The "state secrets" privilege is a lie

Okay, you probably know the story: President Trumpsk invoked the Alien Enemies Act of 1798 to summarily deport hundreds of Venezuelan citizens without any due process or opportunity for appeal, based solely on a claim that they are members of a criminal gang, a claim not only unsubstantiated but one which the Trumpsk gang asserted they don't have to.

(I used to call our soi-disant king "Tweetie-pie" because he loved Tweets and he's a bird-brain, but in honor of the co-presidency of the Trump-Musk White House, "Trumpsk" seemed appropriate.)

That lead to a series of go-arounds with Judge Jeb Boasberg, who issued an order temporarily halting the deportations and was trying to find just how and why Trumpsk and company defied it, leading to their invoking the so-called "state secrets" privilege with the intent of shutting Boasberg down entirely.

You know all that. Here are two things you many not know, or at least have not been made clear by the establishment media:

- The Alien Enemies Act does not apply here and the claim that it does is entirely bogus.

- The "state secrets" privilege is built on lies.

For the first, just look at the actual law, not the truncated versions seen in the media. It was passed as An Act Respecting Alien Enemies as the third of the four notorious Alien and Sedition Acts, which cracked down on "foreigners" and tried to stifle criticism of the government - less than seven years after the adoption of the First Amendment. This now may be our most dangerous encounter with repression, but it is certainly not our first.

Anyway, this is the first paragraph of the law, with needed emphasis added:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

Note first that for the law to apply by any stretch, the Trumpsk cabal must, repeat must, be claiming that Venezuela - not some gang, but the government of Venezuela - is responsible for this "invasion." That is, they must be arguing that Venezuela has declared war on the United States. (Some bold reporter who isn't afraid of losing that sweet, sweet, access should ask about that.)

What's more, Section 2 of the law¹ says it is the duty of "the several courts of the United States, and of each state" - not the president or any agent of the Executive Branch - to "after a full examination and hearing ... and sufficient cause therefor appearing, shall and may order such alien or aliens to be removed out of the territory of the United States."

In other words, due process! Hey, Trumpsk, heard of it?

Apparently, some had because it seems that in the past, administrations have been literate enough so that the law had been invoked only during wartime; specifically, the War of 1812, World War I, and World War II. In the latter case it served as the justification of the internment of Japanese-American civilians during World War II, and we all know how proud we are of that now. If we survive as a (relatively, at least) free people, I believe this episode will come to be seen the same way - and because it resulted not in internment but included sending victims to an infamous Salvadoran prison notable for its cruel conditions and torture, it will likely be seen as worse.

Moving on, the "state secrets" privilege, for its part, has quite the ignoble history.

It's the legal principle that enables the government to seek to shut down suits challenging government actions on the grounds that pursuing the claim would require the release of information that would harm national security.

It's important to note at the top that the words "privilege" and "principle" matter as they make clear that courts are not required to accept the government's assertion - even as they, unhappily, are usually "very deferential" to the executive branch on such claims of privilege, even when the government has refused to back up its claim, as was usually the case.

But on to the history and why the whole thing is a lie.

It came to the US in the early years as part of English common law, but it wasn't formalized until 1953 in the case US v. Reynolds. The salient facts of that case are these:

In October 1948, a B-29 Superfortress bomber crashed while on a secret test flight related to weapons development. Nine were killed, including three civilian engineers.

The three widows of the civilians sued for compensation, claiming the government had been negligent. They wanted access to witness statements and accident reports prepared by government investigators.

The government initially resisted, weirdly claiming that turning over the reports would damage future safety investigations because, lacking a guarantee of confidentiality, witnesses and investigators would pull their punches.

After it became clear that strategy was a loser, the DOJ lawyers defending the government switched arguments and said both that the reports contained national security secrets so important that if they were revealed it would endanger national defense and that the decision to invoke the state secrets privilege was not judicable - that is, could not be reviewed by the courts.

Lower courts rejected the executive branch’s claim of unreviewable power, giving the executive branch a choice of turning over the documents to the trial judge for a private assessment or default on the widows’ lawsuit and pay up.

But remember, this is 1953, when we were waist-deep in the Red Scare aka the McCarthy Era. The Supreme Court was unwilling to take up the burden of questioning cries of "National Defense!"

So on March 9, 1953, the Supreme Court by a 6-3 majority found that the government had made a valid claim of privilege against revealing military secrets, a privilege "well established in the law of evidence" - which it decidedly was not. It was established in common law, but until this ruling it had not been codified into practice.

Beyond that, the majority opinion said that in some circumstances, trial judges should simply accept the executive branch’s privilege without conducting their own private examination of the documents at issue to test the plausibility of the claim. In other words, it's government by "trust me, bro."

Such trust was undeserved. When the documents the widows sought in Reynolds were finally declassified in 1996, it turned out that the government case was a complete, thoroughgoing lie. Top to bottom, stem to stern, choose your preferred cliche.

There was nothing secret in the accident reports. Zip, zilch, nada. Neither the secret guided missile equipment being tested nor anything else secret on board figured in the crash in any way. Neither that equipment nor anything else secret was even mentioned in the reports.

Rather, they showed that the plane had had problems before, added to already-public information that B-29 engines had a tendency to catch fire, revealed that heat shields had not been installed despite the existence of a work order for the retrofit, the plane was not properly checked out before the flight, and the flight crew may have not responded properly when an engine fire did break out.

In short, to cover up its own negligence and incompetence leading to the unnecessary deaths of nine people, the government lied through its legal teeth - and continued to lie, shielded by a wall of "it's classified," for 43 years.

Say it again: The whole structure of the "state secrets" privilege is built on lies.

In the years since, the privilege has enabled federal agencies to conceal conduct, withhold documents, and block troublesome civil litigation, including suits by whistle-blowers and possible victims of discrimination.

The Shrub gang (i.e., Bush II, George W. Bush for the younger folks among us) invoked the privilege to a degree that brought it enough public attention that in 2008 it was one of the things candidate Barack Obama pledged to "change."

When it came, that change looked to be a step forward in that it centralized the authority to invoke the privilege and somewhat tightened the standard required from "harm" to national security to "significant harm" and that it couldn't be used to hide violations of law, bureaucratic foul-ups, or mere embarrassment.

Which was to the good, but remember this was policy, not law and so could be changed at any time and in fact was done to head off binding legislation. It did not stop its use by the Obama White House, which continued to assert the broadest and most radical version of the privilege. Indeed, literally just hours after the new policy was announced, the DOJ was in court invoking the claim and six weeks later, in November 2009, it did it again - in both cases looking to squelch a suit involving illegal domestic spying. And so much for not using it to hide crimes.

And now here we are again, this time with a would-be tyrant who wants to expand the reach of the "state secrets" privilege - maybe better described as an Executive Branch "Get out of jail free" card - beyond getting suits dismissed to being free to ignore court orders.

Because of lies.

As a final thought, in his book on the case², reporter Barry Siegel called the Reynolds decision “an act of faith.” It was indeed, a faith that lies at the heart of our democracy and our republican form of government: the faith that, despite whatever dissensions and disagreements there may be, even if extreme, ultimately everyone agrees to play by pretty much the same rules. It has long been a question among philosophers of government what would happen if someone in a position of power just ignored the rules and simply declared "I'll do what I please. Try and stop me."

That is exactly the question we are facing now, drawn from, at least to some degree, a legacy of misplaced faith from 72 years ago.

So Judge Boasberg should take a deep breath, remind himself that he is under no legal obligation to accept the Trumpsk claim of privilege, deny it, say "prove it to me," and ready himself to issue contempt citations when they refuse, which they will. "No, you won't do as you please. I will do my part to stop you."

Footnote: In his statement supporting the Trumpsk position in the case before Boasberg, Robert Cerna, an enforcement officer with the Department for the Protection of the Fatherland, claimed the government has lots and lots of evidence that those deported were criminals - but of course offered none.

All of which may even be true, but it's irrelevant to the issue at hand of defying court's order. But to get to the point here:

"While it is true that many of the TdA [Tren de Aragua] members removed under the AEA do not have criminal records in the United States, that is because they have only been in the United States for a short period of time. The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile."

That is, the government position is that the very lack of information saying they are gang members is proof that they are guilty.

References to 1984 seem rather trite now, but it damn well sounds like Cerna has mastered doublethink.

¹The full text of Sec. 2: "And be it further enacted, That after any proclamation shall be made as aforesaid, it shall be the duty of the several courts of the United States, and of each state, having criminal jurisdiction, and of the several judges and justices of the courts of the United States, and they shall be, and are hereby respectively, authorized upon complaint, against any alien or alien enemies, as aforesaid, who shall be resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President of the United States shall and may establish in the premises, to cause such alien or aliens to be duly apprehended and convened before such court, judge or justice; and after a full examination and hearing on such complaint, and sufficient cause therefor appearing, shall and may order such alien or aliens to be removed out of the territory of the United States, or to give sureties of their good behaviour, or to be otherwise restrained, conformably to the proclamation or regulations which shall and may be established as aforesaid, and may imprison, or otherwise secure such alien or aliens, until the order which shall and may be made, as aforesaid, shall be performed." (Emphasis of course added.)

²Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets by Barry Siegel (Harper, 2008). The LA Times article linked above is a review of the book.

A Tale of Two Trimmers

So, as reported by, among others, the estimable Erin Reed, California Governor Gavin Newsom spent much of the first episode of his new podcast sloppily agreeing with reactionary bigot and professional transmisiac¹ Charlie Kirk. Newsom said he "completely aligns" with Kirk in opposing trans women in sports, calling the idea “deeply unfair,” labeled denying gender-affirming surgery to prisoners an easy "90/10" call, accepted a description of gender-affirming care as "butchery" and "chemical castration" to which "we have to be more sensitized," and endorsed a ban on such care for youth.

As a result of which, someone Politico identified only as "a Democratic strategist from a swing state" said Newsom had created "a permission structure for other Democrats to do this, too" - that is, to trash trans rights (plus other "far left" policies) in pursuit of that forever just beyond our reach mass of almost mythical "moderate" Republicans.

Among the comments and responses at Reed's site, there was a lot of questioning of why Newsom would do this, with some saying he was preparing a 2028 run for president (he is term limited and will be out of office as governor in 2026) with others saying this very act will kill his chances for that. But through it all was the throbbing pulse of emotional pain driven be a combination of genuine anger and deep betrayal.

For my part, truth is that I can't say I'm truly shocked by this. (I bet Kirk was a lot more surprised than I was.) Gavin Newsom always kinda creeped me out. He was - I can't put my finger on it, but he was somehow TOO polished, TOO smooth, TOO aware of how he looked, spoke, and moved. Okay, truth is he always seemed to me to be as slick as his hair and every bit as carefully created.

Still, he had built a certain reputation and to see him so casually toss that aside to suck up to the bigoted extremist reactionary right (and for what?) is deeply, deeply saddening and profoundly disappointing. Not so much for the action - because again I'm not really shocked; I've seen too many such cowardly, self-interested betrayals over the years for that - but for the hope that preceded each such betrayal by the institutional Democratic Party; the hope, that is, that this time I was wrong.

Ultimately, Newsom is engaging in old-fashioned triangulation, the tactic of embracing, even actively avowing, some of your opponents' programs or attitudes, intending to insulate yourself against being attacked on those grounds. Bill Clinton made the concept famous. Barack Obama was a master at it. And yes it can be effective, as Clinton and Obama proved - provided, that is, you don't give a damn about the impact on the people affected. Which we now have to assume Newsom doesn't.

On the other coast we can see a different, if you will a "kinder, gentler" version of the same sort of "give 'em an inch and they won't take a mile, we promise" thinking, this time from Massachusetts Rep. Seth Moulton. Stung by the reaction to his comments that he didn't want his daughter getting "run over" by a trans girl on the sports field, Moulton doubled down in a letter sent by an aide to a constituent (quoted in full in the comments to Reed's piece about Newsom).

Moulton’s view, according to the aide, is that "Republicans are using trans people in sports as a means to fearmonger about the trans population at large and get more people on board with their wholly anti-trans agenda."

Okay so far.

"[B]y divorcing sports from the broader issue of fundamental rights ... we can do a better job fighting back. [A] middle ground on sports ... can peel a large chunk of average Americans away from the extremism of the right."

Stop right there. This is utter bullshit. What Moulton actually said in the wake of the 2024 election was “Democrats spend way too much time trying not to offend anyone rather than being brutally honest about the challenges many Americans face. I have two little girls. I don’t want them getting run over on a playing field by a male or formerly male athlete, but as a Democrat, I’m supposed to be afraid to say that.” [Emphasis added for clarity.] ²[

There isn't a single goddam word in there about finding this so-called "middle ground." It is all about being "brutally honest" and not being "afraid" to throw trans children under the bus, using the excuse of the election loss to do it.

Later, he blamed criticism of him on "cancel culture" and whined about supposed "shouting from the extreme left corners of social media" and "purity tests."

So no, I don't buy the crap. Rather, I'd say this could be called Moulton's "Sister Souljah moment," a sort of mirror version of triangulation, where rather than embracing the opponent's view, a politician deliberately attacks some person or position that could be associated with their own campaign, a way pf going "Oh no no no, I'm not with them! It got the name when Bill Clinton attacked hip-hop performer/activist Sister Souljah as a way of rejecting Jesse Jackson and proving he wasn't "too pro-black." Later, Barack Obama used it to assert his own patriotism by going out of his way to impugn the patriotism of the movements and activists of the '60s. Here, Moulton declares his self-congratulatory supposed brave independence from those Democrats who apparently prefer seeing "little girls" get "run over" to being "honest."

But you know what, forget all that for now. Leave it aside. Take him at his word. He just wants to "peel away average Americans" from the extremist right and if only - oh if only - we just give them this one point, if we just say "Okay, you're right about that one," if we just say that "the dreams and aspirations" of girls and women in sports must be protected against "unfairness" - or, more exactly, those of cis girls and women must be protected, while the dreams and aspirations of trans girls and women, despite them being every bit as strong and representing every bit as much commitment, are to be, what, martyrs to the cause? Too unimportant for our attention? Whatever, if we would just sacrifice those hopes and aspirations, everything else will be so much better.

Okay, so if it's not bullshit, it's - stupid.

And I mean stooopid.

It's stupid because it won't work. I don't know if it ever has. When has giving into a bully ever satisfied them? The paranoia about trans folks was manufactured almost out of thin air by preying on fears about social change in general and sex in particular. What in hell makes a trimmer like Moulton think that if we surrender on sports they won't just switch back to restrooms? Or go even more in on "obscene" books? Or "trafficking?" Or whatever other "OMG! Save the children!" rant seems useful at the moment, regardless of truth? What have the fanatics ever needed truth or even logic to push their paranoia and when has the right-wing noise machine ever failed to turn that message, that focus, up to 11?³

That's particularly true because, as Reed noted in a different post, sports was never the real issue any more than bathrooms were the real issue when that was the first line of attack back in 2016.

Rather, each of them was a wedge issue, the thing the reactionaries thought they could get people upset about, creeped about, emotional about; they were a way in, a way to render and define trans people somehow as different, as other, as "not us" - and so to make anti-trans laws acceptable, even proper, even necessary.

Which is exactly how it has worked. Virtually every - if not every single - state that has passed a sports ban on the grounds of "fairness" and "protecting women in sports," often with support from the other side in pursuit of "compromise," has followed up with additional bills targeting everything from restrooms, to IDs, to stripping away civil rights protections, to entirely removing trans folks from existence in law, right up to one proposed Texas that would make someone telling their employer or a "governmental agency" (which could include police) that they are anything other than "the biological sex assigned at birth" a case of fraud - that is, telling such people you are trans would be a felony. Admitting you exist would be a crime.

Now, not every one of those proposed laws passed; the one in Texas all but certainly won't (it has no co-sponsors and no hearing scheduled), the caveat "all but" being distressingly necessary these days. And not all will survive legal challenges. But the point is, the bogus claims to "protect women's sports" was the proverbial nose of the camel⁴ that has resulted in damage to and even devastation of the lives of trans folks in 25 states.

Indeed, some among the fanatics will even openly admit it. For example, Reed points to Terry Schilling of the reactionary American Principles Project, who has defined extremism as "loving America," describing "the sports issue" as just the "beginning point," one chosen because among people who never accepted losing on same-sex marriage and had had wet dreams of overturning Roe v. Wade it provided a way to attack trans rights as a first step toward undoing all the changes they find so icky. And note I use the work "icky" deliberately because none of this opposition to basic rights is based on rational consideration of reality. It is all id and super-ego combining while skipping over ego⁵; it's reptilian brain and culturally-conditioned repression and shame about sex overruling rational judgment.

Which means, again, that despite their protestations, Newsom and Moulton and the others eager to follow their lead (such as that "Democratic strategist from a swing state") are not "engaging with the opposition," they are effectively confirming that the doubts and fears the reactionaries try to raise about transgender folks are legitimate questions. They are not in search of "middle ground," they are rationalizing their political cowardice while cowering against the threat that the GOPpers might call them a name. They are not "stripping people away from the right" or setting up for a better resistance to the reactionaries, they are declaring that when the pressure mounts, they will crack, preferring accommodation and slow-motion surrender to taking the risks involving in striving to win.⁶

The rebuttal to all the trimmers and their enablers was presented 165 years ago. It came in a speech by Abraham Lincoln at Cooper Union in New York City on February 27, 1860⁷. Lincoln's target was the demand of legislators from the South that slavery be allowed in federal territories and it's wise counsel for those like to imagine that if we just concede, y'know, just this one little point to the fanatics, they'll be more reasonable about the rest.

Consider these excerpts, with emphasis as in the original and comments for context in brackets:

Judging by all they say and do, and by the subject and nature of their controversy with us [over slavery], let us determine, if we can, what will satisfy them.

Will they be satisfied if the Territories be unconditionally surrendered to them? We know they will not. In all their present complaints against us, the Territories are scarcely mentioned. Invasions and insurrections [such as Harper's Ferry] are the rage now. Will it satisfy them, if, in the future, we have nothing to do with invasions and insurrections? We know it will not. We so know, because we know we never had anything to do with invasions and insurrections; and yet this total abstaining does not exempt us from the charge and the denunciation.

The question recurs, what will satisfy them? Simply this: We must not only let them alone [to practice slavery], but we must somehow, convince them that we do let them alone. This, we know by experience, is no easy task.

What will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly - done in acts as well as in words. Silence will not be tolerated - we must place ourselves avowedly with them. Senator Douglas' new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.

Let us stand by our duty, fearlessly and effectively. Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored - contrivances such as groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man.

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.

And the hell with the trimmers.

As a final note, I'm also reminded by all of this of writing to then-President Bill Clinton around 1997 to saying that he had been foolish in dealing with the GOPpers. I wrote, as best as memory allows so the exact words may be off but the point is accurately repeated, that "Every time you have offered some compromise looking for some equivalent response, it has instead been 'That's nice. Now what else will you give us?' You've got to stop thinking you're dealing with reasonable people," adding that "Whatever value strategic retreat has in military campaigns, in politics you never win by backing up."

Thirty years down the road and it's the same-old-same-old.

Which leads, in a way to a bottom line. The same old bottom line: It's up to us. We can't rely on our "leaders" and we can't rely on electoral politics, certainly not on its own. We have to go beyond, act outside of and beyond, electoral politics. We have to be in public; in the streets, even filling the streets; in the jails, even filling the jails. We have to be loud, noisy, disruptive, but most of all creative; we have to be impolite, rude, to power; and we have to not care what they call us - because they will call us all sorts of things - and keep on going anyway. It’s not a matter of, if I can oversimplify the terms, “protest or politics” (i.e., street protest or electoral politics), it’s a matter of protest informing politics.

Because, as this whole mess should have shown us yet again, political action and change does not come as the result of having "good people" in office; rather, having those "good people" in office comes as the result of political action and change.

Carry it on.

¹I saw someone - I can't remember who, so unfortunately I can't give credit - who used the term "transmisiac," which I have adopted. The suffix "phobia" refers to fear; the suffix "misia" refers to hatred. Bigots like Kirk don't fear transgender folks, they hate them. They should be called the haters that they are.

²D'ja ever notice that in all the concern about sports, the subject of trans boys never comes up? That's gotta be because everybody just knows that "a female or formerly female athlete" could never really compete in sports against a real boy, amirite?

³Yes, that is a "This Is Spinal Tap" reference.

⁴If you don't know the story, see here. Notable here is that a 1915 telling of the fable has as a moral "It is a wise rule to resist the beginnings of evil."

⁵Yes, Freudian psychology is old stuff and pretty much dismissed now. But the image is still useful to describe fears and phobias overriding objective reality.

⁶Josh Marshall of Talking Points Memo has said a key ingredient in political victory is "the willingness to lose well," being ready to fight, lose, pick yourself up, and fight again.

⁷The full speech can be found here. For context, the Republican Party accepted slavery in the states where it already existed but opposed its expansion to the territories. Slave-holding states wanted to allow expansion, fearing that otherwise, as those territories later joined the nation as free states, the power and influence of slave states would keep shrinking until the power to maintain slavery against possible Constitutional amendments disappeared.

It's only words...

It's only words...

So Mother Jones has reported that the EEOC has "paused" investigating complaints from workers who were targeted based on their gender identity or sexual orientation.

Georgetown law professor Brian Wolfman is quoted in the article as calling the move "troubling."

Okay, besides the obvious offense of the action itself, I have two real issues here.

First off, we must stop referring to such orders as a "pause." That's a damned official lie. A "pause" without a time frame or a context for a resumption is not a "pause." It's a total stop. They are putting an absolute end to enforcing protections against workplace discrimination against LGBTQ+ people and we should not by our language let them get away with even hinting otherwise.

Well, yes, okay, if you're actually quoting an official statement, use "pause" - but put it in quotes followed immediately by noting that it is a lie.

The more important point, however, comes from Prof. Wolfman's quote.

Because NO, DAMMIT, NO! Stop using terms like "troubling" or "concerning" or "worrisome."

This order and its ilk are legally, ethically, morally, outrageous, not just "troubling." They are based on and are despicable lies, not just "concerning." They are the words and actions of scum-sucking, bottom-feeding bigots swimming in a noxious swill of hatred, fear, ignorance, and self-loathing, not merely "worrisome."

We should never, ever, let the bigots, bozos, and bosses determine the terms of the "debate" - which I shouldn't even call that because it implies two sides each trying to present honest arguments and there is only one such side here and it sure as hell ain't them and I only use it for the lack of a decent alternative - and that includes acquiescing to transparently vapid terms and outright lies like "pause."

Another example of how we screw this up is when we report on Tweetie-pie's executive orders with phrases saying he "ordered" this or "suspended" that or "fired" (or "removed") the other - many of which actions he had no authority to do. We usually know he doesn't have the power, we even say he doesn't have the power. So why in hell do we headline it as if he did? And why do we tolerate media expressing it that way? Headlines frame the issue and so the discussion. So it should always be he "tried to" or "moved to" or, better, "falsely claimed the authority to."

Why do I go on about this? Because the words we use matter! Not just what we say, but how we say what we say matters!

This is not a new notion. The older among us may recall Newt Gingrich's 1990 GOPer memo called "Language: A Key Mechanism of Control," in which he listed specific words to be used by GOPper candidates to describe themselves (such as "opportunity," "truth," and "success") and others to describe their opponents ("decay," "failure," and "corruption" being three).¹

Those with somewhat shorter memories may recall all the buzz around linguist George Lakoff's 2004 essay "Framing 101: How to Take Back Public Discourse," which brought the concept "framing" into the mainstream of lefty thought, though it seems and sadly, more as a fad than an on-going practice. (Unlike the reactionaries, who appear to still be using the Newtwit's list.)

Even now there is continuing research into framing as a psychological concept (see here and here, for example), exploring how the way something is phrased, how it is presented, affects how it is perceived, research (and advertising practice) of which we seem to take no notice. There was a time - and here I'm harkening back to Gene Debs - when the left clearly knew how to speak in the cadences and language of those we addressed; the workers, the oppressed, the outsiders, all those denied justice. Somehow, over the decades, that faded away and while there are still those who have that skill, either naturally or by training, too many prefer the cool tones of dignified exchange to the moving power of emotive words and I cringe hearing Chuck Schumer or Hakeem Jeffries delivering the latest Democratic Party statement with the passion and urgency of a high-school debate.²

We are not talking about plunging into raging fury here; we're not discussing shouting, screaming, and screeching. We are talking about language, about passion in words to express "the fierce urgency of now." Maybe Schumer and Jeffries can't do it; maybe they feel it is "unbefitting their position." In that case, they should find someone who can do it and put that person before the cameras or at least join them on stage to follow up what they say.

Because how we say what we say matters! It always did, but perhaps now more than ever. Because, contrary to what we have heard and been told, we are not "on the precipice" of a Constitutional crisis, we are in one. Thia is not a time for temperance in tone or equanimity in expression.

This concern with language is not a new one for me; it goes at least as far back as the early '70s, when in a newsletter I edited for a local peace group (I called it "Lotus," of course) I wrote an essay on the topic in which I expressed what is still my bottom-line rule of effective communication: "What you say is not as important as what the other person hears."

In the early '80s, I ran for public office on a third-party ticket three times. Afterwards, I gave a talk on "Lessons Learned," among which was the observation that while the major parties could rely on a commonality of understanding to make their empty slogans sound like detailed programs, the left too often piled our language with references and phrases with meanings clear to those already convinced but like an alien - like UFO alien - language to others, and so made our detailed programs sound like empty or even incomprehensible slogans. That lead me to giving the advice to "Avoid buzzwords!" I tried to make the point by recalling the occasion when I learned after a debate that someone in the audience had said I had the ability "to make the most radical proposals sound like a voice of sweet moderation." It was clear what I said, but how I said it mattered.

I note this not to pat myself on the back - okay, maybe a little - but to make the point that this has been a topic of concern across the years from a variety of people and we still still still keep making the same mistakes of addressing issues by accepting the right-wing terms of debate.

We have to stop. We have to stop. We have to stop thinking that if we just quietly explain the facts with charts and numbers and graphs and court briefs but without the instant impact of art and the poetic passion of words that we will somehow take back what is being taken from us, much less make actual gains. We need to re-learn the message that, as I have written many times in some form, this one from 1991,

[t]he movement for peace and social justice in this country has been at its strongest and most influential when we have spoken the truth without giving a flying damn if anyone was "offended" or not. We didn't build a movement against the Indochina War by harping on "the shortcomings of both sides" but by blasting it for what it was, a monstrously immoral and evil enterprise which should be halted immediately. We didn't built movements for civil rights, women's equality, or a cleaner environment by worrying about how we'd be received by the bigots, sexists, or greedy corporate bosses - or how we'd "look" or who we'd "turn off" if we labeled the discriminators and despoilers for what they were.

I’ve gone on too long. So I’ll wrap up by saying that, in sum:

Words matter.
How we say what we say matters.
Never let your opponent frame the debate.
Passion and substance are not mutually exclusive - but while substance informs, it takes passion to make a movement.
Speak the truth.

And carry it on.

¹ There are various similar forms of the list. Two others are here and here. Remember that "turnabout is fair play."

² I still say one of the mistakes the Harris campaign made is that it started with a message of hope for and enthusiasm about the future only to fall back into the arms of the party establishment with its thudding, unmoving, message of "We're not Trump."

Issues and Emotions

Issues and Emotions

It’s hard to know why certain issues just strike you more than others. Why does issue A move you to tears or frustration or rage or pain or (often) all four while issue B just does not have the same effect, even as you know it really is just as important, impacts just as many people just as deeply?

Even as I write that, I find myself supposing it’s in a way a good thing: Caring about every issue, every problem, every reality, that deserves care to the degree such care is deserved would, I suspect, be emotionally paralyzing or worse. So we each need to devote most of our available energy to the issues that move us and trust in others to take up the slack on what parts of the rest move them.

My inability to do that lead me to a place where I couldn’t function politically. Every call to action was as urgent as every other call, every cry for aid was as important as every other cry for aid, every plea for my attention and time was as important as every other plea, and I suspect you know where this is going: I burned out. Totally. After I burned out of political action - twice, in fact, with the recovery from the second still in progress - I committed myself to the idea (which I now advise to others) that what matters is not how much you are doing, but are you doing what you can.

And yet I remain a little ashamed of my failure to do more on the causes I believe in. My whole purpose in being here is to try to accomplish at least a little of that “doing.”

Which is a very roundabout introduction to the rest of this blathering.

My housemate and I were on our way to have Christmas dinner with her family. They are MAGA, not so deep red that we can’t maintain family contact, but still, yeah. So there’s always a little bit of tension for us in such events. Usually, I think, more for me, in that I’m more intensely political than she is and she is so devoted to family that she can forgive almost anything. She can be angry, frustrated, irritated, and feel sorry for them - but still, in the end, forgiving.

But after a major and I expect rupturing blowout with a brother (who would not be at the dinner) who called me a “terrorist-loving anti-semite” for daring to suggest that Gaza was more complicated than his view of evil Palestinians all of who want to murder all Jews on the one side and thoroughly good Israelis on the other - with the label extended to her when she tried to express what I said even more gently than I already had - I’m sure her radar for conflict was already on high alert.

Anyway, on the way there I told her that for the sake of family peace I could let a lot of stuff go, including the anticipated gloating over the election, but there were two issues I could not, would not, let pass: the slaughter in Gaza and transgender rights.

So as it turned out, dinner went well with no gloating to speak of, it was about 9pm, people were chilling out, that somehow-a-classic Christmas movie “Die Hard” was on the TV, and someone said something about trans people. It (somewhat surprisingly) wasn’t hostile, but knowing how rapidly MAGA conversations can spin into wilder and wilder territory, my companion took advantage of the time to say “It’s getting late. We should get going.” Crisis averted, but I did have a real sense of relief when we got to her car.

Which just brings me around again to the start: Why those two issues? What makes them more important to me than other ones? Why did I know I couldn’t let either pass even at the cost of a family disruption? Why do they move me more than other issues, other crises?

After all, what about abortion rights? The rise of Christian nationalism? Poverty and economic inequality? Voter suppression? What about the fact that as of the day I write this, 16 wars are going on in the world which together have killed about 150,000 people since the start of 2024 - not including another 17 "low-intensity" conflicts with an additional nearly 10,000 killed.*

And, I mean, seriously, you could make a case that the single most important issue facing the world today is climate change. Unless emergency action is taken, climate change - global warming, whichever, it’s the same thing, to-may-to, to-mah-to as the old song has it - will cause deeper, longer-lasting, and more widespread damage to more people than anything else except for nuclear war, and while that’s an ever-present risk, short of a major, major, major miscalculation on Ukraine, the likelihood appears for now on the low side.

Meanwhile, climate change is real, is now, is every day and worsening and we face a clearly possible future of floods and fires, droughts and deluges, famines, more intense storms, areas becoming literally too hot for human survival, resource wars, unknowable numbers of climate refugees, rising seas, dramatically altered weather patterns, and more, all impacting literally hundreds and hundreds of millions of people.

I know all that. I can talk on an at least reasonably well-informed level on the science involved and in fact have in previous years on other forums posted a good number of times about just that. So it’s neither a matter of being unaware or unconcerned.

Butt it doesn’t bring me to tears. Trans rights does.** Gaza does. Why, I don’t know. I can come up with reasons they are important in general and important to me in particular, sure - but that doesn’t answer the question at hand. Being reminded of the Christmas dinner prompted me to wonder about that “why” to, frankly, no useful end and ultimately I had to say, well, they just do because that’s the way people are: different things touch us differently.

What matters now is that I find them so emotionally overwhelming that I have found it almost impossible to write about them here. Admittedly, I’ve not been particularly regular in posting, but even so, I don’t think I’ve posted about Gaza in just about a year and I think my only post about trans rights was as part of the “LGBTQ+ People Are Not Going Back” effort in early December.

And that lack violates why I’m even here at all.

In the first half of the ‘90s, I published a little newsletter consciously modeled on I. F. Stone’s Weekly (which by the time I became aware of it had become the Bi-Weekly and if you don’t know who Izzy Stone was, damn well look him up). In the first issue of my newsletter, which was called Lotus (of course it was), I tried to explain my intent by starting with a story of a friend who said she envied my comfort at giving speeches, to which I responded by saying I envied her gregariousness, which gave her skills at door-to-door petitioning. “I don’t think she believed me,” I wrote.

But, I noted, I meant it. We all have skills we can use in movements for justice and none are greater or “more important” than others and the issue isn’t what skills you have but are you using them.

Some, like my friend, are good at petitioning. I'm not. Some are good at fundraising. I'm not. I lack both the focused concentration necessary for large-scale organizing and the patience for phone-banking. The list of my inadequacies is embarrassingly long.

My strength happens to be words. Advocacy. Writing. Giving speeches. And like that. So doing this is, simply, something I think I can contribute. My dream for Lotus is that it can be a voice of conscience and a tool in an on-going movement, something of use to the many who keep on keepin' on, something of value to those whose skills in other areas so greatly exceed mine. Something that helps.

Not long after, I received what was intended as a friendly critique saying I was limiting my audience by being so upfront with my opinions and, let it be said, judgments. I replied by saying that Lotus was built on advocacy.

Its audience is indeed those who in a broad and general way agree with its point of view. Its aim is to rouse and inspire, to provide background and analysis intended to put a context to ethical judgments and thereby spur action. In other words, “something that helps.”

That has always been my goal in every forum in which I’ve engaged, whether blogging, YouTube, the platform formerly known as Twitter, public access TV, of late including Substack, or wherever else: to be of use to the overall struggle for justice.

And I perpetually wonder if I’m doing any good.

And at this point I don’t even know if there was a through-line, a coherent thread, in this meandering mess. I just know I have trouble forgiving myself for having contributed so little over this past year-plus to the causes that now mean the most to me and have to figure out how best to correct that. One possibility is to reframe my vision for what I publish from essay-length commentary with multiple data links (which I used to turn out on a reasonably-regular basis) back how it started, with a greater number of short but informational news items. We’ll see.

Because caring less is not an option.

*"Killed" here means "battle-related deaths (military and civilian) as well as civilians intentionally targeted" and so does not include deaths from such causes as lack of food or clean water or health care, which often account for three times (or more) as many dead as direct combat - meaning that 150,000 killed could be more like 600,000 (unless those others are somehow less dead) and maybe another 40,000 dead in those “low-intensity” wars.

**Do? Does? I think of it as a singular, as a group noun, so, yeah, “does.”

Happy 28th?

Happy 28th?

[I posted this on another platform (Substack) on January 21 and I was supposed to post it here but, well, I forgot. I think it is still worth a look, even if the issue, at least as far as media is concerned, vanished as fast as it arose.]

There has been justified and exuberant celebration over the statement (of course deleted post-inauguration) from Joe Biden that as far as he's concerned, the Equal Rights Amendment is part of the Constitution, with one example exulting "Woohoo! They can fight it but it’s done! Great news for human rights!" (Sorry for no credit; I misplaced the link.)

Yeah, well, hang on. It’s not quite over. In fact, delete “quite.”

For one thing, Biden said much the same thing three years ago (again deleted) and you see how far that has gotten us. This one is stronger because that time he called on Congress to ratify the ERA and this time he says, screw it, it’s already ratified. Well, good, but still, that doesn’t wrap things up.

On a practical, legal level this will simply be ignored until someone claims some law or rule is unconstitutional because it violates the ERA. That is, nothing will happen until someone forces the issue. And when that happens, I guarantee it will be accompanied by multiple arguments and suits trying to undo this historic achievement.

There will be suits about states having rescinded approval, which I think (hope?) will more likely than not fail because of (among other things) the can of worms it would open about the potential for states to pull an Emily Latella and rescind approval of amendments already enacted. (Can states secede by saying “We changed our mind, we don’t approve the Constitution?” Was the Confederacy thus properly constituted?) If I understand correctly (correct me if I’m wrong), but I think the technical term here is “no take-backs.”

Some efforts will claim that the amendment is not in force because US Archivist Colleen Shogan hasn’t published it. Those should fail - “should” because these days with this SCOTUS nothing is certain - on the grounds that an archivist is by definition a record-keeper, not a decision-maker and her role is ministerial. That is, she has no more authority to block the amendment than then-VP Mike NotWorthAFarthing had to refuse to certify the electoral count in January 2021.

And there will be suits about having exceeded the imposed and quite arbitrary time limit, which could rise to a “Well…” In a 1921 case (Dillon v. Gloss), SCOTUS found that Article V of the Constitution “implies” that proposed amendments “must be ratified, if at all, within some reasonable time after their proposal.” However, a later case (Coleman v. Miller, 1939) suggests that while Congress can set a “reasonable” deadline, what constitutes “reasonable” may be open to challenge. Further, later commentators have argued that this dicta is incorrect because the Constitution gives no such role to Congress (see Note 7 here). Which together would seem to make it difficult for our originalist and “plain text” intoners to argue straight-faced that such a time limit was “what the Founders intended” - not that they’ve never before ignored their own principles when it suited them. (This again relates to the federal archivist, of which more presently.)

Finally and perhaps most importantly, don’t be surprised if, regardless of the merits of the case at hand, some district court judge somewhere issues an injunction barring the amendment from taking effect anywhere in the country while any suits on any of those or other related issues proceed. Because I again guarantee you there are some who will do it on command.

In the meantime, however, we should all do as some are already doing and just declare “It’s over! We won!” over and over and over again. Make it an assumption under which the law should operate; treat it as a done deal, not a request or “someone do something.” I mean, at the very least it provides a basis for filing for injunctions against enforcement of anti-LGBTQ+ laws until any legal issues get resolved - which easily could take years.

However, what hasn’t taken years or even days is for the media to react to Biden’s statement with tut-tuts and tsk-tsks in dismissive tones ringing with “look at the old guy trying to look important” vibes.

For example, Politico called it “little more than an expression of [Biden’s] opinion” and a “long-shot gambit” while Faux News declared it’s “unlikely that Biden’s support will have any impact.” Slate dismissed it in a headline saying it “does nothing.” Meanwhile, AP called it "symbolic,” adding that "presidents have no role in the constitutional process" while emphasizing it "stirred aggravation among some allies" who had wanted it done sooner.

Others were no better and the all-but universal reaction came down to “But - but - the archivist!” They took it as unquestionable fact that the archivist refusing, on her own authority, to print it up and publish it is an absolute Constitutional bar to the amendment’s being part of the document. Which strikes me as much the same as saying that the Congressional Record could block any law by refusing to include it in its publication or the GPO could block any regulation by refusing to print it for distribution. She says she is relying on legal opinions from the Office of Legal Counsel that the time limit is enforceable, but the point is, that’s not her decision to make.

(Sidebar: It seems odd to me that with everyone agreeing that the president has no role to play in the amendment process, an opinion of the OLC - which is, again, an advisory opinion, not a determinative ruling - should be thought binding on the archivist, when they are all part of the Executive Branch.)

When the OFR [Office of the Federal Register] verifies that it has received the required number of authenticated ratification documents

from state legislatures, her job is to issue a formal declaration

to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

It should, must, be left to others to make the claim that the ratifications were somehow improper or without force. She is, bluntly, a clerk - not a legislature, not even a legislator, and not a judge.

And neither is the press. I used to read The Daily Howler, by this guy named Bob Somerby. I stopped because I came to see him as a obnoxious twerp forever looking to prove himself the purest, most superior “liberal” ever to work a keyboard - but I still credit him with developing one of the best tools for media analysis I’ve come across: the concept of “the script,” the idea that the media will rapidly coalesce on a way of viewing a certain issue, after which all future coverage has to be in line with that interpretation in order to be taken as “serious.”

The frame, the script, here has become “the archivist says,” and therefore the question is resolved and isn’t Biden just so cute trying to burnish his legacy with his useless opinion. That is, members of the media here are eager to just dismiss the whole thing as a one-day story not worth pursuing - as opposed to, for example, the pulsatingly exciting and important issues of “Is Tweetie-pie going to invade Greenland” (he won't) and “Will Pete Hegseth get confirmed” (he will).

Admittedly, not all the coverage ignored the open questions here and acknowledged that ultimately there are issues to be resolved by Congress or the courts (or both). But still, it seems overwhelmingly on the sake of “BFD, who cares about that old stuff when the machinations, manipulations, and madcap malevolence of The Great Orange One are just so exciting and so much fun to cover! (The absence of the word "important" is deliberate.)

There will be legal and legislative battles ahead and I have to admit that overall, the outlook isn’t good. Yes, the challenges should fail by logic and justice but a victory by the fascistic racist xenomisiacs* on a single point on any one of them could spell doom for the whole idea. I’d say our best move is to, as I said, use Biden’s statement to treat adoption of the ERA as the 28th amendment as a done deal and use it aggressively as an organizing focus.

Specifically, since everyone appears to agree that Congress could at any point say “forget the deadline, there isn’t one anymore,” thus removing Shogun’s excuse for inaction, Dems in both Houses of Congress should introduce measures to do just that. Put the xenomisiacs and other opponents of human rights in the position of having to vote against a move to approve the amendment. I would fully expect that there is no way in hell the GOPpers would allow it to come to a vote, but that very refusal should then be a point of attack.

The one thing we must not do on this or indeed anything else for the foreseeable future, is engage in preemptive capitulation, surrendering even before the battle is joined (such as can be seen here). King Lear had it right: That way madness (and despair) lies.

*The suffix “phobia” refers to fear; “misia” refers to hatred. These creatures are not afraid of foreigners, trans folks, of “the other,” they hate them. I’ve come to regularly use it whenever it applies. I got it from someone in a post about transmisiacs, but I can’t remember who, which is unfortunate because I’d really like to give them credit.

Teenagers with handguns! Woo-hoo!

Teenagers with handguns! Woo-hoo!

The bizarre, brain-dead, corporate-adoring, human-hating decisions from the 5th Circuit Court of Appeals, our most reactionary federal court (yes, even worse than SCOTUS), continue apace.

The latest exercise in egregiousness came on January 30 when this cabal of judicial Death Eaters overturned a district court decision and declared that preventing teenagers from buying handguns is unconstitutional.

The decision upended a nearly 67-year-old federal law, part of the Omnibus Crime Control and Safe Streets Act of 1968, which banned federally-licensed firearms dealers from selling handguns to anyone under 21.

Circuit Judge Edith Jones wrote the limits were "unconstitutional in light of our Nation's historic tradition of firearm regulation" and "the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among 'the people' whose right to keep and bear arms is protected."

Indeed, this latest decision served to emphasize just how deep into history the devotion to "historical" goes, claiming that the DOJ, which defended the ban, provided "scant" evidence of similar limits during "the founding era" and that the government's "19th century evidence 'cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.'" In other words, we are permanently trapped in the thinking of the 1790s and nothing, no law, practice, or evidence from any time after 1799 can (if you'll pardon the lame pun) pass muster.

It came as the result of suit filed by some 18-20 year-olds with support - that is, money and lawyers - from the "More guns! Guns good!" groups the Second Amendment Foundation and the Firearms Policy Coalition. And indeed, one of sickest reactions came from Brandon Combs, president of the latter group, who called the ruling a victory against "an immoral and unconstitutional age-based gun ban." It's not just unconstitutional, it's downright immoral to keep 18-20 year-olds from walking around with loaded handguns. And hooray for freedom!*

The ruling was based on, of course, the blood-thirsty 2022 decision of the Supreme Court in New York State Rifle & Pistol Association v. Bruen, in which it found - invented, really - the concept that limitations of the Second Amendment could only apply to restrictions that were "consistent with this nation's historical tradition of firearm regulation," such "historical tradition" apparently meaning the time of the "founding," i.e. the period of the revolution and the adoption of the Constitution - a time when the most common weapons were predominantly muzzle-loading weapons firing single balls.

A few examples of multi-shot or "rapid fire" weapons existed or were proposed but their use was rare and certainly not common until well into 19th century. Note that "rapid fire" here means eight to nine rounds per minute as opposed to two or three; a semi-automatic AR-15 can do 45-60 rpm and a fully automatic one 800-900.

Anyway, the Bruen decision was in turn based on an even earlier one, the notorious District of Columbia v. Heller, which created entirely out of thin air the doctrine that the Second Amendment provided for an individual right to possess guns.** (The previous standard, set out in US v. Miller (1939), was that the reference was to a collective right of self-defense and the right of the states to maintain militias.)

Heller and its follow-on McDonald v. City of Chicago (2010), which incorporated the 2nd Amendment (meaning it applied to state and local governments as well as at the federal level), produced numerous lawsuits challenging gun laws on every level. Courts developed a two-step analysis for judgement: First, does the law in question actually involve the Second Amendment and two, what is the public interest involved in the law - in this case limiting gun violence and death - and is that interest significant enough and narrowly-tailored enough to justify the limit on the freedom involved. (Note well: This balancing of rights against the public interest is standard in questions of Constitutional challenges.)

As a result of applying that test, judges upheld nearly every law challenged.

Which wasn't enough for the gun nuts and their collaborators on SCOTUS, so in Bruen, the Court declared, in the words of decision author Clarence Thomas, that analysis took "one step too many." To put that bluntly, when it comes to guns, the public interest is irrelevant along with the difference between a muzzle-loading flintlock and an AR-15 firing 60 rounds a minute from a 100-round drum.

What's more and maybe worse, the Bruen decision also declared, again for the first time and again based on "proof by blatant assertion," an individual right to carry a loaded gun in public - despite the fact that there was no general right to carry arms in public when the Second Amendment was adopted; the idea arose in the antebellum South decades later in significant part to maintain control of slaves.

In fact it is an entirely modern - like 1970s modern - invention of the "guns are good" crowd and so much for the importance of history.

But then again, history was never a strong point for the gun nuts.

And so here we are. Expect this decision to be appealed and do not be the least little tiny bit surprised if it's not both accepted by SCOTUS and ultimately upheld.

Despite -

the facts that the US has the highest firearm homicide rate in the industrialized world, one 18 times the average rate in 35 other developed countries, and saw 30 mass murders*** (about one every twelve days) and 503 mass killings (more than nine per week) in 2024;

the facts we know that more guns equals more crime and that there is a direct relationship between the strength of a state's gun laws and the lowness of its gun crime rate;

the facts that handguns were used in 62% of the nation’s gun murders in 2019 and in 90% of all cases of firearms violence;

and the fact that guns are now the leading cause of death for children;

we are now looking at allowing more teenagers more access to more handguns - while the gun makers and their paid-for legal shills sit in their clean, carpeted, warmed and well-lighted offices, drinking their wine and toasting their victory for the "freedom" of the grave.

As if the sheer indifference to the suffering of others we already - wait, that’s wrong; it’s not indifference, it would be better if it was; it’s the sheer glee at the suffering of others we already see around us, as if that wasn’t depressing enough.

*Not having read the entire opinion, I'm assuming here that the reference to "eighteen-to-twenty-year-old individuals" means the decision is limited to the class of which the plaintiffs are part. Otherwise, it means that in the states in the 5th Circuit - Mississippi, Louisiana, and Texas - there is now no age limit to buying handguns.

**For some of my own thoughts on Heller, see the What's Left Special Report: Guns, starting about half-way down.

***"Mass murder" is defined as at least four people killed in one incident, not counting the shooter; "mass shooting" as at least four people shot, not necessarily killed, in one incident, again not counting the shooter.

The No Decent Achievement Award goes to....

Congress recently passed the NDAA, which included anti-LGBTQ+ provisions which progressives had pushed to get removed. We both failed and were failed.

Both my senators voted "no," which is comforting in a vague sort of way but I can't be truly pleased about it precisely because they were outliers. Being able to say MY senators voted right even as the wrong thing passed just isn't very comforting.

Two observations: Three of the "no" votes were from GOPpers, making the Democrats' failure even worse than initially appears: That's 11 of a potential 51 Democrat votes (including the four independents who caucus with the Dems) - just 22% of Democrat-aligned senators stood up for trans rights as soon as it wasn't easy to do so. Remember that.

The second observation is that the amendment to remove the anti-trans rights provision had 25 declared supporters - but Schumer blocked it from coming to a vote because he wasn't certain it would pass.

WHAT THE HELL KIND OF STUPIDITY IS THAT? Does he think that the GOPpers got to the level of power and influence they have by never bringing up something unless they were sure in advance it would pass? MY GOD the Dems are so afraid of losing that they won't even try.

I stopped reading Talking Points Memo some time ago but I do remember Josh Marshall's insightful observation that, quoting from memory so it may not be exact, "A necessary factor in political success is the willingness to lose well," that is, to push your idea while being prepared to lose, pick yourself up, and try again.

It's wisdom which has entirely escaped the minds of the hierarchy of the Democratic party if indeed they ever possessed it. It's both a shame and a disgrace.

LGBTQ+ People Will Not Go Back

There was a call for people to post something today, December 3, with the above title as mass expression of support the day before SCOTUS holds oral arguments on United States v. Skrmetti, the challenge to the Tennessee law banning gender-affirming care for minors and punishing doctors who provide it. It is the most significant case involving trans rights to reach the Supreme Court and the outcome could - make that would, no matter how it turns out - affect the future of thousands of transgender folks nationwide.

Well, I am not a member of the LGBTQ+ community - I’m, as I’ve said before, a 76-year-old cis straight white guy - but I do think myself an ally.* Because I am not a community member, I’m somewhat hesitant to think of my words here as important in any way beyond their existence as a statement of that support. And I have nothing new or profound to add to the conversation.

So I thought I would make my contribution to that conversation, to the mass declaration, a few snippets of I think related things I’ve said in the past year or so.

From September 2023:

It has become clear to the point that only deliberate dishonesty can deny it. The paranoid (and I mean that in the clinical sense) reactionaries want to disappear trans people. To wipe them from existence. Perhaps - repeat perhaps - not physically, but certainly politically, legally, socially.

But “LGBTQ+ People Are Not Going Back.”

From March 2024, when a transphobe declared “the majority of us are getting tired of” hearing about LGBTQ+, particularly transgender, issues:

Fine. Good. Just dump the bigoted laws, stop interfering with people's ability to live as who they are, stop interfering with medical care, stop trying to force trans people to live lives of secrecy as if they didn't exist, stop demeaning their humanity and denying their human rights, stop calling them "filth" and "abominations," in short just drop the whole damn thing and allow trans folks the same dignity, rights, and respect you would expect for yourself, and you'll hardly ever have to hear about it again. Otherwise, well, otherwise.

Because “LGBTQ+ People Are Not Going Back.”

From April, 2024:

The accusation of "recruitment" is an old anti-homosexual smear with laws dating back to the 1800s. When I was growing up in the '50s, I heard the claim that gay men were always seeking to "recruit" innocent boys into their "perverted lifestyle" because they couldn't reproduce on their own so it was the only way to keep the "lifestyle" going. Consider how transparently idiotic that sounds now as proof of some degree of progress.

I raise this because I want people to bear in mind that what is going on now is not a new phenomenon but a reprise of a standard playbook with a specific goal, one openly declared in a quote I swear I am going to cite over and over until referencing it becomes second nature to as many of us as possible:

"'Back to 1900' is a serviceable summation of the conservative goal." - George Will, in his syndicated column, January 2, 1995

Every time a right-winger says or proposes anything, you should envision the US in 1900, envision the state of rights, social status, and economic well-being of every marginalized person, of every black, every woman, every worker, every LGBTQ+ person, every immigrant, every everyone not among the favored elites, and remind yourself "That is what they want."

They told us. We should listen.

Because “LGBTQ+ People (And Others) Are Not Going Back.”

Again from April 2024, in response to a parent of a trans teen saying that they will aid and abet resistance and not follow unjust laws:

Ditto on the aid and abet. In the struggle for LGBTQ+ rights, as in other struggles for justice, those affected should rightly be in the lead. But there's no reason the rest of us can't stand should-to-shoulder with them.

Because “LGBTQ+ People (And Their Allies) Are Not Going Back.”

From June 2024, responding to a terf comment that trans folks can "live by whatever metric makes them happy so long as it doesn't hurt others."

What if it results in them getting hurt? Fired from their jobs? Denied health care? Getting arrested if they're caught using the "wrong" restroom? Physically attacked? Repeatedly denounced as "groomers," as a threat to children, as someone here called them, "birth defects"? Forced into conversion therapy? Or is it only okay if they stay so far in the closet that the rest of us can pretend they don't exist, just like we did for so very long about gays and lesbians? And yes, that is relevant when you consider what was said about gays and lesbians within my living memory and see the exact same things, and I mean even the exact same words, directed at trans folks today.

Because “LGBTQ+ People Are Not Going Back.”

From October 2024 in a discussion about impacts of recent changes in laws in Texas, when someone said “It’s not going to end well.”

It's not supposed to end well. That, as I'm sure you realize, is the point. It's part of making being trans so difficult, so risky, presenting such constant threat, that the pain of living a self-imposed life of hiding, of denial, of concealment, becomes preferable.

I have compared what the reactionaries want to do to trans folks to an oubliette, a medieval prison cell where prisoners were thrown and then "forgotten." (The name comes from the French "oublier," meaning "to forget.") They want it to be as if trans folks simply do not exist. Not legally, not politically, not socially, "forgotten" like a bad dream.

But “LGBTQ+ People Are Not Going Back.”

Also from October 2024, reacting to a call for building coalitions in face of attacks on LGBTQ+ rights:

I know I'm revealing my age, but I recall the Movement (as we were called) of the '60s and one of our strengths was that we thought of it that way, as "a movement," not as a string of separate issues. We thought of ourselves as one mass of people moving not in lockstep yet in the same general direction and even as we each spent most of our energy on our own particular issues, we regarded those concentrating on other issues as compatriots to be supported and with who we would actively cooperate whenever the occasion arose.

I fear we have lost that sense of community, to our detriment. So consider this a roundabout way of seconding the call to "bridge the gaps." And it may be most important for straight cis folks (like me) to do it if only because there are so many more of us and one of the gaps that exist is one between LGBTQ+ and cis folks and yeah, when it comes to social and political power, numbers do still matter.

And “LGBTQ+ People (And Allies) Are Not Going Back.”

Finally, from November 2024, in reaction to someone’s blaming issues of LGBTQ+, particularly trans, rights for the election outcome:

Your ostensibly helpful advice boils down to "shut up, be as inoffensive as possible, and hope it gets better someday." I shudder to think where we'd be if women, black folks, and gay and lesbian people had followed your (I'm sure you would claim is) sage advice.

Because “LGBTQ+ People Are Not Going Back!”

To be clear, I still have hope, in fact the conviction, that things will get better, that we are living in a reactionary time, a fear-driven reaction to the changes we have seen and are seeing; a time that once survived will have shown, as previous such times have shown, advancement; a conviction that, to quote what has almost become a cliché but nonetheless is spot on, the moral arc of the universe is long but bends toward justice.

But the time between now and then is not going to be easy. And the more we are aware of - and the more we resist - the now, the sooner it will be the then. In the meantime, hold to the words of William Lloyd Garrison (speaking of slavery) and say to the trimmers, to the “wise voices” who think that struggles for human rights can always be delayed to a more convenient time, to them and their enablers and followers, say:

"I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or to speak, or write, with moderation. No! no! Tell a man whose house is on fire to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen; - but urge me not to use moderation in a cause like the present."

Because “LGBTQ+ People Are Not. Going. Back!”

*If you react by thinking something like “allies are community members,” thank you. I appreciate it.