Yet Another Indictment for Non-Crimes

We have a scripture reading schedule at church, and my husband and I do some daily reading to keep up. Thursday morning we happened to be on Acts 24, in which Paul is accused of sedition. Those bringing him before the authorities have no evidence to provide against him. They are prosecuting him mainly because of his beliefs, which differ from their own.

This was nearly 2000 years ago, but it looks an awful lot like current news headlines.

Fox News headline, but I got the screenshot from The Benny Show.

On Tuesday, law vlogger Robert Gouveia went through the indictment, reading major portions of it online, splashed with some of his commentary. [He’s been covering this every day. This is Wednesday’s, which was also good. You can get all the clips and sources he uses from his daily mind map, available on his website, RobertGouveia.com.] Most surprising, he points out, is that there is no charge for seditious conspiracy. There are members of the Proud Boys in prison right now, convicted of seditious conspiracy, who claim they were led by Donald Trump. But there’s no charge that Trump was conspiring with them or participating in any actual sedition.

Of course there’s the possibility that they’ll add that charge later in a superseding indictment. Nothing is past the government at this point.

But, in reading through what the charges actually are, it comes down to this: Trump was told by multiple people that the election was not stolen, and that his plan to have alternate electors considered was not legally sound. He therefore knew (had mens rea) that what he was saying about the election was not true, and that what he was asking for in the counting of electors couldn’t be done.

What the charging document fails to note is that there were also multiple people, including very respectable legal counsel, telling him what most readers here believe: there was enough wrong with the election to suspect, or even assume, it was stolen. And one reading of the Constitution—which has historic precedence, and which the Democrats have attempted multiple times this century—is that when a state’s slate of electors are challenged, Congress can go into discussions and consider the claims of both sides. (Side note: there was enough confusion about what the VP had the power to do that a 2022 law clarifies it—meaning there was plenty of ambiguity in 2020.)

The various legal counsel with that opinion are now being called co-conspirators in an attempt to defraud the United States.

Charlie Kirk, on his Wednesday, August 2, podcast, interviewed attorney John Eastman and asked him whether he could confirm speculation that he was one of the co-conspirators. John Eastman verifies:

Yeah, well, it’s— It doesn’t take much to go from speculation to confirmation. They quote unindicted co-conspirator number 2; they quote a number of public documents of mine that are in the public realm. So, anybody that spends half a minute looking at this stuff knows I’m co-conspirator number 2. My attorneys put out a statement to that effect last night. But I suppose it’s good news, from my point of view, that I’m an unindicted co-conspirator rather than an indicted conspirator. I look forward to maybe being called as a witness, to come to President Trump’s defense.

Because, getting legal advice about contested interpretations of constitutional provisions is not and never has been and never should be a criminal action.

The most important point here is that getting legal advice about contested interpretations of law must not ever be considered criminal. You can think one way or another about Trump and still want the actual rule of law—rather than lawfare—to prevail.

This is both ridiculous and extremely dangerous. Legal counsel isn’t required to be right or else be punished with prison. Legal counsel is to give a plaintiff advice about ways to present a case. It is about presenting ideas and opinions in what is intended to be an adversarial system. You eliminate any balance of the scales of justice, if one side arbitrarily gets to decide it is right—before trial—and anyone disagreeing is not only wrong but illegally subversive.

from Wikipedia

John Eastman goes on to describe what we might call lawfare:

What’s really going on here is an attempt to prevent people who are unpopular with the elites in our country from having competent legal representation—from having any representation at all. The effort by the 65 Project to go after every one of the attorneys that was involved in any of these election challenges—they make no bones about it. They specifically said, “Our goal here is not just to have them disbarred, but to make them toxic in their firms and in their communities so that right-wing legal talent will never take on these election challenges again.” Of course, if that’s succeeds, then it clears the path for complete manipulation of election processes without anyone willing or able to step up to challenge it in the courts.

It takes a certain personality to engage in lawfare. Prosecutor Jack Smith is one such example. In a podcast (“Jack Smith - A Psychological Analysis” August 2, 2023) Mr. Reagan (Christopher Kohls) might be on the verge of name calling. But he calls out prosecutor Jack Smith as a nerd—a cool-guy wannabe who hasn’t grown out of his awkwardness even well into middle age. Smith exaggerates, uses dramatic emphasis in his delivery, and in every way verifies to us that he is unhinged by his hatred of all things related to Trump—and, by extension, all of us. His wife produced a documentary on Michelle Obama. There isn’t a chance Smith is unbiased or professional. He’s just a tool.

Humor helps in times like these.
meme found on Facebook

It has been a while since I read Orwell’s 1984. I remember the “memory hole” way of changing history. Check. And I remember the unwillingness to accept differing views. Check. I remember the protagonist, Winston, being subjected to something considered therapeutic to eliminate his unwillingness to submit to the state’s version of truth—until he finally comes out gladly proclaiming that 2+2=5. Let’s call that an attempted check so far. In the book, did they arrest and imprison people for disagreeing with Big Brother? Maybe they did. So, we’re either like the 1984 dystopia, or we’re worse.

I say this as I still freely write this and post it (albeit in obscurity). Because, at this point government power is attempting to be absolute, but the people have not yet submitted.

Two podcasts I listened to played a clip of one of Rush Limbaugh’s last broadcasts [The Benny Show and the Charlie Kirk podcast]. It’s worth quoting Rush here:

I know that they desperately want Trump gone. And I know that they desperately want it codified that Trump cannot run again, because, make no mistake, they remain scared to death of you, and they remain scared to death of Trump. Trump’s 75 million, 80 million votes. And I’m going to tell you, you’re not going anywhere. Even if Trump does, you’re not. They can’t separate you from Trump. And, more importantly, they can’t separate you from the ideas. They can’t separate you from MAGA. They can’t separate you from Make America Great Again—which I think remains one of our big campaign strengths going forward. They believe that they can destroy this bond that exists between you and Trump, if they somehow make Trump look bad, make Trump look like a reprobate, embarrass you about Trump. They can’t do it, because you came before Trump.

The great Rush Limbaugh, in one of his last shows.
Screenshot from here

Rush reminded us that their persecution of Trump is essentially a proxy war for their persecution of us—the ones with minds that they do not yet control. They can’t stand not controlling us. And Trump is in their way. Trump himself has said as much.

The enemy seems to have this misconception that, because our side is made up of law-abiding citizens, we must be scandalized by a federal indictment of a candidate. Trump must be bad if the feds have brought charges against him, right? But too many of us see this as it is: a political attack—on us, through him. So his poll numbers go up.

OK, back to the document. One of the charges suggests Trump is guilty of “conspiracy against rights,” whatever that means. Charlie Kirk explained it on his show:

Conspiracy against rights. What in the fresh heck is conspiracy against rights? 18 U.S.Code § 241. What in the heck is that? Conspiracy against rights?

Well, it was passed in the 1870s, known as the KKK Act. Not used very frequently. It’s hard to prove. But for those of you that watch our show closely and carefully, for those of you that take our warnings seriously, there was a test case.

Do you remember the young, innocent man, who we tried our best to raise legal support for? Who— Actually, I think Turning Point donated I think $10,000 to his legal fund. Douglass Mackey. Does that name ring a bell? Well, recently Douglass Mackey was sentenced—well, I don’t know if he’s been sentenced; he’s been convicted, awaiting sentencing—because he made a meme in the 2016 election. Remember that? Because he made a meme making fun of Hillary Clinton, the Biden DOJ goes and says, “We’re going to put you in federal prison.”

Now, we were infuriated about this. Tucker Carlson, to his great credit. By the way, there’s clear examples of Democrats doing the exact same thing. Douglass Mackey, being a white, conservative meme warrior, faces nearly a decade in federal prison. But it was a test case. Because they indicted him on 18 U.S.C. § 241, Conspiracy against rights, dusting off a KKK era bill, a law that allows the federal government to criminalize your activity, your constitutional rights, if it’s a threat to the regime—if they can convince twelve people to do it.

This is a well-orchestrated legal trial-and-error. They try it on Douglass Mackey to be able to use it against Donald Trump.

And a lot of people said, “Oh, the Douglass Mackey thing. He made a meme. How does that impact me?” Well, Douglass Mackey was patient zero. Douglass Mackey was patient zero of the dusting off of 18 U.S.C. § 241, Conspiracy against rights.

I looked up the meme. 

meme attributed to Douglass Mackey, found here

It’s clearly satire, mocking low-information Democrat voters. If someone lacks the intelligence to know that, without a well-publicized change in the law (see 2020, when such things as illegal voting process changes happened, but were definitely well-publicized), you have to actually vote in person, not by social media post, then that person lacks the intelligence to vote. Now, while we don’t have an intelligence test for voters (although there are times when that might seem like a prudent option to pursue), a real voter ought to know, among all the other facts, that there is more than one race on the ballot, so you actually need a ballot in order to vote. This satire didn't infringe on any actual person's right to vote. Nevertheless, Mackey is convicted, pending appeal.

The timing of the Trump indictment seems to be following a pattern. More than one person has pointed out the correlation between bad news coming out about Biden and new charges against Trump. [As an aside, there’s a similar correlation between bad Biden news and alien reports—called UAPs now instead of UFOs.] Trump attorney Alina Habba provides the list: 

The fact that I am standing here for the third time in five months is not a coincidence. This is the Biden political lawfare that we have seen time and time again. It is a deflection from everything that they have done. And if you don’t believe me, look at the facts:

·        On March 17 Hunter accidentally admits that it was his laptop from hell. The next day DA Alvin Bragg indicts President Trump.

·        June 8^th, an FBI document is released, showing that the Ukrainians paid the Biden crime family millions and millions of dollars. The next day, the Mar-a-Lago Raid, and the Mar-a-Lago indictment.

·        Last week Hunter Biden’s sweetheart plea deal fell through when the judge realized it had blanket immunity. The following day, a superseding indictment against Donald Trump.

·        July 31^st Devon Archer goes to testify in front of the House. That was only after they failed to put him in jail prior to the fact. What happens the next day? The January 6^th indictment that we’re here for today.

This is not a coincidence. This is election interference at its finest, against the leading candidate right now for president, for either party. President Trump is under siege in a way that we have never seen before. President Trump and his legal team, and everyone on his team, will continue to fight—not for him, but for the American people.

 In his Wednesday night special, Glenn Beck went over a number of things we’re facing. But there was something somewhat hopeful that he said:

You have to realize you have the power still. You have all of the real power. You just don’t believe it. The Deep State was forcibly exposed last week in court. Does that happen without people like you and me speaking out every time we see this stuff? I don’t think it does.

The exposure needs to continue, because, if we don’t, we will lose.

It’s hard to see times as bad as these and be hopeful. But companies who showed that they hate their customers have learned they need those customers more than the customers need those companies. This has been true for Budweiser, Target, Disney, and a number of others. We stop doing business with them, and the companies sink. We had more power than we realized.

We have that power—God given—in the political sphere as well. We used to think it was our collective votes that made us powerful, but they have mainly taken that from us. So it will have to be either recovering free and fair elections or some other way we can’t yet see. May God show us what to do, and when, so we can recover our constitutional republic!

Compassion vs. Self-Preservation

Syrian refugees are being brought into the United States. A first group of arrivals were placed in Louisiana earlier this week. The president says we should simply trust him. But since there is almost nothing in which he has earned our trust, that will not do.

Add to the decision the knowledge that five Syrians jihadists were just apprehended in Honduras, with false Greek passports,, on their way to America. Plus three were three more apprehended in St. Maarten, on their way to the US. Plus there were eight more apprehended (turned themselves in?) in Laredo, TX, on their way into the US. All just this week. We can enumerate those apprehended, but we don’t know how many weren’t caught.

5 Syrian men escorted by Honduran police Nov. 18
photo from Reuters

I listened to a discussion about the Syrian refugee question on Hugh Hewitt’s radio show Wednesday evening. His guest was Professor John Eastman, Fowler School of Law, Chapman University, Dean Emeritus. Hewitt refers to him as one of The Smart Guys, but the other one wasn’t available that day. The short conversation covers several of the important questions about the refugees. So I’ll follow up on a couple of points after the transcript (starts 25 minutes in during hour 2):

HH: John, earlier today five Syrians were arrested in Honduras carrying Syrian passports. They were on their way to the United States. Earlier today, ISIS released a video of New York that had been made since the French attacks, featuring new video of al-Alam showing pictures of New York—maybe they were file photos, maybe they’re not—threatening explosions. I think maybe the country’s position is going to change a little bit on metadata collection. What do you think?

JE: Well, I think so. And also some very serious federalism questions on whether the states just have to accept whatever the federal government imposes on them in the way of immigration. I think we’ve got a real eye-opening window about to open up here.

HH: Now, let’s talk about what Speaker Ryan said today. “We have no religious test; we have a security test.” They are drafting a law that will go to the Senate, and they expect to pass it before they leave on Thanksgiving vacation, because they want this vetting that the president promised via a tweet, but no one believes is going on. Do you believe it’s going on?

JE: Well, I don’t believe it’s going on; I don’t believe they’re capable of it going on. Let’s talk about the Syrian refugees for a moment. The federal law allowing the president to vet and designate who can receive refugee status requires that we engage in an investigation, a vetting, to make sure we’re not bringing in terrorists and also people with communicable diseases and other threats to our security and to our health and safety in this country.

There is no ability for the president or any of his minions in the executive branch to conduct that kind of vetting process with respect to a regime that is in the middle of a perpetual state of war. And we do not have the capability to check even if these are convicted felons from their own country. You can’t exactly pick up the phone and ask al-Assad, “Hey, is this a good guy or a bad guy that we’re about to admit into the United States?”

And that means the statutory requirements cannot be met. And therefore by law the president can’t be designating these folks as refugees.

HH: That’s very interesting. I hadn’t heard that. And by the way, if they caught five in Honduras, how many do you think they didn’t catch?

JE: Well, Honduras… I don’t know what you figure. One out of a hundred we catch? One out of a thousand? Who knows?

Let me go back to the question on religion, though, because we do have a religious test, and Speaker Ryan’s not quite right about this. It’s not the kind of, we’re only going to allow certain religions and not other religions—that’s not what the test is. But the requirement for asylum and the requirement for refugee status is not just that you be fleeing a war torn country; everybody, of course, would like to flee that. The requirement, the statutory requirement that is binding on the president is that you have to be seeking asylum or refugee status because of persecution or a well-grounded fear of persecution based on your religion or ethnic heritage or what have you. And if you don’t meet that criteria, then you are not eligible for asylum or refugee status under the law.

HH: So asylum actually comes to the Yazidis and the Assyrian Christians pretty easily, since the alternative is staying there and losing their heads.

JE: That’s right. And it’s because of their religion that they would lose their heads if they stay there. Not true for a lot of people just fleeing because they don’t want to be in the war area. And so our law is very clear. And the Supreme Court has routinely recognized that the plenary power to describe, to define that stuff, that legal requirement, is vested in Congress, and the president cannot ignore those statutory requirements….

HH: John, in light of the ISIS video threatening New York, released today, in light of the five Syrians arrested in Honduras carrying false Greek passports, listen to what the president said yesterday in the Philippines:

(audio of Obama): These are the same folks oftentimes who suggest that they’re so tough that, uh, just talking to Putin or staring down ISIL or using some additional rhetoric somehow is gonna solve the problems out there. But apparently they’re scared of widows and orphans coming in to the United States of America as part of our tradition of compassion. Now first they were more afraid about the press bein’ too tough on ‘em during debates. Now they’re worried about three-year-old orphans. That doesn’t sound very tough to me. They’ve been playing on fear in order to score political points, or to advance, uh, their campaigns. Uh, and it’s irresponsible. And it’s contrary to who we are. And it needs to stop, because the world is watching.

HH: So, John Eastman, the president is petulant, childish, and dictatorial, telling people it needs to stop. I mean… I’ll just give you the last minute and a half to respond to that.

JE: It’s astounding to me. We’ve got evidence across the world of people coming in, masquerading as refugees in order to commit acts of terror against our civilian population. The president’s first job is not to be compassionate to anybody he feels he would like to be; his first job is to protect the security of the American people, particularly on our homeland. And if folks are masquerading as refugees, then we darn well better start questioning refugees to make sure we’re not letting potential jihadist terrorists into this country. And in fact, the federal statutes require that he engage in that.

And so, this is not about wanting to be discompassionate to widows and orphans. I mean, that’s just demagoguery by the president of the United States. And we ought to quit tolerating this guy’s demagoguery. The federal statute requires them to vet potential refugees, to make sure that we are not letting in people who pose a threat to the United States—a health threat, a physical threat, a jihadist threat. And we know particularly from the Paris attacks that these folks can pose a jihadist threat. And we have no ability currently in place to vet who these people are. And the kind of wholesale importation of 10,000 from Syria, and 100,000 refugees total without any vetting process in place is unbelievably foolish. And it’s kind of a disregard of the most fundamental duties of the president of the United States.

Earlier in the program, Hewitt had a caller ask the question: If they’re supposedly vetting already, then how many are being turned away, and where are they ending up? I think the assumption behind that question is that we can pretty well disregard the president’s claim that they are carefully vetting; they’re not.

Syrian refugees arriving in Louisiana, 70% males of military age,
not widows and 3-year-olds as the president claims,
photo from here

This shouldn’t be a partisan question. Anyone who loves America and has enough awareness to see what just happened in Paris ought to be wary about allowing Muslim refugees fleeing ISIS into the US. Add to that the law that must be followed (by a law-abiding president) concerning granting refugee status.

There are ways to vet Syrian Christians. And it is evident they are being persecuted because of their religion, and their lives are in danger. So then the next hurdle is whether there is a health risk, which probably could be managed with a relatively short quarantine prior to bringing them here. There's still the question of using taxpayer dollars to relocate and support these individuals.

And there is still the question of whether transporting them halfway around the world is the only, or even the best, option. It might be for some of them. For most Syrians, bringing them here acts on an assumption that they will never be able to live in their homeland again, that ISIS has permanently won that land. That's pretty defeatist.

Other options include finding safe zones for them in nearby Middle Eastern countries, where they fit culturally and religiously. That acknowledges the possibility that the enemy radicals can be vanquished, and that the refugees have hope they can eventually move back home.

The president's accusation that anyone who disagrees with his wholesale importation of unvetted Syrians means we are hypocritically un-Christian is completely wrong.

What is more likely behavior for truly charitable people: find (or found) organizations[i] to assure people fleeing their war torn home country have shelter, food, clothing, and healthcare? Or expect their government to confiscate their tax money at a rate of about $16,000 (followed by  per refugee to uproot them and transport them to our country, with all its cultural differences?

Charitable people wouldn’t necessarily bring them here. Maybe a few, select persons who qualify for refugee status and have a strong desire to become Americans rather than return to their native home.

So why does the president—against the advice of his military and security leaders—insist on spending big money and foisting large numbers of foreigners on us, foreigners that would much rather be among majority Muslims living in the Middle East than in overwhelmingly Christian America? And why do people in his party almost exclusively ignore our safety and suddenly insist on “charity” to these people—while they have been ignoring the elimination of Christians in the area up until now? And why are they so “charitable” that they insist we give up our safety for it?

I assume it is the same answer as always: this president has a political agenda that has to do with transforming America away from freedom, prosperity, and civilization. Blindness must explain why he has followers.

Today the House voted on a bill to call for a pause in the importation of Syrian refugees. The vote was 289-137, which included around 50 Democrats who are awake enough to see the danger. There’s still the challenge of getting through the Senate and overcoming a veto.

I have an idealistic, unrealistic suggestion, to deal with the gap between what the president says is a thorough vetting process and what we assume is a mostly porous process. I suggest that the president stake his life on his vetting process. 

We want to be assured that no radical Islamists will come in among any Syrian or Iraqi refugees. The president could be held responsible if any radical Islamists make their way in. If it turns out that if even a single radical jihadist is found in our country because of being disguised as a refugee, the Obama, along with possibly some higher up minions, spends the rest of his life in prison. If it happens that a radical jihadist who got here by way of being a refugee participates in a terrorist attack in our country—regardless of size of the attack or extent of the damage—the president is subject to immediate capital punishment.

That would make more sense than having the president risk our lives, safety, and security, and saying, “That’s a risk I’m willing to take.” Let the risk and responsibility actually be his.

Or he could simply go along with Congress and all sensible people and stop inviting them.

---

[i] Here are two such organizations: LDS Charities, video of ongoing help here; The Nazarene Fund, a project of Mercury One (Glenn Beck’s organization). If I understand correctly, both of these organizations put 100% of your donations toward relief; they handle overhead with completely separated funding sources.

Supreme Disservice

Monday, October 6, 2014, goes down in history as a great sin of omission—a moment when something could have been done for the sake of civilization, and it wasn’t done.

This is part of the problem of getting ourselves into the position of trusting nine unelected lifetime appointees to determine what is law. That’s not how the writers of our Constitution set things up; that’s the result of corruption. But, since they have that power, failure to use it for good can be a significant failure.

 

The Supreme Court is more or less free to take up any case that works its way up to the SCOTUS level of appeal, or to not take up a case for any reason. In general, when they take up a case, it can be with the purpose of defining a point of dispute in the US Constitution.

In a piece at Breitbart, Senator Ted Cruz describes what was happening:

The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word—an action that is likely to have far-reaching consequences. [It is] beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today.

The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment…. Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.

The 14^th Amendment is longer than I want to quote entirely here. Its purpose was to make sure freed slaves, nor any other citizen, did not have their citizenship rights abridged. The salient part reads:

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.

There is nothing in there saying, “no state shall define marriage in a way that meets with disapproval in some circles in 2014.” A marriage is a contract. In contracts, terms are defined. The US DOMA law, recently struck down, was simply the federal government defining the term for use in federal contracts; it was struck down, because, according to Justice Kennedy, states should retain the right to define that term for themselves.

Many states have gone out of their way to define the term marriage as a contract between one man and one woman, including placing the definition in their state constitutions (Texas did this in 2005 with an overwhelming majority of about 78%). There is nothing in the definition that prevents any citizens or group of citizens from taking part in such a contract. Any homosexual person who chooses (and some do) can marry a person of the opposite sex and enjoy all the benefits of that contract, including bearing and raising offspring.

The current rulings at issue claim that the very definition of marriage discriminates and therefore cannot be allowed. Circuit court judges have wiped out the sovereignty of a dozen states, not based on law, not based on SCOTUS precedent, but simply based on their misconstruing the 14^th Amendment.

These are political (politically correct?) decisions, not law-based decisions. We need an authority to put a stop to them.

If SCOTUS had chosen to add these cases to this year’s case list, it would have left the cases in dispute, and marriage licenses would not be issued to people who did not qualify for them. With the failure to take on the cases, it means, until further notice, the most recent rulings stand—forcing the states in question to start issuing licenses to same-sex couples—or any other couple (or other multiple) that hasn’t heretofore been granted a marriage license because of not meeting the definition of the term in the contract. If states are not allowed to define the term of this contract, all comers, married already or not, close relatives or not, same or opposite sex or more than one of any such combination, must be allowed—because the circuit courts have ruled that states are not allowed to define the term since it might be construed to be discrimination.

It’s a chaotic mess.

Meanwhile, other cases are pending in other circuit courts—which indications seem to show will be logically ruled based on law, rather than on judicial whim. Then there will be a hodgepodge of licensing requirements, depending on which judge said what to which state.

Eventually the Supreme Court will have to take up the issue. Then there will eventually (assuming sanity on the final ruling) be a nullification of licenses granted from this point until the ruling shows such licenses to be invalid.

One of the best discussions I heard was on Hugh Hewitt’sWednesday show, third hour, with John Eastman, President of National Organization for Marriage, and one of Hewitt’s go-to law specialists. You can only get to the archive with subscription, so I’m providing a chunk of the transcript below. Their discussion doesn’t provide a solution, but I still found it enlightening. (HH is radio host Hugh Hewitt, and JE is John Eastman.)

HH: John, how do you read everything that has happened in the marriage cases in the last 24 hours?

JE: Yeah, we’ll extend it to 72 hours, to Monday morning, which I think we must. It’s just utter chaos. And I am deeply disappointed in the institution of the Supreme Court, for the chaos that is now following in the wake of their non-decision of Monday morning. What they had pending before them was seven different circuit decisions, in cases coming out of five different states, three different circuit court of appeals, with both sides of the cases urging the Supreme Court to take the issue and settle once and for all whether the Constitution mandates that the states redefine marriage to include same-sex relationships. The Court denied cert in all of those, and that left the lower court decisions in place. And in many of those states—Utah, Oklahoma, Virginia, Indiana, Wisconsin—marriage licenses began issuing immediately. But the Court hasn’t settled this, so there’s still pending litigation in the 8th Circuit, and the 5th Circuit down in Texas and Louisiana, and the 11th Circuit, and most imminently in the 6th Circuit cases out of Ohio and Kentucky and Tennessee and Michigan.

We expect the 6th Circuit is going to uphold those state’s laws, and I think the Court will have to take this up at that point, because there will be a very important circuit split on a fundamentally important Constitutional issue. And the chaos that has happened in the meantime will have continued for no reason.

HH: What do you make of Justice Kennedy enjoining Idaho from issuing licenses, but subsequently today apparently clearing the way for Nevada to do so?

JE: So, what happened yesterday was the 9th Circuit issued its decision, and it had pending before it cases in Idaho and Nevada. It also had a case out of Hawaii, and we haven’t heard what they’re going to do with that one yet. But it consolidated the Idaho and Nevada cases into a single order. And then Judge Reinhart issued the mandate immediately, rather than pursuing the normal procedure, which is to allow the parties an opportunity to petition for rehearing on bond or to ask the Supreme Court to review the case. And so Idaho’s governor filed an emergency application for a stay about 3:00 in the morning, because marriage licenses were ordered to start issuing at 10 AM this morning. And Justice Kennedy granted that stay. The caption on the case was the consolidated caption, which had Idaho and Nevada, and so the stay applied to both cases. But then Justice Kennedy, a few hours ago, clarified that, no, it was only in Idaho, because it was only Idaho that asked for a stay. The Nevada governor has apparently decided to throw in the towel. Now, about 30 minutes ago one of the other parties in that Nevada case filed an emergency application for stay with Justice Kennedy, and I don’t think we have word on that one yet.

HH: Now, your interpretation, John Eastman, of why the Court did what it did? I have my own. People understand me to believe that they are waiting for the split to develop, and that they did not want to grant cert prematurely to having a split. Others have a more sinister view, the Ruth Bader Ginsburg view, that it’s better not to have a replay of Roe and just allow this to be nullified. The voters’ wishes nullified by circuit judges instead of Supreme Court Justices. What do you think?

JE:  I tend to side on the cynical view. And there are several versions of the cynical view, but that’s, I think, the most prominent of them. The problem with waiting for the circuit split theory is, if all of the lower courts had upheld the state constitutional provisions at issue, then you would wait for a circuit split. If no court is going to strike down a state constitutional provision, there’s no reason that the Supreme Court needs to weigh in. But when you’re talking about the lower courts striking down very significant provisions of the state constitutions recently adopted by overwhelming majorities of the citizens of those states, you don’t normally wait for a circuit split. That is such a threat to the state sovereignty by itself that it warrants Supreme Court review. But the Court on Monday decided not to bother, and to let the dust settle as it may.

HH: Best case scenario, in your view?

JE: Best case scenario is a 6th Circuit with a very strong opinion from Judge Sutton reminds the Court of a couple of things: that this is a state issue—Justice Kennedy told us that in the DOMA case just two years ago—and the federal courts have no business being involved in it. And that circuit split, then, is ground for the Supreme Court to take it up and affirm the 6th Circuit’s well-reasoned opinion. That’s the best case scenario….

HH: John, as I was going to break, I cannot tell you how cynical I am about the courts now. And I tell my students, it’s a game. It’s just a political game, because no one can reason the way these courts did on marriage. No one can say North Carolina didn’t know what they were doing, or that the law changed, that the 14th amendment embraced…. It’s just a joke. It’s about politics. The Supreme Court could rescue us from that. And the only way to do that, though, is, they some people to come over the hill with some opinions. And they’re just not there. So I do understand reticence of Roberts, Alito, Scalia, and Thomas to do this without anyone on their side.

JE: It’s a good theory, but here’s why I disagree with you. There are very strong, well-reasoned opinions in dissent in the 10th Circuit cases by Paul Kelly, judge out of New Mexico, and in a 4th Circuit case out of Virginia by Paul Neimeyer. They’re thorough. They’re well reasoned. They take account of existing Supreme Court precedent. They deal head on with Justice Kennedy’s opinion for the Court in Windsor, the DOMA case, and point out why, on Justice Kennedy’s own terms in that decision, it doesn’t invalidate state laws. And they’re thorough. So if that’s what they’re waiting for, they already had it, albeit in dissent.

HH: But in dissent.

JE: That’s right. But they could have held onto these cases. They know that the 6th Circuit decision is coming soon. They’ve been following news accounts that everybody expects the 6th Circuit to uphold the Ohio, Kentucky, Tennessee and Michigan marriage laws, which are identical to the other ones….

In the meantime, you’ve got this utter chaos. You know, what are you going to do? Are you going to unravel…? You’ve got judges now in Utah taking these decisions, and now saying that Utah’s statues on polygamy are invalid. Because if this is just a fundamental right to marry whomever you want under whatever circumstances, which is the way these cases have been portrayed, why should I have….

HH: That’s why they have to deal with it eventually, which is why you might want to…. I remember that Churchill kept urging Eisenhower to invade Europe in ’42 and in ’43, and Ike just kept saying, “Wait. Wait. Not ready yet.” So am I persuading you to be less cynical?

JE: No. I’m still cynical. Because they took the Proposition 8 case from California without a circuit split. So they obviously thought it was important there.

I wouldn’t want a premature wrong ruling, which would essentially kill marriage, as has happened in Scandinavia. I want the right ruling, and I don’t know, politically, what must happen to get that. I prefer to read the Constitution, understand it, follow it. That’s what SCOTUS is supposed to do. I pray things work out well in the end. But in the meantime, the propaganda war that is taking away our freedoms, our state sovereignty, and the family as the basic unit of civilization is getting a lot of loud media, while the good guys are intolerantly called intolerant.

Fractious Fractional Argument

Tomorrow the US Supreme Court hears arguments on the Hobby Lobby and Conestoga Woods cases, concerning whether corporations are exempt from having religious rights.

Image from HobbyLobbyCase.com

I’ve written about this before. But in the past week I heard an argument I hadn’t heard before, which I’m calling the fractional argument. There are several places to go for more, some of which I’ll summarize here:

·        “Underlying Hobby Lobby,” Philip Hamburger, National Review, 3-11-2014

·        Hugh Hewitt “The Smart Guys” interview, 3-19-2014 (available only in membership-required archive) between Erwin Chemerinsky, Dean of UC Irvine Law School, and John Eastman, Dean Emeritus of Fowler Law School of Chapman University

·        www.HobbyLobbyCase.com for general and detailed information about the case, including briefs

My son Political Sphere brought the Philip Hamburger piece to my attention, which was the first I’d heard the fractional argument. Hamburger talks specialization affecting an organization as only fractionally allowed rights:  

Can government treat specialized organizations as having diminished constitutional rights outside their fields of specialization? Can it conclude, for example, that because Hobby Lobby is a business corporation, it has diminished interests in religion, and therefore in religious liberty? From this perspective, organizations devoted to some specialized paths have reduced interests in constitutional rights that the government associates with other paths. Churches, for example, have full religious rights, but not full speech rights, and businesses have complete speech rights, but not complete religious rights.

The effect of this kind of distinction is to curtail the constitutional rights (and associated statutory rights) of Americans when they associate with one another in organizations.

Corporations are made up of people, so that the organization combines the shared interests of multiple persons (at least three persons, in the states where I’ve looked at it personally). Do people lose rights, or get only a fraction of whole-person rights, when functioning within an organization?

In the Citizens United vs. FEC case, the Supreme Court ruled that a corporation does qualify for free speech rights as asserted in the First Amendment. In other words, a corporation qualifies for the same speech rights as an individual.

In the Hobby Lobby case, the same First Amendment is at issue. Does a corporation have religious freedom rights? Can a corporation be said to have religious beliefs?

Since the administration doesn’t like the Citizens United ruling, that corporations do have speech rights, but must abide by the ruling, it is attempting to limit other rights. The government is trying to say that a corporation exists only for a single purpose: maybe that is a religious purpose, like a church, so then it can have free religious rights but not free speech rights. Or maybe a corporation is for profit and ipso facto has no other mission than making money, so it can have speech rights (because SCOTUS said so), but not religious rights. In other words, corporations are fractional, depending on purpose as seen by the government, and therefore will be granted rights as government chooses to grant them.

We might not straighten out the government with this case alone, but government does not grant rights; God does. That’s in our founding document, the Declaration of Independence. The Constitution spells out some of them, just in case some tyrant tries to ignore our rights. But, back to the issue at hand.

Can a corporation have only one part of the First Amendment apply to it and not another, unless the Court’s simply making up rules as they go along?

In the Smart Guys interview, the second place I heard this fractional argument, the liberal side is represented by Erwin Chemerinsky, Dean of UC Irvine Law School. He asserts that a corporation can’t have religious beliefs:

A corporation is a fictional entity; it can’t have religious beliefs. There is an enormous difference between a corporation like Hobby Lobby and Conestoga Woods Specialty; those are corporations that exist to further the corporate mission of making profit. They’re not religious entities. And I don’t believe a fictional entity like a corporation can have religious beliefs.

Is a corporation a fictional entity? No, it is quite real. There’s a lot of paperwork and physical property showing its existence. It gets taxed and fined real money. It is not a fictional entity; it is a fictional “person.” It is a combination of individuals organized together as if one person.

In addition, corporations are frequently pressed to have good citizenship, and follow whatever moral values are being pressed upon them. As John Eastman said in the Smart Guys interview,

We have entire movements in this country calling on corporations to be good citizens, to have corporate civic values, and to support movements in South Africa and elsewhere around the world. The corporate responsibility, we demand that of them, even though it’s got nothing to do with their corporate profits and their bottom line. So why can’t included in that be the exercise of the fundamental religious beliefs of the closely held owners of those corporations?

One of Chemerinsky’s arguments is that people form corporations to avoid liability, in case the corporation gets into financial difficulty. Yes and no. The corporation is seen as financially a singular “person,” or entity, so financial default doesn’t take away all the personal belongings of one or several individuals in the organization. But if the corporation breaks the law, commits fraud, for example, the “fictional person” doesn’t do jail time; the actual human being(s) inside the company found responsible gets the indictment. So it’s not formed to protect oneself from the law; it’s simply one way of combining resources for a purpose.

Chemerinsky likes to refer to “secular corporations,” as opposed to “religious corporations,” such as churches and non-profits with a mainly religious purpose. This is a new phrase, however, not a legal distinction. A corporation forms as a non-profit, with a religious, educational, or even a political purpose. And forms as a for-profit corporation if it’s a business—but that doesn’t mean that is the only purpose; it just means that at least some of the corporation’s activities are expected to make a profit. You wouldn’t disqualify it as a for-profit corporation if it also donates time and resources to charities. Just as the rest of us humans, we might work a day job for profit, but that isn’t all we do, and that doesn’t determine whether or not we are religious.

There’s a point over which I most disagree with Chemerinsky, Looking at religious freedom issues, he refers to a case called First National Bank of Boston vs. Belotti, as well as the Citizens United case, concerning speech rights:

…corporations are given free speech rights because the more expression that’s out there, the better informed people will be. In other words, corporations are given free speech rights, because it instrumentally serves the goal of the First Amendment of a better informed electorate. That has no analog when we’re dealing with religion.

He thinks speech is valuable but religion is not, and that should be the deciding factor. He fails to notice that honesty, property rights, fairness, valuing life, and community commitment all come from religious beliefs. Can you picture a society full of corporations without any of those moral beliefs?

He is trying to come up with a rationale for the government to willingly grant speech rights, as required by the Court, without granting anything else. First, let me say there ought to be no distinction; if a person (or corporation made up of persons) has the inalienable right of free speech, the person (or corporation made up of persons) also has religious freedom. Not because the Constitution says so—but the Constitution says so to make it extra clear that government has no business doing anything to take those rights away. If there are other inalienable rights God has granted to people, the people do not have those rights alienated (taken away) whenever they associate with other people in an organization.

Hamburger says,

Why is this so troubling? Standing alone, individuals in an egalitarian society are weak in relation to government. But when they associate with one another, as Tocqueville observed, they acquire a shared strength, including the resources, capacity, and courage to develop public opinion independent of government and thereby to defend their freedom.

It would be very dangerous for the Supreme Court to accede to the government’s assumption that specialized organizations are often only specialized persons with only specialized constitutional rights — that is, only partial persons with only partial rights. If government can act on this vision of specialization, it can divide and undermine civil society.

The two cases at issue tomorrow are “closely held” corporations; they are fully owned by the founding families, and these families consist of people with religious beliefs—beliefs that carry over into the way they do business. Hobby Lobby, for example, closes on Sundays. They’ve been clear about their religious beliefs all along. Conestoga Woods is owned by a Mennonite family. So both have always been clear about the religious beliefs of the people heading the corporation and the influence that has on their companies. I’m concerned that there will be an additional parsing, eventually granting Obamacare religious exemption waivers to these particular companies because of their particular family structure, but refusing to grant such exemptions to larger, publicly held corporations, regardless of the beliefs of their boards of directors or other leadership.

I hope the Court hears truth with clarity tomorrow. I pray for them to be both wise and good.