{"id":366920,"date":"2018-06-27T03:13:33","date_gmt":"2018-06-27T02:13:33","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/?p=366920"},"modified":"2018-06-27T11:14:19","modified_gmt":"2018-06-27T10:14:19","slug":"did-the-u-s-supreme-court-just-nullify-the-u-s-constitution","status":"publish","type":"post","link":"http:\/\/rinf.com\/alt-news\/editorials\/did-the-u-s-supreme-court-just-nullify-the-u-s-constitution\/","title":{"rendered":"Did the U.S. Supreme Court Just Nullify the U.S. Constitution?"},"content":{"rendered":"

On June 26th, the U.S. Supreme Court issued its 5-4 majority decision in the landmark case of \u201cTrump v. Hawaii\u201d<\/span><\/a>, about President Trump\u2019s commonly misnamed \u2018Muslim ban\u2019. This decision probably established a new precedent: that national security is an interest that overrides the First Amendment to the U.S. Constitution. Here is how it does this outrageous thing, which is so shocking for such persons \u2014 who are oath-bound to uphold<\/i> the U.S. Constitution \u2014 to do:<\/span><\/p>\n

The First Amendment to the U.S. Constitution says, in full:<\/span><\/p>\n

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.\u201d<\/i><\/span><\/p>\n

The traditionally-called \u201cEstablishment Clause\u201d is the part of the First Amendment that says: \u201cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\u201d<\/span><\/p>\n

On the opening page of its 92-page decision<\/span><\/a>, the Supreme Court says, \u201cWe now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment.\u201d On the 7th page, it says, \u201cPlaintiffs [the \u2018Hawaii\u2019 side in the case of \u2018Trump v. Hawaii\u2019] further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam.\u201d Page 26 says, \u201cThe First Amendment provides, in part, that \u2018Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\u2019 Our cases recognize that \u2018[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another\u2019.\u201d <\/span><\/p>\n

The Court\u2019s decision asserts, first, that Trump’s Muslim ban, of any immigrants from any of the five nations of Iran, Syria, Yemen, Somalia, and Libya<\/b> \u2014 all of which 5 nations have Muslim majorities \u2014 is not discriminatory on the basis of religion; and that therefore no religious denomination is being officially preferred over another, in that ban or \u201cProclamation.\u201d<\/span><\/p>\n

Second, here is how the decision asserts \u2014 at least provisionally, and (as will be shown) likely permanently \u2014 that national security overrides the Establishment Clause (and therefore overrides the Constitution itself): On page 29, it says, \u201cplaintiffs seek to invalidate a national security directive. \u2026 Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right [right to \u201cthe free exercise thereof\u201d] and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy.\u201d<\/span><\/p>\n

The Court\u2019s decision then entirely ignores \u2014 and never even so much as touches upon \u2014 the \u201csincerity\u201d matter, at all, or in any form. Therefore, the majority decision is implicitly asserting that the sincerity of the rationale that Trump gave for his \u201cProclamation\u201d (his so-called \u2018Muslim ban\u2019) is immaterial to this case, not relevant to determining whether or not the Proclamation \u201cofficially\u201d prefers any religion over any other. The 5-member majority are, in effect, asserting that, by the term \u201cofficially,\u201d is meant \u201cexplicitly,\u201d or publicly admitted. For example (in another hotly-debated historical instance): If Adolf Hitler did not publicly admit that his intention was to exterminate every Jew on Earth, then (according to this reasoning from those five jurists) he was not responsible for the Holocaust (the attempt by his followers to exterminate Jews, within each of those officials\u2019 own sphere of authority, as granted to them by Hitler). Those five jurists are saying that, since Trump never publicly admitted that he was a bigoted person and never explicitly asserted that religion had anything to do with his Proclamation, Trump\u2019s Proclamation simply did not violate the Establishment Clause. That\u2019s the end of the story \u2014 Hawaii\u2019s assertion that Trump\u2019s publicly declared reason needs to be challenged on the basis of its sincerity<\/i> is simply, and peremptorily, rejected \u2014 to \u201cask the Court to probe the sincerity of the stated justifications for the policy\u201d is placed, by them, simply out-of-bounds.<\/span><\/p>\n

However, prosecution for any crime requires any court to consider what the motivations of any possible defendant for that crime were in the given matter. To obtain a criminal conviction, the prosecution must establish the presence of two elements at the time of the alleged crime \u2014 namely, actus reus<\/i> (\u201cguilty act\u201d) and mens rea<\/i> (\u201cguilty mind\u201d); but these five members of the U.S. Supreme Court effectively rule out-of-bounds the very possibility that a U.S. President (or, specifically, this<\/i> U.S. President) might, on any occasion (but specifically, this<\/i> occasion), have been \u201cinsincere\u201d (or had \u201ca guilty mind\u201d \u2014 guilty of actually having violated the First Amendment, in this case). So: these five jurists proved their own<\/i> guilty minds \u2014 and they thereby impose upon the entire nation this nullification of our nation\u2019s Constitution, simply casting aside both executive accountability and the Constitution\u2019s supreme legal authority in our land. Is that treasonous? It certainly violates their oaths-of-office. But is it treasonous?<\/span><\/p>\n

It is, in any event, the way that these 5 judges dismissed any consideration of Trump\u2019s motive for his \u2018Muslim ban\u2019 \u2014 this particular \u201centry policy\u201d issued by the Proclamation. However, what about the question itself, of \u201cwhether the entry policy violates the Establishment Clause of the First Amendment.\u201d Well, if you aren\u2019t being allowed to question what its motive<\/i> was, then you aren\u2019t being allowed to question the Constitutionality of the ban, either.<\/span><\/p>\n

The Court\u2019s mega-scandalous decision closes:<\/span><\/p>\n

The Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. <\/i><\/span><\/p>\n

[Section] V <\/i><\/span><\/p>\n

Because plaintiffs have not shown that they are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. Winter v. Natural Resources Defense Council, Inc., 555 <\/i><\/span><\/p>\n

U. S. 7, 32 (2008). The case now returns to the lower courts for such further proceedings as may be appropriate. <\/i><\/span><\/p>\n

They declare (but are they sincere about this?) that \u201cWe express no view on the soundness of the policy.\u201d They bounce the matter back down to \u201cthe lower courts,\u201d without even so much as having considered the mens rea<\/i> issue \u2014 which was central to the case before them. The President\u2019s having avoided admitting the fact that bigotry was involved in his Proclamation, has been accepted as final on the matter, for these five jurists. But would it be final if Hawaii were to continue in \u201cthe lower courts\u201d to challenge the Proclamation? According to CNBC\u2019s news-report about the decision<\/span><\/a>: \u201cNeal Katyal, attorney for the challengers, said in a statement. \u2018Now that the Court has upheld it, it is up to Congress to do its job and reverse President Trump\u2019s unilateral and unwise travel ban\u2019.\u201d Obviously, Ketyal won\u2019t take the matter back down to the lower court in the case. Perhaps his challenge to the ban had actually been only political, to embarrass Republicans, in order that the Democratic Party can continue to holier-than-thou moralize their supposed superiority above the bigotry and\/or sheer stupidity, of the President\u2019s (and Republican-supported) \u201cban.\u201d<\/span><\/p>\n

Here is the actual type of \u201cestablishment of religion\u201d that I believe that Trump is here imposing (and which the five far-right jurists today are trying to help him to impose upon the nation) \u2014 it\u2019s more against Shiite<\/i> Muslims than against Sunnis \u2014 who constitute the vast majority of Muslims and virtually the entirety of the ones who have perpetrated terrorism anywhere other than in Israel (and this President is not supposed to be the President of Israel):<\/span><\/p>\n

This case is not<\/b>, as Hawaii (Ketyal) was asserting, a Trumpian bigotry against Islam. Only five nations were included in the ban, and so it applies to only a small percentage of the world\u2019s Muslims. Though the Court accepted the President\u2019s flimsy assertion that these, and only these, nations pose such a national-security threat to the United States as to warrant a total immigration-ban, the actual evidence regarding Islamic terrorism in the United States has been overwhelming that virtually only fundamentalist Sunnis have perpetrated it; no Shiites have<\/span><\/a>. With the lone exception of Somalia, none of these five banned nations is Sunni majority and Sunni controlled \u2014 they\u2019re all either Shiite majority or Shiite-dominated, or (in the case of Libya) failed states without any nationwide government because of the U.S.-and-allied invasion in 2011. (And so, Trump is banning refugees from that country which his Democratic predecessor Obama had destroyed \u2014 let them escape to Europe instead!) The U.S. Deep State has been trying since 1949 to overthrow Syria\u2019s Government and replace it with one that would be controlled by the fundamentalist-Sunni Saud family who own Saudi Arabia and are allied with the U.S. aristocracy (America’s \u201cDeep State\u201d).<\/span><\/a> Yemen right now is being bombed to smithereens by the U.S.-Saudi-UAE alliance, and this operation is supporting, instead of opposing, fundamentalist Sunnis (such as ISIS in Yemen, and Al Qaeda in Yemen, neither of which group of jihadists is in the Shiite region of Yemen, which we\u2019re bombing and destroying, while we\u2019re claiming that this is \u2018anti-terrorist\u2019). The actual facts indicate that any \u201cMuslim ban\u201d should be focused against Saudi Arabia<\/span><\/a> \u2014 and this ban would be authentically to protect against terrorism, not to disadvantage any particular religion \u2014 but Trump instead sold the Sauds $350 billion of U.S.-made weapons.<\/span><\/a> That global all-time-record high U.S. military sale to the Sauds gives them far more clout over the U.S. Government than the U.S. Government has over them. No wonder why the U.S. Government protects them for 9\/11, etc.<\/span><\/a><\/span><\/p>\n

Regarding Somalia, the only article online about \u201cSomalia-United States Relations\u201d<\/span><\/a> is at Wikipedia and doesn’t indicate any terrorist incidents in the U.S. as having been at all Somali. Furthermore, Wikipedia\u2019s article \u201cForeign Relations of Somalia\u201d<\/span><\/a> goes country-by-country, but doesn\u2019t indicate anywhere any link to terrorism, against any country, at all.<\/span><\/p>\n

However, notwithstanding the actual facts in this case, these five far-right jurists just trashed the U.S. Constitution, and thereby allowed this President\u2019s bigoted and\/or stupid Proclamation, which possesses no authentic national-security justification whatsoever, to become imposed, regardless even of whether it is sincere, or comports with the Establishment Clause. The precedent here is carte-blanche to this President and to any of his successors. A U.S. President\u2019s will, supersedes the U.S. Constitution, if a \u2018national security\u2019 excuse \u2014 no matter how flimsy or even counterfactual \u2014 is being asserted. His\/her sincerity \u2014 and even the facts as opposed to the mere allegations from a President \u2014 cannot be challenged in U.S. courts.<\/span><\/p>\n

Hawaii\u2019s (Ketyal\u2019s) challenge, under the Establishment Clause, was sloppy, presuming as it did, that Trump is \u201canti-Musim\u201d instead of anti-Shiite, which seems to be more like the reality. But, in any event, both the challenge, and the way that the U.S. Supreme Court handled it, were incompetent, at best. This pathetic Court decision establishes not only the precedent for banning consideration in U.S. courts of whether a sitting President may effectively be challenged as to his sincerity on a given matter, but also precedent for treating \u201cnational security\u201d as being more important than the U.S. Constitution itself. If Trump had intelligently formulated his ban on the basis of the relevant data, then maybe<\/i> these five jurists could have put together some sort of intelligent case to uphold his ban. But, instead, those jurists made a mess of everything, and a zero of the U.S. Constitution that they are duty-bound to uphold.<\/span><\/p>\n

No lower court can make good on the harm that those jurists \u2014 Roberts, Alito, Thomas, Gorsuch, and Kennedy \u2014 did and do. Mark Joseph Stern\u2019s article at Slate<\/span><\/a> opened with an accurate summary of it:<\/span><\/p>\n

On Tuesday, the Supreme Court affirmed and expanded the president\u2019s power to exclude entire classes of immigrants from the country. Its 5\u20134 decision in Trump v. Hawaii is a historic triumph for Donald Trump and a crushing blow to immigration activists, who had hoped the courts might rein in the president\u2019s sweeping order. Justice Neil Gorsuch, Trump\u2019s appointee to the court, cast the decisive fifth vote to uphold the ban. While Chief Justice John Roberts\u2019 opinion for the court strives to rise above politics, Hawaii will almost certainly be remembered as a deeply partisan opinion in which five Republican appointees willfully ignored the flagrant bigotry of a Republican president.<\/i><\/span><\/p>\n

\u2014\u2014\u2014\u2014\u2014<\/span><\/p>\n

Investigative historian Eric Zuesse is the author, most recently, of\u00a0 They\u2019re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010<\/i><\/span><\/a>,<\/i> and of<\/span> \u00a0<\/i>CHRIST\u2019S VENTRILOQUISTS: The Event that Created Christianity<\/i><\/span><\/a><\/span>.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

On June 26th, the U.S. Supreme Court issued its 5-4 majority decision in the landmark case of \u201cTrump v. Hawaii\u201d, about President Trump\u2019s commonly misnamed \u2018Muslim ban\u2019. This decision probably established a new precedent: that national security is an interest that overrides the First Amendment to the U.S. Constitution. Here is how it does this […]<\/p>\n","protected":false},"author":1254,"featured_media":366893,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[461,519],"tags":[96,3604,1143,20344,979,980,754,92,755,49],"class_list":{"0":"post-366920","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-editorials","8":"category-newswire","9":"tag-cover-up","10":"tag-donald-trump","11":"tag-saudi-arabia","12":"tag-sauds","13":"tag-shiite","14":"tag-sunni","15":"tag-syria","16":"tag-terrorism","17":"tag-usa","18":"tag-usa-news"},"_links":{"self":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/366920","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/users\/1254"}],"replies":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/comments?post=366920"}],"version-history":[{"count":3,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/366920\/revisions"}],"predecessor-version":[{"id":366951,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/366920\/revisions\/366951"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media\/366893"}],"wp:attachment":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media?parent=366920"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/categories?post=366920"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/tags?post=366920"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}