The Originalism Fallacy

Submitted by Ben Bache on

On day two of Amy Coney Barrett’s Senate confirmation hearing , Judiciary Committee Chairman Lindsey Graham asked, “You say you’re an originalist. Is that true?” “Yes,” Barett replied. “What does that mean in English?” Graham continued. “… [T]hat means that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it,” Barrett replied, reciting a now familiar mantra.

Some time later that day Senator Mike Lee of Utah probed further: “Tell me why textualism and originalism are important to you.” “… I think originalism and textualism, to me, boil down … to a commitment to the rule of law," Barrett said, "to not disturbing or changing or updating or adjusting ... in line with my own policy preferences what that law required.” “And is it the subjective motivation, the subjective intent of an individual lawmaker or drafter of a constitutional provision that we’re looking at?” Lee continued, “Or is it original public meaning? And if so, what’s the difference between those two?” “It’s original public meaning, not the subjective intent of any particular drafter,” Barrett predictably replied. “So one thing I have told my students in constitutional law is that the question is not what would James Madison do? We’re not controlled by how James Madison perceived any particular problem. That’s because the law is what the people understand it to be, not what goes on in any individual legislator’s mind.”

These exchanges present the rote formulation of originalism and textualism – legal jargon that has seemingly improbably found its way into popular media. Writing in 2011 on the occasion of members of the House of Representatives reading the Constitution aloud at the opening of its legislative session, University of Chicago’s Eric Posner noted with some surprise at the ascendance of originalism signaled by the House’s homage. “Although originalist ideas have floated around since the Founding,” Posner wrote in the New Republic, “the modern theory was produced by a small group of mostly marginalized (conservative) academics, whose ideas were rarely taken seriously by the most influential (liberal) scholars in the top law schools.”

Trump and the Russian Bounties to Kill US Soldiers

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On June 26, 2020 the New York Times reported that, in the midst of the peace talks to end the war in Afghanistan, Russian military intelligence offered bounties to the Taliban for killing US troops. While Russia is understood by US and Afghan officials to support the Taliban, a bounty for killing US servicemen in Afghanistan would represent what the Times called "a significant and provocative escalation," and would be the first time Russian intelligence was "known to have orchestrated attacks on US troops."

Two days later Trump tweeted "Intel just reported to me that they did not find this info credible, and therefore did not report it to me or @VP," and that Pence had suggested it was “Possibly another fabricated Russian Hoax.” Congressional Democrats were briefed on the topic on  June 30 by White House staffers, but House Majority Leader Steny  Hoyer told reporters they "... did not receive any substantive new information." Hoyer also said he had told chief of staff Mark Meadows that he wanted to hear directly from the intelligence sources." On July 1 Trump again called the reports a hoax "by the newspapers and the Democrats," and asserted that "the intelligence people ... didn't believe it happened at all."

Wannabe Warrior

Submitted by Ben Bache on
From his "brutal" experience at the New York Military Academy to his dubious Vietnam War medical deferment for bone spurs, to his pandering to "wounded warriors," Trump's relationshp to the "warrior" has been fraught. This article explores Trump's infatuation with the "warrior" image, and its complicated history in Western culture.

Tea Party Redux: Fake Grass Roots Coronavirus Protests Coordinated by Rightwing Groups

Submitted by Ben Bache on

To read the ABC News headline you'd think the nation was awash in vast protests decrying the stay-at-home orders implemented in many states. From a survey of protests over the weekend, however, Forbes found relatively few participants. For example, in Austin TX, a city of approximately one million people, only a few dozen showed up to protest. In Franklin, KY, Raleigh, NC, and Columbus, OH, about 100 protesters each appeared. And in New York City only about 30 protesters could be found. Protests such as that in Lansing, MI, which attracted several thousand cars and around 100 people on the state Capitol lawn, were apparently the exception....

Trump's Deadly Cornavirus Bungle

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"Nobody ever expected a thing like this,” Trump said in a Fox News interview on Tuesday, March 23. To the contrary, starting in 2016, in the aftermath of the Ebola crisis of 2014-2015, the National Security Council had initiated a project to develop a "Playbook for Early Response to High-Consequence Emerging Infectious Disease Threats and Biological Incidents," aka "the pandemic playbook."  The playbook outlines hundreds of tactics and decisions to be considered when confronting a pandemic including consideration of availability of personal-protective-equipment (PPE) for healthcare providers,  recommendation that the federal government work to detect potential outbreaks, and consider invoking the Defense Production Act.

The Trump administration was made aware of the document's existence in 2017, but -- whether by choice or ineptitude -- it was "thrown onto a shelf" according to a government official interviewed by Politico, who worked in the Obama and Trump administrations.

Among its many recommendations, the playbook contains a set of key questions and decisions to be addressed as soon as there is a "credible threat" of a pandemic, which in the case of COVID19 would have been in early to mid January when the virus was spreading in China....

Information

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Democratic Party action page. Volunteer opportunities relating to a range of issues and communities.

Litigation Tracker: Legal Challenges to Trump Administration Actions

Democracy 2025 | The united legal frontline in the fight for our democracy

Vaccine Information Statements (VISs) Overview 

Health-data analyst Charles Gaba has posted links to copies of CDC data archived most recently prior to the Trump admin at his site acasignups.net

American Medical Association (AMA) YouTube page.
Some of the information previously available from the National Institutes of Health (NIH).

Find a Mutual Aid Group.

Lamda Legal's Helpdesk: information and resources relating to discrimination based on sexual orientation, gender identity, etc.

Opportunities

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Indivisible.org is coordinating action with several unions and other community groups.

See also:

MoveOn.org

Public Citizen

Americans of Conscience

Simon Rosenberg's Hopium Chronicles (hope and optimism)

Citizens for Responsibility and Ethics in Washington

American Civil Liberties Union

People for the American Way's Right Wing Watch

Anti-Defamation League - You may also wish to read the Forward's recent article on the ADL and its critics.

Impeachment

Submitted by Ben Bache on

On December 18, 2019 History.com's "day in history" feature recorded the impeachment of President Donald J. Trump for abuse of power and obstruction of Congress. Trump was only the third US president to be impeached. While Special Counsel Robert S. Mueller's report had provided substantial evidence of misdeeds, its narrow focus, and constrained application by the Justice Department helped prevent any direct consequences to Trump. On August 12, 2019, however, a government staffer registered a formal "whistleblower complaint" concerning Trump's month-long effort to pressure the government of Ukraine to investigate former Vice President Joe Biden and his son Hunter. A central focus of the complaint was a phone call on July 25 between Trump and Ukrainian Ukrainian President Volodymyr Zelensky, as well as White House attempts to cover up the call and other events. The complaint led eventually to impeachment in the US House of Representatives by a vote of 230-197-1 on the abuse of power charge, and 229-198-1 on the obstruction of Congress charge. Trump was later acquitted in the US Senate by votes of 52-48 on the first count and 51-49 on the second, with Senator Mitt Romney, Republican of Utah, becoming the only senator from an impeached president's party in US history to vote for conviction.  

Associated Press impeachment coverage.

C-SPAN's impeachment coverage.

Mueller Report

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Special Counsel Robert S. Mueller's Report On The Investigation Into Russian Interference In The 2016 Presidential Election was released on the Internet, April 18, 2019. The report identified "sweeping and systemic" Russian interference in the 2016 US elections, including a social media "information warfare" campaign favoring the Trump campaign, hacking of databases and release of stolen materials. Russia also targeted election-related databases in several states, and gained access to millions of voter registration records. 

The report produced more than three dozen indictments and seven guilty pleas or convictions. Fourteen other criminal matters were referred to elements of the Justice Department....