One of the pithier explanations of the Free Speech clause of the First Amendment was written by Supreme Court Associate Justice Oliver Wendell Holmes Jr. in a case titled United States v. Schwimmer. In that opinion, Holmes wrote that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”
Holmes was acknowledging the obvious: majorities don’t seek to censor popular opinions. They seek to suppress the “ideas we hate,” the beliefs and utterances that they find offensive.
That lesson–that rights are universal, and not reserved for people with whom we agree or people we consider part of our “tribes”–was one of the most difficult for my undergraduate students to learn. Surely the government can sanction people we know are lying! Surely the City Council can pass ordinances against material we consider smut! Surely religious liberty doesn’t mean that atheists and Satanists have the same rights as good Christians!
That pesky principle–that rights also apply to disfavored folks–was the subject of a recent article in the Washington Post,describing yet another aspect of Trump’s inability to grasp that simple concept, or the fact that people he hates (and boy, there are a lot of them!) are entitled to equal treatment under the law.
This particular evidence of Trump’s ignorance involved the pardon power.
As Biden prepared to leave the presidency, he had used that power to commute the sentences of 37 of the 40 federal prisoners awaiting execution. He didn’t free them; the commutation meant that they will serve life in prison. The article reports that Trump “was outraged at this decision and set out to roll it back.”
Ironically, if Biden had pardoned the murderers altogether or had them released (which would have been constitutionally possible but politically scandalous), Trump couldn’t have done anything about it. But because they remain under life sentences, his administration can still influence their fates. It can’t lawfully kill them, but it can dictate the conditions of their confinement.
Our vicious President issued an executive order on his very first day back in office, declaring his intent to “ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes.” The Justice Department that he has turned into a weapon he controls proceeded to implement the directive by sending those prisoners to the most isolating imprisonment possible — “a ‘supermax’ facility that cuts inmates off from most human contact.”
A number of the affected prisoners brought suit. U.S. District Judge Timothy J. Kelly, a Trump appointee in the District of Columbia, ruled that the transfer violated the Constitution’s guarantee of due process, at least in their cases.
As the article points out, It’s a decision that “cuts to the heart of the rule of law.”
Kelly’s opinion is on appeal, and given the unprecedented leeway granted to Trump by the Supreme Court, there’s no telling what the final outcome will be. But as the article points out, Trump’s effort to undo Biden’s clemency is a warning about Trump’s own flagrant misuse of the pardon power, including the threat that it might encourage future presidential successors to “reach for more boundary-pushing ways to get around past pardons.”
Trump has been nothing but “boundary-pushing.” Most pundits attribute that boundary-pushing–more properly labeled illegality–to Trump’s overwhelming desire for power, to the self-aggrandizement that he has displayed throughout his life. That explanation, however, assumes a degree of “knowingness”–a deliberate decision to ignore restraints that he doesn’t believe should apply to him.
I think that’s wrong.
If We the People have learned anything about this sad excuse for a human being, it is that he isn’t just mentally ill, isn’t just slipping into a senility that is getting harder and harder to ignore. He is also profoundly ignorant. He has consistently manifested a lack of understanding of–or even a basic familiarity with– the Constitution he took an oath to defend. He is quite clearly incapable of understanding the quote by Holmes with which I began this post, and if he did understand it, he would reject it.
What We the People have come to understand is the immense–and in many cases, irreversible– damage that can be done to a nation when it elevates a profoundly flawed, incompetent and thoroughly vicious man-child to a position of power.
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