Tagged: police state

Law 24: On Hate Crimes and Love Crimes

Intro
1 Definition
2 Preliminary Dismissal of Deceptive Appearances
3 Discussion

Intro

In Europe they have hate crime laws, hate speech laws, and police states. (Cf. City of Houston v. Hill, U.S. 1987, holding that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” By this well-thought definition European countries are not free nations but police states indeed.)

In U.S. they only have hate crime laws.

What makes hate crime laws so unexceptional?

1 Definition

“Hate crimes are offenses that are committed because of the actual or perceived race, color, religion, national origin, or sexual orientation of another individual or group of individuals. … Various state courts found that, since the U.S. Constitution’s First Amendment protects speech and thought, even when that speech or thought is offensive, any law criminalizing thought should be rendered unconstitutional.” (Hate crimes by Kristin L. Stewart, J.D. [excerpt] in Encyclopedia of American Law, D. Schultz ed., 2002)

If a crime is found to be this or that “(name a crime) as a hate crime,” penalties are increased.

2 Preliminary Dismissal of Deceptive Appearances

Contrary to appearances, hate crime laws in the United States are probably not designed to protect the white population from black criminals. How, then, could such appearances have arisen?

First, we are told about an epidemics of hate crimes. “If you believe the news, today’s America is plagued by an epidemic of violent hate crimes” is from the presentation of the book Hate Crime Hoax: How the Left is Selling a Fake Race War (2019) by Wilfred Reilly, assistant professor of political science at Kentucky State University.

Second, we know the massive proportion of black inmates in the prison population of the States: cf. The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) by Michelle Alexander, visiting professor at Union Theological Seminary, New York City.

Third, in Wisconsin v. Mitchell, 1993, the U.S. Supreme Court upheld a hate crime state statute. A group of black men had assaulted a white boy after watching the film Mississippi Burning. It was found their attack was racially motivated and the increased penalty of the instigator, Todd Mitchell, justified.

From (1), (2) & (3), one would swear blacks are responsible for the epidemic of hate crime. Indeed, it is hard to see how a crime epidemic, namely a hate crime epidemic, would not be reflected in the prison inmates population, that is, how the disproportionate numbers of black inmates in prison would not reflect the hate crime epidemic, especially considering the emblematic precedent of the U.S. Supreme Court on hate crime laws applies to a black defendant who challenged the constitutionality of his increased penalty.

This is a deceptive appearance. In reality hate crime laws protect minorities.

3 Discussion

i
Hate crime laws trivialize crime

“This book is as timely as today’s headlines. Professor Lawrence has written a powerful, persuasive, and eloquent call for more effective action by Congress and the states to deal with these despicable crimes. Civil Rights is still the unfinished business of America. Hate crimes are uniquely destructive and divisive, because their impact extends far beyond the victim. They poison entire communities and undermine the ideals for which America stands. They deserve to be punished with the full force of the law, and Professor Lawrence’s book brings us closer to that important goal.” Senator Edward M. Kennedy on Punishing Hate: Bias Crimes under American Law (2002) by Frederick M. Lawrence.

This praise by Sen. Kennedy contains all the appalling mistakes an informed person is supposed not to make when thinking and talking about crime and the law.

“This book is as timely as today’s headlines.”

It is known, it is even common-sense, since at least Roscoe Pound (Criminal Justice in America, 1930), that to resort to designing criminal law in hysterical reaction to headlines is the worst one can think of, it is Lynch mentality smuggled into the legislative bodies and through them into the courts.

Sen. Kennedy’s is the confession he was a headline-law maker, one who made headline laws. With lawmakers like him, it is headlines which make laws. Yet no one knows what the headlines reflect (a few people believe they reflect reality). If media were neutral reporting agencies, then, given what has been said in II about New Jim Crow, media treatment of crime would reflect the makeup of prison population (because prison population is a good token for the known figure of crime), that is to say the media would devote the same share of crime news to black crime as the share of black inmates population in prisons. Is this the case?

If this is not, even if it were because the media are not racist whereas lawmakers, the police and the judiciary are, it turns out they make their headlines according to their own notions rather than to an actual state of things. If the state of the society as far as crime is concerned is institutional (colorblind) racism, i.e. a New Jim Crow, and the media correct this because they go against the stream, then admittedly their headlines are no different from political pamphlets; therefore legislators are not bound to take their headlines as guidelines, any more than they are to follow the views of any scholar, intellectual, or writer.

The same holds with the media coverage of hate crime. Sen. Kennedy wants to legislate in a “timely” fashion, following the headlines. Given what has just been said, however, he is nothing but the willing audience of a hate crime law lobby, whereas the true situation might or might not support a need for new or further legislation. Obviously, if the coverage is a hoax (Wilfred Reilly), no legislation is called for by the timely headlines. (Needless to say, the notion of timely headlines is absurd: Reread the sentence and you’ll see Sen. Kennedy actually talks of timely headlines; however there is but one timely time for news headlines.)

“These despicable crimes”

Which crimes are not despicable? Crimes that a senator is more likely to commit, like embezzlement?

“Hate crimes are uniquely destructive and divisive, because their impact extends far beyond the victim.”

That the impact of all crimes “extends far beyond the victim” is on the contrary the obvious truth, one at the foundation of the secular distinction between tort law and criminal law, and hardly, therefore, could a premise be more unsupportive of the conclusion, namely, that hate crimes are unique.

“They poison entire communities and undermine the ideals for which America stands.”

One would swear other crimes are mere trifles.

“They deserve to be punished with the full force of the law.”

Yes, like any other crime. Actually, a good axiom of jurisprudence is that crimes deserve to be punished with the full force of the law. Accordingly, since every crime is punishable by the full force of the law, one cannot make a difference between one crime and the same crime “as a hate crime.”

If such a difference were legitimate, it would actually imply a decrease in penalties for hate crimes.

ii
Hate crimes are crimes of passion
,
therefore the penalty must be decreased, not increased

Here come the love crimes.

I had intended the word as a joke. I thought: If one talks of hate crimes, there must be love crimes too, which is absurd. Then I remembered the crimes of passion (crimes passionnels): “The ‘crime of passion’ defense challenges the mens rea element by suggesting that there was no malice aforethought, and instead the crime was committed in the ‘heat of passion’.” (Wikipedia: Crime of passion)

Crimes of passion are what I would like to call the love crimes. Love is a passion. Hate is no less a passion than love –sometimes love turns to hate– and therefore, as the crime of passion defense applies to love crimes, the defense applies to hate crimes too.

Think about Todd Mitchell, the black defendant in Wisconsin v. Mitchell who “instigated an attack against a white young boy.” He had just been watching the film Mississippi Burning, which stirred the rage of oppression in his heart, to the point he could not stand it anymore. His brothers and sisters in race had been enslaved, trafficked, segregated, Jim-Crowed for centuries. Hatred was stirred in him, his spirits cried for vengeance. A young white boy walked by.

Even if Mitchell had been animated by an ideology, by the liberal ideology that cannot stress enough the evils of a system and the burden of debt currently weighing upon the white man till the end of times, even if he had been an avid reader of liberal books, still his deed would not be an ideological crime –because there is no such thing under the U.S. Constitution, which protects freedom of conscience– but a crime of passion.

(Even the minutest premeditation in coldest blood could be a crime of passion, I find, because hate is a passion, just like the cheated husband who premeditates his wife’s death could invoke the defense in my eyes, because from love to despair time may elapse but the heat of passion remains, the heat of passion is not the same thing as the heat of the moment.)

But the Supreme Court –Rehnquist Court (surely this rings a little bell)– did not see a liberal black boy under the dramatic and melodramatic influence of a Hollywood blockbuster stuffed with the most advanced techniques of emotions and mind manipulation, no, and “the Wisconsin statute…was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime” (oyez.org). Mark these words: A hate crime law does not punish a defendant for his or her bigoted beliefs or statements. I have no idea what the Court, or its commentator, means by “the predicted ramifications of the crime” and as I have not read the whole decision yet I reserve my judgment, only saying it looks like a mighty innovation in the field of criminal law and I’m surprised it is not more discussed in academia and among advocates of hate crime laws, who keep saying, instead, that hate crime laws punish bigoted biases (one also talks of bias crimes).

So very true is it that hate crimes are crimes of passion that it is even positive law in the gay panic defense. A man subject to homosexual advances may react violently with assault, battery, murder attempt, sometimes the seducer’s death. The defendant can invoke gay panic defense at his trial and if the motion is accepted his act will be treated as a crime of passion. As the reader can well imagine, statutes to that effect have disappeared from about every legal system in the western world, and now the same acts are likely to be treated as hate crimes with increased rather than decreased penalties. (Likely because how could such a reaction not be the sign of strong biases?)

iii
Hate crimes are crimes of passion
and like other crimes of passion they have no place left amidst our laws

Today crimes of passion are hardly law any longer. A man finding his wife with another man will shoot them and then kill himself, and perhaps his kids in the bargain, because he knows society will not pardon him the heat of passion. He knows only cuckolders are excused nowadays.

As one, therefore, sees crime of passion laws dwindling, one must draw the consequences as to the notion itself, which includes hate crimes. Hate crimes can have no place amidst our laws.

iv
Hate crime laws shift the tendency of regimes from majoritarian to countermajoritarian

In aristocratic regimes, the nobility is a minority too.

If one agrees the purpose of hate crime laws is not, contrary to appearances, or not only to hold the grudge of black people against whites for a past of slavery and unequal segregation in check, then one must consider the following reasoning.

Hate crime laws are designed to protect minorities from the violent manifestation of biases. That minorities would bear a natural grudge against the majority for the latter’s entrenched position and status does not seem to ever enter the mind of advocates of bias crime laws and I have never heard one such advocate express concern for the safety of individuals in the majority due to a grudge of this kind. Yet it occurs to me that, if I belonged to a minority and the majority had privileged status in the society, I would resent the fact. In case I expressed my resentment with violent acts, that would be hate crime then, would it not? But no, we are never told of such psychological problems; one has to know the U.S. Supreme Court’s decisions to be aware that anti-white feelings can be a bias, and in some European countries you would look for the same kind of precedent as Wisconsin v. Mitchell in vain (but not because such crimes never happen).

All in all, one can safely bet that a risk of increased penalties exists above all for crimes where victims are from minorities. Therefore, if a criminal who is neither a hate criminal nor a love criminal, only an indifferent criminal who wants money, thinks –and I claim the media and politicians have inoculated this thinking in him– that he risks increased penalties if his victim belongs to a minority, then the obvious consequence is that he will avoid picking a victim among identifiable minorities and on the contrary target individuals from the majority. Hate crime laws point to the majority as self-evident victim for “passionless” criminals. Clearly, a government must have strong countermajoritarian mechanisms to be able to pass such laws – to the point that one wonders what role is left to its majoritarian mechanisms.

v
Hate crime laws are hate speech laws

This section is divided in two parts (a) and (b), the former being the mere quote of an earlier writing, Hate crime laws are unconstitutional (Law 20).

a/ Hate crime laws are unconstitutional view-based discrimination.

It’s time the courts declared hate crime laws unconstitutional. This is long overdue. How can hate speech be protected as the U.S. Supreme Court intends (Brandenburg v. Ohio [1969], R.A.V. v. City of St. Paul [1992], Snyder v. Phelps [2011], Matal v. Tam [2017]) when public figures known for taking positions some call hate speech must always fear being provoked to offenses, even minor, that would lead to aggravated punishment while the opponents who provoked the incidents have no such Damocles sword hanging over their heads?

Let’s take an example. If a public figure vilified by LGBT groups as a hater gets entangled in a brawl with LGBT hecklers, he may face hate crime charges while the others will face unruly behavior charges or such like (they are not known for being haters because they’re the ones who call people haters and the media follow that stance).

The “haters” (who have a constitutional right to hate speech) are at greater risk of frame-up because for them even the slightest charges can be greatly detrimental due to the increased penalties with which hate crimes are dealt with. Hate crime laws protect a minority heckler’s veto. Due to such legislation, whole classes of people are therefore deprived of their full rights to political participation for lack of equal protection under the law. This is government repression of political opponents.

b/ Hate crime laws are conceived as disguised hate speech laws.

Discretionary police and prosecution power serves to squelch speech in scores of contexts, by making pretextual use of laws against disorderly conduct, trespass, unlawful assembly, disobeying a lawful order (like orders to move or keep moving), breach of the peace, and other such low-level criminal statutes, and scholars point out the failure of courts to address the issue properly.

The issue must be of increased concern when to low-level incriminations may be added the hate crime label. Since there have been various cases of “petty larceny, as a hate crime,” one can well imagine charges such as “trespass, as a hate crime” or “disobeying a lawful order, as a hate crime.”

Often, in the usual cases, charges are dropped, and the victim of malicious policing is no more heard of. In the case of hate crimes there could be no dropping of the charges, for obvious reasons. Therefore, since police power can be used to squelch one’s speech and the courts have no sure means to second-guess the discretionary use of police power (filming police on public space is a hazy legal issue: don’t you fancy it be a well-established right), I believe advocates of hate crime laws intend to take advantage of the situation to have hate crime laws serve as hate speech laws. I believe it for the simple reason that if hate speech laws were not unconstitutional these are the laws they would demand. We have seen it in Europe: the same rhetoric used in the U.S. in support of hate crime laws is used in Europe to advocate hate speech laws.

So long as hate crime laws exist, the U.S. is at risk of becoming –if not being already, through the judicially undetected, pretextual use of executive discretion– a police state like current European Old-World regimes.

Law 14: The People in Arms

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.

ii

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.

iii

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.

iv

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.

v

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)

ii

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)

iii

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.

iv

“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.

NASA picture of Apollo 14 manned moon landing, with the same kind of lunar breeze effect flag as in 1969 (see Law 12).

*

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.

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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.

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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.

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Anti-BDS Laws

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.

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Political Police

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.

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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…