By Legal Correspondent Saori Shiroseki
with Spy Archivist Aula Minerva
Ninety plus years ago, readers of The Massachusetts Spy were greeted at their breakfast table on March 24, 1933 by the following dispatch:
GERMAN CHANCELLOR
TO RULE BY DECREE
Reichstag Adjourns Indefinitely;
Gives Schickelgruber Dictatorial Powers
Some Critics Say This Could Be Bad for Reich Opponents Like the Jews and Other Aliens!
By Cable from Berlin Correspondent Charlotte Ritter
with further information from The New York Times Wire Service and the Associated Press
BERLIN, March 23 – Bending to the unstoppable will of Germany's new Chancellor, Adolf Hitler, the German Reichstag voted to hand over to him and his gang of Nazi goons unlimited power and then adjourned itself, likely forever.
The move followed days of fundamental changes in Germany, including mass pardons of Nazis who attacked Americans, that in effect ended German democracy and introduced a new era of total one-man rule in which any and all laws could be enacted or repealed simply by Executive Order of the Chancellor.
In his address to the Reichstag, Herr Hitler ran through a familiar litany of grudges and animosities, and vowed retribution on Communists, Jews, and others whom he said were poisoning the blood of Germany. Many observers doubted however that Hitler would be able to carry out his more extreme ideas which face opposition from prominent German businessmen.
But so far Germany's powerful business tycoons have rushed to support the new regime, whether out of fear or belief that Hitler's inflationary pro-growth policies could revive the moribund German economy.
Hitler's right-hand man, Reichstag Speaker Hermann Goering, said that reports of beatings and imprisonment of political opponents was nothing more than “fake news” and that those who published such stories would be treated with “barbarity,” and their publications banned from the German mails.
Continued on page 8
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How'd it turn out? Like this:
Speaking of rule by decree, the week that he was inaugurated, President Donald Trump announced that he had the power to repeal the 14th Amendment's guarantee of birthright citizenship by decree. The guarantee is contained in the first sentence of that post-Civil War amendment. See if you can figure out from the obscure legal jargon used by its drafters what they intended to accomplish:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The provision was drafted to ensure that the recently freed slaves (and their children) would enjoy the rights of citizenship denied to them by a bent Supreme Court's decision in Dred Scott v. Sandford.
When America's new Leader tried to undo that promise by Executive Order, it did not take long for a judge appointed by St. Ronald Reagan of Bitburg to reach his conclusion:
In a hearing held three days after Mr. Trump issued his executive order, a Federal District Court judge, John C. Coughenour...sign[ed] a restraining order that blocks Mr. Trump’s executive order for 14 days, renewable upon expiration. “This is a blatantly unconstitutional order,” he said.
“Frankly,” he continued, challenging Trump administration lawyers, “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.”
The blatant assertion of a Presidential right to repeal sections of the Constitution he didn't like provoked intense outrage from all Americans with a vested interest in protecting Constitutional rights, like the press, which the normally authoritative New York Times summarized as follows:
Yeah, that should protect our sacred Constitutional rights.
Similarly, a well-known geyser of Washington conventional wisdom, Leigh Anne Caldwell, reviewing Trump's first week on NPR's Here and Now, thought the biggest news of the week was that Republicans were “euphoric” over the barrage of decrees, including the unconstitutional ones.
Over at The New York Times, the maestro of hot takes, Peter Baker, told us that the key takeaway of the new President's first days is that he is ruling like a king, without trifling to explain why that's a bad thing. Maybe someone could have explained to him the difference between monarchy and tyranny. Too bad he doesn't have our old buddy Will Shakespeare in his contact list.
For some reason, the geniuses at the Times seem to take comfort in the idea that the Tangerine-Faced Fascist is a lame duck, because he can't run again under the 22d Amendment. That amendment clearly and unequivocally limits Presidents to two terms. As clearly as 14th Amendment protects birthright citizenship.
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Life after the First Amendment is repealed by decree |
Which lead us to ask: if the Tangerine-Faced Fascist can repeal the 14th Amendment by executive order, why can't he do the same with the 22d? Who would stop him? Can you imagine a single Republican Secretary of State who would refused to put him on the ballot on 22d Amendment grounds? And who would have standing to challenge in court his quest for a third term? Are you confident that the Republican-bent Supreme Court would stop him?
If the Tiny Toadstool can get away with repealing the 14th Amendment by Sharpie, what provision of the Constitution is safe?
Already his hard right supporters are targeting the First Amendment prohibition on establishment of a state religion by asking the Supreme Court to allow public funding of religious charter schools. It was a religious school that taught Brett “It's locked!” Kavanaugh how to treat women, so that's going to be one vote in favor.
Pretty much everything we hold dear in the Constitution is up for grabs. Already Clarence “Leaving on a Jet Plane” Thomas has questioned First Amendment protection for a free press, by wondering if the time has come to reverse Times v. Sullivan, because he is mightily aggrieved over the press coverage of his many ethical lapses.
There's nothing keeping the Tangerine-Faced Traitor from promulgating an executive order repealing First Amendment limits on libel. Given his own record of filing frivolous suits to suppress press coverage he doesn't like, some of which have resulted in big-ass settlements by cowardly media barons like Disney, we think the chances are better than even.
Or he could issue a decree repealing the portions of the Sullivan ruling applying the First Amendment to the states, which would in this era of the Intertubes permit any state to throttle free speech nationwide.
Once you acclimate the press and the public to the idea of repealing the Constitution by Executive Order, there's no telling how far you can go.
In the past, others have gotten as far as Stalingrad.