February 1, 2017

Trump: Making America Afraid Again.

by Hal Gershowitz

Comments Below

Of Thee I Sing Heading AuthorsNo, no, we’re not talking afraid like – shaking in our boots, afraid (although many refugees and asylum seekers are, no doubt, probably shaking in their boots). No, we’re talking afraid like – we’re afraid this is not going well, afraid.

There is much about which to be concerned. President Trump has banned, for the next 90 days, Muslims from seven nations from entering the United States.  At the same time, he has indefinitely blocked all Syrians from coming here, even though there has never been an attack on American soil by anyone from Syria. In other words, he has closed America to millions of Muslims who are fleeing Islamic terrorism. The President’s Executive Order also requires that people from the seven countries who were in transit seeking asylum and those with valid visas also be detained or turned away.

While President Trump claims this measure is meant to protect the homeland, the White House offered no evidence that existing screening programs are not working. There have been no attacks in the United States perpetrated by nationals from the seven nations listed in Friday’s order, although at one point or another, each of these nations has been included on the State Department’s list of state sponsors of terrorism. Ironically, there have been attacks on American soil by terrorists from Muslim-majority countries that are not on the President’s list.

Blocking the entry into our country of refugees who have already been processed, vetted and approved is a farce. And a cruel one at that. Candidate Trump enjoyed a lot of campaign mileage exclaiming that “we’re letting in thousands of refugees and we don’t know anything about them.”  That’s much more than an alternate fact. That’s simply a lie.

Men, women and children fleeing for their lives, and who have completed a long and arduous screening process (often taking years), and who finally received approval to enter the United States, and who booked flights, and obtained tickets, had the door to America slammed in their collective faces.  All this so that President Trump could keep a campaign promise that was campaign blather to begin with. We do not allow refugees into our country willy nilly. Obtaining refugee status for entry into the United States is a tough, grueling process.

Aside from the stress caused to an already horribly stressed swath of humanity, slamming the door shut on these hapless refugees represents a boon to the Islamists who are at war with us. They are, right now, busily promoting the ban as proof of the contempt America has for Muslims. This alone will probably cause more attacks against Americans than the President’s Executive Order will stop.

The suspension of entry was sloppily communicated to those who had to enforce the ill-advised suspension, causing confusion at every entry point. The facile excuse isn’t credible that previously cleared refugees with valid visas could not be warned of the impending Executive Order in advance because once word got out they (we presume ISIS) would immediately send us their bad ones before we could stop them. This lame explanation of the sloppiness of the suspension demonstrates mind-blowing ignorance. The bad guys can’t just load up flights with their henchmen and claim they are refugees. The system just doesn’t work that way.  No one could have boarded those flights as refugees, without having gone through the long process that confirms they are, in fact, legitimate refugees.  It was all theater, and theater of the absurd at that.  Citizens of many countries can legally fly into the United States any time they want, regardless of where they were born or, regardless of course, of their religion.

While it is true that the seven listed nations have, at one point or another, been included on the State Department’s list of state sponsors of terrorism, discriminating against men, women and children who are fleeing from those very nations makes little sense.

Then there is the matter of the Trump Administration’s war with the press. Kellyanne Conway, appearing on Fox’s Chris Mathews show last Sunday continued the Trump rant about our dishonest press, which she is certainly entitled to do.  But we find it troubling to have a senior White House official demanding to know why no “dishonest” editorial writers or bloggers have not been let go, or who will be the first “dishonest” writer to be fired, and then punctuating her displeasure by declaring “we know their names.”  This, to us, is chilling language and we suspect it was meant to be chilling.

On more than one occasion in our history various forms of anti-sedition legislation have been introduced and enacted to suppress the press during times of national distress.  We doubt anti-sedition legislation such as that which was enacted in 1798, 1918 or as recently as 1940 would be found constitutional today. American writers, editors and publishers have, however, been imprisoned in the past for criticizing the government or the President, and we find complaints from White House officials that reporters and editorial writers haven’t been fired to be a troubling reminder of a darker time.  Yes, for sure, journalists have an obligation to be truthful to the American public.  Then again, so does the President.

And then there was the International Holocaust Remembrance Day contretemps. President Trump failed to mention in his message that the Holocaust (capital H) is the name given to the systematic murder of all Jews who fell into Nazi hands anywhere in Europe.  At best it was a forgivable oversight at the hands of neophyte White House personnel who didn’t know any better—in which case a simple “we regret the oversight” would have been sufficient.  At worst, it was a deliberate Bannonite decision to alter the vital historical lessons of the Holocaust.

Frankly we were, initially, inclined to assume that the omission of Jewish victimization at the hands of the Nazis was a sad, but a feasible and a forgivable oversight. But, sadly, the White House doubled down on its decision to omit any reference to Jews as victims.

Winston Churchill once described the fate of the Jews of Europe as a crime without a name.  Today, that crime has a name.  It is The Holocaust. The Holocaust, that crime that has now had a name for over seventy years, refers to the systematic, exquisitely planned, doggedly implemented and nearly successful annihilation of European Jewry by Germany’s Nazi regime. Our country, to its everlasting credit, considers the lessons to be learned from this genocide to be so important it enshrined that mission at the national mall in Washington DC with the establishment of The United States Holocaust Memorial Museum.  We suggest President Trump and his key staff make it a point to visit the Museum as every President has done since its opening nearly a quarter century ago.

The miscue could have been merely an unfortunate, but correctable, blunder.  Instead the White House continued (as it has proven prone to do) with its vacuous explanations. It said Jews had been omitted from the statement on purpose because other victims also suffered and died in The Holocaust. No, they didn’t. Non-Jews died, just as tragically, because they were also victims of mankind’s greatest brutality. But the Nazi effort to gas or shoot every Jew in Europe (an effort that came horribly close to succeeding) is precisely what The Holocaust is, and it is nothing else. Holocaust deniers always admit Jews died at the hands of the Nazis, but they add so did a lot of other people. So, the deniers say,  there never was a Holocaust aimed at Jews in particular. White House stubbornness transformed what may have simply been staff ineptitude into soft-core Holocaust denial.

Finally, President Trump last night nominated Neil Gorsuch of Colorado to the Supreme Court of the United States. Judge Gorsuch is a well-respected Judge who is known for writing eloquent Court decisions.  He has never decided an abortion case, nor has he had much to say about a woman’s right to choose. He is, however, a strong originalist, believing that voters and not the courtroom should decide “social policy,” and many believe he would vote to overturn Roe v. Wade, the decision that has, for nearly fifty years entrusted pregnant woman with the decision to continue or terminate a pregnancy during the first trimester. We hasten to repeat that judge Gorsuch has no actual record on this issue, but President Trump has vowed to appoint supreme court justices who are opposed to Roe v. Wade.

Many are afraid this isn’t going to turn out well for those who believe that a woman’s right to choose, is consistent with any American’s right to privacy—a right that the courts have held was secured by the ninth Amendment of the Bill of Rights. While the Constitution contains no express right to privacy, the Bill of Rights reflects the concerns of James Madison and the other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), the privacy of the home against demands that it be used to house soldiers (3rd Amendment), the privacy of the person and possessions as against unreasonable searches (4th Amendment) and the 5th Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information.  Most importantly, the ninth Amendment specifically states that the enumeration of certain rights in the Bill of Rights shall not be construed to deny or disparage other rights retained by the people.

So, is a woman’s right to make her own decision about pregnancy as assured by Roe v Wade consistent with every American’s right to privacy under the ninth Amendment? We’re afraid we’ll have to wait to see.

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3 responses to “Trump: Making America Afraid Again.”

  1. Jerry Kaufman says:

    Don’t be afraid, Neil Gorsuch Will Make a Fine Justice
    My first choice from the president’s fabulous list of terrific judges – they’re all winners, believe me (no really, solid list) – was probably the judiciary’s twitter laureate, Texas Supreme Court Justice Don Willett, but Judge Neil Gorsuch of the Tenth Circuit was right up there. As you can see by my statement to CNN, I’m pleased as punch with the selection.
    There’ll be time enough to analyze Judge Gorsuch’s work, but after reading a stack of his opinions over the weekend, the most salient parts of his judicial record are as follows:
    A keen appreciation for constitutional structure as a guarantor of our rights and liberties.
    A real devotion to originalism – probably more than the self-described “faint-hearted originalist” Antonin Scalia – and textualism.
    Strong support for the freedom of speech and religion, and the First Amendment more broadly.
    Skepticism of the administrative state.
    Like Scalia, he construes criminal statutes narrowly, so people aren’t convicted and punished without the government’s meeting its evidentiary burden or establishing that it didn’t violate constitutional rights in arresting and prosecuting defendants.
    Really, really good writing, which even Justice Elena Kagan has praised.
    Gorsuch also maintains a good relationship with Cato and has published a Policy Analysis with us. In short, Donald Trump has managed to pick a nominee who should please everyone other than progressives: social conservatives, libertarians, legal elites, and I imagine the populists who trust him to pick “the best judges.” Left-wing activists are already talking about how Gorsuch is extreme and is anti-women, workers, yada yada – they have to raise money somehow – but I find it hard to see how Senate Democrats will muster 40 votes to sustain a filibuster against someone who was unanimously confirmed in 2006, particularly with a tough 2018 map.

  2. susan duman says:

    With each weekly entry you further explain what has happened with the possible and probable consequences. You do it as intelligent citizens, neither progressive nor conservative.
    If you have another life I suspect you could be a second “Charlie Rose”.

    My gratitude,

    Susan D

  3. Michael Gong says:

    Hal and Steve,

    Once again, a beautiful, well thought out and clearly supported treatise. I feel that I am watching before my very eyes the rapid and rapacious transformation of our democratic republic into a white nationalist fascist state. We might not yet be shaking in our boots, but we might be well advised to begin planning an exit route. I thought we were too intelligent to allow 1933 to ever recur. Maybe not.

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