Update no.1103

 Update from the Sunland

No.1103

27.2.23 – 5.3.23

Blog version:  http://heartlandupdate.blogspot.com/

 

To all,

 

Here is an observation that might be useful, if anyone wishes to know what the former GOP, fBICP, MAGA bunch, Nescientia super scientia (Ignorance over knowledge!) Party is doing . . . simply put, we have but to look at what they are accusing everyone else of doing. That is exactly what they are doing. The BIG LIE is a fallacious accusation leveled at others (without a shred of evidence), and the BIG LIE is the truth about their conduct, behavior, and actions.

 

45potus has dragged us back into a constitutional debate on a variety of topics, not least of which is the validity of presidential immunity to shield his criminal conduct. At the center of the U.S. Supreme Court’s jurisprudence regarding presidential immunity are a trio of cases involving the criminal conduct of past presidents.

United States v. Nixon [418 U.S. 683 (1974)]           [870]

Nixon v. Fitzgerald [457 U.S. 731 (1982)]                [970]

Clinton v. Jones [520 U.S. 681 (1997)]                     [1103]

As noted, I finally got around to reading the last of the three—Clinton v. Jones [520 U.S. 681 (1997); No. 95–1853; 27.5.1997]. The Clinton case revolved around a civil damages claim by Paula Corbin Jones, then an employee of the Arkansas Industrial Development Commission, for sexual harassment against then Governor William Jefferson ‘Bill’ Clinton of Arkansas. The constitutional issue at hand was whether a sitting president could face a civil suit while in office. In Clinton, the Court decided that he could as long as the object of the suit did not involve the president’s official duties. In this instance, since the incident in question occurred before Clinton became president, it did not involve official duties and should proceed. Further legal wrangling eventually led to a fine and suspension of Clinton’s law license.

We have a mounting number of examples of why should not elect criminals to political offices of responsibility, especially the ultimate office—President of the United States of America. At the time of the Clinton ruling, only two prior presidents have been involved in civil litigation involving their conduct prior to becoming president—Theodore Roosevelt and Harry Truman. In both those cases, the suits were dismissed prior to their inauguration and affirmed after inauguration. Richard Nixon would have been on that list for felonious criminal charges and quite likely convicted and sent to prison for his crimes, if it had not been for President Ford’s preemptive pardon. Nixon deserved prison for what he did. Yet, Nixon was bad enough, but 45POTUS has taken us to an order of magnitude greater depth in this chasm, and it is going to take us a very long time to climb out of this dark place.

What happens when a nefarious conman criminal dupes a sufficient number of innocent citizens to get elected as President of the United States of America? We bear witness today, and we are still in the middle of that quagmire morass. I have confidence we will eventually come out the other side, but I must acknowledge that I may not live long enough to see that day. By the time this whole sordid affair is said and done, we will quite likely have a body of law that is evolving to deal with just such a scenario. We may have made it through 229 years of history without such a necessity, but that string of success was broken in 2016. Somehow, we must learn and mature from that despicable man who caused all this trauma and turmoil.

At its most basic level, presidential immunity creates a de facto temporary sovereign, i.e., the sovereign can do no wrong. The Constitution invests enormous power in the president. For that reason alone, the integrity of our republic demands that man be held accountable, although we failed to do so in the case of Nixon.

One of the greatest mortal flaws of our representative democratic form of governance is our fundamental assumption that our tortuous process of selection will yield a decent person being elected president. Clearly in the cases of Nixon and 45POTUS (and arguably Clinton), our system failed. We have yet to reconcile the malfeasance of 45POTUS.

 

Another case from my judicial reading list was Google v. Oracle [593 U.S. ___ (2021); No. 18–956; 5.4.2021]—a computer programming code versus copyright law case. Google outright and admittedly copied 11,500 among several million lines of code copyrighted by Sun Microsystems, which was purchased and absorbed by Oracle. The code was an essential element of Google’s Android operating system. The Supremes decided the case by 6-2 (Barrett did not participate). Justice Breyer wrote for the majority with Thomas and Alito dissenting. The decision hung upon their interpretation of the fair use doctrine, and the majority decided in Google’s favor based on their assessment of the fair use doctrine. Thomas, writing for the dissent, made a compelling case against Google, but the argument ultimately did not prevail.

I confess to mixed feelings about this case. As the holder of numerous copyrights, I admit to serious concerns about the protection of my original work. I understand and appreciate the arguments on both sides of this one, but I must ultimately trust the wisdom of the Court’s majority.

 

Then, we have Tennessee Senate Bill 0009 that was signed into law by Governor Lee on Thursday. The new law criminalizes drag shows on public property or in locations where such performances could be viewed by any person who is not an adult. Before I offer my observations and opinion, I think it is imperative to this discussion to read the words of the bill directly and in their entirety. TN SB0009 reads exactly:

AN ACT to amend Tennessee Code Annotated, Title 7, Chapter 51, Part 14, relative to adult-oriented performances. 

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: 
SECTION 1. Tennessee Code Annotated, Section 7-51-1401, is amended by adding the following language as a new subdivision:

"Adult cabaret performance" means a performance in a location other than an adult cabaret that features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest, or similar entertainers, regardless of whether or not performed for consideration; 
SECTION 2. Tennessee Code Annotated, Section 7-51-1407, is amended by adding the following language as a new subsection: (c) 

(1) It is an offense for a person to engage in an adult cabaret performance: 

(A) On public property; or 

(B) In a location where the adult cabaret performance could be viewed by a person who is not an adult.

(2) Notwithstanding § 7-51-1406, this subsection (c) expressly: 

(A) Preempts an ordinance, regulation, restriction, or license that was lawfully adopted or issued by a political subdivision prior to the effective date of this act that is in conflict with this subsection (c); and 

(B) Prevents or preempts a political subdivision from enacting and enforcing in the future other ordinances, regulations, restrictions, or licenses that are in conflict with this subsection (c).

(3) A first offense for a violation of subdivision (c)(1) is a Class A misdemeanor, and a second or subsequent such offense is a Class E felony. 

SECTION 3. This act takes effect July 1, 2023, the public welfare requiring it, and applies to prohibited conduct occurring on or after that date.

For reference purposes, a Class E felony in Tennessee is punishable by up to six (6) years in prison.

I have considered many things I could and should say about this bill. At the root, this is the social conservatives doing what they love to do, impose their will on the entire population. They believe they are right, and everyone else is wrong. They love to use children to justify and validate their least-common-denominator rationale. They refuse to teach their children properly, and they want everyone else not like them to suffer. They refuse to acknowledge that other people may be different from them and make diverse choices. TN SB0009 is not what it pretends to be. This is bigotry in the law. Citizens who wish to dress up in flamboyant women’s clothing harm no one—not children; no one. I recognize, understand, appreciate, and acknowledge that other citizens do not want to wear flashy clothing, but I respect the choices of others. And, if my children, grandchildren, or eventually great-grandchildren have questions about why some citizens wish to dress as they choose, I will do my absolute best to explain those choices to them. Six years in prison because one citizen has different choices than the social conservatives is wrong in every possible way. Dressing up in draq is NOT an offense; it is diversity. I condemn the fBICP and what they have done in Tennessee.

 

Comments and contributions from Update no.1102:

Comment to the Blog:

“The US. Constitution was written in 1787 and the Bill of Rights in 1789, which created the first problems with ‘strict construction.’ Both language and society have changed so much that some level of interpretation is entirely necessary. For example, the radicals on the Court have chosen to ignore the first clause of the Second Amendment. So much for ‘the Constitution as it is written.’

“The response to the East Palestine (Ohio) train wreck is its own train wreck. Ohio’s state government keeps claiming there’s nothing wrong with the air or water there even while emergency responses continue. Much of the air and water sampling is done by a company hired by Norfolk Southern (oops). The disposal of contaminated soil and water is another entire controversy. They tried to sneak some of that into Texas, but the local people caught on and stopped it. Good for them. Good luck to the people around East Palestine and all those downstream.”

My response to the Blog:

While I disagree with the strict constructionists on a variety of levels, that bunch on the bench are political conservatives, i.e., they seek to keep things the way they were. They claim the Framers provided no guidance on interpretation or progression of the Constitution, therefore, they must stick to the words as the Framers used them 236 years ago to define intent. I reject that notion outright with the inverse of their argument, i.e., there is no evidence they intended future judges to remain anchored in the distant past. I believe the Framers were far more progressive than the strict constructionists give them credit for. I genuinely believe they expected judges (actually all of us) to interpret the Constitution in the context of contemporary society and culture, and not change it with every new invention. From their perspective, interpret by the greater purpose of their words rather than the 1787 definition of the words. We can continue our debate of the 2^nd Amendment, but I do not have anything new to add.

I am not close enough to the accident to discuss those details. I have gone as far as I can go until the NTSB report is released for public scrutiny. I have no problem with Norfolk-Southern testing water, soil, and air, but the USG must do independent testing (and send the bill to the railway).

 . . . Round two:

“I find it simpler to just admit some interpretation of the Constitution is literally necessary and point out that the radicals have done so freely when it suits them. The 2^nd Amendment is only one example.

“The Norfolk Southern train wreck adds to a long list of problems. The enormous amounts of at least one hazardous material and the dimwit response are bringing headlines, but the underlying Wall Street ownership of both the railroads and the politicians leads to many other incidents as well. At this point, I await reports from activists, not government sources.”

 . . . my response to round two:

Agreed. I must add that substantive due process appears to be the paramount salient for the strict constructionists and the progressives on the Court. As we read in Dobbs v. Jackson Women’s Health Organization [597 U. S. ____ (2022); 24.6.2022] [1067, 1068], the strict constructionists, especially Thomas & Alito, reject everything decided with substantive due process, e.g. civil rights, voting rights, unspecified freedoms and rights, everything. Thomas was quite direct and frank in his stated position. Yet, the reality is, everything requires interpretation, even specified freedoms like freedom of speech or freedom of the press. Where are the limits, the boundaries? Those limits are not defined in the Constitution. So, when the strict constructionists make up limits, they have violated their own guiding principles. The bottom line is virtually everything requires interpretation. It is only a question of where they draw the line, and now, the strict constructionists have the numbers to decide, and we must suffer the consequences.

I will quibble with one aspect of your opinion. Norfolk-Southern is not owned by Wall Street, which is simply a stock exchange. For public companies, shareholders own the company. Unfortunately, we cannot trust the activists either; they have their own agenda. We must resolve all sources and make our own judgments. There are slants to every source.

 . . . Round three:

“Your first paragraph is so hifalutin that I entirely miss the point.

“The second comes down on me for using a generalization. There is a point to that generalization. The railroads and other capital-intensive industries are owned by investors whose life's work is making money, not doing a good job producing whatever product or service they're investing in.”

 . . . my response to round three:

Wow! Highfalutin . . . that’s quite the accusation. My apologies, I think of my effort as precision rather than pretentious. Nonetheless, I was only adding my comment that the strict constructionists use selective reasoning to impose their will.

I did not intend to “come down on” you. Making money is not a sin. I will argue that it is necessary. I could ruminate about the neutrality of money or wealth, but I do not want to bore you.

 . . . Round four:

“Now I understand that first paragraph. Yep.

“You ‘came down’ on me for saying ‘Wall Street’ rather than specifying which villains own Norfolk Southern. (My perceptions, of course.) The high-finance industry owns all the railroads in the USA. Making money is not a sin in its own right, but society needs guardrails to defend the rest of us.”

 . . . my response to round four:

OK. Glad to help.

No exactly. I objected because Wall Street does not own anything; it is an exchange . . . a medium for stockholders to buy and sell their stock in companies. Villains is a bit steep for me, but your choice.

I agree with Robert Reich’s opinion essay—“Greed need guardrails!” However, his premise is missing one key word—balance. We have proven over and over (and yet again in East Palestine, Ohio) that for profit companies (most) cannot be trusted with self-policing. For them, risk is simply a gamble, and as Reich states, risk realized is simply another cost of doing business. But, as I stated previously, regulation is quite akin to taxation – it is the power to destroy. We must have balance. Too much regulation is just as bad as not enough regulation. From what I have seen and learned of the East Palestine accident, the scale has been biased too far to the “not enough” side of the equation. Yes, greed needs guardrails.

 . . . Round five:

“‘Wall Street does not own anything’ is too literal even for me. Does figurative language have no place at all?

“Mr. Reich and I don’t pretend to be neutral. Does he propose anything that goes too far? Not that I can see.”

 . . . my response to round five:

Au Contraire, mon ami. I have been known to use figurative phrases from time to time. You may have noticed that I tend to react to generalities and figurative phrases when I see them as painting an erroneous picture. You have called me out for doing exactly the same thing. Yet, I try to avoid such circumstances. Figurative phrases are perfectly acceptable.

Well, my friend, he has not proposed anything. I agree with his premise, but what does he propose to do about it. I was taught many moons ago to never criticize without offering a solution. It is one thing to criticize a system or process; it is all together another thing to offer a solution. Reich is more than capable of offering a solution, and I, for one, would like to hear what he proposes. Concomitantly, I strongly objected to what 45POTUS and his followers in Congress passed with the Tax Cuts and Jobs Act [PL 115-097; 131 Stat. 2054; 22.12.2017] [834, 838]. President Biden has yet to undo that travesty; he offers a lot of yammering but little to no perceptible action.

 

Another contribution:

“Not quite sure what is going on with the Evenwel/Abbott business-not to worry though.”

My reply:

In Evenwel, we see some of the inner-workings and hidden mechanisms of the U.S. representative democracy with a heavy coating of desperation by a political party that chose to paint themselves in a corner, and now, they sense their own demise. The efforts to suppress the voting of We, the People, is wide-spread, vast, and pervasive, e.g., restricting polling stations and hours of operations, restricting or prohibiting voting by mail, among many other efforts like gerrymandering. We are a long way from out of the woods on this one, so I will quite likely bore you more with my rants against that faction that pushes the BIG LIE and voter suppression. Hang in there, my friend.

 . . . follow-up comment:

“Thanks Cap-and good day to yourself. What is the meaning of Evenwel?”

 . . . my follow-up reply:

Evenwel refers to the plaintiff in the case—Sue Evenwel, a political operative in Texas. Evenwel filed suit against the governor of Texas to force the state to use a metric other than total population to define voting districts. She claimed the use of total population dilutes her vote, thus violating “one person, one vote”—the Court’s standard for voting rights since 1964. As I tried to point out, Evenwel’s argument is fallacious. The Court decided this one correctly. I highlighted the case because the Republican effort to suppress the voting of all other groups other than Republicans. The case is yet one example of how desperate Republicans are to hold onto power.

 

My very best wishes to all.  Take care of yourselves and each other.

Cheers,

Cap                  :-)