Isaac Laquedem

New fence installed to protect nation from Samuel Alito

That's what I wish the reason was for fencing in the Supreme Court.  Instead, I'm taking the fence as having a deeper symbolism.  It's a striking visual image of how far the Court has gone to distance itself from the rest of the nation.

Justice Alito's draft opinion will hand the Ninth Circuit a powerful tool, if it dares to wield it

Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, recently leaked to Politico, proposes to overrule Roe v. Wade and Planned Parenthood v. Casey altogether.  The opinion contains some gems of legal thought that the good Justice may not have thought completely through before committing his view to paper.  Here's one of them.

On page 5, Justice Alito states flatly: "We hold that Roe and Casey must be overruled."  He then explains why:  "The Constitution makes no reference to abortion [true], and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely - the Due Process Clause of the Fourteenth Amendment.  That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"  His quotations are from a 1997 case, Washington v. Glucksberg, in which the Supreme Court held that the Fourteenth Amendment does not bar a state from prohibiting physician-assisted suicide.

Let's talk about whether one current constitutional right is "deeply rooted in this Nation's history and tradition."  I have in mind the right of corporations to enjoy the same constitutional rights as people, upheld most notably in 2009 in Citizens United v. Federal Election Commission, the case that gave corporations the constitutional right of free speech, which they could express through unlimited political spending, unfettered by the FEC.  The right of free speech is certainly deeply rooted in our history and tradition, as it predates the adoption of the First Amendment in 1791.  We can trace the right of free speech, or at least the tradition, back to the libel trial of John Peter Zenger in New York in 1734.

But the rights of corporations are not deeply rooted in our history and tradition.  In fact, when the states came together to form the United States, corporations existed only by the grace and favor of the state legislatures, and before that, by royal charter.  To form a corporation, you needed to petition your state legislators, and possibly to subsidize some of them.  It was not until the 1840s that states began to adopt laws that allowed ordinary people to form corporations. In fact, at the end of 1791 the United States had only 41 corporations.  Thus, if you follow the reasoning of Justice Alito, the constitutional rights of corporations are not deeply rooted in the nation's history and tradition, and thus are not protected by the Due Process Clause of the Fourteenth Amendment.  The court has said that corporations have a constitutional right of free speech under the First Amendment, but the originalists on the bench have to twitch a little when they say that, because the Framers weren't thinking of corporations when they wrote the First Amendment any more than they were thinking of semiautomatic weapons when they drafted the Second Amendment.

Justice Alito's draft opinion overruling Roe v. Wade has been more than ten years in the making - you can see it foreshadowed in the opinion in Citizens United.  If the Supreme Court's final opinion adopts the logic and conclusion of his draft opinion, when the initial shock wears off, look for some of the federal appellate courts, the Ninth Circuit especially, to apply Alito's test for overruling Roe v. Wade as an excuse to disregard or very narrowly interpret other decisions of the Supreme Court that aren't supported by sound reasoning.

The Russian oligarchs ...

... should be looking in the Kremlin, not in Ukraine, for the Donbass that is costing them their fortunes.

Fox News outclasses the BBC for journalistic ethics? Today, yes

The conviction this week of Ghislaine Maxwell for her complicity in the sexual misconduct of her longtime friend and employer, the late Jeffrey Epstein, spawned a plethora of articles and interviews with legal analysts.  For example, yesterday the BBC interviewed law professor Alan Dershowitz to talk about the verdict.  The Washington Post reports that Professor Dershowitz used his time on the BBC World News "to slam [witness Virginia] Giuffre for supposedly not being a credible witness," and (again in the Post's words) "claimed the case from Giuffre against him and Britain's Prince Andrew *** was somehow weakened after Maxwell's guilty verdict." 

Professor Dershowitz also appeared on Fox News to talk about the case.  Fox News disclosed, as the BBC did not, that Dershowitz had once been Epstein's lawyer (he helped defend Epstein in his 2008 sex-crime trial), and that Dershowitz had also been accused of having had sex with Ms. Giuffre when she was 16.  (Dershowitz has denied that allegation, and in fact claimed this week that Ms. Giuffre herself could be charged with sex crimes.)

It's odd to read about Fox News surpassing the BBC on journalistic ethics, but then it's been a crazy year.

Burlington, Vermont slashed its police force. Hilarity did not ensue.

One of the shibboleths of cutting budgets is that the corporation, or agency, or non-profit will have to learn to do more with less. It's not possible to consistently do more with less; otherwise we could cut the budget for [fill in the blank here] to nothing and be able to do everything. Here's an illuminating story about Burlington, Vermont, a small liberal city that decided to cut its police force ... and what has happened since. The takeaway? Violent crime hasn't increased, but the quality of life took a nosedive.  Like Burlington, Portland has reduced its police force, not so much by an intentional budget cut as by attrition and neglect.  The result?  To me, it seems much the same as what happened in Burlington.

Congressional Republicans: the Marxists of our time

The Republican party, and in particular its leadership in Congress, has turned into a collection of Marxists - not adherents of Karl Marx, but of Groucho Marx, most notably his line from Horse Feathers, “Whatever it is, I’m against it.” It must save a lot of intellectual energy to be able to oppose something without having to go to the bother of reading it first.

Isaac suggests a refrain for infrastructure dedication speeches

Now that a portion of President Biden's infrastructure package has made the passage between the Scylla of Mitch McConnell and the Charybdis of Senators Sinema and Manchin, it's time to look ahead to the eventual dedication ceremonies for some of the projects that the bill will fund, particularly those in Republican states.  Let's imagine ourselves at one of those ceremonies, in a Congressional district with a Republican representative, located in a state with a Republican senator.  It would please me if one of the politicians at the dedication should say something like this:

I am honored to be part of the dedication ceremony for this fine project.  As you know, your Senator A and your Representative B voted against the bill that funded this project and the Z jobs that it created.

Enterprising Democratic candidates running against that Senator or that Representative could then modify the same line when raising money for their races, particularly from contractors who had contributed to their opponents in earlier races.  I have in mind mailers and social media advertising with a message something like this one:

The top brass of XYZ Construction gave $X to Senator A and Representative B in their last elections, who both voted against the bill that paid for XYZ to build the ___ project and created Z jobs for our community.  Ask XYZ why it supports unemployment.

People more skilled than I am at crafting political messages can improve on this concept.  The important thing is for the messaging to use the same words consistently, getting more pointed as the election approaches, maybe finishing with:

Representative X votes NO on jobs for the 8th District.  Replace X now.

 

California recall effort fails

Elder buried.

It's time to Peel off the military trappings of our police force

On June 11 Governor Kate Brown signed HB 2481, which restricts police departments from acquiring certain types of surplus federal military equipment, including armed drones, grenades and grenade launchers, and firearms silencers.  City police departments must obtain written approval from the city council before acquiring any other military surplus equipment.  County sheriffs must notify the board of county commissioners at least 5 days before asking the federal government for surplus property, but don't have to get the county commission's approval.  The bill as introduced would also have prohibited police departments from acquiring surplus "militarized combat, assault or armored vehicles," a provision that the legislature dropped.

To the man with a hammer, everything looks like a nail.  To the police department with combat gear, everything looks like a battlefield.  HB 2481 is a fine start toward restoring the distinction between the United States military and local law enforcement.  Let's continue the work.

One quirk of many American municipal police departments, including Portland's, is that they are structured on military lines, from chain of command down to the titles of the officers: sergeants report to lieutenants, who report to captains.  Compare our fondness for organizing police forces as paramilitary operations with the titles that the British chose for their police officers:  from lowest to highest they are Constable, Sergeant, Inspector, Chief Inspector, Superintendent, and Chief Superintendent.  Only one of those ranks, Sergeant, is drawn from a military title, and above the Chief Superintendents the titles revert to variations on the entry-level position:  Assistant Chief Constable, Deputy Chief Constable, and Chief Constable.  Sir Robert Peel chose the names of those ranks deliberately, to avoid the constabulary being seen in the image of an additional military force, consistent with the nine policing principles that he set to paper in 1829.  His first principle of policing was "To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment."  The second, relevant in Portland today, was "To recognize always that the power of the police to fulfill their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect."

I don't intend to suggest that Portland could cure its policing ills with a change of name, though it would be a good start.  I do believe that if we assign military ranks to our police officers, train them in military thinking, and give them military equipment, we should not be surprised when they occasionally act like a military force.

 

 

Isaac offers some legal help to Park Cannon and the Georgia State Patrol

On March 25, the Georgia State Patrol arrested Georgia State Representative Park Cannon inside the Georgia State Capitol building as she knocked on the door of a room where the governor, Brian Kemp, was signing a bill to make it harder for Georgians to vote.  The Atlanta Journal-Constitution, source of the image at left, tells the story here.

It's unusual for the state police to arrest a state legislator in the state capitol, not just in Georgia but in civilized states as well.  As a public service to Representative Cannon and an aid to the Georgia State Patrol, I share the following bits of information.

First is that Article III, Section IV, Paragraph IX of the Georgia Constitution states:

Paragraph IX.   Privilege of members.   The members of both houses shall be free from arrest during sessions of the General Assembly, or committee meetings thereof, and in going thereto or returning therefrom, except for treason, felony, or breach of the peace. No member shall be liable to answer in any other place for anything spoken in either house or in any committee meeting of either house.

Second is since at least September 6, 2002 Policy No. 17.12 of the Policy Manual of the Georgia State Patrol has provided this guidance to its officers, which the manual states is to be distributed to all sworn employees.  The first extract is part of the state's general policy to educate its officers that certain persons are immune from arrest:

17.12.2 Policy

Federal, state and international laws provide that under certain circumstances, individuals may be immune from arrest. With the limited exception of certain diplomatic officials, immunity from arrest does not preclude prosecution of the individual for the offense for which immunity from arrest is claimed. In all cases in which immunity is claimed, a member has the right to detain the person long enough to verify that the person is entitled to the immunity claimed. This can usually be done by examination of official identification cards. The member may also request that the Communications Equipment Officer contact the appropriate government agency to verify the individual's status.
    In all cases in which a person asserts immunity from arrest, the detaining member [of the state patrol] shall immediately notify their supervisor. See the Diplomatic and Consular Immunity Requests for Asylum/Defection Exhibit #17.12-4.
    A member shall not permit a person who is entitled to immunity from arrest to continue to operate a motor vehicle or boat if the member has probable cause to believe that the person is under the influence of alcohol or drugs.

The following section covers state legislators specifically:

17.12.3 Procedures

A.    Troop officers shall be notified, through the chain of command, whenever a member cites or detains one of the groups or officials listed in 17.12.3 B-D.

B.    [United States Senators and Congressmen]

C.    State Legislators

1. The members of both houses shall be free from arrest during sessions of the General Assembly, or committee meetings thereof, and in going thereto or returning therefrom, except for treason, felony, or breach of the peace, e.g. DUI or assault. Legislators shall not be liable to answer in any other place for anything spoken in either house or in any committee meeting of either house. A member can write a UTC or warning for a traffic violation.

It's possible that the training of the patrol members on duty at the Capitol has worn off.  No particular penalty is prescribed for an officer who violates the Georgia Constitution, but it could become embarrassing for the involved officers and their supervisor.