Relevant and even prescient commentary on news, politics and the economy.

Dearly Beloved

Our beloved Constitution has flaws. Only a very few, but these few have cost the Nation dearly, and, unless corrected, will continue to do so. It is very possible that unless corrected, they will lead to the Nation’s demise. These flaws have been and are being taken advantage of by the worst among us, and used against the rest of us. The electoral college, that most undemocratic of bodies, has, in just sixteen years, seated two of our most incompetent presidents, both of whom have greatly damaged the nation. The Senators from states with less than one-million population have as much say in our nation’s affairs as do those from states with forty-million population. The structuring of the Senate has from our early days allowed abhorrents like Mitch McConnell to extort the nation and stuff the courts with right wing ideologues. Presently, we have a supreme Court majority that would use the Constitution to deny some of our citizens the right to vote. A Court that has recently interpreted the Constitution as allowing for gerrymandering and other forms of voter suppression. In the face of such flaws, the ratifying of amendments is nigh on to impossible. Amendments have not, can not correct these flaws. Not some but all native born and naturalized citizens must have equal rights in every way, and know full and equal representation.  We know well of the difficulty of the bargaining, fault not those who bargained; but it is time to save all the good and great parts of our constitution and rid it of those few that paid paeanage to colonial governments, wealth, and slave holders in the barter for votes of ratification. Amendments can not adequately append modern concepts of personage and rights to the Constitution’s august body. There can be no full solution for these structural problems other than direct addressment of their cause. It is time to appoint a constitutional commission to list and correct these known flaws.

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Voting by Mail and the Next Election Meltdown – A Prophecy

Steve Hutkins at Save The Post Office, October 31, 2020

This post was written in 2016 and slightly updated on Oct. 31, 2018, exactly two years ago today. The update started like this:

According to this AP report today, alarms are already being raised about the rejection of many mail-in ballots in next week’s elections. Several of these elections are likely to be very close, and in some cases, votes cast by mail may make the difference. As the AP article notes, “nearly one of every four ballots cast in 2016 came through the mail or was handed in at a drop-off location, according to the U.S. Election Assistance Commission.” With more and more people choosing to vote by mail, controversies involving mail ballots are likely. Back in 2016, just before the November election, we ran this article about the potential for an election “meltdown” arising from voting-by-mail issues.

Following is the 2018 update, with no further revisions for 2020. Some of the details are out-of-date and incorrect, but much of the post is more relevant now than it was then.

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Stop Girdling the Post Office

Mark Jamison, Retired NC Postmaster at Save the Post Office, October 29, 2020

In forestry the practice of tree girdling is well known. Although there are some circumstances where this can be a useful practice, in most cases the technique is used for nefarious ends. Girdling involves removing the bark and layers below the bark, usually around the trunk of the tree. The cut, when it includes the entire circumference of the tree, makes it impossible for the tree to heal itself and everything above the cut will eventually die. In forests where logging is limited to dying or diseased trees, loggers will girdle healthy trees to kill them and make them available for harvest.

For at least the last fifty years, the right wing has been girdling the post office and the postal network in the hope of undermining its health and thereby reaping a financial harvest. The very people who have been charged with caring for and sustaining the Postal Service have instead repeatedly cut services, saddled the institution with requirements that undermine its ability to function, and denigrated the value of the network.

Louis DeJoy and Robert Duncan are the latest in the long line of postal girdlers. But they have taken their game to a higher level and for what are clearly political reasons. Both are products of the president that appointed them and both evidence their benefactor’s outright mendacity. They have made it clear that regardless of the law, public necessity, or public opinion, their goal is to cut postal operations. The recent OIG report reviewed here at STPO  demonstrates that clearly.

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DeJoy’s 57 Varieties of Cost Cutting: What’s in the new OIG report—and what’s not?

Steve Hutkins at Save The Post Office, October 26, 2020

In response to several inquiries from members of Congress, the Office of Inspector General has issued a report on “Operational Changes to Mail Delivery.” The report discusses the Postal Service’s plan to eliminate 64 million work hours — the equivalent of 33,000 jobs — by implementing 57 cost-cutting initiatives. As discussed in this previous post, the plan represents one of the largest downsizing efforts in the 50-year history of the Postal Service.

These 57 “Do It Now FY Strategies” include restrictions on overtime, late and extra trips from processing centers, and all the other cost-cutting measures that have caused the delivery delays we’ve seen since July. They also include numerous other changes to postal operations that have not received much, if any, attention.

The report criticizes postal leadership on several counts. First, the Postal Service “did not complete a study or analysis of the impact the changes would make on mail service prior to implementation.” Second, “documentation and guidance to the field for these strategies was very limited and almost exclusively oral.” That caused “confusion and inconsistency” and “compounded the significant negative service impacts across the country.”

The IG also criticizes management for a third major failing: The Postal Service did not “fully respond” to questions and document requests from Congress and did not share information about the plan beyond what the Postmaster General was specifically asked in his testimony before the House and Senate.

As a result, Congress was not informed of the existence of the Work Hour Reduction Plan and the “Do It Now FY Strategies” before or during the Postmaster General’s testimony to Congress. The plan is not mentioned at all in Senator Gary Peters “Failure to Deliver” report or his update report. It’s very likely that Congress has yet to receive a full accounting of the plan.

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Do we really want our rights to be determined by the understandings of centuries ago?

The Philosophy That Makes Amy Coney Barrett So Dangerous, NYT, Erwin Chemerinsky, October 2020, Opinion Piece

If I did not know this man personally, I would have never looked to him for help and also advice from time to time.  It was only through a friend I wrote with at the old Slate site, I had the chance to meet him. Professor Chemerinsky discusses the dangers of applying an originalism interpretation of the US Constitution. There is not much I can add to this and I would call this article a copy and paste at Angry Bear. It is a good read for nonlegal based readers.

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In 1987, Robert Bork was denied confirmation to the Supreme Court because his originalist beliefs were deemed a serious threat to constitutional rights. Originalism is no less dangerous for those rights today, yet Judge Amy Coney Barrett’s repeated statements professing her belief in originalism have been met with little objection.

Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868.

But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that Brown v. Board of Education was wrongly decided in declaring laws requiring segregation of schools unconstitutional.

In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.

Throughout American history, the Supreme Court has rejected originalism and protected countless rights that cannot possibly be justified under that theory. For example, the court has interpreted the word “liberty” in the Constitution to protect the right to marry, to procreate, to custody of one’s children, to keep the family together, to control the upbringing of one’s children, to purchase and use contraceptives, to obtain an abortion, to engage in private adult consensual same-sex sexual activity, and to refuse medical treatment.

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An examination of the Framers’ arguments as to how the US Supreme Court would function: The Federalist Papers No’s. 78, 79, and 81

An examination of the Framers’ arguments as to how the US Supreme Court would function: The Federalist Papers No’s. 78, 79, and 81

This is a follow-up on yesterday’s post regarding the history of the Judiciary under republics. In that post I pointed out that the concept of an independent judiciary is a modern one that started in the era of Britain’s Glorious Revolution of 1688, and was radically expanded by the US Constitution.
How the framers envisioned the US Supreme Court fit into the scheme of three independent branches of government was set forth in The Federalist Papers numbers 78 through 83. Of those, 3 are not relevant to this discussion: Number 80, which deals with types of court jurisdiction, Number 82 on relations between the State vs. Federal judiciaries, and Number 83, explaining that the Constitution does not abolish trial by jury.
Below I quote extensively from Federalists numbers 78, 79, and 81, all written by Alexander Hamilton, grouping those quotes by subject matter, with cites at the end of each quote. I discuss the historical problems with Hamilton’s arguments thereafter.
Placing the Constitution’s plan in historical context:

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A shot across the Court’s bow

From Mark Tushnet:

Here’s a thought in the event that there is a Biden appointed commission on court reform.  What about a Joint Resolution on Judicial Power: “No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional.”

Tushnet discusses this suggestion and some limitations here.

I am somewhat sympathetic to this idea.  I certainly agree with the substantive idea that underlies it; we have way too much judicial review of social and economic legislation in this country.  Tushnet’s proposal is not at all a cure for conservative judicial activism by the Roberts Court, but it sends the right message:  “We’re on to you.  We know what you’re doing:  using specious legal reasoning to reach results you favor on ideological grounds.  Knock it off.”  It’s not a substitute for enlarging the Court – nothing is – but it is a useful shot across the Court’s bow.

Similar tactics could be used to pressure the Court in other ways.  For example “When addressing statutory ambiguity and potential drafting errors, the Court shall interpret statutes to achieve their public regarding purposes.  Rulings that force Congress to rewrite existing legislation shall be strongly disfavored.”  The Administrative Procedure Act could be amended to formalize Chevron deference.

Congress should also tell (or remind) the Court that it must defer to Congressional findings of fact unless they are clearly erroneous or there is reason to suspect an illegitimate (racist, sexist, etc.) motivation.  In Shelby County, Roberts opined that the preclearance provisions of the Voting Rights Act were no longer necessary to prevent racially motivated election law “reforms”.  His arrogant personal fact finding was contradicted by the Congressional record and immediately exposed as nonsense when the decision was handed down.  Congress could explicitly call out Roberts for substitution of his “factual” judgment for that of Congress when it attempts to reinstate the Voting Rights Act.

While potentially useful, these examples also illustrate why Court enlargement is the only reliable method for reining in the Roberts Court.  As Tushnet notes, his proposal would probably be declared unconstitutional by the Court, a problem that plagues almost all reform proposals other than enlarging the Court (term limits, panel systems, jurisdiction stripping).  More fundamentally, these examples illustrate that legal reasoning about the constitution, the administrative state, and complex legislation is way too open-ended and discretionary to be substantially hemmed in with words.  There is no substitute for good motives, but motives cannot be legislated.  We need better Justices.

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The Supreme Court rationalize like children or, The US court is selfishness incarnate

So, here is the thing about the arguments the Republicans are making regarding mail ballots based on this article at Slate.

“the court held that Florida’s recount used procedures that violated “the equal dignity owed to each voter.” Because the standards used to recount ballots varied between counties, the court concluded, the process violated the U.S. Constitution’s equal protection clause. “

Being that “equal protection” is the issue as to getting a vote counted on election day such that a vote counted after election day is violating the “equal protection” of said voters on election day, then there is an issue for those who voted prior to election day via mail.

If mailing a ballot is considered a valid means of voting, and the Republicans and their judges are not arguing it is not, then the issue is time. The time issue is that no matter what, the process of mailing just can not deliver anything on the same day of mailing. 24 hours is the minimum.

That I’m allowed to mail a ballot including on the day of the election, but there is no way it can get there on the day of mailing, then to not count my ballot has, in the Bush v Gore ruling removed my equal protection. To force me to make judgement of an entity such as the post office as to how it will handle my mailing with out me having first hand knowledge of the intricacies of it’s processes has placed an undo burden on my right to use the mailing of a ballot as a means to vote.

There is no reasonable way for me to get first hand knowledge of the intricacies of the postal service such that I can make an informed determination as to when to mail the ballot.  However, I should not have to make such a determination.  I am allowed to use the postal system to vote.  I am allowed to use the postal system on election day to mail my ballot.  There is nothing that states I am not allowed too.  Being that is the case, then my vote should be counted.  To not count my vote is to penalize me for the apparent negligent operation of the postal service’s inability to deliver my vote on the same day.   This penalty amounts to the grievous harm of  unequal dignity toward my by my government thus a violation of my equal protection.

I can use the mail to vote. But I can not get the vote delivered on the day of mailing. The court needs to deal with this if they are going to keep insisting that the post mark of mail is not relied on for determining the time of which an official government document is in the hands of the government.

The other issue, is the post office is in the constitution. Thus, it is the government. To argue that a document in the hands of the post office is not in the hands of the government is to deny the post office as an appendage of the government. This creates problems all over the processes of government function. All of them time related.  To deny that my ballot is not delivered when it is in the hands of the post office is to deny that the post office is representative of the US government. They have created a constitutional issue.   That it is not in the hands of the state is not a valid argument as the states are only serving as fiduciaries of the US government as it relates to the US government holding an election.  They are by all intent and purpose one in the same as it relates to the mechanics of operating an election. Thus the post office is by extension the depository for ballots for all states.

See how easy that is?

The latest ruling regarding ballot counting is an example of just how bad our judicial system is. The arguments that are passing for scholarly work are down right childish. The holes are huge. They are always of the same type of hole: massively void of appreciation for vastness of the human experience. These Federalist, originalist view themselves as enlightened as the founders.  They are nothing but selfish children.   I doubt they even know how to change a tire, never mind understanding rotating them.

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A brief history of the Judiciary under Republics; the radical departure of the US Constitution, and how to reform it now

A brief history of the Judiciary under Republics; the radical departure of the US Constitution, and how to reform it now

I’ll have a note up, probably at Seeking Alpha tomorrow, on new home sales, which get reported later this morning.

In the meantime, especially with the likely confirmation of the 6th movement conservative Justice today, who will probably immediately start to rule on election issues, I want to flesh out in outline form my thoughts on the Supreme Court. I am going by memory in this note, so some of this info is not entirely correct and will need to be checked further.

1. Historically, the judiciary was not an independent branch of government. In monarchies, the sovereign typically could both appoint and remove judges at pleasure. In ancient and medieval republics, the Executive branch enforced the law. For example, in the Roman Republic, both consuls and praetors heard civil and criminal cases. In Venice, as memorably recounted in The Merchant of Venice, the final appeal was to the Doge. Sometimes the senior legislative body, like the Senate in Rome or the House of Lords in England, was the court of final appeal. In those republics, judges changed with each change of government.

2. The modern independent judiciary started with John Locke and the Glorious Revolution of 1688. After the revolution, the Act of Settlement provided that the sovereign appointed judges on the recommendation of Parliament. The judge served “on good behaviour,” (exactly as specified later in the US Constitution), but could be removed by the sovereign upon a petition agreed to by a majority of both Houses of Parliament.

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The Reason Amy Coney Barrett May Have Been Chosen

Lauren Martinchek at Medium magazine has a brief article suggesting there is another reason why trump chose Amy to be the next SCOTUS Justice and why Republicans are in such a hurry to nominate her. It is an alarmist viewpoint; however, it does have a foundation to it and has merit for her to claim it. This may be old news to some readers.

Pulling from the Washington Post, Beth Reinhard and Tom Hamburger lay the foundation from which Lauren lays out some of the detail.

“Amy Coney Barrett was just three years out of law school, a 28-year-old associate at a boutique Washington law firm, when she was dispatched to Florida to help George W. Bush’s legal team rescue thousands of Republican absentee ballots.

At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.

After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.

As both parties brace for the possibility of another contested election that Trump has suggested could go to the high court, the previously unreported role of his Supreme Court nominee in the absentee ballot fight is more than a historical footnote. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh also played a role in Bush v. Gore, it js meaning that if Barrett is confirmed, three of the nine justices will have participated in litigation related to the only presidential contest to be decided by the high court.

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