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Archive for the ‘War on Constitution’ Category

Legitimacy.

It is what a government has when it largely represents the will of the majority of its people. Not the will of a small minority. And not imposing tyranny on that small minority either, it respects and protects the rights of that small minority. But we have a word for when a small minority rules the majority — that word is *tyranny* — and tyrannies are always illegitimate.

In the case of courts in English-speaking countries, they maintain their legitimacy via what’s known as “stare decisis”. That is, they based their opinions in court cases based upon a) current law, and b) previous opinions. This is not a new principle. It is one reason, for example, why the Catholic Church moves so slow — they have 1,500 years of precedents for papal opinions, and if a papal opinion doesn’t comply with that 1,500 years of precedent it can make only a tiny move towards a new position at a time, it can’t just throw out the old position altogether.

Stare decisis was the basis for the Supreme Court’s decisions for the past 150 years. Each new decision was couched in the language of previous decisions, or in the plain language of the law itself. This has at times caused issues when the Court recognized rights that were not currently respected, such as the right of black people to attend the same schools as white people, but even there the opinion was couched in Equal Protection language from prior court decisions. The Supreme Court didn’t come roaring out of 1945 intent upon guaranteeing equal rights to black people and simply ruling that black people had equal rights, it built decision after decision upon prior decision. When it decided “separate but equal is inherently unequal” it did not pull the decision out of its butt, it relied on 50 years of data showing that “separate but equal” never was plus language from previous Equal Protection court decisions showing that if the school segregation law was not treating citizens equally, it could not be law.

In this fashion the Supreme Court has typically been an anchor preventing radical change while providing for preservation of rights. The Court has at times gone off into evil territory — Dred Scott and Plessy v. Ferguson come to mind — but eventually through applying the Constitution to court case after court case managed via stare decisis to come back from the dark side. Stare decisis gave legitimacy to the Court’s opinions and thus legitimacy to the notion of rule of law. And rule of law is important, because without rule of law, what you have is rule of gun, and rule of gun always ends up with the most ruthless and most murderous in charge.

Which is why it’s utter disaster for the United States that last week the Supreme Court basically threw stare decisis into the toilet in favor of a radical coup that remade American law from scratch based upon the ideological notions of the judges. By throwing out stare decisis in favor of imposing their ideology upon the nation, the Supreme Court has basically killed any legitimacy that it had. The Supreme Court fundamentally committed a right wing coup of the U.S. government last week, a coup setting five authoritarians in charge of the nation, and killing any respect that the majority of Americans have for the court.

Why is that important? It’s important because the Supreme Court relies upon other branches of government to do its work. The Supreme Court did not enforce the desegregation of Little Rock High School. The 101st Airborne did, via the intervention of the executive branch. So the Supreme Court ruled that New York’s concealed weapon law was illegal. New York’s concealed weapon law is very popular in New York State. What is the Supreme Court going to do when New York says f**k you, we’re going to continue enforcing our concealed weapon law? Joe Biden isn’t going to dispatch the 101st Airborne to free people imprisoned for violating New York’s concealed weapon law.

For those of you who have been in the military, there is an important and fundamental principle taught to every officer: Never issue a command that you know is going to be disobeyed. It destroys your legitimacy as an officer and makes it more likely that future commands are going to be disobeyed. This is what last week’s Supreme Court did — they issued a command that they know is going to be disobeyed. They issued that command because they *know* that it’s going to be disobeyed. The Supreme Court knowingly destroyed its own legitimacy. Why? Simple — the Supreme Court in the past has been a major defender of rights for minorities in America. By deliberately destroying the legitimacy of the Supreme Court, the right wing is betting that they via rule of gun can then take away rights from minorities that were previously granted by the Supreme Court.

In short, last week’s Supreme Court deliberately destroyed its own legitimacy in hopes that rule of gun rather than rule of law will become the norm in the United States. The right wing believes that because they are the most ruthless and most murderous people in America, they will come out on top when rule of law collapses because the judicial system has lost all legitimacy. Last week’s Supreme Court decisions weren’t an accidental destruction of the Court’s legitimacy — they were a deliberate destruction by people who want to burn it all down. And if you are not a white male Christian with conservative beliefs, you should be very, very worried right now.

— Badtux the “Time to get well armed, people” Penguin

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Two Florida judges violated Florida law by requiring cash bond for “unlawful assembly” charges. The reason? The police union personally threatened them if they did not issue cash bond amounts that exceeded the bail schedule for protesters who were protesting against police violence.

The police union. Threatened judges.

And the judges buckled.

Our police are out of control. They feel they are judge, jury, and executioner, and can dictate to judges and prosecutors what charges to file and what penalties to inflict. And I don’t think it’s resolvable within the current structure of policing.

The only — ONLY — way to fix this is to completely abolish police departments as they currently exist, as a paramilitary occupation force that has impunity to do anything they like with the sole punishment being a paid vacation for anything short of murder (and sometimes for murder, too). Abolish all police departments and all police unions, and replace them with Community Safety departments staffed with Community Safety officers armed with pepper spray and nightsticks and a *small* armed unit (perhaps a dozen armed officers for a city of 250,000) to respond where the Community Safety officers can’t handle things.

This is how policing is handled in most Western nations — most Western nations do *not* put handguns and rifles into the hands of barely-trained kids just out of the police academy, you have to work hard for many years showing you can handle the job without resorting to deadly force before you’re promoted to a position where you are allowed to carry deadly force. Only the United States, and tinpot 3rd world dictatorships, dresses up their cops like occupation soldiers complete with machine guns and tanks.

Or if we can’t do that: Defund police departments. Strip all the Robocop equipment from the police. Make them walk beats wearing dress shirt and dress pants and black shiny shoes and a police hat, rather than combat BDU’s and steel-toed combat boots and a combat helmet. Fire those with white supremacist tattoos or white supremacist “fashi” or “skinhead” haircuts. Arm them with .38 revolvers and a nightstick with a civilian style 12 gauge pump as backup rather than military-style high-tech semi-automatic pistols and selective-fire assault rifles. Make them drive regular SUV’s and regular cars with a $1,500 police radio and dashcam setup, rather than specially-equipped $60,000 SUV’s outfited with $50,000 worth of high-tech electronic equipment that officers regularly operate while the car is moving and as a result regularly end up with officers — or civilians forced off the road — dead after smashing into a tree. Take police departments back in time to where Officer Obie enforced the law without needing to be frickin’ robo-cop. A small SWAT team armed with better equipment is all that most departments need. Every officer being armed with assault rifles and pistols with enough rounds to ventilate an infantry company? Madness.

And REMOVE ALL ‘WARRIOR TRAINING’ AND THE INCESSANT PARADE OF VIDEOS SHOWING COPS BEING KILLED from the police academy training curriculum. They aren’t helpful. They teach cops that all suspects are violent murderers out to kill them, and thus if a suspect even twitches, kill the suspect. There are some training scenarios that are useful for improving the decision-making of police officers, but these aren’t.

Will any of this happen? Nope. The reason? Racism. White America relies upon police to be their personal racism valets, keeping them thare darkies in their place, operating as occupation forces in minority communities to make sure those communities do not erupt in overt violence against the structural racism that keeps them from thriving. And if police are used by white America as an occupation force to keep the darkies down, they have to be armed and trained as an occupation force.

And so it goes. At least until America is majority-minority, at which point all hell breaks loose.

– Badtux the Racism-smellin’ Penguin

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A former ICE chief counsel is facing prison time for stealing immigrants’ identities.

ICE defends America from the Singing Children of Mass Cuteness.

ICE commits 1,600 violations of the Constitution of the United States of America.

ICE has been violating its own policy as well as a court order and the Constitution by failing to exercise individual due process and instead doing mass incarceration. Turns out that due process requires that you make individual determinations, not a blanket “all of group X will be incarcerated”. Who coulda figured?!

Am I saying that a massive paramilitary organization with almost no oversight has ended up being a huge problem, overstepped its authority wildly, and turned into a terrifying force that threatens to permanently damage our democracy by trampling on our most fundamental rights at every opportunity? No way. Surely nobody in Congress could have seen that coming. It’s so unexpected. SNRK.

It’s built into the agency’s genome, people. By creating an agency that has only a single purpose — deporting as many people as possible — the Homeland Security Act created an agency that has an incentive to trample people’s rights in a lawless rush to deport as many people as possible (like, duh?). ICE is irredeemably corrupt. The agency should be abolished and re-established as a new combined entity with USCIS as INS, the Immigration and Naturalization Service, with a director who is as committed to naturalizing new citizens as he is to deporting wannabe-citizens. Having an entire department that is only about deporting immigrants — and not at all about naturalizing immigrants — gives them an incentive to trample on rights in order to deport as many people as possible, whereas a more balanced agency’s incentives work differently.

But hey, as long as it’s brown people having their rights trampled on, who cares, right? Right?!

– Badtux the Sadly Snarky Penguin

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According to the U.S. Supreme Court, which, under the Constitution, is charged with judging what the Constitution actually says, states cannot be forced to enforce Federal law, nor forced to pass laws. This is because of the 10th Amendment, which reserves those powers to the states. This is backed up not only by significant historical precedent dating back to the 1840’s Fugitive Slave Act, but by two modern decisions in cases brought by right wing groups: Printz v. United States (1997), which held that the U.S. government could not commandeer sheriffs to enforce provisions of the Brady Gun Control Act, and Independent Business v. Sebelius (2012), which held that the Federal government could not compel states to pass legislation expanding Medicaid.

In short, the United States Government is prohibited by the Constitution and the 10th Amendment specifically from forcing local law enforcement agencies to enforce Federal law. This is not controversial except amongst fascists who want to overthrow the Constitution. And Jeff Sessions. But I repeat myself.

I am talking about Jeff Sessions suing California for exercising its 10th Amendment rights under the Constitution, of course. The 10th Amendment is clear: The Federal Government may neither commandeer local law enforcement to enforce Federal laws as ICE wants to do, nor is the Federal Government allowed to dictate to states what laws they can or cannot pass, as long as those laws do not violate rights guaranteed by the Constitution or assume powers reserved to the Federal government under the Constitution.

So now here comes Sessions, booming that he should be able to force local law enforcement and governments to enforce Federal immigration law, in contravention of the 10th Amendment. I suppose I shouldn’t be surprised that someone from Alabama doesn’t care much for the Constitution, especially that whole 14th and 15th Amendment part (they’re still upset there that Lincoln “stole” their slaves — no, I’m serious, it’s even taught in schools in Alabama) — it’s just weird that he’s going against two right-wing Supreme Court decisions to do it.

But then, I guess IOKIYR.

– Badtux the Baffled Law Penguin

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I’ve been working 16 hour days the past few days fixing some stuff that needed fixing ASAP. Not going to talk more about that, other than to mention that Amazon has killed the performance of their platform with fixes intended to improve security, and move on.

So anyhow, we learned this week that Cheeto Mussolini doesn’t know the definition of the word “treason”. In case you’re wondering, it’s the one and only crime defined in the Constitution:

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.

So basically: If you’re giving aid and comfort to our nation’s enemies in some overt act, then it’s treason. So, let’s see what Cheeto Mussolini thinks is treason:

Not clapping along with the Republicans during the State of the Union address.

Err…. looking for that in the Constitution… not finding it….

But hey, the Constitution is just a piece of paper anyhow, right? Right?!

– Badtux the Snarky Penguin

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The most dangerous place for a reporter to be in America today is at a protest. Not because they’re attacked by protesters. Rather, because police officers regularly attack the press at protests and regularly destroy their equipment. 1st Amendment guarantee of a free press? The Constitution is just a piece of paper, right?

Meanwhile, even when reporters do get the story, media outlets are afraid to print investigative reporting about oligarchs because the oligarchs own the courts and can put them out of business.

Indiana proposes licensing only “responsible” people to be reporters. Presumably any reporter who dares report on a protest or reports things the oligarchs don’t want reported is “irresponsible”.

And of course the Orange Racist Russian Stooge keeps trumpeting that any media critical of him is “fake” and his deplorable followers regularly threaten reporters.

Combined with the fact that most reporters now aren’t full-time staffers of newspapers, they’re part-time stringers for wire services who don’t have access to the legal resources of a major media outlet, and you get a serious issue where proper reporting is being suppressed by the government and the government’s supporters.

One of the first things that fascist regimes try to do is shut down any media that’s critical of them. Erdogan has done that in Turkey, and it appears the deplorables and their God-Emperor Donald the Trump are bound and determined to see that happen here too. Because remember, people. The Constitution, and the 1st Amendment that it contains, is just a piece of paper.

Or is it that the Constitution just has one paragraph, the 2nd Amendment?

So confusing!

– Badtux the Press Penguin

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Canada’s CBC News warns Canadians not to carry much money south of the border because the police will steal it.

Used to be, only corrupt 3rd world nations had police that would just blatantly steal your money. Guess that means we’re one of those, now. The problem is, corruption on that scale is bad for business. Tourists decide to take their money elsewhere, somewhere where it won’t get stolen. Businessmen whose businesses churn a lot of cash decide to invest their money elsewhere, not in the United States. And so forth.

The modest reforms that Congress is proposing will not end the corruption, but will at least reduce some of the incentives behind it. In the end, the U.S. Supreme Court is going to have to rule that the 4th Amendment is, in fact, the 4th Amendment, and prohibits seizing things without a warrant and probable cause. Until then, police departments will continue to steal more money than thieves.

Yeah, well, I’m not holding my breath on that one, not with this Supreme Court…

– Badtux the 3rd World Penguin

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HIPAA is the law here in the United States. It is a Federal law that protects patient privacy and prevents hospitals from releasing information about patients and that has very few exceptions. Basically, these are the exceptions:

  1. The transfer of patient information is necessary in order to provide appropriate medical care to the patient.
  2. The patient or, if the patient is unconscious, the patient’s next of kin, gives consent.
  3. The patient is under arrest and in the custody of the State.
  4. The police have a warrant for the medical records or medical procedure being requested.

If a nurse violates this law by, say, allowing a police officer to draw blood from a comatose patient without any of the above, she will at the very least be suspended, if not fired and have her license yanked by the state licensing board. Hospitals take this shit seriously. Not only is it the law, it’s their duty to their patients.

So anyhow, this cop by the name of Detective Jeff Payne demanded of the burn unit head nurse, Alex Wubbels, that she allow him to draw vials of blood from a patient for drug screening. He didn’t have consent from the patient. The patient was not under arrest. He had no warrant, he couldn’t get a warrant because there was no probable cause because the patient was the victim of a crash caused by a fleeing criminal and was not himself accused of any crime. From what I can figure, this detective wanted the blood in order to prove that the patient, a reserve police officer, was not under the influence of drugs at the time that the criminal’s car jumped the median and smashed into his truck.

Thing is, none of that allows the nurse to allow him into the patient’s room, much less perform a medical procedure. He’s not next of kin. He has no warrant. The person in the room is not in the custody of the State i.e. is not under arrest. Under HIPAA she’s not even allowed to tell him what room the patient is in without permission from the patient or the patient’s next of kin. So he’s demanding she break the law, and she puts in a phone call to the hospital’s administrator and puts the administrator on speakerphone to talk with the officer, and the administrator explains the exact same thing to the officer, i.e., that the nurse is not allowed under the law to tell him anything about the patient or allow him to do anything to the patient unless one of those last three conditions is true. At which point the officer goes fucking postal on the nurse, jacking her up and hustling her out the door and cuffing her because she’s there and the administrator wasn’t, apparently.

As far as I know, he still didn’t get his fucking blood, because hospital administrators were already on the way with lawyers in tow and put a stop to that shit. He was forced to let Nurse Wubbels go, and slunk away.

And his police department didn’t even give him a fucking paid vacation. They took him off of the phlebotomy program, of course. No fucking way was any hospital in the Salt Lake City area going to give him the time of day again. But hey, reprimand? Nope, didn’t happen. Suspension? Nope, didn’t happen. It’s almost as if a cop can just fucking assault anybody anywhere at any time for any stupid reason and the command staff just shrugs and says, “what can we do?”

Y’know, twenty years ago when the original “militia” neo-Nazi movements were breaking up in the aftermath of the Oklahoma City bombing, David Neiwert was committing acts of journalism and publishing articles tracking where all these fucking Nazis were going. What he found out was that a lot of them were getting hired by police departments that were busy staffing up due to Bill Clinton’s program to put 100,000 additional cops onto the streets and which correspondingly had lowered standards and didn’t look too hard at those people. Thus the FBI warnings about neo-Nazi infiltration of police departments. So anyhow, it’s 20 years later now. Those fucking Nazis are no longer just foot soldiers. They’re now in leadership positions in police departments all around the country. Thus the Oath Keepers hate group, which claims over 30,000 law enforcement members.

And this is the result — even the non-Nazis in police departments have absorbed the whole “ve must haff ORDER!” mentality of the Nazis, and disregard the whole law part of the term law and order. We live in a day and age where it doesn’t matter what the law says. It doesn’t matter what the Constitution says.

All that matters is the attitude of the cop that rolls up on you.

And that doesn’t describe a democracy. That describes a police state in all but name.

– Badtux the Sovok Penguin

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A spoon, you say? A spoon with spaghetti sauce residue on it? What’s that got to do with the drug war, you say?

Ask Ashley Gabrielle Huff about that.

After a spoon was found on her during a traffic stop, a spoon she insisted was last used to eat Spaghetti-O’s at the office for lunch, Ashley Gabrielle Huff was kept in jail awaiting trial on bogus meth charges due to astonishingly high bail despite the fact that she had no criminal record, was married, had children in the schools, and otherwise was no flight risk. She was ready to plead guilty and forever give up her voting rights just to get out of jail if they gave her time served. Then the lab results came back, months after the spoon had been submitted to the state crime lab: Spaghetti sauce.

Just as she’d insisted from the beginning.

Our drug war is ridiculous. A spoon? That was all they had, a spoon, and purported residue on said spoon? Yet that was all it took to deprive her of her rights and put her in a cage for months.

The reason I bring this up is because there is now a widespread movement amongst progressives to reform the bail system to do away with injustices like that. Bail bondsmen in the state of California are outraged about it, but the fact of the matter is that most people in jail are not there because they’ve been sentenced for a crime. They’re there because they can’t afford bail. And while they’re in jail, they’ve lost their job, their children may be in foster care, their home was repossessed or they were evicted with no ability to retrieve their belongings, their college kicked them out for non-attendance and kept their tuition money, and otherwise had their lives destroyed.

It’s one of the few things that the progressive Left and the libertarian Right agree on: the bail system is broken, it enriches bail bondsmen and local sheriffs who run jails at the expense of poor people and taxpayers, and needs to be fixed so that people who aren’t a flight risk have bail set according to their income, not according to some fixed schedule writ in stone.

Which means: entrenched people who benefit from the current system are keeping it from happening.

For now.

— Badtux the Criminal Injustice Penguin

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I mean, yeah, people are upset that all this elections data is going to be in one place where it could comprise a massive invasion of privacy, but it isn’t as if the White House would ever release sensitive personal information about voters.

Except they did. Oops.

Yeah, I’m glad I live in a state (California) where the state government says “Over my dead body” to that massive invasion of privacy…

– Badtux the “Ooops!” Penguin

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