Constitutional Law Everyone Thinks They Know: That Fiery Theater

So, everyone thinks they know a bit of constitutional law. And in many cases they actually do. How many senators does your USA state get? Who is the Head of State of Canada? These are questions that a great many people can answer correctly. But as soon as the answer gets slightly more complicated, we reach a weird zone where people aren’t able to admit we are in “I have no idea” territory yet, despite the fact that they clearly have no idea what’s going on.

Case in point: Can you or can you not shout, “Fire!” in a crowded theater? Spoiler alert: YES!

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Dishonest or Incompetent?

I’ll make clear again from the outset that I believe Dr. Blasey Ford’s allegation of an attempted sexual assault by Judge Brett Kavanaugh. I further believe that this is entirely sufficient to deny him confirmation to SCOTUS.

That said, I think that the more effective tactic to take in the media if one wants to get the sexist Republican Party senators to vote against his confirmation is not to stress Dr. Blasey Ford’s testimony more than it has already been stressed. No, it should continue to be covered at similar levels to now, but what needs to be ramped up isn’t that. It’s the argument that Kavanaugh’s testimony is by itself also sufficient reason to deny his confirmation. The Intercept (a publication for which my respect declined in proportion with the decline in my respect for Glenn Greenwald, but which nevertheless does publish some – perhaps many – good things) has taken a similar tack. In a recent piece, Intercept authors Briahna Gray and Camille Baker attempted to demonstrate to non-lawyers and non-law students just how damaging Kavanaugh’s testimony on its own ought to be:

KAVANAUGH’S APPARENT WILLINGNESS to perjure himself over accusations of underage drinking or sexual innuendo — which, alone, don’t necessarily bear on his suitability for the bench — is troubling both because of what it implies about his integrity, and because of what it suggests about his reasoning as an adjudicator.

How should we judge someone who, during his testimony, repeatedly misrepresented facts and dissembled when pressed for detail? Should we understand these moments as lies, or as misinterpretations rooted in substandard analytical rigor? And given the importance of the position at hand, which is worse?

Note that here, if you’re not certain since they weren’t explicit, they’re trying to say that the excuse of misunderstanding a question does not save Kavanaugh. If he can’t parse the meaning of the questions as asked because of his own filters, then he won’t be able to parse other questions or statements that are necessary to resolve the questions at issue in cases that come before SCOTUS. Back to the Intercept:

Some of this may seem like parsing hairs, but the law, in large part, is parsing hairs. Easy questions don’t make it to the Supreme Court. Slam dunk cases settle out. Outside of constitutional issues, the Supreme Court only agrees to hear cases that are so subject to interpretation, they’ve been inconsistently decided between states or federal circuits. Analytical precision, therefore, is a big part of the job.

That being the case, it was concerning to hear a federal judge clamor for “due process” as he sidestepped an opportunity to call witnesses, hear evidence, or have his name cleared by a federal investigation. How should we view a federal judge who seems not to understand, or who for political reasons ignores, that he is not, in fact, on trial, but at a job interview? Who, either due to a lack of understanding or a surfeit of political ambition, emotes as though the stakes were that of a criminal proceeding where the high burden of proof would militate in his favor?

“DUE PROCESS” MEANS fair treatment under the law — that an accused person has notice of the proceedings being brought against them and an opportunity to be heard before the government takes away their life, liberty, or property. The fundamental goal of due process is to prevent the state from depriving people of their most precious freedoms. But Kavanaugh isn’t threatened with any of those deprivations. He’s not facing jail time, a fine, or any confiscation of personal goods. The stakes are these: whether he will go from sitting on the bench of the second most prestigious court in the land, to the first.

What matters, then, is whether Kavanaugh is of sufficiently fit character to fairly and ethically interpret the law. Thursday’s hearing, perhaps as much as the allegations against him, has thrown that into serious doubt.

Aside from the terrible phrase “parsing hairs”, Gray and Baker are dead on here. I expect the Republicans to ramble on about how bitches dems be lyin, and I think that they’ve frankly committed themselves to the fallout of their overt sexism and their overt stand against the idea that committing sexual assault might make one less fit for a seat on SCOTUS. However, I don’t think they’ve yet taken a stand to the effect that dishonesty under oath should not make one less fit for a seat on SCOTUS, nor do I think they’ve even thought about the ramifications of attempting to deploy the excuse of Kavanaugh misunderstanding questions.

Hammer your senators on the import of Blasey Ford’s testimony. However, if you’re calling your senators, I think you should also hammer them on these important issues of Kavanaugh’s dishonesty and his inability to parse important questions when the stakes are high.


[h/t to Mano for bringing the Intercept piece to my attention. I don’t normally read the website except when another outlet links to it and would never have found it without the writing of my FtB colleague.]

 

 

 

First Amendment Issues are NOT (necessarily) Free Speech Issues

All freaky, kinky, queer women are human beings.

Not all human beings are freaky, kinky, queer women (more’s the pity).

So how is that related to the first amendment? The First Amendment (FA) protects more than just speech. It protects a total of 5 separate rights. Let’s take a look at the full text and then break it down:

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Fascist Policing: Pinellas County Edition

As long as I’ve been doing stories on fascist policing, I’ve been clear that one vital element of fascist policing is that the people who do the policing are unaccountable to the people they police. Despite the occasional officer arrested for sex abuse of a relative or stealing and reselling shipments of drugs, law enforcement officers in the US are almost entirely unaccountable for the things that they do in the process of enforcing the law, even when those actions are patently illegal.

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The Incivility Spreads

As you probably know, the staff of Maryland-based Capital Gazette were victims of a shooting attack, not to say mass murder or even terrorism (we much prefer “targeted attack”). CNN’s Anderson Cooper had two of the surviving victims on his show 360, both Gazette journalists, one named Selene San Felice the other Phil Davis. Both made important statements, but in response to the myriad thoughts and prayers sent in the direction of her and her surviving colleagues, the man and the woman who had just witnessed someone killed before their eyes had some pretty uncivil things to say:

Selene San Felice: I’ve heard that President Trump sends his prayers. … We need more than prayers. I appreciate the prayers. I was praying the entire time I was under that desk. I want your prayers but I want something else.

Phil Davis: … I was praying when he started reloading that shotgun that there weren’t going to be more bodies. And you know what? If we’re going to have a position in society where all we can offer each other is prayer then where are we?

San Felice: This is going to be a story for how many days? Less than a week? People will forget about us after a week unless, y’known, we keep tweeting. I don’t really care about tweeting right now. … I don’t know what I want right now, right? but I’m gunna need more than a couple days of news coverage and some thoughts and prayers. Because it’s…. Our whole lives have been shattered. And so, thanks for your prayers but I couldn’t give a f*ck about them if there’s nothing else.

While Fox News and conservatives generally are going to give San Felice and Davis a lecture about how their incivility caused their colleagues murders in yet another proof of the dictum pre hoc ergo propter hoc, lets give San Felice and Davis something different than blame, something better than lectures, something more than just thoughts and prayers.

If you’re a US citizen living anywhere or anyone living legally in the US, call your House Rep and your Senators and express yourself on what you think are appropriate government (and especially legislative) responses to mass murder.

 

 

Don’t Be This Wrong: Salon Spreads Serious Misinformation

In an article criticizing trump as a Sadist, Salon writer Chauncey DeVega writes a supposedly-factual introduction to what is later a very opinionated piece in such a way as to screw up a very, very important basic fact:

The United States Constitution grants President Donald Trump many powers. They include being the Chief Executive, Chief Legislator and Commander-in-Chief of the military. Not to be content with such powers, Donald Trump has also taken on other roles as well. Donald Trump is the Sadist-in-Chief of the United States of America. Cruelty and meanness are his modus operandi.

Did you catch it? DeVega would have you believe that Trump is constitutionally empowered to be the United States’ “Chief Legislator”.

No. That’s just wrong. It’s so very, very wrong it’s hard to communicate. If you’re from the US or went to grade school here (or even if you just know how to read between the lines of subtle slogans like “No More Kings”), you know that placing primary legislative powers in the hands of the chief executive is exactly what the constitutional framers did not want.

The President cannot set the congressional schedule or call a committee to order. The President cannot introduce a bill before congress or propose language revisions for an existing bill. The President cannot vote in either the House or the Senate. The President cannot amend or authoritatively interpret legislation. The president cannot employ a veto to reject parts of a bill while retaining the effectiveness of other parts: the president must accept all of a legislative act or none of it.

The President is not a legislator and Congress is not a parliament.

We are sufficiently Freuded already without giving Trump even more power. Don’t for a moment concede that the constitution gives Trump any kind of legislative power.

Holy Freuding Freud, Alabama: Your Court Elections Are Partisan?

First off, have I mentioned that I love The Root generally, and Michael Harriot specifically? Well, it and he have a new article up about the man republicans have nominated to run for Chief Justice of the Supreme Court of Alabama.

The focus?

The man who could replace Roy Moore as the next chief justice of Alabama’s Supreme Court is a lot like Moore—only more racist and homophobic.

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The Real Victim in the Brock Turner Rape Case: Aaron Persky

Aaron Persky, the judge who gave Stanford athlete Brock Turner 6 months after Turner was convicted of rape in a trial before Persky’s court, is facing a recall election today. As someone who cares deeply about the rule of law, I hope to fuck California voters throw him the hell off the bench. And while he deserved to be removed for his behavior from the bench, behavior dating back years, I couldn’t wait to comment until after the election because of the new interview in which he paints himself as the victim of uninformed masses who advocate mob rule in place of justice, starting with his own recall.

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