What's Next for the Select Committee?

 We have been on a journey from election night and the big lie to attempts to switch electors to corrupting the DOJ to put more pressure on the states to Mike Pence to what was happening at the White House, before, during and after the Insurrection.

There are only three places left to go. The Willard, the House Leadership and the Senate. We know the facts already, the question is taking official notice. DOJ is already working, so all roads from here on out lead to the Ethics Committees.

There is only one way for the GOP to stop the bleeding. Those who were involved in leading from their Hill offices need to quit before they are fired, with contrition by those who voted with them. Barring that, July will not be a good month for the GOP. Let go or be dragged.

What did McCarthy know and when did he know it?

What did Kevin McCarthy know about Trump's plan to go to the Capitol and when did he know it. Was Scott Perry gong rogue with Rudy or was he reporting back? Do you believe that Kevin was not on top of all of the planning? Was everyone going behind his back on January 6th?

Call from McCarthy to Meadows to have Trump not come sounds as much like cancelling a plan as reacting to a speech. It is urgent that we know the answer - and ASK THE QUESTION.

This is more important than salacious talk about ketchup on the wall.

Rehear Dobbs and blame Alito and his ordering of liberty

The opinion of the Court in Dobbs relies on the morality of abortion and the term "ordered liberty." The question is on the meaning of that term.  In short, how is liberty to be ordered? Who orders it?  At heart, the argument of Dobbs and the pro-life movement relies on the presumption that ordered liberty comes from God and, because they believe abortion is immoral, that the right to abortion cannot be divinely sanctioned so cannot be considered a right. 

Justice Alito does not go into the concept of how liberty should be ordered or who ordered it, so his bias is either unconscious or unstated. The argument for rehearing should explore that point and seek rehearing based on this issue. This demand probably has to wait until the majority on the Court has changed, but the age of Justice Thomas and his possible difficulties related to January 6th may have that shift be sooner than later.

Justice Barrett certainly holds the same bias. In her case, the argument needs to be made that, should she again be pregnant, it may be under a circumstance where such pregnancies are regulated and their loss investigated by the civil authorities. Raising that question, which was silent in the arguments of the Respondent, is also of vital importance.

Conservative women do not believe that the right of abortion is God given, so they do not stand with their sisters against the Government. They have been given no reason too. They do not believe that they are losing a right because it has not been made clear to them that such a right limits government overreach. We shall soon see state governments overreaching and, when they do, the point of abortion as a right against such action (rather than as a divinely ordered right) will become clear to them.

Don't blame Alito

If you read my last two posts, you won't be blamed for having whiplash, but hear me out.

Glenn Kirchner has hinted that Kavanaugh, Gorsuch and the rest for lying to Congress. They did not. They always said that they would consider the case before them. They did that.

Was the Dobbs incorrectly decided? Technically no. Alito was wrong on state power, but the argument did not say why. 

The answer is history, specifically because the state power approach did not go so well when the issues were slavery and civil rights. The slavery part should be obvious. The civil rights part has to do with Plessy. 

The theory of the case in Plessy was that the states are the best venue for determining whether they were adhering to the 14th Amendment. This is wrong on its face, but it was clearly stated in the opinion of the Court in Plessy. I said as much a year ago.

The sad irony is that Alito used the repeal of Plessy to, in effect, restore Plessy. No one argued that point.

The second error was not admitting that Congress had the power to enforce the 14th Amendment, which must include changing the viability standard (recognizing personhood earlier). 

This should have been the argument in Gonzalez v. Carhart, which would have led to seating the right to ban partial birth abortion in a better place than the Commerce clause. This approach forecloses state action as well.

Congress can also, as an inherent power, change the terms of citizenship. States cannot.

The third error was arguing the case on the basis of women's rights. While that is affirming, it was never a good idea. The better approaches would have been to concede that viability is the correct legal standard because it is the ability to be born - making the unborn a seat of rights as if they were already born. This concedes assisted viability as well (although there is never a requirement that the assist be provided).

This approach pretty much gives up the right to late term abortion by any other method save induction. Induction has to be allowed because no one has a right not be born.  This also allows for fetal hospice (and the baptism of the child).

The last error by counsel was to not concede that the unborn may have rights, but having Congress recognize them is problematic. This dilutes the women's rights message, which needed to be diluted.

Instead, make arguments as to why legal admission of personhood is problematic. States would like to simply regulate doctors and not bother mothers. They want to shut down clinics, especially Planned Parenthood. Actually recognizing the fetus as a person (which they say they believe in, but won't do) has consequences for all pregnancies. It should.

If abortion is between a woman and her doctor, with no child as a seat of rights, abortion must be treated as a medical procedure and not a homicide. Recognizing, as Alito does, the potential right to life while not enforcing abortion as homicide is an attempt by the right to life movement to have their  cake and eat it too. 

A federal abortion ban will not happen if it means actually recognizing pregnancies as people. Pregnancies, like births, would have to be registered. All of them. Pregnancy losses would have to be investigated, all of them. Voluntary termination would have to be treated as homicide, so women would have to be prosecuted. 

All of these things impact all women of childbearing age. The key to stopping authoritarianism is making sure everyone feels the pain. If it is only the "other," the government can get away with all kinds of abuses. 

Pointing out why letting them call the unborn a human being but not treating it like one removed the argument against government overreach. It should have been made. It can still be made state by state. Forcing all women to face the abortion police makes having abortion police untenable and shows why regulating it fails on due process grounds. That would have gotten Roberts, and possibly Gorsuch and/or Barrett. Do the math.

Arguments that should have been made were not. Had they been made, they would have shown up in the dissent. This might be enough to get rehearing when Thomas leaves the Court due to death or his wife using their money for Insurrection. Scalito is also getting old. As the dissent said, the reason for the decision was changes to the majority. Some things change back, sometimes sooner than we think.

Getting a rehearing is easy. Perform an illegal abortion and use the above reasons to get an appeal. Instant standing.

This kind of standing could have been used in the case of the Texas heartbeat law. Good thing it was not. The 3rd party enforcement tool with bounties for reporting is not novel. It is used to catch tax cheats and polluters all of the time. Repealing this approach in these areas is on the libertarian bucket list. Let us not win the battle and lose the war.

The child tax credit and the question of sex

The majority in Dobbs denies that abortion regulation is not a women's rights issue to the extent that heightened scrutiny is required in considering it. This assertion demands deliberate ignorance. There are many in the anti-abortion movement who would not let women be responsible for the decision to end their pregnancy who would make every decision to have sex (while denying the right to birth control) the decision to procreate. In other words, their answer to the question of choice is the question of whether or not to have sex. 

The contention is logical, which is why it is wrong. If the majority interests in the legislature feel free to judge every sex act, which is the implication of this decision, then they must concede that their idea of well-ordered liberty is more about order than liberty.

To be truly pro-life, one must support, as a matter of right, the adequacy and refundability of the child tax credit and its delivery with wages (rather than as an end-of-the-year bonus). Further, it must provide for an adequate minimum wage so that no family is simply subsisting on the benefits of their children. Those who cannot work must be given some form of minimum income, either due to some manner of physical or mental disability or to be paid their opportunity costs in pursuing education and training. 

In a modern technological society where its basic needs can be met with fewer and fewer labor hours, the work week must either be shortened or some level of basic income (exclusive of the child tax credit) must be paid. 

To not adequate support workers, students and their families is to turn low wage work into slavery. To not grant a guaranteed income is to turn well-ordered liberty into the majority penalizing the sin of sloth. 

Regulating abortion without also providing for adequate individual and family income is not pro-child, it is anti-sex. While there are some, including many devout churchmen, that have no problem with this implication, I invite them to own it publicly and not hide behind a belief in the rights of the unborn. To be pro-child, one must be sex positive. Build Back Better!

The plight of Down's Syndrome families best illustrates this issue. Parents regrettably abort children found to have this disorder because they fear, not only for themselves in raising the child, but for their children after they survive them. Respite care for parents of Down's Children (like assistance to pregnant women) is the easy part. 

The hard part is guaranteeing the long-term welfare of the child. This would require much higher unearned disability benefits. Supplemental Security Income is simply inadequate for Down's victims to achieve a decent existence absent low wage labor that is hardly affirming. 

For this reason, all disability income must be adequate, especially when it is "unearned" by working 40 quarters. Such benefits should be adequate to not require wading into the maze of public assistance programs available today, especially when obtaining and maintaining benefits require strict compliance with documentation standards (Thanks alot, Bill). Since the reform of welfare, such requirements are best called punitive. It is no wonder that parents see abortion as a better alternative for Down's  children than a life of poverty at the whims of public assistance agencies.

Dobbs v Jackson

Justice Alito claims that states should have the power to make moral choices for its citizens. He has missed the point of privacy. Abortion is one of those issues where the question is how invested one is in bacon and eggs for breakfast. Those who have a moral view on abortion are the chicken. Those whose morals are being challenged by the state are more invested, like the pig.

Alito argues that the states must be given the power to decide this issue. The States have historically done a bad job of this, which is why we have the 14th Amendment. The argument for letting states decide on abortion rights is akin to letting the states decide about slavery or the question of who is and who is not a citizen under the law after slavery was defeated, with that defeat settled on Juneteenth by the Union Army. Alito makes the mistake of the Confederacy. He also cites the rejection of Plessy while adopting the state power logic which is the theory of the case. The irony is thick.

Time and again, states acting as moral centers have made the wrong choice. Indeed, surveys on American attitudes about the rights of their neighbors consistently show that no one would have rights if they were voted on. This is the whole point of having rights that legislation cannot challenge, as legislators are usually the well of the combined moral biases of the voters. As such, Justice Alito's moral argument is entirely unconvincing and off base.

Justice Alito would include in his analysis the interests of the child. It is a legitimate question, but it is the province of Congress, not the states, to make this determination. They are now likely to do so, although this will be next year, as between this decision and the Insurrection, the Republicans have less of a chance of recapturing the majority, or even existing, than they did one week ago today.

The Justice does not understand viability as a standard, although Justice Brennan hints at it in Chapter IX of Roe. The 14th Amendment is explicit, that rights of the unborn start at birth, or with viability, the ability to be born.

Justice Alito ignores the central question of rights, which is the power of the States. Calling pre-viability children a seat of rights has implications on how abortion must be regulated. As his examples indicate, if the fetus (or little person) is recognized as the seat of rights then abortion cannot be regulated as a right or a medical procedure. 

The role of government in enforcing these rights must be implicated. Can the mother be held harmless in arranging for an abortion. The pro-life authorities who have written since the passage of Roe indicate she need not be. That is not how rights work. Unless all contract killings hold the contract issuer harmless, the government may not do so with women. 

If the child is a person, then the loss of life must trigger medical and criminal review. This implies that pregnancies must be registered, as births are now and that women who have lost a pregnancy are subject to questioning, less the claim of a natural miscarriage is hiding an illegal abortion. That such questioning can occur shocks the conscience to the same extent that abortion does. 

While the anti-abortion side insists that prosecutorial discretion will keep this from happening, the American experience show that time and time again, politically ambitious prosecutors cannot be trusted in these matters. It is not hard to imagine a prosecutor seeking conservative votes getting tough on women who have had abortions. The reason that abortion must be seen as a right is to remove the possibility of such misused discretion.

The 20 week milestone is more appropriate than reversal of Roe, because the risk of miscarriage is virtually zero after that point. After this point, should termination of pregnancy be necessary, that termination can only be by induction rather than one of the more gruesome methods. The exceptions to the 20 week milestone would be the province of Congress, not the states.

In a way, the unborn already have certain rights. The right to life is not the right to not be murdered. It is the right to not be executed without due process of law. The government protects this right of the unborn by not executing women who may be or are found to be pregnant. The Federal Unborn Victims of Violence Act concedes an exception for abortion while recognizing the rights of the child against those who would harm its mother. 

The question to be considered, then, is whether the child has a claim on rights against the rights of it mother. The opinion does not address this question, although it is essential. Likewise this question was not argued in this case. It will be argued when the case is reheard once Justice Thomas is no longer on the Court. This may occur sooner than later, as the author of the concurring opinion (Chief Roberts)  is more likely than not to accept the logic presented here. The whole point of stare decisis is so such things to not happen. Justice Alito has lit the fuse for the reconsideration of his own ruling.

Funding Catholic schools: Carson v. Makin (20-1088)

Another Supreme Court case on funding religious (read Catholic) schools has dropped. I am not surprised, as this case comports with Espinoza v. Montana and the Trinity Lutheran case. From the Court's website:

Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school of their own violates the Free Exercise Clause of the First Amendment.

In her dissent, Justice Kagan asks how far the Court will go on this issue. 

The answer depends on how aggressively parochial schools seek public funds and then sue to get them. I expect that they will. Their argument would be stronger if they unionized and ignored how the NEA favors abortion rights.Resistance to funding parochial schools is a nasty legacy of anti-Catholic (anti-papist) discrimination. That discrimination has moved from the right to the left. It was and is wrong in both cases. The question of right to work is its own issue.

The Church should not have the freedom to deny unions. That would be caving into religious power rather than free exercise. This is the ground that needs to be taken to limit autocracy in the public square.

Arguing between free exercise and the establishment clause was meant to be difficult. It need not be. The Church should not be denied what it would do in the public square if it is practiced by others. By the same token, it should not have immunity from complying with rules vis-a-vis their employees, clients and parishioners as an exercise of religious power over them. Until this becomes the line, these cases will be contentious.

Ukraine at Midsummer

Ukraine is still at war, which is a Midsummer Night's Nightmare. It now faces some decisions, as do Putin and the NATO alliance. This entry outlines them. For a more complete discussion, see this morning's YouTube video. 

Ukraine has two choices: 

1. Accept current borders

2. Invade Russia.

Russia has two choices:

1. Accept the status quo, let the West rebuild Ukraine with NATO protection and eventual membership.

2. Be invaded and lose.

The West has two options:

1. Assist in the invasion of Russia

2. Let Ukraine know that invasion is a bridge too far.

We could have had a Russian sector, no damage to Ukraine and Ukraine in NATO before a shot was fired if you had listened then. Beatings will continue until morale improves.

Can anyone see any other set of realities? If so, comment. Please share this video with your favorite foreign secretary, international brigade, ambassador, government or dictator and the State Department.

Ideas to get the guns by thinking like a capitalist

Joe Biden wants to reduce the availability of firearms. Here is how.  Some of these things do not even involve Congress. States can do this too. Rich people can do,. You can even create a 501(c)(3) to continually practice harassment capitalism.

1. Change the DFAR (Defense Federal Acquisition Regulations) to require that those who sell guns to the U.S. military be debarred from doing so if they sell to the public. Do the same for ammo.

2. Buy guns. Show up with at gun shows and gun stores and buy up all of the handguns and ammunition for them. Every bullet. The beauty of this is that cities like Washington, DC and Chicago can do this in neighboring jurisdictions. 

3. If they keep doing this, the price of ammo will go up. If supply goes up (and it might), stop buying it so that the ammo makers and gun shops are suck with such huge supplies that they either must close or dump the supply - which should then be bought up.

4. Buy up and control the market of key components of both guns and ammo. By key components, I mean items or chemicals that are necessary and, if absent, stop production. if you can corner the market, guns and ammo go away. 

5. This applies to equipment to make guns as well. Find that part that is essential to the production process that is not readily available and buy the company that makes it. Stop selling the part. Here is the list (I did not say it would be easy). https://www.americanfirearms.org/manufacturers/

6. Pass a law restricting the purchase of ammo that can be used for hunting to the agencies that issue hunting licenses. Sell only enough for hunters and only in season.

7. Make it really hard to be a licensed gun dealer - especially at gun shows.

8. Buy gun stores. Buy the buildings or the land if you can't buy the business. Close the stores.

9. Set up a red flag registry for behavioral health patients to permanently put themselves on when they are adequately treated, so that when they are not well, they can't go off the list.

The Republcan Farce of Donald the Dunce

June dawns with the hearings into the Capitol Insurrection. The accepted narrative by our Greek Chorus in the media was that, somehow, our democracy was in danger.

It was not. There is no suspense in the story. It was only a low grade horror film.  It could have gone worse (and praise God it did not), if there had been a congressional sacrifice, but as in every morality play, the anti-hero could never triumph.

There was never any doubt that the rule of law would overcome the clown show. No Court would have anointed the anti-hero as victor, nor would any of the off scene players - the permanent government and the military - have bent to the whims of the clown.

The rule of law and democracy were never in danger. The anti-hero's chief minions were all deployed on that day and are now pathetically in hiding or in the squalor which is D.C. Jail - the perfect place for them. The army of malignant clowns, in thrall to their clown in chief, had no hope of triumph.

If this were staged on broadway, the Trump character would have ended the show by depositing a fetid turd on the stage, thus ending the show.

As Trump's atonal chorus at Fox and in the Congress continues their shrieking, there will be the inevitable punishment of the guilty - including and especially those members of Congress who, for the life of them, cannot take the hint to leave the stage. There is no doubt that they will soon get the hook. 

Unless the Democrats and media speak truth on this issue - that this show was farce and not tragedy, they will look as silly as our anti-hero. The audience will notice.