This issue of The Swamp is dedicated to the memory of
Professor Henry J. Abraham
the renown scholar and teacher of Constitutional Law who
died earlier this year in Charlottesville at the age of 98.
See The Tribe of Abraham (below)
The CONSTITUTION ISSUE
Never in our history has a president
so egregiously violated his oath of office,
to “preserve, protect and defend
the Constitution of the United States.”
as our 45th President, The Donald Trump.
It’s bad enough we have a President with a Narcissist Personality Disorder who almost certainly hasn’t read the Constitution he is sworn to “preserve, protect and defend.” religious zealot
It may be even worse that we have an Attorney General who has read the Constitution and appears to have made a Faustian bargain with Donald Trump. It seems, from his machinations to date, William Barr has agreed to bend the law to protect Our Leader as long as Our Leader gives him free rein to reinterpret the Constitution, as he sees fit, to counter the increasingly secular and debauched American people, who, in Barr’s view, have gone dangerously astray.
I hadn’t read Barr’s 2019 Notre Dame speech until I read the Barr profile in last Sunday’s New York Times Magazine. Both are well worth reading if you, like me, haven’t been able to quite figure out where this purported Establishment Republican gentleman was coming from.
Or, more precisely, how he could have so quickly joined the pantheon of disreputable Trump lawyers, alongside Roy Cohn and Michael Cohen, who have helped make real our 45th president’s belief that obeying inconvenient laws is for losers and sissies, not for tough, entitled thugs like him.
It turns out Number Three, unlike Numbers One and Two, is a devout Catholic who thinks our democratic institutions cannot survive unless we are all devout and practicing Christians like himself.
“No society can exist without some means for restraining individual rapacity,” he told the crowd at Notre Dame.
“In the Framers’ view,” he continued, getting to the heart of his argument, “free government was only suitable and sustainable for a religious people – a people who recognized that there was a transcendent moral order antecedent to both the state and man-made law and who had the discipline to control themselves according to those enduring principles.”
Everything in the United States was fine until 50 years ago, Barr said. But, beginning with the Nixon years, “we see the growing ascendancy of secularism and the doctrine of moral relativism. By any honest assessment, the consequences of this moral upheaval have been grim.
“Along with the wreckage of the family, we are seeing record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.”
Who’s to blame? “Militant secularists” and “so-called progressives,” of course. Not even a hint that the Catholic Church’s cover-up of its predator priests or the born again crowd might have given organized religion a bad name.
“In the past, when societies are threatened by moral chaos, the overall social costs of licentiousness and irresponsible personal conduct becomes so high that society ultimately recoils and reevaluates the path that it is on.”
Germany in the 1930s, for example? Iran of the Ayatollahs? religious zealot
“But today – in the face of all the increasing pathologies – instead of addressing the underlying cause, we have the State in the role of alleviator of bad consequences. We call on the State to mitigate the social costs of personal misconduct and irresponsibility.”
Personal conduct and irresponsibility? He doesn’t entertain, even for a sentence, that the conditions of slavery; the greed of corporate America and the one percent; the trade policies of the Republican party; the tax cuts for the rich that have robbed the poor of decent public schools and opportunity; and his Administration’s sorry handling of the pandemic, might have something to do with our present state of affairs.
Barr does acknowledge that restoring the kind of hierarchical, black-and-white morality he espouses, and he thinks the Catholic Church provides, will be an uphill battle, especially with the President he’s enabled leading the way (my aside, not his).
But the battle, he assured his carefully chosen, conservative audience, can still be won.
“If ever there was a need for a resurgence of Catholic education – and more generally religiously-affiliated schools – it is today. I think we should do all we can to promote and support authentic Catholic education at all levels.
“Finally, as lawyers, we should be particularly active in the struggle that is being waged against religion on the legal plane. We must be vigilant to resist efforts by the forces of secularization to drive religious viewpoints from the public square and to impinge upon the free exercise of our faith.”
And, finally, the pitch. religious zealot
“I can assure you that, as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties: the freedom to live according to our faith.”
Barr is said to be very smart, and I have no doubt he is. He also strikes me as fundamentally dishonest, capable of marshalling facts that support his position while knowingly excluding others that would weaken or undermine it completely.
His summary of the Mueller Report is one well known and obvious example of his intellectual dishonesty and political cunning. His decision to ask the court to dismiss the perjury charges against Michael Flynn seems to be another. And his attempt to paint the protesters who’ve taken to the streets in recent weeks as tools of left wing agents provocateurs when he knows at least as many white supremacist agents provocateurs have been identified, is yet another.
The speech at Notre Dame, along with the profile in The New York Times Magazine, show him to be someone with a very definite agenda whose operating principle seems to be the ends justify the means. It’s a disposition entirely antithetical to the mindset one would hope and expect of an Attorney General of the United States.
To help explain Barr’s philosophy and to put his Notre Dame speech in perspective, The New York Times Magazine turned to Stuart Gerson. Gerson headed the Justice Department’s civil division when Barr was Attorney General the first time around and then served as Acting Attorney General for the first three months of Bill Clinton’s presidency.
Gerson doesn’t think Trump is using Barr. “If anything, it’s the other way around,” Gerson told The Times. Barr now has the opportunity to put his longstanding beliefs into practice, Gerson said. And what are those beliefs?
Gerson told The Times Barr “is committed to the ‘hierarchical’ and ‘authoritarian’ premise that ‘a top-down ordering of society will produce a more moral society'” with Christian churches instilling/imposing the moral and ethical behavior that will once again become the norm.
When that day comes, “militant secularists,” if there are any left, presumably won’t be marching in the streets, disturbing the peace, when cops kneel on the necks of handcuffed suspects, choking them to death. I suppose we’ll all just pray for the victims, instead.
Having soured myself on churches after my experience in Jonestown, I’m not terribly sympathetic to Barr’s vision for restoring America’s greatness. But if I were, I’d still question his choice of Donald Trump as the vessel he’s chosen to carry his vision forward.
Of course, religious zealots have been known to believe the ends justify the means. If Barr believes God knows what’s best for our beleagured country, Barr may rationalize keeping Trump in office any way he can would be a small price to pay if that means he can continue working on His behalf to stiffen the moral backbone of America’s debauched secular masses.
Which may have been what Barr was thinking when he witnessed (directed?) the dispersal by force of those militant secularists in Lafayette Park, so he and Trump could be photographed in front of St John’s Church.
Trump apparently plans to use the photograph to prove he ain’t afraid of nobody after the enemies of the people found out he had taken refuge in his bunker the night before. Barr will undoubtedly use the photo-op to demonstrate Trump’s commitment to Christian values and the centrality of churches and (maybe) synagogues to Making America Great Again.
However, it’s entirely unacceptable for the Attorney General of the United States to trample on the Constitutional right of American citizens to assemble peaceably to protest their government’s policies, no matter what he thinks of them.
It’s also unacceptable for him to protect a disturbed and dishonorable president so he can promote his wacky vision for the kind of America his Christian faith tells him America should be. And it’s dishonest and repugnant for a Christian crusader to use his position as Attorney General to wage war against the secular society America has become.
It seems to me William Barr perjured himself when he swore to protect and defend the Constitution of the United States. He should be impeached.
That won’t happen, of course, so instead he’ll remain…another hammer ready to nail the coffin shut.
HENRY J. ABRAHAM (1921 – 2020)
The Tribe of Abraham
It is one of the ironic outcomes of history, I suppose, that a refugee from Nazi Germany would play such an important role shaping our understanding and appreciation of the U.S. Constitution and the Supreme Court, the guarantors of our democratic freedoms.
And surely, it is one of the truly unfortunate missed opportunities of history that Donald Trump chose not to take Henry Abraham’s undergraduate course in Constitutional Law when our future Leader was enrolled at the University of Pennsylvania between 1966 and 1968.
How different our world might have been, if only young Donnie Trump had learned about the law and the courts and the Bill of Rights and separation of powers from Henry Abraham in 1967 or 1968, instead of from Roy Cohn a decade later.
How fortunate for us, if not for The Donald and the rabble that supports him, that thousands of students at Penn and later at the University of Virginia did have the benefit of Professor Abraham’s writings and teaching; dozens of them now federal court judges, leading members of the bar, scholars, and even a journalist or two, doing what they can to defend the rule of law from the contempt of Our Leader and his enablers.
Collectively and fondly, they call themselves the Tribe of Abraham.
They revered their teacher, always impeccably dressed and prepared, who taught them not only what the landmark decisions said but also what they meant in terms of precedents for later decisions that allowed the Constitution to become a “living, breathing” document that could, and does, evolve with the times.
Which was just fine until Antonin Scalia came along.
As a scholar, Professor Abraham wrote the book (well, 13 of them, actually) on examining the Supreme Court as an institution from the perspective of a political scientist; the trade-offs and compromises that were made to get five votes for certain decisions; the political calculations Presidents made when nominating men (and later women) to the Court; and the institutional politics of this co-equal branch of our government.
The Washington Post called his books on the history of civil rights law, Supreme Court appointments and his comparison of the American, British and French legal systems “authoritative.” High praise, indeed, from the newspaper where I began my career after a summer working for Chief Justice Burger.
As a teacher, he was demanding. Lots of reading and thinking. It wasn’t enough just to remember the names of the decisions, when they were handed up and what they were about.
His tests required his students to apply the principles they better have learned to hypothetical legal controversies and to then decide the outcome, as if they were themselves a judge. I’m not sure if there was always even a right and wrong outcomes; as with the Supreme Court itself, each student could look at the facts presented, apply different precedents and logic, and try to persuade Dr. Abraham their opinion had merit.
Dr. Abraham’s love and respect for the law was undoubtedly influenced by his experience as a teenager in Offenbach am Main, where, with the rise of the Nazis and official anti-Semitism in the 1930s, he was beaten in school because he was Jewish. In 1937, when he was 15, his parents sent him to live with relatives in Pittsburgh. They, and Henry’s brother, Otto, soon followed.
After serving in the U.S. army during World War II, he graduated first in his class at Kenyon College (where he roomed for a time with Paul Newman and later, when asked what Newman studied, he famously replied, “applied anatomy”).
After a masters at Columbia and his PhD at Penn, he taught in Philadelphia until 1972, when the University of Virginia lured him away with an endowed chair in its political science department. In 1983, he was named a Thomas Jefferson scholar, the University’s highest teaching award.
When he retired from active teaching in 1997, the Tribe endowed an annual lecture in his honor, proud of our association with the dean of Constitutional law scholars.
And he took great pride in us, writing many of us notes from time to time (always handwritten; he had no use for email). When Henry and sometimes his wife, Mildred, whom I adore, were in residence in an apartment they kept a block or two from the Supreme Court in Washington, he would invite to lunch or dinner, as I’m sure he would other of his former students.
I once invited the Abrahams to dinner at my apartment to meet Andy Stewart, the widow of Justice Potter Stewart and a buddy of mine. Was I bit nervous? You can only imagine.
She knew of him, of course, and I think the dinner was a success.
About 10, or maybe 15, years ago, I saw for myself the esteem in which Professor Abraham was held by the Justices of the Supreme Court. Henry invited me to join him at the Court to hear oral arguments.
Everyone, including the guards, knew who he was immediately and addressed him by name. “Good morning, Professor Abraham” or “good morning, sir” was the standard greeting, as they cleared the way for us through the crowd and directed us to our front row seats.
When the session ended, we were again escorted through the crowd upstairs to where the justices have their chambers. “Justice Scalia will see you in a moment, Professor Abraham,” the secretary said. And there he was, before I could say, “oh, no.”
Which, of course, I would never have said out loud.
Because Henry Abraham was the kindest of men—a scholar, a teacher and and a gentleman—who would have been appalled at a breach of protocol.
Everything he did and said was always just so.
Henry J Abraham (1921 -2020)
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