Constitution

by

Why Trump-appointed judges have ruled against him

Donald Trump knows nothing about how government works, and was clearly under the impression that all the judges he appointed would be loyal to him.

But now his lawsuits have had more than fifty losses and only one procedural win early on (having to do with forcing Pennsylvania to do something it was already doing, so it’s kind of moot). Judges from every state have ruled against the GOP’s attempt to destroy democracy. The Supreme Court twice (and swiftly) refused to hear the appeals and not one Justice filed a dissent.

And many of these judges were Trump-appointed.

And here’s why that happened:

The GOP has been filling the courts for years with right-wing ideologues, many of whom are deemed “unqualified” by the American Bar Association. These radical judges have done a great job in destroying many of our basic civil liberties and bending over backwards to give corporations wins.

But these people were nominated in the first place because they are (what I call in my Constitution book) “Constitutional Fundamentalists.” Like religious fundamentalists, they believe there is only one interpretation of their holy document and lo and behold, they know exactly what it is and it matches their own views perfectly.

Justice Scalia was one of the prime movers of this idea on the Supreme Court, believing not only that his view of what the Constitution was correct, but that everyone who disagreed with him was not only wrong but very likely evil as well. Fortunately, he no longer does this, primarily because he is dead, but his views live on.

These fundamentalist judges honestly believe that they are being fair in their decisions and are fanatics to the fantasy document that exists in their head. They don’t think they are interpreting the Constitution in any way, ignoring the fact that every decision a court ever makes about the Constitution is an interpretation. (If the Constitution was as clear as they believe, there would never be a need for a judge at all.)

This mindless refusal to acknowledge that other people’s views may be valid is typical of conservatives who are not known for their tolerance of anyone different, but it’s important to consider now — because these judges think they are doing the will of the founders in the same way religious fundamentalists believe they are doing the will of their god.

And that’s why these judges are never going to ignore that Constitution like the Trump lawsuits require. These suits have no basis in our laws, are completely frivolous, and ask the courts to ignore democracy and our system of elections completely and just hand over the presidency to the loser who wants to be a dictator.

These judges are fanatics for the Constitution, not for Trump. And that’s why he keeps losing.

by

Can the President pardon himself?

No.

That was easy!

I mean, come on — you don’t have to be a Constitutional scholar to figure that one out. A President who has the power to pardon himself is a king, a dictator, a tyrant. A President could murder his enemies and then pardon himself afterwards if that were the case.trump evil

The Constitution mentions the pardon power in Article II, Section 2. The president “shall have the Power to grant Reprieves and Pardons for offenses against the United States.”

“Offenses against the United States” means for federal criminals, not state ones. So if, say, the state of New York brings charges against Trump, it doesn’t appear that he would have the power to pardon himself of those charges.

But even so, it’s a long-standing tradition in both English and American law that a person cannot judge themselves. A judge who commits a crime in his or her jurisdiction must have another judge appointed to rule over that trial. Clearly, a pardon is a type of judging and therefore a person cannot pardon themselves.

Usually no one gets pardoned until after they have been convicted and have served some time — the President may pardon them so they can have a clean record.  However, Gerald Ford pardoned Richard Nixon before Nixon had been convicted or even charged (even though those charges were clearly coming). This set a bad precedent, was highly criticized by many legal scholars, and surely played a part in Ford’s failure to win re-election. Since Nixon accepted the pardon, it also means that he agreed he was guilty, doesn’t it?

But there’s more to Section 2 as well — “except in Cases of Impeachment.” So a President cannot pardon anyone who has been Impeached (which would include himself). Impeachment, of course, is separate from criminal proceedings. Bill Clinton was impeached even though he had not committed any crime.

So can a President pardon himself? While the Constitution does not explicitly say, all precedent and logic state that he cannot.

Can I mention in passing how absolutely ridiculous this past year has been? If I had pitched this as a fantasy novel to follow Bloodsuckers, my agent would have said it was too outrageous and unbelievable. And now this lunatic President is talking about pardoning himself?

by

How to Honor the Founding Fathers with the Electoral College

“The Electoral College was set up with a specific purpose in mind and we should do what the Founding Fathers want,” people say to me whenever I argue for getting rid of it.

Well, fine. If your desire is to do what the Founding Fathers wanted, then we’ll need to change a few things.Stock Photo of the Consitution of the United States and Feather Quill

  1. Stop having Presidential elections. There’s nothing in the Constitution about them. The Electors are chosen by the state legislatures in any way they wish. They could choose the lobbyists who give them the most money if they wanted to.
  2. How the state legislatures are chosen is not provided for in the Constitution either. So we should allow states to just appoint these people, too.
  3. The Founding Fathers also intended that whoever came in second place would be Vice President. Nothing wrong with that, right?
  4. Even if the states do decide to have elections, those states should only allow white men who own property to vote. Hey, do you want to honor the Founding Fathers or not here?

Of course, in those days where it could literally take weeks to travel from state to state, each state was much more independent and unique, almost like the way the European Union is now. We were less a country than a collection of independent states (which is why we are called the “United States of America” and not just “America”).

That changed quickly. People started seeing the President as the leader of all the people and not as just some figurehead off there in the distance. (Seriously, does anyone know who the leader of the European Union is?)

And the states started having elections to choose this leader. Congress decided on a date for these elections — because that’s not in the Constitution either — and soon, the popular vote winner in that state decided who the electors were. By 1824, this led to the election of Andrew Jackson, exactly the kind of person the Electoral College was set up to prevent getting into the White House. Thus, within forty years of the writing of the Constitution, while some of the Founding Fathers were alive, we had already moved away from the original intent of the Electoral College.

So for those of you who say we should keep it in order to honor what the Founding Fathers intended:  You’re 200 years too late.

by

Who cares what the Founding Fathers thought?

The Founding Fathers were a bunch of politicians, not too different from the politicians we have today (except that they were all rich white men). Some were tremendously intelligent people who deserve all the accolades they receive. Thomas Jefferson, Benjamin Franklin, John Adams — great men who did their best to create this great experiment.constitution_quill_pen

Others have been lost to history. William Blount? Alexander Baldwin? Pierce Butler? Some were mediocre men, who fought against giving people any power, who argued to keep slavery, who forced the great men into compromises like the 3/5ths clause and the 2nd Amendment in order to gain their votes.

You know — politics.

And that’s why it is so frustrating when the Constitutional Fundamentalists say that we should obey the “will of the Founders” when interpreting the Constitution.  Well, which Founders?  This wasn’t adopted unanimously, you know. To argue that we should never have a position about the Constitution based on who won is like saying we should never question Obamacare because hey, it got passed by some politicians so it’s gospel and cannot be challenged.

And that’s the key — I call these people Constitutional Fundamentalists because they view the document like it’s a religious holy book, handed down by the Founding Gods, and we should obey what the Founders said. (And, of course, 100% of the time, just like religious fundamentalists, these people know exactly what the Constitution means and it matches their own personal views perfectly! Isn’t that amazing!)

The Founders created a foundation for a building — the Constitution provides the very minimalist blueprint. “Freedom of Speech” it says, but it doesn’t go into any detail. Does it include libel and slander? Television and internet? Can you cause a riot and claim this freedom as a defense? Can you reveal military secrets and not get punished? The Constitution doesn’t say.

That means it has to be interpreted, just like it had to be within a few years of its passage, when the Supreme Court had to make decisions and Founding Fathers argued before members of the Court (who were also Founding Fathers) and they didn’t all agree! 

So with all respect to the great men who founded this nation, 230 years later, who cares what they thought? These were guys who thought you could cure diseases through bloodletting. They thought humans could be property, women should be close to property, and killing natives for land was perfectly fine.

This would be like trying to add air conditioning and heating to your home but being told “No, the original blueprints from 200 years ago don’t mention that, so you can’t do it.” We should not have our society limited, Amish-like, to a time that no longer exists.

Many religious fundamentalists already understand this. They already ignore the parts of the Bible they want to ignore, recognizing that something that was written so long ago should not guide modern thinking.

Somehow, Constitutional fundamentalists have yet to reach that stage.

 

 

 

by

Criminal defense attorneys support crime!

There’s a new meme out there against Hillary Clinton which is full of lies, false quotes, and misleading information but that’s nothing new. (You can read about it on Snopes if you wish). The part that bothers me is this:

It criticizes her for representing a criminal when she was a young defense attorney and calls her an “advocate for rapists.”justice

This is the kind of attack we’ve seen before, usually from conservatives. It’s sad that I am seeing my liberal friends post this crap.

Conservatives who say things like that are hypocrites who say they love America while hating one of the very reasons the Founding Fathers fought the revolution: To rebel against a government that ignored basic rights. They put those rights in the first Ten Amendments: The right to counsel, the right to remain silent, the right to not be searched without a warrant and probable cause, the right to be free from cruel and unusual punishment — more than half of the Bill of Rights are about criminal rights.

And what’s to prevent the government from abusing these rights? Why, it’s defense attorneys.

But when we hold police responsible for illegal searches or argue that our clients’ rights are being abused, what do people say? “Oh, he got off on a technicality.” Yes, a technicality called the United States Constitution — the very foundation of our nation.

This is like the people who demand that freedom of speech be denied to speech they disagree with while defending that same right for themselves. Our freedoms are meaningless if they don’t apply to everyone, even people we hate.

Look, most of the people I represent are guilty of something. 95% of all cases end up with a plea. My job is to make sure that the innocent are defended and the guilty don’t have their rights denied or otherwise get screwed by the system.

This is patriotic. This is exactly what the Founding Fathers intended. This is what makes America great — that we, the people, can stand up to a powerful government that does wrong and can win without resorting to violence.

To imply that a defense attorney performing his or her job “supports crime” is an insult not just to attorneys, but to all Americans.

 

 

by

Law is Politics

The legal system makes a lot more sense when you realize that it’s all politics.

There are those who insist that the law is absolute; that there is only one interpretation of it; and that only crazy radical liberals engage in “judicial activism.”

But the bottom line is that the law is whatever judges say it is.

Every judge has their own opinion as to what the “original intent” of the law was. If everyone agreed on what the “original intent” was, we wouldn’t need judges.

Even the Founders disagreed over the wording. The scales-personal-injury-lowConstitution was written to be specifically vague in parts because that was the only way they could get it passed.

You know — politics.

Within a few years of its passage, there were cases before the Supreme Court to interpret the Constitution’s meaning. The very Founders who wrote the damn thing argued before the Court as to how it should be interpreted.

Whenever anyone says there is only one “original intent” they always amazingly also know exactly what it is and — even more amazingly — it always matches what they already believed. (Sort of like religious nuts who are convinced there is only one interpretation of the Bible and it’s always the same thing as their own.)

And the meanings of words change over time. “Cruel and unusual punishment” does not mean the same thing in the 21st Century as it did in the 18th. The 14th amendment gives rights to “people” but at the time it was written, it did not include women or gays (and barely included blacks). Meanings change. Society changes.

Conservative judges interpret the Constitution just as much as liberal judges do — the difference is that liberal judges tend to be more honest about it. Or maybe the conservatives ones are just deluded, like Scalia was, that he had some great “insight” into the Founders’ desires, like he was an avatar to the gods. It was the conservative justices who reinterpreted the 2nd amendment to turn it into a personal right after 200 years. It was the conservative judges who decided that corporations were “people” and money was “speech.” And a new Court could turn around and say “nope” and change it back, using the exact same words in the Constitution.

Politics.

I know some people want the law to be like a science, where you can do an experiment or do some research and know the answer, but it isn’t. It’s politics. It’s written by politicians. It’s judged by people who are elected (and are therefore politicians) or who have been appointed by politicians. The judges don’t all agree, just like politicians don’t agree.

And most of them (if they aren’t deluded) will admit that the Constitution is not a religious document written by gods; it’s a political document written by a bunch of politicians.

 

by

Guy Who Wants to be President Doesn’t Understand the Constitution

“Dred Scot is still the law of the land,” said Republican Presidential candidate Mike Huckabee today, demonstrating his complete lack of understanding of the Constitution he wants to uphold.

Seriously, I had to check to make sure this wasn’t from the Onion when I read it.huck

The Dred Scott case, for those unaware, was the 1857 case which held that blacks, free or slave, could never be American citizens. One of the top five worst Supreme Court decisions ever (probably even the worst), it helped send us off to the Civil War.

Huckabee’s point was that no one follows that decision any more, so therefore we don’t have to follow the gay marriage decision.

Anyone who has taken a basic government class (or even just basic history) in High School can tell you that the 14th Amendment nullified the Dred Scott decision. The reason no one follows that decision is because it hasn’t been the law for 150 years or so.

Let me remind you once again: This guy wants to be President. He wants to take an oath to follow a Constitution that he clearly does not understand.

Then again, this is the same way these guys treat the Bible — they apparently have never read that either, but they strongly believe it says only what they want it to say and no more.

by

Constitutional Fundamentalists: Either liars or just damned stupid

I’m so sick of fundamentalist politicians and internet trolls. And not just the religious ones — the Constitutional ones.

These people view the US Constitution as if it were written on stone, never changing, and can never be questioned.

Like religious fundamentalists, they believe there is only one interpretation of their holy book and — here’s the amazing part —  that interpretation is always exactly in line with their own personal views!constitution_quill_pen

Most of us who study the Constitution for a living are aware that the Founding Fathers, though great men, were not gods. We know that the Constitution was written by politicians, who made compromises and wrote the thing to be deliberately vague in parts because that was the only way they could get the damn thing passed. That’s how politics works.

The most obvious example may be “The Virginia Compromise.” (Look, it even has “compromise” in its name.) The smaller states wanted each state to have an equal vote so that they wouldn’t be ignored. The larger states wanted it to be based on population which would obviously benefit them. In the end, we got both — a Senate where each state gets the same representation no matter how small, and a House where the states with more people get more representation.

Then there are the first ten amendments themselves (the “Bill of Rights”). Many states refused to ratify the Constitution without these protections, and it’s a good thing they demanded them.

But the clearest example of compromise in the Constitution has to do with slavery. Most of the northern states had already abolished it and wanted the entire country to do the same, but the southern states refused. The south was worried that as soon as this Constitution was passed, the northern states would outlaw slavery completely. Without some provisions to prevent this, the south refused to agree to the Constitution. Rather than split the country within the first ten years of its existence, a series of compromises were worked out. (Sadly, postponing this only led to the bloodiest war in American history seventy years later.)

First, there’s Article I section 9 which specifically prohibited Congress from passing any law outlawing the importing of slaves before 1808 (twenty years from the Constitution’s signing). Why 1808? Was there something magical about that year? No, that was just the number that compromise produced. (And as soon as 1808 came about, Congress did exactly what the south was worried about and banished the importation of any more slaves.)

Second, there’s the ridiculous 3/5ths clause. The south demanded that when determining how many representatives they would get in the House, that slaves should be counted as “people” even when they were property in every other respect under the law. The north rightly pointed out how stupid this was, but the south insisted and there was another compromise made. We ended up with a provision that held that 3/5ths of every slave would count. No mention as to which 3/5th of the slave counted, though, but apparently it didn’t include the head since the views of the slaves mattered not.

Third, there’s the 2nd Amendment, which allowed the southern states to keep their state “militias” which were basically armed gangs whose only job it was to intimidate slaves and capture ones who escaped.

Within a few years of its passage, there were cases before the Supreme Court to determine the Constitution’s meaning and its application. The Founding Fathers themselves were still around and they could not agree! To think that there is some magical interpretation we can know today, hundreds of years later, is ridiculous.

So anyone who claims to “know” the intent of the Founding Fathers — as if they all agreed completely — is either lying to you or just too damned stupid to realize they’re spouting bullshit.

by

No, The Gay Marriage Case has Nothing to do with Guns

Fox News commentator Allen West (a non-lawyer) wrote an article recently saying that since the Supreme Court gay marriage case says this must be applied over the entire country, then clearly it has set a precedent to allow for “conceal and carry” in all states.

This shows a real misunderstanding of the law.

First of all, the gay marriage case had to do with the 14th amendment, which prohibits discrimination against people. Despite the fact that the Supreme Court has called corporations “people” it’s not about to call guns, cars, or toasters “people” any time soon.rainbow.ak_

The analysis used in the gay marriage case is old. Like 50 years old. This same analysis was previously used to give rights to blacks and then later to women. It has just been expanded to include gays and lesbians. It is not a new analysis.

If the gun lobby could use this same analysis to do what the gun lovers want, they would have done it 50 years ago.

The short version: If the government wants to take away the rights of someone, the law must pass the “strict scrutiny” test:

It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest. That is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, though the Court generally evaluates it separately.  [NOTE:  I copied this from wikipedia, but it’s correct.]

It is very difficult for laws that discriminate to pass this test. The Supreme Court did not change this test at all, but merely added gays and lesbians to the test (at least as far as marriage goes — other discriminatory laws against gays and lesbians will be challenged under this test soon and should also fail, using this case as precedence).

This test is not used to determine whether everyone has the exact same rights as they travel from state to state — but West (and the people who foolishly believe him) are convincing themselves that they are being discriminated against because they don’t have the same rights as someone in another state.

Under this logic, there would be no more federalism at all. Using that logic, any law passed in any state would have to be enforced in every state.

Does that mean that marijuana would be legal everywhere? Hooray! Oh wait, we’d first have to decide which state laws apply — What if it’s decided that the state laws that prohibit guns from being carried everywhere are the laws that apply over the entire country? Why are these people assuming it’s the law they want that will prevail?

“But but,” the gun lovers scream, “the court said that you have to give gays these rights because it’s based on ‘certain personal choices central to individual dignity and autonomy’ and dadgummit, it’s our personal choice to buy guns without background checks and carry them into churches and shopping malls whenever we want to!”  Besides being ridiculous and not at all what the gay marriage case was about, this is also not what the 14th amendment is about.

Seriously, I’m not even going to dignify this by explaining why. If you can’t see why there is a difference between the fundamental right of all adults to get married and the right to own an inanimate object, then you’ve become so brainwashed by your guns and the gun lobby that there is no hope for you.

by

Ted Cruz and the Constitution

Supporters say that they like Ted Cruz because he “supports the Constitution.”

What bullshit.ted-cruz

Ted believes states should decide civil rights issues such as gay marriage (which, of course, he opposes). Rights should not be voted on. That’s the same argument the segregationists gave and they were wrong too. For Cruz to claim the Constitution allows states to deny basic rights shows that he doesn’t understand the Constitution.

He also does not support the 1st Amendment, especially the Establishment Clause. He’s constantly bitching about how religion is under attack — you know, the whole fake War on Christmas crap — and there’s a reason he gave his announcement the other day at a college that teaches the world is only 6000 years old.  Cruz hates the Constitution, because it prevents him from forcing kids to be taught his church’s creationist story in public schools.

Cruz passed laws when in Texas having to do with immigration which Texas has no power to regulate, and has said that states have the right to do so despite the Supremacy Clause.  That’s hardly the reaction you’d get from someone who “respects the Constitution”. He proposed something called “interstate compacts” wherein states could get together and nullify federal laws they don’t like. You know, ’cause that worked so well for the confederates before.

As for rights of criminals, he was one of many who fought to take away the rights of American citizens who were suspected of terrorism, despite the Constitution’s guarantees. Sadly, he wasn’t alone there, but that hardly makes him a lover of the Constitution.

And you know that part of the Constitution that says the president signs treaties? Cruz supported the GOP Iran letter, so it’s clear that he has no respect for the Constitution’s separation of powers in these matters. (Of course, if it was a Democrat doing that to a Republican President, he’d be screaming “treason”).