Extreme Temperature Diary- Thursday February 20th, 2020/ Main Topic: Should The U.S. Constitution Be Bypassed To Save The Climate?

Thursday February 20th… Dear Diary. The main purpose of this ongoing post will be to track United States extreme or record temperatures related to climate change. Any reports I see of ETs will be listed below the main topic of the day. I’ll refer to extreme or record temperatures as ETs (not extraterrestrials)😉

Main Topic: Should The U.S. Constitution Be Bypassed To Save The Climate?

Dear Diary. In the last 200+ years the United States Constitution has become a near sacred document, something not to be altered without overwhelming support from citizens in my country. It takes 2/3rds of the states to pass an amendment to the thing. That’s why women didn’t get the right to vote until as late as 1920 and why the Equal Rights Amendment, or ERA, has yet to pass despite many protests since it was first introduced in 1923. Ideas and good policy such as health care for all, or socialized medicine, have to survive the checks and balances of the Constitution, sometimes taking years to finally get implemented via many compromises.

Obamacare in its present form, so far, has been the watered down, end result of health care compromises via our Constitution. To pass the Patient Protection and Affordable Care Act it took an overwhelming number of Democratic House of Representative members plus 60 out of 100 Senators plus a Democratic President for that to go into law. On top of that a law can be declared “unconstitutional” even after the three other branches of government have passed it if 5 out of 9 judges on the Supreme Court strike the thing down. That’s a lot of cats to herd folks.

People often complain that “our government is broken,” and I am making a good case why it is so, blaming our Constitution. Yet our founders had the wisdom to write in checks and balances, which have preserved our democracy and republic for over two hundred years. Our founders, though, could not have anticipated such existential threats as the climate crisis. Since the 1990s not one single major piece of climate legislation has gotten through Congress, including carbon tax bills. So what are we to do since our carbon budget has shrunk so low that we know that major change must occur before 2030?

We are kidding ourselves thinking that the upcoming election will automatically get our climate house in order even if Trump gets ousted. We can look back at the contentious, long legislative sessions from 2009 to see what happened to Obamacare as a precursor for Green New Deal measures going through the sausage grinder that is Congress. Many on the conservative side will stymie the Green New Deal through every way possible via our checks and balances, including our courts. Don’t forget that many legislators from both sides of the isle will have the backing and money of the fossil fuel industry to gum up congressional works. Should we scrap the Constitution just to preserve the climate? No, but like all things it must be bent depending upon circumstances. I say our republic must be preserved such that we don’t slide down the awful road towards a dictatorship as regards to government. So what can or must be done?

We can look back at history to see that another crisis nearly ripped our country apart, that of the Civil War. Many articles and books have been written on what President Lincoln did to hold the Union together, and yes he had to subvert the Constitution, or at least bend it, to do so. Here is one article showing what Lincoln did:

https://supreme.findlaw.com/legal-commentary/did-lincoln-violate-the-constitution.html

Did Lincoln Violate the Constitution?:

A Review of Daniel Farber’s Lincoln’s Constitution

By RODGER D. CITRON

—- Friday, July 18, 2003

For students of constitutional law and history, Abraham Lincoln is perhaps our most compelling president – for he wrestled, and forces us to wrestle, with some of the most fundamental, and momentous questions of constitutional law.

In his slender volume Lincoln’s Constitution, Daniel Farber, a law professor at the University of California, Berkeley, and the University of Minnesota, takes on these very questions.

Did the Southern States, like the Founding Fathers, have the right to secede? Farber says no, though he also contends that the case for secession was not frivolous.

Did Lincoln violate the Constitution when, in his efforts to preserve the Union, he suspended habeas corpus, and in taking certain actions without Congressional authorization? Farber argues that nearly all of Lincoln’s actions were permissible under the Constitution. Moreover, when he did infringe the Constitution, his trespasses were, at least, not egregious.

In Lincoln’s Constitution, Farber offers a concise synthesis of the pertinent history, extended discussion of Lincoln’s reasons for his actions, and elegant analysis of the relevant issues. For these reasons alone, the book is worth reading.

But Farber also goes further, to address the potential contemporary relevance of some of the issues that Lincoln face. Thus, he gracefully integrates into his discussion recent cases raising similar questions concerning civil liberties, federalism, and separation of powers.

Especially with civil liberties issues repeatedly arising, now that the war on terrorism is in progress, it may be instructive to look back at the constitutional questions Lincoln confronted so long ago.

The Unpersuasive Case For Secession – and the “Compact Theory”

In evaluating the case for secession, Farber traces the debate over state sovereignty back to the Framers’ era. Although the Framers did not have a “clear consensus” about “the status of the states before the Constitution,” the author shows that it nevertheless is clear that they sought to enhance federal power, and in fact curtailed state autonomy.

In his opinion for the majority, Justice Stevens contended that since the Constitution limited state sovereignty, states could not interfere with the “direct link” that representation in Congress provided “between the National Government and the people of the United States.”

In dissent, Justice Thomas – joined by Justices Rehnquist, Scalia, and O’Connor -insisted that, on the contrary, the term limits amendment was a permissible exercise of power reserved to the states. After all, “the people of each State retained their separate political identities” under the Constitution, and thus they could choose to regulate the terms for which their Congresspersons served.

Farber parallels the dissenters’ argument with the case for secession presented by Jefferson Davis in the Civil War – noting that both embrace the “compact theory” of states’ rights. This theory holds that the Union was a treaty-like compact among the states that joined it – one that any state could leave, in the same way that a nation might withdraw from a multinational treaty.

Farber himself takes strong issue with the “compact theory.” He points out that the Constitution replaced “a regime of multilateral negotiation with the democratic rule of law.” In the new regime, federal legislation was “‘the supreme law of the land[,]'” and the new system featured “nationwide democratic institutions and authoritative dispute resolution by the federal courts.” Given these features, Farber contends, the Constitution must be seen as far more than a treaty among the states.

Farber also makes a more specific case against the legality of secession, citing the structure of the Constitution and arguments made by James Madison in the Federalist Papers. He concludes, based on these sources, that once bound by the Constitution, individual states did not enjoy the unilateral right to withdraw from the Union.

Accordingly, on the legal merits (as well as on the battlefield), Farber makes clear that the correct party prevailed on the secession issue in the Civil War.

The Case For the Constitutionality of Lincoln’s Conduct Of The War

Due to the unprecedented nature of the crisis caused by the Civil War, Lincoln was compelled to exercise executive authority in a remarkably broad manner. Inevitably, his actions led to clashes with other branches of government over the assertion of his authority.

Farber reviews a number of actions taken by Lincoln in response to the military crisis – such as “calling up the militia, deploying the military, and imposing a blockade.” In each case, he concludes that Lincoln either acted in accord with his authority under Article II of the Constitution, or soon (albeit subsequently) obtained authorization from Congress after acting – rendering his constitutional infringement comparatively slight.

Farber does acknowledges that, on occasion, the actions of Lincoln or the military were excessive. As examples, he cites measures to suppress free speech – and in particular, a case in which a gentleman opposed to the Civil War was convicted and sentenced to death for what may have been no more than associating with another individual who wanted to take armed action against the Union. After the war, in Ex Parte Milligan, the Supreme Court granted the gentleman’s habeas corpus petition.

Learning From Lincoln: How to Wage War And Still Respect the Constitution

Lincoln’s Constitution concludes with a brief discussion of the current relevance of the constitutional questions surrounding Lincoln’s Presidency.

Farber believes that Lincoln’s conduct of the war demonstrates the need for a strong federal government in wartime. But he also contends that it is strong evidence that we need not circumvent the rule of law, or ignore constitutional protections, in dealing with such a crisis.

During our greatest constitutional crisis, Farber demonstrates, the nation was extremely fortunate to have Lincoln as its leader. He recognized the significance of the challenge posed by secession; acted decisively in responding to it; and nevertheless maintained a sense of perspective about the proper institutional role of the presidency.

In the midst of the war on terrorism, at least one disputed issue in the Civil War – how to balance individuals’ constitutional rights against governmental claims of national security – remains quite germane. Regardless of one’s political affiliation, it is undisputed that Lincoln set the bar rather high for his successors.


Rodger D. Citron is an attorney in Washington, D.C.

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I can see a scenario in the not so distant future in which we could see a semi civil war between progressives who want to address the climate problem through policy and conservatives who will refuse to obey any government mandates.

Nevertheless, what a new Democratic President must do is put us on a war footing, temporarily doing what Lincoln did to implement the Green New Deal, which would quickly get rid of all internal combustion engines, replacing these with electric devices driven by wind and solar. Also, all would need to comply with energy efficiency standards.

Debt forgiveness from China and other countries may be crucial in this process. Don’t forget that
President Roosevelt racked up a bill of 4 trillion dollars to fight World War II (adjusted for inflation):

https://www.warhistoryonline.com/history/cost-u-s-wars-now.html

Would the Writ of Habeas Corpus need to be suspended to stamp out decent from climate contrarians? Perhaps, but again I hope the situation never comes to that or blows.

Let’s hope that the situation never comes down to draconian constitutional measures via more science and logical reasoning.

There is some good news in all of this actually stemming from Trump’s border wall. Trump already declared a national emergency to build that thing, so it should be easier for a Democratic President to declare a climate emergency, bypassing Congress on any expensive initiatives. Also, if the Democrats take the Senate they can declare that only 51 Senators, or a simple majority can pass a law. A plurality of 60 votes started to be required in 1975, which is not really specified by the Constitution. Before 1975 that number was actually higher at 66, or a 2/3rds vote.

We cannot wait for years to fight the Climate War. I’d suggest that the next U.S. President declares a Climate Emergency to help get ahead of the most pressing problem of our time. As the Rodger Citron article states there can be circumstances to get around Congress without really shattering the Constitution. I would suggest that he or she does so the very hour once sworn in as President. 

Unfortunately our choice as a species might come down to the rule of law or survival. What would you choose?

Here are a few messages I am getting on this subject:

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Here is some more weather and climate news from Thursday:

(As usual, this will be a fluid post in which more information gets added during the day as it crosses my radar, crediting all who have  put it on-line. Items will be archived on this site for posterity.)

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Guy Walton “The Climate Guy”

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