English (I) and French (II).
For the title section you must scroll down to the French part of this post, sorry, but you can also google the phrase to know more about this little-known event (from 1815 AD).
Meet the Reactionaries
Texas is First US State to Adopt IHRA Definition of Antisemitism. (i24news June 16, 2021)
This comes after Amawi v. Pflugerville Independent School District (April 2019), “a case in Texas where the plaintiffs had all faced potential or real loss of employment with the State of Texas for being unwilling to sign contracts promising not to participate in boycott activities against Israel.”
The Texan District Court held that “content based laws…are presumptively unconstitutional” and that “viewpoint-based regulations impermissibly ‘license one side of a debate’ and ‘create the possibility that the [government] is seeking to handicap the expression of particular ideas.’ It further asserted that the law the State had relied on, HB 89, was unconstitutional under the First Amendment.” (Wikipedia)
Governor Greg Abbott couldn’t have “his” anti-BDS law stand the judicial test (it was eviscerated) so he “adopts” a new definition of antisemitism. So what? As far as legal value is concerned his adopted definition is nonexistent. He could have repainted the state capitol instead and that would have been exactly as relevant in terms of positive law (with the difference that it would be something useful as buildings need new paint once in a while). Any attempt to give a positive legal value to the definition will be a major infringement on First Amendment rights, just like his anti-BDS law.
As far as the American Jewish Congress’s remarks on … [a social platform beside Twitter and Facebook] in a Newsweek opinion called We need to stop Marjorie Taylor Greene’s online extremism before it gets violent are concerned, the authors examine two solutions.
One –the second discussed by them– is transparency about online fundraising. Why not? Yet do the authors really believe that transparency would be of any use against what they claim is their concern, namely that online speech incite violence? I fail to see how this would work (to be sure I only read the first two paragraphs, which were screenshot, of their paper).
Before looking at their second proposal, let us remember that under the American Constitution even speech that incites violence is protected if it is not “directed to inciting or producing imminent lawless action and likely to incite or produce such action” (Brandenburg v. Ohio 1969). In my opinion that excludes all online speech to begin with, since then the people get the message through electronic devices, mostly sitting in a room with a computer, so the imminence criterion is lacking altogether (although with smartphones things could change in the future, if for instance we could see such a thing as a mob where individuals are both absorbed in their smartphones’ content and committing violence at the same time, which would be peculiar still).
The authors’ second proposal is to ban the platform. They write: “There are precedents in law where exceptions to the First Amendment regarding hate speech exist. ” I have no idea what precedents they have in mind (they do not name them here, if at all) but I know the current state of the law is Brandenburg v. Ohio, which does not support the idea of a ban. In fact there are no currently valid precedents at all. They would have to resort to the Espionage Act, as has been done with Julian Assange, but this is not even credible.
What they call for, then, is reviving precedents long fallen into disuse, in the spirit of the Sedition Act. I can see no other alternative. This is the most reactionary stuff I have read in a long time.
As to the Anti Defamation League’s call to investigate … [same platform as above] “for possible criminal liability in Capitol attack,” it is preposterous. A platform cannot be held responsible for the content its users publish: this is SECTION 230 (as if people had not been talking at length about it recently!) (the section “provides immunity for website platforms from third-party content”: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”). So even if some people on … had posted content that was “directed to inciting or producing imminent lawless action and likely to incite or produce such action” (the Brandenburg v. Ohio requirement for prosecuting speech), which must be what ADL has in mind, with the “lawless action” being the Capitol attack, Section 230 prevents the Justice Department from even considering to investigate … The slightest step in that direction would be a civil liberties case against the state.
This being said besides the fact that platform content cannot even be fancied to be “directed to inciting or producing imminent lawless action and likely to incite or produce such action.” The Justice Department would have to prove that an internet post was likely to produce the Capitol attack by a crowd of people gathered on the spot. In any world with stable judicial rules of evidence this is not conceivable.
Coloradans Not Wanted
Many Companies Want Remote Workers—Except From Colorado. After a new state law that requires employers to disclose salaries for open positions, some are advertising jobs available anywhere in the U.S. but Colorado. (Wall Street Journal, June 17, 2021)
Companies must reveal salary information in job ads if Coloradans are eligible, so they now advertise their job positions in this way:
“This position may be done in NYC or Remote (but not in CO due to local CO job posting requirements” (DigitalOcean’s online post)
Yet seven states (unnamed in my source below) have laws that prohibit advertising discrimination based on “race, color, or creed”:
“Jews were denied welcome at hotels, resorts, public accommodations, and schools. In 1907 a hotel in Atlantic City, New Jersey, declined accommodations to an American Jewish woman. She complained to Louis Marshall, a lawyer and president of the American Jewish Committee. Marshall drafted a law that barred the printed advertising of discrimination in public accommodations on the basis of race, color, or creed. Enacted in 1913, this statute did not require hoteliers to rent rooms to all comers but prohibited the publication and dissemination of statements that advocated discriminatory exclusion. By 1930 seven states had adopted versions of the New York statute, making group rights a nascent category [nascent or rather stillborn] in First Amendment law.” (mtsu.edu First Amendment Encyclopedia: Group Libel [nonexistent])
This means in all other states you can advertise your business’s discriminatory choices legally. How common is this? And, in fact, why is this not more common? Is it ignorance of the law? Do people mistakenly believe they cannot make such advertisements?
What about the constitutionality of these laws?
Here the author is quite obscure. She says: “Throughout the 1930s the laws remained untested in the courts. Marshall apparently preferred to field inquiries from resort owners about the legalities of their advertisements than to file lawsuits.”
In her first sentence “throughout the 1930s” seems to be saying that the laws were tested by courts but later, otherwise why limit the talk to the thirties? However the author says nothing about results of later constitutional challenges.
The second sentence seems to be saying, correct me if I’m wrong, that there never was any lawsuit based on one of these 7 (or 8, actually, the New York state law plus seven copycats, I’m not sure how to read “By 1930 seven states had adopted versions of the New York statute,” if that means 7 or 8 in total) and notwithstanding the fact there was not a single challenge in courts this man managed to have all such advertisements removed forever. Quite a feat indeed…
At that time commercial speech was not protected by the First Amendment, so constitutional challenges were bound to fail, the laws would have stood the test. This could explain why the hoteliers etc did not care to go to courts to defend their advertising and instead complied with the “inquiries” fielded by said lawyer. Today it is different: commercial speech is protected speech (at least it receives partial protection, not as broad as political speech but still) so, assuming these laws are still around (and this is more likely than the reverse, isn’t it?), challenging their constitutionality is more open-ended today.
American Child Labor
Conservatives would legalize child labor again if they could.
Child labor is legal in the U.S. at the date of this post.
“These regulations do not apply to agricultural labor because of outdated exemptions”: “Estimates by the Association of Farmworker Opportunity programs, based on figures gathered by the Department of Labor, suggest that there are approximately 500,000 child farmworkers in the United States. Many of these children start working as young as age 8, and 72-hour work weeks (more than 10 hours per day) are not uncommon. … Today’s farmworker children are largely migrant workers” (American Federation of Teachers, an affiliate of the AFL-CIO)
Besides, “Under the Fair Labor Standards Act (FLSA), workers under the age of 16 cannot work between 7 p.m. to 7 a.m., except during the summer. From June 1 to Labor Day, the prohibited hours are from 9 p.m. to 7 a.m. Once you’re 16, federal law no longer restricts what hours you can work.” Only the night shift is illegal for child workers.
“Today’s farmworker children [estimated 500,000] are largely migrant workers.” Conservatives don’t have to legalize child labor again, they’ll keep crying about the border crisis while overworking Mexican children on their farms.
They legally work children below 14 in farms, family businesses, private homes for “minor chores,” newspaper delivery, and more sectors undisclosed in the sources I quoted.
A 14-year old is not a child according to U.S. labor law, while the International Labour Organization (ILO) has a 15-year old threshold.
While the federal minimum wage for adults is $7.25 per hour, for children it is $4.25 per hour. (See also prison inmates work, given the rates of inmates in the states: “By law, incarcerated workers do not have to be paid. Some states take this to heart. Alabama, Arkansas, Florida, Georgia, South Carolina, and Texas do not pay incarcerated workers for most regular jobs performed within the prison. Inmates in other states are not much better off, as most state prisoners earn between $0.12 and $0.40 per hour of work. Even if an inmate secures a higher-paying correctional industries job – which about 6% of people incarcerated in state prisons do – they still only earn between $0.33 and $1.41 per hour.” (Corporate Accountability Lab, Aug 2020)
American companies outsource a large part of their industrial activity to China where “About 7.74 percent of children between the ages of 10-15 are laborers.” (The Borgen Project, Aug 2019) American law prevents Americans from knowing the figures of American companies’ job outsourcing.
Erasure of History Forum
Who remembers the Anti-Masonic Party?
The Wikipedia page lists more than 40 Congress members, including earlier President of the United States John Quincy Adams (MA)†, 2 state governors, William Palmer (VT) and Joseph Ritner (PA), and a host of other officials such as lieutenant governors.
†John Quincy Adams belonged to the Anti-Masonic Party from 1830 to 1834, he was a member of the Congress’s House of Representatives from Massachusetts from 1831 to 1848, and President of the United States from 1825 to 1829.
Collectivisation : L’exemple de la santé
L’État français a un argument en béton pour rendre la vaccination contre le covid obligatoire : c’est que la sécurité sociale est collectivisée. En admettant (par hypothèse) que le vaccin est efficace, ce sont ceux qui refusent de se vacciner qui continueront de tomber malades. Ils représentent un coût pour le système collectivisé.
L’individu dont les dépenses de santé sont prises en charge par un régime collectivisé n’est pas libre de refuser un vaccin. La pandémie pourrait donc ouvrir le débat sur le démantèlement intégral de la sécurité sociale.
Dans un État libéral, quand quelqu’un tombe malade, il n’attend rien de l’État. S’il est assuré, c’est auprès d’une compagnie privée, et s’il ne l’est pas (et n’a donc rien prélevé sur ses revenus entre deux dépenses de santé nécessitées par la situation), il a intérêt à avoir des économies ou bien il faut qu’il s’endette (comme quand il a acheté une voiture et un écran plasma).
Dès lors, on ne comprendrait pas qu’il y ait des obligations vaccinales dans un tel pays, les dépenses de santé étant privées. En effet, quand les dépenses de santé sont privées, les choix sont forcément individuels et on ne voit pas de quel droit l’État imposerait le vaccin puisque ceux qui le refusent en seront pour leurs seuls frais s’ils tombent malades tandis que ceux qui sont vaccinés sont immunisés par hypothèse. Si mon voisin est vacciné, il ne peut pas moralement me demander de l’être aussi puisqu’il ne risque plus rien et que mon refus n’emporte aucune conséquence pour lui.
L’obligation vaccinale est un pur produit de l’étatisation. Je souhaite que l’on reconsidère de manière très approfondie le principe même de la sécurité sociale au regard de cette collectivisation rampante.
(Je ne parle pas spécifiquement ici des vaccins anti-covid, dont certains dénoncent la supposée nocivité, mais de la question de l’obligation vaccinale en général, et ma conclusion est que, même en admettant que tous les vaccins sont toujours efficaces, l’obligation ne peut se justifier que dans des systèmes étatisés de sécurité sociale collectivisée.)
Objection : Les caisses primaires d’assurance maladie (CPAM) ne sont pas des organismes d’État.
Réponse : Les CPAM remplissent « une mission de service public définie par l’État, telle que par exemple les services d’immatriculation et d’affiliation. » Ce qui est défini par l’État est étatisé.
O. Le droit des contrats est défini par l’État. Donc, selon cette logique, les contrats entre personnes privées seraient étatisés?
R. Le droit des contrats repose aussi sur la coutume commerciale et la définition de mon interlocuteur (« le droit des contrats est défini par l’État ») est en soi de l’étatisme pur.
« Le projet de loi de financement de la Sécurité sociale (LFSS) est déposé par le gouvernement au plus tard le 15 octobre à l’Assemblée nationale. » La question ici porte sur les raisons qui font qu’un régime « paritaire » a son centre opérationnel dans un texte de loi (la LFSS annuelle). La réponse ne peut être que la suivante : c’est parce que le régime est étatisé.
D’ailleurs, la Caisse nationale qui chapeaute les CPAM est un établissement public administratif (« définissant au niveau national la politique de l’assurance maladie en France »).
Mais je pourrais en réalité me passer d’introduire la moindre considération sur la LFSS. La comparaison de mon interlocuteur avec le droit des contrats est tout simplement fautive car ce droit a bien des origines tandis qu’une mission de service public est entièrement définie par l’État.
Que les CPAM aient une certaine latitude de gestion va de soi, de même qu’un particulier chasseur mandaté par la préfecture pour exterminer des renards et autres « nuisibles » (mission de service public) s’y prend comme bon lui semble (dans le cadre des lois). Cela ne change rien à la question.
Un délit réservé aux Arabes et aux Noirs
Le délit d’incitation à la consommation de stupéfiants continue d’être poursuivi et condamné en justice. Mais seulement pour les rappeurs (Mister You, affaire de Villeurbanne 2020, affaire de Grenoble 2020, etc).
On pensait que ça n’existait plus, au moins depuis le non-lieu dans les années 90 pour le groupe (blanc) Billy Ze Kick et les Gamins en Folie, dénoncé pour sa chanson Mangez-moi ! (2e place du Top 50, explicitement sur les champignons hallucinogènes : « la chanson du psylo »). Mais non.
Montrez-moi un seul Blanc puni de ce crime ! –
Inspiré par l’achat du recueil Déplacements Dégagements du grand poète Henri Michaux, dont la présentation se lit : « Ses livres, proches du surréalisme, et cependant tout à fait singuliers, sont des poèmes, des descriptions de mondes imaginaires, des inventaires de rêves, une exploration des infinis créés par les substances hallucinogènes » (Présentation anonyme, Collection L’Imaginaire/Gallimard).
Qui d’entre nous, marchant au crépuscule sur la Colline du Crack et ressentant la mélancolie de sa finitude humaine, peut dire qu’il n’a jamais rêvé d’explorer les infinis ?
La référence à la Colline du Crack doit être comprise à la lumière des précédents billets, où j’en ai déjà parlé (Law 9 et suivantes, en anglais).
Alors que la justice condamne l’incitation à la consommation, condamne des artistes, devant le problème de la Colline du Crack à Stalingrad (Paris 19), les autorités ne trouvent rien de mieux que de distribuer des pipes à crack et de payer des chambres d’hôtel.
Un interlocuteur me transmet un jugement de la Cour d’appel de Niort.
À supposer que ce Nicolas R., condamné pour avoir mis à la vente à Niort des tee-shirts Cannabis Legalize It (c’est-à-dire un message reprenant l’un des points du programme d’au moins un parti politique représenté à l’Assemblée nationale et dans divers exécutifs locaux, cette condamnation signifiant en réalité qu’il n’est pas permis de demander de changer la loi, car c’est le sens des mots Legalize It, or aucune loi ne peut comporter une clause prévoyant l’impossibilité de son abrogation et par conséquent le jugement doit être cassé car c’est de l’instrumentalisation politique de la justice), soit Blanc, mon interlocuteur apporterait un démenti au titre de cette section. – Je répondrais que c’est l’exception qui confirme la règle. (Il faudrait demander à l’expert judiciaire Gabriel Matzneff ce qu’il en pense. Mais Nicolas R. ayant en fait été relaxé en appel, mon titre reste sans démenti pour ce qui est des condamnations.)
Mon interlocuteur évoquant par la même occasion le climat actuel, il m’offre l’opportunité d’évoquer une certaine affaire, pour un autre abus de procédure, bien que ce climat soit précisément opposé à toute forme d’expression telle que celle que je vais à présent oser.
Il s’agit de la condamnation d’un rappeur noir, Maka, à 15 mois de prison pour apologie de terrorisme, pour une chanson appelée Samuel Paty.
Le journal La Marne du 27 nov. 2020 (x) indique que la chanson « cherche selon eux [selon les juges] à ‘surfer sur la vague pour faire du buzz’ ». Il est donc totalement incompréhensible que cette personne soit condamnée pour apologie de terrorisme, les juges faisant eux-mêmes remarquer que la finalité de la chanson est tout autre, à savoir « faire du buzz ». L’incohérence est redoutable.
Or demander de légaliser le cannabis, ce qui est forcément légal comme je l’ai souligné et comme la Cour d’appel l’a reconnu (la condamnation en première instance reste très choquante, tout comme l’étaient les poursuites), est une façon indirecte de promouvoir sa consommation. Car il n’y a eu que l’Église nationale danoise pour promouvoir en 1969 la légalisation de la pornographie (premier pays au monde) au prétexte que c’est parce qu’elle était interdite qu’elle attirait les gens et que donc ceux qui étaient contre la pornographie devaient demander sa légalisation.
Ainsi, la promotion de la légalisation ne pouvant s’exclure d’une forme de promotion de la consommation, la loi est d’une abominable stupidité car elle interdit et autorise en même temps la même chose. À bas toutes ces lois.
Au temps des manifestations #GiletsJaunes, le gouvernement cherchait à lancer des débats sur qui est journaliste. Je propose la définition suivante, d’une imparable logique interne :
Est journaliste toute personne condamnée en droit de la presse.
Histoire d’un mariole
Je reproche à Victor Hugo d’avoir écrit Napoléon-le-Petit. Je veux dire ce titre qui, en appelant Napoléon III le petit, laisse entendre que Napoléon Ier était grand. Non.
Il est certain que vous n’avez jamais entendu parler des guerres américano-barbaresques. Elles furent au nombre de deux : la première de 1801 à 1805 et la seconde, également appelée guerre américano-algérienne, en 1815. Dans la première les États-Unis d’Amérique et la Suède et dans la seconde les États-Unis seuls combattirent les États barbaresques d’Afrique du Nord (nos futures ex-colonies).
Les États-Unis d’Amérique et la Suède luttaient ainsi contre la piraterie en Méditerranée pendant que l’autre fou, qui avait causé la perte de notre flotte à Aboukir (1798), courait dans tous les sens en Europe et cherchait à faire un « blocus continental » pour empêcher les navires anglais d’aborder sur le continent.
Les États-Unis d’Amérique (!) – et la Suède (!) – devaient lutter contre des pirates maghrébins en Méditerranée, la mer qui borde nos côtes (!), pendant que nous avions un EMPIRE.
Si demain la France et les États-Unis se faisaient la guerre, je pense que l’on pourrait dire à l’avance en combien de minutes l’armée française serait anéantie. C’est pareil pour le droit. #FirstAmendment
The People in Arms
(Completes the section Second Amendment of Law 13.)
When one reads in the Second Amendment that militias are necessary to a free state, these are strong words and one cannot read it as “a standing army is necessary to a free state,” especially because the Constitution also has measures about the army (Article I, Section 8, clause 12) and the amendment does not mention the army but militias.
In fact one should read the Amendment thus: “Militias are necessary to a free state, even more so when there is a standing army in the state.”
In other words, in “A well regulated militia, being necessary to the security of a free state” (letter of the amendment) the emphasis is on “necessary to a free state” rather than on “necessary to the security,” because if the emphasis were on the latter, then yes the army and the state-controlled police forces may be enough and there would be no need of militias, but the Framers intended to emphasize the role of militias as against a standing army, because standing armies were the arm of absolutism in Europe and they wanted to make a free country.
As the second amendment talks about militias and not the army, I do not understand it when a statute (Dick Act, National Defense Act…) calls the military reserve a militia, because the military reserve is the army and obviously the second amendment isn’t about the army (which is named elsewhere in the Constitution but not in the second amendment). This is a statutory misnomer with huge consequences because lots of people look askance at citizen militias, which are the true second amendment militias contrary to the national guard or any other military reserve corps, which are the army_period.
An army may be “necessary” to the “security” of a “state” but according to the second amendment it is not “necessary to the security of a free state,” that is to say, again, the emphasis is on “free.” Without militias a free state would lack something necessary. And as it would not lack security if a standing army can provide it, it must be that said state would lack first and foremost being a free state.
And it should be clear by now that the militias of the amendment are not and cannot be the army nor any reserve corps of the army, however muddled the situation is made by the statutes.
The idea of a “collective right within the context of a militia,” which was cogently discarded by the Supreme Court, is, I believe, partaken by many of those who also look askance at citizen militias. Not only can they not accept an individual right to bear arms but also and perhaps even less can they accept a militia except in the muddled sense of a military reserve.
In fact they read the Second Amendment in light of the militia statutes (rather than the statutes in light of the amendment) and thus read it as meaning “an army being necessary to the security etc.”
But this is completely nuts on two grounds (beside all the already said).
1/ If the amendment were about the army, it would literaly name the annex (the reserve) rather than the main body as “necessary to the security” of the state. It would stress the necessity of the annex without even mentioning that of the main body, which is absurd.
2/ If the amendment were about the army, the amendment would be a big non sequitur: “An army being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The Framers would have found it necessary to secure a right to bear arms because the state needs an army, but such a reasoning would be a puzzle to everybody, and indeed as about all countries in the world, even sh*thole countries, have standing armies and yet most of them deny their citizens the right to bear arms, the idea that a standing army necessitates a citizens’ right to bear arms is something unheard of, and it would have been great had the Framers explained their idea a little bit. Obviously it’s absurd and the Framers of the second amendment are just not talking of the army.
One simply cannot read the amendment in light of the statutes, and this makes the statutes’ constitutionality dubious.
I also object to the organized vs unorganized typology because not only does it derive from said statutes (“organized” militias are organized by legislative acts) but also because the amendment talks of “well regulated” militias and the typology gives the impression that “unorganized” militias must be outside the scope of “well regulated” militias, which is probably what most if not all half-informed Americans (those among Americans who are half-informed) think.
Oddly, if you read the opinions of the Justices of the Supreme Court (or their summaries), you’ll find that my viewpoint is closer to that of dissenting Justice Stevens than to the majority opinion by Justice Scalia. Although I had read the summary before, I wasn’t conscious of this while writing the previous lines. Here is J. Stevens’s dissenting opinion in J.R. Vile’s words:
“The primary purpose of the Second Amendment was to underscore the Founders’s fear of standing armies. The amendment makes no mention of hunting or self-defense. … J. Stevens argues that the Second Amendment was designed to prevent Congress from disarming state militias: ‘When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.’ The term bear arms was an idiom designed to refer to those who served in militias; to keep arms further described ‘the requirement that militia members store their arms at their homes, ready to be used for service when necessary.’”
While I entirely agree with most of this, the only conclusion I find to suit it is that the Court was right to decide as it did and I hardly understand how this opinion can be a dissent.
The Founders’ fear of standing armies is the crux, what does Justice Stevens make of it? The U.S. has a standing army now, so what then? Is everything LOST and we should abide by a reality contrary to the will of the Founders while everything we keep saying in the legal domain is informed by the Constitution they framed? What absurdity is this? Clearly the Founders’ vision was that of a people in arms rather than standing armies, the arm of absolutism in Europe and of Empires elsewhere. They knew their history books and the stories of great nations plagued by praetorian intrigues. Yet, probably out of pragmatism, they also made room for an army, but if the nation were to create such an army, then the Constitution documents that it is a necessary evil–not unlike the government itself, in fact, and in the same way that that necessary evil that is the government is made as innocuous as possible by checks and balances, so must a standing army be dealt with, and the checks and balances here are the people in arms, the militias.
This was the starting point for all I wrote, which, to sum it up, is that an individual right to bear arms is enclosed in the prefatory clause about militias as the premise whence the right follows by necessity (provided one does not limit one’s understanding of militias to that of later, likely unconstitutional statutes).
To rephrase it, in my opinion you can’t have a collective right without an individual right. I believe in grassroots militias, bottom-up, so individuals must be armed if they want to form or join a militia. It’s not the governor or the Pentagon calls them and arm them, which is probably Stevens’s idea of militia, but I think he’s right that the amendment underscores the Founders’ fear of standing armies, due to which fear–a fear not at all irrational!–they wanted the people armed. The people must be armed and that means individuals must be armed.
Now when Scalia says (in the commentator’s words) “The Second Amendment was developed in reaction to fears that the government would disarm the people, and was patterned on state provisions that were designed to protect individual rights,” this is right also and I don’t see any contradiction between the two quotes because obviously if the government intended to disarm the people it would be because in the government’s idea a standing army would empty out a right to bear arms. A standing army makes militias useless (except as an annex or as local battalions of the army) so it makes the right to bear arms useless. But the Framers said–this is the very letter of the Constitution–that militias independent from the army are necessary even if the Union were to create a standing, permanent, professional army.
Then, when one reads (majority decision) “The Amendment is divided into a prefatory clause and an operative clause. There must be a link between the two, but ‘apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause’,” it smacks of taking liberties with the letter, which I disagree with in constitutional analysis (and Scalia has often blamed others for taking liberties). In my eyes there was no need to resort to such intricacies: the prefatory clause is the premise, the operative clause is the consequence, and the consequence is an individual right.
I wouldn’t insist too much on the English heritage, as today “In the United Kingdom, access by the general public to firearms is subject to some of the strictest control measures in the world” (first sentence of Wikipedia page Firearms Regulation in the U.K.), which means the U.S. would be more faithful to the heritage than the Britons themselves, and this after breaking with them. There is no justification to this: Why would or should the Americans be more faithful to the English heritage than the English?
Then Scalia goes on talking about the “pre-existing right,” which he calls a “‘natural right’ that encompassed that of protecting oneself against ‘both public and private violence’.” The majority in McDonald v. Chicago (2010) said Heller “recognized self-defense to be a basic right that applied to handguns.” To the best of my knowledge there is no country in the world where the laws say you must accept that someone kills you without trying to defend yourself, namely, a country that does not acknowledge exculpatory circumstances for homicide. This being said, the U.S. is rather unique with its constitutional right to bear arms. As a matter of fact, in other countries too you’ve got the right to use a gun in self-defense, only it turns out you don’t have a gun, because you had to ask for a license, justify your demand etc, so arguably, yes, these countries make fun of the basic right that is self-defense.
If the letter of the second amendment stresses, as I claim, defense against “public violence” rather than against “private violence,” (these are Scalia’s words) this is only out of conciseness: there was no need to expatiate on an individual right to self-defense because it is, if you like, a “natural right” (Scalia again) and it goes without saying that, when, a militia being necessary, the right to keep and bear arms shall not be infringed, individuals may use in self-defense the weapons they have the right to keep and bear.
The reference by Scalia to “public (vs private) violence” is interesting. What is it he has in mind? Is it not the possible use of the standing army against the citizenry? If this is so, then obviously the making of militias a something inside the army, dependent on the same organs, is an obstacle to the militias playing any role against public violence. So possibly Scalia has the same conception as that laid down here by me, but on the other hand I also have doubts about it: I wonder whether, like others, he might not think that this talking about militias in the Constitution is antiquated and irrelevant in the times we’re living.
That there be antiquated clauses in the Constitution is perhaps admissible, but that there be antiquated clauses in crucial matters is strictly impossible.
Immunity For Botch
South v. Maryland (1855) and the public duty doctrine say “there is no tort liability to an injured party resulting from the non-malicious failure of a law enforcement officer to enforce the law,” but also “It is a public duty for neglect of which an officer is amenable to the public, and punishable by indictment only.” Thus the absence of tort liability does not rule out all form of responsibility or I’m missing something.
You can charge an officer for failure to protect if you are feeling foolish, but the case will almost certainly get rejected by the judge, and even if it isn’t the appeal will side with the officer. … I don’t think threats of a frivolous indictment by an overzealous prosecutor can be interpreted as a duty for an officer to endanger their life. It is just legal politics and rhetoric designed to win the court of public opinion (the mob). (MrM)
For the sake of learning, I quote the definitions:
“Public duty rule: a doctrine in tort law: a government entity (as a state or municipality) cannot be held liable for the injuries of an individual resulting from a public officer’s or employee’s breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual called also public duty rule. See also special duty doctrine.
Special duty doctrine: an exception to the public duty doctrine that imposes liability for injury on a government entity when there is a special duty owed to the plaintiff but not to the public at large called also special duty exception. NOTE: The special duty doctrine applies when the duty owed to the plaintiff arises by statute or when the plaintiff has justifiably come to rely on the government’s assumption of that duty.” (findlaw)
Town of Castle Rock v. Gonzalez (2005) is a confirmation of DeShaney v. Winnebago County Department of Social Services (1989). It may be worth stressing that both involve children being victims of their father’s violence, so these rulings may be found to run into the parens patriae doctrine, actually.
Parens patriae “refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child, individual or animal who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.”
You’ll note the phrasing “requiring state intervention.” The conclusion “We are all responsible for our own personal safety, whether we like it or not” (Barnes Law) sounds odd when applied to the situation of a little child vis-à-vis his father, especially when the state knows the child’s helplessness, so much so that it adopted a parens patriae doctrine.
So I can’t agree with DeShaney v. Winnebago Social Services.
The mother was let down by the social services. In the books I find “this clause [the due process clause] was designed ‘to protect the people from the State, not to ensure that the State protected them from each other.’” This is not true as far as the parens patriae doctrine and the situation of a helpless child is concerned, but I fear to understand that it is no constitutional guarantee and instead a castle in the air. People demanded foster homes, same as they demanded a 911 line for help, and states provided the services, as it was not found unconstitutional, but only for the people to be told then that whether the services are provided in a satisfactory or botched fashion is none of the courts’ business. In other words, the Supreme Court is telling people they rely on the state at their own risk, and in reality they cannot rely on it at all.
“The fact that the state at times took temporary custody of Joshua [DeShaney] did not make the state his personal guardian after it released him.” No but the fact that it released him to an abusive father several times shows a clear misunderstanding of the situation, all the while the mother was thinking the child was in good, prudent hands.
“If the state has a financial obligation to Joshua, it must be democratically ascertained through protection of state tort (personal injury) law rather than through the due process clause.” Not true with regard to the public duty doctrine. Thus, while South v. Maryland barred a tort suit leaving indictment open, DeShaney v. Winnebago Social Services bars a due process clause suit claiming to leave open a tort suit that is not open. Of course in both cases the courts felt the need to leave some recourse open, as otherwise the notion arises of duty without responsibility, which is, to say the least, hard to chew.
“Justice Sonia Sotomayor has noted a “disturbing trend” of siding with police officers using excessive force with qualified immunity, describing it as “sanctioning a ‘shoot first, think later’ approach to policing.” She stated: “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force…But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”” (Wikipedia page Qualified Immunity)
This is the topic of qualified immunity, with which I wish I were more familiar because I guess that’s part of what is knowing one’s rights…
THE NASA Psychic
How many Americans know Apollo was a psychic program?
“Jonsson is most notable for his long-distance telepathy experiment during the Apollo 14 mission in 1971. Four psychics on earth were chosen to receive telepathic signals from astronaut Edgar Mitchell in space.” (Wikipedia page Olof Jonsson)
Are we supposed then, according to NASA, a federal agency, to believe in extrasensory perception (ESP)? Obviously yes because one does not fund a “long-distance telepathy experiment” if one does not believe in short-distance telepathy. Think of it: a federal agency funding a long-distance telepathy experiment between space and the earth while it was not convinced that telepathy occurs here on earth. Does it make any sense?
Likewise, the fact that the experiment was, as the Wikipedia page adds, a “complete failure” cannot by itself disprove ESP but only, if anything, “long-distance” ESP. Therefore, without an express statement to the contrary by NASA, it must be said to endorse ESP.
Canada: Conservatives’ attempts to protect platform users’ speech online is blocked. A bad result for free speech in Canada.
Let’s face it: Canada never was a free-speech country. U.S. envoys never pressed it to become one and how would they when their bosses at home had rather have the same anti-free speech policy at home too? I told you already, for that it takes independent judges tenured for life. Among politicians it’s always the opposition that defends free speech, but when it gets to governement there’s no more of that bullsh*t, it’s censorship bills one after the other, all of them. Prove me wrong.
Given the basic fact that Twitter and Facebook censor all opponents of the Democratic Party, this censorship is state action in all states and localities governed by Democrats, and the platforms are amenable to courts for abridgment of First Amendment rights by the inhabitants of these states and localities. The ideological nexus is obvious. The U.S. federal government being currently under a president of the Democratic Party, these platforms’ censorship is now state action in all the territory of the Union.
The Botched Law of Racially Restrictive Covenants
In what is perhaps an unprecedented instance in the history of American legislation, a statute, the Fair Housing Act of 1968, was needed twenty years after the Supreme Court intended the same as the Act, in its notorious decision Shelley v. Kraemer of 1948 which eviscerated the enforcement by courts of private restrictive covenants barring blacks from buying real estate.
In the 6-0 decision Chief Justice Vinson explained that “restrictive covenants drawn up by private individuals do not in themselves violate the Fourteenth Amendment. As long as they are completely private and voluntary, they are within the law. Here, however, there was more. Through their courts, the states aided in the enforcement of the covenants. Indeed, if it were not for the courts, the purpose of the agreements would not be fulfilled.” (Vile, 2018)
Thus we were to learn, en creux, from the Supreme Court that covenants whose purpose would not be fulfilled by courts are a legal object–a legal UFO to this very day. Commentator Vile adds, for those who could not believe what they had just been reading: “Shelley dit not invalidate private restrictive covenants but only state enforcement.” State enforcement rings a bell to those familiar with constitutional law: one reads state action. That judicial action is state action is perhaps not to be denied but then, as courts, one or the other, are competent about everything, the decision means that state action is everywhere (and everybody could be sued for “discrimination”: you could be sued for failing to invite blacks at your wedding, for instance)–and at the same time whites who refused to sell estate to blacks through restrictive covenants would maintain the practice undisturbed, as long, that is, as blacks did not trick them and acquired the estate anyway, or perhaps as long as black squatters did not occupy the premises, and if a black (or, for that matter, any) squatter occupied a house belonging to a white owner to which house a restrictive covenant was attached, perhaps the owner had no legal recourse against the squatter?
Such niceties and others resulting from the unanimous decision were so strange that eventually the legislator, twenty years later, passed the Fair Housing Act that prohibits racially restrictive covenants.
To this day no court dared link state action to the possibility of judicial litigation again, Shelley was dead on arrival, and discriminatory private ventures that are not specifically covered by antidiscrimination legislative acts are permissible. A restaurant can (absent a state or local statute to the contrary) cater to whites only, for instance, in the United States of America, that is, since other countries have bogus notions of freedom.
But restrictive covenants run with the land: “Just because these old covenants are now unenforceable, they never simply disappeared. Many continue to be passed on from owner to owner through property deeds to this day, and though real estate professionals and lawmakers alike have made efforts toward having them removed, bureaucratic red tape and legal expenses often hinder progress. Some argue that it would be too cost-prohibitive to remove the racist language from every real estate deed in the country today.” (Homelight, Sep 14, 2020)
To have made covenants which pre-existed the Fair Housing Act unenforceable was ex post facto lawmaking: “An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.”
Ex post facto laws are prohibited by the American Constitution (clause 3 of Article I, Section 9). In its purity the principle holds in criminal law only but such a construction may be argued to be unconstitutional: “Thomas Jefferson described them [ex post facto laws] as ‘equally unjust in civil as in criminal cases.’ Over the years, however, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters.” (Wikipedia) Like Jefferson I see no reason why the principle should be limited to criminal law, because 1/ the letter of the Constitution makes no such distinction as that introduced by Justice Chase (the clause reads: “No bill of attainder or ex post facto law shall be passed” and 2/ even if ignoring the principle must be particularly dramatic in criminal law such neglect is not benign either in the other legal domains.
Georgia anti-BDS law is unconstitutional: “A federal court ruled in favor of journalist Abby Martin, who was barred from speaking at Georgia Southern University after she refused to pledge she would not boycott Israel.” (shadowproof, May 24, 2021)
It’s only the fifth or sixth anti-BDS law that is declared unconstitutional by a U.S. federal court, there remain a dozen ones in other states. Apparently none of the humiliated states dare appeal the evisceration of their shameful bills to the Supreme Court?
There is that politician, Rubio, I don’t know what he’s saying about all this but he wanted a federal anti-BDS bill, the same as those. And how did he “sell” it? By exposing his total, complete and irremediable lack of constitutional knowledge. He said: What? (¿Cómo?) BDS supporters could boycott Israel but the government couldn’t boycott BDS supporters? I believe he was convinced, while tweeting this, he had found the ultimate ironclad argument to the opponents of his bill. He’s got no clue, he doesn’t know that a state boycott (by any government, federal, state or local) is state action against which boycott is protected as free speech, whereas BDS is a grassroots boycott protected by the First Amendment. Even if both were called boycotts, one infringes on free speech and the other is free speech. That’s basic constitutional law.
I’m reading “the FBI just put X and Y (movements) on the same threat level as ISIS.” Is this leaked information? Is it a leak (1) or is it state intimidation against legally constituted associations (2)? If (2), how, besides, is this not libelous? There can be no governmental immunity when a police bureau slanders and libels law-abiding citizens.
Neoconservatism: Jacobinism or Napoleonism?
According to Claes G. Ryn (America the Virtuous: The Crisis of Democracy and the Quest for Empire, 2003), the “neoconservative” influence on the American right is turning it into a new form of Jacobinism (doctrine of the French Revolution), and I’m not sure whether one should not call it Napoleonism instead, but both, blended in the doctrine of the current French state, are based on centralization, bureaucracy, flawed separation of powers (the judicial is controled by the executive), militarism (military parade on National Day: Trump wanted the same for July 4!), police state, no free speech…