secure in their persons, houses, papers, and effects
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.
Well, today the Virginia legislature ratified the ERA, making it the 38th state to have done so. This does not mean that the ERA will be immediately effective. There are two major problems confronting ERA proponents (including me, natch).
First, 5 states that ratified the ERA have since passed acts that purport to rescind their ratification. While this is a barrier, I don’t judge this a particularly high hurdle to clear. There simply is no mechanism in the constitution that discusses, much less actually permits, a state that has ratified an amendment to take that ratification back. The constitutional process simply demands that a state ratifies it. Once a state has done so, it has done so. Anything after that is likely (but not certainly) constitutionally irrelevant.
Of course, a right-leaning judiciary might still attempt to hang up ratification on that point, but since it’s pretty flimsy and in pretty flagrant conflict with the actual constitutional text, so-called originalists would prefer to have another hook on which to hang their argument that the ERA cannot be put into effect. As it so happens, they do. That’s the second barrier: the ERA as written is simple and includes no deadline, but passage of the ERA was accompanied by text that gave the states only a limited amount of time to ratify, after which the amendment would be presumed not ratifiable. This deadline was extended once, but not again, and according to the accompanying text (as amended) time to ratify passed in 1982.
Now, the constitution also does not specify that Congress may limit the time period during which states may consider ratification, but this argument has decidedly more sympathy than the any argument that states might be able to “take back” ratification. After all, if they can take back ratification, there is no obvious reason that they can’t take back ratification of an amendment already in effect. This could potentially reducing the amendment to support levels below the threshold needed to bring the amendment into force. At that point, what would happen? Repeal of an in-force amendment? What if a single state repeals their ratification of the 9th amendment? Since there were only 13 states at the time, and only 10 required to put the amendment into effect, rescinded ratification by one state could result in a need to ratify by 26-29 states to restore the amendment’s force. All these reasons make it unlikely that even die-hard conservatives hell bent on defeating the ERA would rely much on the rescinded ratification argument when they have any other argument to make.
So it seems likely that whether or not the ERA becomes effective on Jan 15, 2022 will be dependent on whether courts agree or disagree with the argument that Congress has the power to include accompanying text limiting the ratification window.
Of course, what seems more likely to me is that ratification by a 38th state will put new pressure on Congress to pass a new amendment textually identical to the ERA so that states can then ratify the new version, and that that new pressure will be successful within fewer than 10 years. At that point, we will have 33 relatively easy ratifications. To gain the other 5 might be easier than people think, but won’t necessarily be easy in any absolute sense. It’s arguably true that at least some of the reason why the 12 states never to ratify have not more recently changed their minds is because the question of the ERA was considered irrelevant by most. With a new window for passage and an enthusiastic base of women pushing for passage, it will likely be much harder for a state’s conservatives to effectively oppose ratification in the 10 years after a new ERA passes than in the 10 years leading up to today.
Nothing is guaranteed, and neither sex nor gender equality is yet enshrined in the US constitution, but Jan 15, 2020 should still be remembered as a day to celebrate. Reaching 38 is a very important victory.
So, one thing that people remember about Nixon is that he was impeached.
He. Was. Not.
If you want insight into what’s happening now, forget what you thought you knew about Nixon and impeachment. What’s important to remember here is four days.
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.
This quote from a Pi Day press conference is just precious:
if we had a proper wall, which we’re building now as we speak, and we’re getting a lot more funding for it, as you know, with what we’re talking about with the vote today, whether it’s positive or not, I’m vetoing it, unless I don’t have to veto, I think that’s unlikely, I’ll do a veto, it’s not going to be overturned. But we have done a great job at the border through apprehension.
The whole thing is a glorious clusterfuck of rhetorical fail, but I love the bit that benefits from interpretation as a Freudian admission he’s using fear mongering: “we have done a great job at the border through apprehension.”
And, of course, “whether it’s positive or not, I’m vetoing it, unless I don’t have to veto, I think that’s unlikely, I’ll do a veto”. Seriously. Every single day is like a celebration of the 25th to this guy … and I’m not talking Christmas.
So, you may have read my recent post asserting that we need not focus on, much less prove, Christine Blasey Ford’s allegation of sexual assault against Brett Kavanaugh to justifiably oppose, even strongly oppose, his confirmation. Law professor Kate Shaw of the Cardozo School of Law at Yeshiva University has written an editorial for the NY Times that agrees with me in certain important ways, though she does implicitly place more importance on Blasey Ford’s allegations than I do.
She also adds something that I did not when I stressed Kavanaugh’s likely perjury during his own confirmation hearings – both his earlier hearings for a lower bench and also the current hearings on his nomination to SCOTUS. Whichever charges we deem most important – perjury over the past week or sexual assault 36 years ago – Kavanaugh is not being criminally tried and the standard of evidence thus shifts dramatically. Even the burden of proof shifts, though more subtly:
While this is an unoriginal thought even though the topic is only 24 hours old, I still need to say it:
Hey, you! Author of that anonymous NYTimes editorial about how Trump is so bad but the Trump administration is so good? Yeah, you. You are not the hero.
I suspect that this kind of thing might well topple a lot of other dominoes and set off a reaction where a significant chunk of Republican politicians, advisers and thinkers decide that this is the time to take down the elephant.
And frankly, they would be heroes, and history would treat them as such.
No. When you pull out a gun on a kid playing in a park and then you put the gun back in your holster, you are not a hero. You’re Frank Freuding Garmback. You don’t get to be the hero just because you’re not Timothy Loehmann. You’re probably not a bad person, but you’re not a hero.
But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback: the editorial writer makes no effort to encourage invocation of the 25th. The editorial writer is engaged in apologia for the administration if not the President, and the anonymity, far from being a necessary capitulation to the exigencies of working for Trump, is in fact a tool to absolve every administration official and White House employee of their complicity.
Here’s the truth: the constitution gives two ways to take a madman out of the White House: impeachment and the 25th. If you recognize that governmental legitimacy and authority in the US flows from its constitution, then while you are an employee or appointee of the executive branch, you are duty bound to follow the directives of the President. To respond to dangerous incompetence for the office by subverting the authority of the sitting president rather than openly calling for the impeachment and removal of the president by congress or the invocation of the 25th and removal of the President by the Vice-President and the cabinet, you are shredding the constitution.
This author rejects, quite fully and fundamentally, the authority of the US Constitution, and defends as heroes the people who arrogate to themselves power legitimately given only to someone actually elected to executive office. These are not the actions of a hero. Nor is the use of anonymity to give cover to anyone and everyone who might possibly have written the editorial.
Quit. Invoke the 25th if you have the standing to do so. Openly advocate for the invocation of the 25th and/or the impeachment described in Article II, Section 4 and authorized in Article 1, Sections 2 & 3 (and quite possibly get fired for doing so).
Those are the ethical and effective options of someone who has put themselves in this position by seeking and accepting a job in this administration. The author chooses none of these.
And what is worse, though we don’t know the author’s identity (and, like PZ, I’m not interested in knowing it), it is most likely that anyone in a position to write such an editorial actually worked to put Trump in office. In this case, we’re not looking merely at someone who finds themselves faced with the possibility of losing a job and decides that betraying the constitution is preferable. We’re talking about someone who actively participated in the creation the very catastrophe which they want credit for partially ameliorating.
When you set a fire that burns a house and kills two people, you aren’t a hero because after the fire consumed the staircase you got two people out of a bedroom on the main floor. Yours in the blame for the deaths, not the credit for the rescue.
You are not the hero.
ETA: As is so often the case, someone else has written a pithier version of what I perseverate upon. In this case, it’s chrislawson over at PZ’s thread on this topic. Nice work, Chris. Very well done.
Edited: Enlightenment Liberal made me realize that this comes across as saying that one cannot ethically stay and subvert an administration. Rereading the post, I realized that what I was thinking at the time was not as clear in my writing as I would like: If you want to be a hero, you must stand in vocal opposition. There can be many reasons to stay in your job, keep your paycheck, and do your best to limit the harms of a Trump. But these are not the actions of a hero. So I edited the 1st sentence of the paragraph immediately following the paragraph with the Frank Garmback reference.
Originally that sentence began like so:
And the situation with the anonymous editorial writer is worse
The new sentence begins like so:
But for a Constitution- and Rule of Law-fetishizing author of this Op-ed to be called a hero is worse than lionizing a Frank Garmback
The “situation” is now spelled out as lionizing someone who came to power through participation in a rule-of-law and Constitution fetishizing party for publicly seeking praise for their rule-of-law and Constitution-subverting acts.
Hopefully the new sentence will communicate the background facts (about fetishization) that weren’t in the original post at all as well as highlighting (again) that the issue is about being a hero. Continuing to collect your paycheck and doing your best to subvert bad things might be ethically justifiable, depending on what you do and how you do it it might even be ethically praiseworthy to some minimal extent, but it doesn’t make you a hero.
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:
I (and probably will) write up an analysis of the Flores v Reno consent decree and how Trump has been using it to justify child ICE-olation and how the current executive order conflicts with the requirements of that settlement, but I don’t have the time to do the job I want to do this afternoon. So for now just listen to Wonkette:
So basically, the Trump administration wants to thumb its nose at Flores and indefinitely detain mommies and daddies seeking asylum and babies over a FUCKING MISDEMEANOR. Indeed the order literally instructs the attorney general to beg the courts to say violating Flores is OK and babies can stay in jail with mommy and daddy for A LOT LONGER, because that’s what the Trump administration is stomping its feet and clapping its hands for. Hey, maybe they can live in concentration camps, like one big happy family, at least until Trump can figure out a way to Finally Solve the whole problem!
Josh Marshall from Talking Points Memo and Wonkette agree that litigation is inevitable, and Trump is going to lose at trial on a bunch of key issues. Probably on appeal, too. But for Trump, that’s a feature. His executive order puts the lie to the idea that child ICEolation was mandated by laws passed by Democrats, but if he can lose quickly enough in court, he’ll be able to rapidly pivot to blaming unaccountable, unelected judges.
Nothing says, “I love America” like hating on the US Constitution’s Article I, Article III, Article VI clause 2, and Eighth Amendment.