The ONLY Radical Idea

Republicans are, predictably, screaming that impeaching Trump is a Bad Idea™ because excuses go here. Pence literally left Pelosi on hold for 25 minutes before having an aide say that he wouldn’t talk to her. He knew she wanted to talk about the 25th. Not only had he decided he did not want to invoke the 25th, but he didn’t want to talk to anyone about invoking the 25th. Commentators, of course, are complaining that the country doesn’t need the divisiveness of removing Trump from office before his term expires.

But here’s the thing: there’s nothing Trump (or any President that aspires to dictatorship) could do that would be worse, or more desperately requiring impeachment or punishment, that could ever result in impeachment or punishment.

Think it through: Trump has engaged in a failed, violent coup. The only thing “worse” is a successful, violent coup – and that’s not worse because of presidential behavior. It’s only worse in terms of its impact on us. But in a successful coup, impeachment or arrest would (by definition) be unavailable as remedies.

So this is it: Trump conspires with a mob to kill a cop and nullify democracy itself so that he can hold executive power for (at least) four more years. Why would the Republicans & commentators be against using impeachment or the 25th for literally the worst presidential conduct that could possibly be available as a basis for impeachment or removal?

It comes down to what I have said many times. I honestly can’t quite wrap my head around the fact that this isn’t a well known aphorism invented 200 years ago, but it seems to still be something that only I say. So at the risk of self-aggrandizement I’m gonna scream it out loud yet again:

The ONLY radical idea is accountability for people with power. All else is mere reform. 

Impunity is a core value of rulers and people who think of themselves as the ruling class. But we must reject this. If we must wait until a president launches a successful coup before impeachment becomes available as a remedy, then we have, with invisible but indelible ink, rewritten the constitution to erase all possibility of presidential  impeachment, now and in the future. If we do that, the doctrine of impunity has won. The details of dictatorship may change in the following years or decades, but having relinquished the possibility of accountability for those with power, we relegate all future efforts to nothing more than reform.

We must, in this moment, demand accountability, or we have lost ourselves and the republic of the United States of America.

25th THE FUCKER NOW. IMPEACH THE FUCKER MONDAY. JAIL THE FUCKER WITHOUT BAIL.

Terrified: A little knowledge is a dangerous thing

First, let’s get this out of the way: I don’t want you to miss this post I just put up a few minutes ago, but the separate topic of this post is also something that needs to be addressed now, not later,. I can’t have both posts top my stories for the day, but I can at least berate both my readers into making sure they read both posts. So go read that other thing, okay? Okay. On to this post.

As you know, I’m US-law curious, with a side of comparative constitutional law & constitutional construction, but I’m not a US lawyer & didn’t go to a US law school. That puts me firmly in the position described by the aphorism

A little knowledge is a dangerous thing.

That said, I am terrified that Trump is going to do further damage to the US government. Some people have been saying, and I’m sure that many have been thinking, that removing Trump when he only has 13 days left in his term of office is more dangerous than leaving him in as a lame duck.

Personally? I think he’s too dangerous to be left in office for 13 minutes. When I went to bed last night, it was my hope that by the time I woke up, Trump would have been 25th and Biden would be the 47th president two weeks from now instead of the 46th. Make no mistake, I’m not happy about a Pence presidency, even one as short as this would be, but the combination of Trump’s dangerous instability with the circumstances of yesterday’s assault on the Capitol Building creates some unique dangers.

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BLM and the state of the USA’s constitutional protections in Utah

Portland has been my focus, because I was on the ground there (I am now away from the city for a week, but I’ll be back). But Portland isn’t the only place where Black lives don’t matter nearly enough, and it’s certainly not the only place where Black Lives Matter is getting into some good trouble:

Black Lives Matter protesters in Salt Lake City have been accused of splashing paint on a road and smashing the windows of the district attorney’s building at a July protest — and now, the charges they face carry a maximum sentence of life in prison.

Madalena McNeil, the woman who committed the crime of – get this – buying red paint at a store that was later sloshed on a street by a completely different person, is now facing life in prison.

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I have questions, Marriott and Enterprise.

Marriott is reportedly housing the violent, lawless federal agents who are acting to diminish democratic rights in the USA even as I type this.

Enterprise is supplying the minivans used to disappear protestors, activists, and possibly even bystanders.

We should not let them profit off such crimes without scrutiny. (Indeed, I would like to make sure that they don’t profit off such crimes at all, but rather pay the normal capitalist penalties for abhorrent behavior: loss of customers and loss of money.

One model letter, written by me and sent to Care@Enterprise.com:

I have received what i consider to be credible reports that your rental vehicles are being used in the process of transporting people detained by federal law enforcement officers in Portland, Oregon.

Although LEOs do indeed have broad powers, these powers are constrained by both the constitution and federal statute. As it happens, respected experts in this area of law, including the Attorney General for the State of Oregon believe that these detentions are unlawful and unconstitutional.
Should their analysis be correct, then federal criminal statutes 18 USC § 242 would apply and this behavior would be a felony known as deprivation of right under color of law.  Not only is this a very serious crime in its own right, but as the behavior gives every appearance of being planned, and again assuming that the Oregon AG understands and is accurately stating the law involved, further felonies of conspiracy would also have been committed.
Acts of this grievous nature not only injure the rights of individuals, but also degrade the ability of the public to participate in the democratic process. This is why the penalty for such crimes is so harsh: up to 10 years in a federal prison.
My questions to Enterprise.com, then, are these:
1. to what extent were you aware that your vehicles would be used in the commission of a string of multiple felonies?
2. When did you first gain that awareness?
3. What action is your corporation now taking to limit your involvement with this felonious criminal conspiracy and the erosion of democratic rights?
Thank you for your prompt attention.
I encourage you all to address your own concerns to the Portland Marriott and to Enterprise.com.

A Dastardly Homosexual Conspiracy in Switzerland

Al Jazeera (among others) is reporting on a Swiss referendum to amend laws banning racist or religious public discrimination or “incitement to hatred” to include incitement to hatred on the basis of sexual orientation. Switzerland is considerably backwards on issues of sexual orientation and struggles with how to address gender in public policy just as significantly (though in different ways) as, say, Italy and other neighbors. There is no general anti-discrimination law in Switzerland and the relationship between Canton governments and the federal government is not as independent as one will find in Canada’s provinces or the states of the USA (thought don’t ask me for more than that general characterization – Swiss law is far beyond me), which means that few cantons have strong anti-discrimination protections. Geneva enacted some, but only as recently as 2017.

This doesn’t mean that Swiss culture is more hostile to QTIs than other places in Europe. Rather, they have a constitutional structure that more generally protects against legal discrimination and laws against private sector discrimination are less used than in nearby countries and less reliant on specifying in statute particular classifications as off-limits in decisions regarding employment, housing, public accommodations, etc. General legal principles rather than specific protections have been thought to be enough.

Laws providing a very strong protection of freedom of association, for example, have been held out by legal scholars in Switzerland as sufficient to ban discrimination based on queer relationships. Yet these provisions are rarely actually used, and at least some reporting says that they are never or almost never used as the basis for a suit seeking remedy for discrimination based on sexual orientation. The provisions against public discrimination are intended to remedy this recent situation in which rights of association protect queer people in theory but not practice.

Switzerland, it seems, has been coasting on inertia. Actual queer fucking has been continuously legal in Switzerland since the 1940s while statutes making queer sex a felony in the US weren’t overturned until Lawrence v. Texas in 2003. Other locations in Europe still criminalize queer sex. Distinctions like this allowed Switzerland to believe it was ahead of its peers and not in need of legislation addressing sexual orientation (much) in public policy. But as other jurisdictions in other nations have surpassed Switzerland over the past two decades in terms of guarantees of personal freedom in the areas of sex and relationships, the Swiss have come to believe that action is necessary.

Believe it or not, that does not include passing legislation permitting equal access to state-sanctioned marriage, but as of today it includes the amendment I referenced in the first paragraph. It has long been illegal in Switzerland to engage in “incitement to public hatred” on the basis of race of religion. These laws are designed to prevent what is sometimes labeled “stochastic terrorism” – non-violent persons encouraging others to perform violence without entering into any specific conspiracy. If one speaks sufficiently hatefully about a group to enough people over time, sooner or later words will reach someone who finds in them a justification to commit violence. This statistical certainty makes hate speech literally dangerous. In the United States it is still protected constitutionally, but the USA is an outlier on this issue and most democracies in Europe have some form of law against incitement to hatred, as do Canada, New Zealand, and South Africa.

For these countries, a decision has already been made about the extent to which speech is protected by the constitution, but even if the constitution does not protect such hate speech, it is still not against the law unless a specific statute bans it. That’s what this most recent referendum did. It took the existing statute and simply expanded the banned bases for incitement to hatred, adding sexual orientation to race and religion. In other words, the types of speech banned are not expanded, but the targets protected are expanded.

As in other laws of this type, straight people are protected equally against being singled out for being heterosexual as queer folk are for being queer. Nonetheless, since straight people have no idea what it’s like to be targeted for being straight, they tend to undervalue this protection and overvalue the freedom to denigrate all the big scary queerbos in their midst. Fortunately many straight people are overcoming this tendency and the referendum passed with 60.5% approval. But this referendum was only necessary because of that tendency.

In 2018 this amendment was originally passed by the Swiss parliament. The largest political party in Switzerland, the SVP, is a center-right to not-quite-far-right party. With the number of parties in a parliamentary system this doesn’t mean that they have a majority (far from it), but their plurality status gives them a large amount of power. Unable to block passage of the bill entirely, they instead forced it into limbo until it could be ratified by popular referendum. That happened today.

As you may imagine, the SVP were not pleased: SVP MP Eric Bertinat gave the quote of the day to Agence France-Presse when he said that the amendment to the incitement to hatred law was “part of an LGBT plan to slowly move towards same-sex marriage and IVF” for gay couples. (In countries where health care is a right and straight couples’ health benefits include assisted reproduction, many right wingers protest queer folk accessing the same benefits since they are not infertile, just perverted.) Other right-wingers were also unhappy, though not as unintentionally funny. Marc Frueh, and MP from a minor party of Christian conservatives known as the EDU stuck with characterizing it as a pro-censorship amendment.

The anti-discrimination provisions in the law are still somewhat weaker (if I understand them correctly) than similar provisions in US law. For instance, it may not protect against employment, housing, and lending discrimination unless the discrimination happens in a public way that tends to humiliate or denigrate the target. In this way it is similar to certain provisions of Canadian provincial Human Rights Codes that provide remedy for denial of human dignity that operates somewhat differently to statutory provisions that simply ban discrimination on specific bases. They also do not protect against discrimination or incitement to hatred on the basis of sex, gender, gender identity, or gender expression.

Still, this is a pretty big step for Switzerland. Who knows. Maybe Bertinat is correct and somewhere, someone is secretly plotting to someday legalize queer marriages in Switzerland. Quelle horreur.

 

The 28th Amendment

Amendment XXVIII (Amendment 28 – Clarification of the extent of the right to bear arms):

The careful control of dangerous weapons being necessary to the security of a free people, the right to bear arms shall not be guaranteed by this constitution further than is necessary for the defense of persons, hunting game for food, and participation in well-regulated sport that does not threaten life, health or property.

 

If you have a twitter account, TWEET THIS EVERYFUCKINGWHERE, but especially to your senators, your congressional rep, and anyone who campaigns for even half a second for POTUS.

 

 

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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That’s it. Take his guns away forever.

Florida passed somewhat interesting legislation in the aftermath of the MSD High School shootings. Although I and my reader would both have preferred dramatic restrictions on private gun ownership and access and hate crazy-blaming, there still could be some utility in the statutory provisions which allow police to assume that when one makes threats that one is at least potentially a danger to others. To that end, the law allows police to deliver those who make what appear to be serious threats (and some others who give indications of being a danger to the public) into the hands of mental health professionals.

The law has complex ramifications for a number of aspects of civil society, including the operation of the First Amendment’s protections of expression generally and the media specifically. Until I see more about how the courts interpret the state legislation and how local authorities mis/use its provisions, I’m going to have trouble  determining whether I find it a net positive or not. Still, the first person they picked up under the law was probably a reasonable choice and doesn’t foreshadow abuse. That person is Christian Nicholas Velasquez.

According to the Orlando Sentinel, cops initially keyed on Velasquez

after getting reports from the [University of Central Florida] community about a user on the online social media platform Reddit called “TheRealUCFChris” who called Parkland shooter Nikolas Cruz and Las Vegas shooter Stephen Paddock heroes.

In an interview with police which happened either immediately before (more likely) or immediately after (it’s not entirely clear) a relatively short evaluation confinement in a mental health institution, Velasquez was clear that although he did make those comments, he couldn’t really see himself following in their footsteps:

“I can’t imagine myself ever doing that. It would take a lot to push me over the edge.”

Still, despite that and similar statements as well as not being found dangerous to the point of requiring confinement by the evaluating doctor, cops felt concerned enough that they applied under a new provision of the law to ban Velasquez from owning a gun for a period of one year. The civil order also prevents or penalizes certain other behaviors, and amounts to a new type of restraining order sought not by a victim but by a law enforcement agency. This new type of restraining order is known as a “risk protection order”.

The Florida judge responsible for deciding whether the emergency order authorizing the hospital say and other very short term measures thought Velasquez’s initial detention was well in-line with the wording and intent of the new law, saying (according to the Sentinel):

“I don’t disagree with the issuing of the initial temporary injunction. I think that’s exactly what the statute provides for.”

Nonetheless, the judge did not believe that the state met the legally required burden for a longer term injunction and declined to convert the emergency order into the new risk protection order with a duration of one year.

People will have different feelings about the law, though I think it’s pretty clear in this case that the authorities acting under the law were interpreting it reasonably and not abusively exploiting the margins of the power granted under statute. It was being used as intended, whatever you think about the intent. I don’t know if the judge had the law right, though it’s likely he did. So the first attempt at use of the law probably went about as well as anyone could hope.

After the hearing was concluded and the decision rendered, Velasquez’s attorney expressed disappointment with the law and its use against her client. Why would the government even want to take away – even temporarily – her client’s right to access guns? After all, she said, quoting her client, he just

wanted to look like a badass on Reddit.

Huh.

 

 

 

Everything You Need to Know About US Gun Rights, Part 1

This post grows out of a discussion on Mano’s blog about gun rights and the US constitution. If you like, please read the beginnings of this discussion where it originated. However, in response to questions raised by EnlightenmentLiberal, I felt the need to write a comment whose length kept increasing. (No, Crip Dyke! Say it isn’t so!) Ultimately, I thought this history/argument was better presented as its own post here.

The real problems in the interpretation of the 2nd amendment can be found in a Commerce Clause case about the growing of wheat on private property and the anti-slavery reconstruction amendments.

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