“May you live in interesting times and People in High Places know your name.”
Ancient Chinese Curse
After listening to the Oral arguments before SCOTUS last week and listening to more legal scholars and talking heads than I care to remember I’d like to share my take away from “Trump vs. Anderson”. First off I want to make clear that I feel that this is going to be both a critically and historically important case. A case that will be thought in both history classes and in law classes in times to come. Also I am sure ever Justice on the Court believes this too. This is a ground breaking case and the only questions we have to face is who’s ground gets broken and what happens next.
My first take is I agree with the vast majority of the Scholars and talking heads, SCOTUS is going to over turn the case. I don’t have a clue on just how the will reason this nor what the vote is going to be. An I’m not brave enough to make a guess either. I also feel that no mater how they rule the Justices are in for a long hard few of years ahead. What I’m going to do here is talk about just one question facing them. If they rule such that no state can prevent a person from being on the ballot(s) of that state that does not meet the qualifications for being President or Vice President then just who and when are the requirements going to be inforced?
First question: Can the Congress pass a law on who can be on their ballot(s) (Either Primary or General). How can this law be constitutional when the Constitution give the several States sole rights on how their Presidential Electors are selected? If it is constitutional who actually enforces the Law, which agency of the Federal Government has the job (or who would want it)?
Second question: If the States do have the right to control the selection of their Presidential Electors can the State(s) at the time the electors gather at the appropriate designated place can the State(s) legislature disqualify all votes for the candidate who fails to met the qualifications? If they can, then who do they select as electors? Or do they just not send any electors at all?
Third question: If the several States do select and send electors for a person who does not met the qualifications for President/Vice President and accept their votes does the Congress have the right and/or duty to reject those votes when the votes are counted? Sub question, is the vote only not counted for the person who does not qualify? Would this not lead to the situation where we get the President disqualified and the Vice President who is qualified? Does he/she automation move up to the Presidency ?
Fourth question: If we get to the point where a person who fails to met the qualifications to be President is about to be sworn in what does the Chef Justice do? Does he/she actually administer the oath of Office?
Fifth question: If a person who does not met the qualifications for President is swarm in would he/she not be libel for immediate Impeachment?
See the problem? No matter what SCOTUS has some very interesting times a head and many many people in high places know all their names.
Will wonders never cease? I woke up in time to listen to the live broadcast of the SCOTUS hearing on the Colorado case removing Donald J. Trump from the primary ballot. I got a lot of questions but I’m not going to go into them now as I’m sure most if not all will be both brought up by the “Talking Heads” in the days to come and also addressed by the courts ruling. No, what I’m going to deal with a question that has not even been addressed out loud yet. That question is:
“If the court rules that the several states can not enforce the qualifications to hold office before a person is elected when and who does enforce them?” Let me set up the hypothetical for you here:
A person who will not be 35 at the time of being sworn in, when I who says he/she can not be sworn in? Is it done when the electors of the several states are approved by the state legislatures? Is it done when the elector collage votes are counted by Congress? Or is it when he/she steps up to take their oath of office (and who does this)? See the problem?
Now it is possible for the Court to say that this is the responsibility of the Congress. But what do we do if the Congress does not act. The current House of Representatives does not fill me with confidence. What does congress do if it gets conflicting Elector ballots? If he/she is not allowed to take office, who does? The Vice President? The Speaker of the House? Who?
See the problem, no mater what the Court does we are in for some very hard times, some much much harder than others. Only time and the Court will tell.
I was 17 back in 1968, one of the most important Presidential elections I ever voted in. No I didn’t cheat. My parents told my older brother , Al, and me that they would cast the vote for president we wanted. Papa for Al and Momma for me. This was because both of us were facing the draft and going off to the Vietnam War. I had been aware of presidential elections since 1964 (LBJ vs. Goldwater) but what the parties and candidates stood for really didn’t sink in. 1968 was totally different. For many reasons.
I shan’t go into the politics as you can find way too many books, blogs, podcasts, etc on that era. I’m going to talk about myself, personally. First of I was NOT a flower child nor hippie. I was quite emphatic in my being a radical “Middle of the Bird” (see Rowan & Martin Laugh-In). Also, like now, I have total intolerance of hypocrisy. I came by this both naturally and from the 60’s culture. The easiest and quickest way to get me to reject your idea is to appear to be hypocritical.
For example: If you want to have a “Double Standard” where you get to have or do something you do not want others to have or do I will accept the idea if you will just admit you want a double standard and not say that double standards are bad. The problem I have finally learn is that getting a double standard and saying you don’t like double standards is an application of the double standard. I couldn’t win. I challenge you to find a single ‘hypocrite’ who will admit to hypocrisy.
For all you out there who the 1960’s is just a decade in your history books, the 1960’s was a time where the teenagers of the decade took great joy in calling there elders “Hypocrites” in loud pear-shaped tones. While I think I rarely said this to my parents, I hope I didn’t, I did do it in school, clubs, and shouting at the TV. Please note that changing your mind was all too often taken as hypocrisy back then and I had a long hard road learning to tell the difference.
With time, age and a heart attack I think I’ve changed some. I still hold hypocrisy in great disdain but I hope I do not call it out so self righteously as my 18 year old self did. An if you find some of my ideas odd or dated please just remember where I came from.
With the election year off to a staggering start I have yet to hear much about just who Donald Trump will select as his V.P. This could end up being of critical importance to the GOP and/or the nation as a whole. I say this because if Trump does get elected President who his Veep is could be critical.
I say this because the odds of Trump living another five years is low. His mental state being good is even lower. Trump is 78 this year so it is a coin toss how long he could live. What concerns me more is his mental state. I have now had to deal with several people who have suffered from loss of mental acuity as they aged. Two were some form of dementia while loss of memory and reasoning was another. In all cases they suffered from a degradation of there judgement and reasoning.
Now, sense the Trump/MAGA campaign has seen fit to bring up Pres. Biden’s health, both physical and mental, it is only fair we look at Trumps state. The easiest of these to look at is his mental acuity. We just need to listen to him when he is speaking. NOTE: I recommend that no one use his blogging/texting etc as there is no way to be sure this has not been either edited of ghost written. I’d even go so far as to only go by what was live in front of a group of people. Interviews can also be edited.
I leave it up to you, my dear reader to draw your own conclusions. But think on this; Trump gets returned to the Presidency in this election and then suffers either a physical or mental breakdown. Say like Pres. Wilson did. Something so bad that even if he doesn’t die he is severely disabled and can not do his job as President. If and until his cabinet and his Veep invoke the 25th Amendment the the person or persons who control access to the President will be controlling the government.
Now let us consider this scenario as stated above. Given the past performance of the MAGA/GOP leadership and just how much importance Trump places on personal loyalty it seems likely that we can expect to see one hell of a knock-down drag out of a fight over two things. First who controls the access to the Presidential sickroom. Second getting a majority of the cabinet to certify that Trump is not physically and/or mentally able to execute the office of the President. An all the while this is going on the executive branch will be lock up and the congress will most likely be too. Now add in all of the cyberspace rumors that will be flying.
Now let’s add in that the Veep and the several and several of the cabinet members have strong connections with MAGA and any or all of them are willing to do what it takes to be in control. Or let’s say the Veep selected for just ‘Hollywood’ reasons and doesn’t have much strength at all. Or let’s say the Sec of Defense is willing to call out the “Army” ? What if the Army leadership doesn’t want to get involved? Or it splits?
As many of you already know I don’t believe in a HELL as is common in Christo-Judaic theology. I shan’t go into why right now, just go along with me that I just believe in a Heaven. Sometime ago I did come up with why what could look like a HELL but isn’t could exist and I want to share it with you now.
First some Postulates:
God doe not make any errors, ever.
God has already forgiven every “sin” you have ever committed
All you have to do is accept your failings, admit them to God and bingo your in what you think of as Heaven.
There was never a “War in Heaven” and there are no “Fallen Angels”.
Some people can not accept their failings and feel that anyone who has such failings deserve HELL
Some peoples idea of heaven is getting to punish “bad” people.
So stay with me on this.
When people die and stand in judgment before God they just can not forgive themselves, be truly repentant, and therefore feel they must be condemned to HELL for punishment. They have been told that they are forgiven and be truly repentant and all is good, they don’t believe or accept it. God has all the time in the universe and then some so he gives them what they expect and will welcome them once they are ready. (Think about a four year old beating his head to punish his parent(s). They will wait and watch to be sure they do no great harm knowing full well they will get tired sooner or later.)
Now think of those people who think that the most heavenly thing is to be able to punish all those people who were “bad people”, sinners if you will. They also get sent to a “Heaven” that looks like HELL. They know they are in a HELL, but it seems like heaven to them because they get totally punish all the “bad people”. They are both Happy and Miserable at the same time. Happy because they are getting to punish everyone the wanted to wreck revenge upon in life, and miserable because they have to be in HELL to do it. This is where all the demons of the classic mythology of Christianity come from. An in a way they are the “Fallen Ones”, they just haven’t made it to being angles yet.
I have taken this long to write about the “Bad” polling numbers of the Biden 2024 campaign just to be sure it is not my fundamental “contrarian” nature exerting itself. I am now reasonably sure it isn’t.
To start things off, to all those out there who are sure of the inevitable victory of Donald J Trump in the November election I would just like to remind you of 2016’s election and the expected ending of President Hillary Clinton’s second term. No one who was not working in the 2016 presidential elections was more surprised and aghast than me that night when Hillary gave her concession speech. The numbers thru almost all of the campaign should Hillary winning hands down. Trump was a joke! There just was no way he could win. But he did. And now, in 2024 we are living thru all that means.
For me it meant, among many many other things, taking a hard hard look at just what and how political polling is taken, analyzed, and reported in the early 21st century. After eight years I’m still in a quandary and still working out just what is going on. The one thing I’m reasonable sure of is that it is not telling us what we think it is telling us and we have a lot of work ahead of us.
So, just why am I saying “Bad Numbers” are good. It is quite simple. Motivation of the electorate. It has been a long standing principle (over 50 years now) that high voter turnout helps the “Liberal” aka Democratic candidate(s). Back in 2016 I was quite worried that the independent and/or moderate voter turn out in swing states should be low, and they were. Very low. This has been shown in Political Science elections studies to be greatly influenced by the idea that Hillary was a shoe-in. That their vote wasn’t needed. Etc. They were wrong.
In 2020 this same electorate was motivated to get out and vote. Again, studies have demonstrated the validity of this, even when actual voter turn out was expected to be low do to the pandemic a respectable number of the independent voter was quite noticeable and is often given credit for Trump’s defeat.
The 2024 election is promising to be anything but nice. Anything but a sure thing. Not for Pers. Biden and not for Donald Trump (no mater what the MAGA machine says). A bad numbers along with the new campaign being started by the Liberals and Democrats it should make the independents and casual Demographic voters realize that there vote is vital. They will get out and vote.
That is what I think, now I get to wait and see if I’m right.
As I write it is 2 January 2024. In the past year I’ve been asked why I’m optimistic about the future. An while the answer is not particularly complex I have found it hard to explain to others. After much thought I’ve come to understand it comes down to two things. I know the history of what we thought the future will be like and I know the history of doom I have personally lived thru.
Let’s start with the History of the future and by that I mean what did we think the future would be like back in the day. The two pictures above show to distinct images of the future. One from around 1920 and one from 1973. The top one is wildly optimistic and the other is wildly pessimistic. Both are quite inaccurate in their vision. I can go on and on with examples and I invite the reader to try looking for their own for examples. They are surprisingly easy to find.
My second reason for being optimistic is I have personally lives thru three “we are DOOMED” events. Back when I was just a boy (1950s) it was the “Atomic Bomb”. Quite a few of the SF movies of the era delt with both the “Atomic War” and or it’s aftermath. Some, like “On the Beach” were very well done. Others like “Panic in the Year Zero” not very good at all. Most were made to be “B” reel movies. Like the movies, the written SF of the time that dealt with “Atomic War” tended to be only fair to poor and were mostly pulp fiction. They all had a few things in common. First the “Atomic War” was inevitable. Next nobody wanted it and last “It just Happened”. An finally it almost always ended up where everything was “Bad”, with wildly varying degrees of ‘Bad’. As of this writing the “Atomic War” has yet to happen.
The next, second, “we are DOOMED” even started in the 1960’s, over population and is in the second of my images above. I selected “Soylent Green” because it is set in the ‘far distant future of 2022’. None of what it predicted has come to pass. Although we do seem to be working our way to the ‘permanent heat wave’ of the story. There have not been as many movies/stories about the “over population crisis” as the “Atomic Bomb crisis” but it was not as “flashy” as an atomic explosion.
The third and last event was the short lived “Ozone Layer”. This “Dooms Day” event could be easily missed if you blinked hard as it was going by. Needless to say the Ozone Lay is still with us.
We are now in a new “We are Doomed” crisis with “Climate Change (AKA Global warming). I don’t know how we are going to solve this one, thankfully it is not my job or responsibility. An that brings me to why I’m optimistic. It is simple, I have faith that the up and coming generations will find solutions to their problems just like mine found solutions to its “crisis” events. I feel this way because they are just like my generation it what is important. They don’t know what is impossible. They do not accept that there are “Insolvable Problems” and they, like us, are ready, willing an able to tackle what comes their way.
Now don’t ask me what the solutions they will find will be or look like, I don’t have a clue. But I do know it will most likely not look like, if even be, what we can imagine today. That is why I have the first picture. To show how right and wrong our current visions are. We have the video phone, and no, they don’t look or work like anything imagined back then. But it will happen and it will be wondrous.
The coming months are going to be very interesting for us court watchers. SCOTUS has at least two and possibly more critical cases coming before it. Some of them are also time critical. Some will allow the court to demonstrate that they really do believe in the judicial/constitutional philosophy thus exposed in recent and controversial decisions.
On the last point, the Colorado case (Anderson v. Griswold) removing Trump from the primary ballot seems to be the most likely case in point. In several recent decisions the court has used both the “Originalist” and “Textualist” doctrines to justify their rulings. The “Textualist” doctrine gives the court the best course to rule against Trump and the “Originalist” gives them two ways to rule one for Trump and one against.
Now let me state right here I do not expect SCOTUS to use any of these paths. I fully expect the court to find some way to totally dodge the issue, most likely using some arcane procedural reasoning. This court all too often has shown itself to have the backbone of a slug. That said let’s dive into the issues as I see them.
The “Textualist” ruling deals almost exclusively with the 14th Amendment and its 3rd Section, probably one of the most overlooked clauses of the Constitution. The only real issue is whether the President is an “Officer” of the United States. Given both the customs of the time and the debate on the Amendment it is clear that the President is an “Officer” of the United States. Let us totally bypass the illogic of saying that the only two offices that “Insurrectionist” could hold are the two highest offices in the nation. We are, after all talking about the “Radical” Republicans of the post Civil War and given the detailed list of the offices it is not reasonable to hold that the offices of President and Vice President are excluded.
This now lead us into one of the more interesting arguments “Originalist” reading can give us. Does the Amendment apply to all insurrectionists, past, present, and/or future? It can be argued that the “Insurrection” being referred to by the Amendment was the Civil War and it only applies to that one “Insurrection”. If that is the case then section 3 is a dead letter as the last surviving vet of the war died over 50 years ago. Unfortunately this kind of “Originalist” reading of the Constitution leads down a very twisty road as how do we deal with the following.
Given the above interpretation of how “Originalist” doctrine is would be applied, the 1st Amendment protection of free speech can only apply to the spoken or printed word. So it would not apply to Radio/TV/Movies as these Media did not exist nor even imaged when the amendment was written. The same for the Second Amendment, it could only apply to those kind of “Arms” that existed at the time of writing. To be fair we can say it would apply to modern ships and cannons but not to aircraft or spacecraft. I can see arguments both ways for submarines.
I shall leave you with just this point, these are just two of the problems facing SCOTUS using the “Originalist” doctrine in one case currently before it. The are several more now before it and I’m sure more to come in the near future. So keep your ears open and your head down it is going to get very very interesting.
There has been a great deal of talk about the several cases trying to remover and/or keep Donald J. Trump’s name off of the Ballot next year. Most of the talk has been about Trump being kept out of the elect, to prevent him from being elected President once again. A while this is very important it may not be the most significant issues to be decided in these cases. I would like to place just a few of the “lesser” issues that I have been shown by the “legal eagles” out there. They are not given in any particular order. Just as they come to mind as I write this. Also as the Colorado case is the first in the Que I will just be talking about it.
Above I am sharing the Section (AKA “Clause”) that is what is in question. Next please remember that what is really going to be argued about is both a question of fact and questions of definition or meaning. With just a dash of intent. This last point I’m not going to address here. What we are going to be looking at is just what this Am
To me one of the most interesting questions brought up is “Is the President an Officer of the United States”? A before you go, “Of course he/she is.” The Constitution does not explicitly say the President and/or the Vice President are “Officers of the United States”. Just take a moment to look at the arguments for why he/she may not be. There are many arguments to be made and the one being used by many is the ‘Textualism Doctrine’ view. While I have many disagreements with this Doctrine here my problem is with the idea that if something is not explicitly in the Constitution then the federal government has no authority over it. This is often know as the “Constitution Stands Silent” principle. And it is very tricky to use.
First there is the problem that in the modern world there are a great many thing that were not even dreamed of when the Constitution and/or its Amendments were first written. Just to name three we have “railroads”, “Air travel”, and “electrical communications (radio, telegraph, internet, etc”. None of these common everyday things in the modern world existed when Just take a moment to look at the arguments for why he/she may not be. Railroads were not around when the constitution and the first 10 amendments were adopted. Maned flight was around when a majority of the Amendments were adopted. An the internet was just a wild dream in some SF writers minds in 1971when the latest Amendment was adopted. Does this mean that the Federal government has no power over them? Do we leave it all up to the States? What about when they cross State borders?
An those are just the start of the questions that need to be addressed. That is why I take the position that looking at the actual text is just a starting point and why the “Stands Silent” doctrine needs careful handing. What needs to be asked is “Why does the Constitution stand silent?” Three things need to be addressed
Did the Authors know or could have known about the subject at hand?
If yes to one, is there any evidence that the Authors deliberately ignored the subject?
Is there any reason to think that the subject had already adequately covered in the text?
These are just three of the questions that need to be addressed, I am sure you can think of more.
Finally I’d like to point out that the Authors of the Constitution and it’s Amendments were are all well educated, well read, thoughtful people. You can take it for granted that they didn’t do something just for giggles, even when we see things now that make no sense. (I’m thinking of the 3/4ths clause). With just a little digging you can usually find good reason for why it was done. (Agian the 3/4ths clause). So when you see an interpretation of the Constitution that makes no sense, that is a good indicator of bad reasoning. This is my position on saying that the President and Vice President are Officers of the United States. To say everyone in the Executive Branch, except the President and Vice President are “Officers of the United States”, on the face of it, makes little to know sense.
Next time my take on the Originalist take of the question.
Once more I am moved to bang my head against the wall and talk about gun violence. I wish to talk about why someone/anyone’s 2nd amendment right to own any gun they wish trumps all other rights we have. An surprise it is logical but not reasonable.
The right to own any kind of gun is superior to all other rights because of the basic postulate the person starts with. Most of the time this postulate will not be acknowledged but it is there none the less. It is simply stated as follows “I get to do what I want to do because I want to do it.”
This translates into the debates on rights simple as “My rights are superior to everyone else’s rights.” Therefore your right to life must give way to my right to own any gun I want. This works if and only if a personal rights have either a Hierarchy or are unequal. Many people who have not studied the history and evolution of thought on constitutional rights fall into. No right is superior or takes precedence over any other right. They are all equal. The problem is when they come in to conflict. Or when someone uses a right to do wrong. Usually these conflicts are easy to identify when they happen. Unfortunately the misuse of guns it is not.
The other problem we have to deal with is what do we do when a right is misused? Usually the law try’s to make whole, again, when the right is miss used. Like damages for libel/slander when the right of free speech is misused. Again, unfortunately, when a gun is misused it is often impossible to make whole the victim of the miss use. How do you restore life to the dead, or an arm, leg, and or eye?
So I ask you, what should we do? The misuse of the 2nd Amendment right to keep and bear arms all to often has irreparable effects and the victim can not be made whole no mater what we do?