“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.
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.
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.
One of the first things I notice about Justice Alito’s option in Dobbs v Jackson was it was very careful about all of the texts in the Constitution it thought would apply or be affected by the decision. Except one. The IX Amendment (see above). Years ago when I first started to really started to study the Constitution one of my Professors called the IXth the forgotten amendment. We spent quite some time on just why it was forgotten and why it is so important.
Take a moment to look at it carefully. Now think about just what it is saying. It is just one sentence but it says something very important to all of us. In more modern language it says that the enumeration of specific rights, does not mean and should not be taken to mean, that the people do not still retain those rights. What Justice Alito’s ignoring of the Amendment seems to be implying is that the Federal Courts, and the Supreme Court in particular, has no role in protecting these unenumerated rights.
This idea is just one of many issues I have with both the ”Originalist” and/or ”Textualist” doctrines on interpreting the Constitution. I will not go into all of my issues with these two doctrines for they are legion. In stead I will concentrate on just one issue bought to light here. This is the idea that Enumerated Rights take president over unEnumerated rights to the extent that the IX Amendment is meaningless.
Before I start I’d like to point out one fundamental principle I have in reading the Constitution. There is nothing in it just for ”show”. Every word, every phrase, everything is there for a reason and therefor can not be ignored. Too many modern scholars of the Constitution seem to be unaware of this principle. They read the Constitution like “ Elmer Gantry“ read scripture. Quote what supports your view and ignore what contradicts you. We have seen this before in the “Great 2nd Amendment Debate” where the entire first clause is totally ignored. The same thing is being done with the IX Amendment, except it is the entire text being relegated to the trash bin.
What is truly fascinating about Dobbs is that in many many cases it takes head on the many of the clauses they wish to overturn in the reasoning of Roe vs Wade. Justice Alito does this in with the 15th Amendment. He does not with the IX. I think this is because, like himself, Roe vs Wade also ignores the IX. It also could be that he thought that the IX Amendment had no bearing on the case before the Court. (By the way, I accept this is a perfectly acceptable thing to do.) This seems to be stretching things just a might as Dobb’s deals with rights not enumerated in the Constitution (ie Privacy) and the IX Amendment is all about unenumerated rights.
In closing all we can really say is the Dobbs totally ignores the IX Amendment and we don’t know why.
With the news that the Gov. of California is thinking of using the Texas anti-abortion law as a blue print for an anti-assault gun law I’ve heard from several sources the idea that SCOTUS will be faced with the problem of how to up hold one while striking down the other. While it maybe a little difficult anyone who has studied the history of the court knows this will not be the first time SCOTUS has faced this problem. I, for one, see this as a golden opportunity for the ‘Textulests’ and ‘Originalist’ of constitutional legal theory. Both of these philosophies have a fundamental aversion to the concept of “Implied Rights”.
Before we dive deeper let me give you my understanding of “Implied Rights” as it deals with the Constitution. For me there are basically two kinds of “Implied Rights”. In both cases the right is not enumerated, stated explicitly, in the text of the constitution. The first kind of “Implied Right” is of the kind that if the right didn’t exist, then an stated right would be functional meaningless. A good example of this is the “Implied Right” to have a vote counted. The right to vote assumes that once a vote is cast it will be counted, otherwise the casting of the vote has no reason to be. The next “Implied Right” is much more nebulous. This is the right of liberty in our person. This is the right that is at issue with ‘Roe vs. Wade’. The right to liberty is not expressly stated in the constitution.
The closest the Constitution gets to granting the right to Liberty is in the Preamble where is states the Constitution is established to “Secure the Blessings of Liberty.” The inalienable rights are given in the Declaration of Independence, not the Constitution. An while SCOTUS has stated the Declaration is part of our fundamental national law the Constitution takes no note of it. In my view to exclude the Declaration would make a mockery of the Constitution, it is quite possible for some future court to do that. So where does that leave us with the new Texas legal theory?
Just this: the Texas law deals with an “Implied Right” and the proposed California law deals with an enumerated right (the Second Amendment). All SCOTUS needs to do is find some reasoning that says that “Implied Rights” don’t get the same degree of protection, if any, as “Enumerated Rights”. This would be a very interesting slippery slope to go down an I invite you, my dear reader, to think upon all of your ‘Rights” that an just an “Implied Right” and not explicitly stated in the Constitution.