“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.
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.
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?
With the filing of a lawsuit to bar Donald Trump from that states Primary and General ballots we have now given Donals Trump what many, if not all, Presidential Candidates want……A truly historical election. Article III of the 14th Amendment has rarely been invoked and never been tested in the federal courts completely. We now have the chance to see just what, if anything it means in a practical real world way.
I will not be addressing whether what is happening is a good thing politically; I leave that for a later posting. Rather I want to encourage everyone to read up on the 14th Amendment, both its history and legal scholarship. I think you will be both shocked, surprised, and disappointed by what you find. I was but I was also please to note one thing. Since the Civil War the United States has had no significant insurrections , in fact I found only three possible candidates and all three could be and are no more than what happen on January 6th 2021 (excepting the occupation of the Capital). An until now the 14th’s Section 3 has been little thought of and invoked even less. Why this should be makes for a great history paper and I will refrain from do that here.
What is going to be happening, starting now, is a test of just what the 3rd article of the 14th Amendment really means. With the death of the last person to ever fight in the Civil War in 1959 is the 3rd article a “dead letter”? There are good arguments for this. The debate on the 14th Amendment hardly touched on the 3rd article an I have found nothing in the debates about disqualification. (See CREW for details of disqualification)This will be the first time since the 1860’s anyone on the level of a National office is in danger of being disqualified. This is important for both legal and political reasons. With Donald Trump facing this problem rest assured the MAGA-GOP will, somehow, take actions to apply disqualification to the first non-MAGA-GOP to run for President or Vice President. It will happen.
As for the law? I don’t know. I do know that every American needs to watch the coming trials carefully. I mean not just the trials of Donals Trump and his Co-Conspirators but also all of the trials dealing with who is allowed on the ballot(s). Even the most radical judge can be a good judge when they know they are being watch. Watched not only by their peers, nor the scholars of law, but by also by the electorate at large. You don’t have to do much, just let anyone and everyone know you are watching. An unlike the radical right, the common electorate needs no threats, just their eyes and minds.
It may seem strange but all of the liberal factions of the ”left” are, in many a strange way, benefiting from the Tumpian era of politics. Not to say that the Trumpian era did good things, no. What I’m saying is that the Libs can learn a lot from what has happened, is happening, and will continue to happen.
The time period I am calling the Trumpian era does not start back in 2016, it started back in the mid 1960s. What I mean is that the seeds that came to fruit in the Trump years were started to be planted with the formulation of what is called ”The Southern Strategy”. It continued thru the Reagan years and the Gingrich revolution till Trump and todays GQP/MAGA. It started with the equal rights movement that was to deny a fundamental right of all white men. That no mater how lowly you position was in the social/economic world there was someone who you could treat just as bad, if not worse, than you thought you’d been treated. That you, as a white male was still a member of the upper tier of society.
So just what did they do? It was not one thing nor was it a well thought out strategic plan. Rather it was a coming together of a conglomeration of ideas and actions over the years. It started with coming up with methods of weening away White Southerners from the democratic party by embracing any and all opposition to expanding voting rights to non-white people. It then continued with breathing new life into the traditional fear and hatred of those immigrants who came after ”my” ancestors immigrated to the USA. The classic ”We are Good, They are Bad” trope. All the while ranting about it is all the ”Liberal Courts” fault and working behind the scenes to load the courts with persons whose political philosophy matched the most extreme conservative view.
Next came the idea that ”Conservatives” were and are the “VICTIMS”. Just victims of what is never made clear. In fact to make clear just how and of what they are victims is vigorously suppressed. All the while decrying the victim hood of the poor, immigrants, non-white, the women, you get the point. Decrying and putting down anyone who tries to present hard facts/data/evidence of persecution of a group. The cry of ”We are the true victims here, not ‘those’ people.” Until the Trump era this was not easy to do but Donald Trump has shown how to do it. Just cry out that ”I am the Retribution for all the wrongs done by the _______ to you.” No need to say how you were wronged. How you were victimized. Now all you need to do is cry out you are getting ”retribution” and no one can challenge your claim to being the victim.
On a personal note: Have you noticed that often as not the people who cry out how they are the Victim(s) here are the same people who told who ever would listen that this was just the ”Culture of Victimhood” and they should just pull themselves up by the bootstraps just like ”My ancestors did.”?
So just what are the Liberals learning from all this? First, and for most, the use of hard facts with logical/reasonable arguments is not going to work in this debate. At lest when dealing with the hard core GQP. It needs to be aimed at the sizable middle who can and will be open to hearing what is said. We must accept the lamentable fact that reason will have no effect on the GQP. That they are so deeply invested in they ideas of the GQP that to question any of it’s dogma is an anathema. That the liberal have to accept that someone will reject out of hand a reasoned argument is very hard to take. But take it we must and we need to stop trying to make it work. They need to focus on what can and does work. Humor and ridicule, and this will not be easy to do. But it can be done. It is being done. An it must continue to be done.
With the Indictment of Donald J Trump last week and the first of the formal court proceedings (aka reading the charges) we are now entering what is the next phase of our Sheldon Crisis. We are now nearing one of the major crux of this crisis, I hope. In the next year or so we can expect to see one or more things happen, and I am taking this time to list the ones I see right now.
Trump is not convicted.
This can happen in several ways. First and most unlikely is that the Prosecution does an incredibly bad job and/or the Defense does an incredibly good job. As I said, not likely but it has happened in the past.
Next, a still unlikely the defense is able to convince at lest one juror to vote for acquittal . This would end up in a hung jury and most likely lead to a new trial. So the defense needs to get the presiding judge to declare the miss-trial with ’prejudice’.
What I think the defense is trying for is to get the presiding judge to throw out most if not all of the evidence of what Trump is accused of. This is very hard to do and timing will be everything. If at all possible these ruling(s) need to take place so that the prosecution has little or no time to appeal.
Trump is convicted
Now let’s get to the dangerous part. The trial runs its course and Trump is convicted on one or more counts. Now what happens?
Almost assuredly Trump appeals all the way up to the Supreme Court and it has one of several things it can do.
First it could just not hear the case. This could be the best for the Court if the lower court throws out the conviction. But if the conviction is still standing when SCOTUS hears it then the court still has several things it can do. The best for the court would be to put the case on what is sometimes called the ’Merit Docket’ hear all the arguments and then make it’s ruling. Unfortunately this case is the political hot potato of hot potatoes and this court has not shown itself to be willing to take on this kind of case in the ’Merit Docket’ To many people will see just who is a loyal MAGA who isn’t.
SCOTUS could also decide to take the case on what is called the ’Shadow Docket’. This is attractive in that it is done all behind closed doors and without any of the justices putting their name on the ruling. In fact no reasoning needs to be given. SCOTUS could just rule that the case is overturned with prejudice and say nothing else. The one major problem with doing this is that what ever the prestige SCOTUS has with the general public will take a very big hit.
Well my computer is now overheating with running all the Sheldon Equations so I’ll say good by for now.
For the past few months I’ve been hearing a growing alarm over the ”AI Problem”. First my credentials: lI have been a ”Coder/Programer/Software Engine/Software Designer” since 1973. A while I retired in 2013 I’ve kept up a lively interest in the industry. Also I am a great fan of Science Fiction, in fact some of my earliest favorite stores are Dr. A’s Robot novels & short stories. A while I have never directly worked on any Artificial Intelligence projects i have written a few programs that faked being human. It is not as hard to do as the layman thinks.
My suggestion to the current issues with AI is quite simple. Let’s just go back to the legal doctrine on who is responsible when a slave broke the law. Back in Roman times the owner of a slave was held responsible for any and everything a slave did, good or bad. Let’s just do the same thing with all programs, AIish or not. The person, corporate or individual, should be held responsible for anything the Program does. Criminal or Civil.
I know that it will take a lot of effort to work out the details on how the law(s) would work but we have a great deal of legal history to draw from, Roman, Byzantine, Islamic, and Chinese just to name a few. The benefits would be great. First and for most there is someone who can and should be held responsible for the use/misuse of a program. I also know that there can, and should be, objections to this idea but I am convinced this a place to start.
This is not a conspiracy theory. It is, at best a Conspiracy Hypothesis. For sure it is my idea of why the Crisis is happening. So sit back, get comfy and hang-on the ride just might get bumpy.
First I do not think there is a single causal factor for the Default crisis. I think it has many causes, big and small and I’m not going to try give them any any order and I just may leave out a few. So, dear reader, if readers there be, feel free to share with me your ideas.
To start with let’s look at the very bad idea that politics is a Zero Sum game. While politics can be played as a zero sum game doing so means there can be no compromise. There is no possibility of everyone wining or loosing. This goes against everything politics is suppose to be about, ”Compromise” is what it’s all about. Yes, there are some things you can’t compromise on but you need to be very clear in your own mind just what they are and what standing your ground will cost. You always have to assume the other side has their own no-compromise issues too. An you have to be ready for everyone to loose.
As an example of what I’m talking about let’s look at one of the most well known Zero Sum games, Tic-Tac-To. Played correctly neither ”X”s or ”O”s can win, it always ends in a draw (by the way it’s the same in chess). Unfortunately way too often when you try to play a non-Zero Sum game as a Zero Sum game you can end up with all the players loosing. A well known modern example is the doctrine of “Mutually Assured Destruction”. (A wonderful movie explaining this is ”War Games”)
Another idea helping the crisis along is that the other side will blink. This is a fools bet. It is based on the false assumption that the other guy is going to blink and you have nothing to loose. I politics this comes down to believing your people are willing to pay the price of everyone loosing. It is kind-of like playing Chicken by driving your car head on into another car believing that even if you hit you won’t be that bad hurt. In this case we have two sides playing Russian Roulette with fully loaded automatics pointed at their heads.
Finally I think a big reason for the crisis is the hubris of the House GOP Leadership. Particularly the current Speaker of the House. In making the deal(s) to get elected Speaker Rep. McCarthy demonstrated just how badly he wanted to be Speaker and that he was not willing to give it up for any reason. He now has the problem of not being able to control any of the several factions of his party. That he really is not a leader, but just a mouth piece for the current, most powerful faction. That he can not negotiate in good faith because any and every thing he agrees to has to be taken back to his caucus and it only takes five votes to renege on his agreement. That there are rumored to be a sizable number of votes in the GOP house caucus for forcing a default just makes things all the more difficult.
So that is it for now. Do let me know what you all think of these ideas I promise more once my ideas come to geather.
After watching the State of the Union last Tuesday and the reaction of the GOP to what President Biden said about some members of the GOP wanting to end Social Security I started looking into just what he could be referring to. Luckily the news media and the President made it very easy for me to find what I was looking for. In the large ’Pamphlet’ published By Senator Rick Scott in his effort to get GOP candidates elected to the US Senate.
“All federal legislation sunsets in 5 years. If a law is worth keeping, Congress can pass it again“
Such a simple phrase, so fraught with deadly effects. Lets just look at what it says: ”All federal legislation…..” That means every law, ever passed by Congress, from the first congress till today would nolonger be in effect after 5 years. If you don’t think that this means a lot of work, just look at the US Tax code. A conservative estimate is that we currently have 300,000 active statutes at this time. But let’s not forget all the other laws and acts passed by congress. Would this law include all of the 47 enabling acts that added new states to the union? Who would decide? The supreme court? What about all of the acts that established the size of the Supreme Court? Or just those acts that established the Federal Court system?
What about the acts that establish the Army, Navy, Air Force, and Space Force? Are they also sunseted? I don’t know. I don’t think anybody does. So I just ask this….Is it really worth the madness that would ensue just to play a trick move to get ride of two of the most popular laws in the country? An just what does proposing something this fraught with very bad side effects tell us about the the people and Party puting it fourward.