Saturday, July 26, 2014

168.9 - Clown Award: House GOPpers on Washington, DC laws

Clown Award: House GOPpers on Washington, DC laws

I just have time for the Clown Award, given weekly for meritorious stupidity.

The big red nose this week goes to the Republican members of the House of Representatives. There were some Democrats involved, but 90% involved were GOPpers, so they get the award.

Despite a 2008 Supreme Court decision striking down its ban on owning handguns, Washington, DC, still has some of the toughest gun control laws around. Residents must register handguns every three years, complete a safety course, and be fingerprinted and photographed.

Meanwhile, in March, the city decriminalized possession of less than one ounce of pot, replacing criminal penalties for simple possession with a $25 fine.

Last week, the GOP-controlled House approved a spending bill that would undo both of those laws.

Bear in mind that Congress has the final say over the District's local laws and budget. So what this means is that if the House GOPpers get their way and this survives the rest of the budget process, it will be a crime in Washington, DC, to have a joint in your jeans - but entirely legal to walk the streets with a loaded .45.

What more can be said? Each and every one of them: clowns.

Sources cited in links:

168.8 - Middle East and Gaza: Israel does not want peace

Middle East and Gaza: Israel does not want peace

The are times, moments, occasions, periods, when I have trouble dealing with things. Not things, things. Not the me, the my life stuff, the get up, go to work, do errands, read a book, chill out, walk the dogs stuff. The whole world stuff.

Sometimes, the awareness penetrates the cynicism, the emotion penetrates the intellectualizing, the reality penetrates the analysis, the whole penetrates the parts. I have an expression for such times: I say "the world is too much with me."

I don't know if I came with that phrase on my own or if I heard it somewhere, since it can be found in a sonnet by William Wordsworth that dates from about 1802:
The world is too much with us; late and soon,
Getting and spending, we lay waste our powers;
Little we see in Nature that is ours; ...
So maybe I came across it somewhere. Or maybe I made it up for myself. I have no idea and it doesn't matter. What is means for me is those moments when I am too aware of the sheer enormity of pain and suffering in world and how small and pointless any effort you - I - came make in the face of it appears to be. It's not good place to be because if it persists too long it can be debilitating.

I was finding the world too much with me recently. What brought it on was noticing a news story about two rival Libyan militias were fighting for control of the Tripoli airport and another about a battle between the Libyan army and Islamist forces in Benghazi. And it reminded me that fighting in Libya has never really ended since the fall of Qaddafi.

So there is near anarchy in parts of Libya. There is civil war in Ukraine, there is civil war in Iraq, there is civil war in Syria - and of course there is butchery in Gaza. And it was too much. I wanted to hide. I still do.

But I can't, at least not yet - because there is something I have to say:

Israel does not want peace.

I don't know how else to say it except that bluntly and directly. Israel prefers the status quo; Israel prefers having Hamas as an excuse to avoid a final settlement; it prefers the occasional Hamas rocket, very few of which actually do any harm, to having no rockets at all; it prefers to drive the people of Gaza into the arms of Hamas to doing anything that would undermine Hamas's popularity - such as lifting the blockade of Gaza, which has turned it into the world's largest-ever outdoor prison.

Why? Because real peace would mean a real Palestinian state and that would require the hard right of Israel to give up it's dreams of a "greater Israel," a nation standing astride the Middle East with the power and reach of King David in all his glory in the most grandiose of tellings of the tales. It would mean treating Palestinians as equals and as regarding themselves as one among equals - and for too many among the Israeli right, the politically powerful Israeli right, the politically powerful religiously-conservative Israeli right, that just can't be allowed.

But Israel can't do this, it can't maintain this, without the active support of the United States, which is now paying for about 25% of Israel's annual military budget. So we have to be flooded with Israeli propaganda, propaganda which depends for its success on Americans knowing little about Gaza, an ignorance driven in turn by the heavy pro-Israel bias of the US news media, a bias so extreme that on July 21 MSNBC contributor Rula Jebreal accused her own network of being "disgustingly biased," saying that the network might have on a Palestinian “maybe for 30 seconds, and then you have twenty-five minutes for Bibi Netanyahu, and half an hour for Naftali Bennett."

(Benjamin, nicknamed "Bibi," Netanyahu is the prime minister of Israel; Bennett is minister of the economy.)

As if to prove her point, Jebreal later said on Twitter that her upcoming TV appearances had been canceled.

You want an example of how that ignorance works? How many times in the past several days have you heard it said that Israel blames the hundreds of civilian deaths, including over 150 children, the thousands of civilian casualties, its attack on Gaza has caused on Hamas, on claims of Hamas using civilians as "human shields?" How many times have you heard it claimed that Israel is doing everything it can to not hit civilians?

Indeed, on Monday, Netanyahu said that the Palestinians "are responsible for all the civilian deaths," because, he said, "they don't care ... [they want to] pile up the bodies."

Here's where the ignorance comes in: The population of Gaza is about 1.8 million. The area of Gaza is about 140 square miles. That's about 12,900 people per square mile.

The population density of the city of Boston: 12,900 people per square mile.

Gaza is as densely populated as the city of Boston. And remember, the people of Gaza can't leave: They are blocked in on one side by the Egyptians and on the other by the Israelis.

Okay, so you tell me: Where are those civilians supposed to go? Where is it they can go where they will not be targeted by Israeli bombs?

Consider this leaflet, which the Israelis dropped over Gaza. The other thing here is that it's easy to forget - because damn well the US media never mentions it and the Israelis will consciously avoid mentioning it - is that Hamas is not just a military organization: It is the elected civil leadership of Gaza. It's the schools, the police force, the fire protection, it has day-care centers, hospitals. So where do those people go to not be near anything "Hamas?"

Israel knows this. It knows those people have nowhere to go. The Israeli government knows - it cannot not know - that its attacks will indiscriminately kill civilians. It knows - and it doesn't care. We know it doesn't care because it keeps doing it, keeps doing what it knows will kill large numbers of civilians and then lies about whose fault it is. It knows - and it doesn't care. What it cares about is that we do not know.

We have to be aware. We have to learn. We have to know. And one thing we do have to know - now - is that it is time, it is long past time, for a complete end to all US military assistance, aid, and sales to Israel. Not one plane, not one gun, not one bullet, not one dollar. Not until Israel formally, overtly, and specifically recognizes the Palestinians' right to an independent state in the West Bank and Gaza and reaches an actual agreement to that end and I do mean formally and specifically: none of the "maybe sure someday kinda in some form yup sort of" doubletalk that has been the Israeli government's pattern for years - a pattern, we now know, which is nothing short of a lie:

At a press conference on July 11, Netanyahu made it explicitly clear that he would never agree to a fully sovereign Palestinian state in the West Bank. Quoting him,
there cannot be a situation, under any agreement, in which we relinquish security control of the territory west of the River Jordan.
At that same press conference, he also said, in the combination of inflamed self-importance and paranoia that increasingly marks Israeli government policy, that he sees Israel as standing almost alone on the frontlines against Islamic radicalism, while the rest of the as-yet free world does its best not to notice.

Well, okay: If the leadership of Israel likes to see their nation as standing alone, maybe we should allow it to do just that. Until there is an actual settlement including an independent Palestinian state - which any real settlement will have to include - not one US penny should go to the Israeli military. We may not be able to stay the hangman's noose, but we can at least stop paying for the rope.

Sources cited in links:

168.7 - Outrage of the Week: Suit against discrimination fails even though Court admits there was discrimination

Outrage of the Week: Suit against discrimination fails even though Court admits there was discrimination

A couple of decades ago, activists learned that class action suits were an effective way to pursue justice through the courts: People who could not afford to mount a legal challenge to a wrong on their own could join with others in a similar situation and so have the means to take on corporations and government agencies.

So, of course, in more recent times it has become harder and harder for people to pursue such suits: The requirements for being certified, that is, recognized, as a "class" by the courts have gotten stricter and stricter; even small differences in the individual circumstances of the members of the asserted class can get result in certification being denied with the result to suit can't go forward.

Specifically in the area of civil rights suits, not only is it harder to get certified as a class, it has also been made harder to prove you have been wronged even if everyone knows you have been.

Which brings us to the Outrage of the Week.

On July 18, the state Supreme Court of Iowa, in a 7-0 vote, rejected a class-action lawsuit that alleged the executive branch of state government discriminated against black job applicants.

The court upheld a lower court decision to dismiss the case, finding that the class of 5,000 black employees and job applicants failed to prove they suffered systemic discrimination because they did not show that specific hiring practices disadvantaged them.

At the same time, all seven justices recognized the reality of implicit bias, in which individuals subconsciously favor whites over blacks.

The main opinion, written by Justice Brent Appel and joined by three others, said that overt racism has been replaced by unconscious discrimination as the “headwinds faced by African Americans in the employment marketplace.”

A separate concurring opinion from Justice Thomas Waterman and two others, agreed the case should be dismissed even though
there undoubtedly was subjectivity and - as the plaintiffs credibly demonstrated - implicit bias in multiple state hiring decisions.
In fact, Waterman noted that even the original trial judge said "it appears African Americans on the whole were disadvantaged in getting job interviews from some agencies."

This is where it gets outrageous: The plaintiffs' case was based on statistical evidence that blacks received fewer interviews and jobs than whites at state agencies plus a growing body of social science research affirming the concept of implicit bias. Their lawyer, Tom Newkirk, noted data, including some from state consultants and experts, which suggested that blacks were generally disadvantaged.

That sort of statistical evidence of bias used to be enough to prove your case. It's not any more and hasn't been for a while. Instead, as the justices noted in their ruling, current state and federal law require that plaintiffs be able to point to and prove specific hiring practices were discriminatory.

But of course in the case of implicit bias, there is no such specific hiring practice because the discrimination rests within the unconscious mind of the interviewer or hiring agent.

Newkirk said he knew the appeal was a long shot, but considered the ruling “tremendously positive” because "the recognition of implicit bias is huge," paving the way for suture lawsuits.

Frankly, I think that's just trying to put a good face on it because I don't see how that's true. As current federal law stands, unless your employer puts out a memo saying something like "we don't hire us no coloreds," you really don't have a case for claiming bias.

And that is an outrage.

Sources cited in links:

168.6 - Factoid of the Week: F-35 fighter

Factoid of the Week: F-35 fighter

Okay, this is something that may or may not become a regular feature. Pretty soon I may have so many regular features I won't have time for anything else. But here it is: It's the Factoid of the Week.

The subject is the program to create a fleet of F-35 Joint Strike Fighter jets, which is 7 years behind schedule and a couple of weeks ago was grounded just before two air shows that were supposed to be the jet's coming out party.

Here's the factoid: The entire cost of the program over the projected life of the jets is now $400 billion. That amount could have provided a $600,000 home to each and every one of the estimated 600,000 homeless people in the US.

Or, if you prefer another way to look at it, a single year's cost of the program, about $49 billion, could have covered the entire yearly cost of the National School Lunch Program, which feeds roughly 31 million students every year, eliminate the cuts made in the Food Stamp program, pay our share of UN's 16 peacekeeping missions around the world, and pay the entire amount sought by the UN Office of Coordination for Humanitarian Affairs to address humanitarian crises around the world, including the millions of refugees and internally displaced people in war zones - and we'd still have a few billion left over for dessert.

Sources cited in links:

168.5 - RIP: Johnny Winter, James Garner

RIP: Johnny Winter, James Garner

We have two RIPS this week as more bits of my younger years slip away.

Legendary blues guitarist Johnny Winter died of natural causes at his hotel room in Zurich on July 17. He was 70.

He made his national debut at Woodstock and spent the next 45 years as a proselytizer for the blues. He was on tour when he died.

He was noted for the speed and intensity of his playing and his fans among fellow guitarists included Carlos Santana, Eddie Van Halen, Michael Bloomfield, and Jimi Hendrix.

So RIP, Johnny Winter

The other, well, I suppose it's possible you may not have heard of Johnny Winter but you do know this guy.

James Garner died July 19 at the age of 86. He died of natural causes at his home in Los Angeles.

Garner was probably best known to most people for his two big TV roles - in the late '50s as Bret Maverick and in the late '70s as Jim Rockford - but he also made over 50 movies, including 1985's "Murphy's Romance," which got him an Oscar nomination for Best Actor.

And I suppose it says something that an appreciation of Garner at said "While their grandparents remember him from Maverick and their parents remember him from Rockford, to Millennials, Garner will always be Duke, the elderly version of Ryan Gosling's character in The Notebook," a movie from 2004, 47 years after Maverick hit the small screen.

RIP, James Garner. I think you earned it.

Sources cited in links:

168.4 - Unintentional Humor: NSA concerned about privacy

Unintentional Humor: NSA concerned about privacy

Pierre Beaumarchais, who was among other thing a French playwright, is credited with the saying “I hasten to laugh at everything, for fear of being obliged to weep.”

Here's an example of what he meant:

Journalist Matthew Keys submitted a Freedom of Information Act request to the National Security Agency, the NSA, for emails sent by Edward Snowden from his NSA account in the months before he became a whistleblower.

Snowden insists that before decided to leak the documents that revealed the NSA's massive spying apparatus, he repeatedly he raised concerns internally about the legality of the program.

In May, the NSA, after having initially denied that Snowden had raised any questions with anyone about surveillance programs, released one single email from Snowden, in which he inquired about the relative power of executive orders and laws. The agency then claimed that this time, that really, really was all it had from Snowden related to the mass surveillance.

Edward Snowden
For his part, Snowden called that a “clearly tailored and incomplete leak.”

So Matthew Keys filed his FOIA request to try to see who was right.

The NSA, of course, said no, claiming exemptions under the FOIA.

Here's why it gets funny. Among the excuses the NSA offered - remember, now the NSA has already released one email from Snowden, one it used to buttress its case against him - among the excuses the NSA offered was the claim that revealing any other emails "would constitute a clearly unwarranted invasion of personal privacy."

Yes, you heard that right: The NSA is now deeply concerned about personal privacy.

Remember to laugh so you don't cry.

Sources cited in links:

168.3 - Hero Award: Salem, MA, Mayor Kimberly Driscoll

Hero Award: Salem, MA, Mayor Kimberly Driscoll

From there we can slide over easily into one of our occasional features, the hero award, given as the occasion arises to someone who just does the right thing.

On July 1, Michael Lindsay, president of Gordon College in Salem, MA, signed a letter sent to President Barack Obama by several religious colleges, demanding an exemption from federal regulations that outlaw antigay discrimination.

In response, Salem Mayor Kimberly Driscoll terminated Gordon College’s contract to operate the city’s Old Town Hall. In a letter to Lindsay posted on the city's website, Driscoll made it clear that the college's demand to be allowed to discriminate was the reason for the termination, writing that
"I am truly disappointed in the stance you have taken, which plainly discriminates against the rights of LGBT individuals, both on and off campus. These actions fly in the face of the City of Salem’s Non-Discrimination Ordinance, which prohibits our municipality from contracting with entities that maintain discriminatory practices."
Kimberly Driscoll, given that law it may have seemed like an easy call, but I don't care: You're still a hero.

Sources cited in links:

168.2 - Good News: same-sex marriage advances in CO, OK, and FL

Good News: same-sex marriage advances in CO, OK, and FL

On another good news front, an area where there has been a fair amount of good news of late, same-sex marriage has come to Colorado, at least in principle. In this case it involves state courts, not federal courts. Earlier this month a state judge for Adams County determined that a 2006 Colorado constitutional amendment forbidding same-sex marriage violates the U.S. Constitution's guarantees of equal protection and due process. The ruling, as is common, was put on hold pending appeal.

However, the next day a federal judge refused to stop Boulder County from issuing marriage licenses to same-sex couples, which it has been doing since June 25. In response, Denver started issuing licenses to same-sex couples.

Unfortunately, the State Supreme Court ordered the clerks to stop issuing such licenses on the grounds that while the appeals are going on the ban is still technically in effect. Which is why I said equality has come "in principle" - the initials rulings are there but the process must be played out. And remember, these are all stays. They are not defeats.

Meanwhile, diagonally across the country, last week, Luis Garcia, Chief Circuit Judge of Monroe County, FL, ordered the county clerk’s office to begin issuing marriage licenses to same-sex couples. That decision, too, was put on hold due to the state attorney general announcing an intention to appeal, but supporters of marriage justice called it "the beginning of the end" of the state's ban on same-sex marriage.

There are two other cases challenging the state's ban; one would only affect Miami-Dade county but the other, in federal district court, would apply to the whole state. Decisions on either or both of those could come any time.

Finally, remember when I said that when the 10th Circuit court of appeals upheld a lower court decision striking down Utah's ban on same-sex marriage that it probably also spelled doom for Oklahoma's ban, because an appeal of a decision overturning that one was on appeal to the same 10th circuit? Bingo: Last week, the appeals court upheld the lower-court decision, continuing the unbroken string of pro-marriage justice decisions across the country.

Sources cited in links:

168.1 - Good News: Chicago moves on minimum wage

Good News: Chicago moves on minimum wage

As always whenever I can, starting off with good news to get us started the right way.

First, even as the federal government continues to sputter and stall on the minimum wage, states and localities continue to take it on.

The latest is Chicago, where Mayor Rahm Emanuel says he is backing a plan to boost the city’s minimum wage to $13 over the next four years, after which it would be tied to inflation.

The proposal was put together by a group of aldermen and labor and business leaders which he appointed to come up with a proposal.

Unfortunately, the City Council is unlikely to take up the plan in the near future, but it will do so as some point and it's still progress in the right direction.

The state minimum wage in Illinois is now $8.25.

Sources cited in links:

Left Side of the Aisle #168

This week:

Good News: Chicago moves on minimum wage

Good News: same-sex marriage advances in CO, OK, and FL

Hero Award: Salem, MA, Mayor Kimberly Driscoll

Unintentional Humor: NSA concerned about privacy

RIP: Johnny Winter, James Garner

Factoid of the Week: F-35 fighter

Outrage of the Week: Suit against discrimination fails even though Court admits there was discrimination

Middle East and Gaza: Israel does not want peace

Clown Award: House GOPpers on Washington, DC laws

Saturday, July 19, 2014

167.5 - Not Good News: Turning back the 20th century

Not Good News: Turning back the 20th century

This actually follows on from what I was just talking about. The connection may not be obvious at first, but it's there.

I mentioned a couple of weeks ago that just days after the city of Seattle enacted legislation to rise the city's minimum wage to $15/hour over the next several years, a group of corporations had filed suit to overturn the law.

As I said at the time, some of the suit's arguments are laughably frivolous, such as the claim that it violates the employers' First Amendment rights of free speech because higher wages could reduce the amount of money they have to advertise.

More importantly - and let me say that I am indebted to an article at Think Progress, linked just above, for much of what follows - the suit seeks to re-energize some long-rejected legal theories, including "liberty of contract" and a prohibition on "class legislation."

"Class legislation" was defined as "legislation that picks out a group of people for special benefits or special burdens without adequate public justification." Sounds like a reasonable idea, but the problem is that nearly any law can be characterized as discriminatory if a judge really wants it to be.

As an example, consider an infamous case from 1904, People v. Lochner. The state of New York had passed a law limiting the number of hours a bakery worker could be required to work to 10 per day and 60 per week. A bakery owner named Joseph Lochner was convicted of having one of his employees exceed the 60-hour limit. He appealed his conviction.

He lost in lower courts, but one dissenting judge claimed that a law prohibiting bakery owners from overworking their workers was unconstitutional class legislation because it only applied to the "small fraction of the community who happen to conduct bakeries or confectionery establishments." That is, a law regulating bakeries was unconstitutional because it only applied to bakeries.

The case then went to the Supreme Court, where it became known as Lochner v. State of New York. The Supreme Court struck down the New York law, but not on the basis of "class legislation." Rather, it threw the law out on the basis of "liberty of contract" - that is, by virtue of accepting the job, the workers had "agreed" to work those very long hours and the courts certainly should not interfere with that "freedom!"

Using that same argument, later Supreme Court decisions in what became known as "the Lochner era" struck down minimum wage laws (because that took away your "freedom" to "agree" to work for less) and laws protecting the rights of workers to form unions (because that took away your "freedom" to "agree" to deal with the bosses on your own).

The point here is that both these doctrines, "class legislation" and "liberty of contract," had over the course of the 20th century become regarded as invalid and improper. Lochner has been taught in law schools as an example of how courts should not act, alongside such abominations as Plessy v. Ferguson (which declared racial segregation under "separate but equal" was constitutional) and Dred Scott v. Sandford (which found that African-Americans could not be US citizens but were "beings of an inferior order ... so far inferior that they had no rights which the white man was bound to respect.")

But now, some high-powered legal talent - the lead litigator in the suit over the Seattle minimum wage law is Paul Clement, former US Solicitor General under George Bush and all-around right-wing go-to guy - some high-powered legal talent seems to think that with a Supreme Court apparently willing to go out of its way to say corporations are just like living beings, that this is the time to bring those legal notions back, to strike with arguments that, if adopted by the courts, would essentially invalidate the 20th century because any government regulation of or restriction on businesses would be subject to being found unconstitutional.

Every minimum wage law. Every law protecting the rights of workers to organize. Every environmental regulation. Every law about overtime. Every health and safety law. Every consumer protection law. Every law barring discrimination in hiring and promotions. Every law barring discrimination in public accommodations. All of them would be as risk. And more.

And don't think this is a one-off. George Will, the man all right-wingers turn to when they want to pretend they have any intellectual authority, and the man who once wrote that "'Back to 1900' is a serviceable summation of the conservatives' goal," said not long ago that Lochner was "correctly decided" based on our "individual possess[ion of] inalienable rights," including apparently, our "right" to "choose" to be desperate enough to submit to being overworked, underpaid, and exploited until we're no longer of use and can be dumped by the side of the road.

Meanwhile, right-wing legal theorist David Bernstein wrote a whole book devoted to, in the words of the title, Rehabilitating Lochner.

Bringing back the legal theories of "class legislation" and "liberty of contract," theories used in years past to strike down health and safety regulations and the rights of workers, these theories are continuing threads in right-wing legal circles and Paul Clement, who is no fool, has decided that now is the time to bring them into court, with his briefs for the Supreme Court doubtless already in preparation.

Make no mistake about it: George Will said it - "back to 1900." At the time he wrote it, he probably thought of it as a dream. Now there are those who can see it on the horizon. The right wing in this country is looking to undo the social progress of the entire 20th century. And if we don't pay attention and fight back, they just might do it.

Sources cited in links:

167.4 - Footnote: confidence in SCOTUS at all-time low

Footnote: confidence in SCOTUS at all-time low

As a brief footnote to that, I suspect that rulings such as these - not the Hobby Lobby one in particular, because it came down after the poll was conducted, by the trend of cases of late - rulings such as these are part of the reason that public confidence in the Supreme Court has dropped seven percentage points in the past two years and is now at a record low: Just 30% of the public has a "great deal" or a "quite a lot" of confidence in the Court.

Confidence in all three branches of the federal government have dropped, but confidence in the Supreme Court had remained relatively steady - ranging between 42% and 50% approval - since 1991, until, interestingly, right after Sam Alito joined the Court in 2006, replacing the relatively moderate Sandra Day O'Conner, after which the Court took its dramatic right turn and its approval rating hasn't reached the 40% level since.

Sources cited in links:

167.3 - Outrage of the Week: Hobby Lobby and corporate personhood

Outrage of the Week: Hobby Lobby and corporate personhood

Now it's time for our other regular feature, the Outrage of the Week. For this week's Outrage I'm going to go back to something I've talked about before - the Hobby Lobby decision - but I'm going to look at a different aspect.

Because amid all the discussion about the impact on availability of contraceptive care, something else was largely lost in the shuffle and so was not getting the attention it deserved.

In it's decision on the Hobby Lobby case, the Supreme Court found as a practical matter that a profit-seeking corporation, a commerical business, can have a religious belief and has rights of conscience. It has never found this before. This is a dramatic, far-reaching, expansion of the ill-founded and Constitution-twisting notion of "corporate personhood," the idea that in some ways - an increasing number of ways, now - a corporation is just like a living, breathing, person with the same fundamental rights.

What Citizens United did for the idea of corporate freedom of speech, Hobby Lobby did for corporate freedom of religion. In fact, more: In this case it didn't expand the "freedom," it created it.

That the foul five, the maleficent majority, knew what they were doing is evident in the effort they went to, to try to play down the meaning. It's no big deal, nothing to see here, move along, nothing new or radical about creating new rights for corporations. In fact, in his majority opinion, Justice Sam Alito wrote that "a corporation is simply a form of organization used by human beings to achieve desired ends."

That is a declaration so utterly at odds with both the real world and the law as to brand it a deliberate lie meant to conceal the decision's impact. Because that decision is, in fact, as one commentator put it, "a radical reimagining of both First Amendment and corporate law."

Corporations are not just another "form of organization used by human beings to achieve desired ends." Corporations are different from other forms of organization. They are intended to be different, they are designed to be different, that is their whole point: to be different in the way that they are.

In his dissent to Citizens United, John Paul Stevens wrote that corporate "personhood" "often serves as a useful legal fiction. But," he added, "they are not themselves members of 'We the People' by whom and for whom our Constitution was established."

It is important - it is vital - for us to remember that corporations are legal fictions, they are legal constructs. They are "creatures of law" that have no existence apart from their definition under such law. Corporations do not actually exist in the physical world. There is no building to which you can point and say "that is the corporation." You can say "that's where the headquarters of the corporation is, that's where it does most of it's business," but you can't say "that is the corporation." There is no person, no group of people, to who you can point and say "that is the corporation." You can say they are officers of the corporation or executives of the corporation or employees of the corporation or stockholders of the corporation, but they are not "the corporation." Oh, various facilities owned by the corporation do exist - but the corporation itself is a creation of the state, one which by design exists apart from any of the actual people involved in it. Even in a case where a single person incorporates themselves, you can't point to that person and say "there is the corporation," because they are not: The corporation, again, exists apart from them.

Corporations exist apart from those involved with them in order to offer those people protection against certain kinds of risk - that is their whole point! And it is altogether possible for a corporation to exist without any facilities, officers, employees, agents, income, or debts, to exist solely on paper. It would be incapable of action - but legally, it would still exist.

On the other hand, unincorporated groups, organizations, associations, clubs - that is, actual "organized groups of people" - whether political or otherwise, long-term or ad hoc, exist only as the aggregate of their members. No members, no group. If any unincorporated organization owns property, there will be actual people on the hook for actual debts. If there is a lawsuit, it is against people, not some disembodied legal formality. Corporations, by design, by their nature, by intent, are different and it is inane to suggest otherwise.

That's the point here: Corporations are, again, designed to protect involved persons against certain types of risk. That is, by incorporating, those people gain special protections and that corporation occupies a special status, one not available to others. It is entirely reasonable, logical, and I say Constitutional to expect that in return for that special status, that those corporations - not the individuals, the corporations - face certain restrictions on what they can do in the public arena as compared to what individuals, actual, living, breathing, human beings, can.

Even so, courts have long held that corporations can assert some, but not all, of the Constitutional rights of individuals, straining to make distinctions as to what rights are "purely personal" and so unavailable to corporations and which are not.

But even that idea, that corporations have any rights beyond certain basic universal guarantees, specifically those of equal protection and due process (including the right to sue and to own and use property in accordance with the law), that notion may rest on a - to use an old phrase - foundation of stubble and straw.

The modern idea of corporate rights - that is, corporate "personhood" - comes from an 1886 SCOTUS decision called Santa Clara County v. Southern Pacific Railroad. Except it doesn't: The phrase "corporations are persons," the entire foundation for the doctrine that corporations are "legal persons," does not appear anywhere in the ruling; rather, it was in a summary of the arguments presented in the case written by a court reporter. Such summaries are not legally binding. What the court said was that the 14th Amendment guarantees of due process and equal protection applied to corporations such as were parties in that suit, not that "corporations are people, my friend."

In fact, for the first 100-plus years of our history, that was not the fact or the law. In a case decided in 1819, Chief Justice John Marshall said
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.
That is, the rights of a corporation depend on “the object for which it was created.”

Which is why, by the way, profit-oriented corporations can be and have been treated differently than specifically religious institutions and nonprofits - or at least they were.

Of course, that was before corporations, just like the Velveteen Rabbit, became "real" (although the love in this case was that of money and power).

Still, for the very reason that the case was decided in 1819, just 31 years after the ratification of the Constitution, it could be argued that it's more likely than the Santa Clara case to reflect the intentions of the framers vis-à-vis corporations and the political process - which should have been of concern to those "strict constructionists" among the foul five who always claim to be looking for "the original intent," but of course it wasn't.

I say we are entirely within our rights and authorities as a free people to define the rights, protections, and authorities of corporations in whatever way we choose, including imposing whatever limitations we care to place on them, limited only by those baseline guarantees which have been there since the beginning of the republic - which were, again, equal protection and due process, access to the courts, and the right to own and use property in accordance with the law. Beyond that, well, we offer the privileges and protections that corporations provide for their participants, so we get to set the conditions under which they are available. You don't want the restrictions? You don't incorporate.

But the Supreme Court continues to go the opposite direction, to provide corporations and the rich elite who run them more power, more authority, and fewer restrictions; giving them by judicial fiat more and more of the rights previously held to be, in what is an increasingly anachronistic phrase, "human rights."

And now it has declared that perhaps the most human of rights, the most distinctive of human qualities, the right of conscience, also describes corporations. That corporations can have consciences, that entirely apart from actions of their directors (because remember that is the point of a corporation, to be separate from the people that comprise it) they can pray, they can express devotion to a god, that corporations can have their own emotional and spiritual existence as we continue to strip away what is "human" in service to the corporate state.

And That. Is. An. Outrage.

Sources cited in links:

167.2 - Clown Award: Bill O’Reilly

Clown Award: Bill O’Reilly

Now it's time for one of our regular features, the Clown Award, given for meritorious stupidity.

A couple of people have been retired from contention for the award because they would wind up dominating the rankings. One is Supreme Court Justice Antonin Scalia, of who I will just say I can't  understand why some supposedly knowledgeable people say he is this great legal mind. Ithink it'd be more accurate to replace the words "great legal" with "never."

Another is Rep. Louie Gohmert of Texas, the man who puts the "Gomer" in Gohmert, and who can be counted on to say something stupid at pretty much regular intervals.

But there is another, someone who I just had to bring out of retirement because of - well, you'll see.

So this week the winner of the Big Red Nose is the man with the world's most perfect initials: Bill O'Reilly

On his July 14 show, after citing a recent Harris poll saying that 46% of Americans who are not retired report living paycheck to paycheck, he proceeded to tell those people what to do about it.

He started by saying that you should have at least $25,000 on hand, money you can immediately access in case you get fired or some financial crisis hits your family. He then proceeds to tell people how they can easily amass such an amount.

I'm quoting now:
First of all, never waste money. Ever. That trinket? You don't need it! Then, look at your life. See what your vices are. See what you overdo - and cut back. Then, go to websites like Groupon, get discounts on stuff that you have to buy. Never - never pay full price. Also, every time you have loose change in your pocket, put it in a big jar. That'll add up fast, pay your cable bill some day. But most important is what my father drummed into my head: every dollar you make, save ten cents. No excuses.
First bear in mind that this is the multi-millionaire who recently called income inequality "bull" and "a fabricated, political thing."

And then let's go through what he said: First, every dollar you spend should be on absolute necessities. No frills, no "trinkets," nothing just for fun, nothing to make your life brighter or more colorful. You're not rich enough to deserve it. Oh, and your "vices?" Don't have any.

Speaking of trinkets and vices, I wonder what Bill O'Reilly's loufa bill is.

Getting back to what he said, Groupon and the rest are "deal of the day" sites. If you didn't happen to need that day's deal so you had to go pay full price for a loaf of bread and some cereal, well, apparently according to Mr. B.O. you paid full price and that somehow was your fault, you wasteful loser.

Oh, and a jar for spare change! Oh yeah, that will mount up so fast that "some day" it may pay one month's cable bill. What a bonanza!

Which also means, by the way, cable is apparently a necessity, not a waste or a trinket or any other sort of unnecessary expense which you can survive without. It's a necessity - because, after all, if you don't have cable, you can't watch Bill O'Reilly.

But here it is, the putrid poetry of the pontificating pinhead: "Every dollar you make, save ten cents. No excuses." You have to save 10% of your total income. No excuses.

Remember, this is being addressed to people he had already described as living paycheck to paycheck. Which means by definition they have little if anything to spare. Saving 10% of that current income is, in effect, a 10% cut in the amount of money you have now for current expenses. How are people who are, again, already living paycheck to paycheck supposed to do that?

The utter cluelessness, the utter disconnect, between this bozo and the life he presumes to judge and the people he does judge as just needing a little more self-discipline because if you're poor or struggling it's your own fault, you're either lazy or a spendthrift or both; the utter disconnect between this self-important nitwit and the people he condescends to advise, is just - well, I was going to say stunning but actually it's not, it's exactly what we should expect.

Which is why Bill O'Reilly is and always will be a clown's clown.

Sources cited in links:

167.1 - Good News: a bit of common sense in the "War on Drugs"

Good News: a bit of common sense in the "War on Drugs"

I'm starting, as I try to do every week, with a bit of good news - in this case the good news coming from an unexpected source: It consists of common sense in something related to our perpetual "War on Drugs."

Which is actually something I want to talk about sometime, because it has been a colossal failure that by throwing everything into one pile labeled "drugs" as if everything from marijuana to methamphetamines to heroin were all exactly the same and presented exactly the same dangers, the "War on Drugs" may well have created some of the drug use it aimed to stop by sowing mistrust about warnings about the drugs that do present real dangers: "Hey, you lied to me about that; why shouldn't I think you lied to me about this other?"

Anyway, the good news. Back in 2008, voters in Massachusetts approved a ballot measure to decriminalize possession of small amounts of marijuana, making getting caught with less than an ounce of pot punishable by a civil fine of $100; no criminal penalty involved.

Because of that, in 2011 the state's Supreme Judicial Court ruled that the smell of burnt marijuana was not enough of a basis for police to suspect criminal activity. Since possession of less than an ounce was a civil offense and the smell alone did not give police reasonable suspicion that there was a criminal amount of marijuana present, there was no legal basis to treat the situation as if it involved criminality.

Now, in 2014, on July 9 to be exact, the SJC has ruled that police also can't use the smell of raw, that is, unburnt, marijuana as a pretext for assuming criminal activity and so, in this case, searching a car.

"The strength of a smell is ... at best a dubious means for reliably detecting the presence of a criminal amount of marijuana," the court very reasonably concluded. "(The smell of unburnt marijuana) points only to the presence of some marijuana, not necessarily a criminal amount."

So again, the cops can't treat a civil offense as if it were a criminal one just because the horror word "drugs" is invoked.

I say that's good news.

By the way, as a brief Footnote to that, 23 states and the District of Columbia now approve medical marijuana and Florida is one step away from joining the ranks.

Sources cited in links:

Left Side of the Aisle #167

Left Side of the Aisle
for the week of July 17 - 23, 2014

This week:

Good News: a bit of common sense in the "war on drugs"

Clown Award: Bill O'Reilly

Outrage of the Week: Hobby Lobby and corporate personhood

Footnote: confidence in SCOTUS at all-time low

Not Good News: Turning back the 20th century

Saturday, July 12, 2014

166.6 - Supreme Court ignores own ruling to benefit anti-contraceptive crowd

Supreme Court ignores own ruling to benefit anti-contraceptive crowd

One last thing to talk about very quickly because while you may well have heard this, it's important enough to mention anyway. It's about the Hobby Lobby case. I'll have more to say about it another day, because I want to address the related issue of corporate personhood. But this is about something else.

In the Hobby Lobby case, the court said that requiring the company to include contraceptive care in its health coverage was a "substantial burden" on the religious beliefs of its owners, even if the company did not have to pay for that part of the coverage.

(As a sidebar, let me note that 10 years ago I was warning that the opposition to abortion was not just about abortion; that was just the starting point. Ultimately, it was about the whole idea of birth control. As the current cases increasingly conflate abortion and contraception, we are seeing that coming to pass. Now back to our story.)

To prove that it was not the “least restrictive alternative” to achieving the goal of contraceptive coverage, the majority cited the accommodation available to religiously-oriented non-profits, which can simply file a form stating a religious objection to contraceptive coverage and so be relieved of paying for it, with the insurance companies picking up the tab.

That, Sam Alito wrote, “achieves all of the government’s aims while providing greater respect for religious liberty.”

But just days later, on July 3, in an unsigned order, a majority of the court granted a temporary emergency injunction to Wheaton College, an evangelical Protestant liberal arts college in Illinois, allowing it to refuse to comply with the very accommodation the court had just held up as the answer in the Hobby Lobby case.

What Wheaton College argues that simply filling out the form is akin to providing abortions because it triggers a process by which women will obtain contraceptive care - and while this is an injunction, not a final decision, it does give reason to think the majority will agree with that bizarre stretch of I can't call it logic.

The foul five's ignoring of precedent, their intent to simply remake Constitutional law in their own right-wing image has gotten so bad, so marked, that even precedents just three days old can be ignored if it serves their ends.

It really has gone beyond disgusting.

Sources cited in links:

166.5 - Footnote: that is, some presidents get buffer zones

Footnote: that is, some presidents get buffer zones

As a Footnote to the preceding post, under the Supreme Court decision about the Secret Service agents, it appears that not only are they empowered to just decide that a political opponent of the president is an immediate physical threat, they are free to do this in a grossly politically partisan way:

During the 2009 debate over the health care law, there several confirmed reports of people carrying guns to Obama rallies; in at least two of those cases, the guns were loaded. Although a couple of the people were questioned briefly, there were no reports in any of the news accounts I saw of the Secret Service telling people they had to move "out of weapons range" of the president.

Apparently some types of opponents are more "threatening" than others and loving peace is more "threatening" than loving high-powered weapons.

Sources cited in links:

166.4 - Outrage of the Week: presidents get buffer zones; women don't

Outrage of the Week: presidents get buffer zones; women don't

Now for our other regular feature, it's the Outrage of the Week and yet once again, the source of the outrage is that bastion of bone-headedness, the US Supreme Court.

But this is a special week because this time it's not the foul five, the maleficent majority, that are the dimwits and doofuses, it's the whole damn lot of them.

I will tell you too, that this was delayed because I wanted to talk about it last week but the calendar demanded otherwise. So this is actually not from this past week, but it's too important to let pass.

The story begins on May 27, when the Supreme Court ruled unanimously that Secret Service agents cannot be held liable for violating the constitutional rights of protesters. They are, in essence, above the law and the Constitution.

That was the effective meaning of a decision involving a protest against then-President George Bush in 2004.

Bush was making a campaign stop in in Jacksonville, Oregon and unexpectedly decided to eat outside on the patio of the restaurant. Two groups of protesters, one pro- and one anti-, had assigned areas for protest and were in those areas. But when Bush decided to eat outside, the 200-300 anti-Bush protesters were a half-block away and could be heard where Bush was. So the Secret Service told the police to force that group two blocks away while the pro-Bush crowd could stay where it was, a block closer.

Seven of the protesters sued, claiming viewpoint discrimination. Lower courts agreed - but Johnny Roberts and the Supremes did not, saying the two agents who issued the order were immune from a lawsuit because they had good reason to move the protesters farther away.

And what was that good reason? Writing for the majority, Ruth Bader Ginsburg, whose concern for civil rights now seems to start and stop at contraception, said it was that the anti-Bush crowd was - and this is an exact quote - "within weapons range." You know, because one of them might have had an Uzi under their coat or they might have gone to the rally with a grenade in their back pocket just in case Bush might suddenly decide to eat outdoors.

Getting back to Ginsburg, she wrote that "Given that situation, the protesters cannot plausibly urge that the agents had no valid security reason to request or order their eviction."

Yes, they can. They can because, as Steven Wilker of the ACLU, who acted as attorney for the protesters, noted, this was just one of more than a dozen incidents in which the Secret Service singled out for removal from a Bush event someone expressing opposition to Bush, even if the "threat" consisted of nothing more than a slogan on a t-shirt. The Court ignored that history in order to find that the Secret Service can, without needing anything to back it up, without needing to have any articulable reason, simply assume that anyone expressing opposition to a president's policies is for that reason alone a physical threat and force them to leave the area.

So says the Supreme Court.

But what really make this outrageous, what really makes it the Outrage of the Week, is that a month later, on June 26, this same Supreme Court, this same unanimous Supreme Court, ruled that a Massachusetts law creating a 35-foot buffer zone around the entrances to abortion clinics in the state was an intolerable and unconstitutional affront to the First Amendment. For presidents, two blocks is entirely reasonable; for women, 35 feet is way too far.

Why? Because, in the words of Johnny R., "Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks." It's all about, as described by the lead plaintiff in the case, one Eleanor McCullen, "gentle and loving conversations."

Right. So how gentle and loving were the conversations that happened before this law was passed in 2007? Under an earlier law from 2000, the state established a "floating buffer zone" that barred people from approaching unwilling listeners any closer than 6 feet if they were within 18 feet of the clinic. If you think that's complicated and confusing when you try to apply it to a real-life situation, you're right.

Under that law, according to an ACLU friend-of-the-court brief, antiabortion protesters blocked entrances, surrounded arriving cars, intimidated and harassed arriving patients, and even assaulted patients and staff. Patients and their escorts were subjected to a barrage of harassment, verbal and sometimes physical, with one clinic staff member recalling how a protester pushed her into a moving car entering the facility.

Most of these incidents occurred around Boston and the Boston police found that the floating buffer zone was a failure, difficult to monitor and almost impossible to enforce.

None of that, none of that history, none of that reality, mattered to the numbskull nine.

In the Bush protest case, the decision supposedly came down to the idea that presidents must be protected at all costs, including, apparently, at the cost of the Constitution. As Roberts said during oral argument, "There are people out there who want to kill the president."

And there's no one who wants to kill people working in abortion clinics? The shootings, the firebombings, the assaults, none of this ever happened? The shouting, the screeching, the pushing, the spitting, the threats, none of that happened?

A two-block buffer zone, in effect, around the president goes without saying. A 35-foot buffer zone to protect women seeking abortions is an assault on free speech.

On top of everything else, to - in a great old saying - cap the climax, the Supreme Court has its own buffer zone, a buffer zone far larger than that afforded to protect the clients of abortion clinics: A 1949 federal law bars protests of any sort from the white marble plaza of the Supreme Court building.

In fact, until 1983, you couldn't even protest on the public sidewalk surrounding the building.

Which points up what's really going on here: This is not about protecting either the president or free speech: It's about protecting the powerful from being annoyed by the hoi polloi. That's why presidents can be shielded from seeing dissenters, that's why the Supreme Court can say "not on our turf," while women seeking a medical procedure can be forced to run a gauntlet of hatred.

It is foul, it is disgusting, it is an outrage.

Sources cited in links:

166.3 - Clown Award: American liberals

Clown Award: American liberals

This discussion of the minimum wage and its opponents now, lets us slide easily right into one of our regular features, the Clown Award, given for meritorious stupidity.

Now, I was seriously considering giving the Clown Award to the folks involved in this thing called "Rolling Coal," what one site pointedly (and accurately) called "Pollution Porn for Dudes With Pickup Trucks."

Simply put, some truck fans are spending anywhere from $500 to $5000 to pull out pollution controls and install switches that will trick the engine into thinking it needs more gas - diesel fuel - than it actually does. The fuel is incompletely burned and the excess is churned out as copious amounts of black soot.

This is being done as a matter of political and social protest against all things perceived as liberal - including hybrid cars - or as Obama: One said that the attitude is "If Obama's into the environment, then we're not." The trucks become a way of giving the environment the finger.

Which seemed really, really stupid. But then it occurred to me that these folks are spending money, sometimes thousands of dollars, to make their trucks run less efficiently, to make them waste gas - and thus even more money. And I realized that this does not even rise to the level of stupidity. This is not stupid, this is moronic. So that got put aside.

Instead, following on our discussion about opposition to raising the minimum wage, the Big Red Nose this weeks goes to - significant numbers of American liberals.

The Pew Research Center is doing a massive survey of American politics. As part of that, they have divided the populace into seven typology groups, ranging from "steadfast conservatives" to "solid liberals" but with shades of meaning and attitudes between.

One of the attitudes considered in establishing these typologies was about poverty. And the results are astonishing and disturbing.

First off, four-fifths of the typologies considered conservative think that poor people have it easy, that they have an easy life, that they can just live off government bennies without having to do anything.

But notice something else, and this is what I find important: Significant parts of the typologies considered "liberal" agree with that. Even 6% of the "solid liberals," the most liberal, the most "left" of all the typologies, agree. It's not just the right wing saying this.

When you ask why people are poor, it's the same: Most conservatives say it's "lack of effort," but so do significant numbers of liberals, even some among the most hard-core. If you're poor, it's your own damn fault, you lazy bum.

So overall, on the question of do the poor have hard lives or easy lives, there is nearly an even break. Nearly half of the people in this country think that poor people have easy lives.

How can anyone think that? How can anyone rationally argue that?

Christopher Ingraham of the Washington Post's "Wonkblog" offered a quick and abbreviated list of how easy the life of the poor is:

- Compared to middle and upper-income Americans, the poor are three times less likely to have health insurance, and so more likely to put off or skip necessary medical treatment.
- They are three times more likely to be victimized by crime.
- The daily stresses of living in poverty actually impair mental function to a degree equivalent to losing 13 IQ points.
- Poor children are three times more likely to be affected by food scarcity and obesity;
- Poor children receive a lower quality education in public school, and the ones who make it to college are more likely to drop out;
- Poorer Americans breathe dirtier air, they sleep less, they even have less sex;
- Their life expectancy is somewhere around 15 to nearly 20 years less than that of more affluent Americans.

[Links to his supporting data can be found at the site]

Someone else put it this way, and I'm going to quote this:
Being poor. It means stretching a dollar to be sure that your children can eat every day. It means deciding whether you can skip a car payment or a mortgage payment this month, because one more missed electricity bill will get the power turned off. It means ignoring the pain in your chest because even if you have insurance you can’t cover the deductible for the doctor’s visit, or skipping your medication because the copay is just a little too much. It’s trying to decide between buying a shirt without a hole for a job interview or having the gas you need just to get to it.
Several years ago, I came across a website that was having people post what being poor meant to them - that is, based on their own personal experience, what symbolized, what summed up, the experience? Unhappily, I can't find it now; I found another one, but not that one; perhaps it's no longer there. But I do remember my answer. I'm not poor; I'm not affluent, but I'm not poor. Barring some serious medical disaster, my wife and I will be fine. But I grew up poor, and I remember. My answer was that being poor was having a phone but always being afraid to answer it because it was another bill collector. More recently, at a time things were harder for us than they are now, it meant seeing the dismissive condescension in the attitude of the person who was supposed to be helping us but was irritated because I objected to being ignored for some minutes by the receptionist - irritated, that is, because I apparently did not know my place as a supplicant.

Being poor is facing every day a hundred limitations on what you would want to provide for your family, your spouse, your children; it's facing every day a hundred barriers, some little but some not, to a better life; it's being subjected every day to the judgments, the looks, the questioning eyes that see you as lazy or shiftless, the eyes that see you as a failure, as a leech, no matter how many hours or how hard you may actually be working.

Our classism, our contempt for the poor no matter their race, is another of the afflictions we suffer from as a people.

We would expect the right wing to embrace this economic bigotry, we would expect them to follow the lead of the powerful self-serving elements of our society; that, after all, is what conservatives do.

But it's not just the right; significant numbers of liberals, those who proudly, even arrogantly, declared they constitute the "reality-based community," even some among the "solid liberals," the most liberal of the liberals, share in that bigotry. You are the ones we could expect, we should expect, to know better. But too many of you don't.

And that makes those of you won't don't thoroughgoing clowns.

Sources cited in links:

[And something I will add here for anyone hung up on such trivia, this is the 5000th post here at Lotus - Surviving a Dark Time. My very first post was on November 13, 2003. I shut it down in late November 2005 only to "succumb to the addition" in February 2007 and for a few months past seven years now I have managed to have something up on a reasonably regular basis. Now I will sit back and wait for the praise and plaudits to flow in.]
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