Frenzie actually prompted this thread and provided its first post: In another thread, he pointed me to Bostock v. Clayton County (https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf). I remembered the case vaguely...and of course I'd had something to say before I'd even finished the Syllabus!
I'd make three points...
Prefatory, the case of so-called "hate crime" is instructive. Motive is not generally an element of an indictable crime. It is seldom -if ever- a proper part of the prosecution's or the defense's brief. It does have a cogent and obvious place in the penalty phase of a trial, after a conviction -- either as mitigation or enhancement of punishment.
(True, both prosecutors and defense consul often use such when making their case to a jury... that's not important: The judge's discretion limits their excesses! Well, that's the expectation...)
Codifying motive as a separable offence smacks of "thought-crime"!
1. The trope of "disparate impact" is defective, in logic and in law. Statistical reasoning -as practiced- is too weak to support a charge on its own, and as such contravenes the ancient right of a defendant to know what precisely the charges are, against him!
(To see how pernicious the rule of "disparate impact" can be, see Massachusetts v. EPA. It countenances the importation of the Precautionary Principle into American law!)
2. The conflation of sex and gender is uncalled for. "Sex" means physical, biological determinants, not moods or (mis)conceptions, in Title VII... Nor does it subsume "sex acts" or proclivities.
3. The precidential status of dicta, properly called, needn't (I'd say shouldn't...) be elevated by judges to suit their own (or the supposed public's) understanding of changing mores: Writing law is the job of Congress.
Title VII can (and perhaps should) be amended... But not by judges, who then make it the job of Congress to correct misapplication of their laws!
So: Bostock was wrongly decided.
I may have to eat my words, seasoned with your comments and arguments or strewn with the gristle of Gorsuch's textualist pretensions! (Nothing like an ill-aimed insult to a sitting Justice to start this thing off, eh? :) )
Well, it's a bit early here so I'll keep it short, especially since you say you wrote this on the basis of only the syllabus, but the conflation of sex and gender as you call it was extremely well reasoned. I find such an originalist opposition completely untenable; in fact I find the whole approach greatly suspicious because it seems to be selectively applied when someone doesn't like the only rational conclusion that can be reached on the basis of the text.
Gorsuch's argument hinges on what the lawmakers meant when they used the word "sex" without any involvement of thoughtcrimes or mores, and of course on the basis of what people are actually discriminating by. If you're not letting a woman be a mechanic solely because she's a woman that is the very definition of sexual discrimination. It's completely irrelevant why you're discriminating against men; all that matters is that you are discriminating. Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought of at the time isn't covered by a piece of legislation, while you should simply interpret what the law says.
Edit: typo
Maybe if America was ever to become more democratic and more get a decent life noting that corner might not mean much!
Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought at the time of isn't covered by a piece of legislation, while you should simply interpret what the law says.
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution,
per se! (see below)
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
While such an example might strike you as silly, it's precisely such questions that, in Oral Argument, draw the pith of a complex and complicated matter of contention out for all to see!
What you call an irrelevancy is a foundational element in American law!
Some few maxims are relevant:
Don't throw out the baby with the bathwater! (If part of the law is unconstitutional, sever the part -leaving the rest intact and in force- and consider striking down the part...)
Don't cut off your nose to spite your face! (If some questionable part seems not ripe for adjudication, remand -with a mandamus if reconsideration isn't possible...)
You can't have your cake, and eat it too! (If a part is offensive but can't be severed -say, because it's integral to the whole- strike the entirety...)
And so on. My personal favorite, during these modern times, is:
A stitch in time saves nine! (Make an indefensible change, support it through every challenge brought against against it, and pray it survives long enough to be defensible as
precedent! That way, the court has decided, without taking responsibility for its decision...)
One that you'd -I'm sure- think unnecessary:
A dog returns to its vomit! (When a law is so odious that it can't be tolerated, strike it and all its progeny...
E.g., the Fugitive Slave Act and the Dred Scott decisions.)
Title VII of the Civil Rights Act is merely a law passed by Congress; despite the many opinions about it in the cannons of various courts.
Amending such is easy...and only the higher courts' annals, and their keepers, are affected! (And perhaps the hubris of some jurists wounded and egos deflated -a salubrity much needed!
Unless there's considerable opposition to the proposed changes (corrections or additions and/or deletions). Leaving such to re-interpretation by the higher courts (Circuit, Appellate, and the Supreme) is either recidivist or onerous...or both.
Court systems in most states follow the federal model Congress decreed for the Federal Courts; the constitution merely gave the power to design and create such to the Congress. But lower courts, county courts mostly follow the older patterns of the common law, where the power to create judge-made law (like in England) is entrenched and accepted.
Again, conflating our higher courts with their common law cousins is anathema to our peculiar but valued traditions!
Of course, you disagree... :)
(I've been kinda busy -- but I'll return to Bostock,
et al. eventually.)
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution, per se! (see below)
In this specific case, the framers of the Civil Rights Act. But those who frame any law, no matter how foundational or minor. Lawmakers are well aware of the need to restrict things further if that's their actual intent.
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
Why shouldn't it, if soul stealing:
a. Is real.
b. Meets the legal definition of kidnapping.
I think your example rather proves my point. Just because the framers didn't consider soul stealing when they wrote the law, doesn't mean soul stealing is a-okay! On the contrary, a well-written law on kidnapping should implicitly cover soul stealing, or explicitly restrict the definition of kidnapping to physical bodies only. (Perhaps you made up this specific example because chances are a "person" is always implicitly assumed by legal precedence to be a physical body, which is something that would have to be taken into account. But laws aren't written in ignorance of how courts interpret laws; quite the opposite.)
laws aren't written in ignorance of how courts interpret laws; quite the opposite.
Not entirely, no. But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Another example:
A therapist asks his patient how his visit to his mother went.
The patient says, "It did not go well at all. I made a terrible Freudian slip..."
"Really!" the therapist says. "What did you say?"
"What I meant to say was 'Please pass the salt.' But what I said was 'You bitch! You ruined my life!'"
Would your
interpretation of Freudian slip let this slide? :)
How much more important must it be, then, to limit the range of interpretation of the meaning of words used in laws?
...putting lipstick on a pig ([your turn to play! Fill in the corresponding legal tactic here...])
But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Kidnapping is abducting someone against their will. If you abduct someone's soul against their will, why would it be so unthinkable that it might fall under the legal definition of kidnapping? I don't think you're taking your own thought experiment seriously.
If we look at Dutch punishment law, we can see that it says:
Hij die opzettelijk iemand wederrechtelijk van de vrijheid berooft of beroofd houdt, wordt gestraft met gevangenisstraf van ten hoogste acht jaren of geldboete van de vijfde categorie.
He who intentionally robs or deprives a person of his liberty unlawfully will be punished with imprisonment of up to eight years or a fifth-category fine.
The relevant legal questions here are what a person entails and what it means to deprive a person of their liberty. Broadly speaking there are three possibilities with regard to souls:
There is neither evidence for souls nor for the stealing thereof. [There is no evidence that souls can be stolen.]- There is evidence for souls, but stealing them is roughly comparable to stealing hair or nails.
- There is evidence for souls, and stealing them has severe consequences. For example, a person can recall how their soul was kept in captivity, and during the absence of the soul their body entered into a comatose state.
By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping. In other words, some variety of the third scenario.
Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600. The framers can only reasonably be said to have envisioned kidnapping by walking, horses, carts and ships. But now it's 1900, and someone was abducted by dirigible. The framers didn't foresee dirigibles, and there's no legal precedent with regard to dirigibles. It's not kidnapping, argues the defense. There's never been a kidnapping case in which dirigibles were considered a viable means of abduction, and just imagining the sheer wonder of being on a dirigible looking down at the world from far above should be enough to convince you that it's actually a wondrous opportunity. Quite the opposite of a kidnapping.
There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.
Gorsuch is crystal clear. A man or a woman is treated in a discriminatory way, which they wouldn't "but for" their sex. Talking about transgender nonsense is nothing but a distraction. Transgender means someone is behaving in a way that's "incorrect" for their sex. Discriminating on the basis of sex is illegal, plain and simple. There wouldn't be any discrimination if there were no sex involved. It's not Gorsuch confusing sex and gender, it's you. ;)
Would your interpretation of Freudian slip let this slide? :)
That would fit common usage, so that's context dependent. But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.
Broadly speaking there are three possibilities with regard to souls:
Four.
There is evidence for souls but souls cannot be object of property, therefore cannot be robbed.
It's the body that is property of the soul, therefore the body can be robbed and if a ransom asked for, kidnapped.
Sorry for the interruption, please continue your legality debate. :)
That's fair, I should've phrased that as "there's no evidence souls can be stolen." The reason why isn't relevant to the point about kidnapping.
By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping.
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a
controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.
(Such things
do come up in their opinions as explanatory... But when it does it is
dicta -- not precedent for future cases and of no import
re the lower courts.)
Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600
That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.
We're talking about interpreting the crucial element of the crime!
There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.
So, medical technology might remove lobotomy from the realm of medical malpractice and situate it among crimes against persons...
Interesting point! But speculative, and not directly before us like "soul stealing" is!
Thanks, for the way you're treating this topic. (You're really getting into the
spirit of our court's tradition of oral arguments! :) )
But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.
I'm surprised! While I agree with your assessment:
flawed explanation, it's not vague... Granting the meaning of "Freudian slip," the patient's remarks to his mum are nothing like a slip. (Indeed, they might likely have been cathartic... :) ) But, then, you've missed not only the point: You didn't
get the joke!? :)
BTW: Did you read Kavanaugh's dissent?
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.
(Such things do come up in their opinions as explanatory... But when it does it is dicta -- not precedent for future cases and of no import re the lower courts.)
Laws are written using words like "souls" and "spirits," for example in a phrase like "cities of 50,000 and more souls" (source (https://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=nl&la=N&cn=1804032131&table_name=wet)). That's a pars pro toto or a metonymy. You're presuming the entire question to be ridiculous, which
may not follow. A soul is clearly considered part of a person in common as well as legal use, even if we're just using it as a synonym for "physical person" in current reality. Under the right conditions asking the question may not be so silly as to be dismissed out of hand, whether by the prosecution or a (lower) court. To presuppose that keeping a soul in captivity is not kidnapping seems to be begging the question, unless the law explicitly says "physical body" or if it's otherwise clear that "person" means "physical body."
The Dutch organization of judges somewhat regularly publishes pieces urging lawmakers to make some new law they're considering clearer, precisely so they won't have to say they can't judge. It's not the case that judges aren't aware of what lawmakers are doing and vice versa. I think the consequence of your argument is that a judge should be more like a stupid computer program than like Gorsuch who skillfully uses practically applied philosophy.
That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.
We're talking about interpreting the crucial element of the crime!
That's the point; I'm providing a more accurate analogy with regard to transgender people. Transgender people are dirigibles.
Employers may not “fail or refuse to hire or…discharge any individual, or otherwise…discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.
Whether you're discriminating against a woman wanting to ride horses or against a woman wanting to fly previously unheard of dirigibles is irrelevant. You're still discriminating based on sex.
BTW: Did you read Kavanaugh's dissent?
Yup, he does nothing but repeat things that were already thoroughly addressed by Gorsuch. He's even so nice as to contradict himself for us: "our role as judges is to interpret and follow the law as written, regardless of whether we like the result." Which is what Gorsuch did. It's Kavanaugh who's trying to wedge in an absurd definition of sex to avoid following the law as written.
Since the current term's decisions are likely to roil our political pot considerably, I thought it permissible to retrieve this thread. :)
Allow me to re-start and restate the major bone of contention (as I see it, of course) between
Frenzie and me by using another's words:
A living constitution cannot be squared with a written one for the generative principle of the former controverts the animating purpose of the latter. Once it becomes permissible to update the Constitution, not by amending it, but by reinterpreting it (whether in the courts of law or that of public opinion), the foundational law loses its force and meaning. The ligatures that constrain the state become attenuated and a government of laws slowly mutates into a government of men. A governmental system that does not check and balance itself is bound to become unchecked and unbalanced. This has less to do with the nature of the system than the nature of those who run it.
(source (https://lawliberty.org/the-living-constitutions-illimitable-government/))
Well, I'm glad you so thoroughly renounce your earlier position that the law should be interpreted ad hoc according to the current winds. ;)
your earlier position
:) By all means, let's start from a state of utter confusion!
Shall we return to Bostock for a bit?
I've now read the three opinions repeatedly, and such supplemental material as I thought reasonable to consult. My sense of the Court's action has not changed:
Gorsuch goes wrong in the very first paragraph of his opinion, where he says "Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."
And how he doesn't recognize such an obvious error escapes me.
The decision he makes is not his (nor the Court's) to make; it is the purview of Congress, and our separation of powers scheme requires the protection of that prerogative... Indeed, he swore a solemn oath to protect and preserve our constitution, which demands such!
What Gorsuch should have said was "Today, we must decide whether Title VII forbids [...]"!
(Both Alito and Kavanaugh point this out indirectly in their respective dissents. That I state it more plainly befits my lowly station.)
Is it indelicate to observe that Gorsuch (and those who concurred in his opinion) usurp the function of the legislative branch? No. But it might be thought rude to high-light the fact that he knew and said as much at the outset...that that was what he was doing.
We'll see if his phrasing is "corrected" when the opinion is officially printed...
Whether or not it is, the Congress should obviate the lapse by amending Title VII or enshrining the result of his opinion in new law, as prescribed by the constitution.
His formulation contains a hidden ellipsis: "whether [it is right or just that] an employer can"...
On the basis of your quote one might be inclined to think so. Put it back in context, however:
Sometimes small gestures can have unexpected conse -
quences. Major initiatives practically guarantee them. In
our time, few pieces of federal legislation rank in signifi-
cance with the Civil Rights Act of 1964. There, in Title VII,
Congress outlawed discrimination in the workplace on the
basis of race, color, religion, sex, or national origin. Today,
we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someone
simply for being homosexual or transgender. The answer
is clear. An employer who fires an individual for being ho-
mosexual or transgender fires that person for traits or ac-
tions it would not have questioned in members of a different
sex. Sex plays a necessary and undisguisable role in the
decision, exactly what Title VII forbids.
There, in Title VII,
Congress outlawed discrimination in the workplace on the
basis of race, color, religion, sex, or national origin. Today,
we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someone...
Are you implying that Oakdale is goldfish? On my part, I have considered that it's his cat typing, not himself. It would explain some things.
Are you implying that Oakdale is goldfish?
Implicitly accusing of acting like a goldfish, yes.
The goldfish thing came out of my annoyance after looking at the original text to refresh my memory. I had assumed it was quite plausible that the introduction glossed over a thing or two a bit too summarily. Only to find that the quoted phrase doesn't just exist in the broader context of the actual substance of the argument on the following pages, but that the supposed omission is quite literally right there in the preceding and the following sentences! It's impossible to read it the proposed way unless you pretend the sentence exists in some kind of vacuum.
My initial reaction before my sudden onset of annoyance was that dismissing the actual reasoning based on what might implausibly but possibly be construed as a minor oversight in the first few summarizing sentences, is something we should guard for in critical thinking in several ways. The two main ones here being:
- Just because you've dismissed the weakest argument doesn't mean anything if nothing depends on it. This is a psychological defect in us humans that we have to take great effort to correct for, and even if we're aware of it we don't always succeed. The above superficially looks like an example of that. Gorsuch's argument hinges on what discrimination based on sex means according to Title VII, not on whether the court has the ability to create laws out of thin air.
Of course I would be remiss if I pretended even for a second that those three aren't just trying to throw sand in your eyes. Kavanaugh rather hilariously writes that "Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result." That's. Gorsuch's. point! To interpret the law as written, as the courts are supposed to do. That Alito character turns out to be a despicable lying liar when he says interpreting the law is legislating. The court has a constitutional obligation to interpret the law as written, not to make up some contrived claptrap about what people in the '60s may or may not have thought. That would be, gee, what's the word… oh, right, legislating. - Given everything that follows, this cannot be what Gorsuch meant. You can't just pretend the context isn't there.
Gorsuch's argument is quite plainly that in interpretation of the law it would be a bit silly to say that just because some specific kind of discrimination based on sex may not have been envisioned by the original framers who explicitly phrased it as wide as possible, therefore it shouldn't be included. The court doesn't deal with temporal telepathy, but with the text of the law. If they meant something else, they would've or should've written something else.
Once upon a time a guy on IRC started sharing his selfies. It turned out he was a hamster. You never know about people on the internet.
(https://cdn0.wideopenpets.com/wp-content/uploads/2016/10/ftd-14-770x405.jpg)
It's impossible to read it the proposed way unless you pretend the sentence exists in some kind of vacuum.
You mean, like Kavanaugh suggests Gorsuch did with the term "sex"? :)
To take
your sentences "There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someone simply for being homosexual or transgender." I'd have to add a question: Did Gorsuch contend that our courts and congresses -up until his
interpretation- mis-understood the plain application of the law's terms? Did he imply -in your words- that they were all GOLDFISH?
Do you yourself think he did?
As seems likely to me, he set himself the conclusion and reasoned backwards to reach it... (Roberts did him no favor assigning the writing the majority decision to him! But, after what Roberts himself did in finding the "not a tax" penalty to be a "not a penalty" tax when the ACA was challenged, I guess he's come to believe the old saw
Misery loves company!) It's a version of the ends justifying the means, no?
But I appreciate your exasperation. I really do! (And the name-calling too is understandable... :) )
I'd have to add a question: Did Gorsuch contend that our courts and congresses -up until his interpretation[1] (https://dndsanctuary.eu/index.php?topic=3845.msg86580#fn1_4)- mis-understood the plain application of the law's terms?
We already went over all of this previously.
Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600. The framers can only reasonably be said to have envisioned kidnapping by walking, horses, carts and ships. But now it's 1900, and someone was abducted by dirigible. The framers didn't foresee dirigibles, and there's no legal precedent with regard to dirigibles. It's not kidnapping, argues the defense. There's never been a kidnapping case in which dirigibles were considered a viable means of abduction, and just imagining the sheer wonder of being on a dirigible looking down at the world from far above should be enough to convince you that it's actually a wondrous opportunity. Quite the opposite of a kidnapping.
When they wrote sex back in the '60s, most of them were presumably only thinking of the visible sex, what we now suddenly call "gender expression." Many would've likely thought an "incorrect" gender expression to be an aberration, occurring only among a few deviants and non-Western cultures. But that's not the point. As Gorsuch writes, what matters is that the discriminators would not make this decision but for sex. That's what's in the text of the law. There's a pretense by Alito and Thomas that Gorsuch changed the meaning of sex, which he clearly did not, and that you can discriminate on gender without targeting sex, which doesn't make a lick of sense.
Another point to keep in mind is that discriminating on multiple grounds doesn't exempt you from Title VII. I mention this explicitly because that kind of thing would be morally outrageous, but it can sometimes happen legally. As an aside, the provision on sex might not even have made it in there if a racist hadn't been concerned that white women might have fewer rights than black men and women. Then perhaps it would've been fully legal to discriminate based on sex in the United States. And a proper textualist like Gorsuch would've gone the other way.
When an employer fires an employee because she is homo-
sexual or transgender, two causal factors may be in play—
both the individual’s sex and something else (the sex to
which the individual is attracted or with which the individ-
ual identifies). But Title VII doesn’t care. If an employer
would not have discharged an employee but for that in-
dividual’s sex, the statute’s causation standard is met,
and liability may attach.
And on the actual language used:
At first glance, another interpretation might seem possi-
ble. Discrimination sometimes involves “the act, practice,
or an instance of discriminating categorically rather than
individually.” Webster’s New Collegiate Dictionary 326
(1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting).
On that understanding, the statute would require us to con-
sider the employer’s treatment of groups rather than indi-
viduals, to see how a policy affects one sex as a whole versus
the other as a whole. That idea holds some intuitive appeal
too. Maybe the law concerns itself simply with ensuring
that employers don’t treat women generally less favorably
than they do men. So how can we tell which sense, individ-
ual or group, “discriminate” carries in Title VII?
The statute answers that question directly. It tells us
three times—including immediately after the words “dis-
criminate against”—that our focus should be on individu-
als, not groups: Employers may not “fail or refuse to hire
or . . . discharge any individual, or otherwise . . . discrimi-
nate against any individual with respect to his compensa-
tion, terms, conditions, or privileges of employment, be-
cause of such individual’s . . . sex.” §2000e–2(a)(1)
(emphasis added). And the meaning of “individual” was as
uncontroversial in 1964 as it is today: “A particular being
as distinguished from a class, species, or collection.” Web-
ster’s New International Dictionary, at 1267. Here, again,
Congress could have written the law differently. It might
have said that “it shall be an unlawful employment practice
to prefer one sex to the other in hiring, firing, or the terms
or conditions of employment.” It might have said that there
should be no “sex discrimination,” perhaps implying a focus
on differential treatment between the two sexes as groups.
More narrowly still, it could have forbidden only “sexist pol-
icies” against women as a class. But, once again, that is not
the law we have.
I find discrimination laws highly contentious and pretentious. What is discrimination? Is it "to disadvantage" someone? Or is it merely "to differentiate"? The latter we do all the time without any problem, e.g. passports state (and personal id numbers imply) whether you are male or female, so that's differentiation. Does the law prevent this? No, never did. And it's not clear it would serve any sensible purpose to abolish this differentiation.
But "to disadvantage"? Shouldn't the law be against any and all disadvantaging, not solely on the basis of a limited list like race, sex etc? There's one clear disadvantaging in workplace that no law has ever addressed (and never will): Paying different salary for the same work/position/title (or worse, objectively easier tasks get better paid). Employees "can" (as if they had a choice or say in the matter) negotiate individual salaries. As a consequence, different individuals end up with different salaries, and women may average to a different salary than men. The salary you get is a vital thing - if you don't get it, you may die of hunger and cold - but law turns a blind eye, as if this were not deadly discrimination. Also, in work interviews you usually need to show your face, so the prospective employer necessarily screens you for race, sex, fashion, height, weight, voice, etc. The laws do nothing to address this.
When the limited list was introduced due to feminist pressures - "discrimination in the workplace on the basis of race, [skin] color, religion, sex, or national origin" - "sex" certainly meant merely whether the individual is male or female. It did not mean sexual orientation or, worse, self-perceived identity. Yet in this day and age it does, because we are beyond feminist pressures now - we have LGBT(+etc) pressures, and this permits, nay, demands "sex" be interpreted as whatever - and it's as literal from current perspective as mere male/female distinction was from the 60's perspective.
More fuel to the fire, European countries have started to put "sexual orientation" explicitly on the list. The funny thing is of course that pedophilia and what not are also sexual orientations (how would you argue that they are not?), so does it really serve a sensible purpose to explicitly normalise any and all sexual orientations? Insofar as workplace is concerned, how would sexual orientation even come up? Should everybody be able to advertise their sexual orientations, regardless of the work they are in? Shouldn't only professional qualifications matter in workplace? (The only workplace where sexual orientation would matter is probably porn industry, so regulate that, lawgivers.)
As to "interpreting" that Oakdale has an issue with, it so happens that whenever you read a text, you are interpreting it. Inevitably. It is impossible to not interpret. Learn from the failures of strict Bible literalists. The pitfalls are in fact more applicable to law texts, because law is human, not divine, so law is as flawed as humans in general. Law is not an exact science nor a philosophy. It is a social construct and experiment, a work in progress like AI translation. At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.
(The only workplace where sexual orientation would matter is probably porn industry, so regulate that, lawgivers.)
The law already says you're perfectly within your right to discriminate on the basis of sex in soccer teams and similar matters like porn, in America as well as here.
As to "interpreting" that Oakdale has an issue with, it so happens that whenever you read a text, you are interpreting it. Inevitably. It is impossible to not interpret.
It's quite literally the job of the courts to interpret the law. That's what they're there for. Otherwise they'd serve no purpose.
At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.
And yet the very definition of feminism is "Shouldn't the law be against any and all disadvantaging, not solely on the basis of a limited list like race, sex etc?" Anything else is straw feminism.
At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.
And yet the very definition of feminism is "Shouldn't the law be against any and all disadvantaging, not solely on the basis of a limited list like race, sex etc?" Anything else is straw feminism.
I happen to agree. The lawmakers who thought they can address the
grievances of women and ethnic minorities by means of a list like this, were engaged in straw feminism. Also, the "sexual minorities" who have led to the extension of the list are just perpetuating the same straw mindset.
The list is bad form for rights that everyone should have. The list would be a better form for necessary distinctions to be made, but the point of this law is "don't discriminate", instead of "do differentiate". Normally such laws employ an exception list instead, e.g "everybody is equal, except high state officials have privilege, legal might has superiority and bigger capital has priority." I.e.a negative list, not a positive list.
As an aside, the provision on sex might not even have made it in there if a racist hadn't been concerned that white women might have fewer rights than black men and women.
The only speculation I've read about that is that it was proposed as a so-called
poison pill - an amendment designed to make the law less likely to be enacted... (Not an unusual legislative tactic!)
I reject the contention of obscurity in language usage that makes personal interpretation the standard: that's no standard at all. And were it so, communication would be impossible. Translation from one language to another is more likely to be idiosyncratic. But among native speakers the Humpty Dumpty/Alice exchange in
Through the Looking Glass doesn't seem profound but only silly.
That mores have changed in the 50-some-odd years since the law's passage, there's little doubt. That the usage originally encompassed and logically contains our modern peccadillos seems more than far-fetched: It seems perverse...
(It's that very perversity that makes the exchange so entertaining!)
Still,
ersi is correct about the historical causes that bring us to this point.
Let's back up a bit:
As Gorsuch writes, what matters is that the discriminators would not make this decision but for sex. That's what's in the text of the law. There's a pretense by Alito and Thomas that Gorsuch changed the meaning of sex, which he clearly did not, and that you can discriminate on gender without targeting sex, which doesn't make a lick of sense. (emphasis added)
But as
ersi points out,
The funny thing is of course that pedophilia and what not are also sexual orientations (how would you argue that they are not?), so does it really serve a sensible purpose to explicitly normalise any and all sexual orientations?
Further:
ersi said on 2022-01-06, 00:56:29: "As to 'interpreting' that Oakdale has an issue with, it so happens that whenever you read a text, you are interpreting it. Inevitably. It is impossible to not interpret."
It's quite literally the job of the courts to interpret the law. That's what they're there for. Otherwise they'd serve no purpose.
In the American system the purpose of the higher courts is to resolve conflicts and controversies. As Gorsuch did with "but for sex" many attempt to do with "interpret"...
ersi correctly shows that Gorsuch abrogates the Absurdity Doctrine.
In other words, Humpty Dumpty is headed for a great fall! And all the king's horses and all the king's men will be unable to put him back together again...
There's a pretense by Alito and Thomas that Gorsuch changed the meaning of sex, which he clearly did not, and that you can discriminate on gender without targeting sex, which doesn't make a lick of sense.
You mean you reject
their interpretation? Pray tell: What privileges
your interpretation? Word games can only get you so far... :)
And "gender" is, the way you use it, a quite modern term.. Time was, it was but a grammatical category...
When the statute in question uses language easily understood on the basis of documented common usage and supported by contemporaneous reference works, what justifies the "new" interpretation?
What you call a "pretense" is merely an unpretentious reading of original text, eschewing flights of fancy.
It's telling that you'd rehash your example of the law against kidnapping from the 1600s to the 1900s:
How do you justify making the means of transport a "but-for" element of the crime? (Remind me, please...)
Oakdale, the problem is far beyond the interpretation of the word "sex". Luckily for Title VII, it specifies "in the workplace", so everything outside the workplace should be a non-issue.
In the workplace, as far as my experience goes (admittedly limited experience, as I have been a white-collar office employee all this century), sexual orientation does not even come up, so this kind of anti-discrimination law is futile. It's rather the other way - as soon as sexual orientation does come up, as in some colleagues display their orientation so that it affects the work environment, somebody is sure to get fired, i.e. absolutely discriminated against. Simply, there's no room for any sexual orientation whatsoever in the workplace.
For the sake of workplace, the law should better postulate something relevant to workplace, such as equal pay for the same tasks/position/title. But for some idiotic reason this point, even though at the forefront in real-life work environment, is left to "free market".
The law is messed up on this point, not on the word level, but on the section level or even on the principle level. Those whose job is to apply/interpret the law as written are f'd, fairly literally. Some judges try their best to not be ridiculous. The majority try their usual veiling of ulterior motives. None of them will admit the law is letting them down.
The list is bad form for rights that everyone should have. The list would be a better form for necessary distinctions to be made, but the point of this law is "don't discriminate", instead of "do differentiate". Normally such laws employ an exception list instead, e.g "everybody is equal, except high state officials have privilege, legal might has superiority and bigger capital has priority." I.e.a negative list, not a positive list.
The Dutch constitution phrases it as follows in article 1:
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the
grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be
permitted.
Except when limited by law, if there is a proper justification for restricting it, as tested by the court. Ultimately that's the High Council if it makes it that far, or in arguably better English the Supreme Court.
I reject the contention of obscurity in language usage that makes personal interpretation the standard: that's no standard at all.
There is no obscurity. There is just thinking it through logically. Why are you discriminating against a crossdresser? Because they're wearing a dress or short hair. Would you discriminate against a woman wearing a dress? No? Then you're discriminating against the man wearing the dress based on their sex. You can't fit a pin between it. There is no question regarding the definition of sex here. There would be no discrimination but for sex. If you don't like it, blame the text of the law. It could've easily said something else, as I just quoted Gorsuch clearly explaining above.
But as ersi points out,
There would be no reason to be opposed to pedophilia if children could act as consenting adults. But that's neither here nor there. Legally speaking I doubt you could generally discriminate against someone just for having a sexual preference for children. Plainly put, if you see an attractive woman, do you proceed to rape her or do you just think to yourself it's an attractive woman? Unless the word pedophile here is intended to mean something like
rapist or
(child) abuser it is in fact more or less a sexual orientation, although I think handicap would be a better word than sexual orientation, particularly legally speaking. I.e., for a forklift driver the handicap of being a pedophile doesn't matter but for an elementary school teacher one imagines it does.
What privileges your interpretation?
Surely you have no less a problem rejecting my interpretation than I have rejecting yours. :) But I am dismayed that someone of your intelligence can read what Gorsuch wrote as well as what Alito wrote and not see that Alito is at best pretending Gorsuch didn't already more than disprove all his arguments with ample examples and precedents. There are no "word games" here, only proper applied philosophy based on the plain meaning of words.
A convincing objection to a proper principled textualist interpretation as per Gorsuch would be how @ersi once showed that I took Scalia too much at his word regarding the texts from the 18th century with regard to the Second Amendment. (I.e., that a well-regulated militia only ever meant something like the National Guard and that pretty much all 20th century SCOTUS decisions are a muddled mess.)
When the statute in question uses language easily understood on the basis of documented common usage and supported by contemporaneous reference works, what justifies the "new" interpretation?
This is the entire point. Gorsuch uses the ordinary meaning of sex and establishes how the ordinary meaning of sex entails discrimination based on sexual interest and outward appearance ("gender"). That is because
but for sex, those behaviors aren't being targeted. A man interested in having sex with a woman isn't being targeted. A woman interested in having sex with a woman is. A woman wearing a dress isn't being targeted, but a man wearing a dress is. The behavior is identical,
but for sex.
It's telling that you'd rehash your example of the law against kidnapping from the 1600s to the 1900s:
How do you justify making the means of transport a "but-for" element of the crime? (Remind me, please...)
The point is that it doesn't matter whether anyone envisioned that men might want to wear dresses just the same as it doesn't matter whether anyone envisioned that people might be kidnapped in dirigibles. You can't point at an analogy and say that, aha, it doesn't apply outside of its constraints.
But that's just a generic remark. For kidnapping, it doesn't matter what you do
but for transporting someone against their will. It doesn't matter if you're taking them in a suitcase where they can barely breathe or if you're kidnapping them in a dirigible of utmost luxury. Taking someone in a dirigible would be awesome
but for the fact that you're doing it against their will. That's what makes it kidnapping, not the fact that you're being confined in uncomfortable circumstances.
Oakdale, the problem is far beyond the interpretation of the word "sex". Luckily for Title VII, it specifies "in the workplace", so everything outside the workplace should be a non-issue.
Only a limited number of workplaces too (i.e., certain industries, companies with more than 15 employees, and so on).
The law is messed up on this point, not on the word level, but on the section level or even on the principle level. Those whose job is to apply/interpret the law as written are f'd, fairly literally. Some judges try their best to not be ridiculous. The majority try their usual veiling of ulterior motives. None of them will admit the law is letting them down.
:up:
Sort of a brief respite — following our long pause and before we resume:
DC Diary
By Oliver Wiseman
Judge Jackson’s patriotic rebuke to the left
As confirmation hearings for Supreme Court nominee Ketanji Brown Jackson enter their third day, coverage has focused more on the questions she has been asked than the answers she has given. Whether it’s Josh Hawley’s scrutiny of Jackson’s sentencing for sex offenders or Ted Cruz quizzing her on Critical Race Theory, the most bad-blooded argument over this week’s Senate drama has concerned the legitimate parameters of these presidential hopefuls’ questioning.
To bypass that mostly unedifying debate, and instead to focus on Jackson’s answers, has been a heartening experience. Ever since she was introduced by Biden at the White House last month, Jackson has seemed a reassuringly earnest, patriotic and accomplished figure. And in her prepared statements, both at the White House and on the Hill, Jackson has painted a picture of America, its legal traditions, and her family story that are noticeably out of step with the contemporary left.
“The United States of America is the greatest beacon of hope and democracy the world has ever known,” said Jackson when she spoke at the White House. It was the start of a quietly subversive trend.
(more (https://spectatorworld.com/newsletter/jackson-patriotic-rebuke-dc-diary-03-23-22/))
After adding to a short list of her remarkably American opinions the amazing 'There was even something for the originalists in Jackson’s answers. “I do not believe that there is such a thing as a living constitution,” she said yesterday.' Wiseman concludes with:
The course Jackson has charted since her introduction on the biggest stage in American political life is lost in both the overblown attempts by Republicans to paint Jackson as a CRT-toting radical and the left’s uncritical “yasss-queen” embrace of a new celebrity-public figure. But the contrast between Jackson and the prevailing mood in the party of the president who nominated her matters. Contrast Jackson’s remarks with, for example, Biden’s glib comments about “Jim Crow on steroids.” That tells you all you need to know — about both a cynical president and the woman set to be America’s newest Supreme Court justice.
(from The Spectator (https://spectatorworld.com/newsletter/jackson-patriotic-rebuke-dc-diary-03-23-22/))
A
wise man, indeed!
I'm watching Brown Jackson's Senate hearing now... She's not a Justice I'd choose, even from the administration's short list. (That would be "Leondra Kruger, 45, a California supreme court judge since 2015 who would be the first person in more than 40 years to move from a state court to the supreme court if she were to be confirmed.") But I can't see this nomination failing to replace Justice Stephen Breyer.
I'd have to vote for her, myself, since the vote is up-or-down! (No
à la carte.) :)
While I appreciate the thought, it would be wiser to quote a tad more selectively lest The Spectator is unhappy about their copyright being violated.
Shall I edit it? (I am a subscriber, both digital and print...) Whatever you think best, Oh Noble Administrator! I just thought the piece too good not to share, all around my admittedly limited Serious Conversation's ambit.
Exxon did research on the environmental effects of its own industry. Deny that.
Pollution (of the environment) was always the more appropriate factor to account for in economics and law. But instead they call it "climate change" to make it intractable, because this helps escape accountability.
Exxon is not being unfairly persecuted. They knew the costs they incurred on society while making profits to themselves. Instead, they are being unfairly acquitted, because the law is clear about profits, but very unclear about social and environmental costs, i.e. the law is unfair.
Such law be damned. I side with environment any day over stupid laws.
Whatever you think best
It feels fine to me on a visceral level, not dissimilar to if you handed me the newspaper section or if you had read it to me aloud. But yes, please edit it a bit to prevent potential issues along those lines.
(Wrong thread, ersi... But: Close Enough for government work, eh? Partisanship, partisanship all the way down! Right? :) )
DC Diary
By Oliver Wiseman
[...]
To bypass that mostly unedifying debate, [...]
I took a look at the hearings and, oh boy, I see why one would like to hush up what went on there. Senator Cornyn (R - Texas) showed deep concerns over that Jackson had represented terrorists as an attorney (so, Cornyn thinks there are people who deserve no representation in court of law) and made decisions against Republicans as a judge (so, court decisions are to be assessed primarily on partisan basis, according to him). Senator Graham (R - South Carolina) straightforwardly put Jackson to the religious test - and got the correct answer that religious tests are not allowed.
I'm not even going to talk about Ted Cruz and the like, on whom there is almost bipartisan agreement that they are idiots. The point is, those who were in the position of judging the qualifications of Jackson, demonstrated themselves supremely unqualified.
(Wrong thread, ersi... But: Close Enough for government work, eh? Partisanship, partisanship all the way down! Right? :) )
Yeah, climate is partisan for you. You have nothing relevant to say about climate in any thread.
You have nothing relevant to say about climate in any thread.
Of course you
feel that way! Following the topic via the various resources available on the net since AR 3 isn't much to go on, so I'll bow to your superior knowledge and experience? :)
But of course I admit to being a (somewhat) layman
luke-warmer. My four go-to blogs are McIntire's Climate Audit, Brigg's eponymous STATISTICIAN TO THE STARS! (now called) Science Is Not the Answer (on substack), Schmidt's Real Climate, and Curry's Climate, etc. Others are usually mentioned in them, so those usually suffice. Oh, and of course Luboš Motl's blog The Reference Frame! (His posts are always fun to read!)
And I've read most of the ARs...
@
ersi: From whence comes your expertise? (And smug attitude? :) Are you just naturally disagreeable?)
Yes, I'm wemdog my way back to the thread's topic... :) All in good time!
I’m looking forward to Justice Clarence Thomas’ resignation (if he truly believes in the “integrity” of the SCOTUS), owing to his wife’s attempted meddling in the January 6 GOP insurrection and his subsequent lone vote to withhold documents from that treasonous day from the Right.
https://www.google.com/amp/s/www.forbes.com/sites/alisondurkee/2022/03/25/supreme-court-justice-clarence-thomas-faces-calls-for-hearings-recusal-resignation-for-wifes-texts-about-2020-election/amp/
Don't hold your breath,
Colonel!
More than 30 advocacy organizations—including MoveOn, the American Federation of Teachers and Indivisible—sent a letter to the House Judiciary Committee Friday calling for it to “immediately” hold a hearing on imposing a code of ethics for the Supreme Court in light of Ginni Thomas’ text messages, as justices aren’t bound to follow the one in place for lower federal judges.
Pointing to both Thomas and his wife as well as other justices’ conduct, the groups said the lack of a code of ethics for justices is a “major concern for the country,” and called for lawmakers “to rein in a Supreme Court that has utterly failed to police the conduct of its own members.”
(from the Forbes article you linked to, Colonel...)
The lack of a code of ethics for justices is a major concern for the country...? This is laughable.
I wonder why none of these "groups" had
worries about, say, Justice Ginsburg's political activities... :)
I find it especially touching, that Thomas is essentially being called on the carpet, for not keeping the little lady under control!
The Democratic Party seems hell-bent on abandoning their (supposed) commitment to Women's Liberation! To me, it looks like they can't even acknowledge
women as a class... Perhaps someone can explain the logic of their positions to me? :)
I am dismayed that someone [...] can read what Gorsuch wrote as well as what Alito wrote and not see that Alito is at best pretending Gorsuch didn't already more than disprove all his arguments with ample examples and precedents. There are no "word games" here, only proper applied philosophy based on the plain meaning of words.
Judge Jackson, when asked a simple question by Sen. Blackburn, best re-opens this topic, I think.
The Judge claimed
she couldn't define "woman" — not being a biologist! :) (Of course, even that answer will prove problematical for her...having all but admitted, indeed, that biology is what should determine the answer: An adult female.) Why would she have such difficulty? For the same reason that Gorsuch's opinion amounts to the following formulation:
As Alito documented, multiple Congresses have rejected amending (
updating, of course...) Title VII to include
sexual preference and
sexual orientation (gender expression)...
But by torturing the language the desired result is achieved!
His
but-for analysis is a way of saying "You silly legislators left a logical loop-hole! So there, take that!"
So much for the notional presumption that legislatures legislate...
One
could argue that Judge Jackson
shouldn't opine on the weighty question "What is a woman?" since this has yet to be authoritatively determined by the Supreme Court — a matter sure to resurface in subsequent sessions. One could also call her reticence
too cute by half! :)
As Alito documented, multiple Congresses have rejected amending (updating, of course...) Title VII to include sexual preference and sexual orientation (gender expression)...
There is only a reason to do such a thing when there is doubt. There is none.
@OakdaleFTL
What do you think about Eastman memos? Is it a legitimate interpretation of Amendment 12 that the vice president can decide which electoral college votes to count and which ones not?
...the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted...
There is only a reason to do such a thing when there is doubt.
You take the Titles to be generic and blanket bans on discrimination, I presume? :) That's not the case.
that the vice president can decide which electoral college votes to count and which ones not?
This trope is not tenable. There are procedures and means to challenge slates and individual electors, but they're not within the purview of the Vice President — even when acting as the President of the Senate.
(Don't be surprised,
ersi: I'm often at odds with academic lawyers; you'd be amazed at some of the tripe law professors come up with! :) )
(Don't be surprised, ersi: I'm often at odds with academic lawyers; you'd be amazed at some of the tripe law professors come up with! :) )
He didn't simply come up with it. He served as Trump's tool.
Here's (https://claremontreviewofbooks.com/wp-content/uploads/2021/11/DisputedQuestion.pdf) some critique of the Eastman memos. Followed by a response from Eastman. Decent-sized essays.
The points of the critique (my own summary, rushed, missing some points and nuance probably):
- There are two memos. The shorter one (two pages), which came to light first, is called "a preliminary, incomplete draft" by Eastman and "bowdlerized by the media" by his defenders. But it is not a draft nor is it altered by the media. Rather, it was released in full by the media, the contents of the shorter memo is in line with the longer memo (six pages), and the memos do not bear any sign of being a draft, being labeled "privileged and confidential" instead.
- The memos state that seven states transmitted dual slates of electors to Congress. In reality, each state transmitted just one set of certified electoral votes. Any possibly competing alternate slates were uncertified by the authorities of the states.
- The memos quote 12th Amendment of the Constitution, "...the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted..." and interpret the "...the votes shall then be counted..." part as that the President of the Senate (i.e. then-active Vice President) has the sole power to do the counting - more crucially, VP would be able to decide which votes to consider as properly certified and which to discard, and the Congress would be unable to legally intervene.
- The memos also cite "legal authority and historical precedent" to the effect that when there is a dispute about electoral votes, the Constitution makes the VP the ultimate arbiter. However, while there indeed is some legal opinion to this effect, it is a minority opinion. Importantly there is the Electoral Count Act where VP cannot behave like the ultimate arbiter without interference (according to the minority opinion the Electoral Count Act is deemed unconstitutional and should be ignored, even though the Electoral Count Act is a long-standing normal practice by now) None of the cited historical precedents are really about disputed electoral votes. None of them overturned voting results.
- The memos propose that Mike Pence declare that there are competing slates of votes and they cannot be counted at this time. Various scenarios follow, which is the main contents of the memos. The scenarios are from most brazen - that Pence and Trump control the entire course of events henceforth - to investigations by Congress, courts, state and federal agencies with different results, in one case finding no irregularities and thus Biden winning, in other cases finding enough irregularities/challenges/fraud so that Trump remains in power. The problem is that the scenarios rely heavily on presupposing the mentioned constitutional interpretation and on ignoring the Electoral Count Act. Assuming that this can be done, the memos would provide an equally plausible road map for Kamala Harris in next elections and could have been that for Al Gore in 2000.
Eastman responds to each point in the article linked to above, except to the last point as far as I can see. However, in this podcast interview (https://podcasts.apple.com/us/podcast/discussing-the-john-eastman-memo-with-john-eastman/id1436210825), he says that his ultimate advice to Mike Pence was something like, "My interpretation (of the 12th Amendment and EVA) is an open question, but it is the weaker argument. It would be foolish to follow it under these circumstances."
I don't believe that that's exactly what Eastman said to Pence. This way he would have been useless for Trump and he would not have been there.
@ersi: From whence comes your expertise? (And smug attitude? :) Are you just naturally disagreeable?)
I am making a great career out of my expertise - outside the academic field that I had trained for and hoped would become my career.
But what's your expertise? On this forum, you are headstrong in entrenched partisanship. The sole topic that can be evidently discussed with you is US constitutional law. Just that - not political events, not history, just the points of law and court decisions. This is way too narrow.
On all other topic, such as economy, social issues, environment, etc. you are only able to discuss them as if they were legal or partisan issues. Guess what, they are not. Ontologically. You little care about ontology.
You little care about ontology.
:) As a parlor game — yes, that's true. Are you familiar with José Ortega y Gasset?
(Your presumptions about my views are -should I say-
peculiar? :) )
I am making a great career out of my expertise - outside the academic field that I had trained for and hoped would become my career.
Glad to hear it, and I hope you enjoy your work! (Really.) But I can't help but ask, weren't you previously some sort of cross between a propagandist and an advertising consultant? :)
I have no interest in defending or praising or indicting or defaming Eastman... (I'm sure —perhaps I even remember?— we'd disagree about how the 2000 presidential election was decided; but that's history that I don't believe you're capable of understanding.) Eastman broke no laws, and I don't -nor have I ever- agreed with him on the VP's role, even theoretically.
Suffice it to say, I don't really do gossip-y stuff. You'll forgive me my sensibilities? (I'm considerably older than you, which should count for
something? :) Or must one have
credentials to merit your seriousness?)
I hope you enjoy your work! (Really.)
Currently making an awesome career at a bank. Now I finally need to learn Excel to move up the ladder. It turns out I hate Excel more than I thought I would.
But I can't help but ask, weren't you previously some sort of cross between a propagandist and a advertising consultant? :)
In my jobs I have always been a back-office data-entry or data-processing clerk type, not a public figure, never too much customer/client contact, and lately no necessary contact with anybody at all, colleagues or bosses or whoever. And that's the good aspect of my jobs.
Eastman broke no laws,...
As the events ended up, this is correct. Pence saved him. But Eastman advised Trump in a certain way that, if the advice were to be followed, it would have been complicity in crimes of the highest order.
Trump belonged to prison already in the 80's, in my not so humble opinion. For his casino business and parties with Epstein at Mar-a-Lago. By now his list of crimes is so long and grave that one can judge the merits of US legal system based on the fact that Trump has remained unconvicted to this day. Edit: Oh, right, he ended up the president of the country instead. God bless America!
The sole topic that can be evidently discussed with you is US constitutional law. Just that - not political events, not history, just the points of law and court decisions. This is way too narrow.
My interests are considerably broader — but few of them lend themselves to forum discussions. Music, painting, photography, poetry, writing; logic, science, psychology, philosophy; nature, nurture and puzzles and games...
Do these sound like grist for our mill, here? :)
And despite (or perhaps because of?) the many years I lost to alcoholism, I most comfortably revert to my earliest
career: Gadfly.
'Nuff said? :)
You take the Titles to be generic and blanket bans on discrimination, I presume? :) That's not the case.
Again, read Gorsuch. His textualism is the only tenable position, and the US Supreme Court is almost always textualist as well. Unintended consequences of a law are valid as per the US Supreme Court over and over and over again, and if that weren't the case they wouldn't be worth paying any attention to. It looks an awful lot like Thomas' supposed originalism comes and goes with the wind, and that he's a perfectly good textualist when it happens to support his position. The original intent of whoever wrote the law is
always with an eye on how a textualist court necessarily will interpret it.
Originalism is the personal interpretation you claim to oppose, while textualism preserves the original intent of the language of the law. Emphasis on
language, the only tenable approach, free from armchair
psychologymind reading. The framers write laws from this point of view, and they don't spell out details as to what they think the consequences may or may not be because that would be unenforceable madness with a capricious sieve of a legal system. Put another way, it would seem that in your opinion
@ersi is correct or should be correct in stating that it is and has been in such a sad state of affairs for a long time. No regular citizen could ever know the law because the words are meaningless without random mind-readings from the US Seance Court.
Thankfully Gorsuch clearly shows this is not the case.
Again, read Gorsuch Alito. His textualism is the only tenable position, and the US Supreme Court is almost always textualist
I'd call it (Gorsuch's opinion) an example of
hyper-textualism... But you'd contend that the most a Justice can wring out of the language is what
should apply?
I still think you're confusing common law with statutory and constitutional law.
they don't spell out details as to what they think the consequences may or may not be because that would be unenforceable madness with a capricious sieve of a legal system
Yet when an
opinion is demonstrably contrary to the law as applied over decades, invoking readings of the text repeatedly rejected by multiple Congresses, and entailing a plethora of (Unanticipated?) consequences — such that, were the same procedure frequently used, there'd
only be SCOTUS opinions to go by!
And the make-up of that court would be the most consequential of "political" questions... A circumstance to be diligently opposed and avoided!
And yet some feel we've already lost that battle, lip-service to the contrary...
Remember: It wasn't so long ago that the Absurdity Doctrine was "routinely" used to interpret legal text? :)
I'm afraid I can't be
perfectly logically consistent in my views; and I sincerely doubt anyone else can be, either. One of the attributes a Justice should keep on the lookout for is
hubris...
Trump belonged to prison already in the 80's, in my not so humble opinion. [...] By now his list of crimes is so long and grave that one can judge the merits of US legal system based on the fact that Trump has remained unconvicted to this day.
Have you never sat on a jury? It's both humbling and onerous! I'm often amazed and amused by how easily most folk take to a seat of judgement... I've found it less than comfortable.
But to each his own, eh? :) That is to say: as long as people don't take the law into their own hands, deciding to be judge and jury, they're entitled to their opinions. Sentencing and punishment happen -or don't- in the real world.
Yikes! (https://dndsanctuary.eu/index.php?topic=3845.msg86738#msg86738) It's been a good many years since you've "shared" such personal views with me...
I don't suppose an interlude of chat will detract from this thread!
Sorry for the confused order my recent posts: My stable install of the latest Vivaldi
hung... As I watched the spinning beachball, I saw each browser I'd had open stop responding. Except the snapshot Vivaldi... But by then the temp around my machine's processor was near 150º F and climbing. I thought I'd wait it out and put the beast to sleep.
It looked once like the system was going to crash, but
faith is sometime rewarded: No re-start; no browser crash, no data lost!
What you describe as your ideal work environment,
ersi, would drive me nuts! Perhaps because of my early experiences as a nightclub musician, I've always liked hubbubs and small crowds. I like (well, I did; I'm retired now) the unexpected, problems and challenges... And when things were under nominal control I'd found that there are few "jobs" that I couldn't do while carrying on a conversation.
People fascinate me, and I like being around them! (I've quipped, "Not surprising, that: I was
raised by people!")
I get the data entry part; it's like playing an instrument, sight-reading. After a stint as a "supervisory" data entry clerk for the 1990 Census (
supervisory, because we had some people who were easily confused by the software we used, and I'd help anyone nearby who got stuck...), and soon thereafter helped the local medical insurance processing group cover during a major migration to a new suite of software... (Remember H. Ross Perot? With his wife's money he bought and expanded the company to do that sort of thing via terminals; he eventually sold it to General Motors, making himself a multi-millionaire. Shrewd strange little man!! But he gave the country — Bill Clinton; no great loss, since GHW Bush was never a Reagan
ite. Well, that same company was handling Blue Shield's document processing... I felt right at home on their smart terminal.) But there
production was what mattered most. 50+ data entry clerks each with their own HCPCS manual covering much of their desks. Not much social interaction!
But my next gig was as a process server. :) That was a lot of fun! (Mostly.)
I'd call it (Gorsuch's opinion) an example of hyper-textualism... But you'd contend that the most a Justice can wring out of the language is what should apply?
You phrase that as if it were an absurdity, while failing to consider the alternative: that otherwise a justice would be arbitrarily making things up. Yes, a bad ruling is preferable over a Bad ruling. Therefore this
should indeed be the limit.
You phrase that as if it were an absurdity, while failing to consider the alternative
An absurdity? No. But a programme all but guaranteed to result in
absurdities! And one that can't help but frustrate the sometimes careful work of those empowered to frame our laws.
"Hard cases lead to bad law" from the judiciary, it's often said. Well, I'd contend Chop-logic as a method of statutory interpretation leads to results untethered from "We, the People" - as the vernacular has it. :)
You'll recall Oakeshott's "On Being Conservative (https://contemporarythinkers.org/michael-oakeshott/essay/on-being-conservative/)"? His description of conservatism has, I think, much in common with Ortega's ontology... Somewhat similarly, I'd feel compelled to reject an entirely consistent formulation of judicial interpretation. (The love of Theory often and easily becomes perverse.)
People -even the best and the brightest- can't (and
shouldn't) think that way; else we'll soon replace SCOTUS with some version of Google-inspired AI.
Not your "a justice arbitrarily making things up," as you put it. (And forgive an old habit instilled by the likes of MacAllan: You pose one of the most bizarre False Dichotomy! :) )
To repeat another's words:
Woke today is Savonarola and Torquemada rolled into one. Unforgiving and repressive, it has replaced common sense with crazed theories about race and privilege. The deeply stupid have fallen for it. We are now obsessed with eradicating every ism in the book.
(from The Two Nicks (https://www.takimag.com/article/the-two-nicks/))
Have you never sat on a jury?
Not sure if to call you parochial or something worse, but you should know that courts of law in continental Europe do not do juries.
And such knowledge in what way pertains to a discussion of the U.S. Supreme Court's duties and methods, when interpreting U.S. Civil Rights law? :)
Many countries leave the prosecution, fact finding, pronouncement of verdict and sentencing to "experts" — I know. But then, and in such places, I've no doubt as many as do here consider themselves expert enough to perform most of those functions quite cavalierly.
And such knowledge in what way pertains to a discussion of the U.S. Supreme Court's duties and methods, when interpreting U.S. Civil Rights law? :)
Which was not the topic when you brought up jury experience. The topic was whether Trump is guilty of crimes. Does not depend much on Supreme Court or whether one has jury experience.
Ah, I got it. Since it's your guy being accused, therefore smokescreen and mirrors.
If Trump is guilty of crimes, why has he not been charged, prosecuted, convicted and sentenced?
Feel free to bring up his two impeachments. But we've been over those many times; and we're neither of us going to convince the other... (Add in the complications of the nature of impeachment under the U.S. system, and we'd be playing tic-tac-toe:!)
New York's previous Attorney General Cyrus Vance has been after Trump for years. I'll note that Vance was a highly political AG. His replacement -it's an elective office- has decided there's not enough evidence of wrongdoing to convince a jury, and so dropped the prosecution in search of a crime. :)
The lead prosecutor, who came out of retirement to pursue Trump, retired again when his boss told him he couldn't continue his "case" against Trump. Isn't it odd, that his resignation letter was leaked to the press, and that he spoke therein of Trump's many crimes — none of which he could prove in a court of law, according to his boss?
I readily grant that the public Trump is an unlikable character... But that's not a crime, either. Except to some very partisan officials and ex-officials, who oddly enough are almost all republicans!
You could counter that John McCain's daughter and wife are Republicans, and they hate Trump. Well, Trump tweaked McCain's nose often enough! He did the same to Dick Chaney, dad to Wyo. Rep. Liz Chaney (R?!)...mostly over our invasion of Iraq in 2003.
Trump's not "my guy" any more than any politician has been. (Reagan was a special case.) But I voted for Trump twice, and, unless there's someone better for my country who can win in '24, I will likely do so one more time. Because of what he accomplished...
You of course discount any and all of his administration's accomplishments; I believe, in the main because you misunderstand the job he was elected to and because of a visceral personal animus. (An odd thing to feel for a man you've never met, who affects your life not at all really.) Was it his well-documented disdain for all things neocon? :)
I'd rather talk about matters somewhat related to the thread's topic, U.S. Supreme Court decisions...
If Trump is guilty of crimes, why has he not been charged, prosecuted, convicted and sentenced?
Yes, this is the basis for my indictment of American justice system - an obvious criminal is not in jail.
And yes, I *did* expect you to deny that unconvicted criminals exist when your guy is in question - and you did not disappoint :D
However, Trump has been convicted (https://ag.ny.gov/press-release/2019/donald-j-trump-pays-court-ordered-2-million-illegally-using-trump-foundation) of some of his misdeeds. Just not of his graver jailworthy crimes - because his kind of businessmen are a privileged class, and now it would be unprecedented to convict a former president so it takes someone with actual cojones to do it, not some political wimp. But it's on the way - he undeniably shredded and hid documents that he was not supposed to and at least this investigation should not be too hard to bring to a conclusion in a timely manner.
Maybe it's time to ask yourself: Why does ersi always know better than OakdaleFTL? Like, always...
I'd rather talk about matters somewhat related to the thread's topic, U.S. Supreme Court decisions...
Sure, as soon as you stop showing that you never learn. Instead, tell something worth learning.
Yes, this is the basis for my indictment of American justice system - an obvious criminal is not in jail.
Two hundred and fifty years of history to consider and, because one prominent figure may have made money in shady deals and wasn't punished, the whole system is derided? Let me know -when you get to Heaven- if it's any better there... :)
It seems like an acknowledgement to me.
It seems like an acknowledgement to me.
Nah. Perfect justice ia an unattainable goal. Who but a child expects it?
Like Justice Gorsuch's argument for adding
homosexuality and
transexuality to Title VII's list of protected classes by logical
textualism unmoored from (social and biological) reality (and legal history), there's a utopian fantasy behind any insistence on
perfection. :)
In more traditional terms: Just as one can't derive an
ought from an
is, one can't derive a
should from a
can...
Like Justice Gorsuch's argument for adding homosexuality and transexuality to Title VII's list of protected classes by logical textualism unmoored from (social and biological) reality (and legal history), there's a utopian fantasy behind any insistence on perfection. :)
Again, this is exactly backwards. The utopian fantasy is that biology ever played a role when it was always about outward appearance. Your argument seems to have devolved into stating that Gorsuch shouldn't do his job for reasons of political sensitivity, as if we didn't have a rechtsstaat in the United States with checks and balances.
The utopian fantasy is that biology ever played a role when it was always about outward appearance.
An example:
Should a GP whose biologically male patient complains of
severe menstrual pain and pleads for prescription opioids for relief write the 'scrip? If "she" asks for a hysterectomy, should the GP refer "her" to a surgical practice?
In either of these cases, should the Gorsuch decision continence Civil Rights suits, should the MDs refuse?
I say again that "getting the most out of language" of enacted law is
not the job of a Supreme Court Justice... It's not a game of
gotcha! between the legislative and judicial branches, and -yes, real world consequences matter, even if
you insist on calling them "political sensitivities"...
Note: If Gorsuch's majority opinion results in even a great many adverse consequences, only two remedial actions can be taken: A constitutional amendment or a SCOTUS opinion deprecating it. In other words, the U.S. "officially" becomes a nation ruled by
men rather than
laws. (Wo-men, if you prefer...)
I don't disagree that Title VII (and Title IX) need some work...to achieve and maintain fairness in our "modern" times. But, again, that is the work of Congress, not SCOTUS.
(As with your treatment of my example of "soul stealing," you simply refuse to acknowledge
this separation of powers! Besides libertarian policy preferences, I'd ask why? I hope, respectfully. :) )
An example:
If you think this is in any way relevant you haven't understood a thing. These are examples where sex
is the relevant property. Discriminating against you or me because we decide to wear a dress when you wouldn't discriminate against a woman wearing a dress is but-for sex. There is no but-for sex in a freaking hysterectomy, good lord.
I say again that "getting the most out of language" of enacted law is not the job of a Supreme Court Justice... It's not a game of gotch! between the legislative and judicial branches, and -yes, real world consequences matter, even if you insist on calling them "political sensitivities"...
That's the point. Gorsuch' reasoning is a completely value-free, correct interpretation of the law. It doesn't involve any sophistry ("gotchas") and it doesn't involve any political winds. The supposed responses are simply not intelligible. They're bad philosophy, unconnected to logic and reality.
Discriminating against you or me because we decide to wear a dress when you wouldn't discriminate against a woman wearing a dress is but-for sex.
I understand what you're saying, even though I don't quite think you do! :) A
for instance you might find more tractable: Does the
but-for sex test legalize partial nudity? If not, why?
If so, why not total nudity? (Are all restrooms to be uni-sexual? All school sports? These are but two areas of custom/law that become problematic under the Gorsuch rubric...) Why do we allow discrimination against nudists? Is that fair?
BTW: The medical examples I gave had already occured before Gorsuch's analysis, which would only give greater weight to Civil Rights claims... But you apparently
do have some desire to draw a line between the meanings that Title VII's use of the word
sex can be proscribed! :) But on what basis?
Wouldn't we have to ask, "What would Gorsuch do?" Or is this a game where everyone gets to make their own rules?
I still think you expect SCOTUS to promulgate and implement
policy... And I think it shouldn't (or -at worst- should enter into the fray only seldom because their over-reaching is so difficult to remedy).
Does the but-for sex test legalize partial nudity? If not, why?
Attempting to steelman that gets me to something like that a man would be told to put on a damn shirt and a woman might be fired, in which case you might conceivably see it "legalized," meaning as much as not immediate ground for dismissal in and of itself.
If so, why not total nudity? (Are all restrooms to be uni-sexual? All school sports? These are but two areas of custom/law that become problematic under the Gorsuch rubric...)
None of that is a discussion of law. It's a discussion of what law should be. Nor does it even pertain to Title VII! Sex-based discrimination in sports is perfectly legal.
Is that fair?
That. is. not. the. question. Sheesh.
Nor does it even pertain to Title VII! Sex-based discrimination in sports is perfectly legal.
Two things here:
Bans on nudity
could certainly be challenged on the basis of Gorsuch's
but-for-sex analysis. Indeed, who the hell are you or I or any other than a majority of SCOTUS to gainsay the obvious reading: But for sexual dimorphism and differing genitalia, our prudish attitudes towards nudity would be considered gross (pun intended) discrimination! It's just an outdated custom... :) And prohibited by law, already; we're just too parochial to see it (if that's the right word: Justices are generally rather reserved in their usage; but mightn't one justifiably say we're too
dull or
stupid?)?
If not, why not? Which arguments rise to the level of codifying what Congress refuses to, and which don't?
Regarding sex-based discrimination in sports (and Title IX) it's already -per the NCAA-
illegal! See the case of Lia Thomas, I believe is the name of the athlete on the Penn State swim team. (Per the IOC, too, if I'm not mistaken...)
My "problem" with Gorsuch's decision is probably better given thus: Textualism without originalism verges towards chaotic anarchy,
Bans on nudity could certainly be challenged on the basis of Gorsuch's but-for-sex analysis.
Setting aside that there doesn't seem to be a relation between public indecency laws and equal employment opportunity, it seems unlikely that anybody wrote their public indecency laws that incompetently in an analogous scenario. But if they did, what's the problem? They'd either decide they'd be better off without them or they'd pass a new ordnance that isn't quite as discriminatory in no time. Chances are the old one with a few words amended or crossed out will suffice. I make this point only to serve as a general remark since there doesn't seem to be any relevance to the matter at hand.
If not, why not?
You pretty much seem to just be making up things that you think sound scary, ridiculous or both at this point. There are plenty of laws that are ridiculous and scary. ;)
My "problem" with Gorsuch's decision is probably better given thus: Textualism without originalism verges towards chaotic anarchy,
If the original intent of the text of the law has unintended consequences, they can change it. That's how the common law system is supposed to work. You seem to be overlooking all the ways in which Gorsuch explicitly rejects going any further for exactly that very reason.
per the NCAA […] Per the IOC, too, if I'm not mistaken...
…and?
My "problem" with Gorsuch's decision is probably better given thus: Textualism without originalism verges towards chaotic anarchy,
There's simply no such thing, ignoring for the sake of brevity examples like Scalia blatantly ignoring the tenets of textualism
and originalism with regard to the Second Amendment, as astutely pointed out by
@ersi several years ago. Textualism is about the
original intent of the
words of the law. I'm not convinced originalism is even a real thing. It mostly come across as an excuse some people drag out when they don't like the inescapable conclusion. You'll note Alito is perfectly textualist when the outcome is in line with his views.
That's how the common law system is supposed to work.
Need I repeat (yes, I must! :), American Constitutional Law is
not a
common law system...
If the original intent of the text of the law has unintended consequences, they can change it.
This is the nub of our disagreement: For you, even repeatedly rejected proposed changes to the law can and should be codified, if SCOTUS finds an argument of sufficient strength to win the support of a majority of the court! Then -as I've noted- the recourse available to the legislature is onerous. The question arises: How many times must the legislature say No! before the Supreme Court has to hear and take note? :)
@
Frenzie: You might enjoy reading this (https://deliverypdf.ssrn.com/delivery.php?ID=009020074123068088029094108005082091037009014088040058108068101025082081029092015007011034030127028123007074066072008103021028109073061058077070083030090023121107102008002077087066081118104005114104013123006000071113008104019088093004124110089117072103&EXT=pdf&INDEX=TRUE). (Hat tip to the Volokh Conspiracy blog.)
Need I repeat (yes, I must! :) , American Constitutional Law is not a common law system...
That's how the
American Constitutional Law system is supposed to work. Holy moly, the reason I wrote common law in the first place is because you claimed I was confusing common law for European law.
My focus remains on separation of powers and the difference between interpreting and making law... Sorry for the confusion! But it's not the differences between European/Anglo-American systems that concerned me...
Whether or not it's an exclusively American (U.S.) constitutional problem, I can find no way to square the Gorsuch opinion we've been discussing with (what I take to be) permissible traditional methods (rules) of statutory interpretation...
I know (you've helped me to understand better) that the U..S. system and European systems are "different animals" — both preying upon wild Justice! And I think I better understand the U..S. law's connections to English Common Law than you. (No offense intended...) I can understand your frustration with my position on Gorsuch's opinion; but I can't be expected to change it, merely to accomodate a foreign system's peculiarities! :)
I am talking about how the US works. You can't claim it works in ways it clearly doesn't over decades and decades and decades.
You haven't addressed a single argument. You just handwave about what people supposedly meant in spite of the intent they clearly put in the text. That's philosophically untenable and frivolous anarchy in all but name. And yes, that's legislating instead of interpreting.
Let's back up a bit...
Do you accept that the Common Law is unwritten, in the sense that it doesn't consist of statutes penned and published (enacted) by the legislature?
The point is that the system already worked this way in all here relevant aspects before the United States even existed.
When interpreting a statute, it is often helpful to consider
not simply the statute’s literal words, but also the statute’s
purposes and the likely consequences of our interpretation.
Otherwise, we risk adopting an interpretation that, even if
consistent with text, creates unnecessary complexity and
confusion. That, I fear, is what the majority’s interpretation here will do. I consequently dissent.
Mystery quote of the year!
With regard to the OP that would be the own goal of the year.
But with regard to Baderow v. Walters (https://www.supremecourt.gov/opinions/21pdf/20-1143_m6hn.pdf), I haven't read it.
(Darn that internet search thingy! :) ) But, yes, the quote is from Breyer's (lone) dissent, which surprised me somewhat... As far as your own-goal comment, explain please?
I do find Justice Breyer's dissent compelling — against a pure textualism. (And I'd have preferred the other justices explained themselves individually!) Needless to say, I'm quite disappointed in more than a few. But specially Thomas...
As far as your own-goal comment, explain please?
Mainly because of the word
helpful. But also note that the intent of the words is something very different than a dumb reading of the literal words, if only because words today mean something different today than they did back in 1760. We're talking about a proper interpretation by experts here, not some dumb computer program. :)
Needless to say, I'm quite disappointed in more than a few. But specially Thomas...
You're definitely making me curious; I'll have to read or skim it later. But like I wrote yesterday, I've observed that "Alito is perfectly textualist when the outcome is in line with his views." I've observed it less with Thomas; I agree it'd be disappointing but I wouldn't find it surprising.
The dissent makes some interesting points, but I just can't agree with the conclusion.
The majority says if words are left out, that's done by the lawmakers on purpose. This is a truism. There's nothing to argue with there. It's self-evident. That's how laws are written so that courts will interpret them in that way. They don't accidentally leave out words.
The dissent says that it makes no sense to leave out those words, that it's judicially practically unenforceable or unapplicable. The majority waves this concern away in a mere few sentences. The dissent seems to make a decent few points in this regard.
But then the dissent says that the court should ignore the clear intent expressed by the text of the law, not by calling it unenforceable gibberish (https://en.wikipedia.org/wiki/Vagueness_doctrine) or something along similar lines, but by saying the intent clearly expressed by the text of the law should be ignored in favor of what Breyer thinks would make more sense!
Good! You've cut through to the nuv of the question.
So, then, you would agree that Title VII's term "sex" only substitutes for "sexual preference" and "sexual orientation" — for policy reasons...? Had Congress intended the expansive meaning(s), it could have and would have specified such. That, in fact, it repeatedly failed to do so — explicitly so (see Alito's dissent) — is not just telling. It's a determining factor in interpreting the statute.
(If that's indeed what Gorsuch claims to have done... I still maintain that he was
legislating. "Words today mean something different than they did back in 1760" doesn't readily comport with
words today mean something different [] than they did yesterday (1970s)! What -it seems to me- you mean is what Humpty Dumpty told Alice...
The majority says if words are left out, that's done by the lawmakers on purpose. This is a truism. There's nothing to argue with there. It's self-evident. That's how laws are written so that courts will interpret them in that way. They don't accidentally leave out words.
And, yes, I do agree that Breyer makes -in his first paragraph- a reasonable sketch of the job. But portraiture requires more... :)
So, then, you would agree that Title VII's term "sex" only substitutes for "sexual preference" and "sexual orientation" — for policy reasons...?
No, not in the slightest. Cf. https://dndsanctuary.eu/index.php?topic=3845.msg84694#msg84694
Gorsuch is crystal clear. A man or a woman is treated in a discriminatory way, which they wouldn't "but for" their sex. Talking about transgender nonsense is nothing but a distraction. Transgender means someone is behaving in a way that's "incorrect" for their sex. Discriminating on the basis of sex is illegal, plain and simple. There wouldn't be any discrimination if there were no sex involved. It's not Gorsuch confusing sex and gender, it's you. ;)
It's not Gorsuch confusing sex and gender, it's you. ;)
And the Biden administration, among others! :)
A screed (https://spectatorworld.com/topic/we-are-all-still-prisoners-of-the-sixties/) from someone more able to convey what I, too, see...
As Ed Whelan reminds us:
2017—“The goalposts have been moving over the years,” asserts the en banc Seventh Circuit majority in Hively v. Ivy Tech Community College. Overriding its own precedent and contradicting nine other circuits, the majority holds that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII.
In a separate concurring opinion, Judge Richard A. Posner, advocating a “form of [statutory] interpretation” that he labels “judicial interpretive updating,” states that he “would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”
In her dissent, Judge Diane S. Sykes, joined by two colleagues, explains that “we do not sit as a common-law court free to engage in ‘judicial interpretive updating,’ as Judge Posner calls it, or to do the same thing by pressing hard on tenuously related Supreme Court opinions, as the majority does.”
(source (https://www.nationalreview.com/bench-memos/this-day-in-liberal-judicial-activism-april-4-4/))
As is readily apparent, the issue is decidedly
not just a textualist spat: It goes to the heart of what the Justices take to be their job...
Posner's concurrence states it plainly (as quoted above).
To be clear, the full quote is as follows:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of "sex discrimination" that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
I find his attempt to exclude who you're sexually attracted to by reference to an ambulance philosophically extremely unconvincing. Primarily of course for the obvious reasons we've already beaten to death a million times. Even though you may well be able to make a reasonable case that someone back in 1964 didn't think of a particular consequence hardly means it was excluded.
The second form of interpretation, illustrated by the commonplace local ordinance which commands "no vehicles in the park," is interpretation by unexpressed intent, whereby we understand that although an ambulance is a vehicle, the ordinance was not intended to include ambulances among the "vehicles" forbidden to enter the park. This mode of interpretation received its definitive statement in Blackstone's analysis of the medieval law of Bologna which stated that "whoever drew blood in the streets should be punished with the utmost severity." William Blackstone, Commentaries on the Laws of England *60 (1765). Blackstone asked whether the law should have been interpreted to make punishable a surgeon "who opened the vein of a person that fell down in the street with a fit." (Bleeding a sick or injured person was a common form of medical treatment in those days.) Blackstone thought not, remarking that as to "the effects and consequence, or the spirit and reason of the law... the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them." Id. *59-60. The law didn't mention surgeons, but Blackstone thought it obvious that the legislators, who must have known something about the medical activities of surgeons, had not intended the law to apply to them. And so it is with ambulances in parks that prohibit vehicles.
But additionally the example is self-defeating. There is something called the EMS Act (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1470509/), which explicitly states that all manner of liability, such as going in parks with a no vehicles sign, doesn't apply to ambulances and emergency aid applied by paramedics. There's no Lesbian Exclusion Act. The apocryphal example about Old England is amusing and (presumably) better illustrates the rhetorical point by not suffering from such a defect, but realistically most of his argument can be summarized as "before the 1980s I was barely aware of homosexuals and neither was anyone else," which may well be true but the whole thing is a red herring. It doesn't actually provide support for the central claim.
Heh, I guess I found my favourite.
Plessy v. Ferguson, 163 U.S. 537 (1896), was a landmark decision of the U.S. Supreme Court in which the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that came to be known as "separate but equal". [...]
The underlying case began in 1892 when Homer Plessy, a mixed-race resident of New Orleans, deliberately violated Louisiana's Separate Car Act of 1890, which required "equal, but separate" railroad accommodations for white and non-white passengers. Plessy was charged with boarding a "whites-only" car, and his lawyers petitioned Judge John Howard Ferguson to throw out the case on the grounds that the law was unconstitutional. Ferguson overruled Plessy's petition, and the Louisiana Supreme Court upheld Ferguson's ruling. Plessy then appealed to the U.S. Supreme Court.
OakdaleFTL, are all citizens of USA equal before law?
And has slavery ended?
Neither slavery nor involuntary servitude [...] shall exist...
Does this mean slavery doesn't exist, therefore nobody can be prosecuted and be guilty of it? And therefore black codes, segregation, Jim Crow laws etc. were and are all legal?
Yes, ersi, this is an important case! (Harlan's dissent is noteworthy, for its honesty.)
It took Brown v. Board of Education to overturn the precedent... And that was one of the very few times when -I think- SCOTUS said "Enough is enough!" and usurped the legislative role, cementing the incorporation of the 14th Amendment.
In the U.S., yes, slavery ended as a legal practice and is everywhere prosecutable. If, as your tone implies, you think "black codes, segregation, Jim Crow Laws etc." are legal still — you're mistaken. If you think racial animosity was or has ever been precluded by the passing of laws, you're wrong (and quite naive).
Yes, all citizens of the U.S. are equal before the law — as much as human nature can abide.
Your commentary is quite sparse, and disjointed... Had you a point to make?
The U.S. is one of only two nations to end slavery by civil war. (The other was Haiti...) An interesting comment, no? :)
Yes, ersi, this is an important case! (Harlan's dissent is noteworthy, for its honesty.)
It took Brown v. Board of Education to overturn the precedent... And that was one of the very few times when -I think- SCOTUS said "Enough is enough!" and usurped the legislative role, cementing the incorporation of the 14th Amendment.
Can you explain how
Brown v. Board of Education was legislative rather than constitutional? Did it really try to do more than just affirm the *original intent* of the anti-slavery amendments?
Bonus points if you can explain how both
Plessy v. Ferguson and
Brown v. Board of Education are constitutional :) or how one of them is not.
In the U.S., yes, slavery ended as a legal practice and is everywhere prosecutable. If, as your tone implies, you think "black codes, segregation, Jim Crow Laws etc." are legal still — you're mistaken.
Those were the law of the land (well, in many states) for at least a century after the civil war. How could that be for so long if they were/are not legal? When they are in force, they sure as hell are legal!
My tone implies that much of it could still be in force, treated as law of the land by those who are enforcing the law. Even though sometimes there are repercussions for enforcing the law as perceived by the law-enforcers (Chauvin, Guyger) at other times there are not.
What do you think about the persistent idea in USA that non-citizens do not have *any* rights (https://abcnews.go.com/US/police-shot-wrong-man-citys-lawyer-argues-man/story?id=65953331)? How "equal" or constitutional is it?
The U.S. is one of only two nations to end slavery by civil war. (The other was Haiti...) An interesting comment, no? :)
Rather, it's indicative that the constitution of USA is a sham: Starts off with proclamations of liberty and equality, and proposes some rights, but in practice institutes slavery and a class society, and even after a civil war does not manage to get things right.
It is interesting how, despite the obvious actual practices that are directly opposite to the good promises of the constitution, USA manages to brainwash many as if it were a land of opportunities, a beacon of liberty and worthy of emulation. Many even think USA is a welfare state - another obvious sham that many take for granted, both those who are in favour and against welfare states.
It is interesting how, despite the obvious actual practices that are directly opposite to the good promises of the constitution, USA manages to brainwash many as if it were a land of opportunities, a beacon of liberty and worthy of emulation.
Ah! There's the old
ersi I've come to expect! An axe to grind, although it's already as finely honed as R.J. Howie's... :)
Ha! whaur ye gaun, ye crowlin ferlie?
Your impudence protects you sairly;
I canna say but ye strunt rarely,
Owre gauze and lace;
Tho', faith! I fear ye dine but sparely
On sic a place.
Ye ugly, creepin, blastit wonner,
Detested, shunn'd by saunt an' sinner,
How daur ye set your fit upon her-
Sae fine a lady?
Gae somewhere else and seek your dinner
On some poor body.
Swith! in some beggar's haffet squattle;
There ye may creep, and sprawl, and sprattle,
Wi' ither kindred, jumping cattle,
In shoals and nations;
Whaur horn nor bane ne'er daur unsettle
Your thick plantations.
Now haud you there, ye're out o' sight,
Below the fatt'rels, snug and tight;
Na, faith ye yet! ye'll no be right,
Till ye've got on it-
The verra tapmost, tow'rin height
O' Miss' bonnet.
My sooth! right bauld ye set your nose out,
As plump an' grey as ony groset:
O for some rank, mercurial rozet,
Or fell, red smeddum,
I'd gie you sic a hearty dose o't,
Wad dress your droddum.
I wad na been surpris'd to spy
You on an auld wife's flainen toy;
Or aiblins some bit dubbie boy,
On's wyliecoat;
But Miss' fine Lunardi! fye!
How daur ye do't?
O Jeany, dinna toss your head,
An' set your beauties a' abread!
Ye little ken what cursed speed
The blastie's makin:
Thae winks an' finger-ends, I dread,
Are notice takin.
O wad some Power the giftie gie us
To see oursels as ithers see us!
It wad frae mony a blunder free us,
An' foolish notion:
What airs in dress an' gait wad lea'e us,
An' ev'n devotion!
(source (http://www.robertburns.org/works/97.shtml))
An appropriate change of pace (and case):
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
(source (https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473))
@ersi: You wanted to know how
Dred and
Plessey could have stood (as law) for so long? And that's a fair question, to which most answers would be disingenuous.
Roe and
Casey are similarly suspect.
@Frenzie: For similar reasons, Gorsuch's reasoned addition to Title VII's definition of "sex" should be reconsidered... (Consider the perception of the Supreme Court as a constitutional arbiter, if not blush at the neologistic ruse! :) )
Who brought the popcorn? (Hey, Joe: Popcorn, not Cornpop! :) )
Roe and Casey are similarly suspect.
At a quick glance the only thing that wasn't constitutionally, philosophically and scientifically irrelevant in the brief was the complaint about people in the '60s harping on about antiquity. Though presenting it as if referring to antiquity were a unique feature of Roe is still oddly disingenuous.
For similar reasons, Gorsuch's reasoned addition to Title VII's definition of "sex" should be reconsidered...
Again, there is no such thing. If you discriminate against a man when he does something you think is fine when a woman does it or vice versa then you are discriminating based on their sex. There is no difference in their actions but for their sex. The only correct way to phrase that sentiment is that not all forms of sex-based discrimination are protected against by Title VII. E.g., which job you want to do is protected, but wearing the wrong clothes and dating the wrong people isn't. It's hard to make that case, but at least it's not absurd like claiming the word sex was redefined.
At lögum skal land várt byggja en eigi at ulögum öyða.
And when judges overstep their role they act lawlessly...
But -as recent events have shown- the Left in my country are determined to show who they really are: Violent, vicious partisan fascists... :) That should give the Right breathing room, to effect a substantial swing of the political pendulum — back towards what the Constitution prescribes, informed by our Declaration of Independence.
The Democrats now in power are soon to be toast; and the Republican Party has a good chance to return to its roots.
And SCOTUS can resume its function. The upcoming decision in Dodds will be a good start!
(I'm on the road for the next few days...) Senator Ted Cruz secures yet another victory in the SCOTUS: According to the article (https://www.theepochtimes.com/victory-for-ted-cruz-as-supreme-court-rebuffs-biden-administration-strikes-down-campaign-spending-rule_4468762.html)in the Epoch Times today, a 6-3 opinion (Breyer participating still...:) slaps down a rule promulgated by the Federal Elections Commission that would have precluded a campaign -even a successful (prevailing...:) one- from repaying personal loans from the candidate after the election.
Kagen's dissent resorts to the usual leftist fallback position: The Precautionary Principle, in it's Murphy's Law variant: Whatever can go wrong will go wrong. I.e. it looks like there's a possibility for bribery -some quid pro quo shenanigan- hence We Must Preclude! But, please note, no instance of such was noted to support the blatant 1st Amendment violation the rule would make...
(Coming down almost to Baja, I noted: Quite a few places had Old Glory flying at half staff... I wondered who had died, but was mostly driving through mountainous country where radio reception was sporadic and sparse: No news was available... Part way through the evening -after dinner- my little brother explained: "It's in protest to the likely undoing of Roe v Wade!" What cheek!)
{i]I.e[/i].
You make this kind of brackets typos often. Perhaps find a text editor that does BBCode for you?
Kagen's dissent resorts to the usual leftist fallback position: The Precautionary Principle, in it's Murphy's Law variant: Whatever can go wrong will go wrong. {i]I.e[/i]., it looks like there's a possibility for bribery -some quid pro quo shenanigan- hence We Must Preclude! But, please note, no instance of such was noted to support the blatant 1st Amendment violation the rule would make...
First amendment is the wrong thing to emphasise when it comes to political statements and actions. Political statements are not just any old speech. They have to be regulated so that e.g. smear campaigns and attack ads would be restricted.
Moreover, observing how campaign spending correlates with election victory seems to indicate that the victories are purchased. Those who cannot afford to spend on campaigning will have no political voice. How about first amendment for them? Is there a judge who cares about this?
First amendment is the wrong thing to emphasize when it comes to political statements and actions
@
ersi: You couldn't be more wrong: The main reason for the 1st Amendment in the first place was the
protection/i] of political speech, in all its forms! No wonder you're bothered by typos -- focusing upon the inconsequential and berating the consequential (and crucial) feeds you voracious sense of superiority...
They have to be regulated so that e.g. smear campaigns and attack ads would be restricted.
Because the electorate is too stupid to note "lies, damn lies and statistics...
observing how campaign spending correlates with election victory seems to indicate that the victories are purchased
(see above) And remember who was the first presidential candidate to forgo matching funds -and thus avoid funding limits- and which candidates of what party have followed suit....
Still, I'd quibble with both the "guilty until proven innocent" view of regulation and the absurd assumption that the regulators are competent, uncorrupted and disinterested...
Is there a judge who cares about this?
Yeah, actually there are many. But most are conservative constitutionalists. You have the same views of "Free Speech" that Bernard Shaw had... :)
Stick to your wheelhouse: As Mark Twain said, "We're all igorant -- only on different subjects!"
First amendment is the wrong thing to emphasize when it comes to political statements and actions
@ersi: You couldn't be more wrong: The main reason for the 1st Amendment in the first place was the protection/i] of political speech, in all its forms! No wonder you're bothered by typos -- focusing upon the inconsequential and berating the consequential (and crucial) feeds you voracious sense of superiority...
You did the brackets typo again! With you, the brackets typos are the more consequential thing because everything else is outrageous nonsense. Who else besides you says that the first amendment is in the
first place about protecting political speech (as in speech of politicians)? This must be tragically delusional.
So-called free speech is -
in the first place, i.e. from day one - limited for everyone, such as by libel laws. It is naturally further limited for politicians.
They have to be regulated so that e.g. smear campaigns and attack ads would be restricted.
Because the electorate is too stupid to note "lies, damn lies and statistics...
As expected, you actually do not care zilch about the first amendment. You only care about Republicans winning.
observing how campaign spending correlates with election victory seems to indicate that the victories are purchased
(see above) And remember who was the first presidential candidate to forgo matching funds -and thus avoid funding limits- and which candidates of what party have followed suit....
Therefore abolish funding limits because Obama did it? Why not make him responsible for what he did? Of course, I get it: It's not about first amendment or law and order - it's about increasing chaos and lawlessness so Trumpites and KKK Republicans can proliferate :)
Still, I'd quibble with both the "guilty until proven innocent" view of regulation and the absurd assumption that the regulators are competent, uncorrupted and disinterested...
Also "guilty until proven innocent" works differently for politicians. To show responsibility the politician should often resign in the face of a scandal long before he is proven guilty or innocent. You have clearly no clue about the role of politicians.
As to "absurd assumption that the regulators are competent, uncorrupted and disinterested" - the regulators are politicians and judges themselves! I have no assumption that they are competent or disinterested. They have to be tied down first and foremost and always more strictly than the rest of the people!
Is there a judge who cares about this?
Yeah, actually there are many. But most are conservative constitutionalists.
Then you are not a conservative constitutionalist.
So-called free speech is - in the first place, i.e. from day one - limited for everyone, such as by libel laws.
Your view is perverse: Libel laws don't limit speech,
per se, they merely reflect one of the ways society notes that speech is
consequential!
As expected, you actually do not care zilch about the first amendment. You only care about Republicans winning.
Your ability to maintain a mistaken view is phenomenal! :) (Take that as a compliment...:)
Therefore abolish funding limits because Obama did it?
I've always been against campaign funding limits, for many reasons. First, any proposed mechanism is soon "captured" by the powers-that-be"... Second, when monies are limited those that control already the means of "being heard" become gate-keepers of a sort: Such a position is not baked into our democracy, and any installation of such is bound to become detrimental (
i.e. devolve...); hence leaving funding free to find its way to campaigns is one way to preclude their installation.
To show responsibility the politician should often resign in the face of a scandal
Rule by piety and propriety works no better in individuals than it does in states. Innuendo and rumor
are the news, for large swarths of any public. But they are sensibly rejected in a Re-public. (Methinks you're just being contentious...:)
Your every proposed adjustment to rationalize or reform our system, one which you clearly do not understand, run up against the "who will watch the watchers" dilemma. Our politicians are citizens first, never quite rulers, and finally mere citizens again! I'm sorry the concept is beyond your understanding... :)
So-called free speech is - in the first place, i.e. from day one - limited for everyone, such as by libel laws.
Your view is perverse: Libel laws don't limit speech, per se, they merely reflect one of the ways society notes that speech is consequential!
Whereas your - and supreme court's - idea that campaign finance rules limit candidates' first amendment rights means that the candidates can pay their way out of the consequences of their speech. That's my point.
I've always been against campaign funding limits, for many reasons. First, any proposed mechanism is soon "captured" by the powers-that-be"... Second, when monies are limited those that control already the means of "being heard" become gate-keepers of a sort: Such a position is not baked into our democracy, and any installation of such is bound to become detrimental (i.e. devolve...); hence leaving funding free to find its way to campaigns is one way to preclude their installation.
There is no "become". Those who got the position of control are already the gate-keepers. At any moment, the system is already in place and the point for the future would be to make the system more accessible, not less, and also less bloated money-wise, make its costs proportionate to its function, not let it get out of hand. Your point is of course the opposite - make the system expensive without limits so as to let only the most affluent in. Or the most corrupted. The effect of your idea is to give all the power to the gate-keepers and only big money can buy one a place among them.
Whatever happened to the idea of small government? Well, I know what happened to it. Those who say they want small government have always bloated it. Small government never was their ideal.
Your every proposed adjustment to rationalize or reform our system, one which you clearly do not understand, run up against the "who will watch the watchers" dilemma. Our politicians are citizens first, never quite rulers, and finally mere citizens again! I'm sorry the concept is beyond your understanding... :)
The watchers' dilemma is simple enough so that even you should understand it: Politicians and civil servants have the power that includes watching themselves. Unfortunately you do not understand it. You want to let your favourites run amok with no checks and balances. The president of USA is the clearest example of a position with no checks on his power - there is a lengthy section in the constitution about impeachment, but it has been historically rarely deployed and never worked when deployed. The founding fathers messed that one up big time.
As a general rule, I suggest more restrictions on politicians rather than less, and calling them out whenever they break the rules. They themselves are the ones creating and imposing the rules, so breaking such rules is extreme hypocrisy and cynicism. In turn, extreme hypocrisy and cynicism is a good reason to be kicked out of office without much deliberation, particularly when it comes to the kind of office politicians have.
And my text editor kicks your text editor's butt!!!
And my text editor kicks your text editor's butt!!!
I'm sure you're quite right -- about that! :) (I'm still on the road; it's been a wonder-full few days.) You must know, keyboards I use suit me more or less, but since my stroke and ongoing recovery of function -- my left hand is the laggard (and the more pain wracked) while the right tends to over compensate: I keep finding it using the "k" as its home key instead of "j"...:) Add to such complications, most keyboards I use feel too small for my hands; I still miss my old AT-style IBM keyboard: sturdy metal case, to every facet of touch it performed just like a Selectric electric typewriter! (The closest to that was the integral keyboard on the Televideo 910 terminal, which I also no longer have....:)
I realize I often leave typos strewn about. But I figure everybody knows how to type and, hence, even my typos are readily readably still English! :) But I'll try to be more careful... (Vision permitting.)
The point you pose in your post deserve a serious and perhaps a somewhat more loquacious response.... (After I get home to
my computer.:)
As a general rule, I suggest more restrictions on politicians rather than less, and calling them out whenever they break the rules. They themselves are the ones creating and imposing the rules, so breaking such rules is extreme hypocrisy and cynicism. In turn, extreme hypocrisy and cynicism is a good reason to be kicked out of office without much deliberation, particularly when it comes to the kind of office politicians have.
And my text editor kicks your text editor's butt!!!
Well, I've been back for a while; weird and convoluted family stuff occupying much of my time. Oh, and my Mac mini has been out of service for a while... (Had to resurrect its previous incarnation! And its keyboard, another logitech model which -as luck would have it- is much like the Lenovo model I used at a hotel in Bakersfield!:) I'm afraid I don't take these (...or other) posts seriously enough to use an editor, beyond what the forum software provides. We're just talkin', see? :)
Now to the meat of your comment: :raspberry: You're willing to allow the foxes to guard the henhouse, and expecting them to behave because — well, just
because it's an
honor to serve, and only honorable men would seek to do such service...
Your world must be comprised of more than my meager 4-dimensional manifold! :)
If one's society has lost its last whit of vitality and rejected its least bulwark of tradition, perhaps your apathetic attitude would be justified.
Did you perchance watch the Dem's January 6 Commemorative production of "We Hate Trump!" tonight on TV (also billed as the Committee to re-impeach the former president, and the American people...?:)?!
A trial, without opposing counsel, the prosecutors doing onerous duty as judge and jury, too! Of course such diligent public servants should be kept in power, no? :)
But the American electorate is -shall we say?-
fickle? :)
Well, lookie what wa a'waitin' in my mailbox after posting the above... https://www.takimag.com/article/blind-and-blissful/
Now to the meat of your comment: :raspberry: You're willing to allow the foxes to guard the henhouse, and expecting them to behave because — well, just because it's an honor to serve, and only honorable men would seek to do such service...
I expected something utterly stupid and widely missing the mark... and I got it.
But here's how you can improve your answer: Tell me how those fabulous founding fathers have arranged something different than what you bemoan, how they have envisioned people in high offices of power that are actually not in power, how there is some non-government office that is able to hold them accountable, how there are all sorts of checks and balances that actually work etc... Come on. Show how USA is something different than the rest of the world.
Of course, never forthcoming.
Your world must be comprised of more than my meager 4-dimensional manifold! :)
Your world consists of one dimension: The Anti-Dem Party line.
Did you perchance watch the Dem's January 6 Commemorative production of "We Hate Trump!" tonight on TV (also billed as the Committee to re-impeach the former president, and the American people...?:)?!
A trial, without opposing counsel, the prosecutors doing onerous duty as judge and jury, too!
Very rjhowie of you to talk about what you saw on your tellie. I don't know what TV you are watching and what committee you saw there, but it seems that it was not something part of the judicial system. Therefore don't whine that it is not arranged exactly like a court of law. If it is not a court of law, then it does not have to operate like one.
Grow up. Well, you are already old, so too late.
So: You didn't hear about the "abortion activist from California" who was arrested for trying to kill or maim Justice Kavanaugh? (And you're unaware that the House January 6th Committee's hearings are being aired live (except for the professionally produced segments) in an effort to distract the electorate from the current administration's many failures?:)
As I mentioned, when the culture cedes its legitimacy and rejects its traditions, forms of government won't save it...
About my anti-Dem stance: Kindly point to a Democrat deserving of my vote!? :) (Don't forget to add "Trump/America bad!":)
And you're unaware that the House January 6th Committee's hearings are being aired live
As we all know, that would've never happened 40 years ago — oh, wait. ;)
https://live.house.gov/
http://www.dekamer.be/media/index.html?language=nl&sid=55U2976
https://www.tweedekamer.nl/vergaderingen/livedebat/plenaire-zaal
oh, wait. ;)
As I said (and you
ignored?), the so-called Committee abrogates the rules of the House of Representatives — and was meant to: It's not a fact-finding (in furtherance of needful legislation) body: It's an
infomercial generating consulti for the Democrat Party, a campaign expenditure that our "finance laws" will overlook, 'cause -ya know- it's Dems, eh? :)
Didya see what Pelosi was doing, instead of attending? :)
(I couldn't make heads nor tails of the links you posted... Give me the gist, please?:)
As I said (and you ignored?), the so-called Committee abrogates the rules of the House of Representatives
If I ignored it, it's because you didn't say it. Which rules are abrogated by whom? I can trivially find some random hearing from 1995 (https://www.govinfo.gov/app/details/CHRG-104hhrg22377/CHRG-104hhrg22377) or from 1946 (https://www.govinfo.gov/app/details/CHRG-79jhrg79716p24/CHRG-79jhrg79716p24) because these things are almost always open to the public. A quick search suggests the first televised broadcast of American congressional hearings was in 1951 and I know for a fact they've been a mainstay ever since. I assume you've heard of some highlights like McCarthy and Watergate.
I'm not commenting on whether it's desirable to treat politics as a soap opera, but it's a tradition dating back 50 years, arguably 70. What is it that the Democrats are doing other than not being Republicans?
Special committees are comprised of members selected by their party's leadership: House Speaker Pelosi rejected the Republican members proposed by Leader McCarthy....and went on to "construct" a purely partisan panel. For that -as far as I can tell- there's no precedent.
And what, pray tell, is the legislative purpose of said committee?
So to summarize, you concede that being aired live is nothing unusual.
Special committees are comprised of members selected by their party's leadership: House Speaker Pelosi rejected the Republican members proposed by Leader McCarthy.
This is not how it went. Pelosi rejected two appointments (of a total of five or six) by McCarthy for the reason that the appointed persons were among prime candidates to get subpoenaed. Upon that, McCarthy withdrew all of his appointments. So it was not that Pelosi rejected Republican members just because they were Republican. It was House minority (Republican) leader who refused to cooperate with the committee when some of his troll appointments were called out.
...and went on to "construct" a purely partisan panel. For that -as far as I can tell- there's no precedent.
False. One of the spokespersons of the committee is Liz Cheney, a Republican. So the committee is not purely partisan.
From what I have read, the allegedly "unprecedented" bit is rather
1. that there is a congressional committee where the minority leader has not appointed any members AND
2. the same committee issues subpoenaes.
I have two counterarguments to this. First, assuming that this truly is unprecedented, it is just a technicality of no legal consequence. The committee may be set up and act in an unprecedented way, but nobody has said that there is any breach of law and prescribed procedure in this, so it is irrelevant that it is unprecedented.
Second, I do not believe for a second that it is actually unprecedented. Surely there were more extreme failures of bipartisanship at least during Lincoln's tenure - you know, when the civil war thing happened. So "unprecedented" is most likely just a lie to add fluff to a filibuster.
If unprecedented really worries you, then how's the following for unprecedented: A vice president disagrees with the president about the presidential election results. A president sends a mob on another branch of government to "cheer on our brave senators, and congressmen and women" (is it legal for a mob to be present and "cheer on" during any congressional procedure?) and says that hanging his vice president is a "right idea".
And what, pray tell, is the legislative purpose of said committee?
What, pray tell, is the legislative purpose of e.g. House Un-American Activities Committee? Examples of non-legislative, emergency-response, ad-hoc or just-so congressional committees abound, if one is willing to have a look. You are just not willing.
You have no point to make about anything. We know consistently everything about America better than you, even though we are far away from it and only mildly interested in the events for amusement purposes.
It's political purpose is straightforward: Prevent Donald J. Trump from running in '24! :) How is that a legitimate aim of a House committee?
To really prevent Trump from running, he would be put on trial and jailed. He is not on trial for his coup attempt (that's the name of his crime), so I'd conclude that there is no genuine willingness to stop Trump.
The committee exists likely for show because it is still felt too widely that justice has not been served (which it hasn't, as the criminal is not on trial). But justice will not be served because neither party in USA wants their president to have to suffer real consequences for overreaches of power. Both parties prefer the president reserve the ability to overreach without consequences. Otherwise who would want to be the president if the job involved any actual responsibility?
Justice would be served by the judicial system. If you had a functioning judicial system, Trump would be in the grinder already. Either you do not have a functioning judicial system (just like you do not have a functioning impeachment procedure) or there is a political purpose to keep the judicial system away from Trump. Justice will only be sham-served by a committee who cannot prosecute and sentence.
There should be no obstacle to a real trial. The more prominent perpetrators of the coup attempt are already in jail, so the instigator certainly qualifies for the same.
Clarence Thomas and the Billionaire (https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow)
New York Times: May ‘Bad Spaniels’ Mock Jack Daniel’s? The Supreme Court Will Decide (https://www.nytimes.com/2022/12/05/us/politics/bad-spaniels-jack-daniels-dog-toy.html)
(https://static01.nyt.com/images/2022/12/05/multimedia/05dc-bar-1-1dc5/05dc-bar-1-1dc5-superJumbo.jpg)
Pelosi rejected two appointments (of a total of five or six) by McCarthy for the reason that the appointed persons were among prime candidates to get subpoenaed. Upon that, McCarthy withdrew all of his appointments. So it was not that Pelosi rejected Republican members just because they were Republican. It was House minority (Republican) leader who refused to cooperate with the committee when some of his troll appointments were called out.
Pelosi rejected the minority leader's appointments because they were likely to call her (as the person most responsible for the security of the House) as a witness. (For the same reason, Trump's impeachment trial called no witnesses...) But this is ancient history now.
—————————————————
Recent First Amendment cases are non-serious. (Although the participants may feel otherwise.) More consequential was the recent refusal to grant cert:
April 6 (Reuters) - The U.S. Supreme Court on Thursday refused to let West Virginia enforce a state law banning transgender athletes from female sports teams at public schools, one of many Republican-backed measures across the country targeting LGBTQ rights.
The havoc wreaked by the recent Supreme Court's Bostock decision in the Title VII case, re-interpreting
transgender and
homosexual to mean
sex will continue apace. (Gender
identity and sexual
orientation do not alter sex! Yet it becomes ever more clear that the activists will insist -
pace Gorsuch- that they do...)
Title IX seems doomed.
Regarding the current transgender attitudes, I'd agree with Paglia, who [said] that she is "highly skeptical about the current transgender wave" which she thinks has been produced by "far more complicated psychological and sociological factors than current gender discourse allows". She [has written] that "In a democracy, everyone, no matter how nonconformist or eccentric, should be free from harassment and abuse. But at the same time, no one deserves special rights, protections, or privileges on the basis of their eccentricity."
Far better had Gorsuch insisted that it was the job of Congress to do the right thing, for the right reasons, rather than force a new interpretation on an old law. By trying to be "fair and tolerant" (as is his wont) he's offered encouragement to forces inimical to our civil society.
Please note: The majority of actors in The Movement seem utterly opposed to civility!
Pretty fascinating long story with this Clarence Thomas guy by now
https://www.youtube.com/watch?v=wJuRx1wARUk
I mention just one good point that was raised in connection with Anita Hill allegations. The testimonies were directly clashing, so one of them perjured. The committee never tried to figure out which one.
US Supreme Court has been engaging in activism - that is in pro-active and pre-emptive meddling in lower court decisions - for at least half a century by now, as explained in some legal scholar's new book.
https://www.youtube.com/watch?v=2I4tyJGfveM
Moreover, this is what the Supreme Court judges normally do day in day out. They have no other official business besides their important landmark decisions which are rare, few and far between. Worse still, the activist meddling business, different from landmark decisions, goes without explaining and signing the decisions.
The Bulwark interview is good https://www.youtube.com/watch?v=PU8C7WOFPEM
Prelude (https://link.mp.reason.com/a/2534/click/736/63547/e1fa18fecb5fbb43973875d215be92f5713530cb/23ffc497a462d33f101ba7381d7864c21c0252f2)... (Lecture given by Neomi Rao (https://en.wikipedia.org/wiki/Neomi_Rao))
Since the term has expired and nothing caught anyone's attention (here), I'll make a prediction: The Missouri v. Biden (https://ago.mo.gov/docs/default-source/press-releases/missouri-v-biden-ruling.pdf) case will be fast-tracked to SCOTUS.
With two states (by different means) removing Trump from their ballots and the U.S. Supreme Court deciding to adjudicate the Trump appeal of the Colorado Supreme Court's "decision", what do you expect to happen? :)
(I still think the Missouri v. Biden case is more important... Biden -after all- is only the President. The what is now known as the fourth branch of government -easily described as extra-constitutional- the bureaucracy needs to be reigned in. I seem to recall jax extolling the "virtues" of bureaucratic rule... :)
Why, I ask, is it such a risk to let the people vote? Well, you know it as well as I do: The folks currently in power have, as their primary concern, staying in power!)
But -since you prefer an outcome that hurts America (you're on record!)- your response will be -if at all honest- easily understood... :)
With two states (by different means) removing Trump from their ballots and the U.S. Supreme Court deciding to adjudicate the Trump appeal of the Colorado Supreme Court's "decision", what do you expect to happen? :)
I honestly expect the injustice to continue. I expect the Supreme Court to reason as follows, literally: "The constitution says to take the insurrectionist off the ballot, but MAGA QAnon crowd (including OakdaleFTL, oh the terror!) might get upset, therefore let's give Trump a free pass and let's hope the voters will make the right choice." Except the American voters have demonstrated themselves making ever stupider choices, such as unconditional immersion in factless partisan sociopathy, believing it to be free speech protected by the first and second amendments of the constitution.
You have an active former insurrection leader pussy-grabbing convicted rapist tax evader business fraudster self-proclaimed dictator wannabe currently under indictment for 91 crimes holding half of America's political spectrum hostage and everybody — the "moderates", the other party, and all branches of government — pretends they cannot do anything. If this pretension is true, then you have no laws, no legal system, no justice worth the name! For the sake of merciful generosity, I would like to assume the pretension is a manifestation of paralysing cowardice. I would like to assume that the legal and judicial systems have the tools to take care of the direct threat to the country, yet they are scared to do their sworn duty. They pretend they are doing their best and it has no effect.
How is the proudly unhinged serial public menace still on the loose after all his court pleas have been found frivolous and his testimonies self-incriminating and many of his closest minion accomplices already behind bars for following his orders? Because there is no law and order in USA when it comes to the biggest crooks, that's why.
After the coup attempt and unanimous partisan acquittal of the impeachment(s), why is the Republican Party still a thing? Because there is no political system worth the name in USA, that's why.
And you are willingly complicit, cheerleading Trump's crimes on this forum. Let your hypocrisy continue this year.
And happy anniversary! (of the insurrection)
Some commentators say that the most prudent thing to do would be to disqualify (and convict) Trump because of the insurrection
and then also pardon him to pacify redneck voters (such as MAGA/QAnon/yourself, KKK and Christian Nationalists). In my view the problem with this is that the disqualification would have to be real, i.e. Trump should stay in home detention rest of life to avoid his election theft and interference. The more likely outcome is that, if these commentators got their way, the pardon would have the effect of letting Trump go on and continue as if the disqualification and conviction did not happen, i.e. it would be a judicial procedure of no consequence whatsoever, exactly like all judicial action around him has been thus far.
I was unhappy to see you use the word "unhinged" — at the previous paragraph of your post I was quite willing to simply reply "You are too unhinged to try to reason with." But, of course, you went on! :)
You never seem to be concerned with about silly things like due process, trial by jury, and constitutional strictures... (I'm unfamiliar with the legal system in your country. Perhaps such concepts are unknown there?) If you don't like a man, to you he's guilty of anything you can come up with — or so it seems to me.
It's somewhat telling, that you keep mentioning QAnon — a brief phenomenon of a geek chat forum that most people never even heard of... Perhaps your familiarity of Soviet propaganda (as a recipient?) makes you prone to taking silly conspiracy theories seriously?
But -since you've managed to outline your feelings about the U.S. so extensively- I nominate you to take the position of our former friend R. J. Howie... And I'll give you credit for better grammar and spelling!
You portray a braying ass exceedingly well...
You never seem to be concerned with about silly things like due process, trial by jury, and constitutional strictures... (I'm unfamiliar with the legal system in your country. Perhaps such concepts are unknown there?) If you don't like a man, to you he's guilty of anything you can come up with — or so it seems to me.
Ever heard that delayed justice is no justice? And also injustice is not justice at all. For example, Michael Cohen went to prison for what Trump did, but Trump has escaped unscathed from what was apparently prison-worthy because the one who did his bidding went to prison. Examples of the same pattern abound in the insurrection, Trump's theft of elections, and business fraud. Many convictions in all of those cases, except for Trump. Instead he is being rewarded with de facto presidential immunity that he has no right to according to law.
Conclusion: You are the one utterly unconcerned about due process and constitutional strictures.
As to "trial by jury", I already had to point out to you that it is not an overarching standard even in USA, much less elsewhere. Notably, there is no trial by jury in Trump's New York case — and this is legal!
You are a fabulous combination of a legal cretin (defaulting to a legalistic viewpoint) and legal moron (oblivious of legal practice and content of law) at the same time. You adore Trump so much that, as he says, he could shoot a guy in broad daylight on Fifth Avenue and you would still worship him, think of him as the paragon of virtue, embodiment of the holy principles of the constitution (or rather your misconstrual of them). Thus far he has "merely" been impeached twice as the president, led a coup attempt, convicted as a rapist, universally known as a proud pussy-grabber and serial adulterer, and been involved in about 500 (!) court cases related business fraud, tax evasion, financial embezzlement and bankruptcies throughout his career.
I may not like him, but the more interesting question is: By what reasoning can a (failed) principled and legalistic guy such as yourself get around to liking Trump? For me, liking is a minor point. The bigger point is that, if law and order matters, then Trump should have been stopped at the latest when he was pimping together with Jeffrey Epstein back in the 90's. Clearly, for you, liking (more properly adulation and unconditional worship) matters more than law and order.
Slogans and name-calling, and an incredulous bias are what you offer?
The New York civil trial (with
no plaintiff!) is likely to lead to a U.S. Supreme Court case... :) While you may not like it or even understand it, the federal constitution is the supreme law of the land; and this use of prosecutorial over-reach is an affront to due process.
But we'll see what happens, no?
Trump should have been stopped at the latest when he was pimping together with Jeffrey Epstein back in the 90's
You mean when he barred Epstein from his clubs? Let's add libel to the list...
But we'll see what happens, no?
So you lay all your love and hopes on Trump because he might become good in the future? Wait, this cannot be. You lay all your love and hopes on Trump because he is a Republican who worships power regardless of principles and so do you. You condone insurrection — as long as it is your guy doing it. This takes some major lack of legal and moral sensibilities.
Trump should have been stopped at the latest when he was pimping together with Jeffrey Epstein back in the 90's
You mean when he barred Epstein from his clubs? Let's add libel to the list...
Wow, you were able to dig up a fact for once! Well done! Trump banned Epstein from his parties in 2008
after Epstein had already become a legally certified pedophile. However, I spoke about 90's, when Trump and Epstein were, hm, very intimate business partners in the same business servicing (themselves first of all but also) the Hollywood & financial & (worldwide!) political elite who were keeping it under the radar. They are both pimps.
Since you are a hypocrite with no principles, you are perfectly fine with a pimp (and a dictator insurrectionist, obstructor of justice, tax evader, business fraudster, serial adulterer etc. etc.) if he is in your beloved political party. But here's a minor hilarious note: in 2008 Trump was a Democrat, so how can you possibly look favourably at the fact that he banned Epstein? Oh, right, you have no principles, therefore anything goes.
Well, you are in good company with Trump: He has no principles either, neither moral, legal or political! His main desire is to do stuff like shoot people on the Fifth Avenue in broad daylight and get away with it. And to pay no taxes because that makes him smart. Is there something similar you need to get away with too? You can open up here, we won't tell anyone :)
Until now I assumed you still had some way to go until absolute irreversible depravity. I didn't realise I had some way to go to drop all assumptions.
Are you off your meds, ersi? :) Your hallucinatory world must be fascinating — as a case study!
(BTW: I still prefer DeSantis for the 2024 nomination... Hope my mentioning it again doesn't cause you any "cognitive dissonance"; as if that were a possibility!)
Are you off your meds, ersi? :)
I take this as one of your regular reflexive projections. Being a hyperpartisan hypocrite you think everyone else is a hyperpartisan hypocrite, and also, being on meds you think everybody else must be on meds as well.
(BTW: I still prefer DeSantis for the 2024 nomination... Hope my mentioning it again doesn't cause you any "cognitive dissonance"; as if that were a possibility!)
Sure enough this can be a possibility for you. It fits with your characteristic pattern by adding another layer of compulsive delusion. DeSantis is the Trumpiest of all Republican candidates. Maybe Ramaswamy would be Trumpier, but his skin colour prevents him from getting sponsors and supporters.
However, I have to warn you on two points. First, DeSantis is an actual politician. This means he is professionally guaranteed to disappoint you. He says Trumpy stuff, but he may very well turn around after he gets what he wants. And what does he want? As a politician, he wants the office, and do nothing with it. (On second thoughts, Trump also betrayed every promised value and principle once he got into office - actually he had already demonstrated that he has nothing to do with those values before he got into office -, but his supporters disregard this reality and stay with the Trump cult, so maybe this point will not deter you at all.)
Second, Trump is making sure that in the current Republican party no other candidate has a chance, except when Trump is literally gagged, handcuffed and thrown in jail. Or dies on the campaign trail. So if you want to stick with the likeliest winner among Republicans, it's Trump. But Trump will not be the overall winner of the presidential elections. He never got the popular vote ever once, despite his false claims to the contrary (which again should have been handled in the court system years ago, if law and order matters) and this time the establishment will make sure his election manipulations are actionably countered.
Edit: My own opinion of DeSantis is that of course he should be in jail by now too, for bussing immigrants. Or is there no legal punishment for that in USA? So much for being a law-and-order country then...
But Trump will not be the overall winner of the presidential elections. He never got the popular vote ever once
Had you the ability and the inclination to pay attention, you'd know that winning the national popular vote doesn't matter...
Hillary Clinton learned that lesson the hard way! (Her husband
tried to tell her...but I guess she believed her own hype. :) )
Of course
you wouldn't consider the possibility that Trump meant American voters were more numerous and engaged than ever before... :)
My own opinion of DeSantis is that of course he should be in jail by now too, for bussing immigrants.
Why? Once an "immigrant" is cleared by the federal authorities, they can go wherever they want! In fact, the constitution guarantees such freedom of movement.
What I consider to be DeSantis' strong points you likely decry — so we needn't go into his record of electoral success and his record as governor. Yes, he's
Trump-y enough for me, with the advantage of being eligible to serve two terms — time enough to right the ship!
But Trump will not be the overall winner of the presidential elections. He never got the popular vote ever once
Had you the ability and the inclination to pay attention, you'd know that winning the national popular vote doesn't matter...
I know this. Trump does not. His false argument for his victory is that he got more votes than anybody had ever seen, and he got even more the second time. Therefore "they stole it" even though all the traces of election theft are on him.
Hillary Clinton learned that lesson the hard way! (Her husband tried to tell her...but I guess she believed her own hype. :) )
Had you the ability and the inclination to pay attention, you would actually note that Trump is yet to learn it. And he is making absolutely sure that he learns this in the hardest way anyone has ever seen.
But of course, you prefer factless partisan delusions of grand propaganda. Hillary conceded within a day. Trump has still not conceded to this day. Are you paying attention? No, you are not. Facts are not your thing.
My own opinion of DeSantis is that of course he should be in jail by now too, for bussing immigrants.
Why? Once an "immigrant" is cleared by the federal authorities, they can go wherever they want! In fact, the constitution guarantees such freedom of movement.
So you have not been paying any attention to this one either. The facts are as follows:
The immigrants are taken to where they do not want to go. They are not going by themselves. They are taken to where nobody expects them, i.e. they are literally dumped at the destination. The name of the crime is human trafficking.
And you are completely clueless of the fact that the American constitution has been argued (by "conservatives" and "literalists") to guarantee literally nothing to non-citizens. You really have no grasp on law. Same as on facts.
Then again, this is to be expected in the Trump cult. As you were.
The facts are as follows:
The immigrants are taken to where they do not want to go. They are not going by themselves. They are taken to where nobody expects them, i.e. they are literally dumped at the destination. The name of the crime is human trafficking.
And you are completely clueless of the fact that the American constitution has been argued (by "conservatives" and "literalists") to guarantee literally nothing to non-citizens. You really have no grasp on law. Same as on facts.
Sigh... Your set of "facts" supporting the human trafficking charge happens to be another of your delusions.
FYI: Resident Aliens are both subject to U.S. jurisdiction and protected by most constitutional provisions — one obvious exception being the right to vote in federal elections. :)
What? I'm now required to agree with anyone
you call "conservative" or "literalist"? No thanks: I'm not a
follower! And -even if I were- your pervasive and constant bad faith would preclude me from accepting your recommendations at face value...
(But I did note your failure to cite an example or culprit! :) Typical "
ersi".)
FYI: Resident Aliens are both subject to U.S. jurisdiction and protected by most constitutional provisions — one obvious exception being the right to vote in federal elections. :)
Your dilemma is as follows: If immigrants had no nominal rights, then USA would be under serious charge due to lack of legal framework for human rights at home. But if immigrants have nominal rights, then bussing them *is* human trafficking and against the law. Which way is it?
Either way I know both the legal situation and concrete facts better than you. You are not in a position to FYI anything. All your years on this forum you have provided very little factual information, but none that was not known already. Otherwise you have only provided so-called alternative facts, which are sometimes fascinating to observe for psychoanalytical purposes.
What? I'm now required to agree with anyone you call "conservative" or "literalist"?
An entrenched Trumpite who did not see the insurrection happening and thinks Hillary is somehow crooked while Trump is not obviously lacks sufficient epistemological acumen to agree or disagree with anything.
(But I did note your failure to cite an example or culprit! :) Typical "ersi".)
The name and example is DeSantis. Come on, it's directly in the post you were responding to, inside the embedded quotes. Typical Oakdale dropping off half of the content when parsing sentences both when reading and writing. Since you are clearly overburdened with incoming information already, I won't bother you with any further details.
If immigrants had no nominal rights, then USA would be under serious charge due to lack of legal framework for human rights at home. But if immigrants have nominal rights, then bussing them *is* human trafficking and against the law. Which way is it?
First, the U.S. is not subject to the so-called World Court. So, your "serious charge" amounts to nothing more than impotent moralizing.
Second, immigrant status is not conferred by mere aspiration.
Third, if you're in the country legally (
i.e., have been processed by Border Patrol and have a scheduled court hearing) and I offer you a bus or plane ticket to -say- New York, that is
not "trafficking". That is largesse.
And since you only want to consider Florida's governor (and not Abbott of Texas... :) ), I'd ask how -do you think- the "migrants" got to Florida in the first place? :)
Of course, your quoted comment poses a false dilemma — and you know it. Is all your legal analysis predicated on self-righteous indignation? So it seems to me... If only you were Czar, eh? :)
The following are notes for myself. You are completely unqualified for this discussion, Oakdale.
First, the U.S. is not subject to the so-called World Court. So, your "serious charge" amounts to nothing more than impotent moralizing.
Second, immigrant status is not conferred by mere aspiration.
This is exactly my point, knowing that "conservatives" and "literalists" in USA do not acknowledge the concept of human rights, even though Declaration of Independence of USA takes it "to be self-evident that all men and women are created equal, that they are endowed by their Creator with certain inalienable rights." It's an enlightenment concept, not a World Court concept.
A country that is in denial of this concept is not an enlightened country. It is in plain evidence now that what Declaration of Independence proclaims does not obtain in the legal and moral sense of the inhabitants of the country at all. The bussing of immigrants is a clear example that the moral turpitude is not limited to Oakdale rednecks in the country, but it is a general state of mind among the country's officials and jurists. As follows:
The flights last month, carrying 48 migrants, attracted international attention and drew condemnation from Democrats as well as several legal challenges. Mr. DeSantis immediately claimed credit for what appeared to be a political maneuver — dumping dozens of asylum seekers on the doorstep of Northeastern Democrats who have resisted calls to clamp down on immigration.
The fact that DeSantis is using the budget of his own state to bus immigrants of another state (since his own state does not have such readily abusable immigrants) to a third state should be an inter-state/federal legal challenge in multiple ways, but this is not the most pertinent point. The most pertinent point is that "legal challenges" in this article refer to lawyers trying to figure out whether there is something legally challengeable in this activity.
If lawyers are puzzled about human trafficking on the level of governors of states, then clearly USA is a sad third-world dump when it comes to the legal framework concerning human trafficking.
Third, if you're in the country legally (i.e., have been processed by Border Patrol and have a scheduled court hearing) and I offer you a bus or plane ticket to -say- New York, that is not "trafficking". That is largesse.
To reduce the concept of human trafficking as far as possible, its minimum key feature is the
consent of the trafficked. Now, many people *want*, even desperately so, to get to a country that has been presented to them as a better country. They are lured by alleged opportunities. So people's want is not the kind of
consent relevant to the concept. Trafficking comes in with a trafficker/smuggler who does the allegations of the work/living opportunities and then the opportunities don't obtain at the destination.
Say a pimp promising a different job to someone at a destination while the actual job ends up being prostitution — this is sex trafficking even when the pimp pays all the costs to the destination and provides accommodation at the destination. This should be easy peasy to understand for a ten-year-old, if not a five-year-old. For an Oakdale pimping is a largesse because he cannot afford it, but legally pimping is sex trafficking. In case of the bussing of immigrants, the perpetrators provide nothing at the destination.
DeSantis and Abbott qualify as human traffickers. Human trafficking is a serious crime when regular people do it, but lawyers in USA are puzzled about it when governors do it, so once again so much for being a law-and-order country where people allegedly have rights. Immigrants deserve more adequate information about their destination country: USA is a below-average third world dump where non-citizens have zero constitutional rights and there is no recourse against state officials. African smugglers advertise the EU as the place where everyone who crosses the border receives an Adidas jumpsuit, iPhone and a fully equipped apartment. Sorry, dear immigrants, the traffickers are lying to you.
The following are notes for myself. You are completely unqualified for this discussion, Oakdale.
First, the U.S. is not subject to the so-called World Court. So, your "serious charge" amounts to nothing more than impotent moralizing.
Second, immigrant status is not conferred by mere aspiration.
This is exactly my point, knowing that "conservatives" and "literalists" in USA do not acknowledge the concept of human rights, even though Declaration of Independence of USA takes it "to be self-evident that all men and women are created equal, that they are endowed by their Creator with certain inalienable rights." It's an enlightenment concept, not a World Court concept.
A country that is in denial of this concept is not an enlightened country. It is in plain evidence now that what Declaration of Independence proclaims does not obtain in the legal and moral sense of the inhabitants of the country at all.
Human rights? Another symptom of your self-righteousness: You believe everyone in the world has the
right to residence and citizenship anywhere they choose... Why? It's certainly not enlightenment. It's Soros-style agitprop.
How do you determine that residence and citizenship are inalienable? Hand-waving?
No. You just want to keep the argument going, and this red herring is just a means to that end. It doesn't matter that it's nonsensical!
Human rights? Another symptom of your self-righteousness: You believe everyone in the world has the right to residence and citizenship anywhere they choose... Why? It's certainly not enlightenment. It's Soros-style agitprop.
How do you determine that residence and citizenship are inalienable? Hand-waving?
No. You just want to keep the argument going, and this red herring is just a means to that end. It doesn't matter that it's nonsensical!
Oh dear, you have not learned your fallacies properly. Your reading comprehension is F as usual.
My point was that DeSantis and Abbott are engaged in human trafficking. Human trafficking is a crime. Crimes should be prosecuted in a law-and-order country. Also, human rights reads straight in the Declaration of Independence of USA.
Your attempt to sidetrack from this by attributing the concept of human rights to Soros instead is a red herring. You are using logical fallacies to compensate for your lack of facts, but this is not going to work. Just keep on cheering crimes and criminals - when they are of your own party, you hyperpartisan hypocrite.
This one (https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf), restoring Trump to presidential candidacy in Colorado, may yet take the cake for being the worst SCOTUS decision ever. It's all the more tragic because it was formally unanimous. And some comments were unwarranted, such as the one saying that the court is turning "the national temperature down" on a politically charged issue. How do you turn the temperature down by enabling an insurrectionist?
The ruling is flatly wrong. The constitution, Amendment 14 Section 3, says that insurrectionists do not belong to state office. This is how straightforward it is. How was it possible to mess this up? The court focused on Section 5 which says, in full, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." From this the court decided that the states cannot apply the sections of the amendment on their own. However, in reality the states have much liberty and variety in applying for example Section 1, the citizenship and civil rights section.
Moreover, we are talking about a candidate of the presidential elections. Had SCOTUS members read the constitution about presidential elections, instead of relying on stupid political propaganda, they'd know that such a thing as a candidate of presidential elections is not prescribed to the states by the constitution. Entire USA is widely brainwashed into thinking that the voting population choose the president. This is false. According to the constitution, the states appoint electors and the only requirement for the presidential candidates, insofar as the electors are concerned, is that at least one of them is not from the same state as the electors are. So, essentially, Colorado was in full liberty to remove Trump from candidacy, have a list of candidates as they themselves please, and instruct their electors as they please. If constitution matters, that is. To SCOTUS something else matters.
Now, what did Colorado do when this ruling was handed down to them by SCOTUS? Did they whine like liberals that their rights and liberties are being trampled on? That it is a witch hunt and persecution? No. They put Trump back on the ballot and bowed themselves to the SCOTUS idiocy in the name of formally upholding the rule of law. This is squarely contrasting to Trump's behaviour, who in every indictment against him whines like a liberal that his rights and liberties are being trampled on, that it is a witch hunt and persecution, while himself being an insurrectionist who cares nothing about the rule of law.
Also, SCOTUS deployed some technicalities in taking Trump's absolute immunity argument for consideration in order to delay the documents investigation case. Thus SCOTUS aims to ensure that Trump not only remains on the ballot as an insurrectionist, but also as the thief and distributor of state secrets, an asset of foreign powers.
SCOTUS evidently has decided that USA is ripe for doom and Trump is up for the job. However, according to reasonable projections, Biden will win, if he survives until inauguration. But I'd say that even when Trump loses, it is a very bad mark on USA that the country's highest justices stepped in to prevent justice from happening.