Compare and contrast

In one case a noxious man’s hoax is forgiven, in the other a noxious hoax is employed to destroy many men.

When Prosecutorial Discretion Is Woke

Death Threats and Drained Bank Accounts: Life on the Wrong End of the Mueller Probe

In both cases, it’s Progressives in charge.

Update 11:22:
“The Illinois Prosecutors Bar Association issues statement condemning the Cook County State’s Attorney’s handling of the Jussie Smollett case.”

A note on Mark Steyn

Mark Steyn features in a couple of the links which will appear soon in a 14th Anniversary post for this blog, but I’m not waiting for February 19th to post this bit.

This Just In!
A Cockwomble Reaches for The Hockey Stick

Steyn could use your help defending himself, and the First Amendment, against both Michael “Hokeystick” Mann and Cary “Crazy” Katz.

Punitive lawfare is a preferred weapon of the anti-freedom-of-speech elite, and Steyn is at the forefront of these fights because he wouldn’t abase himself.  Under the US justice system, the process has become the punishment.

The Mann case has dragged on for 8 years.  Katz, who definitively lost a suit he initiated against Steyn (and refuses to pay up), is a very rich guy who… well you’d have to read about what an evil looter he is, and we don’t have space here.

Support Mark Steyn.  Buy a book, a mug, a t-shirt, a CD, or, better yet join The Mark Steyn Club.

His fight is your fight.

The Great Loyalty Oath Campaign

I oppose BDS (Boycott, Divestment, Sanctions – of and against Israel). It is conducted on behalf of lawless, racist tyrants against the Middle East’s only democratic government. Nonetheless, this strikes me as unconstitutional.

A Texas Elementary School Speech Pathologist Refused to Sign a Pro-Israel Oath, Now Mandatory in Many States — so She Lost Her Job

It’s certainly repugnant.

I think the headline would be more accurate if it said “Refused to Abandon Her 1st Amendment Rights.”

A children’s speech pathologist who has worked for the last nine years with developmentally disabled, autistic, and speech-impaired elementary school students in Austin, Texas, has been told that she can no longer work with the public school district, after she refused to sign an oath vowing that she “does not” and “will not” engage in a boycott of Israel or “otherwise tak[e] any action that is intended to inflict economic harm” on that foreign nation…

[The oath] would bar Amawi not only from refraining from buying goods from companies located within Israel, but also from any Israeli companies operating in the occupied West Bank (“an Israeli-controlled territory”). The oath given to Amawi would also likely prohibit her even from advocating such a boycott given that such speech could be seen as “intended to penalize, inflict economic harm on, or limit commercial relations with Israel.”…

The bill’s language is so sweeping that some victims of Hurricane Harvey, which devastated Southwest Texas in late 2017, were told that they could only receive state disaster relief if they first signed a pledge never to boycott Israel…

This required certification about Israel was the only one in the contract sent to Amawi that pertained to political opinions and activism. There were no similar clauses relating to children (such as a vow not to advocate for pedophiles or child abusers)…

How is this different from legally compelling teachers to use made-up pronouns?

In order to obtain contracts in Texas, then, a citizen is free to denounce and work against the United States, to advocate for causes that directly harm American children, and even to support a boycott of particular U.S. states, such as was done in 2017 to North Carolina in protest of its anti-LGBT law. In order to continue to work, Amawi would be perfectly free to engage in any political activism against her own country, participate in an economic boycott of any state or city within the U.S., or work against the policies of any other government in the world — except Israel.

I’m reminded of Chapter 11 of Heller’s Catch-22. Captain Black conducts the Great Loyalty Oath campaign:

““The important thing is to keep them pledging,’ he explained to his cohorts. ‘It doesn’t matter whether they mean it or not. That’s why they make little kids pledge allegiance even before they know what “pledge” and “allegiance” mean.’ To Captain Piltchard and Captain Wren, the Glorious Loyalty Oath Crusade was a glorious pain in the ass, since it complicated their task of organizing the crews for each combat mission. Men were tied up all over the squadron signing, pledging and singing, and the missions took hours longer to get under way. Effective emergency action became impossible, but Captain Piltchard and Captain Wren were both too timid to raise any outcry against Captain Black, who scrupulously enforced each day the doctrine of ‘Continual Reaffirmation’ that he had originated, a doctrine designed to trap all those men who had become disloyal since the last time they had signed a loyalty oath the day before. It was Captain Black who came with advice to Captain Piltchard and Captain Wren as they pitched about in their bewildering predicament. He came with a delegation and advised them bluntly to make each man sign a loyalty oath before allowing him to fly on a combat mission.””

The First Amendment especially applies to speech you don’t like. I would agree that a speech pathologist’s duties should exclude political advocacy; but that is an HR matter, and not in evidence here.  It is not something to be applied to her personal shopping decisions or off-duty speech by state law.

MI Prop 2 – NO. Prop 3 – NO.

I’m generally suspicious of ballot-initiative changes to Michigan’s Constitution, and we’re facing some especially ill-advised Constitutional change Proposals in this election.

Proposal 2 is intended to fix a re-districting problem, and taps into the general suspicion of government and a burgeoning populist sentiment.

A “no” vote opposes transfering [sic] the power to draw the state’s congressional and legislative districts from the state legislature to an independent redistricting commission.
More from Ballotopedia

“Independent” sounds good, but the devil is in the details. This proposal’s major flaw is vagueness, followed closely by unnecessary complication.

Here is a link to a neutral analysis from The Mackinac Center. I am not presenting both sides here, since it’s well done at the link, but I will quote briefly from the section on arguments against Prop 2. If you want the pros, too, click here.

Many terms in Proposal 2 do not appear to be clearly defined. For instance, the secretary of state would be required “to ensure that [applicants for the commission], as closely as possible, mirror the geographic and demographic makeup of the state.” A number of different demographical factors could be used for this purpose, including age, race, income, gender, education level, ethnicity, sexual orientation and religion. Yet, the proposal is silent about which ones matter. Presumably, this question will be left to the discretion of the secretary of state.

Another potentially problematic concept is “communities of interest,” which districts drawn by the commission are required to “reflect.” Although the proposal states that these could be populations that share “cultural or historical characteristics or economic interests,” it also states that communities of interests “shall not be limited to” these definitions — essentially making it an open-ended term. And while 24 other states use this term or something similar in their redistricting guidelines, most provide either a more concrete definition or qualify this requirement with phrases like “to the extent feasible” or “where practicable.”21 By including these poorly defined concepts and others, Proposal 2 may inadvertently grant the secretary of state a significant amount of power over the redistricting process.* Further, ill-defined concepts are fertile ground for litigation, and the proposed commission’s maps may be continually challenged in court…

Proposal 2 would create a completely new redistricting process and commission. Michigan would join the few states that use a similar mechanism for redistricting. Taking this step may be unnecessary, and a simpler alternative might fix the Michigan Constitution to make the original redistricting rules established in 1963 valid and functional again. These original redistricting rules were deemed unconstitutional because they required redistricting officials to considered both population and land area when determining district boundaries.22 Removing land area from the redistricting formula would likely render these rules constitutional.

We’ve seen what regulatory discretion can do at the Federal level when it is bounded by vague constraints. Congress turned over so much legislative authority to the Secretary of Health and Human Services that Obamacare’s provisions are interpreted according to who occupies the White House. This is also true, for example, of regulation under Title IX, regulation from the Consumer Financial Protection Bureau, and regulation by the Federal Communications Commission. This is not how the rule of law works. It makes the law explicitly political.

No matter your political leanings, you can certainly imagine a Michigan Secretary of State whose definitions of “age, race, income, gender, education level, ethnicity, sexual orientation and religion” would make you uncomfortable. You would also probably be wary of what a person who opposes your preferred outcomes might do with “communities of interest.”

As for the idea that the proposed redistricting commission would be non-partisan:

Democrats and Republicans on the commission will likely vote en bloc, each supporting a single plan submitted by one of their own.

This would result in making the votes of the five members who do not self-identify with either party the determining votes in which plan gets approved.‡ And if no other plans are submitted, these five members will be forced to choose between a Republican-supported plan and a Democrat-supported plan. No matter the outcome, Michigan would still have a new district map designed by partisans. Further, even if one or more nonpartisan members submit a plan for final approval, that plan must get the approval of at least two commission members who are affiliated with one of the major parties. Because these groups will likely vote en bloc, in order for one of these plans to be approved, it must gain the support of either the Democrats or Republicans. So in this scenario too, the approved plan would rely on partisan support.

No, on MI 18-2.

Proposal 3 Constitutionally enshrines: 1) the secret ballot and, 2) that military members and overseas voters receive an absentee ballot at least 45 days before the election.

These are good things, but putting them in the Constitution does not make up for other things Prop 3 places there. In my opinion, they’re there to fool people who would otherwise vote No on Prop 3. They are currently enforced by Michigan legislation, and represent no change in practice. I cannot see any legislative effort to ever change them. Further, those military voting rights are already covered by US Federal law.

More from Ballotopedia

Here are the worst things Prop 3 places in the Michigan Constitution: 1) Election day registration to vote; 2) Mandating the straight-ticket voting option; and 3) Automatic voter registration upon issuance of a State ID/Drivers License.

Overall, Proposal 3 is worse than Prop 2. It weakens the State’s ability to ensure only citizens can vote, and enshrines the idea that some voters are too lazy to check more than one box, and/or too rigidly ideological to vote for candidates not from a single party. Among other things, this greatly reduces the chances we’ll ever elect, for example, Libertarians, Greens, or Democratic Socialists. It’s equally offensive to all possible third parties.

So, No on MI Prop 18-3.

A trout in the milk

Unfortunately, the DoJ IG report failed to reach any number of stunningly obvious conclusions about breach of trust by FBI and DoJ executives, because none of them overtly stated in any surviving official document that they were intent on subverting the 2016 election.

Will no one rid me of this meddlesome priest?” seemed to be a good enough model.

I don’t think I’ve ever seen a better illustration of Henry David Thoreau’s dictum; “Some circumstantial evidence is very strong, as when you find a trout in the milk.” Along with some river pebbles, sea shells, lilly pads, and sunken treasure.

The IG’s Report May Be Half-Baked
By ANDREW C. MCCARTHY
June 15, 2018 2:08 PM

If you don’t know him, McCarthy “is a former assistant U.S. attorney for the Southern District of New York. He led the 1995 terrorism prosecution against Sheikh Omar Abdel Rahman and eleven others. He also contributed to the prosecutions of terrorists who bombed U.S. embassies in Kenya and Tanzania. He resigned from the Justice Department in 2003. He is a contributing editor of National Review and a senior fellow at the National Review Institute.”

IMO, he’s the best single analyst of the venality and corruption at the highest levels of the DoJ and FBI.

RTWT.

The Supremes sing "Freedom’s just another word for someone else to loose"

Kenneth Anderson, law professor at the Washington College of Law, American University, is also a member of the Hoover Institution Task Force on National Security and Law. He writes about the Boumediene decision here:

Supreme Court Flexes Its Muscles in Boumediene Decision. Read the whole thing.

…Habeas at Guantanamo affirmed in principle. But developing actual standards for individual cases — what the specific rights of detainees are and how they should be weighed against real-world security concerns — was handed off to the myriad federal district courts. The Court offered no glimmer of what it thought actual, workable principles should be. It is evident that Justice Kennedy has no idea; he simply believes that district courts will be better and, perhaps, have greater legitimacy at it – particularly in the world of global judicial elites in Europe in which Justice Kennedy basks – than the American people’s elected representatives.

On June 12th, I called this SCOTUS Europhilia an example of “…the insidious weakness of Western Civilization’s leftist guilt-quest for cultural self-esteem,” contending (in the comments) that, “the motivation arises from cultural guilt parallel to the Shelby Steele model: It has far more to do with the moral redemption of the 5 Justices than with the law…” The long link above is from Professor Anderson’s original article and it links to an article in The New Yorker magazine subtitled, How Anthony Kennedy’s passion for foreign law could change the Supreme Court. It was written in 2005. It didn’t take very long to come to pass. For anyone who’s been hanging out with Ted Kaczynski for the last 40 years, I’ll mention that The New Yorker is a “progressive” magazine. They approve of Kennedy’s sycophancy.

Here’s more from Professor Anderson:

…Prior to Boumediene, I would have said that the Court’s main concern has been that the war on terror is not “war” in the traditional sense, operationally or legally, and that just because the political branches call something war does not mean it actually is war, at least not if a consequence is the executive’s ability to detain anyone — which is where the administration started out, back with Jose Padilla, a U.S. citizen — as any enemy combatant solely on its say-so. If habeas did not apply to that claim of executive power, what was it good for? It is a fair question, but one that, as the chief justice noted in his dissent, is covered not just for citizens but even for aliens, by the MCA and DTA. Why the need to go beyond those? After Boumediene, it would seem to matter only if you see this as part of a larger project to carry the Constitution abroad, insofar as American agents and military act beyond U.S. borders, and to transform warfare into a species of large-scale law enforcement. If you are required to collect and preserve evidence in order to be able to hold alien security detainees picked up in foreign war zones, after all, war has become a very different activity.

Emphasis mine, because I agree with it. As I pointed out to an anonymous Ontarian in comments to that June 12th post, “You consider that laws of the United States ought to apply to foreign nationals on foreign soil. I can’t help but remember chief CHRC [Ironically, that’s the Canadian Human Rights Commission.] investigator Dean Steacy’s comment that, “Freedom of speech is an American concept, so I don’t give it any value.””

We can’t even export the responsibilities of American law to Canada in defense of its own Charter of Rights, but “enlightened” Canadians think we should be Mirandizing Osama bin Laden (as do Barack Obama’s advisors), Disagree and it means you’d like to see the Constitution “ripped up”. Thanks, but Anthony Kennedy is already on that job.

…Justice Kennedy is a human rights universalist — habeas corpus for aliens as for citizens, contrary precedents like Eisentrager be damned. And yet Afghan and Iraqi lives apparently are at a steep discount in the Boumediene majority’s weird, morally preening settling of accounts between liberties and security; so too, eventually, are American lives.

The obvious problem with exporting American Constitutional rights to foreign nationals is that we have no way to require any of the cultural behavior expected to be associated with having those rights. I wasn’t joking about Mirandizing terrorists, it is a straight line to that from believing habeas rights are due to POWs or enemy combatants on foreign soil. The only appreciation shown by those who respect neither habeas nor free speech is likely to be glee in killing more people who disagree with them.

I understand the objection: “You can’t just lock people up forever without lawyers because George Bush says so!” And I agree, but this is not at issue. How did this case come before the Supreme Court if Lakhdar Boumediene was denied a lawyer? Answer: He wasn’t. Access to lawyers, and to the Circuit Court of the District of Columbia, was part of the procedure to which Congress and the President jointly agreed, at SCOTUS’ direction. SCOTUS then found these protections inadequate on grounds it needn’t even have considered in this case. It was, indeed, a sad day.

See also, for more links to commentary on this decision.

International Law


A couple of items come together here regarding Constitutional interpretation in the United States (several more await attention).

This post examines the wisdom of looking to other countries for jurisprudence (or maybe jurisimprudence). I.e., the idea that foreign legal practice supplies appropriate counsel for the Supreme Court of the United States.

In the case of the “juvenile” death penalty decision Justices Kennedy and Breyer looked to alien law. So far as we know, that was Europe. They certainly paid homage to foreign countries’ “respected and significant confirmation” of the Court’s judgments.

Looking to foreign jurisdictions is a slippery slope that allows justification for almost any “legal” interpretation. That this is not obvious to 5 members of SCOTUS is worrying at the very least.

SCOTUS could just as easily defer American constitutional principle to sharia (the Islam-derived legal code whose meaning and interpretation vary according to different theological schools).

Certain interpretations of sharia demand that homosexuals be put to death; the question of their age being entirely subsidiary to the method of execution: either being thrown off a tall building or having a wall collapsed on them.

Kennedy and Breyer avoid citing this theory of punishment in their majority opinion on the “juvenile” death penalty. Instead they found foreign legal practice that reinforced their preexisting policy preferences. In principle, such as they possess, nothing would prevent them from looking to sharia for guidance in the next case.

That case could be a further ruling on first amendment free speech provisions, depending on what the Federal Election Commission perpetrates regarding Internet speech.

Our Supreme Court has already mangled free speech in upholding the McCain-Feingold campaign finance reform act, and our District Courts have demanded regulation of such speech on the Internet.

These threads come together, strangely enough, in Canada.

Ontario is now considering changes to its family law act that would place domestic (family) legal disputes under sharia.

This seems very strange. Isn’t it in domestic situations that women need the most protection? Off the top of your head, what code of laws offers them the least protection?

Given sharia as family law in Ontario, Justices Breyer and Kennedy are hoist by their own petard. Canada is about to give us an example wherein women’s status is variable based on theological sectarianism. Under some of those sectarian interpretations, women are property, as evidenced by their treatment in Saudi Arabia (where the Quran is considered the constitution), Iran, formerly in Afghanistan, and, indeed, most of the Muslim world.

Female attire is dictated by the state, unwed mothers are flogged, adulterous women are stoned to death, and “honor killing” of females is perfectly reasonable. Under sharia, the husband has the unilateral right to divorce his wife without cause. He can accomplish this by uttering the phrase “I divorce you” three times over the course of three months.

What will SCOTUS do when CAIR brings a religious discrimination suit regarding polygamy?

At one time, Breyer and Kennedy may have been able to argue that none of this is in the “western tradition”. They’ve abandoned that, however. If international law is a principle of guidance as they’ve claimed, they would have to accept that Canada’s Constitution and the laws it underpins are perfectly reasonable sources upon which to draw for American Constitutional interpretation.

This brings us, yet again, to a question of construct vs. application.

For example, the Canadian Charter of Rights and Freedoms (somewhat analogous to our Bill of Rights) says this about freedom of speech and religion in Section 2(b):

Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

This would qualify as the construct. Let us see what that means in terms of application.

Here’s what passes for free speech in our socialist neighbor to the north:

In 1995 the Mayor of Hamilton, Ontario, was fined $5,000 by an Ontario Human Rights Commission tribunal for refusing to proclaim Gay Pride Day. In the same year the Mayor of London, Ontario, was fined $10,000 for the same offense.

Is this more case law upon which to justify de-facto (de-jure having become meaningless) constitutional modification from the SCOTUS bench?

We can hope not, because the ideas expressed in Ontario regarding family law are not American values, and the Canadian interpretation of the right to free speech is, well, that of a different country.

So far.