US Supreme Court likely to overturn the Colorado Supreme Court re: Trump and ballot approval

The US Supreme Court has granted certiorari to hear Trump's appeal from the Colorado Supreme Court decision to bar Trump from being on Colorado's presidential ballot. 

The US Supreme Court is likely to overturn the Colorado Supreme Court, but such overturning will be for political reasons. This is the irony because the usual argument is that barring Trump from the ballot was political. Yet, as I made clear in my December 31, 2023 post, it will be hard for the US Supreme Court to deny Trump was a key person in the January 6, 2021 insurrection, and that it was an insurrection. They will also not be able to refute the fact that Trump spread the lie there was massive voter fraud in the election he lost and that he had somehow won--but in fact lost the election.

The US Supreme Court majority at least will likely hold the 14th Amendment section 3 is not self-executing so that it must be Congress which must act. However, this is ridiculous when there is no material dispute of fact of the Big Lie and Trump's role in the insurrection, making the situation not any different than a court or secretary of state finding the proposed candidate is not going to be age 35 by the time of a presidential inauguration or is otherwise not a natural born US citizen.  

Another basis to reverse the Colorado Supreme Court is to say it is a "political question" which means the Courts should simply not get involved in a dispute deemed political, not legal. Yet, that basis itself is political because the facts are materially undisputed and so there is no reason for the court to deny the reality of those facts. The "political question" doctrine is, in any event, to be sparingly used and is not a bedrock rule of law in practice. 

In addition, the politically minded six right wing justices could simply end the applicability of the 14th Amendment, section 3. They could hold the 1872 Congressional act that granted a blanket amnesty to all who supported the Confederacy means section 3 is a dead letter.  This was an interpretation initially believed by at least the court in the Majorie Taylor Greene lawsuit, but three law review articles, each doing a deep dive into the history of the amendment and that congressional act, have shown that position to be historically wrong.

I would only be surprised if the majority of Justices held Trump, as president, is not an "official of the United States." The Colorado Supreme Court's analysis of that argument should be conclusive in rejecting that argument. I note, too, none of the dissenters on the Colorado Supreme Court challenged that particular conclusion. As understood at the time, what use would the  amendment section be if say Jefferson Davis was barred from every federal office but could run for president or vice president?  Also, the amendment section does mention Senators and Representatives. But that is because, in the US Constitution, such are called "members," not "officials." 

If a majority of the Court had integrity and wanted to truly protect and maintain the US Constitution, it would hold that Trump (1) made an oath to protect and maintain the US Constitution, (2) never offered a meritorious defense for his statements and actions, and (3) spread lies about the election result and thereafter precipitated an insurrection to stop the constitutionally mandated presidential transition. Thus, a Court with integrity would hold Trump is correctly barred from regaining any federal office or being a member of the Congress unless 2/3rds of Congress votes to allow him to do so. 

Note that last part. Under the last sentence in the 14th Amendment, section 3, it is possible enough Dems could join all Republicans in the US House of Representatives and Senate to reach the 2/3rds. That would be the irony of ironies in the litigation now pending. I would hope enough Dems would see that as both morally wrong and worse, normalizing insurrectionist behavior on top of a Big Lie.

Progressive and other rock/fusion releases fifty years ago this year: 1974-2024

 It's that time again. We go through a bunch of albums turning 50 this year.  Albums I remember being released, many of which meant so much to me.  There is no particular order this year. Just me riffin'.  

Let's start with:

Kansas, "Kansas." This is the first album of what I consider to be the best American progressive rock band. The most amusing thing is Kansas actually garnered a Best New Group nomination from the odious Grammy Awards.  However, they lost to Starland Vocal Band, which had the big one hit, "Afternoon Delight." The first Kansas album stands the test of time and is well worth the full listen.  It is a remarkable work.  RIP to its violinist Robbie Steinhardt, who died some years ago. I see they are touring this year, but it is only the drummer and bassist, from what I recall. I don't like when the heart of bands are missing. I mean, Steve Howe should just say the Steve Howe band. There is nobody from the key or significant Yes lineup with him so that it just seems like false advertising.  Anyway, let's keep moving!

Renaissance, "Turn of the Cards." This is a wonderful album. So lush, so powerful, and the angelic voice of Annie Haslam. This is the album with "Running Hard," "Mother Russia," "Black Flame," and "Things I Don't Understand." It is a marvelous work that definitely sounds outstanding today. Why Renaissance never crossed into the big pop world remains perhaps the biggest mystery of the music scene of the 1970s.

Esperanto, "Danse Macabre." This multi-European band had three albums. The first was not memorable, and the third hit and miss (the hit is for the great version of "Eleanor Rigby"). But this album, the second album, is perfect.  And brilliant. It is a must-listen.

Argent, "Nexus." This was Rod Argent in full on prog mode. Love this album including today. I am so glad to have seen Rod Argent finally in 2023 when the Zombies came through NM specifically Santa Fe. He and lead singer Colin Blunstone were in great form and it was wonderful to see the heart of the Zombies who I had also never seen live.

King Crimson, "Starless and Bible Black" and "Red." Crimson released two records in one year as Fripp suddenly, and without notice to his bandmates, decided the world was too complicated, and King Crimson especially too complicated--and ended the band. It sure smelled like a nervous breakdown to us fans, and I know from reading Melody Maker that Bill Bruford was pissed and John Wetton frazzled by Fripp's decision. Crimson was on the verge of expanding its audience beyond prog fans to heavy metal fans, which could have put Crimson into stadiums for concerts in the US.  The record company, Atlantic Records, saw this, and in 1975, released a live album of Crimson simply called "USA" that captured the 1974 performances. I was lucky enough to see Crimson in May 1974 and they were so powerful and frankly sublime. God, I miss that lineup.  

Gentle Giant, "The Power and the Glory." GG released this album within a month or two of Nixon's August 8, 1974 resignation, and it was clear this album's lyrics and music were constructed in the context of Watergate, but with a more philosophical bent to show the rise and fall of leaders who manipulate public opinion with vague words and misleading/contradictory statements. It is extraordinary how this album holds up as an album, even as the songs individually don't have the legs to stand as strong in a consistent manner.  Listening to this album is like listening to a Broadway play's soundtrack to that extent. The album remains Derek Shulman's (lead vocalist and sometimes instrumentalist) favorite. I am more partial to a few other albums, but when I listen through the album, I am knocked over.  UPDATE 1/1/2024. I learned at the end of this day that Travis Scott, a rapper, samples the opening part of the first track, "Proclamation."  And it was a hit.  A big hit. I saw a live clip where Scott's entire audience is singing along with the GG song's opening right through "Hail! Hail!" It was surreal. :) FURTHER UPDATE: 1/2/2024. I forgot how the British label, WWA, required GG to write and record a "single" that would be good enough for mainstream radio. They came up with this, but British and American radio programmers were uninterested. And here is the live recording of "Hyena" from Travis Scott. 

Genesis, "Lamb Lies Down on Broadway." This may be, along with The Who's "Quadrophenia", the best double album in the annals of rock.  This album is so powerful to listen to even fifty years later (well, it was released in December 1974, so maybe 49 for most of the year!).  The prog elements are meshed into a pop sound, but with stronger musicianship than any pop band (including progressive pop band, Renaissance).  Just pick almost any track, except maybe one of the interludes, and be amazed. This is a powerful album and definitely one which highlights why prog fans talk of "Genesis with Gabriel", as in Peter Gabriel. This was Gabriel's tour de force lyrically and emotionally, but the Tony Banks keys, Steve Hackett guitar work, and Phil Collins drumming dominate so much of the album musically.

Yes, "Relayer." With new keyboardist, Patrick Moraz, who had just left Refugee, Yes had a great rebound from what most see as the excesses of "Tales of Topographic Oceans" in 1973 which drove Rick Wakeman out of the band. This is a near perfect album, with the one full side track "Gates of Delirium" and "Sound Chaser" opening the second side. The third and final song on the album is okay, but it never hit me all that much. But literally most of this album is amazing, and a must-listen. 

Refugee. Self-titled. Two members of the Nice with Moraz made this one and only album. It has some solid moments, but it never quite gets to the level that says, "Oh, I wish this band had stayed for a second album." The "Grand Canyon Suite" and "Someday" are the two best tracks I recall, and still like to hear from time to time. 

Camel, "Mirage." This was Camel's second album. It firmly established Camel as one of the great young prog bands. I have said, and actually saw someone else saying it later, that Camel was Pink Floyd with prog level top musicianship. Yes, indeed!  The album just flows right through, and reaches the crescendo of the amazing track, "Lady Fantasy." It is an album I found some heavy metal fans liked, even though I also find those who love prog-pop Renaissance love this album. American FM radio was already being commercialized into a new AM structure and so most people missed this band's incredible sophomore recording.

Daryl Way's Wolf. Self-titled (US release) and "Night Music" (UK release). The first self-titled album was a compilation of two 1973 British releases of this band led by violinist and former Caravan member, Darryl Way, with three other amazing musicians. John Etheridge may have been the fastest playing guitarist I ever heard (he ended up next in Soft Machine and became far more known in British circles as a jazz guitarist). This is hard prog rock and I know again metal heads who went nuts for this album. The second release is the same band line up with a separate lead vocalist.  It is not as hard a sound on "Night Music" but some great tracks nonetheless.

Jethro Tull, "War Child." Ian Anderson wrote most of this album in anger and frustration at the attacks in the British and US rock music press against "A Passion Play" and "Thick as a Brick," both of which remain perhaps in the top five albums of the entire 1970s and are as important as Gershwin's "Rhapsody in Blue." Just listen to those albums if you don't believe me, and then listen to "Rhapsody in Blue." In fact, I'd put those two albums above Gershwin's work. There. I said it. And I definitely believe it. But "War Child" is a great album on its own terms. It has "Skating Away on the Thin Ice of the New Day," "The Third Hoorah," "Two Fingers," "Back Door Angels," and the title track, among some other cool and creative tracks. It also contains the cynically created, but big FM and even AM cross over hit, "Bungle in the Jungle." Anderson would refer to the latter as "Grumble in the Restroom," and was clear he wrote it to satisfy the record company which wanted a hit single, not a one song album any longer. It has struck me as ridiculous for Anderson to put down TAAB and the Play albums as satires on progressive rock when the interviews Anderson gave to Melody Maker, NME, and other places at the time show his frustration for the rock critics ripping those two amazing albums, and how he had to rein in his creativity to create stand alone single songs.  But again "War Child" is an outstanding album with tracks that still get played on the classic rock stations and deservedly so.

Arthur Brown's Kingdom Come, "Journey." I remember telling people this album was so scary-weird in its electronics and musical structure that it would freak out our grandchildren. I am firmly convinced Gen Z would be amazed by this album if someone played it for them.  I won't say our daughter would like it, as she is more the Broadway tunes person, and likes her Mitski, Phoebe Bridgers, etc. But guys and gals who love the freakier music of today in video games would be knocked over by this very advanced in time album. It simply doesn't sound like something produced in the 20th Century. It was one of the earliest uses of a drum machine, and Arthur Brown made sure to put it to use for freaky purposes. Well worth the listen for at least "Time Captives" and "Superficial Roadblocks." 

Frank Zappa and the Mothers, "Live at the Roxy and Elsewhere." This is the greatest live album from Zappa, in my not-humble opinion, and has so many great tracks created for the 1973 tour that were simply so great live they were released live, not from studio. I mean, really. The whole double set is great and maybe I have to revisit my statement above about "Quadrophenia" and "Lamb" being the two greatest double albums to add this one.  This is vintage Zappa, where the patter is as great as Sinatra's patter for his great double live album at the Sands hotel in the early 1960s (Quincy Jones was Sinatra's arranger, and Sinatra was with the Count Basie Orchestra. Man, a great double album too!). Zappa is very proggy in multiple tracks, as he had some top level musicians, including Chet Thompson at drums and George Duke on the keys, among others. The Daughter loves "Cheepnis," Zappa's ode to 1950s monster/horror movies. If you want to get into Zappa, maybe start with this album. It may be overwhelming with the musicianship and prog aspects, but it will show why serious musicians and composers recognize Zappa as one of the greats.

Frank Zappa, "Apostrophe." This is the famous album with "Don't Eat that Yellow Snow." However, if one just thinks this is a poppy throw away album, one would be deeply wrong. This is the lineup with the Roxy concerts for the most part, and is as much a jazz-rock album as a prog rock album. This is Zappa roaring with amazing music and a sound that is deeply affecting.

Utopia. Self-titled. This is Todd Rundgren's band he foretold at the end of his "Wizard, a True Star" album in 1973. "Wait another year/Utopia is here/But there's more..."  This is a brilliant album with the greatest one side 30 minute song you'll ever hear.  Note those qualifiers, but "The Ikon" is a great concerto posing as a progressive rock song. Each movement contains elements of the next movement and then near the end takes the main themes and crunches them together. The first side is simply wild, with the track "Freak Parade" guaranteed to have your non-prog rock friends going "What the hell?" But it is so great.  It is Rundgren definitely channeling Zappa. 

Kayak, Self-titled. This is Kayak's first album, and contains the seeds of what would become its best album, released in 1975, "Royal Bed Bouncer." This Netherlands prog-pop band was not fully consistent, but I don't think one can find more bouncy, creative, fun, and yet complicated melodies than this band produced in the mid-1970s. There are a few gems on this album, making it a must-listen. 

Hatfield and the North, Self-titled. This is a great first album from the legendary Canterbury British band with a mischief making sense of humor and tremendous musicianship and composition abilities. This is not an album for the feint of heart or without some knowledge of music theory.  For those of us who do love creative musical styles, this is a wondrous album. There are separate track listings, but it just flows and flows and there are not really any breaks. Hatfield and the North would eventually morph into the last great 1970s progressive rock band, National Health, but here they were just starting to jell in this line up of superstars from other earlier Canterbury rock bands.

Strawbs, "Hero and Heroine." Group leader Dave Cousins called this his "nervous American music" album. I call it one of the master works of the era.  It is a great album from start to finish, where this progressive folk band accented the prog while maintaining the folk sound that served them so well. The title track is a wild and wonderful one, and there are other great tracks throughout. This is an album to just let it run and flow. A great work that almost feels like movements rather than separate songs, but the separate songs are outstanding. Lush melodies, great lyrics, and powerful musicianship from those who are not the greatest technical musicians.

Premiata Forneria Marconi, "L'isola di niente" or "World Became the World" (different title, not a translation). This was PFM at their height of prog and the album was wonderful. I saw them live in August 1974 at a free concert in NYC's Central Park and have to say it was one of the greatest concerts from any band of the decade that I attended. That performance became part of a live album, "Cook," I should add. I think the English release is better than the Italian release, which may put me in the minority.  But I loved Pete Sinfield's English lyrics for this album.  I should add I like the Italian version of the 1973 album, which in English was called "Photos of Ghosts."  There, the Italian version suits me better. But, anyway. Check out PFM if you haven't heard them, and "World Became the World" is a great introduction.

Le Orme, "Contrappunti." Another great Italian progressive rock band, with a powerful album released this same year.  If you like Rush, and I admit I have never been on that band's bandwagon, just listen to Le Orme. I consider them far more powerful.  But, let's admit Rush released its first album in 1974, and it was a major hit in Canada and made big inroads into the US without much airplay from the leading FM rock stations now called "classic rock." 

Return to Forever, "Where Have I Known You Before."  I never liked this album, and may have to give it another listen fifty years later. It is the first album with the still teenaged Al DiMeola at guitar, and which lineup would go on to write and record the classic jazz fusion/rock of the 1970s. This may be more interesting historically than an actual listen, but again I will revisit.

Stanley Clarke. Self-titled. This is Stanley Clarke's first solo album, also released in 1974. It contains "Lopsy Lu," with Tony Williams' amazing drum work, and remains one of the single greatest jazz rock tracks of the entire decade. This is a great jazz rock album hands down!

Eleventh House. "Introducing..." This is the first album of a jazz rock band that was a monster in the best sense of the term. It has guitar extraordinaire Larry Coryell and the outstanding drummer, Alphonse Muzon. I loved this album upon its release and remain a fan of that album through today. 

Maynard Ferguson, "Chameleon." What? An old 50s jazz great? What's he and his band doing here? Well, I'll tell you. It is a great jazz progressive rock fusion album, and one that is as good as any other jazz rock act released that year.  It has some of the greatest young jazz musicians who were steeped in prog and psychedelic rock, such as keyboardist Alan Zavod. I played a couple of tracks for The Son recently, and he was amazed. He loved it. Yeah, man. It is the greatest, man.  Definitely listen to this album, starting with Maynard's band's version of Chick Corea's "La Fiesta." It is better than Chick's original version. And the band does a raucous and powerful version of Stevie Wonder's "Living for the City," too. This is great jazz fusion but with the accent on jazz. 

Electric Light Orchestra,"Eldorado."  I did not want to believe it at the time, but I was starting to worry that ELO was leaving its more progressive rock roots for full-on pop. There were flashes of progressive elements, but this was definitely stuff my sister and her friends began to like. That meant definitely not progressive rock. LOL. I would not recommend the album to progressive rock fans other than to say, Give it a listen once and see if you like one or two tracks. For those who like later ELO, this may represent a good find that will bring some pleasure.

Emerson, Lake & Palmer. "Welcome Back My Friends...." This is a live double album which I admit to not placing all that high in the ELP album annals.  It is solid, no doubt. Just not compelling. Go for the studio works, including "Brain Salad Surgery" (1973) upon which this live album is built. 

Gryphon, "Midnight Mushrumps" and "Red Queen to Gryphon Three." This prog-folk band is a heavy version of the Strawbs, and is not for those who think they are going to get Fairport Convention or even Steeleye Span. This is progressive rock more than folk, but the basic elements of British folk are definitely present. This is a band which never got the FM airplay it should have had if FM had not been taken over by the full-on commercial interests. These are definitely worth hearing if you miss hearing prog rock you missed the first time around. I know I have loved hearing this band since The Son had me listen.

There are other prog albums released that year that I am not admittedly as major a fan or else never had a chance to listen to. Besides Rush, mentioned above in the context of Le Orme, there are the Rick Wakeman "Journey to the Center of the Earth" (which I have not liked then or now), Kraftwerk's "Autobahn" (which I was meh about then and now), Tangerine Dream's "Phaedra" (same), Focus' "Hamburger Concerto" (same), Caravan's "Caravan and the New Symphonia" (which merits a re-listen), Mike Oldfield's "Harvest Ridge" (another re-listen is necessary), Sui Generis' "Pequenas anecdotas sobre las instituciones" (a historical oddity from Argentina, which merits a listen for its appearance before the Argentine coup, as the album contains a warning in prog symphonic rock style), and others I missed the first time or forgot now. 

1974 was still a high water mark for progressive and jazz rock/fusion. In 1975, the cracks began to appear, as the combination of press rock critics, FM radio station program directors, and the falling away of audiences to disco, punk, and then new wave was beginning. The belief was progressive rock and jazz/rock fusion were excessive, in the similar way bee-bop or straight ahead jazz went past a larger audience in the 1950s. Remember what Chuck Berry was saying that he had "no kick against modern jazz/Unless they try to play it too darn fast/And lose the beauty of the melody/Until it sounds just like a symphony." That's why he liked his simple and straight forward "rock and roll music," ya know? The difference between that attack on bee-bop/straight ahead jazz in the 1950s and the attack on progressive rock in the 1970s was the latter was viewed with outright contempt by the anti-intellectual rock critics at Circus, Rolling Stone, Creem, Village Voice, and the NME in the UK, among others. It was only in the pages of Melody Maker in the UK, and then in more technical journals, "Guitar Player," "Modern Drummer," "Contemporary Keyboard" or "Stereo Review" one saw more respectful coverage of progressive rock musicians and bands. 

Oh well, that's enough for this holiday of New Year's Day 2024. We'll see what this year brings for all of us here in the USA and elsewhere.  

Why Trump committed and completed the act of Treason on January 6, 2021

Trump lied about the results of the 2020 presidential election. We know this from the evidence of an overwhelming number of REPUBLICAN witnesses to, and documentation produced in, the House Committee investigating the events from 2020 and early 2021. On top of that, Trump's public comments in the period from the 2020 election through and after January 6, 2021, including his speech that fateful day (under Brandenburg v. Ohio, 395 US 444 (1969), one looks to the circumstances and overall tone of the language of a speech to see if its meaning is for "imminent illegal action," which negates First Amendment "free speech" rights), and the other speakers Trump designated to speak with him, showed an intent to at least physically intimidate congress-members from certifying the results of the 2020 US presidential election.

For those who claim fealty to the US Constitution, think themselves patriots, and claim our Republic is one of laws, not of powerful individual people, there are two cases from the very early Republic which explain the meaning of the Treason clause which should be considered. But, first, let's review the Treason clause of the US Constitution, particularly Article III, Section 3. That section states:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Note first Treason does not mean one must consort with the enemies of the United States, which we know have to be declared "enemies" because there must be a state of war (or an act of rebellion for the president to act as commander in chief of the armed forces). The language of the Treason clause is adhering to enemies OR "levying war" against the United States.

But, what does "levying war" mean? The answer first came just six years after the start of our Republic. In US v. Mitchell, 2 U.S. 348 (1795), the Court interpreted the Treason clause in the context of the Whiskey Tax rebellion of 1793. Please read carefully the following italicized quote--and think about the evidence against Trump from his own circle around him, Trump's own public statements, and the fact that no lawyer for Trump has ever tried to adduce actual, factual evidence supporting the case that there was widespread voter fraud that resulted in a made up or fraudulent majority of votes for Biden over Trump:

By the English authorities, it is uniformly and clearly declared, that raising a body of men to obtain, by intimidation or violence, the repeal of a law, or to oppose and prevent by force and terror, the execution of a law, is an act of levying war. Doug. 570. Again; an insurrection with an avowed design to suppress public offices, is an act of levying war: And, although a bare conspiracy to levy war, may not amount to that species of treason; yet, if any of the conspirators actually levy war, it is treason in all the persons that conspired; and in Fost. 218, it is even laid down, that an assembly armed and arrayed in a warlike manner for a treasonable purpose is Bellum levatum, though not Bellum percussum. Those, likewise who join afterwards, though not concerned at first in the plot, are as guilty as the original conspirators; for in Treason all are principals; and whenever a lawless meeting is convened, whether it shall be treated as riot, or treason, will depend on the quo animo. 4 Bl. Com. 81. 1 H. H. P. C. 133. 4. Fost. 213. 210. 215. 218. 1 Hawk. P. C. 37. 4 Bl. Com. 35. 1 Hal. P. C. 440. 8 St. Tr. 247. 2 St. Tr. 586. 7. Keil. 19. 3 Inst. 9. The evidence, unfortunately, leaves no room for excuse, or extenuation, in the application of the law to the prisoner's case.

The one thing you can say for the Whiskey Tax rebels is the tax existed, and was not made up out of whole cloth. But, reading the above quote should make every person squirm who otherwise tries to claim what Trump did to be normal partisan politics. It should make every person who claims fealty to the US Constitution, the idea of true law and order, or claiming to support John Adams' dictum that we are a government of laws, not of men (persons) deeply offended by what Trump did. Again, Trump created a lie he saw had no factual basis, that of widespread election fraud, and then turned out people to intimidate or threaten or use violence to stop a presidential transition. Note, too, the language about anyone not concerned at first in the plot who joins in is as guilty as the original plotters. This is similar to the well-known criminal law known as the felony-murder rule, which our courts routinely follow up through the present century.

Then, in the first decade of the 19th Century, the US Supreme Court took the opportunity to further define the law of Treason under Article III, section 3. This time, the cases they were deciding were in the context of then-Vice President Aaron Burr's conspiracy and acts to take over parts of the Louisiana territory, which the US under President Jefferson had recently purchased in 1803. Burr's goal was to establish himself and a Colonel James Wilkinson as a nation-state empire with Burr acting similar to an emperor. He and Burr had people who conspired with him, and two of them, named Bollman and Swartwout, were arrested, tried, and convicted of Treason. Their cases went to the US Supreme Court. The US Supreme Court, in Ex Parte Bollman (1807) 8 US 75, held in part:

To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, the distinct offenses. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself or the fact of levying war cannot have been committed.

The Court then held:

To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the Court, a design to overturn the government of the United States in New Orleans by force would have been unquestionably a design which, if carried into execution, would have been treason, and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States; but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war.

The Supreme Court then stated:

...(I)f war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.

The Supreme Court also held the following, which should be really eerie to read for those who think Trump did not commit constitutionally defined Treason:

This position is correct, with some qualification. It cannot be necessary that the whole army should assemble and that the various parts which are to compose it should have combined. But it is necessary that there should be an actual assemblage, and therefore the evidence should make the fact unequivocal.

The traveling of individuals to the place of rendezvous would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particular bodies of men and their marching from places of partial to a place of general rendezvous would be such an assemblage.(Underline added)*

Every American who truly cares for law and order, and for protecting and maintaining the US Constitution, should have shuddered when reading the above--especially considering the ample, and frankly materially undisputed, evidence from Republicans around Trump in their testimonies. And people of good will should wonder no more as to why there has been no direct refuting evidence adduced in the State Bar proceedings against Trump's lawyers about the supposed widespread fraud in the 2020 election. There should be no more wondering why Trump keeps using technical defenses of claimed executive immunity and never produces evidence that would prove his case of widespread fraud that deprived him of the presidency. One should also note the Colorado State Republican Party's appeal from the Colorado Supreme Court opinion depriving Trump of ballot access does NOT challenge the Colorado Supreme Court's finding that Trump engaged in an insurrection under the 14th Amendment, section 3. See Petition from the Colorado State Republican Party.

My points here are simply these: 

First, US Attorney General Merrick Garland and his special counsel, Jack Smith, should have charged Trump with Treason. Doing so would have allowed people to understand what I am saying about the law of Treason. It would have focused even quite a few Trump fans to realize the gravity of Trump's statements and actions. It would force people to grapple with the evidence adduced, and why and how Trump and those around him are unable to produce refuting evidence that any reasonable court would even consider.

Second, as someone who mostly votes for persons with the Democratic Party, I believe it is, from a politically partisan stance, better for the Democrats for Trump to remain on the ballot. But I support law over politics, no matter how quaint that sounds. I think Trump is vulnerable no matter what current polling data says, as we are a long way off to November 2024. I think the economy may be getting better for people with tamed inflation, and people will see how the generally positive economic indicators are now better for them. It remains depressingly unfortunate that Palestinians being killed in Gaza and the West Bank will be ignored, no matter what those of us who oppose Israel's actions believe. But, as with most foreign policy matters over the two plus centuries of American politics have shown, foreign policy matters are most often sadly subordinated to domestic politics even when the US is either enabling or instigating the foreign policy crises. 

I believe the Colorado Supreme Court and Maine's Secretary of State were each legally, and as a matter of constitutional history, correct regarding the 14th Amendment, section 3 to the extent a state does not need to wait for a formal criminal finding against Trump, or wait for Congress to act, when the evidence for engagement in an insurrection is not materially challenged. That italicized part is key! For then, the point becomes as clear as the case of someone running for president who would not reach the age of 35 before the inauguration date. 

The people who are being politically partisan are those who want Trump to be on the ballot and potentially serve again as president of the United States. Democrats who want Trump to remain on the ballots of the various states know what I know about Trump's electoral vulnerability, and are thus good with dispensing with legal arguments for short term politically partisan motives. Either that, or they are  scardey-cat libs who don't want to defend their own arguments. Republicans who want Trump to remain on the ballot are either (a) Trumpers, (b) anti-Trumpers who somehow believe Trump will more naturally implode, or (c) Republicans afraid of death threats or worse from Trump fans for saying what I am saying. 

I think it is past time for people of good will and good faith across the political spectrum to acknowledge the law of Treason reasonably, and frankly, conclusively, applies to Trump's statements and actions. What happened from Election Day 2020 through January 6, 2021 was not Yippies gathering people at the Pentagon to levitate the Pentagon to protest an undeclared and unjust war. Those Yippies and their supporters were not engaging with violent intent or even the type of intimidation the term "intimidation" was meant to convey in US v. Mitchell, supra.  It was not a sit-in in the lobby of one of the Congressional buildings protesting a foreign crisis in which the US is directly enabling and actively involved in. What occurred on January 6, 2021, even when one accepts how some Capitol Police let in those entering the Capitol, was about actions that were essentially about true physical intimidation, and a threat of or acts of violence, through an assembly of truly angry people. In 1968, Pentagon officials didn't run for their lives from yippies and hippies who had flowers in their hair and hands. Senators or Congresspeople did not run for cover during the recent sit-in which concerned a protest against the US complicity with Israel in bombing Gaza. And even the riots that broke out after the George Floyd murder in several cities in 2020 were not organized as riots by the amorphous Black Lives Matter movement leaders.

What is really ridiculous about what Trump did, on top of its illegality, was to push the delusional belief that massive numbers of votes were stolen from Trump and that Trump actually somehow won the popular vote and Electoral College vote. That belief is a lie when it is not a delusion, and a delusion that became for too many a lie. At least with the Whiskey Tax rebels, those peasant farmers were dealing with an actual tax they reasonably believed was unfair to a point where it threatened their livelihoods and small plot ownership. They were not engaged in delusional thinking based upon lies. And even President George Washington recognized this as he pardoned various leaders of the Whiskey Tax rebels toward the end of his second presidential term.

Again, once one focuses on the facts of Trump's statements and conduct, it becomes far easier to understand Trump violated his promise to protect and defend the Constitution. It becomes far easier to see why the Maine Secretary of State and Colorado Supreme Court decided what they did. The procedural and related non-substantive arguments begin to fade away, and make those decisions from the Colorado Supreme Court and Maine's Secretary of State denying Trump the ballot designation as not fundamentally different than denying ballot certification for someone not meeting age or residence requirements. 

I would also like to send this personal message when dealing with Republicans and Trump fans of all stripes: I am of the personal opinion there is a Venn Diagram overlap between those who want to protect Trump and those who were fine with blacklisting Colin Kaepernick from the NFL for taking a knee during the national anthem during football games. Those folks who now want us to believe it is anti-democratic to deprive Trump from being on the ballot or serving again as president with the evidence adduced against him--and Trump's refusal to attempt to actually refute the evidence against him--were and are perfectly fine with a group of billionaires running the NFL to deprive Kaepernick of his entire livelihood to play in the NFL with no due process. Yeah, yeah, the NFL is a privately run organization. However, it is so often tied up with public funds and is an important element for our society's view of itself as a meritocracy of talent, not one's political opinions. With Trump and his words and actions, we are talking about allowing a guy to potentially become president of our nation again when faced with what is materially undisputed evidence supporting a finding of Treason. This is surely not normal, but it is one that people who believe in John Adams' dictum should be outraged about that Trump is this far along the path to the Republican nomination and remaining on various state certified presidential ballots. 

*It should be noted the US Supreme Court ordered the two fellows released for a lack of material evidence against them beyond talk, and that they were not involved in any sufficient action.

Celebrity politics, movements, and the presidential election of 2024

My Congresswoman, Melanie Stansbury, has said, when running for office, the key to success is telling one's personal story. I was appalled at this because it was admission that our politics is built on celebrity culture and the money-power that enables that celebrity culture.

This morning, my feed contained an FB ad for a Latina woman running for US Senate against right wing grifting Republican Rick Scott in the State of Florida. This is what the ad said:

Will you let me introduce myself?

Hello, (emoji) it's Debbie, and I'm the Democrat running to defeat Rick Scott. I immigrated to America when I was only 14. My family lived in a one-room apartment, and I picked up shifts at the local doughnut shop to help make ends meet.

Florida has given my family so many opportunities. I refuse to let right-wing radicals push my beloved home state backwards. And there's no question my opponent will write million-dollar checks to fund his campaign. I need your help to defeat him. Please, will you chip in before midnight tonight to flip Florida blue?

Thank you. Debbie (heart emoji)

In this ad, we learn NOTHING about this woman's policies and whether she would actually stand up against the establishment forces that made her mom's life so hard. Too often, these sorts of people get to DC and are dazzled by the wealth and power. See: AOC. They don't have a Kshama Sawant approach to politics because the politics which got them elected is about self-actualization, not community justice. 

My take about the presidential election in 2024 is none of the duopoly's candidates are going to stop Israel's genocidal attacks on Palestinians in Gaza and increasingly the West Bank. None are going to stand up to the military-industrial complex. None. But, Trump has truly become the fascist personified in American politics, and is the likely primary winner. And the court system, other than Colorado's Supreme Court, is too timid to stop an insurrectionist who broke his previously made promise to protect the Constitution--and where the plain language of the 14th Amendment, Section 3 says such a person should be barred from re-standing for or regaining office.

The answer is in movement politics, whether in labor, civil rights, or environmentally based. The thing about Biden is he is more moveable on these issues than anyone else in the current duopoly in ways that may improve the situation domestically or in foreign policy. To ignore his court appointments, NLRB appointments, and FTC appointments is to miss a lot. They are better than the last six presidents.

Yes, I know Biden has completely enabled the Israeli genocidal policies, and is a devotee of the military-industrial complex. However, even there, we may find a positive effect in a different direction when I see so many White House staffers willing to stick out their necks against the continuation of pro-Israeli policies.

I don't expect to vote for Biden necessarily in a state where Biden will win by 10-12 points, and, if you are in a state that expects to vote for Trump by 20 points or more, a third party vote makes a lot of sense (I have different numbers so that it is clearer that Trump's victory will be based not on the national popular vote, but on the outdated and harmful Electoral College).  However, as of December 28, 2023, I may, in my State of New Mexico, vote for Biden's reelection next November. Again, it is about not making things worse as there are signs of hope in labor, environment, and civil rights movements. I also believe the economy may well improve with good wages in 2024 if the Fed allows for lower interest rates and doesn't try to sabotage the economy, as I had thought the Fed Chair would do. The irony there is it will increase the opportunity for Biden or another Democrat (in case Biden has the inevitable physical fall) to prevail without the votes of people such as me. That is why I used the term "irony" because I may be more comfortable withholding my vote for the duopoly in that circumstance. If it is not Biden, but another Democrat, we will also see if Biden's replacement, too, is one who is malleable. In that scenario, I am less certain a Biden replacement, even a Newsom, is worth voting for to the same extent as Biden as they are far less likely to be pushed in the way Biden has been pushed on labor, civil rights, and anti-trust actions.

I should say I don't think this is about weakness with Biden. I think Biden sees himself as old and recognizes this is his moment. He is still a believer in the New Deal and the fundamental mythology surrounding our World War II behaviors. It is what drove his desire for bipartisanship, I should also add. But he has been largely disabused of that latter notion, which has made Bernie Sanders more influential in labor, anti-trust, and judicial appointments. He is, though, hit and miss on environmental issues. Hence, again the primary importance of movements.

Finally saw "Barbie" on Max and loved it. Here's why...

We finally watched "Barbie" on Max last night as we had tried twice after its release to see it, but missed out due to over-crowdedness with no decent seats, and once, when we walked out after five minutes as too many kids were crying and screaming in a matinee. I mean, we are old people, now, right?

 

My take on the film was that it was a wonderfully crafted film from the dialogue to the sets to the cinematography and direction. I found it a brilliant film not about feminism per se, but gender in the "gender theory" way. It was at least as much about Ken first being confined in Barbieland, but then confined in a different way when he instituted patriarchy. It is also how we see where patriarchy also creates hierarchies among men, but they know they are still "better" than women.

What I found myself grasping toward, but needed our daughter to take me there, was this was actually a "coming-of-age" story for both Barbie and Ken. The review below this post from a young woman writer from India nailed what our daughter explained when I asked her how it was a "coming-of-age" story for both Ken and Barbie. I said she should write up that explanation as I had not seen this. She replied, and I paraphrase, "Dad, if you research the Internet, you'll find something. I saw it, but I was not the only one saying this to all these people who only looked at the film from the 'girl power' angle." She is again correct. This young woman's review below nails it and I urge all to read.

What I was most impressed with the film was director Gerwig's recognition her desire to tell the story of Barbie dolls' relationships to young girls meant she had to always run it by the corporate suits. The film was ultimately green-lighted to sell more plastic dolls and plastic accessories, which was a short term consequence at best. Yet, Gerwig directed a film that should be studied in sociology classes--and not just film-as-literature classes. Gerwig got away with telling a story that one as an adult should first and foremost transcend mindless consumerism. This was even more so than the "Lego Movie," which was itself subversive in that Cheap Trick song, "Surrender, surrender, but don't give yourself away." But more than that, and most importantly, "Barbie" is a film about human liberation. It is a film about telling us not to confine ourselves to cultural expectations based upon our genitalia. Greta Gerwig and her husband Noah Baumbach crafted a primary color filled and fun series of sets--and a great trip through west Los Angeles area--for an enlightened, yet humor-filled hopeful story for us striving to be better human beings all around. This point also appeared in the film's re-evaluating the meaning of all of the other Barbie dolls that were tried and which failed to make a public impact. That last was definitely brilliant because it was a re-imagination of these now discarded toys through a sociological lens. In that regard, too, the character arcs of Weird Barbie and especially Alan were structured in this idea of giving an individual yet societal meaning to plastic toys on our own imaginations and our own psyches.

With regard to specific scenes in the film, I loved how Gerwig had Helen Mirren as narrator break the fourth wall completely and critically, saying "Note to filmmaker" that maybe having Margo Robbie try to say she is not pretty is actually impossible as Margo Robbie is our era's personification of pretty. That made me laugh loudest in the film, I think. Gerwig also allowed Rhea Perlman to kindly and poignantly tell the real story of Ruth Handler, the co-founder of Mattel and creator of Barbie, including two mentions of the IRS actions against her and the co-founders that ended in her (and their) conviction for tax fraud--and even her breast cancer which ended with a radical double mastectomy. There were multiple instances in the dialogue, which was fast paced in that Preston Sturges manner, where a Chomkyesque analysis of society came through. 

However, as is, alas, usual, amidst the popcorn and soda, and corporate marketing, too many Americans got focused on the "girl power" Sheryl Sandberg "lean in" feminist neoliberalism against what were most definitely atavistic, hateful, reactionary responses of the FoxNews media machine. This film was and is so, so much, more.

Everyone who hated this film, from the right wingers (again mostly men) to leftists too focused on this being produced within a big budget corporate environment, missed the overall brilliance of this film. I think right wingers really need psychiatric help as their responses were so filled with violent and disturbed emotional reactions which revealed, deep down, they emotionally understand these types of analyses. However, they are afraid to engage with that type of analysis for fear of becoming what they fear. Behind right wing violent bravado is fear, and the loathing that arises from that fear. But let's not stop there. 

For those who thought this was essentially about "girl power," such persons (mostly women I think) need to interrogate this much further. They miss the part about gender theory that says patriarchy limits men's conceptions of themselves as human beings, even as it exults men. There is definitely "girl power" in America Ferrera's now iconic speech, where I wanted to stand up and applaud for how many of the levels women suffer even today in our supposedly more enlightened society. But, we need as humans to go beyond mere feminist neoliberalism and recognize liberation is to see beyond gender, genitalia, and physical power. 

As for those lefties who simply accept the corporate assumptions, what I would say is get yourselves more imagination. "Barbie" gives us a way to engage in the important conversations. Gerwig miraculously and mischievously got this by the corporate suits, even the women Board of Directors at Mattel who were left out of the film, as the otherwise odious and shallow Bill Maher noted. I think the reason there were no women was the attack on women neoliberals, and their complicity in continuing the patriarchy in its main form, would have been too obvious--to the point of their not approving them being exposed. Bill Maher, of course, is too shallow to see that dynamic and went for the cheap shot.

Here is the review I spoke of from Mahi Goyal. 

The Fifth Circuit is not interested in free speech, but only owning libs

I have to say, I finally got to read the 5th Circuit opinion, thanks to Talking Points Memo (TPM), granting a preliminary injunction against a variety of government agencies from communicating with FB, Twitter, and YouTube. I found the court decision terribly unpersuasive because there is nothing in the governmental communications rising to the level of "significant encouragement" that amounts to a "coercive threat" from government officials. That the individual government officials were active in the court's eyes only showed me the judges are not used to the level of, and rhetoric people use in, email exchanges that go on these days when any group or institution is facing a hot issue. In that context, it was stunning to me that the rhetoric from the government officials was not anywhere near where the rhetoric from Twitter's pre-Musk-takeover critics made it sound. 

More significantly, the court provided no evidence of the government saying to the platforms it was going to take away FB/YouTube's right to operate, the way US government officials strongly implied or sometimes stated directly to William Paley, CEO and Chair of the Board of CBS, that CBS' license would be removed through the Federal Communications Commission (FCC) for its taking a stand against Joe McCarthy or airing a report on how the Pentagon is tied up with corruption within the military-industrial complex. The most the court could say existed was once--once!--an official said they needed to "review....options" when the official was exasperated with a social media platform company's "too slow" or nonresponse. There is no showing from the court there was any further move, and, what is lacking in the decision, are higher ups or anyone with authority saying, "Oh boy!  The government's gonna shut us down or put us out of business if we don't comply!"

What is outrageous to me is how the court did not even try to distinguish the previous case law it cited that went against its own reasoning, including Senator Elizabeth Warren literally threatening a governmental investigation and recommending a lawsuit, through the Justice Department and the FTC, against Amazon for not agreeing with her being found to be NO VIOLATION of Amazon's First Amendment constitutional rights. Other cases the judges cited, with facts showing more direct or clear threats than in the case they were being asked to decide, led to NO finding of any violation of the First Amendment.  The case the appellate judges seemed to find most analogous was a horse racing agency head in Louisiana which was part of a private entity's decision to remove someone from a horse racing outfit. But there was direct government hand-in-glove evidence in that case, and if we learned anything from the Twitter Files, it was that Twitter's people above those responding to government emails and calls were really not afraid to disagree with the government at all. 

The judges seem to think the government officials implying they might have to go to Congress to change laws is a threat in an environment where open 24/7 coverage abounds is laughable. It is also laughable where the Republicans in Congress were threatening the social media companies for agreeing at all with Biden officials, so the social media companies could have easily said "Stick it!" to the Biden officials.In that context, it was delicious to read the judge's admission that Biden's people were following rules put in place and USED by the Trump administration. They didn't mention, too, how Trump personally tried to get Twitter to shut down an individual singer or another singer's wife. So much for free speech from Trump and his fans. Further, the "Hunter Biden laptop story" was one where the NY Post initial story was shut down from Twitter and FB for one day, and then restored, and how that story went around so much that it is estimated 53 million saw the post in a ten day period in October 2020 (let alone other media coverage). I mean, really, did any voter not know about that story? 

To give credit where credit is due, though, were there instances of changes in algorithms that removed content that was not in violation of the social media companies' revised rules, which again were not shown to be coerced or anything close to that? Sure, say the judges, and I believe them on that. But what the judges don't say is how those people were re-platformed most of the time, if not all the time. In this context, I find it telling of the judges' biases that missing from their decision is the fact showing how many times and at what rate the government requests to Twitter went unheeded or rejected after Twitter's internal meetings. That came out in the hearings, which I admit I can't find the exact link--as I remember being so surprised to hear that in clips I saw of Twitter executives about how many times they rejected the government's requests. Also, let's remember how we learned Twitter gave in to Trump's usual garbage when it went against their own policies, which severely undermined the partisan-based argument Republicans and Matt Taibbi were making, and one Twitter publicly regretted. 

Incidentally, does anyone not wonder how it is that, since Elon Musk took control of Twitter, the social media giant appears to have been more compliant with government requests to remove content than under previous CEO Jack Dorsey?  Irony alert to Musk Fans.

What was really awful in the decision is the judges' discussion of the FBI. All they showed is the FBI, in the 2020 election, was on the lookout for Russian hack and troll farms. The judges' decision never bothers to explain how that activity, and sometimes communications with the social media companies, had any language in the communications that would lead the social companies to believe they were in legal danger in not complying with requests to remove the information, or really most of the time, ridiculously wrong information, such as political operatives intentionally posting wrong times of the election day and wrong times of when polls opened or closed. They simply state that was the case, and don't even think there could be any justification for a government official to contact the social media outlet and say, Let's get that removed so people are not misled. 

As I read through this opinion, I wondered from time to time how William Paley and Lenny Bruce would view the actions of the government the judges were citing. I eventually thought, "Wow. Those two guys would just laugh at this!" I am not saying that should be the legal standard, but the court decision cites to multiple cases that were far more direct where there was no relief, and tried to use factual situations in cases where there was direct action as in the Louisiana horse racing agency.

I have no idea what the six right wing justices of the US Supreme Court will do with this. I used to think of myself as a major First Amendment advocate and free speech absolutist. In the Internet Age, the two main theories behind my position, ones which free speech supporters have said for nearly 100 years, have been undermined. The first is: "We live in an information marketplace where good information will drive out the bad information, so don't get the government involved." Well, that certainly has not worked out that way very well, has it? Second, the reason for First Amendment absolutism is the assumption that "the people" will be able to discern lies from reasonable levels of truth. Well, we see how people are unable to discern differences between an opinion and fact, an argument versus a conclusion, and discern where language is emotional and language which is logical. Worse, despite having a vast library in the palm of their hands, and yet, too many people fall for every meme without any checking or God forbid, researching. Thus, my Jeffersonian free speech arguments, which I have so believed for so long, have faced a direct challenge for which I have yet to find a conclusion that can be categorized in any truly consistent manner.

What I do know is there are 2020 election lies that tens of millions of adult Americans continue to believe. I do know of people who suffered near death or death because they didn't take the COVID vaccine, because yahoos spread so many lies and misunderstood fears--notwithstanding strong evidence that not taking the vaccine leads to higher death rates (the Johnson & Johnson vaccine did appear to have a 5-8% chance of causing someone to develop Guillen-Barre syndrome, though, which I can chalk up to the government not being harder on J&J when the Moderna and Pfizer vaccines were already out there and had no such level of rates). And let's remember there are people who are actively promoting lies of various types to, in the words of Steve Bannon, "flood the zone."

First Amendment jurisprudence has still not caught up to the modern social media age, nor are our courts even prepared, due to their economic right wing biases generally, to evaluate context and the significance of corporate media ownership. This decision was cynical in not attacking the private company decisions, and making it sound like the poor social media companies, behemoths all, were being coerced. It is ultimately a decision that makes one think they are standing up to fascism, but they are using anti-fascistic philosophical values and language in the service of promoting people who more likely, in my not-humble opinion would set up a fascist form of government if they had the opportunity. Does that include all of the plaintiffs in this case? No. I see the doctor activists and other activists as sorta flaky and leftover hippies, not fascist, and therefore far more likely libertarian. The State AGs from the states which brought the action, and the Gateway Pundit, however, are enough to scare me if THEY were ever in control of our national government.

Justice Harlan's dissent should not be ceded to the right wing judges

Sad to say, but Jammele Bouie, in a recent NY Times op-ed, has overstated his point regarding Harlan's dissent in Plessy v. Ferguson (1896), just as Roberts and a host of conservatives continue to overstate Harlan the other way. Bouie, however, is definitely closer to reality about the limits of Harlan's dissent and why it should not be treated as a sacred type of document. Bouie is also correct Harlan was no friend of Thaddeus Stevens' worldview, opposed the Reconstruction Amendments when they were enacted, and was at best paternalistic towards African-Americans. Further, Harlan was, sadly, a late 19th Century economic liberal, who did not at that point, believe in the government providing many positive economic benefits that would also constrain private power. 

Bouie links to what purports to be Harlan's full dissent. However, the link does not contain the full dissent, as it misses the opening of Harlan's dissent where his recitation of the facts shows more fealty to the reality of the imposition of segregation than the majority opinion. While the full text is, admittedly, not as important to Bouie's argument, I believe the dissent is best read in full from start to finish. 

I initially posted what I am about to recite at FB. However, I realized I should post it more permanently here as I am seeing too much easy assent to Bouie's position. Where I disagree with Bouie is that Harlan's dissent has important statements which are of use and value to those of us who oppose the right wing's jurisprudence and wish to re-affirm what many progressives wish to see in terms of criminal justice reforms and affirmative action in jobs and educational opportunities. More specifically, this reading of Harlan I propose is helpful for those of us concerned with the 13th Amendment loophole, which leads to much higher incarceration rates and limits on freedom for African-Americans, and to a lesser but still bad extent, Hispanics, through today, starting with the misdemeanor system referred to in the History.com link about the "loophole."

Also, Harlan's language regarding the 14th Amendment shows, beyond John Roberts' crabbed view of that amendment, there is, in fact, an ameliorative intent to directly assist African-Americans that would have allowed for an argument that Harlan may have later agreed to regarding the need for diversity and affirmative action--just as Harlan, in 1908, went against his 19th Century economic pro-capitalist liberalism in holding, as constitutional, an Oregon state law that set maximum hours for women in the workplace--based upon the famous Brandeis brief citing to sociological and economic studies of the time. See: Mueller v. Oregon (1908). Harlan had been a confirmed neo-classical capitalist in the last decade or so of the 19th Century, and against government intervention, but came around in that case based upon reading the sociological information. One may wince at the sexism inherent in how the justices reached that decision in Mueller, however, but it was, as Frances Perkins and Florence Kelley recognized at the time, any port in the storm of the era known as the Gilded Age Court. NOTE: Kelley hired Brandeis for the Mueller case.

 

The following is language from the Harlan dissent I find most interesting, plus my response to Harlan's language, which shows why I believe Bouie is wrong to cede Harlan to Roberts, Thomas, and the other judicial reactionaries who control the US Supreme Court:

HARLAN DISSENT: "The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged." (Emphasis added)

MJF RESPONSE: Hmmm....maybe the entire set misdemeanor laws that were enacted after the US Civil War to ensnare African-Americans, and which continue to ensnare African-Americans far more than white folks, may be constitutionally evaluated under Harlan's pronouncement--especially as the right wing are going to continue to cite Harlan's dissent in Plessy as though it was the new law of the land. 

HARLAN DISSENT: "The words of the (14th) amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." (Emphasis added)

MJF RESPONSE: Read the above carefully and note what I have emphasized. Catch the phrase "necessary implication of a positive...right" with the contextual term "unfriendly" with respect to the word "legislation"? Notice a right to a lessening of the security of their enjoyment of the right which others enjoy or discriminations which are steps towards erducing them to the condition of a subject race. Clarence Thomas and the majority opinion want the world to believe the Freedmen's Bureaus set up to directly help African-American slaves after the Civil War were class based, not raced based. The dissent demolishes that argument, as race was certainly on the minds of both advocates for and advocates against the Freedmen's Bureaus. One may wish to consult this monograph to see why the dissent is correct. The fact that a few lighter skinned people got the benefit does not change the main point of an intent that was about race. To think Harlan himself missed the ameliorative intent of the Freedmen's Bureau to positively help African-Americans is to be naive to a cynical degree, particularly because there is direct evidence Harlan supported President Andrew Johnson's racially based veto of the Freedmen's Bureau bill, which went into effect after Congressional override of Johnson's veto. See: page 76, Beth Loren's biography of Harlan, John Marshall Harlan: The Last Whig Justice (1992, U of Kentucky Press). 

Further, Thomas, for decades, has argued there is a stigma attached to any African-American or Hispanic who attains an Ivy League degree or gets a managerial position, as if anyone thinks there is any appreciable stigma for a legacy admit into an Ivy League college and gaining a degree--or gains a top management position. Or if somehow the supposed stigma must override the need to get into the elite college or management position in the first place. Too often, this concern over stigma is used to assuage right wing guilt that their overall intent is, in fact, to deprive present or future African-Americans and Hispanics of the ability to gain access to elite education and promotions at work. It is, in my view, a bad faith argument for right wingers to focus on some supposed stigma in order to judicially overturn Harvard's and UNC's programs as they relate to African-Americans and Hispanics. It shows right wingers intuitively understand that they need to get around Harlan's point that "friendly" pro-African-American legislation may still be consistent with an overall drive for equality under the law. 

Yes, with respect to Asian-Americans, it was a close call, but let's understand right wingers use Asian-Americans they way they use homeless veterans when opposing any laws designed to help immigrants or undocumented workers. In short, the argument about stigma is a rhetorical device, not a true concern. It is why most Asian-American groups filed a brief supporting Harvard and UNC's diversity admissions systems. Also, while a majority of Asian-Americans oppose affirmative action, likely based upon media presentations, Asian-American students at elite campuses support affirmative action as they see up close how those who are arguing against affirmative action are not comrades in the struggle for equality and non-discrimination.

The point is this: Harlan clearly recognized legislation regarding issues of racism in our society can be friendly or unfriendly to African-Americans, and recognized a Congressional law or private sector program that has a stated good faith intent to help African-Americans may be appropriate and constitutional under the 14th Amendment. Harlan, in the tradition of John Marshall (and James Madison), also recognized there are by "necessity, implied rights" in constitutional pronouncements, including the 14th Amendment. See my blog post which cites Marshall and Madison stating there are implied powers as well as express powers delegated to the US Congress. Once this is understood, one sees how Harlan could be cited to support affirmative action, notwithstanding the soaring rhetoric he mostly uses about the Constitution being colorblind. 

Yes, again, Bouie is right that Harlan is not the most reliable guide, and his own personal shortcomings come out in his phrasings, even when Harlan sadly but correctly notes the 14th Amendment was written in the context of anti-Chinese prejudice--as Harlan's language in the dissent is horrible and awful in its racism against Chinese people becoming American citizens. But, let's not leave Harlan's dissent to the right wing, particularly when the right wing does mean to enshrine white supremacy, knowing, with a wink and a nod, that America's culture and economic systems would support white (and Christian nationalist, as opposed to Christian) supremacy despite the law now saying "Don't discriminate on the basis of race."