Interesting Times for SCOTUS

Law, Politics,
Formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court. The Justices are posed in front of red velvet drapes and arranged by seniority, with five seated and four standing…Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan. .Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson…Credit: Fred Schilling, Collection of the Supreme Court of the United States.

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.

Why the Colorado 14th Amendment case should be watched by all

General
Constitution and the Flag of the United States
Constitution of the United States

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

  1. Did the Authors know or could have known about the subject at hand?
  2. If yes to one, is there any evidence that the Authors deliberately ignored the subject?
  3. 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.

Head, meet Wall

Law, Politics, Rants,
USA Constitution
U.S. Constitution

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?

Some Observations on the House of Representatives

General, ,
Congress
The House of Representatives in Session.

I thought I’d be a nice guy and give the U.S. House of Representatives a chance to actually get itself in order by electing a new Speaker but it looks like it is not going to happen anytime soon. The problem, as I see it, for the GOP House caucus is both simple and complex. It is simple in that the fundamental issues are easy to identify and define. It is complex because there is no easy way to resolve conflicts between these issues.

The first issue I’m going to identify is the newest and least expected. The major the GOP caucus has in the house is microscopic only three votes over the 218 needed to elect a speaker and only 9 more that the Democrats. This tight a margin makes for difficult going for any political leader but it is especially difficult if the party is badly fractured like the Republicans in the House currently are.

This brings us to the next issue facing the GOP, it is a badly divided party and the Republicans has historically not dealt with competing political factions well. Ever since its founding in the 1850’s the Republican Party has usually had a dominant faction that controls the party. This dominate faction then makes deals with either the minority faction(s) in it’s own caucus or, failing that, the could find the votes they needed south of the Mason/Dixon line in the Democratic Party (note: I call this strategy the Dixiecrat strategy). The few time this strategy was either not used or did not work the Democrats could gain control. The Dixiecrat strategy stopped working once the new “Nixon Southern Strategy was adopted in the late 60’s early 70’s.

Still things could, and did, be made to work in the House but then came the Newt Gingrich Revolution and the concept of constant conflict as the way to get things done in the House. An while this strategy work a little in the house it did not play well with the Senate.

So now we come to that one of the biggest mistakes made, the idea that Politics can be successfully modeled using ‘Zero Sum’ game theory. This is a very seductive idea because it looks so simple. The problem is that you can end up worse off using a game theory that is incorrect than you can using the correct game theory a loose. Also most people who just have a casual understanding of Zero Sum game theory is that it has one deadly trap, there are actually three results possible. You can Win, you can loose and you can end in a draw. Even worse is that given the rules of the game you can end up where ending is a draw is the most likely result. Don’t believe me, talk with a ‘rated’ chess player.

An now to the last issue, seeing your opponent as the embodiment of everything you despise. This can be expressed as anything “D” touches we have to oppose. This is the death knell to getting anything done in a democratic polity where compromise is the name of the game.

So that is where the Republicans in the House find themselves. They have a small (45) subgroup (the Freedom Caucus) that is to the extreme right of the party and they see everything in a win/loose view. Worse yet they see it as if ‘they win’ I have to have lost. Next the majority of the Republicans in the House have very little to trade away to the Democrats and nothing that doesn’t mater much to their local base. So we end up with game after game after game in a draw, but what is worse is that the larger game, that game of running the country is about to be lost.

Next Posting: Thought experiment “What happens if the congress can not function for 6/12/18 months?”

Another Thought Experiment

General
NAZI American Flag
NAZI American Flag

Just for fun, let us try to think about the structure an Authoritarian United States would look like. I’m not talking about how it would come about, nor what life would be like but what the government and formal structure would look like. An yes this is a nerdie Political Science experiment.

First some rules:

  1. No magic, nor any fantastic science can be used. So no ancient evil demons or gods. No mind controlling computers.
  2. Keep the changes as clean and simple as possible. So no writing a completely new constitution. Amendments are ok, but no replacing whole articles with totally new text.
  3. Don’t get rid of the States. Yes you can reduce or remove their power but they have to still exist and function to some degree.
  4. You have to show how it would work. Think of how you would explain our current system to someone who has never heard of the USA.

Now I know a some few of you say this is not possible but I would like to point out that Caesar Augustus did this to the Roman Republic two thousand years ago. So think about what offices need to be changed and how. What changes to the three branches would need to be made? How they work together? Who controls what and when. How would you change things to get the several states to fall in line and do as they are told.

So lets get to it!

A Thought or Two on the 14th Amendment

Law, Philosophy, Politics,
USA Constitution
U.S. Constitution

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.

A fun little thought experiment

Climate Change, Philosophy, , ,
Thomas Paine
Thomas Paine

I would like to share a fun little thing I do to get a perspective on things. I also use it to show why I have such high hopes for the kids of today. So here we go….

First think about the year you were born. In my case that is 1951. Now think about 100 years earlier, again in my case that would be 1851. Now here comes the first hard part, think about how people lived in that year. Then think about how things were 100 years ago, 1923 and how people lived back the. This last part is easier to do because there is an excellent and very readable history “Only Yesterday’ by Fredrick Lewis Allen to help you out. Now just think about just how much things changed in that time. In 1851 the telegraph was brand new. There was no Republican Party. Most Americans lived either on farms or in small market towns, lest than a few thousand people. Slavery was still going strong in the south. Most people depended on walking to get anywhere, you were both luck and well off to be able to ride a mule or a horse and that for a long trip, like 20 miles to town. Finally a dollar a day was very good wages, especially if you were paired in gold coin.

Now let us look at 1923. The telegraph is being changed by the Telephone. Railroads are “The” way to travel long distance over land. Commercial Radio stations were springing up and in two years the live broadcast of a Presidential Inauguration will take place. The start of the age of the automobile and expanse of paved highways between towns. The idea that to become a medical doctor you need to have a college degree before medical school. The list seems to go on and on.

Now look at your life, in my case 1951 to 2023 and look at what you took for granted when you were in grade school or Middle school or High school. For me one easy way is to watch old movies of the 1960’s that I watched. Not just science fiction, spy dramas, crime dramas, even comedies. With Science fiction it can be an especially big giggle when they talk about the distant future like 2001: A Space Odyssey and Solent Green (set in 2022)., By the way I’m still waiting for my self driving flying car. Other movies like “Fantastic Voyage” and “ Satan Bug” can remind you of cutting edge technologies of the 1960s. In any case it will give you a wonderful feel for how we misestimated the changes we will see, both what we thought would happen and things we never saw coming.

Now to the whole point of this experiment. When ever you start getting down about the state of the world. When the “Doom” sayers get to you take a look and all we have accomplished in just your life time and even before. An have faith in the kids to over face what comes, to adapt and to over come.

Thoughts from the GOP “Debate”

Politics,
Trump

I followed, as closely as I could stand which was not much, the first of the GOP debate and I heard nothing to make be think about voting for any Republican next year. Frankly this is quite sad for me. While I am a life long Democrat I have, from time to time, voted for Republicans. In fact my first Representative in the House was a Republican and I voted every time he ran for reelection. I was what was known as a Reagan Republican in the 1980’s

So what did I hear in the Debate that I didn’t like? First the response to the idea of ending Social Security and Medicare. I admit that this is very personal for me as all I have to live on now that I’m retired is Social Security. An before you say it, yes it is my own fault that I’m in this position. Back in 2006 Lin and I decided to start our own business. 2009 was our break-even year and we got hit by the Great Recession. In an effort to save the business we put everything we had into to it. To no effect. I lost everything. But I would still be totally apposed to ending Social Security. As to Medicare/Medicaid just try and get medical insurance if you are over 35 on the open market and have any kind of medical issues, like higher than “normal” blood pressure. Go ahead, I’ll wait.

What got me in the debate was not that a candidate proposed the idea, no. What got me was the enthusiasm the proposal got. The audience loved it. I also noticed the lack of any defense of Social Security and Medicare by any of the other candidates. I heard nothing. Did Fox just ignore any response or was there just none? I don’t know.

The second major take away for me was the idea that Climate Change (Global Warming) is a myth. Once again it is personal, I am a scientist. Yes it is a Social Science but it still is a Science. I still use the scientific method and math. Get over it. The very idea that millions of individuals have colluded to pull a great hoax on the American people for the sole purpose of destroying the ‘Carbon Industry’ (an just what is the ‘Carbon Industry’ anyway?) just blows my mind. That the GOP would give this idea even the time of day worries me. Not because the party leadership believes it but that they are so clinical that the are willing to use it for a few more votes. What else are they willing to do to get and keep power? I don’t want to find out.

In their effort to scare the mass of GOP voters I think the ten candidates last night have accomplished something else. The are scaring the great mass of the Middle voters. Not right nor left but the middle. The very voters you need to win in the general election. Last night I heard nothing to attract that voter. Now we can wait and see.

A change in view and Tactics

Climate Change, Politics, Science, , ,
Weather Control
Coming Soon: Weather Control

A little while ago a friend of mine suggested a new way of talking about the Climate Change Crisis. She recommend I use the phase “You can pay me now, or you can pay me later.” I tried it and it worked. We got away from arguing about if it exists or not and started discussing just how we will pay for either just letting things happen or trying to do something preemptively. I was even able to change the wording. No longer are we trying to reverse the effects of “Global Warming (AKA Climate Change) we were now talking about controlling the Climate aka Weather.

Controlling Weather has be a staple of Science Fiction since forever. It is right up there with sailing under the sea and flying to the Moon. Both of which we now have done and take for granted. One big advantage is we can take off the table how we get other countries to cooperate. We can just assume they will joint in just so they have some say in what kind of weather. This also gets the Climate Change Deniers off of defending their denial, very non-productive, and onto thinking about what we can do that benefits us.

Another thing is we can get them to look at just how much the recovery from ‘Natural’ disasters cost and looking at how much preventive action would have cost. One example is the cost of improving the levy system of the lower Mississippi vs building all new sea ways when the river changes its path it has now away from the Port of New Orleans. The river has tried to do this a couple of time already and preventing it has been both costly and difficult. We even have a great ‘Bad Example’ in the wild fire in Hawaii, recovery costs of over $5 billion or greater are being talked about. What would it cost in recovery cost be for Miami when it is hit head on by a mega Hurricane?

Finally we can point out, with hard examples, that the money we put into the research on Climate Control will, 1) be mostly spent in the USA and 2) even pure research has always pay itself back many times over. A when the research is targeted, like in the space program, the return on investments is even greater. An as an added bonus we can go looking for the hidden examples of where research in one area has given great benefits in totally unrelated areas.

You can pay for it now, or you can pay for it later.

The Coming Republican Era

Politics, Rants, ,

Something we all should think about is just what will happen if the GQP/MAGA win in 2024. I will not go into what some liberals fear, but rather just what the Republican Party and its leadership have promised to deliver upon election to power.

First and foremost remember that unless the coming Republican Convention does as it did in the last election the GQP takes as its platform what ever Donald Trump says it is for. Nothing more Nothing less. The Republicans, as a political party only promises only to do as Trump directs. So forget what Republican Leaders like the Governors of Florida and Texas are doing now. Forget what they are saying in Congress. Pay no attention to what the blogs are saying. None of it maters. All that maters is what Donald Trump does.

So what can we expect? We can’t go by what he says as he really has a hard time delivering on what he promises. Like his wall on the southern border that Mexico would pay for. Or that Covid-19 would be just a memory before the election of 2020. In fact the only promises he does seem to follow thru on is when he promises to get ’even’ with someone. Now those are promises he seems to go out of his way to keep.

So we should be expecting the GQP to enable the next Republican President to take ”full direct control” of the DOJ, DOD, Internal Revenue Service, just to name a few. We should see the Democratic party both directly and indirectly attacked an emasculated to the maximum extent possible. We should see the State election officials also attacked with the aim of bringing them under the control of the GQP. This will includes every ’Purple’ and ’Blue’ state possible.

I would also expect to see as many of the people held responsible by Trump for his Impeachments to be brought up on as many criminal charges as possible. I also expect to see a total house cleaning of ’disloyal’ Republicans (aka RINOs) from the party. Also look for the aggrandizement of anyone Trump believes might be of use to him.

Finally look for a lot of infighting behind the scenes and under the table.