CLAY JENKINSON: The Jefferson Watch — The Supreme Court: Political From The Get-Go

We like to think of the Supreme Court as a nonpartisan and completely independent branch of government that makes sure laws passed by Congress and the states conform to the provisions of the United States Constitution.

The Supreme Court aspires to that Olympian detachment and judicial neutrality but seldom achieves it. Like it or not, there is a political substratum in court appointments, and it can produce great political tension at unsettled moments in American life. Like now.

Presidents nominate Supreme Court justices and the Senate has to confirm. There has been occasional trouble since the very beginning.

The first justice to be denied a seat on the court was a man named John Rutledge. It was 1795, just seven years into the new constitutional order. Rutledge had written an op ed piece critical of the Jay Treaty — a 1794 treaty with Britain that tried to resolve certain lingering issues from the War of Independence. That was enough for a Federalist Senate to scotch his candidacy.

Jefferson came into office in 1801 in what he called the Second American Revolution. But poised to prevent that revolution was Chief Justice John Marshall, Jefferson’s distant cousin. He was put into his life-tenured position in the last months of John Adams’ failed one-term administration. Adams, who distrusted Jefferson’s democratic radicalism, essentially engaged in last-minute court packing — Marshall and dozens of other midnight appointments — to make sure Jefferson did not take things too far to the left.

Marshall went on to serve for 34 years. He was perhaps the greatest of all Supreme Court justices. He was indeed a thorn in Jefferson’s side. Marshall wanted America to be a great centralized nation state, not a confederation of sovereign states. Marshall envisioned a nation that prized the sanctity of contract above any temporary notion of social justice. He despised Jefferson’s vision of a lightly governed, inward-looking, agriculturally based loose association of proud commonwealths like Virginia and Pennsylvania. We now live in Marshall’s America, not Jefferson’s.

Jefferson struck back at the judiciary in 1804 by convincing his partisans in the House of Representatives to impeach Supreme Court Justice Samuel Chase, a signer of the Declaration of Independence who had become an obnoxious and outspoken anti-democrat from the bench. The question was this: Can you impeach a justice for what you regard as his nasty politics. The U.S. Senate chose not to convict Chase.

Jefferson seems to have sensed that he was playing a dangerous game, one that could erode constitutional stability. In the aftermath, he admitted that such impeachments were a bungling enterprise and he desisted from meddling with the independence of the judiciary thereafter. Jefferson appointed three justices to the Supreme Court. Every one of them wound up disappointing him.

The last attempt to pack the court was in 1937, when Franklin Roosevelt, just re-elected in a landslide, attempt to increase the number of justices from nine to 15 so that his emergency New Deal legislation would not be struck down by judicial conservatives any longer. Congress balked. Even Democrats in Congress, including senators and representatives devoted to the New Deal, refused to give Roosevelt such unprecedented power. He was frustrated, but this is how our system is supposed to work.

What we should want is a justice with a first-rate mind, great analytical powers, an unusually high capacity for legal discernment and nuance, a deep grounding in the history of law, the history of natural rights and the history of constitutions, particularly “our” Constitution. What we want is someone who knows a great deal about original intent but is not a slave to original intent (that was then, this is now, and by the way “that” constitution was written to protect slavery, so how “original” do we really wish to be?) We want someone who prizes a strict protection of human rights over government efficiency or economic prosperity. What you most want on a court is a few crabby civil libertarians who understand that the whole genius of America is to leave as many people alone as possible as often and emphatically as possible.

So why are we already locked into an angry national cage match on Roe V. Wade, the abortion decision issued by the Supreme Court in 1973?

Both parties are behaving in a deplorable manner: The Republicans want the nominee to pledge to overturn Roe V. Wade. The Democrats insist that he or she hint that she will leave current abortion law in place.

Not only is this the wrong basis on which to give someone life tenure, but it trivializes the third branch of our national government into a public policy club consisting of nine unelected and largely unaccountable persons. The great questions of a great nation should not be decided by nine unelected individuals.

They are men and women like other men and women, capable of nobility and capable of pettiness, vengefulness, ignorance, prejudice, bigotry, pride and self-aggrandizement. They have good days and bad. They see some issues with great clarity and others with the kind of muddled gut reactions that characterize all of the rest of us.

The future of this country should be in the hands of an infinitely wider body than the Supreme Court. Our current approach is not much different from letting the starting lineup of the Chicago Cubs determine the future of the United States.

I believe the nomination process should be taken out of the hands of American presidents, who misunderstand and misuse their appointment power for narrow and often temporary purposes, and put it instead into the hands of a severely nonpartisan think tank of constitutional experts who look for raw judicial talent irrespective of the person’s political views. Once the foundation designated someone of outstanding merit, the Senate would confirm or deny with a straight up and down vote.

America is awash in men and women who would be outstanding Supreme Court justices. But the very last questions we should want to ask them is where they stand on Roe V. Wade, or the Affordable Care Act, or affirmative action.

TOM DAVIES: The Verdict — Inhumane Sanctions Reflect A Cold, Callous Heart

The word “humanity” is often tossed around, but I wonder if the term is understood. Definitions abound. Here’s how Merriam-Webster explains it: A) the quality or state of being human; B) the quality or state of being kind to other people or to animals.

Another word that also seems to be understood is “sanctions.” Again, the dictionary’s definition: A) a threatened penalty for disobeying a law or rule; B) a penalty, punishment or deterrent.

Take North Korea, for example. Sanctions in place right now deprive them of coal and food products, as well as other items essential to life, in response to their constant violation of human rights and their military threats.

Their leaders live like kings. When their president is offended by citizens, he simply has them killed.

The United States has thousands of troops stationed in South Korea. They’ve remained there since we bombed the hell out of the North from 1950 to 1953 and finally forced a truce, which holds to this day.

Why should the North feel comfortable with our troops next door … and particularly since we have placed anti-ballistic missiles in South Korea?

The North Korean people face winters as bad as any the free world experiences, and coal is essential for heat. Whenever sanctions are applied, it hurts the civilians. That is simply inhumane. Yet we applaud the act of withholding coal.

We have enough nuclear deterrent to destroy the entire world if we wish. So why do we maintain thousands of troops in South Korea 64 years after signing the truce?

All administrations say they are there to “preserve the peace.” But at the same time, they claim that if the North moves, the North will use nuclear weapons. The last thing we need is to have our men and women on the ground where the fear is nuclear. Their presence will not for one second deter an admitted mad man. (We sure don’t need two mad leaders in this world, but that’s what we seem to have right now.)

America’s current dictator wants China to do his dirty work for him and is surprised that there is nothing in it for the Chinese, even if they could control the North. China is not our ally, but neither is it an enemy. China is growing; while you can call them inhuman or inhumane if you wish, at least they have signed onto the Paris Accords and are working extremely hard to clean the environment. Only one world leader ignores climate change, and that is 45.

Is it humane for us to punish civilians … not just in North Korea but also in the Mideast, including but not limited to Syria, Afghanistan and Iraq? By agreement, we are supposed to exit Iraq, and the same holds true in the near future for Afghanistan. The Russians left Afghanistan knowing nothing would stop the occupants from feuding, as they have since time began. Then we took over.

We killed the leader of Iraq, not knowing at the time that his method of governing was what kept the country together, albeit not in a democratic way. The price has been, and is now being paid by the Iraqis.

The Afghans and Iraqi no longer desire our presence. The cost to the U.S. is far up into the billions, not counting thousands of men and women killed and wounded in action, including those grappling with continuing mental problems resulting from those wars.

When we talk about sanctions, we should consider them in the same sentence as the word “humanity.” In the world today, using them is dead wrong.

Here at home, we have leaders falsely claiming to be concerned about humane treatment of our citizens as they seek to abolish the Affordable Care Act. Though it does definitely need improving, that certainly won’t happen under their UN-affordable Care Act that essentially exists to give substantial tax breaks to the wealthiest Americans. Those breaks would come at the expense of health care for the elderly, the young, families, the disabled, low-income individuals and military veterans … everyone except the wealthy. That’s just plain wrong.

What 45 and the Republicans in Congress propose and support is absolutely IN-humane. Their proposal places sanctions on those who can least respond by proposing the deletion and replacement of the ACA — which may not be perfect, but has greatly improved the picture for tens of millions of Americans.

This is the United States of America, not the Soviet Republic of the United States. It’s time for our legislators at all levels to throw off their party labels and start representing the American people — all of us. In the current environment, we cannot afford to be simply Republican or Democratic. We must first be American. That means we must look out for each other, not line a small number of rich people’s pockets.

I’m 78 years young. In my wildest nightmare, I could never have envisioned the cold-blooded, forget-about-people administration we now have. This can be laid at the feet of POTUS 45. Make a list of his pre-election promises and another of those he has broken or where he has flat-out lied. You’d better have lots of computer memory and a ton of paper if you go to print them out.

Simply stated, this administration is being inhumane … and it is we the people who are under its sanctions. Amen

TOM DAVIES: The Verdict — Ask What You Can Do for Your Country

In his inaugural address, President John Kennedy challenged the youth of our country to “ask not what your country can do for you — ask what you can do for your country.”

If ever there was another time to rally to that call, it is now. We have an administration led by a president with no soul, no moral compass — a man with no empathy nor concern with the problems confronting the elderly, the average wage earner, women, all minority groups — and, worst of all, one who has developed an environment where absolute lies are acceptable.

POTUS 45 slammed President Obama for his vacations and golfing, and took special exception with his executive orders. That was on the campaign trail. Now that he occupies the White House, his actions are enough to qualify President Obama for sainthood.

Kennedy’s call to the youth of our country takes on particular significance today. POTUS 45 has promoted a travel ban from seven Muslim countries; rolled back clean air and water regulations; tried to give political cover to extremist religious groups, including churches, to promote politics from within, violating the separation of church and state; cut funding to sanctuary cities; taken steps to discriminate against the lesbian, gay, bisexual and transgender community; and — last but not least — promoted a replacement for the Affordable Care Act that gives tax breaks to the wealthy while depriving tens of millions of affordable health care.

I could go on til the cows come home, but the political picture would not improve a bit. The samples I have provided should give the youth of this country — to me, that’s anyone under 55! — solid reasons to get involved in learning much more about our government. It should scare the bejeezuz out of the over-75 crowd. (I’m 78, so that includes me.) We might lose our health coverage, too, along with the right to affordable health care.

Follow what 45 is doing, not what he has said. So far, the Republicans are claiming that health care will be “available” for all. They don’t say, though, that it will be affordable for all. Don’t be lulled to sleep by false promises. The ACA should be repaired (for it does need repairing) — but not replacement.

Last week, the dingbats in Congress voted for an act they had not even read. Go back to Ryan and his ilk, who yowled like a castrated pony back in 2011 because Obama and the Democratic majority “rushed” (over the course of two years) to pass the ACA, while the R’s passed their miserable repeal-and-replacement in just two weeks.

Watch what is being done, not what was said. He who campaigned on “draining the swamp” and attacking Goldman-Sachs has surrounded himself with the Wall Street firm’s former executives and other extremely rich folks who have never had to deal with the real-life problems of the average citizen.

The worst thing that can be said of our fearless leader (so long as he has security and the military to protect him) is his vindictiveness. Anyone who criticizes him is on his personal hit list. He’s after “Saturday Night Live,” late-night comic Stephen Colbert and other critics too numerous to name.

I’ve recounted all this cannon fodder to make my point about another president … a prime example of a man among men; a man whom we should all model our lives after, a man who cares about Mother Earth and all of her inhabitants: Former President Jimmy Carter.

After Jimmy Carter left the White House, he devoted his life (and still does) to helping the underprivileged, the downtrodden, the poor and the sick. He has traveled worldwide to help those in need. He has worked tirelessly to improve their quality of life and to bring them food, medical care and housing assistance when no one else would. Regardless of your opinion of President Carter as the head of our nation, you can’t question his contributions as a giving, caring human being, doing the best he can with the time he has for his remaining years on this earth.

Carter was no fan of 45. He has made that clear. So 45 must have his revenge, and it has been both childish and predictable. President Carter was nominated for Argentina’s highest distinction offered to a foreign person, the Order of the Liberator General San Martin, the equivalent of the United States Medal of Freedom. The award had been approved by the Argentine foreign ministry and was published in their Official Gazette. He was chosen for his contributions to human rights and his work for peace during Argentina’s last military dictatorship during his tenure as president — as confirmed by the reporters of CNN.

Now, enter our immature, vindictive child-president. Carter had not been nice to 45. (Not many intelligent people have.) So, with all of the venom an infantile kindergartener could possess, 45 and his administration pressured Argentina to cancel the award honoring President Carter. A kind, decent, caring human being like Jimmy Carter, who has devoted his life for the good of mankind, did not deserve this meddlesome and juvenile treatment.

We who care about this country have to get involved. One bad election with horrible results, to date, does not identify who we really are as a people. How we move forward and deal with this administration certainly will.

This is a time for all people to care about each other: to stand up for each other, to protect this earth we occupy and to take on those who do not have our best personal and economic welfare in mind.

For those who believe we have but one creator — God, Allah, or whatever you call him or her — the name doesn’t control us. Our beliefs do. For those who do not believe … then believe in your fellow human beings and the earth we must save for generations yet to come.

We have an administration that has outlined priorities that benefit the few, but it only prevails if we the people allow it.

“Ask not what your country can do for you. Ask what you can do for your country.” The “who” is us! The “when” is now! The “what”? We must get involved to protect our country. Amen.

TOM DAVIES: The Verdict — ‘Shut Up’? Stand Up and Voice Your Opinion

One who writes for the Fargo newspaper (not to be confused with Moorhead’s No. 1 publication, The Extra) had some sharp advice to citizens who have issues with laws being proposed in North Dakota. Apparently, he believes those who oppose some legislation coming before the North Dakota Legislature as a “waste of time” are typical groaners and usually “lightly informed.” His advice: “Shut up!”

The same columnist slams Marvin Nelson, a Democrat, for daring to propose a minimum wage increase in North Dakota. He further talks about the limited time the Legislature is in session — true —  and then addresses the open legislative process in this state. If you don’t like legislation, he claims, you are a “whiner.”

I say you are a citizen exercising your constitutional right to support or oppose legislation. Until the appearance of Donald Trump on the political scene, open discussion has always been and should be the rule of the times.

North Dakota votes Republican to the complete exclusion of any other political party. It’s virtually unopposed one-party rule. The Forum blogger knows it. You don’t have to be a mental giant to know that Big Oil talks and controls the North Dakota Legislature; if you want to run for higher office now, you’d better be wealthy or have a sugar daddy (like Big Oil). Otherwise, you won’t have the funds to run a campaign comparable to the Republicans.

Former State Sen. George Sinner didn’t lose to a more qualified candidate here in Fargo. He was defeated by an especially cash-strong opponent. If you somehow still believe money doesn’t talk, I have some more backyard oxygen for sale cheap.

I think any state, just like our federal government, cannot serve all of the people when it is governed by a super majority.

Speaking of super majorities … I, for one, am sick and tired of lying, conniving politicians who wouldn’t know the truth if it bit them in their donkey. Guess what? I’m not talking about President-Elect Trump this time.

At the federal level, the Republicans having been wanting to eliminate the Affordable Care Act for the past seven years. The House of Representatives has voted to kill it so many times that it didn’t get anything else done. But then again, in fairness to the Republicans, they did vow — through crazy Mitch McConnell, their Senate leader — that no Obama legislation would be passed. McConnell, too, and his followers forgot that they are supposed to represent all of the people, not just those with the highest income.

Forget the fact that they’re now well on their way to repealing the Affordable Care Act without a replacement and that 20 million Americans — those with nominal incomes, the elderly, students and those with preexisting conditions — may lose their health insurance coverage. Ignore the fact that people will die if the act is repealed without replacement. With all of their votes to repeal, the dummies in all that time did not have any replacement plan to provide coverage to those who need it so badly.

Of course, the millionaire and billionaire members of Congress don’t lose much sleep one way or the other. Eliminating health coverage under the ACA won’t affect them or their families.

Paul Ryan and President-elect Trump have both said that there would be no repeal without replacement, but so far, few in their party seem to be listening. Here’s hoping that common sense will prevail, and that if they succeed in repealing the act, they will have a replacement ready to go. So far, they’ve only had almost eight years to get one ready.

Trump has said there will be affordable insurance for all. Let hope that’s his first truth.

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The City of Fargo and its Liquor Control Board ought to weigh in and help the Fargo Police Department. Violent crime in the downtown area has increased dramatically. The police say it’s mostly alcohol-related and does not involve the use of weapons so much (if you exclude knives and pistols).

I’m still waiting for the talk to stop and the action to start. Some of the downtown liquor establishments are serving people after they become intoxicated. Then they start the trouble. (Yes, some get hammered at home as well or carry their own; then they do their damage, too.)

Asking our police to babysit a bunch of drunks being sent out onto the streets is just not right, absent some positive moves to cut down on the incidence of crime. The city could start pulling some liquor licenses of violators as a start. Many folks in the booming liquor industry are responsible. Some are not. No one should have to be concerned about their safety when walking in downtown at any time of day. Arresting the troublemakers is not the only answer. Stomping on some liquor licenses could go far to help.

I’m assuming some establishments still have the “do not serve” lists of known troublemakers, but I don’t know that for a fact. Law enforcement can’t do this alone. Help them by investigating to determine where the unlawful sales are taking place. That does take time and expense, and that means giving the Police Department additional tools to do the job.


We have honored Martin Luther King and will inaugurate a new president in the same week. Mr. King was an activist who was murdered because he wanted to improve the lives of all of us through the system of law that should be — but has not always been — equally applied.

Congressman John Lewis was deeply involved in the Civil Rights Movement. He was and still is, to put it mildly, an icon in that movement. He reminds people to speak up to right wrongs — to make their voices heard.

Lewis questions the legitimacy of the Trump presidency. That is his right as an American citizen. What is not right, and what ought to concern all Americans, is Trump’s tweet denigrating and attacking Lewis and the city he represents, Atlanta, which by all accounts has a great economy and great education facilities and is successful from any standpoint.

Using falsity and innuendo, the tweeting president-elect of the United States of America reacted like an uneducated child.

Think for a moment about what this man-child could do once after his inauguration Friday if North Korea or China or even his friends in Russia verbally insulted him.

To be clear, I’d certainly prefer him having access to Twitter than to the nuclear launch codes that only he can use. Perhaps Congress should immediately take steps to make it impossible for any president to be solely responsible for those codes — some type of human fail-safe procedure. That’s something that should have been done long before Trump.

If shadows were the measure of greatness, Trump would have none … and that of Lewis would go on forever.


Kudos to Moorhead as it becomes the largest Minnesota city helmed by a majority of women. More cities must follow Moorhead’s lead. We need more women to assume leadership positions at all levels throughout the nation. With all due respect to my male counterparts, women are generally more analytical and thoughtful than men. If ever there was a time when we need governmental self-control and sober thought, it will commence with the inauguration this Friday. Amen.


An idea to eliminate pro sports stadium wars

For 30 years, the owners of the Professional Sports Cult have screwed the public with a subsidy bill of $17 billion. Sports loyalty, at least in Minnesota, is a one-way street. Pay the bill and watch marginal teams lose. Ahhh. But now, there’s hope for taxpayers down the road, just not in Minnesota. A bill in Congress might make public stadium fichances of the Timbernancing tougher for the cult. In reality, the likelihood of the bill passing unscathed through the ranks of Republicans is as low as the wolves winning the Super Bowl.

2014 Farm Bill still works like magic — the largest farms continue to cash in on the public’s money

The 1,000-page bill will cost U.S. tax payers $1 trillion in spending the next 10 years. The Farm Bill was supposed to eliminate direct payments to farmers. Instead, the crop insurance programs that were designed to replace the handouts now are costing taxpayers more than the subsidies ever did. So guess who’s benefiting the most.

Republican budget: More money for war; nuke the social safety net

U.S. House Republicans showed where their priorities are Tuesday in the the form of budget plan. Basically, the “policy manifesto” reveals the GOP wants to nuke the Affordable Care Act and decrease spending on other health-related programs such as Medicare, lower college subsidies and, of course, eliminate Wall Street safeguards. Republicans, however, want to spend more on the military for a total of $613 billion.  Do all that and citizens will have a “Balanced Budget for a Stronger America.”

Young Republican resigns after accusations surface about his lavish spending and shady business deals

Aaron Schock, R.-Ill., has been a naughty boy and because he misbehaved he has resigned his U.S. House seat.  The Washington Post reported Schock redecorated his office for $40,000 but then got it for free, which prompted an ethics complaint;  sent his staffers to New York for fun at a cost of another $40,000 (they used a political donor’s jet); and got into trouble after selling his house to a donor for a big, fat profit. There’s much more about the savvy 33 year old. Check it out at …