A Failure of Constitutional Obligation

Constitutional Obligation

There is much in the news today about the Constitutional Obligation of the Senate to consider a Supreme Court nomination from the President of the United States. It is important to understand this is a Constitutional Obligation and when Senator Mitch McConnell failed to fulfill that duty upon the death of Justice Scalia in 2016 the entire Supreme Court became unconstitutional. Every decision made by the court from that point forward has no legal standing.

When McConnell made the decision to ignore his constitutional obligation, he willingly poisoned the entire judicial branch of the United States. I interpret this as an attempt to destroy the United States as a whole and such falls clearly under Section 3 of Article Three of the Constitution of the United States. Every time McConnell states he has a constitutional obligation to appoint a Supreme Court Justice to the fill the vacancy of Justice Ginsburg he admits his guilt in the previous appointment. He is, without question, guilty and should face punishment as described in that section.

Every decision made by the court since that failure of constitutional obligation is tainted. The entire court is invalidated by the decision McConnell made. For a while I posited if Justice Gorsuch were to resign and another judge appointed in his place, it would rectify the problem. With the current nomination process ongoing, I see this was a false hope. This version of the Supreme Court, in place and serving ably since 1790, is forever invalid. The situation is far worse than that, the entire judicial branch is poisoned by the fruit from that tree.

Every ruling of the Supreme Court since 2016 is invalid and every precedent used from those decision is likewise meaningless. We cannot fix the situation by appointing another justice. If an umpire makes a bad call on the first pitch of an at bat, it cannot be resolved by making a reverse call on the fourth pitch. What is done, is done. The Supreme Court as we know it cannot be fixed through normal processes.

I’m quite aware my point here is radical to the extreme. There is no Rule of Law and we might as well accept such. The United States is currently a lawless country and until a new Supreme Court is installed, it will remain that way.

We must look to the Judiciary Act of 1789 to proceed. Every Supreme Court justice must step down and be replaced, immediately. President Washington acted in the interest of the country by appointing six justices from different regions of the nation with differing views, I suspect President Trump is incapable of such but I offer him, or his successor, and the United States Senate the opportunity to fulfill their constitutional obligation.

It is also important to understand the current situation is the outcome of the politicization of the Supreme Court for which both Democrats and Republicans are to be blamed. The Founding Fathers established separate but equal branches for a reason and this is an example of why they did so.

Can we appoint new Justices in an apolitical way? I doubt it, but it is the only way forward. Everything else points to the end of the Republic. If the Supreme Court becomes an extension of the Legislative Branch which has become an extension of the Executive Branch, there is no separation of powers, and there is no Republic. That is where we currently stand.

Tom Liberman

Supreme Court Misleading Headline

Supreme Court HeadlineIt’s only Tuesday but I’ve got a misleading headline to post already. Let’s hope I don’t break my record of three misleading headlines in the same week.

My complaint here isn’t with the New Yorker which ran the original story but with Yahoo who posted it on their scroll with no explanation.

IN LANDMARK DECISION, SUPREME COURT STRIKES DOWN MAIN REASON COUNTRY WAS STARTED we see as one of the top stories in the Yahoo list of stories.

Once I clicked the link it took me to the Borowitz Report from the New Yorker. Andy Borowitz is a well-known humorist and the contents of the story made it quickly clear that it was satire. I was not confused for a moment.

However, under the Yahoo story it simply listed the New Yorker as the source, not Borowitz. That’s practicing to deceive. They also had a picture of Justice Scalia next to the headline.

Don’t get me wrong, I love satire. I’d just like it to be marked as such so people know what they are getting. This headline was designed to deceive. They could have easily included the Borowitz Report text under the headline. There would certainly have been people who don’t know Borowitz is a humorist but that’s not Yahoo’s fault and such people would have quickly learned the nature of the Borowitz Report.

It’s not a big deal because anyone who goes to the story will quickly realize it is satire. It bothers me because with one little inclusion Yahoo would have been intellectually honest but they willfully chose to be deceitful in the attempt to garner more clicks. This sort of “we didn’t actually lie” reporting is not good for a healthy Republic.

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Broken Throne
Next Release: The Black Sphere

Boobies Win!

I love boobiesIn October of last year I wrote a blog post about the possible Supreme Court case involving boobie bracelets. Today the Supreme Court decided against hearing the case which essentially means none of the justices disagreed substantially with the Appeals Court decision. This means that the boobie bracelets win.

I’ll recap quickly. Boobie Bracelets are designed to promote Breast Cancer Awareness. The Easton Area school district in Pennsylvania thought the word boobie was lewd and obscene and banned the bracelets. Two young girls refused to honor the ban and were suspended.

In court the school district changed their story somewhat and claimed that the bracelets were disruptive. In a series of opinions it was determined that the district could not show that classes were disrupted and the girls were victorious at every turn.

I wrote in my original blog that the school district was stupid for attempting the ban, stupid for pursuing the case, but that it was their right to ban anything they wanted. Apparently I was wrong. If something is not lewd, not disruptive, and there isn’t an existing dress-code rules violation; they can’t ban a piece of apparel.

I thought a quick course in Supreme Court processes might be interesting for my readers. I wrote above that refusing to take the case meant that none of the justices wanted to hear it. That’s technically inaccurate. The justices gather in a conference with just the nine members; no clerks, no one else.

The rules state that if four justices want to hear the case then it comes before the court. The reality is that if even a single justice feels passionately about a case the others will generally acquiesce. If the case goes unheard it usually means that no one felt strongly enough to argue for it. There are exceptions of course.

Another interesting insight into this case is that the original suspensions happened in 2010 and it took nearly four years to make its way through the system. The girls are now in high school and making preparations for college. The suspension is but a distant memory. Still, there has to be some feeling of vindication.

As for the Easton Area school district, well, if I were a taxpayer in that district I’d be quite angry about how my money was being used. I’d think about voting for someone else come election time for the school board. But, that’s me.

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Spear of the Hunt
Next Release: The Broken Throne

Doffing and Donning the Final Decision

Donning and DoffingI recently wrote about the case before the Supreme Court which asked the question of whether or not a company must pay their workers for time spent putting on and taking off required clothing and safety gear. The main issue being safety gear.

Well, the court has ruled!

In my original blog I discussed how difficult a question the court was examining. I found it not surprising that most of the commenters didn’t think it was a tricky question and wondered why the court was examining something so “simple”. Most people thought the case was rather silly but the reality is that industry was watching it very closely. There are many jobs which require a uniform or considerable safety equipment and the amount of time spent changing clothes can run from a few minutes to more than an hour for “clean room” laboratories. Police Officers, Firemen, food industry workers, mill workers, the list goes on and on and it was an important question. Are companies required to pay people for the time they spend doffing and donning?

My suggestion was that some minimal change time be the responsibility of the employees and anything over it be the responsibility of the company. Let’s say five minutes to change in and out of clothes at the beginning and end of the workday. So, if it takes an emergency technician eight minutes to change in and out of clothes they must be paid for the three minutes over the “free” period.

What did the Supreme Court decide? In a unanimous decision written by Justice Scalia they decided it was not their business. If a contract between employees and a business stipulates that donning and doffing should be paid time then, it should be so; it not, it shouldn’t.

This is viewed as a “win” for U.S. Steel because the current contract with the union does not pay for such time. The reality is that the union will just have to negotiate such pay in future contracts. It’s not really a “win” for anyone, it just clarifies the law. If you want to be paid for donning and doffing then you have to make sure it’s in the contract.

Upon reflection and reading the opinion I’m in agreement. My system would, as Justice Scalia points out, convert federal judges into time-study professionals.

It’s good when laws are clarified so that everyone knows the rules and can write contracts accordingly. People may view this as a win for business and a loss for employees but I don’t see it that way. Employees who spend considerable time donning and doffing will have to make sure their contracts cover such events. Companies that want to attract the best and hardest working employees understand they will have to offer such compensation where a large amount of time is spent in such activities.

I would tell the Justices “good job” but I don’t think they much need to hear it from the likes of me.

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Spear of the Hunt
Next Release: The Broken Throne

Is Donning and Doffing clothes for Work part of the Job?

Protective GearThere’s an absolutely fascinating case before the Supreme Court and the oral arguments brought out the best in our nine Justices.

The question before the court is whether employees should be paid for the time it takes to change into and out of clothes required for their jobs. In this case it is steel workers and we’re talking about heavy-duty protective equipment.

The fact that the federal government has gone back and forth on this issue a number of times hasn’t helped solve the problem. Believe it or not, the big question is over the definition of clothes. According to the existing statute things that are clothes don’t count but protective gear does. In other words if you have to put on protective gear to do your job then you should be paid for the time it takes to put it on and take it off.

The company says any wearable item is clothes while the union disagrees.

Justice Kagan suggested that the entire thing was really just a statute interpretation issue that should be left to the agency involved and wondered why the court had to make a ruling at all. Justice Scalia quickly quipped; “Too complicated is why”, generating much laughter. It seems simple but Justice Scalia is correct, it is quite complex. Justice Kagan was right as well, it doesn’t really belong in the courts, but no one else can come up with a satisfactory resolution.

For some jobs it takes half-an-hour or more to suit up and I think most people would agree that you shouldn’t have to arrive at work thirty-minutes early, change clothes, perform your job for eight hours, and then spend thirty more minutes on your own time changing back to your clothes. You would be working for nine hours and being paid for eight.

The other side of the coin is putting on an apron and non-scuff shoes for the grocery store which takes a couple of minutes. Calling the apron and shoes protective gear would mean that every employee at the store gets paid for that time, every day. That adds up. Basically they would clock in before donning the apron and clock out after.

The court appears to be trying to find a long-term solution that answers questions broadly rather than giving a ruling for this single case.

The problem of course is defining protective gear. Technically an apron is protective although not in the same way as safety goggles or a fireproof vest. The employer is always going to call it clothes and the employee or their union protective gear.

The court is going to have to find a litmus test solution. Personally I think it’s a matter of time. If you can put on your work clothes in less than five minutes then I don’t think they really qualify as protective gear although certainly a pair of safety glasses and a fireproof vest can be slipped on in that amount of time.

If it was me, and I’m no lawyer, I’d put some sort of time limit on dressing, say ten minutes. Some average amount of changing time must be calculated for each job. So, you arrive at work, change clothes, and punch in. You then punch out and change back to street clothes. If is determined your job requires fourteen minutes donning/doffing time then four minutes are added to your time card each day you work.

It’s certainly not a perfect solution but it’s a complex problem. And remember, it’s not just me that thinks so!

Do you have a better solution?

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Spear of the Hunt
Next Release: The Broken Throne

DNA Collection from those Arrested

Fourth AmendmentThere is a very interesting case at the Supreme Court this week and oral arguments took place the other day. At question is whether or not the police can take DNA samples from those they arrest. The Fourth Amendment makes it quite clear that law enforcement officials cannot conduct searches and seizures  without reasonable cause. There are exceptions to this right for those who are arrested, fingerprinting being currently accepted as reasonable.

The particulars of this case are that the person arrested was swabbed for DNA and linked to, and eventually convicted in, a rape case from six years earlier. The DNA evidence was used in the conviction.

Those defending the right to swab arrested suspects argue that it helps solve crimes and puts offenders in prison. Justice Scalia points out that if the police went house to house searching everyone and everything that would also solve crimes and get convictions. This sort of unwarranted search is prohibited by the Fourth Amendment.

Justice Alito calls the case one of enormous importance. There are many people currently incarcerated who were swabbed in such a manner.

One argument that I hear frequently in favor of allowing law enforcement officers to use such tools is that only the guilty need be worried by these tactics. That if you are not guilty then why do you care? This argument completely fails to understand the point of the Fourth Amendment. The root of the law seems to be that in the colonies the government had the right to enter your house pretty much at will, largely under the rational of looking for customs violations. Imagine in today’s world if the police, sponsored by the Recording Industry Association of America (RIAA), entered everyone’s home looking for pirated music, movies, and literature, and software. We are protected from such intrusions by the Fourth Amendment and I’m leery of weakening it, as are the justices. But, let’s examine the case in question.

To a large degree the case comes down to how invasive the justices consider a DNA swab. Is it equivalent to a fingerprint or a search of you home? If the former then it is permissible, if the latter, then it is not. Certainly the ease with which the sample is obtained is more akin to a fingerprint as it can be done in seconds. Opponents argue that a DNA sample holds far more information than a fingerprint and thus the two are not similar.

In the case in question the arrested man was being charged with assault and evidence of a much more serious crime was found in their search. If the police arrest me for failing to pay a parking ticket can they then enter my home looking for evidence of any crime and convict me with anything they find? The Fourth Amendment says no. The Fourth Amendment says the police must obtain a warrant from a judge after showing probable cause. In this case the police had no probable cause to suspect the arrested man of the rape six years earlier and thus, goes the argument, the evidence obtained by the DNA swab was illegal.

It is a difficult case and I find myself torn.

A DNA swab is simple, easy, not intrusive, and the man was arrested for a crime to begin with. On the other hand I’m not sure I like the idea of the police arresting me for a crime and being able to take my DNA. The police can arrest and hold you for up to 48 hours, depending on the state, without any justification. Perhaps an officers doesn’t like me, arrests me for some made up reason, swabs me, runs the results through the database, and finds a distant relative of mine committed murder thirty years ago. This is not as unreasonable as people would like to think. The police arrest people all the time who turn out to be not guilty or not even remotely connected to the crime. It is part of their job to investigate all possibilities and arrest is a tool in their arsenal.

In the end I find that I choose to broadly interpret the Fourth Amendment. I think the police can take DNA swabs from suspects but that information cannot be used in unrelated cases. If they want evidence for a different crime they must go through the process of obtaining a warrant. This interpretation would set the rapist free and I can see how people will disagree with me. It’s a tough case and I eagerly await the decision.

What do you think?

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Twist
Current Release: The Sword of Water ($2.99 for 300+ pages of daring deeds)
Next Release: The Spear of the Hunt

Justice Alito Defends Citizens United

Citizens UnitedThe Supreme Court justices are making the rounds during their time off and it’s always interesting to hear what these incredibly intelligent men and women think. They generally try to stay pretty far away from controversy but Justice Alito defended the Citizens United decision before the Federalist Society in their annual dinner.

I personally think the Supreme Court is a shining example of our best and brightest although I do disagree with them not infrequently. In this case Justice Alito uses an argument to defend Citizens United that I just couldn’t stomach. I will quote you what he said:

“The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations,” he said. “Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.”

Basically he is suggesting that newspapers, radio stations, television stations, and other media outlets have the right to speak freely as provided by the First Amendment and that right should carry over to every other corporate entity.

He loses me completely here. No newspaper, radio station, television station, or other media outlet has any right to free speech. In fact, they can’t speak at all. They can’t express themselves in any fashion whatsoever. The people who work for those organizations can certainly express themselves as they desire. That is what the First Amendment is all about. No building, no pen, no stone, no piece of paper has a mouth with which to speak or brain with which to formulate a thought. This seems self-evident to me.

This idea that a non-human entity has the right to freedom of speech is absurd. Yes, the writer has that right. The speaker has that right. Can a person donate to any political entity? Of course, that is covered by the First Amendment. Can the owner of a company, the head of a union, a mother, a father, or a teacher donate to a political candidate. Yes, yes, yes, yes, yes. Can a building? Can a piece of paper? Not only is it not allowed by the Constitution but it is also impossible as declared by the physical laws of the universe.

Now, a little history lesson. The reason organizations have what is called Corporate Personhood is primarily to hold such organizations to contractual obligations. This was decided in Dartmouth College v. Woodward in 1819. It largely limits the ability of the government to interfere in a private contract. The other reason it exists is to allow people to sue such entities.

I cannot see any justifiable reason why a state legislature or the federal government cannot ban giving money to a political candidate by an organization. If they tried to prevent an individual from giving, then I would have a problem. In the end, it is an individual giving. A person or people start an organization, gather money from other individuals, and then someone makes a decision on how to distribute that money to politicians. Dandy. I say make them do it under their real name and donate the money the same way. In the end the result is the same except there is at least a clarity of who is doing what instead of a mass of twisted paths wherein no one knows who is donating to what campaign. This openness is desirable.

That being said, I actually welcome the clarification Citizen’s United brings. Before this case there was largely an illusion that our politicians were not bought and sold by those who financed their campaign. That veneer is now destroyed. It is clear that we are not becoming a plutocracy, we are a plutocracy.

Those who think that moneyed interests were thwarted in the recent election are living in a fantasy world. Moneyed interests control both major parties all but completely. That is a topic for another day.

Tom Liberman

Is Your Yard Sale Criminal?

Yard SaleThere is a fascinating case at the Supreme Court this term that has potentially far-reaching consequences to eBay, Thrift Stores, and even your Yard Sale. It is quite possibly that selling a lamp during your yard sale was an illegal activity. More importantly you might be heavily fined or even imprisoned for doing it!

The gist of the case is that a foreign student in the United States found out that text books sell for a lot less in his home country than they did at the student bookstore. He had relatives purchase the books in his home country and ship them to the United States where he resold them to fellow students for a tidy little profit! The book publishers took him to court for copyright infringement, he was found guilty, and ordered to pay $600,000 to the publishers. Unable to pay they took most of his possessions.

The basic idea is that once a person purchases something they own it and can resell it for whatever price they desire. The court decided that this did not apply to foreign products. As I’m sure almost all of you are aware, most of the things we purchase these days are not made in the United States. Thus, anything we resell through eBay or our yard is potentially an illegal sale and the original manufacturer is entitled to damages if I undercut their market.

Those that argue that the damage ruling is correct claim that there is nothing to worry about because the manufacturers are not going to pursue legal action against people selling such items unless it is on a large-scale. Well, I don’t like the idea that it’s ok to break the law because no one is going to prosecute you. It’s certainly likely that no one is ever going to be subject to penalties for reselling items in their yard sales but it’s a fairly big deal for eBay and other auction house sellers because they can and do work on a scale similar to the one in question.

Also, companies like Costco actually do this on a massive scale. They purchase foreign items cheaply, ship them to the US, and then resell them in their stores. So this case isn’t just about a few people but potentially large corporate entities.

For the moment I’m going to say that I think it’s ok to resell something you purchased even if it’s from a foreign country but I’m going to stay tuned on this one and see what the Justices decide. I’ll try to remember to read their opinions and understand their logic so that I can report back in a few months.

In the meantime I’d suggest you read about the case and hopefully tell me what you think in the comments and with the poll.

[polldaddy poll=6640468]

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Twist
Current Release: The Hammer of Fire
Upcoming Release: The Sword of Water

Privacy throughout History

PrivacyOn the surface this post is about how privacy has changed throughout history with advancing technology but the subtext is our privacy and how the state’s right to protect us is going to be clash in an ever increasing fashion. How we manage that is important to the future of the United States.

Now, on to the topic at hand, how privacy has changed both legally and in our expectations over the years. One of the first opinions about privacy written in the U.S. was The Right to Privacy by Samuel Warren and future Supreme Court justice Louis Brandies. In this article they point out that privacy was extended over the years to include things like vibration and dust as the world changed.

Privacy certainly factors into zoning laws as we would not want a factory to move to the middle of a residential region. These things make perfect sense to us today but when there was no such thing as a factory they did not merit consideration.

The main thrust of the paper was the intrusions that photography and newspapers presented warranted a new interpretation of privacy laws. I’d suggest a full perusal of the article because it is beautifully argued and astonishingly pertinent to today’s world even if the technologies discussed are outdated. It is fairly lengthy and you might want to skip down to the six enumerated privacy rights points.

Basically, people have the right to their personal lives and other people cannot splash that across the media without permission. Public figures fall under a different set of rules although personally I find the invasion of privacy of celebrities and politicians to be disgusting. The courts have ruled it legal enough.

Now, as to today’s technology and what it means for our privacy. The use of secure “land-line” phones is slowly going away and cellular phones broadcast over the open airwaves. This means anyone can technically listen in on your conversations if they have certain information and equipment. We are increasingly on wireless devices and although they can be encrypted there is always the possibility that someone is eavesdropping on those conversations.

Every email you send does not go directly to the recipient. It passes through numerous other computers on the way to that person and anyone with access to said computers can read your email.

Most of our purchases are made with credit or debit cards which are tied directly to our person. This means that information about our shopping habits is readily available to sellers. Every page we browse on the internet is tracked and you can’t eliminate this by stopping tracking cookies on your computer. There is a record of your computer visiting a particular site at all times.

We will increasingly consume media through streaming venues which again is information available for capture.

What does all this mean? It means that things we once considered private are now publicly available for consumption. My shopping habits, movie watching habits, reading habits, music listening habits, and other things are now public knowledge.

Most importantly what rights does this give the state and their law enforcement arms to access such information. There have been a bevy of cases testing the limits of this in recent years. Technology called Forward Looking Infrared allows police to see if we are using certain kinds lights in our house. The Supreme Court ruled this an invasion of our Fourth Amendment rights.

We will see a huge increase of drones patrolling our skies in the future as well as more cameras in many public places to watch for criminal activity. All of these things have both their good and bad sides. How they are used and the laws associated with their use will greatly effect our privacy in the coming years.

This is an incredibly important issue in the United States today because it pits our privacy and, to a large degree, freedom against the state’s duty to protect us from criminal mischief. That’s what I’m going to write about on Sunday. What right does that state have to invade our privacy in order to protect us? Stay tuned!

I’ve got a special article on tap for Saturday but I’ll let you know about that later on today!

As always, comment, tweet, stumble, digg, like, link, and otherwise share if you think others might be interested!

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Twist