have inadvertently fueled a string of defeats, led by suburban women, that is fast becoming a death spiral for their political party.

The Indictment of Donald Trump: Does It Signal A Course Correction For America’s Legal System?

Posted on | April 3, 2023 | 1 Comment

Mike Magee

Former President Donald Trump’s indictment this morning reinforces most Americans’ belief that “No man is above the law.” But few of us have taken the time to explore what that statement means when it comes to building a healthy nation, and why we believe it.

How do you create a healthy nation? 

This is at once a very simple and a very complex question. It is at the heart of successful and failed nation building. 

It applies equally to a self-assessment of our approach to rebuilding Germany and Japan as part of the Marshall Plan after WW II, and to our own struggles with autonomy and disparity in America where our very beginnings were (and continue to be) marred by a history of enslavement of blacks, forced migration and cultural destruction of Native Americans, and subjugation of women.

The law, a blend of agreed upon rules, regulations and boundaries, arose in layers over time, and reflected the communities where they emerged. Our own American legal system, on which we relied to launch this nation-building exercise in 1776, is dynamic and continues to evolve to this day. 

As legal historian Lawrence Friedman wrote, “Despite a strong dash of history and idiosyncrasies, the strongest ingredient in American law at any given time is the present – current emotions, real economic interests, and concrete political groups.” It is then “a study of social development unfolding through time…”

When building a nation, some countries like France and Germany, relied on written codified rules, statutes or “rational instruments” on which they leaned to create order and to base decisions. But our laws, upon which this nation was built, if they have a basis, were descendant from British law.

Common Law in England was pluralistic, showing some variance in design and execution by geography. This is because Common Law was not “imagining the future” but “happening in the present” in response to real-life disputes that appeared as cases to be adjudicated and resolved by a judge. 

Complexity of decision-making made the emergence of lawyers inevitable. They negotiated the space between citizens and rulers of the various communities. The “bar” (the lawyer collective) gave rise to the “bench” (the collective of judges) filled with local men of power and influence largely drawn from the bar. Together the bar and the bench formed a single guild that defined local justice by their rulings and kept the wheels of government moving.

Common Law became the law of the land in America by the Judiciary Act of 1789.  Today it is sometimes referred to as “Case Law.”  While Common Law derives from actual disputes and their decisions, it does not “make law.” A separate branch of our tripartite government, the Congress, is empowered to create a new law, which must be signed by the President for an Executive branch stamp of approval, to become official. 

But what is the recourse for a decision or law that is deemed unjust? How is that challenged? That requires “litigation”, that is a challenge or “appeal” to a decision with request for a review and action by a higher “appellate” court. In America, the chain of appeal under our Constitution leads to the Supreme Court, the highest Court in the land. By action of the Supreme Court in Marbury v. Madison in 1803, the Supreme Court claimed the right to declare an existing law unconstitutional and so it has remained, last exercised in the recent Dobbs case.

When John Adams and his contemporaries were contemplating “nation building”, they were already aware that a range of legal practices, dating back to the British and Puritan derived customs of the early 17th century, were already wildly out of date, and that “one size fits all” might not work well for all 13 British colonies.

 As legal historian Lawrence Friedman noted, “The legal needs of a small settlement run by clergyman clinging precariously to the coast of another known continent were fundamentally different from the needs of a bustling commercial state… Necessity was the supreme law maker for the colonies and niceties came later…”

Health was hardly a priority, or even an understood or workable concept, at the beginnings of this nation. Law on the other hand was “a utilitarian tool” to advance prosperity, enterprise and growth. After the signing of the Constitution in 1787, 11 of the 13 states rapidly drafted and approved their own state constitutions to replace their King’s charters. Not that these were in any way permanent or static. Louisiana for example is on its ninth constitution.

But what these actions did do in many of the states was to severely restrict the right to vote and “legalize” a solution to their labor needs on large plantations, legalizing a “slave code” already a century old. As early as 1662, in Partus Sequitur Ventrem  (“offspring follows the womb”) the Virginia colony had affirmed that children of slave mothers were slaves themselves regardless whether their father was white and free. In 1671, Maryland courts declared that Christian conversion did not have the power to affirm “free status” on slaves…and so on down the line. The “slave code”, and the 3/5th of a person chattel status was there at, and before, and in some form ever since the birth of this nation.

Our culture defined our laws, and our laws reinforced our culture – with its residual racism, misogyny, gun violence, and cruelty (even to the point of separating immigrant children from their parents) – which continues to undermine our health as a nation.

So when we ask the question “How do we make a healthy America?” in these modern times, we are forced to retrace our beginnings, and especially our legal beginnings, to untangle how “our social development has unfolded over time.” 

The British law, from which our’s was derived, took pain to reinforce that laws and ordinances should take care not to be “contrary or repugnant” so as to avoid loosing the faith and confidence of those governed. The over-turning of Roe v. Wade, extreme gerrymandering and voter suppression, legalizing citizen possession of  weapons of war, and obstruction of sensible immigration reform like the Dream Act all take us in the wrong direction.

The indictment today of Donald Trump perhaps announces the beginning of a legal course correction.

A Debt of Gratitude to Former President Trump. Here’s why…

Posted on | March 30, 2023 | 8 Comments



Mike Magee

No man is above the law! That is the screaming headline behind last evening’s indictment (first of many) of former President Donald Trump. 

Donald Trump, for a time, sat himself in the middle of America’s triangle of power. From his seat as President, he installed himself as “a Golden Idol” and had a commanding view of the Executive branch of government. He then subverted the Justice Department and directed therm as a “strike force.” By aligning with the Federalist Society, the Christian Right and Mitch McConnell, he was able to stack the Judiciary and deliver a promised reversal of Roe v. Wade. But that federal overreach, which included rejecting  50 years of precedent and compromising women’s freedom and autonomy over their own bodies, fueled his undoing. It led to a resounding 2020 Trump defeat and Republican statewide under-performance in the 2022 Mid-term elections.

It also triggered a first ever President-led armed insurrection on January 6, 2021. But in a real-life “Democracy stress test,” this is the week when one of our three branches of government finally broke the spell and delivered a message to all Americans that no man is above the law.

Consider the record:

First, our citizenry pried the Executive branch free of Trump in 2020.

Second, our Judiciary, including state and federal courts, have rejected nearly 100 bogus cases led by unethical lawyers on Trump’s behalf, and have now indicted (for the first time in our nation’s history) a former President. Multiple indictments of a now, unprotected and disgraced Trump are certain to follow. Along the way,  hundreds of violent and disgraced fringe followers have been secured behind bars.

Third,  a Republican led Congress has been forced to cooperate on real issues in secrecy, while publicly feigning continued fealty to Trump and a small band of farcical Trump look-alike’s intent on driving their party over the cliff. With their hero now publicly indicted, expect this small band of  most ardent Congressional supporters to suddenly lose their voices. And as Trump losses mount, expect these actors to evaporate and slink back into the cracks of our society.

James Madison, author of Federalist No. 51,  predicted as much.

On February 8, 1788, he wrote: “If men were angels, no government would be necessary… the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.”

It has not been easy on any of us, and the job is not yet done. Our Judiciary has a complicated road ahead and must see it through. Our Congress must take lessons learned and advance legislation to curtail future Executive abuses and ensure that  voting access is secure in all fifty states. And the election of 2024 must lay the groundwork for reasserting women’s freedom and autonomy, sensible gun policy, and sound immigration policy.

But in the meantime, thank you, Donald Trump! Your service, in stress testing the durability and resilience of our Democracy, has been invaluable. Thanks to you, we have uncovered a range of weaknesses in our design, which we will correct.

But as important, we have stood up to you, a Bully and a Golden Idol, and in so doing have proven to each and every one of our citizens that “No man is above the law.”

Our Democracy for certain is a work in progress, but your place in history is permanently secured– the only President ever to be indicted in the history of the United States of America.

“If Men Were Angels…” American Democracy Will Pass This Stress Test.

Posted on | March 27, 2023 | Comments Off on “If Men Were Angels…” American Democracy Will Pass This Stress Test.

Mike Magee

As we enter a new and potentially historic week, with a former President doing his best to reignite a Civil War in our nation, we do well to take a breath and reread James Madison’s words from Federalist No. 51. But first, a few words of history.

When it came to checks and balances in this new national experiment in self governance, the Founders, while establishing three co-equal branches, left one of those branches the task of defining by practice its own power and influence.

The new Constitution in 1787 awarded one branch, the elected Congress, the daunting power to impeach, convict and remove representatives or appointed federal officials for due cause up to the President himself. But it also empowered a second branch, the Executive, through its President, veto power to check legislative excesses and the privilege of initiating appointments to the federal judiciary. Only the third branch of the government, the Judiciary, was left deliberately “elastic,” destined to grow into “the triangle of power.”

Thirteen years later, on February 17, 1801, Congress was forced to break a tie in the Electoral College vote, resolving a Constitutional crisis and declaring a victor in one of “the most acrimonious presidential campaigns” in U.S. history. Thomas Jefferson was awarded the victory, and John Adams acquiesced and was sent packing a month later. But two days before he departed, Adams unloaded multiple appointments of circuit justices and justices of the peace which the U.S. Senate quickly confirmed on March 3rd. In the rush, Adam’s Secretary of State, John Marshall (soon to become Chief Justice Marshall of the Supreme Court under President Jefferson) didn’t have time to complete a final necessary step, delivering the commissions, to some of the appointees.

When Jefferson took office on March 4th, and saw the opportunity to block some judgeships on the technicality, he instructed his new Secretary of State, James Madison, to not deliver the commissions. One of those prospective new judges, a Maryland businessman, William Marbury, after trying to unlock his commission for several months, filed a lawsuit in December, 1801 demanding that his commission be delivered through a “writ of mandamus.” ( “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”)

Eventually the case came to the Supreme Court and John Marshall delivered the unanimous verdict on February 24, 1803 in Marbury v. Madison. 

In short, William Marbury did not get his judgeship, but not because he didn’t deserve it. He did, and the decision said as much. But the Court also recognized that the authority that Section 13 of the Judiciary Act of 1789 had granted the Court to issue “writs of mandamus” (and effectively force Secretary of State Madison to deliver the appointment) was unconstitutional. 

This was because Article III of the U.S. Constitution  (signed September 17, 1787) made clear that the Supreme Court had “original jurisdiction over cases only where a U.S. state is party to the lawsuit.” As legal experts have explained: While the decision “limited federal court’s jurisdiction, it cemented the Court’s status as the ultimate interpreter of the Constitution.”

William Marbury’s loss became our nation’s gain. Our third branch of government, in finding its voice, defined its own powers. As Justice Marshall wrote “It is emphatically the province and duty of the Judicial Department to say what the law is…a Law repugnant to the Constitution is void.” As law historian Lawrence Friedman wrote, “Here for the first time John Marshall in the U.S. Supreme Court dared to declare an act of Congress to be unconstitutional.”

Donald Trump, for a time, sat himself in the middle of America’s triangle of power. From his seat as President, he installed himself as “a Golden Idol” and had a commanding view of the Executive branch of government. By aligning with the Federalist Society, the Christian Right and Mitch McConnell, he was able to stack the Judiciary and deliver a promised reversal of Roe v. Wade. But that federal overreach, which included rejecting  50 years of precedent and compromising women’s freedom and autonomy over their own bodies, fueled a resounding 2020 Trump defeat and Republican statewide under-performance in the 2022 Mid-term elections.

It also triggered a first ever President-led armed insurrection on January 6, 2021. But in a real-life “Democracy stress test,” this may be the week when our three branches of government finally deliver a message to all Americans that no man is above the law. 

First, our citizenry pried the Executive branch free of Trump in 2020. 

Second, our Judiciary, including state and federal courts, have rejected nearly 100 bogus cases led by unethical lawyers on Trump’s behalf, and are nearing multiple indictments of a now, unprotected and disgraced former President. 

Third,  a Republican led Congress has been forced to privately cooperate on real issues, while publicly feigning continued fealty to Trump and a small band of Trump look-alike’s intent on driving their party over the cliff.

So what did James Madison, author of Federalist No. 51, have to say about all this? 

On February 8, 1788, he wrote: “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 forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.”

Trump is a stress test, and our nation is rising to the challenge. We are gradually, slowly and painfully, learning to “control ourselves” by enforcing our laws. Democracy is a work in progress.

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