In this essay, I address the anti-Constitutional discourse that appears in the media: that the Constitution should be displaced by the fears of people who appear on television. This form of opposition to the Constitution poses as expertise. It takes the form of advice to the Court: find some way to allow Trump to be on the ballot, because otherwise people will be upset. Because we are used to hearing endless conversations about politics on television, where everyone seems to be a political advisor, it can seem normal to reduce sections of the Constitution to talking points. But we must pause and consider. In fact, rejecting the legal order in favor of what seems to be politically safe at a given moment is just about the most dangerous move that can be made. It amounts to advocating that we shift from constitutional government to an insurrectionary regime. Indeed, it amounts to participating in that shift, while not taking responsibility for doing so. Let me try to spell this out. In advising the Court to keep Trump on the ballot, political commentators elevate their own fears about others' resentment above the Constitution. But the very reason we have a Constitution is to handle fear and resentment. To become a public champion of your own own fears and others' resentments is to support an insurrectionary regime. The purpose of the insurrection clause of the Constitution (the third section of the Fourteenth Amendment) is not to encourage insurrections! If we publicly say that that Supreme Court should disregard it because we fear insurrections, we are making insurrections more likely. We are telling Americans that to undermine constitutional rule they must only intimate that they might be violent. To advocate pitchfork rulings is to endorse regime change; to issue pitchfork rulings is to announce regime change.

The Pitchfork Ruling - by Timothy Snyder

I’ve pushed fair use here, because I *really* want you to go read the rest of this essay.

Part #1

Understanding the Law Merchant corporate court system. Diagram explains how the maritime system is not under the sovereign Constitution. 🤔

Article Date: 7 June 2023

Climate litigation in the US could be entering a “game changing” new phase, experts believe, with a spate of lawsuits around the country set to advance after a recent supreme court decision, and with legal teams preparing for a trailblazing trial in a youth-led court case beginning next week.

The first constitutional climate lawsuit in the US goes to trial on Monday next week (12 June) in Helena, Montana, based on a legal challenge by 16 young plaintiffs, ranging in age from five to 22, against the state’s pro-fossil fuel policies.

A federal judge ruled last week that a federal constitutional climate lawsuit, also brought by youth, can go to trial.

More than two dozen US cities and states are suing big oil alleging the fossil fuel industry knew for decades about the dangers of burning coal, oil and gas, and actively hid that information from consumers and investors.

The supreme court cleared the way for these cases to advance with rulings in April and May that denied oil companies’ bids to move the venue of such lawsuits from state courts to federal courts.

Hoboken, New Jersey, last month added racketeering charges against oil majors to its 2020 climate lawsuit, becoming the first case to employ the approach in a state court and following a federal lawsuit filed by Puerto Rico last November.

the new forms of climate litigation are different, as they grapple not with particular projects’ emissions, but on responsibility for the climate crisis itself. Sokol, who dubbed these new suits “climate accountability litigation”, says though they will not alone lower emissions, they could help reshape climate plans.

In the US, this litigation has taken a variety of forms; perhaps the best known cases are based on constitutional rights and brought by youth.

One of those cases, Held v Montana, is based on the state’s constitutional guarantees to a clean and healthy environment, which were enshrined in the 1970s and which the plaintiffs say the state has violated by supporting fossil fuels. It will next week become the first-ever constitutional climate lawsuit to go to trial in the US.

Held v Montana followed the highly publicized 2015 Juliana v United States in which 21 young people from Oregon sued the US government for violating their constitutional rights to life, liberty and property by enacting policies that drove and exacerbated the climate crisis. The case, which like the Montana suit was filed by the non-profit law firm Our Children’s Trust, calls on federal officials to phase out fossil fuels.

Last week, a US district court ruled in favor of the youth plaintiffs, allowing that their claims can be decided at trial in open court.

Litigation based on state constitutional rights, also filed by Our Children’s Trust, is currently pending in four other states. One of those cases brought by Hawaii youth is set to go to trial, possibly as soon as this fall.

Another set of lawsuits in the US allege that the fossil fuel industry has for decades known about the dangers of burning coal, oil and gas, and actively hid that information from consumers and investors. Since 2017, seven states, 35 municipalities, the District of Columbia, and one industry trade association have sued major fossil fuel corporations and lobbying groups on these grounds.

In late April, lawyers for the city of Hoboken amended a 2020 complaint to allege that the defendants violated New Jersey’s racketeering laws by conspiring to sow doubt about climate change.

It marked the first-ever state-level lawsuit of its kind, following one last year in which 16 Puerto Rico cities brought federal racketeering charges, originally used to bring down criminal enterprises like the mafia, against big oil.

Unlike some previous cases, Hoboken’s amended lawsuit focuses not only on past misinformation, but also on contemporary greenwashing – something that could feature prominently in future cases.

A study last month examined litigation against fossil fuel majors and found that the filing of a new case or a court decision against a corporation took a slight toll on their finances. Novel developments – including a groundbreaking 2021 Netherlands court ruling ordering Shell to substantially slash its carbon emissions, and an unprecedented transnational claim filed in 2012 by a Peruvian farmer against a German energy company – yielded bigger blows.

Sankar, of Earthjustice, said he expects to see new forms of climate litigation in future years. “As the impact on states and localities increases, they are increasingly going to be looking for ways in which their state and local laws protect them,” he said.

(shinigami red links in this post go to The Guardian)

Article Date: 7 June 2023

Article Source: Dharna Noor for The Guardian

--

Thanks so much to @queerce for submitting!

“Maia Arson Crimew, the same trans girl that leaked the US's no-fly list, just published this mountain of emails from anti-trans groups, right-wing lawmakers, and other conservative groups.

It completely exposes the current transphobic movement and attempts at trans genocide as the planned-out fabricated moral panic it is. These emails discuss how to define doctors as criminals, avoids acknowledgement that trans people even exist, discussions of their own personal vendettas at destroying the professional groups that have done extensive research on gender-affirming care and endorse it, such as the Endocrine Society, and how they celebrate their legal and political achievements as a victory of the Christian God. None of this is overexaggerated, this is what genocide looks like.”

There are 2600 pages.

could you elaborate on that bit about the 14th amendment, if you don't mind?

So I heard this from @necarion so he can probably fill in more details.

But my understanding is that after the US Civil War, Congress wanted to do a bunch of stuff to protect civil rights and kill off Jim Crow racism style laws. And the explicit purpose of the fourteenth and fifteenth amendments were to say that Congress could make those laws.

So the fourteenth amendment says

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ... The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

And then the fifteenth says

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude— Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

And these are really explicit claims that Congress can protect civil rights and voting rights by passing laws.

But the Supreme Court was much more racist and southern conservative than Congress was. So when Congress actually passed those laws, the Supreme Court said they were overreaches and exceeded Congress's power under the Constitution. Despite them passing actual amendments to say "we have the power to pass these laws."

In the process, SCOTUS basically read the Privileges and Immunities Clause out of the Constitution entirely. Which is why in the 1960s the incorporation had to work through "substantive due process", which is another example "good policy through kinda bullshit reasoning". But they wouldn't have needed to do it that way if they hadn't sworn up and down that the actual clause intended to have that effect meant nothing.

UNETHICAL EXECUTION IN GEORGIA: MARCH 20TH

Willie James Pie is set to be executed in Georgia on March 20th despite that fact that he is intellectually disabled, making this execution unconstitutional.

Links to Take Action:

links specifically for Georgia residents:

While this is a good idea, it's also a fucking distraction.

The repubs want to be able to point to their good deed in the hopes the swing voters won't vote against them in all of the elections. They saw how angry everyone is about taking away our rights and are afraid that they'll be voted out. They should be.

Any legislator or political office holder who shoves their religious (or twisted control) beliefs in between us and our rights deserves to lose their seat!

They also hope that by repealing a near total abortion ban from 150+ years ago, people won't vote for the Arizona Right to Abortion Initiative.

They're counting on people thinking to themselves, "Oh, the old abortion ban is gone, so I don't need to vote to make abortion a constitutional right. Maybe the 15-week ban isn't so bad."

Wrong!

We still need to vote this in! If we don't, then it leaves the door open for more fuckery from the repubs in the future. They're already cooking up more fuckery in the form of competing ballot measures.

We need to cement this right in the Arizona state constitution this year. Now. The time is NOW.

If you live in Arizona, vote to make the fundamental right to abortion care a law they can't screw around with.

If you're not in Arizona, please boost this message so more Arizonans see it and talk about it.

And if you're not in Arizona and you think about just continuing to scroll, keep in mind that states like to copy each other's laws (kind of like copying someone's homework in school). To help keep this movement strong all over the country, reblog reblog reblog!

Basically, everyone please reblog this!

« Trump’s claim of total executive immunity isn’t just unconstitutional; it is anti-constitutional and incompatible with the rule of law. A president with that kind of power is no longer a president but a king. »

— Jamelle Bouie at the New York Times.

The Supreme Court seems skeptical of Colorado's attempt to keep Turmp off the ballot based on 14th Amendment proscriptions on insurrectionists. Even the liberal justices see a problem with individual states acting to derail a national election.

However, the case related to Trump's immunity from all prosecution is a different matter. If a president was not obliged to follow the law, that would subvert the Supreme Court's own authority. Even Trump-appointed justices might think twice about diluting their own power.

The safest action by SCOTUS, and a good one for the rule of law, would be for the justices not to rule on the case themselves and implicitly let the judgement by the US Court of Appeals for the District of Columbia Circuit stand. The lower court's decision won praise from legal scholars and it would be difficult for SCOTUS to improve on it.

UNITED STATES OF AMERICA, APPELLEE v. DONALD J. TRUMP, APPELLANT No. 23-3228

Y'all I don't want to go all Prof Aib on main, but this is truly despicable.

Did you know that sodomy (sometimes only homosexual sodomy, sometimes any anal or oral sex) was illegal in many states in the US until 2003? That's when Lawrence v Texas declared that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Due Process Clause of the Fourteenth Amendment to the Constitution. (Side note: if you want a wild ride, read about the arrest that precipitated this case.)

And of course, Obergefell v Hodges didn't legalize same-sex marriage in all states until 2015.

What Alito has done in this draft decision is to claim that the right to privacy articulated by Roe v Wade isn't "deeply rooted", and to explicitly link the right to abortion, the right to lgbt marriage, and the right to engage in non-het/non-reproductive sex.

Conservatives will say that the right to abortion simply shouldn't be decided by the Supreme Court, and that they're "originalists" who believe in interpreting the Constitution like the Founders would've meant it. This is patently bullshit. Conservative justices are at least as activist as liberal justices. (Click here and here for reciepts.)

It doesn't matter whether you think abortion rights would theoretically have been better secured through something other than Roe v Wade. I do. But that doesn't matter, because it's what we have, and overturning Roe will make abortion immediately illegal or severely restricted in 20 states. Whether Roe is the best course of action is only a relevant debate if you have a time machine.

The Due Process clause of the 14th Amendment, which currently protects abortion, sodomy, and same-sex marriage, "prohibits arbitrary deprivation of "life, liberty, or property" by the government except as authorized by law. The U.S. Supreme Court interprets these clauses broadly, concluding that they provide three protections: procedural due process (in civil and criminal proceedings); substantive due process, a prohibition against vague laws; and as the vehicle for the incorporation of the Bill of Rights." (1)

The fuck does this mean? Well, everyone keeps arguing about that. In the 1884 case Hurtado v. California, the Court said:

"Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure."

Bolling v Sharpe (1954) clarified that "liberty" is broad: "Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective."

Palko v Connecticut (1937) said that the due process clause protects rights that are "implicit in the concept of ordered liberty." This is obviously impossible to define!!

Privacy is not protected explicitly by the Constitution, but the case Griswold v Connecticut (1965) established the right to privacy by arguing that it's implicit in other rights delineated in the Constitution. Notably, they used this argument to guarantee a right to contraception.

It should be obvious that this entire thing is a fucking mess. You can basically argue anything you want on this basis.

Which is why it makes no sense imo to even focus on the constitutional arguments. This is about the right to abortion, to contraception, to sex, to marriage. ALL of these rights have been secured through a daisy chain of constitutional decisions, which makes the prospect of removing any one even more horrifying than it would be on its own. These precedents are all at play in the horrifying anti-trans laws currently happening in Texas.

This isn't about there being one correct constitutional argument. It never was. It's about protecting the rights of pregnant people, potentially pregnant people, trans people, people who want to engage in oral or anal sex, people who want to use contraception, people who want to get married. I don't give a fuck how we do it, as long as we remember that this is what's on the line. We will do it in whatever way we need to.

Pregnant people will always find ways to stop their pregnancies if that is what we want to do. We need to do whatever we can to protect ourselves, no matter the reason for the abortion. We need to stop "abortion is healthcare" rhetoric. Sure, it is, but abortion is also totally necessary even when the pregnancy is viable and wouldn't harm the person carrying the baby.

A way to help immediately is to donate to your local abortion funds.

And don't for one second let yourself or your friends think it doesn't affect you. Because what Alito is trying to do here is to make it the law of the land that the only "rights" that exist are those of cishet, property holding, able-bodied WHITE MEN.

And as I finish, I'd like to add: fuck Trump, fuck McConnell.

Part #2

Understanding the Law Merchant corporate court system. Diagram explains how the maritime system is not under the sovereign Constitution.

[ 26.09.23]

Sir John A Macdonald being an Alexander Hamilton fanboy was NOT in my constitutional law bingo book I’m ngl

A crowd in front of the New York Stock Exchange on Wall Street, February 18, 1935, just after the U.S. Supreme Court announced its long-awaited gold clause decision. Stocks rose after announcement.

As part of the New Deal program to conserve gold reserves during the Depression, Congress in 1933 abrogated clauses in contracts stipulating payment in gold dollars as valued at the time a contract was made. That meant that such obligations could be paid in now-devalued currency. The Court sustained the power of Congress to regulate the monetary system. Enforcement of the gold clauses would have affected the depressed national economy badly.

Photo: JF for the Associated Press via NYPL

So I got to thinking about how there's a movement in CA for parts of the state to secede and form their own state, and it got me wondering, is there a mechanism for the opposite phenomenon to occur, for two (or more) states to combine? Like, is there a theoretical way for WV to rejoin VA?

It is theoretically possible. Under the Admissions Clause, the two states would both need to pass Acts in their state legislature, then have an Act of Congress to approve it federally. It has never happened, nor is it ever likely to happen, but it is not impossible or unconstitutional.

Thanks for the question, Anon.

SomethingLikeALawyer, Hand of the King