He is by no means finished, but let’s pause, because three characteristics of the entire essay––the hyperbole, defeatism, and a-historicism––are showing already. I very much share the author’s concern about the power of the executive branch, and his frustration at the way that some administrative agencies exceed their mandates.
But I know that the United States vs. Texas struck down President Obama’s executive order on immigration, that Michigan vs. EPA, overruled a Clean Air Act enforcement action, and that Hamdi vs. Rumsfeld asserted that the federal courts would review habeas claims in the War on Terror, so I refuse to accept the notion that agencies are presently unconstrained or that presidents are fully beyond laws. To demand more constraints is prudent. To declare the game lost is defeatist.
I regard Kelo vs. New London, a case that allowed an eminent domain seizure of property that was transferred to a private corporation, to be an abomination. I also know that after the ruling, one I hope to see overturned in my lifetime, 45 states enacted eminent domain reform laws, some excellent, many others insufficient. To demand more constraints is prudent. To declare the game lost is defeatist.
Agree or disagree with Obergefell v. Hodges, the gay marriage case, it is a strange fit in an essay ostensibly about usurpers ruling this country “contrary to its majority’s convictions”––60 percent of Americans now support same sex marriage. Given that younger Americans favor marriage equality for gays and lesbians by even more significant margins I will grant that defeatism here is warranted.
But more than hyperbole or the defeatism, I am struck by the essay’s a-historicism. What I mean is that if you declare the death of the republic, and support that declaration by citing various attacks on “the republic’s spine, such as the free exercise of religion and freedom of speech,” your thesis is severely undermined if the republic has survived far greater assaults on first amendment protections.
The colonies survived the Salem Witch Trials. Smithsonian sums up the situation just after 1776:
In newly independent America, there was a crazy quilt of state laws regarding religion. In Massachusetts, only Christians were allowed to hold public office, and Catholics were allowed to do so only after renouncing papal authority. In 1777, New York State’s constitution banned Catholics from public office (and would do so until 1806). In Maryland, Catholics had full civil rights, but Jews did not. Delaware required an oath affirming belief in the Trinity. Several states, including Massachusetts and South Carolina, had official, state-supported churches.
In 1798, President Adams attacked freedom of speech with his signature on the Alien and Sedition Acts, which prohibited Americans to "write, print, utter, or publish” about the government “any false, scandalous and malicious writing." Back to Smithsonian for a highly abridged survey of 19th century religious repression:
The belief widely held and preached by some of the most prominent ministers in America was that Catholics would, if permitted, turn America over to the pope. Anti-Catholic venom was part of the typical American school day, along with Bible readings. In Massachusetts, a convent—coincidentally near the site of the Bunker Hill Monument—was burned to the ground in 1834 by an anti-Catholic mob incited by reports that young women were being abused in the convent school. In Philadelphia, the City of Brotherly Love, anti-Catholic sentiment, combined with the country’s anti-immigrant mood, fueled the Bible Riots of 1844, in which houses were torched, two Catholic churches were destroyed and at least 20 people were killed.
At about the same time, Joseph Smith founded a new American religion—and soon met with the wrath of the mainstream Protestant majority. In 1832, a mob tarred and feathered him, marking the beginning of a long battle between Christian America and Smith’s Mormonism. In October 1838, after a series of conflicts over land and religious tension, Missouri Governor Lilburn Boggs ordered that all Mormons be expelled from his state. Three days later, rogue militiamen massacred 17 church members, including children, at the Mormon settlement of Haun’s Mill. In 1844, a mob murdered Joseph Smith and his brother Hyrum while they were jailed in Carthage, Illinois. No one was ever convicted of the crime.
During the Civil War, Ulysses S. Grant ordered the expulsion of Jews from three states. Woodrow Wilson perpetrated grave assaults on freedom of speech during World War I, signing his own Sedition Act that made it illegal to cast the government or the war effort in a negative light.