Thursday, November 1, 2018
The New Borns vs. Trump
Springtime for Hitler and Germany,
Deutschland is happy and gay,
We’re moving to a faster pace,
Lookout, here comes the Master Race.
— Mel Brooks, The Producers
In the many years this column has appeared, it is rare that it has weighed in on constitutional issues. Occasionally, however, an issue is so significant as to demand comment, even from the likes of me. And this is such a time. It is brought to mind because of a constitutional pronouncement made by a person in a very prominent and powerful position in the United States. In order to preserve his privacy, he will, for purposes of this piece, simply be called “Adolph.” (Although the name is without any particular significance, it is appropriate since the people from whom Adolph is descended were, in fact, German immigrants.) Adolph’s pronouncement was remarkable because it not only addresses an immediate problem that Adolph believes is confronting the United States, the country in which he happens to live and over which he proudly rules, but suggests a solution to that problem that is remarkable for its great simplicity. It pertains to immigrants.
Adolph is very much opposed to those seeking to enter the United States in large numbers from other countries, for reasons well known to him, and to many of his supporters, if not to all citizens. In part, their opposition to immigrants is their belief that admitting too many immigrants dilutes the blue-eyed, blonde haired, Aryan race in the United States. Adolph and his supporters believe it is the Aryans who made America great, and they want to maintain what they have created. without having it diluted by the presence of a bunch of immigrants. That is, of course, not quite how they put it. They say that they want to keep out both legal and illegal immigrants. because those people commit more crimes than the Aryans, even though statistics show that the reverse is true. Like his ardent followers, Adolph has assumed a stridently anti-immigrant tone that gives comfort to those who have an intense hatred of foreigners seeking to enter the country, even though in many cases the haters were themselves recently foreigners.
As this is written, there is what is described as an enormous caravan of people heading towards the Mexican-U.S. border, many of whose members hope to become immigrants in the United States. That caravan, says Adolph, has been infiltrated by terrorists from the Middle East who are intent on inflicting violence on the United States, once they arrive in this country. The kind of violence he almost certainly fears, is the sort of violence we have seen in places like Pittsburgh, Florida, and Kentucky in just the last two weeks. Those acts were committed by citizens rather than foreigners. That is not, however, the focus of Adolph that this column addresses.
There are, in the caravan, pregnant women who, like many foreign pregnant women before them, hope to get into the United States so that their children can be born in the United States, become United States citizens, and vote when they get older. The travelers thought that would happen because of the 14th Amendment to the United States Constitution. That Amendment says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . .”
Adolph does not think the United States of America was created so that foreigners could come here and have citizen babies. Although he is not a constitutional scholar (nor a scholar of any other kind), he knows that he did not get to be the wealthy magnate that he sees himself to be, as well as a successful politician, by lacking what might be called “constitutional creativity,” and he demonstrated that creativity in an extensive interview with Axios on HBO that is to be aired on November 4, 2018. In that interview, Adolph let it be known that, as in all things, he has it right, and, in this particular context, constitutional scholars have it wrong. Their wisdom has for years held that the United States Constitution can only be amended in one of two ways. Those two ways are provided in Article V of that document, both of which require the involvement of Congress and state legislatures. What Adolph has advised us, is that there is yet another way the Constitution can be amended, and a much simpler one at that. The president of the United States can simply sign an executive order and get rid of the 14th Amendment, thus removing the provision that gives people born in this country, citizenship.
Adolph’s solution to the baby-born-here problem, opens the door to countless other improvements to the United States Constitution. I am confident that now that Adolph has identified a simple way to amend that pesky document, he and his adoring fans will, in short order, identify countless other provisions that they believe can be eliminated. That may prove to be another way in which Adolph’s tenure will not only be remembered, but will be proven to have been a disaster for the country of which we were proud to be a part, before his advent.
Thursday, October 25, 2018
Sex in Trump's World
Amo, Amas,
I love a lass,
As a cedar tall and slender,
Sweet cowslip’s grace
Is her nominative case,
And she’s of the feminine gender!
— John O’Keefe, The Agreeable Surprise (1783)
Herewith a brief explanation of what the Department of Health and Human Services (HSS) is trying to do insofar as transgender members of our country are concerned. The matter HHS is addressing is should a person’s sex be irrevocably determined at birth, or should there be such a thing as federally recognized transgenderism, as is presently the case. Addressing this matter is different from what the Nazis did, but more about that later.
It is a not a surprise that transgenderism is being considered by an administration led by the lecher in the White House. Although sexual exploits by occupants of that building, whether before or after the move in date, is not unheard of, no president’s sexual exploits have been as publicly displayed as those of its present occupant. More than 12 women have accused him of varying degrees of sexual harassment. His dispute-without-end with Stormy Daniels, demonstrates, if nothing else, the sexual pleasures he has enjoyed as a male. (Ms. Daniel’s description of the sex defining object possessed by Mr. Trump as a “huge mushroom head-like a toadstool” does not change the fact that that the toadstool like appendage clearly defines his sexual identity and has provided him with, apparently, endless amusement.)
Whereas Donald Trump has no questions about his sexual identity, the issue is not as clear cut for some 1.4 million American citizens who have either surgically, or otherwise, assumed a sexual identity different from that with which they were born. The Trumpsters want to deprive those Americans of certain rights given them under, among other places, the Affordable Care Act. And given the character, or more specifically, the lack of character of their leader, it seems singularly appropriate that deciding on how to deal with other people’s sexual identity would be something this administration would find worthy of examination.
HHS has issued a memorandum proposing to roll back civil rights that were given transgender people under the Affordable Care Act, by redefining sex as being either male or female and being firmly established at birth by the genitals with which the person is born, irrespective of what actions the person may take later in life, to either change the genitalia, or otherwise identify with a different sex from that with which the person was born.
Roger Severino, is the head of the HHS department’s “Conscience and Religious Freedom Division.” He has not spoken publicly about his role in drafting the proposal, but comments made by him in his former life may give a clue. In his former life he was the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation. He has strong feelings about those who, through surgery or self-identification, assume a sexual identity different from that established biologically at birth. While serving at the DeVos Center, he described the Obama administration’s broad definition of gender identity as “radical gender ideology.”
The regulations proposed by HHS provide that gender should be uniformly defined throughout the government as being determined on a “biological basis that is clear, grounded in science, objective and administrable.” That means, it says, that the child’s sex is determined by the genitals possessed by a baby at birth. Whatever appears on the birth certificate “shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
Mr. Severino is, for obvious reasons, very pleased with this new definition of gender. He is so pleased that he wants all the governmental agencies that play a role in enforcing different parts of Title IX, to adopt the definition. In addition to HHS, Mr. Severino would like for the Departments of Education, Justice, and Labor to adopt the HHS language… As of this writing, only HHS is prepared to adopt the Severino language. Although Betsy DeVos, the Secretary of Education is reportedly considering making changes to the enforcement of Title IX by the Department of Education, she is reportedly not interested in the broader change proposed by Mr. Severino. She is concerned with changing the focus of educational institutions dealing with questions of sexual assault.
So much for the Trumpsters. On to the Nazis. The Nazis took a hard line when it came to dealing with transgender individuals. A report in Wikipedia says that: “Upon the rise of Adolf Hitler. . . gay men and, to a lesser extent, lesbians, were two of the numerous groups targeted by the Nazis and were ultimately among Holocaust victims. . . . Homosexuals within the party itself were murdered. . . . In late February 1933. . . the Nazi party launched its purge of homosexual . . . clubs in Berlin, outlawed sex publications and banned organized gay groups.” All that took place in Nazi Germany.Trump’s vision for Amerika, is not like Hitler’s vision for Nazi Germany-yet.
Thursday, October 18, 2018
The Elevation of Brett
No one is such a liar as the indignant man.
— Friedrich Wilhelm Nietzsche, Thus Spake Zarathustra
Defense lawyers are wondering what the impact of Brett Kavanaugh’s elevation to the United States Supreme Court will be on criminal law in the United States. The question is not purely academic. What we now know is that, thanks to the manipulations of Mitch McConnell whose appearance has caused some to refer to him as “Chin,” (notwithstanding their normal practice of eschewing ad hominem attacks) and Simpering Susan’s 40 minute defense of her unprincipled vote, we now have two confirmed liars sitting as Justices.
To understand how this came about, it is necessary to recall the last year of the administration of Barrack Obama. President Obama, as readers will recall, was the last man to occupy the White House whom we could call “president” without gagging. The events that gave rise to Brett’s elevation were born in 2016.
In February of that year, Justice Antonin Scalia died. As contemplated by the Constitution, in March of that year, President Obama nominated Merrick Garland, a judge from the D.C. Court of Appeals, to serve as Justice Scalia’s replacement. The next step in that process was for the Senate to advise and consent to his appointment. If it declined to consent, the nomination failed. If the consent was given, the appointment was completed and the new Justice sworn in.
In an unprecedented move, Chin refused to permit the Senate to debate the nomination. Thus, he asserted a right that no majority leader in the Senate had ever before asserted. He decided he alone could veto the nomination of any individual to the Supreme Court or any other federal court, if it suited him, by refusing to permit his co-equals in the Senate to consider the nomination. As a result, Merrick Garland’s nomination was never considered.
Chin apparently had a better sense of how the election that followed in 2016 would come out, than did much of the rest of the country. Had Hillary Clinton become president, Chin’s failure to act would have had no consequence insofar as the makeup of the Court was concerned. As it happened, the unimaginable and unexpected occurred, and before the first year of the new administration had ended, the Republican controlled administration had caused to be installed on the United States Supreme Court, a new conservative justice whose appointment insured that the Court would continue to move sharply to the right.
That was not, of course, the only good fortune bestowed on the White House fool in his attempt to continue to move the Court in a right wing direction. The next did not involve the death of a Justice. It involved a retirement.
In June of 2018, Justice Anthony Kennedy announced his retirement. For reasons not publicly disclosed, Justice Kennedy, who had enjoyed being the swing vote on the Court in many cases, decided to cast his last swing vote in the most important decision he would ever make while serving on that Court. He decided to retire before the 2018 elections. By doing that, he guaranteed that even if the Democrats regained control of the Senate, they would not be able to select, as his successor, a person more reliably liberal than he, because the vacancy created by his resignation would have been filled before the election took place. He guaranteed that his successor would be a person favored by the extreme right wing in the United States. And it was Justice Kennedy’s decision to announced his retirement when he did, that led to Brett’s appointment. And that leads us to the question posed at the beginning of this discussion.
What effect will the presence of two known liars sitting as Justices on the United States Supreme Court, have on decisions made by that Court, especially, but not exclusively, in criminal cases.? The question is important, since both Justices Thomas and Kavanaugh were well served by the lies they told during their confirmation processes. The question, therefore is, will they, having been well served by their lies, be more sympathetic to criminal defendants who were convicted because of lies they had told in the activities that led to their convictions. It is entirely possible that those kinds of defendants will find at least two Justices who, having been well served by lies in their professional careers, will be sympathetic to others who used lies to advance themselves. Time will tell.
(As a totally irrelevant aside to this column I cannot resist observing that Leslie Stahl, in her unbelievably inept interview with the White House fool on “60 Minutes” on October 15, 2018, may have done more to help Republicans in the upcoming elections than any absurd comments from the mouth of the fool, of which there were many, and none successfully challenged by Leslie. CBS and “60 Minutes” were a disgrace to journalism.)