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Author: Philip Drucker, Constitutional Law Professor & Staff Writer, Los Angeles Free Press (page 4 of 9)

Today’s Rant for 09-10-19: “Why not now?” – Kimberly Teehee (2019) Well, for Starters…

On December 29, 1835, the Treaty of New Echota (TNE), the Echota is the capital city of the Cherokee Nation, new and old, was agreed to by the United States government as a “minority party” that at least superficially passed muster (at least with the US) as a valid, binding representative of the Cherokee Nation.

https://americanindian.si.edu › static › nationtonation › pdf

On September 4, 2019 Kimberly Teehee, Native American activist, advocate and member of the Cherokee Nation became the Nation’s first official US Congress delegate fulfilling one of the promises of the TNE yet previously left vacant for nearly 200 years. Delegate Teehee will not have an actual vote. Her principal roles will be as an observer and adviser. Of course, appointing a Native American to Congress was not the main purpose of the TNE. It was, as it turns out, to facilitate the forcible removal of the Cherokee tribe from their native lands in what was, in 1835, the relatively new state of Georgia, to an area far west, to the territory that would one day be known as Oklahoma.

You see, gold was discovered in Georgia. (Yes, long before the California Gold Rush was.  I guess it was the ‘not quite so great Georgia Gold Rush’.) This prompted the good citizens of the USA to demand the enforcement of their “state’s rights” as the basis of removing that which stood between them and the promise of El Dorado. Namely, the Cherokee Nation.

When the idea of relocation was first brought to the attention of our then Sixth President, John Quincy Adams, a supporter of native rights, he was initially reluctant to move forward. However, subsequent threats of doom, death and destruction moved Adams to begin negotiations with the Tribal Leaders, Cherokee Chief John Ross, to be precise. Not unexpectedly, Ross was cool to the idea.

All of this changed when, in 1829, Andrew Jackson became our seventh President. Jackson, a noted racist and overall psychopath (meaning he did his own killing, often in broad daylight), would have none of these meandering negotiations. So, without Ross, and with a minority group called the “Treaty Party” (you can’t make this stuff up) headed by a minor tribal figure by the name of Major Ridge, who not surprisingly claimed to speak for far more than the actual fraction of the Cherokee Nation his party, in fact, represented. In 1830 Jackson signed the Indian Removal Act into law conveniently allowing him to relocate the Cherokee west, by force, if necessary.


Eventually, the TNE was worked out between the Federal Government and the sort of but not really Cherokee Nation for their ancestral land that somehow the settlers of Georgia now claimed all rights into, of and about and therefore, non-inclusive, of course. In return of $5 million in compensation, the Cherokee agreed to move west of the Mississippi ceding their previously owned land within the Georgia borders. They were given a two-year grace period to move voluntarily. Only approximately 2,000 Cherokee left. When time ran out, the roughly 16,000 Cherokee remaining were forced off their land by 7,000 troops. The Cherokee were not allowed to take any of their belongings. Many did not have shoes. Most did not have but minimal clothing.

The forced 1000-mile relocation (please note that the power of relocating the population now resides within the emergency powers of FEMA) would begin in 1838 and would continue through the winter. The US government knew this. They went through with it anyway. In the end, the Trail of Tears took the lives of 4,000 people most of whom died of cold, hunger and disease. Some still call it a relocation program. Still others, a carefully planned and executed act of genocide. About time they got that Congressional representation without a vote, don’t you think?

To see what the Cherokee Nation thinks, please visit the Museum of the Cherokee Indian @





Today’s Rant for 09-03-19: Der Strum & The Fuhrer Circa 2019

I start with a simple reality. Trump is a predator. He’s not an alpha male. He’s not a man’s man. He is a sort of high functioning sociopath without empathy. He’s not “transactional,” unless you consider a “transaction” a one-way street to the benefit of whatever party lies, cheats, misrepresents and steals their way to the “best deal.” I myself would call such behavior fraudulent conduct but then again, I’d like to think I possess a conscience and I do know when a rock bounces off my head I feel pain.

Today, it is not pain I feel. I am physically alarmed and sickened by recent actions by this administration in the name of “immigration.” Let me emphatically state, America does not have anything that could possibly pass for even the semblance of a national immigration, asylum or naturalization policy in place. What we do have is a racist at its core and inhumane proto-pogrom for spreading fear, hatred and now death. Make no mistake, as with all good predators, Wicked Uncle Trump is grooming us, conditioning us, the American public, to accept that which is foreign and unnatural to the American way of life. Remember when Trump mocked a disabled reporter?  

This beast of prey is cunning. Like offering candy to kids, Trump seeks to facilitate his actual goals with paltry platitudes. In this instance, the promise of a safe, secure and homogeneous America. The way it “used to be.” Back then, when we were great. When we were “on top.” You know, back to our, as in us, not them, isolated and insulated superior “culture.” When we knew how to burn a cross or two if needed. When we were bigots and for the most part proud of it.

With Stephen Miller, his mini-me racist self-loathing demented little puerile and treif golem facilitating his master plan behind the scene and pulling the strings, they are at least clever enough to hide their ulterior motives under a veneer.  One that barely disguises (so his supporters won’t miss it) a clearly intolerant and ignorant veil of supposed sovereignty and the protection of our borders.

Are you starting to feel a little sick? They tried to scare us with unarmed men, women and children in “caravans.” They called them invaders. When that didn’t work and Trump got hit with a cleansing blue wave, he started using terms like rapists, gang members, and then infestation. Like rats. Sound familiar? It should. Do you feel that in the pit of your stomach? You should. You are being groomed to accept the ultimate solution.

Like all predators and their master plans, they start by attacking the weakest and most vulnerable amongst us. Threatening the sick and infirmed, those with cancer and other deadly diseases with deportation (and certain death) fits the bill. Ask yourself what does this have to do with domestic tranquility or protection from foreign intervention? Nothing. But if we allow this atrocity to happen, what’s next? If we accept that some lives are, in the natural order of things, worth less than others, of little consequence, and ultimately, utterly disposable, not what, but who is next? We are being groomed to accept the unacceptable.

The Nazis were systematic in their approach to genocide. They were blind to cruelty. They started with those least capable of defending themselves. When they “got away” with it, they moved to the next vulnerable group, then the next. Ranking people according to their “usefulness” is classic Nazi 101. Those who were “less than perfect” aka born with disabilities were at the top of the list for extermination. Now do you remember that reporter?


If you are thinking it’s one thing to think it, another to do it, ask yourselves, but don’t look too far from the headlines for who are the actual people who will carry out these death sentences in the name of “immigration”? Will they claim they were just “following orders”? Sound familiar? It should.


Humiliation will lead to degradation. Degradation will lead to categorization. Categorization will lead to discrimination. Discrimination will lead to relocation. Relocation will lead to…it’s already happening.


We cannot let this continue. We can’t.


Note: Today’s Rant is a combination and extension of three earlier tweets made by Professor Drucker via Twitter @DruckerPhilip. You can follow him on social media at

www.instagram.com/philip_Drucker (mostly graphics)


Would you like to know more? You can also get your fill of Phil at his website, DruckerReport.com featuring essays in his personal blog 

On 08-27-19 Today’s Rant is: 25th For The 45th Or Fight!

There has been a great deal of discussion lately regarding the 25th Amendment. In an era where a sitting president in public declared himself to be the “King of the Jews” and the “Second coming of G-d” I can’t say such talk is completely unwarranted or unexpected. Let’s do what we do here, break it down and see if we can make an educated guess as to the purpose of the 25th Amendment and its applicability to our present president and situation.

XXV is a somewhat unique amendment in that it, for the most part, is an amendment added to the Constitution for procedural purposes, clarifying and adding to the rather staid issue of presidential succession as contained in Article II, Section 1, Clause 6 of the Constitution reading in part;

“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President …”

FULL TEXT: https://www.congress.gov/constitution-annotated/

Seems simple enough, but as we know from discussions here, the Constitution was purposely written in a “vague” manner that not only encourages interpretation but, as a practical matter, demands it. Our latest mission impossible, should we decided to accept it, is to find the Constitutional meaning for the word “Inability”. Let’s break it down.

The Amendment is fairly new. It was written in response to the Kennedy assassination and the status of then VP LBJ as successor to the presidency. The main inquiry was, did LBJ assume the duties and obligations of the presidency, or was he actually president? Vive le Roi! Long live the Roi! With that in mind, moving on. 

The 25th Amendment is written in four sections. Section 1 involves presidential succession and the unresolved status of the vice president in cases involving Death, Resignation or Inability of the president. Short version, the VP doesn’t “assume” the powers and privileges of the presidency, s/he becomes the actual president. Section 2 involves appointing a new VP (the President does it). Section 3 addresses temporary disabilities (perhaps surgery) and written declarations allowing the VP to assume the duties and obligations of the presidency  and Section 4 that offers guidance regarding a situation where the president, for physical or mental reasons, may, or may not be able to continue as an acting president. Section 4 is admittedly a bit more on the gray side than sections 1-3, but the real question and point of contention seems to be what constitutes an “Inability” when by all reasonable standards, the president is at least still alive and conscious or to put it another way, capable of refusing to leave office? Like here. Like now.

There is no real precedent as Section 4 has never been invoked. Thought about, most recently during Reagan’s second term in office, but never acted on. It would also be fair to say there is no past indication that XXV is an alternative to the impeachment process. But, and I believe this is key, for even more than the definition of inability, the decision to remove under the 25th A for physical and mental impairments was left to politicians. And  that was even clarified by our 34th President;

…the “determination of Presidential disability is really a political question.” –Dwight D. Eisenhower

To invoke the 25th Amendment involves two branches of government, the executive and the legislative. Currently, “High Officials” in the form of cabinet members must first vote by majority to invoke. (Or, I might add, to some other body as Congress may delegate.) Then the invocation must be approved by 2/3rds of both chambers of Congress. The Supreme Court being left out on purpose due to the political question doctrine (the Supremes cannot involve themselves in a strictly political battle between the President and Congress).

The chief author and advocate of the 25th Amendment was Senator Birch Bayh, a famous trivia question answer in constitutional circles for being the only person other than the Original Framers responsible for authoring more than one Amendment.  (He also wrote and passed the 26th lowering the voting age from 21 to 18 years of age.) As a passing foot-note he was also an advocate for the ERA Amendment and for an amendment changing the election for president to the popular vote.

In final analysis, I blame Birch for our current constitutional confusion. Why didn’t he leave the determination of physical and mental “Inability” to medical experts? Doctors, psychiatrists and physicians? Those involved in medicine and healing and who might be able to make an actual determination of fitness and hence the word Inability? Politicians judging the physical and mental impairment of another? (suppression of laughter) Good luck with that.

On 08-20-19 Today’s Rant is: Dear George, I Hate to do This by Letter but We’ve Been Growing Apart for a Long Time Now…

One of the questions I am often asked about colonial America involves the motives behind the American colonists’ desire to throw off the yoke of King George and form their own independent country free from the shackles of British rule. The most common answer is the colonists felt they were paying too much in taxes to the British. This is not true. In fact, considering the amount of protection provided by the English army to the colonists their taxes were of reasonable value and amount compared to the average Londoner who paid more in actual revenue to the King’s coffers. So why did the colonists revolt?

The answer is archived in the Library of Congress in a historical document, The Fairfax County Resolves (the ”Resolves”), which strangely, is an almost forgotten piece of American history.


I have never been in a classroom (other than my own) or a seminar that mentioned the document. This is a bit surprising if for no other reason than the Resolves are attributed to the heavyweights George Mason and Washington as being the primary drafters. But I know about it and now so do you. I think you will find it more interesting than you may have first imagined. For purposes of constitutional significance and analysis, the Resolves are broken into 24 separate resolutions with the overall effect being a love letter of colonial grievances sent directly to King George. Enticingly, it starts with a blatant threat of possible future violence against the Crown.

“1. Resolved that this Colony and Dominion of Virginia can not be considered as a conquered Country; and if it was, that the present Inhabitants are the Descendants not of the Conquered, but of the Conquerors.”


The first point of contention addressed is England’s claim of supreme authority over the American colonies. In their opening salvo, the Georges are reminding the Crown and British Parliament that as Englishmen the Colonists have the same natural rights as any person born of English blood and living on English soil, these rights later identified in the US Constitution. The colonists petitioned for their right of adequate, responsive and just representation as was their rights as freeborn Englishmen.

This was during the time directly after the Boston Tea Party, an interesting act of colonial terrorism for which the Resolves tell us the colonists were willing to pay damages for. But what they weren’t willing to do was be subjected to the Coercive Act (aka the Intolerable Act) – a series of laws adopted for the main purpose of punishing Massachusetts by means of economic coercion. The laws were harsh and the colonists righty surmised they were a bit too much on the tyrannical side to be ignored. It was this type of economic punishment and additional taxation without representation in Parliament that the colonists objected to, as clearly stated in the Resolves.

Next, the Resolves indicates their desire to remain members of the British Commonwealth, but will not suffer the indignities of tyranny and become for all intents and purposes the slaves of their British “masters.” In between hints of embargoes and trade wars, the Resolves identifies and praises the efforts of the colonists as they begin to work together in an ever more coordinated effort to protect their rights and liberties as freemen.

So, what we have here is the ground-work for freedom, autonomy from the Crown, the protection of rights, constitutional and otherwise, a plea for economic security and taxation with representation. Everything that America would someday become.

Lastly, Resolution 17 is quite illuminative as to the Founding Fathers’ or, at least, George Mason and Washington’s position on slavery.

“17. Resolved that it is the Opinion of this Meeting, that during our present Difficulties and Distress, no Slaves ought to be imported into any of the British Colonies on this Continent; and we take this Opportunity of declaring our most earnest Wishes to see an entire Stop for ever put to such a wicked cruel and unnatural Trade.”

This was 1774, and although this sentiment does not release the early Americans from liability for their inhuman continuation of slavery until after the Civil War, it does indicate a desire for the ending of the practice as a necessity to what would become the American way of life. It just took a lot longer, and a bloody war to do it. But we did eventually abolish slavery. For after all, we are the sons and the daughters of the conquerors and we do those types of things, don’t we? Yes, we do.

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