Court reveals how America has changed

 

Gordon L. Weil

Maine’s highest court revealed last week how the country is changing.  It found that the U.S. Supreme Court is intentionally eroding an essential American right. 

The absolute rule of the British king, who denied people their natural rights, brought the American Revolution.  In the United States, personal freedom was always to be protected from a powerful government.

No person can be required by a government to be a witness against themselves.  They cannot involuntarily give evidence against themselves.  They can remain silent and not answer questions or undergo interrogation, and they cannot be punished for their silence.

Some states required the Bill of Rights as a condition of their ratification of the Constitution, and it was adopted.  Its Fifth Amendment included protection against testifying against oneself, applying to the federal government and later to all states.

In 1966, the U.S, Supreme Court issued its famous Miranda decision, requiring the police to inform people of their right to remain silent.  The Miranda warning became a regular part of police operations, sometimes frustrating law enforcement.

In Miranda, the Court said: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”  In reviewing that requirement, the Maine Supreme Court found that, “[a]s time went on, the Supreme Court began to erode the standards by which waiver and invocation of the privilege are judged.”

The erosion consisted of obstacles to people’s natural right to remain silent or to have legal advice before answering.  The Supreme Court, possibly reflecting public sentiment, began making it more difficult for a person to benefit from what had long been considered an inherent right, deserving the automatic respect of government. 

In 1994, the Court, with a new Reagan-oriented majority, ruled that unless the person made a clear request for legal counsel, the police would have “no obligation to stop questioning the suspect.”  The Court said: “In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement.”

There had been no such “equation” in the Constitution; the right to silence and a counsel are unquestionable.  The Court invented the supposed equation.  The interests of the government, from whom the person should be protected by the Bill of Rights, suddenly became balanced with a person’s rights.

In 2010, the Court went even further.  It ruled that if the suspect did not answer a question about whether they understood their rights and simply remained silent, they had not clearly asserted their right and could be questioned by the police.  Their lack of understanding or feeling intimidated by the police presence were not factors to be considered.

In this case, the suspect remained silent for two hours and forty-five minutes.  Yet remaining silent was not interpreted as a sign that they wanted to remain silent.  Instead, the police kept asking questions.  Because the person finally responded to a question, the Court ruled that answer constituted the waiver of their rights, which they had not clearly claimed.

In short, simply keeping silent, even for a lengthy period of questioning, did not mean they had clearly affirmed their right to remain silent.  To have the right to remain silent, you cannot remain silent.

This watering down of the Fifth Amendment right and Miranda’s “indicates in any manner” provision, was done in the name of assisting law enforcement.  Under a Court now dominated by Reagan and his conservative successors, law enforcement would come at the expense of individual rights.    Authoritarian government is making a comeback.

Many criminal cases concern violation of state laws.  Each state has its own constitution, and may differ with federal standards, provided it supplements and does not weaken those standards.

The Maine Supreme Judicial Court, relying on the state constitution and its many previous rulings, declared the state has maintained the absolute protection of the individual.  “We have long held that the Maine Constitution provides greater protection against self-incrimination than that of the United States Constitution,” it said.

The U.S. Supreme Court, the current neo-conservative edition, states that the individual retains their constitutional and natural right only if they clearly assert it.  If not, they may be questioned. 

The Maine Supreme Court, the historically faithful edition, maintains that the individual retains their right unless they clearly waive it.  In Maine, the police cannot interpret a person’s uncertainty or silence as a waiver of the right to remain silent. 

Justice Arthur Goldberg once wrote in a Supreme Court decision: “If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.”   That is where authoritarian conservatism is bringing the U.S.

[Next column covers the critical role of today’s Supreme Court.]

 

Maine U.S. Senate race: Collins-Mills for the swing seat

 

Gordon L. Weil

Susan Collins now has her chance for her place in history. 

No, it wouldn’t be from being elected six times to the U.S. Senate.  It would arise from her taking a stand in favor of traditional American and Republican values.   She should show courage and principle even if it brings crude denunciation by President Trump.

Sen. Collins has prided herself on being a moderate Republican, true to the values of limited government, free enterprise with a commitment to equal rights and environmental protection. She comes from a Maine political family closely identified with that brand of Republicanism.

Donald Trump has stolen that party away from her.  The Trump GOP has crushed her ambition to become a major influence on public policy in the Senate, while reducing her power by using the functionally stunted Republican Senate to rubber stamp his policies.  The only use the GOP and its president have for Collins is her vote to maintain his unquestioned control of the Senate.

Collins has made political sacrifices to advance the interests of the nation and Maine and her political career.  When her integrity clashes with Trump’s excesses, she temporizes by cloaking her positions in expedience or dubious superior knowledge, as compared with the rest of us, of how the system really works.

She occasionally breaks with Trump and his demands for blind loyalty, and that is to be commended.  But she seldom either recruits support or casts the deciding vote.  This is leadership by gesture, not by consistent and assertive application of her principles.

Maine and the country may be shortchanged by her approach.  Now is the time that demands her vindicating the courage of her convictions as a moderate or being held accountable for having misled us about her principles.

She likes recalling the story of Sen. Margaret Chase Smith’s Declaration of Conscience, her public stand against Joe McCarthy, a Republican colleague intent on destroying political decency.  That took courage, yet she made a partisan speech, making clear her belief that real Republicanism could defeat the Democrats without McCarthy’s vitriol.

Margaret Chase Smith ultimately lost re-election.  But her electoral defeat is not what we remember.  Her assured place in history derives from that single statement of her principles in defiance of her party.

The nation needs a functioning two-party system, operating through compromise. The majority party should dominate decision making, but it should accommodate views of the minority to promote a sense of unity of purpose.

Instead, we have a nation divided.  The two sides appear beyond any hope of compromise. The war is on, not only for this presidential term, but for the indefinite future. 

The Democrats are dazed by finding themselves in this situation and remain unable to pull themselves together with a coherent policy under strong leadership.  While the times demand a bold alternative to Trump, they rely simply on the slim hope that opposition to him and his ego-based politics will produce their electoral victory. 

The country not only needs the Democrats to find themselves but the recovery of the traditional Republican Party.  If this is the great nation that we believe it is, that’s the result of the historical interaction of the two parties.  The nation needs two strong political parties; neither now qualifies.

Susan Collins can do more for her country by keeping the spark of Republicanism alive and giving it oxygen than by mere futile gestures.  She may not turn the Party around, but in the current crisis, she can play a strong, visible and independent role in preserving and promoting the traditional GOP.

 

Collins v. Democrats

The Trump Republican Party is likely to see Collin’s situation differently.  It wants to retain at least 51 seats in the U.S. Senate to ensure that the president can pursue his personal agenda without interference from Congress.  That’s the same reason for the Texas redistricting aimed at picking up five more GOP House seats, which otherwise might fall under Democratic control.

Collins is not loyal by Trump standards, though she has either backed him on critical matters or opposed him with meaningless opposition when he could prevail without her.  But she casts one critical vote – to keep the Trump Republicans in control of the Senate.  It is doubtful if Maine could find another person who could hold the seat for the GOP.

That means the Maine campaign could boil down to a single question: which party will control the Senate?  If it’s the GOP, Trump could have a blank check for his entire second term.  If it’s the Democrats, he may be held to account or face somewhat limited powers.   

The challenge for the Democrats is simple.  They need to find a candidate who can defeat Collins.  She successfully overwhelms lesser-known candidates.   Polls showing her popularity is fading are not a basis for Democratic optimism.

The best hope for the Democrats is Gov. Janet Mills.  She is widely known and is more favorably viewed by Maine voters than Collins.  She is a right-of-center Democrat, entitling her to be considered a moderate.  With the chance to defeat Collins, liberal Democrats would likely support her, despite past differences.

The problem with Mills is her age, now 77.  She would be the oldest new senator ever; she would begin when most senators retire.  With Sen. King at 80, Maine would probably have the most geriatric U.S. Senate duo ever.

The Democrats could elect the next governor at the same time as a Mills’ victory, who could appoint her replacement, if necessary.  To ensure their hold on the Senate seat, the Democrats would need the next governor to serve as their insurance policy.

No matter the governor’s affiliation, the Legislature could adopt a law requiring that any replacement must belong to the same party as a departing senator, as is done in 10 states. 

In either case, Mills could serve less than a full term, secure in the knowledge that her seat would go to another Democrat.  (The Legislature could also require a special election to fill a vacancy, as is done in five states.)

Trump's economic moves hit real people

 

Gordon L. Weil

Since the day Donald Trump became president for the second time, the U.S. has been flooded with disruptive actions, just as he intended.

In reaction, experts and the media have issued dire warnings about the effects, intended or not, of his moves – inflation, immigration, employment, science, commerce and the future economy. Almost all these reactions have focused on the deep and long-lasting national harm his actions will cause.

While Trump’s policies must be taken seriously and the warnings should be heeded, they may seem to be happening at a far higher level than the everyday lives of most Americans.  The best the critics can muster is the observation that the effects will soon find their way down to average people.

If the effects seemed remote or even not likely to happen before they would be erased by renewed prosperity, then Trump can be reassuring and convince people that short-term pain will bring long-term gain.  His message has been that he is so brilliant that people can count on him producing the promised prosperity.

That message is still pending, but it seems increasingly possible that the pain won’t be short term, so the gain is more remote than had been originally implied. The immediate test is whether that situation will have a big enough impact on the 2026 elections to produce a Congress able to rein in Trump or even offer its own policies.

The impacts of his policies are already becoming evident in the daily lives of average citizens.  I take a look here at some of what’s happening in Maine.

The Maine license plate has for decades proclaimed the state as “Vacationland.” Tourism means a lot to the state’s economy, and a lot of the tourists come from eastern Canada.  Canadians feel at home in a familiar culture with appealing beaches and attractions.  But with Trump’s ridiculous but often repeated claim that Canada should become the 51st state, everything has changed.

This absurdity coupled with an overt effort to destroy the Canadian economy to the point that it will seek refuge in the U.S. has amazingly and quickly turned a natural friendship into hostility.  Many Canadians now dislike the U.S. and have cancelled plans to come to Maine this summer.  Maine did not give him all its electoral votes, so he likely doesn’t care about the hit to tourism.

Then, there’s inflation, a big issue for Mainers.  Under former President Biden, as the economy recovered from abnormally low inflation during Covid, inflation took off.  Though it had greatly diminished by the end of Biden’s term, the memory lingered on, and Trump continually reminded voters of it.  Kamala Harris’ response was laughably weak, so Trump scored his point.

Instead of inflation abating, especially for home prices, it began to increase.  Trump’s tariffs were not absorbed by exporters or American retailers, as he had promised.  The free market, favored by him, worked normally, and prices eventually reached consumers.  Walmart and Target prices in Maine rose sharply, as they did elsewhere.  Grocery prices remain high in a state that’s at the end of the supply line.   People noticed.

Housing is especially sensitive.  It is among the top three concerns in the state, along with inflation and immigration. Higher building costs, resulting partly from expected increased Canadian lumber prices, put homes out of reach for potential buyers. The ability of the private sector and government to push tiny homes to ease homelessness was undermined.

That happened in a special way in Maine.  The University of Maine has the world’s largest 3-D printer, and it produced a complete tiny house.  But it needs federal funding to move ahead. Because Trump dislikes Gov. Mills’ insistence on state control of trans athletic policy and the president’s aversion to academic research, the project has begun laying off workers.

Like tourism, a mainstay of the economy is lobster fishing.  Lobsters are a high-cost food whose sales track the health of the national economy.  Trump has managed to create so much uncertainty throughout the economy that consumers are holding back on many purchases and there’s concern about the impact on fishing in coming months.

Every state, every market has seen its own effects of Trump’s policies.  Just as the U.S. cannot be an economic island, neither can any state.  Broad-brush national policies have local effects that should not be ignored, especially by Congress.  Trump’s vision of American industrial greatness comes at immediate cost to the paycheck-to-paycheck population.

Trump’s popularity, though waning, survives because many people like his immigration policy and take comfort in his economic nationalism.  The ultimate judgment may come when Maine fishermen, supermarket shoppers, tourism operators and home buyers vote for their next U.S. senator just 17 months from now.

The law versus the president

 

Gordon L. Weil

President Trump’s initiatives have produced a flood of legal actions, charging him with violating laws and the Constitution.  His challengers ask the courts to make sound legal interpretations in their favor, no matter the political orientation of the judges.

The complainants should be worried.  The Supreme Court may share Trump’s expansive view of the presidency, giving him legislative powers.

A second cause of concern is that the courts appear to have begun tipping the balance of power among the three branches of government in their favor.  The legislative power is rapidly fading, as members of Congress are more concerned with self-preservation than the national interest.

The Supreme Court seems to favor Trump.  Its decision in Trump v. U.S. authorized an almost unchecked presidency. Its recent orders allowing the president to control supposedly independent regulatory agencies highlight the Court majority’s agreement with Trump and support for the concept of the unitary presidency.

Look at its handling of Trump’s attack on birthright citizenship.  Instead of making a clear statement on his tortured interpretation, the Court has hidden behind a procedural question to delay a ruling.  Despite clear language and its own solid precedent, it allows Trump to create uncertainty for millions of people.  Its slow response appears intentional.

Oddly enough, a Maine case may be the best indication of a runaway judiciary that, like the president, denies checks and balances that are essential to the American political system.  Here’s the story.

Years ago, the Maine Supreme Judicial Court decided a case pitting mortgage customers against the banks holding their mortgages.  The case related to the speed and ease with which foreclosures could take place.  The Court decided in favor of the customers.

Last year, a new case appeared in which the banks sought to reverse the earlier decision.  A judge now on the Court is a lawyer who represented the banks in the earlier proceeding.   She received some advice that she need not recuse herself and she didn’t.  Hers became the deciding vote in a 4-3 ruling that favored the banks.  Her former clients won.

The official judicial ethics committee found a conflict of interest.  The committee can take no further action; the decision is up to the Supreme Court.  It has done nothing, at least so far.

The Maine Legislature is considering a bill for a study on how to apply judicial ethics to the Supreme Court.  But the Court informed the legislative committee that even its consideration was unconstitutional, because a study could not lead to legislation.  The Court asserted that it alone has judicial power, and the Legislature cannot act.  Obviously, it would rule that any such action is unconstitutional.

Carry this assertion over to the federal level.  Congress can define court jurisdiction.  If Congress were to rein in the Supreme Court from its broad support of a dominant president, it probably would face a presidential veto, and the Court could rule its law as unconstitutional.  Without any appeal, the only reactions then available would either be adding justices or amending the Constitution.

In one of the wisest political acts of his presidency, Joe Biden vetoed the addition of scores of federal judges, all of whom would have been named by Trump.  Had he accepted that he was a one-term president, he might also have been willing to propose increasing the size of the Supreme Court to restore some balance.  Lincoln and FDR both did.

The president is radically changing the Constitution as it has evolved over the centuries.  Trump appears to believe that, in an emergency he declares, he is not bound by the Constitution, the laws or the courts. His position implies that “democracy” no longer works and should be replaced by a presidency of unlimited power.

Congress, when dominated by the president’s party, is proving to be a docile accomplice.  The U.S. now has achieved the goal that then Speaker Newt Gingrich sought in the 1990’s – parliamentary government in which party discipline translates into unified support of a party’s president and unified opposition to the other party.

The Supreme Court, with its jurisdiction under attack by the Trump administration, could educate the president on what the law is. That’s what the U.S. Court of International Trade did this week, when it overturned almost all of Trump’s tariffs.  However, the Supreme Court looks more likely to join the other branches in transforming the American political system. 

The people hold the power to settle the matter in the 2026 congressional elections.  Does the American voter want to replace constitutional checks and balances by presidential rule?   Can they elect a Congress that recovers its powers and restores the intended balance with the president and the Court? That may be the real choice next year.