A most painful anniversary

 

Twenty four years ago, on July 1st, my first-born daughter Sissy, then 30 years old, succumbed to cancer in Los Angeles after a grinding 26-month struggle. It will always seem like last week.

 

"Sweet Sissy Sue"
Words & music © 1998-2022, Bobby Gladd.
All rights reserved.

A month or so after Sissy died, while cleaning out her Hollywood apartment one night preparatory to moving back home to Las Vegas, Johnny Walker Black and I wrote those lyrics.

 

In April 2018, just a couple of months shy of 20 years later, we lost her younger sister to (unrelated) cancer. Why I'm not a babbling lunatic escapes me.

__________

 

"The Constitution does not confer a right to abortion;"

"Roe and Casey are overturned;"

 

Women have now effectively been written out of the 14th Amendment.

"The authority to regulate abortion is returned to the people and their elected [state] representatives."

Former Vice President Mike Pence wasted no time in coming out in support of federal legislation outlawing abortion nationwide.

 

 

Justice Alito asserts that, because the word "privacy" does not appear in the Constitution, it "confers" no such right. Well...

 

 

This goes to an old beef of mine going back decades.

I ran an ASCII text copy of the complete U.S. Constitution through a text analysis program.
Exported the results to an Excel sheet, where I tabulated the summary findings.

Pick an English language word at random. Raw base probability is about 99.5% that it won't be in the U.S. Constitution. So spare me that fatuous notion that because a given word doesn't appear in the Constitution, there can be no associated right. If the 4-word phrase "secure in her person" has any meaning at all, it comprises a lexically clear synonym for presumptive "privacy." (In that regard, the logical semantic meanings of phrases is what matters, not individual words. Need we seriously have to point that out? Apparently so.)

And, no, "presumptive" is not a synonym for "absolute." C’mon, people. Moreover, kindly spare me the old Borkian "privacy to to what, senator?" canard. The Constitution is not a checkbox tally sheet of fine-grained behavioral specifics.

A dark day, this one.

Curiously, no mention of Loving vs Virginia.

 

UPDATE: FINE TOPICAL ARTICLE

‘A revolutionary ruling – and not just for abortion’: A Supreme Court scholar explains the impact of Dobbs

The Supreme Court’s decision to reverse 50 years of constitutional protection for the right to get an abortion is more than 200 pages long. Morgan Marietta, a political scientist at the University of Massachusetts, Lowell, and editor of the annual SCOTUS series at Palgrave Macmillan, studies the ideas and ideology of the court. We asked him to illuminate the thinking that lies behind the momentous decision.

What does this ruling mean?

This is a revolutionary ruling. Not just for abortion, but for the ongoing debates over the nature of rights under the Constitution.

The ruling signals a massive change in how we read the Constitution, from a living reading to an original reading. The court has firmly rejected the theory of the living Constitution, which argues that the meaning of the document’s language changes as the beliefs and values of Americans change.

The living view, which prevailed at the Supreme Court during the second half of the 20th century, means that additional rights can emerge over time, including abortion, privacy and same-sex marriage. The living Constitution is updated through the judgment of the justices of the Supreme Court, who determine when public values have changed, and hence new rights have emerged.

Originalism, which is the approach taken by the justices who overruled Roe, rejects the living Constitution. In the originalist view, the Constitution is static until officially altered by amendment. It does not evolve on its own without public approval. The role of the justices is to determine the original public meaning of the text, but to leave other decisions to democratic representation through elections.

Regarding abortion, the conclusion of Dobbs is clear: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

“Arrogated” is an unusual word; it means to take without justification, implying that it is done in an arrogant way. That is the core argument of Dobbs: Roe was the court being arrogant, taking power the justices didn’t have, which rightly belongs with “the people,” a Revolutionary-era term in a revolutionary ruling…

Worth yout time. Read all of it. There has been an absolute blizzard of excellent analytical commentary writing online since the Alito Opinion was published on Friday. I've been reading away since the decision was announced.

MORE DR. MORGAN

The explicit rights clearly described and enumerated in the Bill of Rights — freedom of religion, freedom of speech, freedom to bear arms and others — are rising in influence, specifically because they have been approved and ratified by the people.

I have to again (Quixotically?) call emphatic Bullshit on spurious assertions that the 4th Amendment, in contrast to the examples alluded to above, does not "enumerate" a presumptive, broad right to privacy. Other fundamental individual prerogatives set forth in the Bill of Rights are equally brief and lacking in detailed specifics. And, then there's the 9th Amendment.  to wit, citing my 1998 grad Thesis: 

While the word “privacy” admittedly appears nowhere in the text of the Bill of Rights, neither do the terms “obscenity,” “sodomy,” “pregnancy,” “sacred marital bedroom,” or “drug abuse.” Those who espouse a view of the Constitution as a document of broad moral principles find such lack of specificity compelling in their argument against simplistically limited textual “strict construction.” Indeed, the 9th Amendment—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is universally cited by “broad construction” advocates to counter the observation that the specific term “privacy” is absent from the Constitutional language. To the “Constitution-of-Principle” advocate, the very brevity and generality of the Constitutional text is dispositive evidence that, far from being a document essentially no different than a commercial insurance contract, the “large-C” Constitution provides the general vision of justice and procedural guidelines for those who must administer ongoing the “small-c” constitution comprised of the very breadth of our social fabric.

SO, WHAT'S NEXT?

 

Democrats vow to enact a federal law guaranteeing abortion/reproductive autonomy rights nationally. Republican aggressively vow the opposite—federally outlawing abortion nationwide (so much for deference to the states). Given the current (and likely lengthy) makeup of the Supreme Court, Democrats have the more difficult task, i.e., legislation worded in a way that can survive an immediate SCOTUS challenge. Beyond that, hard-right activists will openly push for outlawing contraception, same-sex marriage (& perhaps interracial wedlock), and all things LGBTQIA. Gonna be a mess.

Like we don't already have enough to tend to.

DOBBS UPDATE

 

Dr. Michelle Goodwin in the NY Times:

No, Justice Alito, Reproductive Justice Is in the Constitution 

 

...Black women’s sexual subordination and forced pregnancies were foundational to slavery. If cotton was euphemistically king, Black women’s wealth-maximizing forced reproduction was queen.

Ending the forced sexual and reproductive servitude of Black girls and women was a critical part of the passage of the 13th and 14th Amendments. The overturning of Roe v. Wade reveals the Supreme Court’s neglectful reading of the amendments that abolished slavery and guaranteed all people equal protection under the law. It means the erasure of Black women from the Constitution.

Mandated, forced or compulsory pregnancy contravenes enumerated rights in the Constitution, namely the 13th Amendment’s prohibition against involuntary servitude and protection of bodily autonomy, as well as the 14th Amendment’s defense of privacy and freedom...

The 14th Amendment opens with the sentence, “All persons born or naturalized in the United States … are citizens of the United States and of the State wherein they reside” and as such would be protected by the laws of the United States. Such language applied to infants born to Black women, changing the provisions of law that had long denied Black children citizenship and the protection of laws. Lawmakers were understandably concerned about overturning states laws that had denied children the dignity of personhood.

Justice Samuel Alito’s claim, that there is no enumeration and original meaning in the Constitution related to involuntary sexual subordination and reproduction, misreads and misunderstands American slavery, the social conditions of that enterprise and legal history. It misinterprets how slavery was abolished, ignores the deliberation and debates within Congress, and craftily renders Black women and their bondage invisible.

It is no hyperbole to say that the Supreme Court’s decision in the Dobbs case is in league with some of the darkest rulings — Plessy v. Ferguson, which opened the floodgates to “separate but equal” laws that ushered in Jim Crow, and Buck v. Bell, which sanctioned states’ eugenics laws permitting forced sterilization of poor women
___

"Enumeration"—the act or process of making or stating a list of things one after another; the list itself.

 

4th Amendment—"The right of the people to be secure in their persons, houses, papers, and effects..."

 

"Secure"—free from danger; affording safety; free from risk of loss. 

SECURITY, PRIVACY, AND LIBERTY

The Dobbs ruling’s insistence that the Court should not impede states from making policies in which they weigh the interest in life for themselves, through their democratic processes, is tragicomic, even gruesome, coming the very day after the Court did just that in striking down a New York State gun-licensing law, based on the Court’s expansion of an individual right to bear arms under the Second Amendment.

In Planned Parenthood v. Casey, the plurality that reaffirmed Roe v. Wade wrote that “liberty finds no refuge in a jurisprudence of doubt”—meaning that, if the public is in doubt about whether constitutional rights are in danger of disappearing, that is not liberty. Dobbs leaves no doubt that the federal constitutional right to abortion is gone. And it ushers in an era of grave doubt about the status of liberty in the United States.—Jeannie Suk Gersen, Harvard Law School

"An era of grave doubt about the status of liberty in the United States."

Particularly—for now—the Constitutional liberty of women.

 

__________

 

Ed Yong ROCKS!

 Reflections on the Umwelt.
 

This young man, jeez...

Imagine an elephant in a room. This elephant is not the proverbial weighty issue but an actual weighty mammal. Imagine the room is spacious enough to accommodate it; make it a school gym. Now imagine a mouse has scurried in, too. A robin hops alongside it. An owl perches on an overhead beam. A bat hangs upside down from the ceiling. A rattlesnake slithers along the floor. A spider has spun a web in a corner. A mosquito buzzes through the air. A bumblebee sits upon a potted sunflower. Finally, in the midst of this increasingly crowded hypothetical space, add a human. Let’s call her Rebecca. She’s sighted, curious, and (thankfully) fond of animals. Don’t worry about how she got herself into this mess. Never mind what all these animals are doing in a gym. Consider, instead, how Rebecca and the rest of this imaginary menagerie might perceive one another…

These seven creatures share the same physical space but experience it in wildly and wondrously different ways. The same is true for the billions of other animal species on the planet and the countless individuals within those species.[*1] Earth teems with sights and textures, sounds and vibrations, smells and tastes, electric and magnetic fields. But every animal can only tap into a small fraction of reality’s fullness. Each is enclosed within its own unique sensory bubble, perceiving but a tiny sliver of an immense world.

These seven creatures share the same physical space but experience it in wildly and wondrously different ways. The same is true for the billions of other animal species on the planet and the countless individuals within those species.[*1] Earth teems with sights and textures, sounds and vibrations, smells and tastes, electric and magnetic fields. But every animal can only tap into a small fraction of reality’s fullness. Each is enclosed within its own unique sensory bubble, perceiving but a tiny sliver of an immense world.

There is a wonderful word for this sensory bubble—Umwelt. It was defined and popularized by the Baltic-German zoologist Jakob von Uexküll in 1909. Umwelt comes from the German word for “environment,” but Uexküll didn’t use it simply to refer to an animal’s surroundings. Instead, an Umwelt is specifically the part of those surroundings that an animal can sense and experience—its perceptual world. Like the occupants of our imaginary room, a multitude of creatures could be standing in the same physical space and have completely different Umwelten…

…Uexküll compared an animal’s body to a house. “Each house has a number of windows,” he wrote, “which open onto a garden: a light window, a sound window, an olfactory window, a taste window, and a great number of tactile windows. Depending on the manner in which these windows are built, the garden changes as it is seen from the house. By no means does it appear as a section of a larger world. Rather, it is the only world that belongs to the house—its Umwelt. The garden that appears to our eye is fundamentally different from that which presents itself to the inhabitants of the house.”

…Unlike many of his contemporaries, Uexküll saw animals not as mere machines but as sentient entities, whose inner worlds not only existed but were worth contemplating. Uexküll didn’t exalt the inner worlds of humans over those of other species. Rather, he treated the Umwelt concept as a unifying and leveling force. The human’s house might be bigger than the tick’s, with more windows overlooking a wider garden, but we are still stuck inside one, looking out. Our Umwelt is still limited; it just doesn’t feel that way. To us, it feels all-encompassing. It is all that we know, and so we easily mistake it for all there is to know. This is an illusion, and one that every animal shares…

A few terms will act as guideposts on our journey. To sense the world, animals detect stimuli—quantities like light, sound, or chemicals—and convert them into electrical signals, which travel along neurons toward the brain. The cells that are responsible for detecting stimuli are called receptors: Photoreceptors detect light, chemoreceptors detect molecules, and mechanoreceptors detect pressure or movement. These receptor cells are often concentrated in sense organs, like eyes, noses, and ears. And sense organs, together with the neurons that transmit their signals and the parts of the brain that process those signals, are collectively called sensory systems. The visual system, for example, includes the eyes, the photoreceptors inside them, the optic nerve, and the visual cortex of the brain. Together, these structures give most of us the sense of sight.

The preceding paragraph could have been pulled from a high school textbook. But take a moment to consider the miracle of what it describes. Light is just electromagnetic radiation. Sound is just waves of pressure. Smells are just small molecules. It’s not obvious that we should be able to detect any of those things, let alone convert them into electrical signals or derive from those signals the spectacle of a sunrise, or the sound of a voice, or the scent of baking bread. The senses transform the coursing chaos of the world into perceptions and experiences—things we can react to and act upon. They allow biology to tame physics. They turn stimuli into information. They pull relevance from randomness, and weave meaning from miscellany. They connect animals to their surroundings. And they connect animals to each other via expressions, displays, gestures, calls, and currents.

The senses constrain an animal’s life, restricting what it can detect and do. But they also define a species’ future, and the evolutionary possibilities ahead of it. For example, around 400 million years ago, some fish began leaving the water and adapting to life on land. In open air, these pioneers—our ancestors—could see over much longer distances than they could in water. The neuroscientist Malcolm MacIver thinks that this change spurred the evolution of advanced mental abilities, like planning and strategic thinking. Instead of simply reacting to whatever was directly in front of them, they could be proactive. By seeing farther, they could think ahead. As their Umwelten expanded, so did their minds…

Yong, Ed. An Immense World (pp. 3-8). Random House Publishing Group. Kindle Edition.

This book was released today. Just getting started. It's been 40 years since I had undergrad psych "Sensation and Perception" at UTK. Will be an interesting read, this book. I hope it helps improve my own thinking on "Deliberation Science" issues.

ON DECK

Review seen today in my Science Magazine.

 

The Amazon blurb:

Nineteen leading literary writers from around the globe offer timely, haunting first-person reflections on how climate change has altered their lives—including essays by Lydia Millet, Alexandra Kleeman, Kim Stanley Robinson, Omar El Akkad, Lidia Yuknavitch, Melissa Febos, and more.

In this riveting anthology, leading literary writers reflect on how climate change has altered their lives, revealing the personal and haunting consequences of this global threat.
 
In the opening essay, National Book Award finalist Lydia Millet mourns the end of the Saguaro cacti in her Arizona backyard due to drought. Later, Omar El Akkad contemplates how the rise of temperatures in the Middle East is destroying his home and the wellspring of his art. Gabrielle Bellot reflects on how a bizarre lionfish invasion devastated the coral reef near her home in the Caribbean—a precursor to even stranger events to come. Traveling through Nebraska, Terese Svoboda witnesses cougars running across highways and showing up in kindergartens.
 
As the stories unfold—from Antarctica to Australia, New Hampshire to New York—an intimate portrait of a climate-changed world emerges, captured by writers whose lives jostle against incongruous memories of familiar places that have been transformed in startling ways.

Goes to the "Anthropocene." From the introduction:

When we think of environmental crises our minds might go first to extreme weather events, like Superstorm Sandy, whose size and scale were amplified by climate change. At approximately 8:00 p.m. on October 29, 2012, Sandy struck Atlantic City, New Jersey. That night, a full moon hung in the turbulent sky, pulling the ocean tides a full 20 percent higher than normal and increasing Sandy’s storm surge. Seawater rose along the Eastern Seaboard toward New York City and then poured into Manhattan, flooding subways and sidewalks. More than six hundred thousand people lost power throughout the five boroughs; many would be without electricity for more than a week. The years since Sandy have seen an escalating series of even larger events. In 2020, there were so many tropical storms that the World Meteorological Organization nearly ran out of names for them.

But the connections between humans and the natural world go beyond extreme weather events. As the Earth warms, other devastating phenomena continue to thrash the planet: invasive species migrate to cooler climates, choking off local wildlife and creating potentially threatening moments of contact between animals and humans. Wildfire “seasons” are now year-round. Low-lying nations threatened by sea-level rise, like the Marshall Islands, are being forced to consider a terrifying, almost inconceivable choice: relocate the entire population or elevate the land. For the Marshallese, the latter would involve raising 1,200 islands scattered across 750,000 square miles of ocean. Early in 2020—and partway through compiling this anthology—the COVID-19 pandemic encircled the world, altering our lives in ways that are by now familiar. The catastrophic novel coronavirus was borne out of humanity’s complex and unsustainable relationship with wildlife. The way things are headed, this pandemic likely won’t be the last.

To use a metaphor that has grown uncanny, these visible effects of global warming are just the tip of the iceberg. In the public conversation about climate change, macro change tends to take center stage, and for good reason: it impacts the lives of millions and serves as an increasingly urgent reminder of the need for decisive action. But less told among the literature of climate change are the stories of individuals—how they’re coping (or not) with the changes occurring in their own lives. That’s the scale that The World as We Knew It seeks to highlight—not by turning away from global events, but by emphasizing the links between the individual, the collective, and the environmental. Sometimes the connections between the personal and the planetary can be hard to see, but once we start looking, we notice that they’re everywhere…

The World As We Knew It (pp. xii-xiv). Catapult. Kindle Edition

__________

 

Judge J. Michael Luttig on the Trump coup attempt

Statement of J. Michael Luttig before


The United States House Select Committee


on the January 6, 2021 Attack

on the United States Capitol Washington, D.C.
 June 16, 2022
_____________________________

Honorable Members of the House Select Committee:

A stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife’s edge.

America was at war on that fateful day, but not against a foreign power. She was at war against herself. We Americans were at war with each other -- over our democracy.

January 6 was but the next, foreseeable battle in a war that had been raging in America for years, though that day was the most consequential battle of that war even to date. In fact, January 6 was a separate war unto itself, a war for America’s democracy, a war irresponsibly instigated and prosecuted by the former president, his political party allies, and his supporters. Both wars are raging to this day.

A peaceful end to these wars is desperately needed. The war for our democracy could lead to the peaceful end to the war for America’s cultural heart and soul. But if a peaceful end to the war for America’s democracy is not achievable, there is little chance for a peaceful end to that war. The settlement of this war over our democracy is necessary to the settlement of any war that will ever come to America, whether from her shores or to her shores. Though disinclined for the moment, as a political matter of fact only the party that instigated this war over our democracy can bring an end to that war.

Like our war from a distant time, these twin wars are “testing whether th[is] nation or any nation . . . so conceived in Liberty . . . can long endure.” We must hope that January 6 was the final battle of at least the deadly war for America’s democracy.

These senseless wars are of our own making, and they are now being waged throughout the land, in our city centers and town squares, in our streets and in our schools, where we work and where we play, in our houses of worship -- even within our own families. These wars were conceived and instigated from our Nation’s Capital by our own political leaders collectively and they have been cynically prosecuted by them to fever pitch, now to the point that they have recklessly put America herself at stake.

America is now the stake in these unholy wars.

Serious thinkers about the American experiment who are not given to apocalyptic prophesying question whether America is on the verge of a literal civil war. But is even this figurative civil war to be our generation’s legacy to posterity?

These wars that we are waging against each other are immoral wars, not moral ones, being immorally waged over morality itself. We Americans no longer agree on what is right or wrong, what is to be valued and what is not, what is acceptable behavior and not, and what is and is not tolerable discourse in civilized society. Let alone do we agree on how we want to be governed or by whom, or where we go from here and with what shared national ideals, values, beliefs, purposes, goals, and objectives -- if any at all.

America is adrift. We pray that it is only for this fleeting moment that she has lost her way, until we Americans can once again come to our senses.

____________________

The war on democracy instigated by the former president and his political party allies on January 6 was the natural and foreseeable culmination of the war for America. It was the final fateful day for the execution of a well-developed plan by the former president to overturn the 2020 presidential election at any cost, so that he could cling to power that the American People had decided to confer upon his successor, the next president of the United States instead. Knowing full well that he had lost the 2020 presidential election, the former president and his allies and supporters falsely claimed and proclaimed to the nation that he had won the election, and then he and they set about to overturn the election that he and they knew the former president had lost.

The treacherous plan was no less ambitious than to steal America’s democracy.
Called to Washington D.C. that day by the president, the president himself, and the president’s followers, supporters, and allies gathered near The White House for a “Stop the Steal” rally. The president maintained at that rally that the 2020 presidential election had been “fraudulently stolen” from him. The president addressed his faithful followers thus: “We’re going to the Capitol. . . . We’re going to try and give them [the Republicans in the Congress, presumably] the kind of pride and boldness that they need to take back our country. . . . We will never give up. We will never concede.”

Inflamed, the gathered mob marched up the hill from The White House to the United States Capitol to protest, disrupt and prevent the counting of the electoral votes for the presidency, which the president falsely charged were wrongly about to be counted by the Congress in his political opponent’s winning favor and in his own losing favor.

Once staged at the Capitol, the mob soon erected gallows on the United States Capitol grounds, chanting that Vice President Mike Pence should be hanged. Hanged, the mob chanted, for “cowardly” refusing the president’s lawless entreaties that his Vice President declare their president reelected, against the will of the American People, though he had lost both the Electoral College and the popular vote for the presidency.

There were many cowards on the battlefield on January 6. The Vice President was not among them.

Soon thereafter, the rioters stormed the Capitol itself, breaching, occupying, and ransacking the temple of our democracy for seemingly endless wrenching hours -- at the precise democratic moment when the Congress of the United States convened in Joint Session to begin the constitutional counting of the votes for the presidency of the United States.

Not until over three hours after the riot had begun, and then only after the siege had achieved what by that time was its truncated objective to interrupt and indefinitely delay the counting of the vote, did the president finally yield to the pleas and prayers from his own family, friends, and political allies, and grudgingly ask his supporters in a hastily forced video tweet to disperse and return to their homes.

The Nation wept during the evening of January 6, as the Capitol police began to clear and resecure the Capitol at day’s end. Finally, at 8:00 p.m. on January 6, seven hours after the siege on the Capitol had begun, Vice President Pence gaveled the Joint Session back into order with measured, understated resolve: “Today was a dark day in the history of the United States Capitol. . . . Let’s get back to work.”

January 6 was a dark day in the history of the United States, too. 

It was not until the next day, January 7, 2021, at 3:42 a.m. in the morning -- almost fifteen hours after the Joint Session had first been gaveled into session by Speaker Nancy Pelosi -- that the Vice President finally declared that Joe Biden had been elected the 46th President of the United States.

____________________

 

 On January 6, 2021, the prescribed day for choosing the American president, there was not to be a peaceful transfer of power -- for the first time in the history of our Republic.

Over a year and a half later, in continued defiance of our democracy, both the former president and his political party allies still maintain that the 2020 presidential election was “stolen” from him, despite all evidence -- all evidence now --that that is simply false. All the while, this false and reckless insistence that the former president won the 2020 presidential election has laid waste to Americans’ confidence in their national elections. More alarming still is that the former president pledges that his reelection will not be “stolen” from him next time around, and his Republican Party allies and supporters obeisantly pledge the same.

False claims that our elections have been stolen from us corrupt our democracy, as they corrupt us. To continue to insist and persist in the false claim that the 2020 presidential election was stolen is itself an affront to our democracy and to the Constitution of the United States -- an affront without precedent.
 
Those who think that because America is a republic, theft and corruption of our national elections and electoral process are not theft and corruption of our democracy are sorely mistaken. America is both a republic and a representative democracy, and therefore a sustained attack on our national elections is a fortiori an attack on our democracy, any political theory otherwise notwithstanding.

Accordingly, if, and when, one of our national elections is actually stolen from us, our democracy will have been stolen from us. To steal an election in the United States of America is to steal her democracy.

____________________

 

As in all things, the essence of our participation in democracy is not knowledge, but judgment -- studied, discerning judgment. No more so is this true than in the Constitution and in the Law.

Very few ever have the honor of counseling the President of the United States of America. That highest of honors carries with it the highest of obligations. Counsel provided to the President of the United States must be the product of not only exquisite, penetrating legal analysis but also profound, insightful legal judgment. These two combined are so far from mere technical legal competence as almost to be its polar opposite. The President and the country deserve nothing less from those who counsel the President, so consequential are the stakes for the Nation when the President acts upon the advice of his or her Counsel.

Whatever else, the President of the United States did not receive such counsel during his sustained effort to overturn the 2020 presidential election. It is as much the former president’s fault as anyone’s that he did not.

Irrespective of the merits of the legal arguments that fueled the former president’s efforts to overturn that election -- irrespective of them, though there were none -- those arguments, and therefore those efforts, by the former president were the product of the most reckless, insidious, and calamitous failures in both legal and political judgment in American history.

From their inception, the legal arguments that underlaid the efforts to overturn the 2020 election were, in that context, little more than beguiling and frivolous, perhaps appropriate for academic classroom debate, but singularly inappropriate as counsel to the President of the United States of America in his effort to overturn the presidential election -- an election he had lost fair and square and as to which there was not then, and there is not to this day, evidence of fraud. 

It is breathtaking that these arguments even were conceived, let alone entertained by the President of the United States at that perilous moment in history.

Had the Vice President of the United States obeyed the President of the United States, America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis.

The former president’s accountability under the law for the riot on the United States Capitol on January 6 is incidental to his responsibility and accountability for his attempt to steal the 2020 presidential election from the American People and thereby steal America’s democracy from America herself. This said, willful ignorance of law and fact is neither excuse nor defense in law. Willful ignorance, thus, is neither political nor legal excuse or defense available to the former President of the United States, his allies, and his supporters. 

____________________

 

 On January 6, 2021, revolutionaries, not patriots, assaulted America and American democracy. The walls of all three of our institutions of democracy were scaled and breached on that appalling day. And almost two years thence, one of America’s two political parties cannot even agree whether that day was good or bad, right or wrong. Worse, it cannot agree over whether January 6 was needed, or not. Needed or not. Pause for a moment and reflect on that. The former president and his party cannot decide whether the revolt at the United States Capitol to disrupt and prevent the constitutional counting of the votes for the presidency was needed, and therefore whether another revolt might be needed at a future date to accomplish that which the previous revolt failed to accomplish. 

If one of our national political parties -- one of the two political guardians of our democracy -- cannot agree even as to whether the violent riot and occupation of the United States Capitol, inspired by the President of the United States and carried out by his followers to prevent Congress from counting the votes for the presidency of those same United States, was reprehensible insurrection or needed, legitimate political discourse, we all can agree on nothing.

Nor should we.

The former president’s party cynically and embarrassingly rationalizes January 6 as having been something between hallowed, legitimate public discourse and a visitors tour of the Capitol that got out of hand. January 6, of course, was neither, and the former president and his party know that. It was not legitimate public discourse by any definition. Nor was it a civics tour of the Capitol Building -- though that day proved to be an eye-opening civics lesson for all Americans.

January 6 was, rather, a defining, and a redefining, day in American history -- defining and redefining of America itself. On that day, America finally came face to face with the raging war that it had been waging against itself for years. So blood-chilling was that day for our democracy, that America could not believe her eyes and she turned them away in both fear and shame. Even so, many have already forgotten, and many more have chosen to forget. Some who rioted and occupied the Capitol that day had already decided how this war for our democracy must end, while others of their compatriots, upon sober reflection afterward, decided that no, no, this war must end now, before there is further bloodshed.

As did we, these latter saw how this war ends, and they realized that no one should want for such end.

For their part, the former president and many of his party remain to this day undecided as to which end of this war they will commit themselves -- undecided, that is, as to which end they want to commit themselves. To be undecided today as to whether to end this war over our democracy is to have decided how one wants this war to end.

Thus, for the rest of us Americans, the time has come for us to decide whether we allow this war over our democracy to be prosecuted to its catastrophic end or whether we ourselves demand the immediate suspension of this war and insist on peace instead.

We must make this decision because our political leaders are unwilling and unable, even as they recklessly prosecute this war in our name. We Americans begin to make this consequential decision this week, when Congress, rightly if painfully, takes us back to that day in January we want so much to forget but mustn’t, and reminds us of what was at stake that day and still, in what is this most unholy of wars.

____________________

 

 America is at a perilous crossroads. Who is it that we have become and what is it that America has become? Is this who we want to be and what we want America to be? And if not, just who is it that we Americans want to be? And just what is it that we want our America to be?

Many will again turn their eyes away, miscalculating that this is the last time they must see, and thus remember. The partisan mercenaries, who have no interest in either understanding or peace, will be the first who turn away and, in their determined ignorance, ignore. The mercenaries know better than we that what we forcibly put out of our minds or what we forget, we are destined to repeat.

No American ought to turn away from January 6, 2021, until all of America comes to grips with what befell our country that day, and we decide what we want for our democracy from this day, forward.

The genius that is America’s democracy is this. The Constitution vests all power in “We the People.” We agreed in the Constitution to delegate our power to our representatives, only during their time in our service, and at that, exclusively for the purpose of representing our interests in the Nation’s Capital, not theirs.
 Our democracy is the process through which our representatives, using the power that we have delegated to them, in turn and in trust, govern us. We choose in our national elections those who we want to represent us, including most importantly the President of the United States. It is for this simple reason that to steal an election for the presidency from us is to steal our democracy from us. 

America’s democracy was almost stolen from us on January 6.

Our democracy has never been tested like it was on that day and it will never be tested again as it was then if we learn the lessons of that fateful day. On the other hand, if we fail to learn the lessons that are there to be learned, or worse, deny even that there are lessons there to be learned, we will consign ourselves to another January 6 in the not-too-distant future, and another after that, and another after that. While for some, that is their wish, that cannot be our wish for America.

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 America can withstand attacks on her democracy from without. She is helpless to withstand them from within. The relentless assaults on America and its democracy from within, such as January 6, which designedly call into question the very legitimacy of the institutions and instrumentalities of our democracy, are simply not contemplated by the Constitution of the United States and are therefore not provided for by that Great Charter for our governance.

America is not in constitutional crisis until and unless the Constitution and the institutions and instrumentalities of our democracy are under withering, unsustainable, and unendurable attack from within. Then, and only then, is the constitutional order in hopeless constitutional disorder. Only then is America in peril. Today, America is in constitutional crisis -- and at a foreboding crossroads with disquieting parallels to the fateful crossroads we came to over a century and a half ago.

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It is no wonder that America is at war over her democracy. Every day for years now we have borne witness to vicious partisan attacks on the bulwarks of that democracy -- our institutions of government and governance and the institutions and instrumentalities of our democracy -- by our own political leaders and fellow citizens. Every day for years now we have witnessed vicious partisan attacks on our Institutions of Law themselves, our Nation’s Judiciary, and our Constitution and the Laws of the United States -- the guardians of that democracy and of our freedom. For years, we have been told by the very people we trust, and entrust, to preserve and to protect our American institutions of democracy and law that these institutions are no longer to be trusted, no longer to be believed in, no longer deserving of cherish and protection.

If that is true, then it is because those with whom we entrusted these institutions have themselves betrayed our sacred trust.

And, indeed, it does seem at the moment that we no longer agree on our democracy. Nor do we any longer seem to agree on the ideals, values, and principles upon which America was founded and that were so faithfully nurtured and protected by the generations and generations of Americans that came before us. Yet we agree on no other foundational ideals, values, and principles, either.

All of a sudden it seems that we are in violent disagreement over what has made America great in the past and over what will make her great in the future. In poetic tragedy, political campaign slogan has become divisive political truth. And there is no reason to believe that agreement about America by we Americans is anywhere on the horizon, if for no other reason than that none of us is interested in agreement. In the moral catatonic stupor America finds itself in today, it is only disagreement that we seek, and the more virulent that disagreement, the better. 

This is not who we Americans are or who we want to be. Nor is this America or what we want America to be.

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Reeling from twin wars, leaderless, and rudderless, America is in need of help. Our polarized political leaders have shamefully and shamelessly failed us. They have summoned our worst demons at the very moment when we needed summoned our better angels.

As a consequence, America finds itself in desperate need of either a reawakening and quickening to the vision, truths, values, principles, beliefs, hopes, and dreams upon which the country was founded and that have made America the greatest nation in the world -- a revival of America and the American spirit.

Or, if it is to be, we are in need of a revival around a new vision, new truths, new values, new principles, new beliefs, new hopes and dreams that hopefully could once again bind our divided nation together into the more perfect union that “We the People” originally ordained and established it to be.

We cannot hobble along much longer, politically paralyzed and hopelessly divided, directionless and undecided as to which revival it will be -- if any at all. 

Where do we begin? This is the easier question. Who has the patriotic and political courage to go first? This is the harder question.

As to the first question, we begin where the reconciliation of all broken human relationships, be they broken from war, anger, betrayal, or love, begins -- by talking with each other, and listening to one another again, as human beings and fellow citizens who share the same destiny and the same belief in America and hope for her future. For years now, taking the lead from our politicians, we Americans have spoken only coarse, desensitizing, dehumanizing political vile at each other, which enables us to speak to each other without guilt or regret. For too many years now, we have spoken to each other as charlatanic political gladiators in an arena that today has become annihilative of America’s future, not promising of that future.

By constitutional order, We the People of this great Nation confer upon our elected representatives the power that they are then, by solemn constitutional obligation, directed to wield on our behalf and on America’s behalf. But today our politicians live in a different world from the rest of us, and in a different world than that ordained by the Constitution. They live in a fictional world of divided loyalties between party and country, a world of their own unfaithful making.

Today’s politicians believe that they never have to choose between partisan party politics and country, when in fact they are obliged by oath to choose between the two every day, and every day they defiantly refuse to choose. For today’s politicians, never the twain shall meet between partisan ambition and country, and never the latter before the former, either. The politicians in today’s America only sponsor partisan incitement and only traffic in the same, rather than sponsor bi- partisan reason and lead in thoughtful deliberation. They have purposely led us down the road not in the direction toward the bridging of our differences, but in the direction away from the bridging of those differences. They have proven themselves incapable of leading us.

But still, all it would take to turn America around is a consensus among some number of these political leaders who possess the combined necessary moral authority and who would agree to be bound together by patriotic covenant, to stand up, step forward, and acknowledge to the American People that America is in peril.

In order to end these wars that are draining the lifeblood from our country, a critical mass of our two parties’ political leaders is needed, to whom the remainder would be willing to listen, at least without immediate partisan recrimination. The logic for reconciliation of these wars being waged in America today dictates that this number needs to include a critical mass of leaders from the former president’s political party and that those leaders need to go first. All of these leaders then need to summon first the moral courage and then the political courage, the strength, and the patriotic will to extend their hands, and ask of the others -- and of all Americans -- “Can we talk? America needs us.”

While Memorial Day is still fresh in our minds, we would all do well to remind ourselves of the immortal words spoken to the West Point cadets at the United States Military Academy a half century ago: “Duty, Honor, Country.” Those three sacred words of profound American obligation were spoken on that occasion to reassure those who had given their lives for their country in the past, and who would give them in the future, that their sacrifice would not be in vain. Those words are as apt today for this occasion as they were on that day for that occasion, if not more.

Then we need to get back to work, and quickly. We need to get back to the solemn business of preserving, protecting, and defending the Constitution of the United States and the United States of America.

The hour is late. God is watching us. 

 

Respectfully, 

J. Michael Luttig

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* With my respect to the Select Committee, I did not submit this statement prior to my testimony today pursuant to the Rules of the U.S. House of Representatives, so to avoid any appearance or suggestion that my testimony is that of an interested political party partisan or is on behalf of the Select Committee or any person involved with, on, or after January 6, or is that of a witness in any other way “interested” in these hearings.

I testify today only as a private citizen, and as a non-partisan, disinterested, independent former Federal Judge on the United States Court of Appeals who happens to have been a fact witness to the events surrounding January 6. The views, the thoughts, and the words herein are mine and mine alone, submitted to the Select Committee on my own behalf and no one else’s.

 

 

january6th.house.gov

 

 

Notes on the Bizzarro World of Trump coup attempt attorney John Eastman.

 

UPDATE

Trump is a domestic enemy. Treat him like one.
If the former president and his abettors attempted a violent coup, what’s to be done with them?

The hearings of the House committee investigating the Jan. 6 insurrection have already provided conclusive evidence that the effort to overturn the 2020 election was a conspiracy directed by a corrupt sitting president who knew the effort was based on lies and encouraged violence in pursuit of power.

The damning testimony before the committee and the persuasiveness of its case has been widely analyzed. But a frank discussion of accountability for the insurrection has been muted.

There is a reason for this. The gravity of the crime exceeds any an American president has ever been suspected of committing, and the scale of culpability is greater than many citizens are comfortable contemplating.

Another reason, one that puts the country in peril, is that too many Americans continue to support the perpetrators.

Rep. Bennie G. Thompson of Mississippi, the Democratic chairman of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, set the tone for the hearings a week ago in his opening statement.

“It was domestic enemies of the Constitution who stormed the Capitol and occupied the Capitol who sought to thwart the will of the people to stop the transfer of power,” he said. Later he said, “Ultimately, Donald Trump — the president of the United States — spurred a mob of domestic enemies of the Constitution to march down the Capitol and subvert American democracy … January 6th was the culmination of an attempted coup. … Violence was no accident. It represented Trump’s last stand, most desperate chance to halt the transfer of power.”

Thompson’s use of the phrase “domestic enemies” was deliberate. He noted the Civil War-era adoption of language regarding “all enemies — foreign and domestic” in the federal oath to account for the South’s rebellion.

In other words, the crimes committed by Trump and his co-conspirators are categorically akin to war-waging against the United States.

What is the appropriate punishment? If Trump and those who joined him in this violent attempted coup — including lawyers John Eastman, Rudy Giuliani and Sidney Powell, and seditionist members of Congress such as Reps. Lauren Boebert of Colorado, Jim Jordan of Ohio and Andy Biggs of Arizona, other senior officials such as Trump’s chief of staff, Mark Meadows, as well as the hundreds of extremists who stormed the Capitol — are enemies of America, what’s to be done with them?

The answer comes to mind more readily than it’s given voice. We know the essence of the appropriate punishment for the crime. We don’t know yet how to engage it.

Plenty has been said about specific federal laws Trump likely violated. These were suggested by the committee in March when it asked a U.S. district court in California to compel Eastman to turn over documents. It argued that Eastman’s attorney-client privilege defense was invalidated because his relationship with Trump involved the likely commission of two federal crimes: obstruction of an official proceeding and conspiracy to defraud the United States. Judge David O. Carter agreed.

“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” Carter wrote. “Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory.”

These specific alleged criminal violations are an inherent theme of the committee’s recent public hearings. It’s as if the panel is “laying out a road map for Attorney General Merrick B. Garland” to initiate criminal prosecutions, as The New York Times put it.

Yet a case involving mere criminal codes and a jury of peers, as necessary as it is, would fail to account for the enormity of Trump’s betrayal of America, because a crime on the scale of a violent attempted coup by the country’s own president eludes the ability of any court to fully address. Only a tide of public scorn, a thorough condemnation by the citizenry, the eternal reprobation of history might match these misdeeds.

And such contempt must also target the Republican Party, which as an organization has been indispensable in propping up its criminal figurehead and clearing space for his treachery. Trump and his abettors should face the kind of society-dispensed justice reserved through the ages for a nation’s most hated scoundrels.

But that’s not happening.

Garland, to the exasperation of many democracy-approving Americans, appears ambivalent about prosecuting Trump and other high-level seditionists. It’s not hard to find people rehearsing the usual arguments against prosecuting a former president — the national trauma would be too great, it would be labeled politically motivated, it could trigger a partisan tit-for-tat — even though failure to punish Trump would prove that individuals who are in a position to inflict the most damage are the most immune to accountability.

In fact, the culprits are not only getting away with grave crimes. They’re thriving. Trump is preparing to become president again. Election deniers are the topline GOP candidates for the highest offices in Colorado and elsewhere. Republicans in November have a good shot at taking back the majority in the U.S. Senate and are almost assured of regaining a majority in the U.S. House. When that happens, seditionist lawmakers will assume even higher positions of power — one of the most dispiriting examples being Jordan, a virulent Trump sycophant who is in line to be the next chairman of the Judiciary Committee and is already salivating over the retaliatory investigations he plans to launch.

The depth of catastrophe that awaits the country if Trump and the Republicans are rewarded for the insurrection cannot be overstated.

That Americans must even now tolerate the presence of seditionists in elective office demonstrates that Jan. 6 was not a crisis averted but only a spectacular expression of a crisis underway.

That Americans must watch as a free Trump prepares a second run at the presidency reveals that the justice system, so dependent on the good faith willingness of public officials to uphold the law, is outmatched by unbounded deceit and corruption.

That Americans in vast numbers continue to support Trump signals that the country established by the U.S. Constitution is already mutating into a dark new form that the Founders wouldn’t recognize.

Quentin Young. Editor, Colorado Newsline
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 CODA

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"He who knows that enough is enough..."

 Above: File under "honorable."

 

Below:

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The January 6th Committee

We remain in a very dangerous time. What if the so-called "Proud Boys" and "Oath Keepers" conspirators had been able to show up en masse armed with assault weapons?

And, yes, we know there had been fireams and ammunition stashed nearby across the river, outside DC city limits.

I can readily think of a number of people who would now be dead, starting with Vice President Pence. Prominent others mentioned as Capitol assassination targets include Chuck Schumer, Nancy Pelosi, Adam Schiff, and AOC.

Watch the entire 2-hr first hearing on YouTube.

IN SHORT:

 

RUPERT MURDOCH'S NEW YORK POST

Trump has become a prisoner of his own ego. He can’t admit his tweeting and narcissism turned off millions. He won’t stop insisting that 2020 was “stolen” even though he’s offered no proof that it’s true.

Respected officials like former Attorney General Bill Barr call his rants “nonsense.” This isn’t just about Liz Cheney. Mitch McConnell, Betsy DeVos, Mark Meadows — they all knew Trump was delusional. His own daughter and son-in-law testified it was bull.

Trump’s response? He insults Barr, and dismisses Ivanka as “checked out.” He clings to more fantastical theories, such as Dinesh D’Souza’s debunked “2,000 Mules,” even as recounts in Arizona, Georgia and Wisconsin confirm Trump lost.

Meanwhile, reports that Trump was pleased that the Jan. 6 crowd chanted for Vice President Mike Pence to be hanged — a truly reprehensible sentiment — makes him unworthy for the office. Trump can’t look past 2020. Let him remain there.

OK, then.

Final thought for now.

As a general rule, Congress doesn’t do so well when the cameras are on. Members rant and rave and preen and grandstand with an eye toward self-advancement. The proceedings for even the most serious matters, like the impeachment of a president, can feel grossly, absurdly performative. Thursday’s hearing went in the opposite direction. Only two members spoke, Ms. Cheney and Representative Bennie Thompson, the committee’s chairman. Both kept their tones measured and kept the focus on the evidence and the witnesses. They and their colleagues were clearly laying out a case as much for the history books as for the contemporary audience.

But the meat of their story — that is, the evidence — was anything but muted or sedate. It was raw and violent and at times hard to watch, especially the video of the Capitol attack, which included footage not previously made public. The clip of the mob filing through the House corridors chanting “Nancy! Nancy!” as it searched for Speaker Pelosi was chilling. So too were the howls to “Hang Mike Pence,” the increasingly panicked radio dispatches from overwhelmed police officers (“We’ve lost the line! We’ve lost the line!”), the trashing of the Capitol, the brutal clashes, the roaring insanity of it all. Whoever assembled the video shrewdly inserted, toward the end, a voice-over of Mr. Trump talking about how peaceful the event was and how much “love” was in the air. Now, that is some storytelling…

The Jan. 6 committee has been charged with telling a story for the ages — one that they know much of the country will simply tune out. Indeed, even as the hearing was getting rolling, Fox News’s Tucker Carlson was boasting of his network’s decision not to seriously cover the event: “We’re not playing along,” he said, noting that “this is the only hour on an American news channel that will not be carrying their propaganda live.”

No matter: These public servants understand the seriousness of their duty, and they are doing their damnedest to help the rest of us grasp what is at stake as well. —Michelle Cottle, NY Times

“In his dystopian Inaugural speech, Trump promised to end ‘American carnage.’ Instead, he delivered it. Now he needs to be held accountable for his attempted coup—and not just in the court of public opinion.”—Maureen Dowd, NY Times, "Donald Trump, American Monster"

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