Tag Archives: Constitution

The Insights of Senator Tim Kaine

Virginia’s US Senator Tim Kaine visited the rural lands in Loudoun County, and came by Leesburg in the early evening, to endorse local Loudoun candidates, and, among his observations, gave us a report on the ongoing impeachment inquiry from inside the belly of the beast.

No surprise, he said, telling those gathered to listen, and you may not be surprised to discover that the Senators don’t care very much for Mr. Trump.

But it is inconvenient to Republicans to risk Trump’s base, weighing that against the facts as they continue to develop. This is a challenge to any Senate Trial.

Tim said we have to do the right thing, because no one is above the law, because the constitution sets forth what we are to do, what we must do to meet our obligations under the law and constitution. Continue reading

The U.S. constitution bars President-elect Donald Trump from becoming President unless…

THE U.S. CONSTITUTION BARS

PRESIDENT-ELECT DONALD TRUMP

FROM BECOMING PRESIDENT UNLESS…

Stock Photo of the Consitution of the United States and Feather Quill

__________________________

Prepared by

The Honorable John P. Flannery, II[1]

____________________________

 

Alexander Hamilton, “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”[2]

 

  1. I.                   PRELIMINARY REMARKS

President-elect Donald J. Trump must disavow and disassociate himself from his extensive and complex personal holdings in foreign nation states, lest he blatantly disregard the constitutional prohibition that seeks to insulate the President, however virtuous, from the corrupting influence of foreign governments.

Any President-elect, in order to assume the office of President, must take the following oath:

“I do solemnly swear … that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States (underscoring supplied).”

President-elect Donald Trump will violate his oath of office and a critical constitutional precondition for serving as our Chief Executive unless, before he takes the oath, he separates himself completely from all favors and profits, so-called emoluments, from every other nation state.

The “emoluments clause” in the United States Constitution, at Article I, Section 9, clause 8, says, in relevant part, that “no person holding any office of profit or trust shall, without the consent of Congress, accept any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state (underscoring supplied).”

This provision is mandatory, as expressed by the word, “shall,” and not permissive, as would be suggested were the word, “may.”  There was a similar anti-corruption provision in the Articles of Confederation strengthened in the U.S. Constitution by making the provision mandatory – “shall.”

President-elect Trump estimates his personal wealth at $10 billion, and occupies the unprecedented status as a President-elect both of having great wealth and more off shore holdings and foreign entanglements than any previous President-elect.

Worse, the full extent of Mr. Trump’s holding are unknown despite repeated demands that he disclose the full extent of his business “empire.”

According to published reports, Mr. Trump has shunned all advice to date to come to grips with this looming constitutional violation.

In fact, Mr. Trump has said that, as President, he “can’t have a conflict of interest,” akin to the much-criticized formulation President Nixon once invoked, sounding, royally, as a presidential prerogative, entitling the President to be above the law binding everyone else.

Mr. Trump’s anorexic financial disclosures combined with what journalists have uncovered about his offshore holdings beg the question whether Mr. Trump can resist the understandable self-serving impulse to favor his foreign business interests over the interests of the nation.

If Mr. Trump does not cure this divided loyalty, and disregards the constitutional dictate of the emoluments clause barring his easy tolerance of the corrupt conflicting influence of foreign nation states, he risks, indeed he invites, an impeachment resolution under Article 2, Section 4 of the United States Constitution, and it will happen sooner or later, for his abject failure to insulate the office of President from foreign influence.

Mr. Trump may seem immune from impeachment given the electoral reality of Republican majorities in both Chambers of the U.S. Congress.

We should not assume, however, that party loyalty is so ethically elastic that Mr. Trump may forever enjoy an unlimited license to indulge his divided loyalty, to his business’ advantage, no matter what is the best interest of the nation. Continue reading

Ban guns

Rep. Zoe Lofgren, reviewing amendments to deal with Columbine, with her Special Counsel, John Flannery.

Rep. Zoe Lofgren, reviewing amendments to deal with Columbine, with her Special Counsel, John Flannery.

Once again, the hand wringing commences in Virginia and across the nation.

Guns again destroyed a network of family, friends, of co-workers, and, in a city, Roanoke, where the victims were known and loved; indeed, many watched them killed on tv in real time.

Before the camera, a young popular reporter, Allison Parker, 24, and her cameraman, Adam Ward, 27, were shot dead; the shooter filmed the murders as well, and posted the carnage he created on line.

These deaths by gunfire will shortly be regarded as indifferently as the 20 children who were killed in Newton, Connecticut, those children killed at Columbine in Colorado, and those students killed at Virginia Tech.

Our nation’s sense of morality and of conscience has grown weak to the point of complicity in these murders for our failure to act to stem the flood of weapons that make any one that we care about more at risk every day.

Our elected “leaders” cower before the “new” NRA, a cultish front group for the firearms industry leaders who sit on its Board and who help fund the organization. Politicians fear that they will lose the approaching election without the NRA’s political support if they dare to think to say or do anything that might control gun violence in America. Continue reading

Yes, Virginia, Marriage is a Fundamental Right

wedding-ringsSpecial op-ed by David Weintraub published in the Purcellville Gazette, August 2 2014.

On November 7, 2006, Virginia voters were presented with the choice to add an amendment to our state constitution. This amendment would not only prohibit civil marriage between two people of the same sex – which had already been banned legislatively several times over – but would also ban any other “union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage,” or which “intends to approximate the design, qualities, significance, or effects of marriage.” This expansive language gave Virginia the dubious honor of having adopted the most extreme so-called “marriage amendment” in the nation.

In a decision announced Monday, The Fourth Circuit Court of Appeals found that prohibition unconstitutional, joining an unbroken series of rulings affirming marriage as a fundamental right that cannot be denied because of gender.

At the time of the amendment’s passage (it was approved by 57 percent of voters), I was told jubilantly by a local supporter that it would “protect” his model of marriage in Virginia “for at least a decade.” This prediction has turned out to be remarkably accurate. In the past decade, we have witnessed a shift in opinion like no other toward support of the right for loving gay and lesbian couples to marry. At the same time, courts have come to the long overdue conclusion that the U.S. Constitution really does mean what it says about the rights guaranteed to ALL Americans.

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Religious freedom is for everybody

idologo400A funny thing happened when those who find marriage equality so upsetting started loudly complaining about alleged violations of their religious freedom: People whose religious freedom actually is being violated stepped forward.

As reported here last month, the first ever Witness for Love held in Loudoun County drew a number of local clergy, who testified to being barred from performing the rites of marriage for same gender couples in accordance with their faith. Many people don’t realize that Virginia law includes a provision that makes it unlawful for an officiant to perform a marriage ceremony unless the couple has a legal marriage license. This provision does exactly what it sounds like it would do: It erases the supposed distinction between ‘civil’ and ‘religious’ marriage by restricting religious marriage celebration to what is permitted by civil law.

While no clergy or denomination ever has, nor ever will, be required to perform the rites of a same-gender marriage, an interracial marriage, an interfaith marriage, a marriage involving a divorced person, or any other marriage that fails to meet their particular religious criteria, those clergy and denominations that actively seek to celebrate the marriages of same gender couples in their communities are instead required to treat those couples as if they are unworthy of such celebration. That requirement (unlike the make-believe scenarios of anti-gay activists) is a very real and grievous violation of religious conscience. It unmistakably, to use the current language of the anti-gay crowd, “violates their sincerely held religious belief” in the equal dignity and humanity of their LGBT parishioners. Today, one of those denominations finally filed a lawsuit seeking the restoration of First Amendment rights to its clergy.

In what is believed to the first-ever challenge by a national Christian denomination of a state’s marriage laws, the UCC filed the lawsuit Monday morning, April 28, in U.S. District Court in Charlotte, N.C.

Under Amendment One, which passed in late 2012, it is a crime in the State of North Carolina for clergy to officiate a marriage ceremony without determining whether the couple involved has a valid marriage license. United Church of Christ ministers interested in conducting a religious marriage ceremony for same-gender couples could face up to 120 days of jail and/or probation and community service if found guilty, since North Carolina marriage laws define and regulate marriage as being between only a man and a woman. As lead plaintiff in this lawsuit against the State, the United Church of Christ asserts that these laws are unconstitutional and violate clergy’s First Amendment rights.

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Virginia gets a Valentine

U.S. District Judge Arenda L. Wright Allen begins her opinion striking down the Marshall-Newman amendment by quoting Mildred Loving:

We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is? . . . I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. . . . I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

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More marriage news that will upset Bob Marshall

yardsignsUpdate: As expected, Nevada Attorney General Catherine Cortez Masto has filed a motion to withdraw the state’s brief in defense of Nevada’s ban on same sex marriage. A statement from Republican Governor Brian Sandoval’s office says “based upon the advice of the Attorney General’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court.” The only remaining party willing to defend the amendment is now the “Coalition for the Protection of Marriage,” the third party intervenor responsible for putting it on the ballot in 2002. Given the Supreme Court’s ruling in Hollingsworth v. Perry that such an intervenor does not have standing to appeal, it’s likely that a Ninth Circuit ruling in favor of the couples seeking to overturn the ban will be the end of the line for the so-called “Protection of Marriage Initiative.” The plaintiffs are seeking an expedited hearing.

Now, can we finally put to rest the notion that our Attorney General is “out there on a limb by himself,” per Mr. Marshall?

(Originally published January 27, 2014) Over the weekend there were two more developments toward the ultimate demise of anti-marriage state measures like Virginia’s Marshall-Newman Amendment.

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No, they don’t really care about legal authority.

Attorney General Mark Herring gently points out the obvious in an op-ed published in today’s Richmond Times-Dispatch:

It is completely within the power of the attorney general to refuse to defend in court a law that he has determined to be unconstitutional after an independent, rigorous analysis. This was the position of former Attorney General Ken Cuccinelli, who said “I will not defend what I, in my judgment, deem to be an unconstitutional law.” In fact, just last year, Cuccinelli declined to defend Gov. Bob McDonnell’s Opportunity Educational Institution after he determined it to be unconstitutional. It should be noted that some of the loudest critical voices today were silent then.

This understanding of the attorney general’s role has not been controversial until I applied it to Virginia’s marriage ban. Two of the past three elected attorneys general declined to defend state laws, and conservative jurists such as John Roberts, Robert Bork and Antonin Scalia have affirmed this role of attorneys general. This tells me that critics are not actually opposed to this long-established power of the attorney general, but are in fact opposed to its application to marriage equality.

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“Bob Marshall is not, and never has been, an attorney.”

I continue to be reminded, sometimes several times in one day, of the comment in which anti-gay and anti-labor activist lawyer James Young informed me that “Bob Marshall is not, and never has been, an attorney.”

It explained a lot, and for that I thank him. The Richmond Times-Dispatch reports the following:

Del. Robert G. Marshall, R-Prince William, said today that he is working with lawyers to file a complaint with the Virginia State Bar against Attorney General Mark R. Herring over his refusal to defend Virginia’s same-sex marriage ban in federal court this week.

Marshall sponsored the 2006 amendment to the state constitution.

“I want the same discipline meted out against him that would be meted out against any attorney similarly situated,” Marshall said in an interview Monday afternoon.

“If after a pleading has been filed an attorney decided that his client is guilty, what would the bar do with that attorney? And they better not go soft because he is the attorney general,” he said.

I suppose that never having been an attorney could explain Marshall being unaware that the legal obligations of a private attorney and a public one, such as an attorney general, are quite different (although that hasn’t prevented me from being aware of it – and I don’t sit on a legislative body). Surely Marshall has some attorney friends in the House of Delegates who could have explained this to him:

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Two days

utah_marriageDuring the past 48 hours, we have learned that the Uganda legislature has passed what is one of the most draconian anti-civil rights bills targeting sexual minorities in the world – bookended between announcements that two more US states – New Mexico and Utah – are constitutionally prohibited from excluding same gender couples from civil marriage.

From the Salt Lake City Tribune this afternoon:

A federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.

“The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” wrote U.S. District Court Judge Robert J. Shelby. “Accordingly, the court finds that these laws are unconstitutional.”

fischer_ugandaMeanwhile, Bryan Fischer, spokesperson for the American Family Association, was tweeting this about the situation in Uganda. I don’t know that we could have had a more timely and chilling reminder of the fact that as LGBTI people in the US move closer to attaining full civil rights, anti-gay activists who are rapidly losing ground here are focusing more of their lethal attention on our sisters and brothers in other countries.

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