A note on this July 4th weekend

Dear ,

Late June and early July, when we celebrate Juneteenth and Independence Day, is a time for our thoughts to turn to what our country means, what it has been, and what it can be. Those meditations are burdened this year, particularly, for me, by this week’s Supreme Court decision (Trump v. United States) giving Former President Trump substantial immunity from prosecution for his monstrous attempt to overthrow Constitutional government in America. 

The infamous absurdity of this decision is plain. It invents a doctrine that the President is above the law, when in truth the Constitution requires the opposite, when in truth a basic purpose of the Constitution is to restrain government officers from potential abuses of power. The decision is not so much un-Constitutional as it is anti-Constitutional. And the danger of it is palpable.

I am writing today to say a word on what we citizens can do. When the decision came down I went back to consult an old speech that Abraham Lincoln gave in June of 1857 on the Dred Scott decision, not long after that terrible ruling was handed down. Lincoln held no office then, but he was a great and sober constitutionalist, and was at the forefront of articulating the proper democratic response to the attacks of his era, like the one in Dred Scott, on American freedom. He said:

But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this….

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true…it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country…

So it was then, and so it is again. All five criteria of legitimacy that were lacking in Dred Scott are also lacking in this new immunity case. Which is why, in both cases, it is timely to affirm that the People are the final interpreters of the Constitution, and there are lawful actions we can take to set things aright. 

That is important to remember, because aside from attempting to re-impose monarchy on this continent, this decision attempts—and I say attempts—something else too. It attempts to demoralize and bewilder us, the decided majority of Americans who believe in free government, who want to have public questions decided by fair elections and the Constitution, and who want to continue to strive toward equality for all people. Mass demoralization, tuning out of politics, is the literal and necessary precondition for the success of the authoritarian MAGA project. Do not give it to them.

And there are actions we can take. Contact your federal representatives to ask them to support the removal of the justices who have inverted the meaning of the Constitution. Document and publicize their answers. If they support this decision, then do not support their reelections. Campaigns for their congressional seats are happening right now. Above all and always: vote. Vote for candidates who believe in free government, and are willing to sacrifice their comfort to vindicate it. Volunteer for their campaigns. Contact voters, including friends and family, to make sure they vote that way, too.

Don’t be demoralized by the very reasonable worry you feel, but channel it into effective action. This is the struggle of our time. You know where I will be.

We are, as always, in this together. Clay