Some former colleagues and friends with substantial military experience as unit commanders in combat, described why Russia’s invasion is stumbling.  This despite, what should have been an overwhelming conventional warfare advantage.  

Planning Assumptions: This has been examined by the media in some detail. Putin’s intelligence and military advisors were not accustomed to speaking truth to power….and for very good reasons. They also assumed the West’s response to an invasion would be nothing more that that in 2014, which was manageable.

Thus, missing was  any evaluation of the development since 2014 of opposition to  Putin’s Russia and the commitment of a majority of the Ukrainian population  (particularly the young) to a Western oriented independence.  Similarly absent, was information about the training and rearmament of their military, particularly special forces, by NATO countries over the same 7 plus year period. 

Neither naysayers nor critical media were permitted to deter Putin from believing the invasion would lead quickly to the capture of the capital Kiev and the removal of the elected Zelensky Government. The identity of the Ukrainian slated to become the new president is not kn0own, but his subservience to the Kremlin is a given. 

Russian Military Problems: First, we’ve learned many of the 170,000 or more troops that attacked Ukraine on February 24, 2022 were conscripts who did not know they were going to war. A morale problem?

Weather: February and March bring snow, sleet and rain to Ukraine. Thus, thick mud is everywhere. A serious problem, evidently ignored when the decision was made to rely heavily on tanks and other mobile weapon systems. Thus, the invading forces were confined to Ukraine’s narrow roads because the fields were mush. These conditions seriously reduced the ability of Russia’s armor to mass or tactically maneuver.  Also, relying on tanks principally, when the initial targets were large cities, introduced a bad, vulnerable urban environment for maneuvering.

Logistics: The Russians never organized a separate logistics command responsible for providing fuel, food, shelter, clothing etc. to field deployments. Each unit organized their own or, as the intercepts indicate,  desperately asked for provisions, especially for fuel. The number of abandoned out-of-gas tanks testifies to the serious logistical muddle.   

Leadership: No commander-in-chief for the invasion was appointed. There are four senior generals, each of whom is fighting his own war.  One of my friends described the general running the Mariupol operations as competent and effective. The other three he described as “soup sandwiches”.

The Future:  Little improvement in the logistics situation has been noted since the early weeks. However, one known change that might improve Russia’s military fortunes, is warm weather drying the mud. 

The severe economic, financial and personal sanctions the EU and NATO nations with US leadership, quickly imposed are having an impact, although oddly, Russian support for Putin is increasing. And then there are conflicting statements from Moscow, re its intent to transfer forces to the Donbas and annex this Eastern slice of Ukraine?   

Or those ongoing negotiations hosted by Turkey which one day seem hopeful of a settlement and the next not so much. The basis is fluid, but seems to include Ukraine’s agreement to neutrality in return for allied action-oriented security guarantees and the removal of Russian troops. The current sticking point is what land concessions would Zelensky accept: recognize Crimea as a legitimate part of Russia? Or more? 

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County. 

I’m probably not alone on the Eastern Shore in believing Americans in March 2022 already have more than enough on their minds. We’ve recently exceeded 970,000 COVID deaths, but the omicron infections are declining significantly, though the US still records above 1200 deaths every 24 hours. Understandably, Americans were losing patience with vaccinations, masking and school restrictions. Many are now being loosened or removed.  

Meanwhile, our economy is recovering with substantial job gains, but continues to deal with pandemic-generated supply/demand and inflation problems. The latter became sufficiently serious that the Federal Reserve recently raised interest rates. But, our political division and near dysfunction may be healing as a result of Putin’s  brutal invasion of Ukraine. Most Americans support the harsh sanctions imposed on Russia by the US and its Allies and cheer the stiff and courageous resistance by Ukrainians and their president. 

Thus, I was depressed to learn the American Legislative Exchange Council (ALEC) is pressing to convene a Constitutional Convention to consider amendments aimed at limiting the power and jurisdiction of the Federal Government. Fifteen states already have passed legislation supporting a Convention and 17 others  are considering similar action.  

Why? Because states rights versus Federal authority has been and continues to be, a readily available platform for both Democrats and Republicans to justify their partisan desiderata of the moment. The usual issues involved are: race, power, elections, sex and money.  

The following briefly traces the  two century evolution of this US political/constitutional conflict. 

Back to the Beginning

The Articles of Confederation: 

Soon after the initial American/British fighting at Lexington and Concord, the 2nd Continental Congress met to chart the way forward as they fought to separate the 13 colonies from the British crown.  Thomas Jefferson’s eloquent Declaration of Independence explained the rationale for independence and the Congress also created a committee to propose an administrative structure to meet the former colonies’ interim needs.   

In November 1777, the draft Articles of Confederation was approved. They described an alliance of 13 independent states “… a firm league of friendship entered into for their common defense”; not a national government. As George Washington would discover the Confederation had no authority to levy requirements on the states to provide the recruits or the financial and in-kind support,h his forces required.  

The Constitution of the United States:

Representatives of five states met in September 1786 intending simply, to revise the Articles. But, it quickly became obvious that revision of such a decentralized concept could not serve as the new country’s government. 

Fifty-five men wrote the Constitution between May and September 1787, which was finally ratified in June 1788. It established the United States as a  union of its people, not a confederation of independent states. It created three independent branches of Government: a bicameral legislature, an executive led by a president and a judiciary led by a chief justice.  Each of the three Branches had enumerated Constitutional powers. . 

The Bill of Rights:

Americans emerged from the Revolution with a legitimate concern that their just ratified Constitution needed express protections for its citizens.  Otherwise, they feared, future generations could manipulate it to substitute another disdainful, overbearing master, for the will of the people. The result was the Bill of Rights, the first ten amendments to the Constitution. The Tenth Amendment itself generally clarified the relationship between the Federal and state governments, but contained the Reserved Powers Clause: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” 

This clause has been employed frequently ever since to support the Constitutionality of a claim of superior states’ rights. 

States Rights in the 19th Century

Slavery, and the Civil War 

In the 1830s, Democratic Southern state leaders referred to the Reserved Powers Clause to support their claimed right to refuse to abide by Congressional laws, signed by the president. If, they asserted, their voters wanted to enslave Blacks or take land from Native Americans, that was their democratic right. The result 30 years later, was the devastating Civil War.

Reconstruction and Jim Crow

Slavery may have ended, but the former confederate states were not prepared to accept the racial equality of Blacks and whites.  Thus, their political leaders enacted the Jim Crow laws which segregated the one from the other and comprehensively discriminated against African Americans. It took almost another century for Jim Crow to end. Racial equality and equal justice may take longer.

In 1868, the 14th Amendment was added to the Constitution clarifying whether states or the Federal government, had superior authority vis a vis American citizens: “No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Two years later, a 15th Amendment guaranteed that: “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.”

The Civil War changed American federalism forever, but until the 1920s and 30s, the actual powers the central government exercised were limited.  

Post War Economic Impact on Politics.

The Civil War reversed the regional economic balance. Antebellum, the South was the richest region in America, based primarily on the growth, processing and sale of cotton. The North (the Union), under  Republican Administrations, had experienced a wartime industrial boom. However, the Wall Street donors began  to object to the Republican Party’s post-war economic policies: too pro poor, too pro business regulation. The Party in 1872 backed away from its support for workers, in return for Wall Street’s continued largess. Republican U.S. Grant was re-elected president.   

It was a serious political blunder. The 1873 – 77 Panic (depression) sank many banks and railroads and in 1874 cost the Republicans, half their House seats, ceding the majority to the Democrats. In 1885, Grover Cleveland won the presidency, the first Democrat since the Civil War.     

States Rights in the 20th Century

In the early 1920s, some states opposed the Federal extension of business regulatory authority as an invasion of their own responsibilities. Other people,  were similarly irritated by states’ efforts to do the same, i.e. regulate commerce..  

The onslaught of the Great Depression changed the conversation dramatically and stimulated a 20th Century tendency for Americans to look to the Federal Government for help when they were in desperate straits. In 2020, 21 and early 22, this trust in Washington to solve big problems seems to have waned.  

WWII reintroduced race into this Fed/State debate.  On 12/07/1941 (Pearl Harbor Day), the United States was  largely segregated either de facto (North) or de jure (South) as were the US Armed Forces. Moreover, Blacks were discouraged from volunteering to serve in their nation’s military and were not being hired for the jobs created by the war-related  boom.  FDR issued Executive Order 8802 correcting this discrimination, but only after thousands of African Americans threatened to march on Washington

Harry Truman abandoned his original Missouri-bred anti-Black attitude after learning that two returning African American soldiers in uniform had been murdered by white Southern mobs. He introduced a civil rights agenda and in 1948 issued Executive Order #9981 desegregating the US military.

Federal power grew during the administrations of FDR, Harry Truman, Ike, JFK and LBJ via their huge nationwide programs, e.g. the New Deal, New Frontier, Great Society etc. However, in terms of States Rights, it was the national American Civil Rights Movement and Southern whites’ violent, deadly opposition that dominated the subject in the 20th Century.

Harry Truman wasn’t the only Southern reared Democratic president to surrender earlier prejudices to the superior rights of the Constitution.  Lyndon Johnson (Texas) signed into law the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Both had passed Congress with strong bipartisan support..

The Reagan Era (1981-89): States Rights vs the Feds, Civil & Voting Rights & Self-Sufficiency 

President Reagan’s  two terms in office substantially impacted the last decades of the 20th Century and beyond. His foreign policy successes were signal achievements, while his optimistic imagery of the “Shining city on a Hill”helped improve the national mood. 

However, domestically his early campaign statement that the Federal Government was the problem, soured millions of Americans on Washington. The 2022 public belief that the national government is overbearing and robbing citizens of individual freedoms, is an amplified, modern manifestation. 

Reagan also delivered, perhaps inadvertently, an early, discouraging message to African Americans. He chose to deliver a campaign speech in Neshoba County, Mississippi where, in 1964, three civil rights volunteers (2 white, 1 Black) had been kidnapped and murdered by white local police officers. The following except from his Neshoba remarks did please a number of American politicians:   

“I believe in states rights, I believe in people doing as much as they can for themselves at the community level and at the private level. I believe we’ve distorted the balance of our government today by giving powers never intended in the Constitution, to the Federal establishment.”  

The President’s early emphasis on individual responsibility was an early alert to his Administration’s lower emphasis on Safety Net priorities.  He reduced budget support for Medicaid, Medicare, school lunch programs and others. 

In eight years, the Reagan Administration halted 30 years of work by his predecessors to overturn state laws that restricted minority Federal Civil and Election Rights, An early example: was his decision to end funding to enforce civil rights’ violations. On a more positive note, President Reagan did declare Martin Luther King, Jr.’s’ birthday, a national holiday. 

States Rights and Electoral Politics march towards 2022

Political Party Transformations

By the time the 21st Century began, the two principal political parties (Democratic and Republican) had changed or exchanged major planks in their platforms. Most significant was the post Civil War gradual evolution of the Democrats away from its traditional pro-slavery, pro-Jim Crow, racist principles.  This shift culminated in the 1964 and 65 signature of the Civil and Voting Rights Acts, by Democratic President Lyndon Johnson. LBJ knew this would be the death knell of his Party’s  long political domination of the former confederate states. And it was. 

The Republican Party adjusted its earlier abolitionist views, revisited its states’ rights portfolio and adapted its conservative positions to encompass local Southern opinion. They replaced the Democrats as the majority Party in the South and have used the States Rights platform to further their developing positions on abortion, freedom of religion, corporate political rights and individual freedoms versus alleged Federal encroachment. 

Following President Trump’s 2020 loss to Joe Biden, voter fraud and politicization of election management plus removal of pandemic mandates became included on states rights agendas of those controlled by Republicans. 

States Rights and the US Supreme Court in the 21st Century:

 Electoral politics writ larger became the subject of judicial challenges citing different parts of the Constitution.  In 2010, the Supreme Court in Citizens United vs. the FEC, decided the 1st Amendment’s free speech guarantees also applied to corporations’, non-profits and union’s, campaign contributions.  The Federal Election Commission cannot, the Court determined, restrict them. 

Three years later, in Shelby County (Alabama) v. Holder (2013), the Supreme Court decided that Section 4 (a) of the Voting Rights Act (1965) requiring certain Southern states to obtain DOJ clearance before changing election laws, was no longer necessary. 

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.

In the fall of 2021, when Putin began surrounding Ukraine with what now numbers some 150,000 military forces (41% of total), he could well have misread America’s readiness to react.  The Pandemic’s deadly toll was mounting, the people appeared sharply divided and President Biden was losing public support, seemingly distracted by constant domestic political animus. Moreover, some NATO Allies had begun to act independently vis a vis Russia (unity cracking?).  And the most powerful among them, Germany, was losing its long time, very effective chancellor, friend of Washington, Angela Merkel. And then there was the moderate Western response in 2014 when Russia invaded and annexed Crimea.

But, the US under Biden has asserted itself powerfully, after a full year working to repair the damage to its standing and relationship with its European allies. Moreover, Putin’s continued reinforcement of troops, served to solidify the Europeans behind America’s tough response. The US, with its allies, undertook a very deliberate diplomatic effort over several weeks to deter the Russians while underscoring the serious, damaging economic and financial penalties Russia would face. 

The result: Moscow’s clearly unacceptable demands that the US/NATO sign legally enforceable documents withdrawing NATO Forces to their 1997 positions, agreeing never to accept Ukraine as a NATO member and to remove Western missile bases from Allied countries contiguous to Russia. 

The US and NATO Allies rejected them all, but at the same time provided topics for future negotiations addressing Moscow’s concerns. Putin and Foreign Minister Lavrov reacted somewhat positively to future discussions, while repeating Russia had no intention of attacking Ukraine and continuing to move units closer to the border.   

So what is going on?  Why is Putin avoiding the several off-ramps on offer?  There are, I believe, several reasons.  First, Putin cannot be seen to back down, fearing the Russians and others would begin to think him weak, not all powerful. Second, is his background: teenage champion of martial arts, former KGB Lt. Col who insists the collapse of the Soviet Union was the 20th Century’s worst catastrophe, probably was for him and his colleagues. And third he asserts the mythology, once popular decades ago, that Russia and Ukraine are the same nation. He claims both are descended from an ancient 9th Century principality Kyivan Rus and share the same Orthodox Christian religion. Not true and definitely does not reflect modern Ukrainian attitudes  As someone said, it’s like Texas claiming direct descent from William the Conqueror. 

The likely outcome? Russia invades Donbas and adds it to its earlier seizure of Ukrainian Crimea, leaving the rest of the country alone. The Duma, the lower house of the Russian parliament, has already recognized two parts of Eastern Ukraine as “independent” (Donetsk and Luhansk, possibly supporting Putin’s seizure of them. Moscow may then begin withdrawing most of the 150,000 and accept the US/ NATO invitation to negotiate. 

There is a practical problem: Russia’s GDP is smaller than California’s and adding more responsibilities may challenge future budgets.     

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.

The recent arrival of another COVID variant and the familiar spikes in infections and deaths, after 2 years of pandemic, is yet more depressing. If Americans ever needed some good news, it’s now. And we have it, but it doesn’t appear to be cheering anyone up. As Bill Clinton once said: “It’s the economy stupid.” And it is.

Starting with the macro numbers, over the past three quarters, America’s real GDP increased at an annualized rate of 7.8%. Between 2000 – 2019, the average GDP was 2.2% and never reached 3%. The Federal Reserve projects 2021` will see an average of 5.9%. US disposable income grew 3% after inflation from January to October 2021. In 2018, the increase was 1.7% and in 2019, 0.5%.

And since January, unemployment has fallen by 1/3 and the Boston Globe reports (12/09/21 edition) that over the year now ending, lowest paid wages have increased by some 8%, but inflation gobbled up 5.5%. Bottom line, increase in wages is ahead of inflation, The Bureau of Labor Statistics announced that the job increase in November was 210,000, OK, but not extraordinary. However, the most impressive data point is that in the months since January, the economy, has added 4.5 million jobs, the largest number in any administration’s first seven months.

A curious result of recent Bureau of Labor Statistics polling doesn’t help much. The Bureau asks two different groups questions about the economy, Employers and Households and generally expects the two responses to be similar. Last month’s however, were not. Employers said economy was good to very good, while consumers, Households, said it wasn’t.

The public’s dismal sense of the economy, contradicts the standard measures as per above. Moreover, businesses are making huge capital investments which reflects confidence in the economy and its future, while consumers are buying at a high rate. Something they wouldn’t do if America was on the edge of recession.

So what is going on? First, rising inflation is frightening to many Americans who have gone through its negative personal impacts in the past, this despite the fact incomes are keeping pace. Second, there is considerable attention being paid in the media and on social media, to inflation. Much more than to the “Good News” economic statistics. Repetition eventually convinces people, inflation is a VERY BIG PROBLEM. Third, the price of gasoline, not Bureau of Labor Statistics reports, is what makes an impression.

And beyond this dull data, the hyper publicized Congressional decision whether to raise the debt ceiling and the familiar squeal that the NATIONAL DEBT WILL GO UP and the country will go bankrupt, doesn’t help. Given we finance our deficits largely from US debt instruments bought by Americans, the deficits/national debt shouldn’t induce panic.

Our economy is making an amazing recovery from the pandemic-induced crisis, much better than other major countries’.

We should be enjoying the holidays with our families and friends and not be seduced into unnecessary worry.

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.

 

In 2021, we are awash in specific subjects that have become inflammable political issues that 5 years ago were unknown, e.g. replacement theory, vaccinations, critical race theory, mask wearing etc.  However, very quickly, they have become so divisive that school boards, public health officers, town councils, mayors and their families are receiving death threats, general vituperation and threatened loss of positions.  However, there is one that has been around for more than 40 years: abortion  

Prior to Richard Nixon’s 1972 election campaign, approximately the same number of Republicans and Democrats opposed or supported abortion rights.  At the time, it was considered a personal moral, religious choice. However, Nixon made an anti-abortion position part of his reelection strategy in order to appeal to Catholic voters and other social conservatives.  

Republican Congressional candidates adopted it as well and eventually coalitions formed over the issue  between Republicans and evangelical Christian groups and others. Eventually, this campaign tactic morphed into a Party emblem: Pro-Family  

However, in the 1960s and earlier, the Party’s candidates were not caught up in abortion as a keystone of their politics and were unpredictable, but that changed..Ronald Reagan, when Governor of California, signed a law (1967) that loosened abortion restrictions, but during his run for the presidency in 1980, he strongly supported the appointment of anti-abortion judges.. 

Probably inevitable, but in order to distinguish themselves from the GOP, the Democratic Party staked out a position in favor of a woman’s right to decide what happens in her body, i.e. Pro-Choice.  

And then years later, abortion became a national cause and mass movements in America championed, lobbied and organized regular public demonstrations on both sides of the issue.

In the 1990s and early 2000s, abortion tactics began to change. Opponents initially favored incremental restrictions, for instance a ban on partial birth abortion. Bill Clinton stretched to the middle when he said: “Abortions should be safe, legal and rare”. 

Now, the demands have expanded; the Republicans today are pursuing “heart beat” laws, earlier in a pregnancy. Texas recently passed legislation prohibiting abortions after the 6th week and deputizing the public to enforce it. Others among the 23 Republican controlled states are following the Lone Star’s lead. The Democrats are pursuing reproductive justice for women.  

Both parties have the same target: the Supreme Court’s 1973 decision (7-2) in Roe v. Wade. The case  struck down a Texas abortion law as unconstitutional and found that American women have a fundamental right to choose whether to have an abortion or not without excessive government. 

In 2021, the Republicans want the current Supreme Court to overturn Roe v. Wade, while the Democrats want the Constitutional right to be reconfirmed. 

Dobbs v. Jackson Women’s Health Organization:.

This Mississippi case has reached a very different Supreme Court in November 2021 than the one that  decided Roe v. Wade almost 50 years ago. Today SCOTUS has a 6-3 conservative majority. Republicans believe they have a real chance of obliterating Roe and Democrats are concerned. 

However, in a 2019 national poll, 75% of Americans supported the constitutional right of women to have an abortion, BUT possibly a version of Roe in a 21st Century context, i.e. some restrictions may be OK.  However, the red line between acceptable and unacceptable has yet to be decided.  Will today’s Court do that, assuming Roe is not overturned?

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.

Based on media reports and poll analyses, in mid-November, it’s hard to believe, there is anything noteworthy in the US economy other than inflation. But there is and it’s mostly good news. Let’s deal first with the causes of the sharp price hikes, especially gas at the pumps. 

Why are Consumer Prices Rising?

The explanations are basic economics about the relationship between supply, demand, and inventories. During the first months of the pandemic American buyers stayed home, demand sunk and inventories built up, but over time were  slowly depleted. Meanwhile, imports had been ordered against anticipated future demand which was not realized. But, about 4-5 months ago, millions of Americans got vaccinated, felt protected and had money to spend, thanks to the Trump and Biden Administration’s’ decision to protect people’s incomes and support hard hit retailers. These appropriations also kept state and local government tax revenues stable. Trillions of dollars were appropriated and distributed.. Suddenly demand surged.   

The manufacturers and retailers were not prepared. In the face of the earlier  steep decline in demand, they had cut production, laid off workers and slowly depleted their inventories.  The orders they had placed to resupply inventories were, at best, only being delivered very slowly or not at all.  Many were unable to satisfy the surge in demand and did what sellers caught in this situation, usually do; they raised prices and then did so again. 

The goods ordered were either not being produced by foreign factories facing similar workforce and supply challenges or were dribbling out in smaller quantities. The orders that were filled, had been shipped tto the US. However, when the goods arrived at US ports, they weren’t offloaded because port container storage was full. Complicating a bad situation, Covid related shortages of stevedores, truck drivers and trucks, meant storage space couldn’t be cleared fast enough or containers shipped onward to the markets. .By 11/09/21, some sixty ships lay offshore of two of America’s largest ports,  Los Angeles and Long Beach.  

And now about the sharply rising prices at the pumps. The United States and other Western countries do not control gas prices.  They are based on decisions by something-like a cartel, called the Organization of Petroleum Exporting Countries (OPEC). The Pandemic also seriously impacted its oil production, reducing that available to consumers.  When their production declines, supply to consumers is reduced and prices go up. When it increases, prices go down. Sometimes there’s a market glut and we experience $2.40/gallon gas. 

OK, but How is the US Economy Doing?

Basically, it’s recovering well from the Pandemic imposed crisis, thanks to the very substantial monetary and fiscal responses by the Federal Reserve, the White House and the US Congress, aimed largely at protecting the demand side of the economy..

The Bureau of Labor Statistics reported it had underestimated job growth from June to September by 626,000.  Goldman Sachs projects that by the end of 2022 the unemployment rate will be at a 50-year low, i.e. it is 4.6% now and is expected to decline to 3.5%.  Retail sales are 16% higher than they were in November 2020 . JP Morgan upgraded its expectations for GDP growth from 4% to 5%. . 

Interestingly, the strength of the economy is reflected in a recent poll that found only 5% of Americans believe inflation is the most important economic issue facing the country.  Maybe less media and political commentary about inflation and more on the basic good stats would help. Or maybe not. 

And the Backlog at US Ports?

California Governor Gavin Newsom visited the ports of Los Angeles and Long Beach on 11/17/21 and was pleased to learn that the container backlog had been reduced by 36%.  He was told that the Administration’s recommendation the ports operate 24/7 and the port authority’s own initiative allowing one additional level of container storage (from 3 to 4) had helped. Additional hiring by the ports had also eased the situation. 

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.

Can American Political Parties Advocate the Overthrow of the US Government?

Yes, the Supreme Court indicates, as long as advocacy isn’t activated, but what if it is?

The Founders were familiar with the vicious in-fighting that occurred between and among European political parties, and wanted to avoid possible crippling political dissent in the country they were busy creating. Ben Franklin, speaking before the Constitutional Convention on June 2, 1787 had this to say:

“There are two passions which have a powerful influence on the affairs of men.  These are ambition and avarice; the love of power and the love of money….Place before them a post of honor, that shall be at the same time a place of profit, and they will move heaven and earth to obtain it.”

Four days later James Madison added these thoughts:

“All civilized societies would be divided into different sects, factions and interests, rich and poor, disciples of this or that religious sect, …the followers of this political leader or that political leader… where a majority are united by a common interest or passion, the rights of the minority are in danger.”

Intellectually, these statesmen recognized the problems that had arisen in Great Britain and could arise in the United States.  However, human instincts led to diverging behavior later that summer, when powerful groups came together to oppose or support the draft Constitution.  By the 1796 presidential election, two political parties had already formed: (1) the Federalists followed Alexander Hamilton and the Democratic-Republicans looked to Thomas Jefferson and James Madison. The latter had clearly overcome his earlier concerns about debilitating partisan warfare. 

In the centuries since the US Constitution entered into force on June 21, 1788, 94 political parties have been certified.  Ten lasted until the post-Civil War period, when they disappeared because they reflected attitudes toward the union or slavery, that the War had overtaken. 

The two most durable parties are the Democratic (established 1828) and Republican (1854).   Interesting to note that the Democrats originally were pro-slavery and pro-states rights, while the Republicans were abolitionists and pro-Union. 

Over the decades, a process evolved enabling groups of Americans to be certified as state and/or Federal political parties, allowing their candidates to participate in elections. The qualifications focus on: (1) their demonstrated degree of support and political activity (e.g. a percentage of the primary vote) and (2) their understanding and acceptance of the complex of financial laws and regulations governing their fundraising and expenditures.

The Federal courts have consistently shown deference to the Constitutional rights  of association and free speech. The question of regulating American political parties has arisen, but largely over the issues of racial discrimination and membership, as well as the “fairness of their nominating process”. Violations of the financial laws have been the most frequent legal actions taken against parties and their representatives. 

Only one law has been passed by Congress penalizing specific political beliefs sand systems in the United States: The Communist Control Act (1954).  And then there’s the Smith Act of 1940. 

The Clear and Present Danger Test

The Federal Courts and particularly the US Supreme Court have considered a number of cases regarding extremely offensive party platforms and allowed these parties to remain in place. Perhaps, none has offered a clearer example of the nation’s deep commitment to the Constitution’s Bill of Rights than that of the American Nazi Party founded in 1959 by George Lincoln Rockwell.  

The Party’s declared mission was to kill all Jews, send all Blacks back to Africa and to further other, similar racial views.  Rockwell ran unsuccessfully for president in 1964 and was assassinated in 1967 by a former party member. The party collapsed, but off-shoots have surfaced regularly ever since. A Neo-Nazi group participated in the violent August 2017 white supremacist demonstration in Charlottesville, Virginia, that saw one counter demonstrator murdered.. 

In 1940, the Smith Act was passed against the background of armed conflict in Europe and more aggressive Communist  movements.  The Act was aimed at restricting subversive activities in the US. It forbade any attempts to “…advocate, abet, advise or teach or  to organize or be a member of any group or society devoted to such advocacy. or” the violent destruction of the U.S. Government”. Prosecutions were brought against American Communists for their beliefs and membership, triggering appeals asserting their 1st Amendment , and thus their Constitutional rights, were being violated.  .

The Supreme Court in Dennis v. United States (1951), found the Act was Constitutional, but that it could only be applied when there was  evidence showing that “…a conspiracy was in place to overthrow the government., i.e.. “…a clear and present danger of the substantive evil.” In Yates v. United States (1957), the court focused on the difference between abstract advocacy and that which called for immediate action. 

And then, in two 1961 cases, Scales v. United States and  and Noto v. United States the Supreme Court seemed to backtrack a little by finding that active membership in the Communist Party with intent to overthrow the government was not protected by the First Amendment or the Due Process clause.  In Noto   the Court found there was insufficient evidence that Noto or his particular Communist Party was actively doing much of anything. 

There have been no prosecutions under the Smith Act for the past 60 years, although it remains on the books.

2021:the Smith Act & 18USC(2383:

Could either apply to 1/06/21?

On January 6, Republican supporters of former president Trump violently assaulted the US Capitol in Washington, D.C. Their purpose was to prevent the Congress from carrying out its largely ceremonial duty of accepting the states certified Electoral College 2020 vote tallies and announcing the president and vice president elect of the United States. They failed and Joe Biden and Kamala Harris were declared the 2020 winners. . 

Five people died, over 140 police were injured and hospitalized and well over 500 of those who took part in the attack have been charged and are being prosecuted in the Federal Courts. 

The Smith Act is relevant because it forbids attempts to “advocate, abet, advise or teach” the violent overthrow of the US Government and resulted in the prosecution and conviction of 23 leaders/members of the Socialist Workers Party in Minneapolis (overturned in 1957). Subsequent prosecutions were aimed principally at members of the US Communist Party, alleging conspiracies aimed at overthrowing the US Government. As mentioned earlier, the Supreme Court stated there had to be more than advocacy of an abstract idea, something closer to a “clear and present danger”.The Smith Act has not been employed in legal actions since the 1960x.

The US Code (18USCSec.2383  enacted in 1948 deals with the crimes of rebellion or Insurrection. More specifically, it states that: “whoever incites, sets on foot, assists or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined or imprisoned or both;and shall be incapable of holding any office under the United State4s.”

The U.S. Attorney for the District of Columbia said officials are looking at “significant felony cases” tied to sedition and conspiracy.” The FBI has opened more than 500 cases against individuals who took part in the January 6, 2021 assault on the Capitol 

My initial interest was to research the possibility the Republican Party could be held liable for the January 6, 2021 violence. The Smith Act was used to prosecute members of two political parties (Socialist and Communist), but its purview was narrowed by the Supreme Court, requiring a showing of more than advocacy aimed at the overthrow of the US Government. The attack on the Capitol definitely satisfied that element.  However, proving a conspiracy by the Republican Party itself, which does not advocate overthrowing the American Government, would be extremely difficult, if not impossible.

Then the question becomes, if not the Party itself, what about another group of individuals forming a conspiracy with the specific intent (Eastman Plan) of reversing the 2020 Election and then acting,.on it. Theoretically possible, but unlikely, which probably explains why the FBI and the US Attorneys have been charging each participant in the attack individually. 

18 US Code, Section 2383 punishes “…whoever incites…or engages in rebellion or insurrection against the authority of the United States”.I have not researched the case history under this statute, but superficially it appears more appropriate for what led up to January 6th.  Another point I didn’t address was the liability of several militias and their members.           .   

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.