In his first week in office, President Trump has issued executive orders and taken other actions with significant implications for the legal community.
The last several days have clarified why I’m happy to be an old guy – I won’t be around to see the destruction of the country that has been so good to me.
I’m a “birthright” citizen. My parents emigrated from Canada just before WWII, and I was born before they became naturalized citizens. I was fortunate to contribute to and benefit from what historians will likely view as the apogee of innovation in the United States.
We did the impossible, putting a man on the moon in less than ten years, start to finish. We made incredible advances in medicine, some of which are why I’m alive today. I have more computing power in my Apple watch than was present on the first mainframe I programmed, and we made the Dick Tracy wrist radio a reality. Even when I was in college, no one envisioned the reach of the Internet, for better or worse.
What I fail to understand is why your fellow lawyers are so eager to destroy the country that gave them the opportunity to succeed…and to speak freely.
This isn’t about Trump. He’s the shill, the carny barker. He’s too stupid to realize how he’s being used. The real culprits are behind the scenes.
Your fellow lawyers polished and promoted the careers of the Supreme Court justices who abandoned stare decisis, the foundation principle of common law, and blithely extended the legal convenience that “corporations are people” to enable the wealthy to purchase control of our government.
Your fellow lawyers are the authors of every foolish executive order Trump has issued, some of which may have disastrous consequences for our country.
Don’t be surprised when the puppet masters order Trump to ignore the law. And don’t be surprised when Trump anoints the Proud Boys with police powers; they’ll happily wear jackboots.
I’m in the same boat as you: the child of immigrants who didn’t have green cards and were not yet naturalized at the time of my birth. So I would also not be a citizen under this order.
Does it seem to you that the purported analysis of the Trump administration regarding who can or cannot be a citizen (and specifically invoking "jurisdiction") is remarkably reminiscent of the purported analysis of jurisdiction and citizenship in Dred Scott v. Sandford, 60 U.S. 393 (1857)? It sure seems so to me.
This issue in Dred Scott was "whether the descendants of" people who entered the U.S. in a particular manner "are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States." Id. at 403. If they are not citizens (because of the particular manner in which one or both parents entered the U.S.), then they cannot "show" that they are "within the jurisdiction of [any federal] court" in a case that, by definition, must be between "citizens of different States." Id. at 402.
Promptly thereafter (promptly after the nation finished fighting the Civil War precipitated, in part, by the conduct of SCOTUS justices in Dred Scott), our Constitution was amended specifically to emphatically dispose of the issues regarding jurisdiction raised in Dred Scott. The Fourteenth Amendment was a brutal slap in the face and smackdown by Congress and the People of the SCOTUS justices responsible for the dreadful so-called judgment and opinions in Dred Scott:
"All persons born [ ] in the United States" are (as a result of such birth) "subject to the jurisdiction thereof" and "are citizens of the United States and of the State wherein they reside." As a result, "No State" has any power to "make or enforce any law" that "abridge[s any] privileges or immunities of [such] citizens of the United States; nor" does "any State" have any power to "deny to any person [regardless of citizenship, color, creed or sex] within its jurisdiction the equal protection of the laws."
Basic literacy contradicts your statement that offspring of persons "not yet naturalized at the time of my birth" would be denied political power under the Executive Order. Why not click the link for the EO that David provided and read the two specified categories of born persons who are not entitled to political power as a birthright. Were your parents illegal aliens, or "tourists" or on "student visa" when they were "not yet naturalized at the time of my birth"???
Roger, I like a lot of what you wrote, but there is one crucial exception: "stare decisis" may be as you wrote "the foundation principle of common law." But old opinions by judges manifestly are not "the foundation principle" of our Constitution. Our Constitution was written by (mostly) lawyers to remedy the egregious abuses of power by judges and the people they supported (kings and nobles). Stare decisis must be one of the most absurd doctrines that judges abuse to justify violating our Constitution.
When the people amend our Constitution, the most recent amendment governs. When legislators create law, the most recent law governs. That's common sense. But for some bizarre reason, we pretend that the first lawyers and judge(s) to write about a legal issue should influence (or even control) instead of the more recent--and better--analysis of later lawyers and judges. How does that make sense? Stare decisis is responsible for extreme and extremely egregious abuses of power and people. Stare decisis perpetuates the vestiges of vicious abuses of power (including slavery) to this very day.
Stare decisis is the primary reason that judicial opinions are pathetically weakly reasoned. Judicial judgments that are extremely strongly supported by our Constitution (e.g., Roe and Casey) were thrown out by SCOTUS justices because Roe and Casey were weakly supported by lawyers and judges. But the reasoning of the majority in Dobbs was as pathetically weak as that of the majority in Roe. Dobbs may be supported by stare decisis, but it clearly violated our Constitution in multiple obvious respects.
Can't entirely disagree, but stare decisis had the very real value of making the law predictable.
Alito's opinion in Dobbs is simply dishonest. Using the lack of historical documentation from a period when women were second-class citizens to return them to second-class citizenship is absurd. Worse, Alito used as one justification the self-published writings of an obscure author who openly expressed hatred for women. Alito ignored the far better known, 300 years later, Jonathon Swift essay, "A Modest Proposal," whose very premise would have been senseless if abortion weren't a common procedure.
Did stare decisis serve the purpose of making the law predictable? Consider this obvious example. The SCOTUS majority in Dobbs literally and blatantly lied about the Ninth Amendment, and they pretended that their lie was supported by a prior decision. The majority in Dobbs (twice) knowingly misrepresented that the Ninth Amendment stated a mere "reservation of rights to the people," and (adding insult to injury) they even cited Roe as purported precedent for that falsehood.
After the Dobbs majority blatantly lied about the meaning of the Ninth Amendment, they blatantly violated it. They focused myopically on the obviously irrelevant fact that “[t]he Constitution makes no express reference to a right to obtain an abortion," and they pretended (misrepresented) that "therefore those who claim that [our Constitution] protects [any] right [at issue] must show that the right is somehow implicit in the constitutional text.”
The misrepresentation of law and violation of law by the Dobbs majority was clearly barred by the plain text and plain meaning the People in the Ninth and Tenth Amendments. In a single sentence, the People used the Ninth Amendment to command that “[t]he enumeration in the Constitution" of any "rights, shall not be construed to deny or [even] disparage others retained by the people.”
The Ninth Amendment clearly was not merely a "reservation of rights." It expressly and emphatically commanded judges not to do exactly what the Dobbs majority did, i.e., not construe our Constitution "to deny or [even] disparage" any right "retained by the people" on the grounds that a right was not expressly included in any "enumeration in the Constitution." That command was clearly directed especially at judges whose duty is to construe the law (say what the law is).
The Dobbs majority used the foregoing lie about the law and violation of our Constitution to pretend to justify shifting the crucial burden of proof--from the government (when it infringed on rights) onto citizens (asserting rights). Their conduct also was contrary to the plain text and plain purpose of the Tenth Amendment. SCOTUS has only limited powers, and it must prove that it was given the power to do what it did.
Article VI requires every public servant to support our Constitution. The SCOTUS majority in Dobbs (and the state legislators they empowered) did exactly the opposite. They viciously and maliciously undermined our Constitution to support their own religious views.
" Supreme Court justices who abandoned stare decisis, the foundation principle of common law". The "common law" rule for Abortion was that legal personhood attached to an unborn person upon first motion "quickening". The Supreme Court could have decided that state laws permitting abortion all violate Equal Protection Rights of "Unborn" "Persons". Such as the current statute in New York, where a baby that as being born and whose head has crowned through his mother's vagina and is visible, can be shot dead or cut in half by the "doctor" or "midwife" if s/he deems it advisable to kill the baby (without the mother's consent), and such killing is not deemed a "crime" since the 2019 New York statute. That New York statute could easily be deemed to violate Equal Protection rights of the currently-being-born people.
P.S. “corporations are people” The DNC is a "corporation" that spends money to influence elections and "to enable the wealthy to purchase control of our government." If a group of middle income people pool their money and built a car factory, and they profit from their industry, why should those productive people be banned from using some of that money to use speech to influence others in elections? Do you want to pass a general law that ordains that wealthy people cannot use their own money to promote their views? If you are unwilling to enact such a general law, you have no logical basis to complain about Citizens United decision.
Currently, corporations are people. With GenAI, it may be possible to have a one-man corporation populated only by Artificial Intelligence "Agents"..
What is the actual language that you're talking about in a NY statute that provides that "where a baby that as being born" and its "head" is partially "visible," it "can be shot dead or cut in half by the 'doctor' or 'midwife' if s/he deems it advisable to kill the baby (without the mother's consent)"?
If "corporations are people," then why not "people are corporations"? On that basis, I could deduct from my taxes the depreciation of my home, the expense of commuting to work, the wages and taxes I pay for a gardener, etc. [Elon Musk is happily bragging that he spent over a quarter of a billion dollars to get Trump elected. You can bet that every dime is a deductible expense for one of his many corporations. I can't even deduct the measly $100 I contributed to one of the campaigns.]
I very much appreciate your perspective here, David, but I’m puzzled as to why the January 6 pardons have “Top 5” significance to the legal community. Clemency, sentence commuting, and indictment dismissals seem to be fairly bread and butter of the executive privilege.
It’s obviously your platform and your call about what constitutes significance. And while certainly significant to the defendants and their legal teams, as well as the prosecuting attorneys, I don’t see broad applicability to the legal community for this action. Unless it’s just a numbers game? Significance = interest (aka clickbait)? What am I missing?
Personally I think President Biden’s last minute “pardons without a crime” present much more interesting fodder for legal debate. They raised important issues for lawyers to work out, such as what fundamentally constitutes a pardon by definition? Does it require a specifically referenced crime, as historic precedence seems to infer? Does the existence of a pardon necessarily estop investigation, or just prosecution? And would those pardons stand up in court if any crimes are discovered to have been committed by the recipients?
Politically charged questions, for sure. But also important legal ones that could have long term significance for the practice of criminal law.
I personally don’t have much interesting to say about pardons. They lie in this limbo between politics and law, and I try to stick to legal commentary; unlike many other legal journalists, I do not aspire to political punditry. (I did it for a few months at Wonkette, and I was not good at it.)
Biden's pardons of his family members referred to a limitation to "nonviolent" federal offenses. So, they certainly can be "investigated and prosecuted" for crimes outside the purported scope of the pardons.
As for your question about "investigation", an investigation could lead to "accomplices" who were not pardoned. The pardon would deprive the principal offender of a 5th Amendment Privilege against SelfIncrimination. So the Pardons actually invite and facilitate "investigations".
David, Because you invited us to comment on the pardons, let me add my thoughts on why I have not been in the least bit upset about Trump pardoning the Jan. 6 rioters.
Reason #1: I will acknowledge that I do see the events of that day differently than how the mainstream media would like to project things. To me, it was a fancy dress competition. I mean look at this image from the day (https://media-cldnry.s-nbcnews.com/image/upload/rockcms/2024-07/240712-Jacob-Chansley-QAnon-Shaman-ew-543p-821545.jpg) and tell me how it was NOT a fancy dress competition? Relatedly, it is more than likely that a majority of the individuals - if not everyone of those out protesting that day at the Capitol were gun owners. I ask - if January 6th was a violent insurrection (as Jack Smith would like to call it) - where were the guns on that day? Not one police officer died as a result of gun fire. In fact, it is debatable how many police officers and law enforcement personnel died in the first place AS A RESULT OF JANUARY 6TH. Here's an excerpt from The New York Times:
"Officer Brian D. Sicknick of the Capitol Police, who was attacked by the mob, died on Jan. 7. Officer Jeffrey Smith of the Metropolitan Police Department killed himself after the attack. Officer Howard S. Liebengood of the Capitol Police also died by suicide four days afterward. The Capitol Police had previously said that Officer Sicknick died from injuries sustained “while physically engaging with protesters.” The Washington medical examiner later ruled that he had died of natural causes: multiple strokes that occurred hours after Officer Sicknick’s confrontation with the mob. The medical examiner added, however, that “all that transpired played a role in his condition.” The police agencies have not classified the four total suicides as “line of duty” deaths that would provide the victims’ families with enhanced benefits. Washington law excludes suicide deaths from the line-of-duty designation."
So yes I surely see January 6th differently than many of your readers (or readers of The New York Times) who are perpetually outraged/ hysterical by anything the right does.
Reason #2: Roughly around the time that Jan. 6 happened, we also saw protests from the Black Lives Matter movement. That movement resulted in destruction of property worth billions of dollars, some deaths, and immense misery to ordinary citizens who happened to live in cities like Seattle and Portland. What actions were taken against those protestors? Very little and in fact, those protestors were egged on by the left and the same folks who asked for social distancing all through 2020 suddenly turned coy when BLM protestors were congregating at close quarters. A two-tiered justice system where protestors in favor of a popular cause go unpunished while the system comes out with all its fury against protestors of a different ilk is fundamentally unjust and unfair and I believe such is the case here. I also suspect that is how many of the 77 million Americans who voted for President Trump feel if they couldn't precisely articulate their feelings into words in the manner I have done here.
Lastly, I left my best and most important reason, reason #3, for the end. Candidate Trump repeatedly telegraphed his intentions during his campaign that he would pardon the January 6th rioters. In contrast, President Biden kept saying that he would not pardon his son. That was an unconditional statement. He never said that he would pardon his son if Trump won; he simply said - *no* *pardon* *under* *any* *circumstance*. Here is the exact quote:
"I'm extremely proud of my son, Hunter," Mr. Biden said. "He has overcome an addiction. He's one of the brightest, most decent men I know. And I am satisfied that I'm not gonna do anything. I said I abide by the jury decision. I will do that. And I will not pardon him."
After the formal news conference concluded, a reporter asked the president if he will commute his son's sentence.
And btw, Press Secretary, Karine Jean-Pierre repeatedly said that same thing from her perch:
"I've answered this question before. It was asked of me not too long ago, a couple of weeks ago, and I was very clear, and I said no,” she said, referring to previous comments from the podium.
So Candidate Trump repeatedly telegraphed his intentions that he would pardon the Jan. 6th rioters if elected, Biden (and his Press Secretary) categorically and repeatedly said that he would not pardon Hunter Biden and then people went to the voting booth and voted as they did. Under the circumstances I would say that the pardons issued for the Jan. 6th rioters had democratic legitimacy whereas the pardons issued by President Biden hand over fist in his last few days in office, especially of his son but also of his extended family members, completely lacked democratic legitimacy and represent a fraud on the American public.
So yes, in every respect, given those three reasons, I I am cool with the pardons of the Jan. 6th rioters. (FWIW, I wrote in Nikki Haley on my Presidential ballot while being a voter in the most important battleground state of Pennsylvania, so it is safe to say that I am no Trump-acolyte. But yes, I refuse to think like the mainstream media would like us to. They are nothing but hypocrites and courtiers for the Democratic party as opposed to somehow being neutral arbiters of truth.)
A friend insists that one of the J 6'ers pardoned actually defecated on Nancy Pelosi's desk. He cannot document this but insists that he read that in at least two news articles. Is any of that true?
Brothers and Sisters, Believers of the One True Faith, today we stand at Ground Zero, not as a place of sorrow, but as the birthing ground of a new America. Here, at this site, once defiled by infidels, we dedicate the Monument to our Islamic Martyrs. They are not dead, they live in the glory of their sacrifice.
This monument is not just stone and metal, it is the foundation of our future. It is a beacon for our pregnant women, who will now be required to come here, to Ground Zero, during the ninth month of their blessed pregnancies. Here, on this sacred ground, they will deliver the next generation of diverse American citizens to Rule the Saqaliba under Holy Shariah Law. We declare that this site is not a place of mourning, but a place of creation, a testament to the triumph of Islam and the growing power of our 1.5 Billion Ummah.
The cries of our martyrs will be replaced by the cries of our babies, the sounds of victory. Let the infidels tremble at the sight of our strength. This is our holy land, and we will populate it with One Billion children of our faith, the future leaders of a truly Islamic States of America.
And, Insha Allah, we will soon open the first slave market for the Saqaliba and Abeed of America, where the wealth and labor of the unbelievers shall serve our noble cause.
أيها الإخوة والأخوات، يا مؤمنين بالدين الحق الواحد، نقف اليوم في جراوند زيرو، ليس كمكان للحزن، بل كمهد ولادة لأمريكا جديدة. هنا، في هذا الموقع الذي دنسته الكفار، نكرس نصبًا تذكاريًا لشهداء الإسلام. إنهم ليسوا أمواتًا، بل يحيون في مجد تضحياتهم.
هذا النصب ليس مجرد حجر ومعدن، إنه أساس مستقبلنا. إنه منارة لنسائنا الحوامل، اللاتي سيُطلب منهن الآن الحضور إلى هنا، إلى جراوند زيرو، خلال الشهر التاسع من حملهن المبارك. هنا، على هذه الأرض المقدسة، سيضعن الجيل القادم من المواطنين الأمريكيين المتنوعين. نعلن أن هذا الموقع ليس مكانًا للعزاء، بل مكانًا للخلق، وشهادة على انتصار الإسلام والقوة المتنامية لأمتنا.
سيحل صراخ أطفالنا محل صرخات شهدائنا، أصوات النصر. لترتعد الكفار من رؤية قوتنا. هذه أرضنا المقدسة، وسوف نملأها بأطفال إيماننا، والقادة المستقبليين لأمريكا إسلامية حقيقية.
وإن شاء الله، سنفتتح قريباً أول سوق للعبيد من الصقالبة والعبيد في أمريكا، حيث ستخدم ثروة وعمل الكفار قضيتنا النبيلة.
This was an informative article, containing a lot of facts about current events and some insights as to probable future consequences. I was glad to see the URL link to the EO purporting to End BirthrightCitizenship. The EO starts with a misrepresentation of the Dred Supreme Court precedent that held: States cannot unilaterally make anyone a "citizen of the United States". Rather, states can, by positive enactments, only make blacks and whites as slaves or as "citizens of the state". 2) US Law prohibits slaves and descendants of slaves the birthright status of "citizens of the United States". While the opinion focuses upon blacks as a class, the opinion does not state that race alone (apart from slave descent) is legally sufficient to prevent birthright US citizenship. The Amistad case held that blacks brought into the US can be NOT SLAVES. And, (no disrespect to Lincoln) as a matter of statutory interpretation, Dred Scot was probably a correct view of the legislative intent of the framers of the US Constitution which contemplated the right of states to continue their institution of slavery. Thus, the EO is a misrepresentation of Dred Scott. As far as the rule of birthright prescribed in the EO, the President does not set forth a legal argument to support it. But...US Citizenship is a grant of POLITIAL POWER over the people subject to the Government. US Citizenship confers the power to change the Laws and Change the Constitution (if 1 Billion Muslims migrate here and reproduce they could reopen Islamic slave markets to sell the Saqaliba according to The Will of Allah) No rational system of government of a free people permits invaders to obtain political power over the existing population simply by engaging in sex and reproduction within the borders. It is well established that the Fourteenth Amendment does not confer birthright citizenship upon the US-born children of Foreign Diplomats (e.g., United Nations personnel, Embassy occupants). The President presumably has authority to confer or withdraw "Diplomatic Immunity" status upon non-Embassadors (outside of Treaties). So, the President can presumably declare that non-treaty foreigners (not protected by Treaty or Statute) have a kind of Psuedo-Diplomatic status that prevents them from having the power to unilaterally create new US Citizens. Question.. Why should an illegal-alien mother have greater political power (power to infest the US with her kind of offsping) than the wife of an invited Foreign Embassador???? Why would an MS-13 Member and his slave wives illegally being merely present and alive within the US have greater power to colonize and out-vote the native-born American people? Further, the US Supreme Court has mentioned that the traditional common law rule is that the government has the right to capture and SLAY all aliens illegally present upon the jurisdiction (apart from Treaties). So, the common law power to destroy and kill implies the power to sterilize or to prevent the birth of offspring or to prevent the offsping born from obtaining political power over the offspring of nativeborn US citizens. No rational group of free people would submit to Rule by whoever shows up illegally and out-reproduces them
The last several days have clarified why I’m happy to be an old guy – I won’t be around to see the destruction of the country that has been so good to me.
I’m a “birthright” citizen. My parents emigrated from Canada just before WWII, and I was born before they became naturalized citizens. I was fortunate to contribute to and benefit from what historians will likely view as the apogee of innovation in the United States.
We did the impossible, putting a man on the moon in less than ten years, start to finish. We made incredible advances in medicine, some of which are why I’m alive today. I have more computing power in my Apple watch than was present on the first mainframe I programmed, and we made the Dick Tracy wrist radio a reality. Even when I was in college, no one envisioned the reach of the Internet, for better or worse.
What I fail to understand is why your fellow lawyers are so eager to destroy the country that gave them the opportunity to succeed…and to speak freely.
This isn’t about Trump. He’s the shill, the carny barker. He’s too stupid to realize how he’s being used. The real culprits are behind the scenes.
Your fellow lawyers polished and promoted the careers of the Supreme Court justices who abandoned stare decisis, the foundation principle of common law, and blithely extended the legal convenience that “corporations are people” to enable the wealthy to purchase control of our government.
Your fellow lawyers are the authors of every foolish executive order Trump has issued, some of which may have disastrous consequences for our country.
Don’t be surprised when the puppet masters order Trump to ignore the law. And don’t be surprised when Trump anoints the Proud Boys with police powers; they’ll happily wear jackboots.
Follow the money!
I’m in the same boat as you: the child of immigrants who didn’t have green cards and were not yet naturalized at the time of my birth. So I would also not be a citizen under this order.
Does it seem to you that the purported analysis of the Trump administration regarding who can or cannot be a citizen (and specifically invoking "jurisdiction") is remarkably reminiscent of the purported analysis of jurisdiction and citizenship in Dred Scott v. Sandford, 60 U.S. 393 (1857)? It sure seems so to me.
This issue in Dred Scott was "whether the descendants of" people who entered the U.S. in a particular manner "are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States." Id. at 403. If they are not citizens (because of the particular manner in which one or both parents entered the U.S.), then they cannot "show" that they are "within the jurisdiction of [any federal] court" in a case that, by definition, must be between "citizens of different States." Id. at 402.
Promptly thereafter (promptly after the nation finished fighting the Civil War precipitated, in part, by the conduct of SCOTUS justices in Dred Scott), our Constitution was amended specifically to emphatically dispose of the issues regarding jurisdiction raised in Dred Scott. The Fourteenth Amendment was a brutal slap in the face and smackdown by Congress and the People of the SCOTUS justices responsible for the dreadful so-called judgment and opinions in Dred Scott:
"All persons born [ ] in the United States" are (as a result of such birth) "subject to the jurisdiction thereof" and "are citizens of the United States and of the State wherein they reside." As a result, "No State" has any power to "make or enforce any law" that "abridge[s any] privileges or immunities of [such] citizens of the United States; nor" does "any State" have any power to "deny to any person [regardless of citizenship, color, creed or sex] within its jurisdiction the equal protection of the laws."
Basic literacy contradicts your statement that offspring of persons "not yet naturalized at the time of my birth" would be denied political power under the Executive Order. Why not click the link for the EO that David provided and read the two specified categories of born persons who are not entitled to political power as a birthright. Were your parents illegal aliens, or "tourists" or on "student visa" when they were "not yet naturalized at the time of my birth"???
Roger, I like a lot of what you wrote, but there is one crucial exception: "stare decisis" may be as you wrote "the foundation principle of common law." But old opinions by judges manifestly are not "the foundation principle" of our Constitution. Our Constitution was written by (mostly) lawyers to remedy the egregious abuses of power by judges and the people they supported (kings and nobles). Stare decisis must be one of the most absurd doctrines that judges abuse to justify violating our Constitution.
When the people amend our Constitution, the most recent amendment governs. When legislators create law, the most recent law governs. That's common sense. But for some bizarre reason, we pretend that the first lawyers and judge(s) to write about a legal issue should influence (or even control) instead of the more recent--and better--analysis of later lawyers and judges. How does that make sense? Stare decisis is responsible for extreme and extremely egregious abuses of power and people. Stare decisis perpetuates the vestiges of vicious abuses of power (including slavery) to this very day.
Stare decisis is the primary reason that judicial opinions are pathetically weakly reasoned. Judicial judgments that are extremely strongly supported by our Constitution (e.g., Roe and Casey) were thrown out by SCOTUS justices because Roe and Casey were weakly supported by lawyers and judges. But the reasoning of the majority in Dobbs was as pathetically weak as that of the majority in Roe. Dobbs may be supported by stare decisis, but it clearly violated our Constitution in multiple obvious respects.
Can't entirely disagree, but stare decisis had the very real value of making the law predictable.
Alito's opinion in Dobbs is simply dishonest. Using the lack of historical documentation from a period when women were second-class citizens to return them to second-class citizenship is absurd. Worse, Alito used as one justification the self-published writings of an obscure author who openly expressed hatred for women. Alito ignored the far better known, 300 years later, Jonathon Swift essay, "A Modest Proposal," whose very premise would have been senseless if abortion weren't a common procedure.
Did stare decisis serve the purpose of making the law predictable? Consider this obvious example. The SCOTUS majority in Dobbs literally and blatantly lied about the Ninth Amendment, and they pretended that their lie was supported by a prior decision. The majority in Dobbs (twice) knowingly misrepresented that the Ninth Amendment stated a mere "reservation of rights to the people," and (adding insult to injury) they even cited Roe as purported precedent for that falsehood.
After the Dobbs majority blatantly lied about the meaning of the Ninth Amendment, they blatantly violated it. They focused myopically on the obviously irrelevant fact that “[t]he Constitution makes no express reference to a right to obtain an abortion," and they pretended (misrepresented) that "therefore those who claim that [our Constitution] protects [any] right [at issue] must show that the right is somehow implicit in the constitutional text.”
The misrepresentation of law and violation of law by the Dobbs majority was clearly barred by the plain text and plain meaning the People in the Ninth and Tenth Amendments. In a single sentence, the People used the Ninth Amendment to command that “[t]he enumeration in the Constitution" of any "rights, shall not be construed to deny or [even] disparage others retained by the people.”
The Ninth Amendment clearly was not merely a "reservation of rights." It expressly and emphatically commanded judges not to do exactly what the Dobbs majority did, i.e., not construe our Constitution "to deny or [even] disparage" any right "retained by the people" on the grounds that a right was not expressly included in any "enumeration in the Constitution." That command was clearly directed especially at judges whose duty is to construe the law (say what the law is).
The Dobbs majority used the foregoing lie about the law and violation of our Constitution to pretend to justify shifting the crucial burden of proof--from the government (when it infringed on rights) onto citizens (asserting rights). Their conduct also was contrary to the plain text and plain purpose of the Tenth Amendment. SCOTUS has only limited powers, and it must prove that it was given the power to do what it did.
Article VI requires every public servant to support our Constitution. The SCOTUS majority in Dobbs (and the state legislators they empowered) did exactly the opposite. They viciously and maliciously undermined our Constitution to support their own religious views.
"promoted the careers of the Supreme Court justices who abandoned stare decisis". yup, we need to hold on to Dred Scott etc tec,
" Supreme Court justices who abandoned stare decisis, the foundation principle of common law". The "common law" rule for Abortion was that legal personhood attached to an unborn person upon first motion "quickening". The Supreme Court could have decided that state laws permitting abortion all violate Equal Protection Rights of "Unborn" "Persons". Such as the current statute in New York, where a baby that as being born and whose head has crowned through his mother's vagina and is visible, can be shot dead or cut in half by the "doctor" or "midwife" if s/he deems it advisable to kill the baby (without the mother's consent), and such killing is not deemed a "crime" since the 2019 New York statute. That New York statute could easily be deemed to violate Equal Protection rights of the currently-being-born people.
P.S. “corporations are people” The DNC is a "corporation" that spends money to influence elections and "to enable the wealthy to purchase control of our government." If a group of middle income people pool their money and built a car factory, and they profit from their industry, why should those productive people be banned from using some of that money to use speech to influence others in elections? Do you want to pass a general law that ordains that wealthy people cannot use their own money to promote their views? If you are unwilling to enact such a general law, you have no logical basis to complain about Citizens United decision.
Currently, corporations are people. With GenAI, it may be possible to have a one-man corporation populated only by Artificial Intelligence "Agents"..
What is the actual language that you're talking about in a NY statute that provides that "where a baby that as being born" and its "head" is partially "visible," it "can be shot dead or cut in half by the 'doctor' or 'midwife' if s/he deems it advisable to kill the baby (without the mother's consent)"?
If "corporations are people," then why not "people are corporations"? On that basis, I could deduct from my taxes the depreciation of my home, the expense of commuting to work, the wages and taxes I pay for a gardener, etc. [Elon Musk is happily bragging that he spent over a quarter of a billion dollars to get Trump elected. You can bet that every dime is a deductible expense for one of his many corporations. I can't even deduct the measly $100 I contributed to one of the campaigns.]
Isn't the creation of federal departments a constitutional prerogative of Congress? Have presidents ever created them by fiat?
I very much appreciate your perspective here, David, but I’m puzzled as to why the January 6 pardons have “Top 5” significance to the legal community. Clemency, sentence commuting, and indictment dismissals seem to be fairly bread and butter of the executive privilege.
It’s obviously your platform and your call about what constitutes significance. And while certainly significant to the defendants and their legal teams, as well as the prosecuting attorneys, I don’t see broad applicability to the legal community for this action. Unless it’s just a numbers game? Significance = interest (aka clickbait)? What am I missing?
Personally I think President Biden’s last minute “pardons without a crime” present much more interesting fodder for legal debate. They raised important issues for lawyers to work out, such as what fundamentally constitutes a pardon by definition? Does it require a specifically referenced crime, as historic precedence seems to infer? Does the existence of a pardon necessarily estop investigation, or just prosecution? And would those pardons stand up in court if any crimes are discovered to have been committed by the recipients?
Politically charged questions, for sure. But also important legal ones that could have long term significance for the practice of criminal law.
I personally don’t have much interesting to say about pardons. They lie in this limbo between politics and law, and I try to stick to legal commentary; unlike many other legal journalists, I do not aspire to political punditry. (I did it for a few months at Wonkette, and I was not good at it.)
Biden's pardons of his family members referred to a limitation to "nonviolent" federal offenses. So, they certainly can be "investigated and prosecuted" for crimes outside the purported scope of the pardons.
As for your question about "investigation", an investigation could lead to "accomplices" who were not pardoned. The pardon would deprive the principal offender of a 5th Amendment Privilege against SelfIncrimination. So the Pardons actually invite and facilitate "investigations".
The "Make America a Third World Nation" crowd is feeling their oats.
David, Because you invited us to comment on the pardons, let me add my thoughts on why I have not been in the least bit upset about Trump pardoning the Jan. 6 rioters.
Reason #1: I will acknowledge that I do see the events of that day differently than how the mainstream media would like to project things. To me, it was a fancy dress competition. I mean look at this image from the day (https://media-cldnry.s-nbcnews.com/image/upload/rockcms/2024-07/240712-Jacob-Chansley-QAnon-Shaman-ew-543p-821545.jpg) and tell me how it was NOT a fancy dress competition? Relatedly, it is more than likely that a majority of the individuals - if not everyone of those out protesting that day at the Capitol were gun owners. I ask - if January 6th was a violent insurrection (as Jack Smith would like to call it) - where were the guns on that day? Not one police officer died as a result of gun fire. In fact, it is debatable how many police officers and law enforcement personnel died in the first place AS A RESULT OF JANUARY 6TH. Here's an excerpt from The New York Times:
"Officer Brian D. Sicknick of the Capitol Police, who was attacked by the mob, died on Jan. 7. Officer Jeffrey Smith of the Metropolitan Police Department killed himself after the attack. Officer Howard S. Liebengood of the Capitol Police also died by suicide four days afterward. The Capitol Police had previously said that Officer Sicknick died from injuries sustained “while physically engaging with protesters.” The Washington medical examiner later ruled that he had died of natural causes: multiple strokes that occurred hours after Officer Sicknick’s confrontation with the mob. The medical examiner added, however, that “all that transpired played a role in his condition.” The police agencies have not classified the four total suicides as “line of duty” deaths that would provide the victims’ families with enhanced benefits. Washington law excludes suicide deaths from the line-of-duty designation."
(https://www.nytimes.com/2022/01/05/us/politics/jan-6-capitol-deaths.html)
So yes I surely see January 6th differently than many of your readers (or readers of The New York Times) who are perpetually outraged/ hysterical by anything the right does.
Reason #2: Roughly around the time that Jan. 6 happened, we also saw protests from the Black Lives Matter movement. That movement resulted in destruction of property worth billions of dollars, some deaths, and immense misery to ordinary citizens who happened to live in cities like Seattle and Portland. What actions were taken against those protestors? Very little and in fact, those protestors were egged on by the left and the same folks who asked for social distancing all through 2020 suddenly turned coy when BLM protestors were congregating at close quarters. A two-tiered justice system where protestors in favor of a popular cause go unpunished while the system comes out with all its fury against protestors of a different ilk is fundamentally unjust and unfair and I believe such is the case here. I also suspect that is how many of the 77 million Americans who voted for President Trump feel if they couldn't precisely articulate their feelings into words in the manner I have done here.
Lastly, I left my best and most important reason, reason #3, for the end. Candidate Trump repeatedly telegraphed his intentions during his campaign that he would pardon the January 6th rioters. In contrast, President Biden kept saying that he would not pardon his son. That was an unconditional statement. He never said that he would pardon his son if Trump won; he simply said - *no* *pardon* *under* *any* *circumstance*. Here is the exact quote:
"I'm extremely proud of my son, Hunter," Mr. Biden said. "He has overcome an addiction. He's one of the brightest, most decent men I know. And I am satisfied that I'm not gonna do anything. I said I abide by the jury decision. I will do that. And I will not pardon him."
After the formal news conference concluded, a reporter asked the president if he will commute his son's sentence.
"No," Mr. Biden responded." (Source: https://www.cbsnews.com/.../biden-pardon-hunter-white-house/)
And btw, Press Secretary, Karine Jean-Pierre repeatedly said that same thing from her perch:
"I've answered this question before. It was asked of me not too long ago, a couple of weeks ago, and I was very clear, and I said no,” she said, referring to previous comments from the podium.
(https://www.nbcnews.com/politics/joe-biden/biden-wont-pardon-son-convicted-white-house-says-rcna105351)
So Candidate Trump repeatedly telegraphed his intentions that he would pardon the Jan. 6th rioters if elected, Biden (and his Press Secretary) categorically and repeatedly said that he would not pardon Hunter Biden and then people went to the voting booth and voted as they did. Under the circumstances I would say that the pardons issued for the Jan. 6th rioters had democratic legitimacy whereas the pardons issued by President Biden hand over fist in his last few days in office, especially of his son but also of his extended family members, completely lacked democratic legitimacy and represent a fraud on the American public.
So yes, in every respect, given those three reasons, I I am cool with the pardons of the Jan. 6th rioters. (FWIW, I wrote in Nikki Haley on my Presidential ballot while being a voter in the most important battleground state of Pennsylvania, so it is safe to say that I am no Trump-acolyte. But yes, I refuse to think like the mainstream media would like us to. They are nothing but hypocrites and courtiers for the Democratic party as opposed to somehow being neutral arbiters of truth.)
180 Jan. 6 defendants were charged with entering a restricted area with a dangerous or deadly weapon — ie, bringing guns into the Capitol.
Trump's Executive Order to overturn President Johnson's 1965 Executive order was the most shocking one to me.
LBJ's 1965 Executive Order prohibited race-based discrimination in federal hiring.
The Project 2025 racists had to dig deep to find that one.
A friend insists that one of the J 6'ers pardoned actually defecated on Nancy Pelosi's desk. He cannot document this but insists that he read that in at least two news articles. Is any of that true?
Francis Connor bragged about doing that (and stipulated to those messages) and received a pardon.
Title: The Dawn of a New America
Brothers and Sisters, Believers of the One True Faith, today we stand at Ground Zero, not as a place of sorrow, but as the birthing ground of a new America. Here, at this site, once defiled by infidels, we dedicate the Monument to our Islamic Martyrs. They are not dead, they live in the glory of their sacrifice.
This monument is not just stone and metal, it is the foundation of our future. It is a beacon for our pregnant women, who will now be required to come here, to Ground Zero, during the ninth month of their blessed pregnancies. Here, on this sacred ground, they will deliver the next generation of diverse American citizens to Rule the Saqaliba under Holy Shariah Law. We declare that this site is not a place of mourning, but a place of creation, a testament to the triumph of Islam and the growing power of our 1.5 Billion Ummah.
The cries of our martyrs will be replaced by the cries of our babies, the sounds of victory. Let the infidels tremble at the sight of our strength. This is our holy land, and we will populate it with One Billion children of our faith, the future leaders of a truly Islamic States of America.
And, Insha Allah, we will soon open the first slave market for the Saqaliba and Abeed of America, where the wealth and labor of the unbelievers shall serve our noble cause.
Allah is Great!
عنوان: فجر أمريكا الجديدة
أيها الإخوة والأخوات، يا مؤمنين بالدين الحق الواحد، نقف اليوم في جراوند زيرو، ليس كمكان للحزن، بل كمهد ولادة لأمريكا جديدة. هنا، في هذا الموقع الذي دنسته الكفار، نكرس نصبًا تذكاريًا لشهداء الإسلام. إنهم ليسوا أمواتًا، بل يحيون في مجد تضحياتهم.
هذا النصب ليس مجرد حجر ومعدن، إنه أساس مستقبلنا. إنه منارة لنسائنا الحوامل، اللاتي سيُطلب منهن الآن الحضور إلى هنا، إلى جراوند زيرو، خلال الشهر التاسع من حملهن المبارك. هنا، على هذه الأرض المقدسة، سيضعن الجيل القادم من المواطنين الأمريكيين المتنوعين. نعلن أن هذا الموقع ليس مكانًا للعزاء، بل مكانًا للخلق، وشهادة على انتصار الإسلام والقوة المتنامية لأمتنا.
سيحل صراخ أطفالنا محل صرخات شهدائنا، أصوات النصر. لترتعد الكفار من رؤية قوتنا. هذه أرضنا المقدسة، وسوف نملأها بأطفال إيماننا، والقادة المستقبليين لأمريكا إسلامية حقيقية.
وإن شاء الله، سنفتتح قريباً أول سوق للعبيد من الصقالبة والعبيد في أمريكا، حيث ستخدم ثروة وعمل الكفار قضيتنا النبيلة.
الله أكبر!
This was an informative article, containing a lot of facts about current events and some insights as to probable future consequences. I was glad to see the URL link to the EO purporting to End BirthrightCitizenship. The EO starts with a misrepresentation of the Dred Supreme Court precedent that held: States cannot unilaterally make anyone a "citizen of the United States". Rather, states can, by positive enactments, only make blacks and whites as slaves or as "citizens of the state". 2) US Law prohibits slaves and descendants of slaves the birthright status of "citizens of the United States". While the opinion focuses upon blacks as a class, the opinion does not state that race alone (apart from slave descent) is legally sufficient to prevent birthright US citizenship. The Amistad case held that blacks brought into the US can be NOT SLAVES. And, (no disrespect to Lincoln) as a matter of statutory interpretation, Dred Scot was probably a correct view of the legislative intent of the framers of the US Constitution which contemplated the right of states to continue their institution of slavery. Thus, the EO is a misrepresentation of Dred Scott. As far as the rule of birthright prescribed in the EO, the President does not set forth a legal argument to support it. But...US Citizenship is a grant of POLITIAL POWER over the people subject to the Government. US Citizenship confers the power to change the Laws and Change the Constitution (if 1 Billion Muslims migrate here and reproduce they could reopen Islamic slave markets to sell the Saqaliba according to The Will of Allah) No rational system of government of a free people permits invaders to obtain political power over the existing population simply by engaging in sex and reproduction within the borders. It is well established that the Fourteenth Amendment does not confer birthright citizenship upon the US-born children of Foreign Diplomats (e.g., United Nations personnel, Embassy occupants). The President presumably has authority to confer or withdraw "Diplomatic Immunity" status upon non-Embassadors (outside of Treaties). So, the President can presumably declare that non-treaty foreigners (not protected by Treaty or Statute) have a kind of Psuedo-Diplomatic status that prevents them from having the power to unilaterally create new US Citizens. Question.. Why should an illegal-alien mother have greater political power (power to infest the US with her kind of offsping) than the wife of an invited Foreign Embassador???? Why would an MS-13 Member and his slave wives illegally being merely present and alive within the US have greater power to colonize and out-vote the native-born American people? Further, the US Supreme Court has mentioned that the traditional common law rule is that the government has the right to capture and SLAY all aliens illegally present upon the jurisdiction (apart from Treaties). So, the common law power to destroy and kill implies the power to sterilize or to prevent the birth of offspring or to prevent the offsping born from obtaining political power over the offspring of nativeborn US citizens. No rational group of free people would submit to Rule by whoever shows up illegally and out-reproduces them