13 More Days

 In the last week the Trump administration issued new guidelines from the Justice Department that limit civil rights protections.  The Justice Department would continue to enforce the Civil Rights Act protections, but only when it could prove intentional discrimination, not where the policies had a “disparate impact” on minority groups.

The Administration also gutted protections for birds under the Migratory Bird Treaty.  It will only prosecute if the harm to birds was intentional.  So, if the PennEast Pipeline cuts trees during nesting season, that would be ok, since the company did not intentionally set out to harm birds.  An oil spill that killed thousands of birds would not be actionable, since the company did not intend to kill birds.

See Lisa Friedman, “In Parting Gift to Oil and Gas, Trump Limits Bird Protections,”  New York Times, (Jan. 6, 2021), p. A15; and Katie Benner and Erica L. Green, “Justice Dept. Quietly Moves to Severely Narrow Civil Rights Protections,” New York Times, (Jan. 6, 2021), p. A21.

Clear and present danger

In our history the Supreme Court has used a different tests in free speech cases.  One was called the “bad tendency” test, and was used in World War I to curb almost any speech the Court found might lead to illegal or seditious actions.  The second test, called the “clear and present danger” test was more lenient, allowing speech unless it posed an “imminent” threat.

In my Con Law classes I illustrated the bad tendency test this way:  Suppose I told the class that the government of the United States was corrupt and ought to be overthrown.  It is unlikely that anybody would run out and try that, but my remarks could have a “bad tendency,” influencing a member of the class to try later to overthrow the government.

My example for the “clear and present danger test went like this:   Suppose we were standing on the steps of the Capitol, I had a bullhorn, they had sticks and guns, and I shouted that the government was corrupt and should be overthrown RIGHT NOW!  That might present a “clear and present danger.”

Never in all those years did I actually think I would see people with bull horns, baseball bats, shields, chemicals to throw on guards, and probably guns actually on the steps of the U.S. Capitol, and then breaking windows to get inside, loot papers and artifacts, and attack Capitol police.

I never thought I’d see a lot of things I’ve seen in the last few weeks.

If you want to see examples of the two tests, look up Schenck v. U.S. (1917) and Gitlow v. New York (1925).  Gitlow was especially significant.  Not only did it use the clear and present danger test, but it also said the 14th Amendment applied the 1st Amendment’s guarantee of free speech to state governments.  Unfortunately for Gitlow, however, the Supreme Court then upheld poor Gitlow’s conviction. 

Bad feeling about Georgia

 Here’s the thing.  Republicans tend to win special elections.  They turn out.  They vote more.  They tend to be older, and older people vote.  

And here’s another thing.  Americans like gridlock, rationalizing that it is better for the government to do nothing than maybe do something they won’t like.  

I hope I am totally wrong.  Just a bad feeling.

Paul Ryan and Dick Cheney

 It is interesting to see who has stepped up to support American democratic values.  A number of people I once thought of as irredeemably evil have shown that they support our democratic values in the face of Trump’s attempt to subvert the Constitution.

Former majority leader Paul Ryan has denounced the Republican congressional effort to deny Biden his electoral college votes, calling it an undemocratic and anti-conservative action.

Dick Cheney gathered living Secretaries of Defense to issue a joint statement calling upon the military to avoid getting drawn into a political battle.  They are worried that Trump might actually try to orchestrate a military coup.

On the other hand, many of my neighbors continue to display their Trump signs.  It is good to know who among the people in my area either hate our country or have no understanding of how our government is supposed to work.

I'm one of 81 million

 Signs are popping up on Trumpists’ lawns that say “One in 73 million.”  I don’t get it.  Are they proud that Trump only received 73 million votes”?  That’s like losing a Super Bowl and then shouting “We’re # 2. We’re #2.”  

We do have to cut them some slack.  They’re a few fries short of a Happy Meal.

Trump Rally in D.C.

You too can get on the bus.  It leaves Wednesday at 3 a.m. from Tamaqua to answer the call “from our commander-in-chief, to show our support for him, the constitution, and our way of life.”

That was the message in a half-page ad in today’s Times News.  So I called the listed phone number and asked if they would allow guns on the bus.  The guy who answered the phone had to think about that and wasn’t sure, although he thought if it were open carry, probably.

Then I asked if the rally planned to overthrow the Pennsylvania election.  He said they weren’t planning to overthrow anything, just show their support for Trump.  

After we talked awhile, he asked me if I planned to go.  I told him I was gathering info for a post for an on-line publication and told him how to find it.  He told me the election was obviously rigged, and that if I did some research I would learn that.

Both he and I were very polite.  (Which is pretty amazing, since I regard him as a person encouraging sedition and he no doubt regards me as a Commie out to undermine “American values.”) 

Letter to Sen. Hawley

As you may have heard, Sen. Josh Hawley of Missouri will challenge Biden's victory in the Senate, in spite of McConnell's attempt to quash this kind of stupidity.  I sent the following letter to Sen. Hawley.  I'm sure when he gets it, he will change his mind.  Right?  Anyway, here's the letter:

Senator Josh Hawley

United States Senate

212 Russell Senate Office Building

Washington, D.C. 20510

Dear Senator Hawley:

I am a resident of Pennsylvania who voted in the November election.  My precinct is overwhelmingly Republican, but I was a Biden voter.  I voted by mail because I did not want to get Covid 19; many of the voters in my precinct refuse to wear masks.  

Unlike you, I have first-hand knowledge of the voting procedure in Pennsylvania.  I have heard you referred to as a Constitutional Law expert, and you may be, but you have no clue about constitutional government.  You are attempting to deny the validity of the votes of millions of Pennsylvania residents, perhaps to gain favor with Trump supporters for your own run for the Presidency, perhaps because you hope to rake in some funds from those supporters.  

In any case, I resent your attempt to overturn my vote.  Unlike you, I believe in the democratic process.  You, sir, are not a patriot.  You lack integrity and decency.

I will be sending a copy of this letter to Senator McConnell.  I almost always disagree with Sen. McConnell on political issues, but he has an understanding of the American electoral process. 

 I did send a copy to McConnell.   (By the way, Sen Ben Sasse of Nebraska was very clear that people like Hawley were harming American democracy.  Good work, Sen,. Sasse.)