Category: Rule of Law

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Happy January 16, Religious Freedom Day

The Virginia Statute for Religious Freedom, enacted by the Virginia Assembly, January 16, 1786, reads as follows:

An act for establishing religious Freedom.

Whereas, Almighty God hath created the mind free;

That all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and therefore are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do,

That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time;

That to compel a man to furnish contributions of money for the propagation of opinions, which he disbelieves is sinful and tyrannical;

That even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the Ministry those temporary rewards, which, proceeding from an approbation of their personal conduct are an additional incitement to earnest and unremitting labours for the instruction of mankind;

That our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry,

That therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages, to which, in common with his fellow citizens, he has a natural right,

That it tends only to corrupt the principles of that very Religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments those who will externally profess and conform to it;

That though indeed, these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way;

That to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own;

That it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;

And finally, that Truth is great, and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:

Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. And though we well know that this Assembly elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right. 

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Moronic and Menacing

So … here’s a post, mainly about Trump’s lawsuit against the Des Moines Register et al., because they published a poll that turned out to be wrong, and his allegedly forthcoming lawsuit against CBS because he didn’t like the way they edited a Sixty Minutes interview.

In my view, Tim Miller makes some good points in the video, but let me cut to the chase, as the high flyers like to say.

“Commercial Speech” or “Political Speech”?

Commercial speech is now (and has been for some years) deemed to enjoy limited First Amendment protection, but is subject to regulation, in order to prevent fraud in the sale of goods and services. One such law is the Iowa Consumer Frauds Act—the only law that Trump’s lawyer claims was violated by the newspaper and the pollster. 

The legal regime that governs political speech is very different from that governing commercial speech. Political lies are generally protected from judicial scrutiny by freedom of speech and freedom of the press. A moment’s reflection will let you see the reasons for this principle: in essence, to protect the political process and to protect the courts from being politicized.

In the Iowa case, it’s unlikely in the extreme that the poll’s error was intentional, on the part of the pollster, or the newspaper, or the newspaper’s parent company. But let’s pretend we’re in law school, and let’s assume, for the sake of the discussion, that the pollster and the newspaper did lie intentionally.

Trump’s lawsuit should be summarily dismissed. First, the words of the Iowa Consumer Frauds Act don’t apply to the alleged intentional political lie. Second, it’s highly unlikely that the Iowa Legislature intended its Consumer Frauds Act to apply to political speech. Third, even if the Legislature did have such an intent, its intent to regulate political speech would violate multiple legal precedents on freedom of the press and freedom of speech. 

And, By the Way, People Who Live in Glass Houses Shouldn’t Throw Stones

If Trump wins his Iowa lawsuit—which he will not—then he will have created a precedent under which he can be prosecuted for multiple violations each day, if not each hour. 

Defamation, the N.Y. Times v. Sullivan Rule, and the Finer Points of Rape

“Creative” as he was—in the pejorative sense of the word—the legal genius who crafted Trump’s Iowa lawsuit did not claim defamation, because predicting that you’re going to lose an election does not reflect badly on your character.

By contrast, in the recently settled Trump case against ABC News, Trump worked himself into a high dudgeon because the jury only found he had forcefully inserted his middle finger into the victim’s vagina—not his actual dick—where has New York law on “rape” would have required penetration by the presidential pecker. Sexual assault? Yes. “Rape”? No. How dare you accuse My Excellency of rape when I only victimized her vagina with my finger!

Many have criticized ABC and its parent, Disney, for “caving” to Trump. Personally, I think it was a tough call—and I think it’s generally a good idea to apply some nuanced analysis to a generally difficult situation, not just to hurl bumper sticker insults. If you’re interested, I recommend this article from the New York Times: Inside Disney’s Decision to Settle a Trump Defamation Suit: Talks started and finished on the same day, after Disney decided that fighting the lawsuit could potentially hurt the company and protections for the press.

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Declaring Martial law: Action, Meet Consequences

Washington Post, South Korean Yoon Suk Yeol impeached after martial law ploy

Washington Post, With K-pop and light sticks, South Koreans demanded Yoon’s impeachment: K-pop fans, many of them young women, were especially visible at the party-like protests that preceded the South Korean president’s impeachment.

Posted by Ron Davis, Dec. 14, 2024

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Bullshit, Pretending to be 3-Dimensional Chess

MAGA Shock & Awe and the United States Senate

If you were a president-elect, and if your fondest ambition were to be like Orban or Putin, a high priority would be control of the power agencies: the Justice Department, the FBI, and the military. You would select three plausible appointees as Attorney General, FBI chief, and Secretary of Defense—people whose backgrounds would make it hard for a Republican senator to oppose. These choices would be evil, but highly intelligent. You would conspire with these three picks, getting them to commit to your authoritarian goals, but promising to conceal their goals until it’s too late to stop them. These people would not be Matt Gaetz or Kash Patel or Pete Hegseth. 

Now, I have long since concluded that trying to read the mind of the Orange God King is a fool’s errand. And, by the way, I am no fool, and neither are you. 

But, reflecting on Mango Jesus’s deeds (not his thoughts), I can say this. He has acted as if his fondest desire was to spit on our country’s main institutions of law and order, to order the 53 Republican senators to eat a meal of shit sandwiches, and to force them all to say—to make every mother’s son and daughter of them say—”Thank you, SIR. May we please have some more, SIR?”

And how did Lizard Brain try to bring this about? Well, you will remember that he first demanded—DEMANDED—that the Republican senators agree not to exercise their constitutional duty and right to advise and consent to presidential appointments.

Whoops! That didn’t work.

Then he tried to force Matt Gaetz down their throats as the new Attorney General. 

Whoops! That didn’t work, either, so he picked someone else. (A few posts from now, we’ll get to Pam Bondi. I promise you.)

Then he served up an inexperienced, dishonest, drunken lout, Pete Hegseth, as his choice for Defense Secretary.

Then, when that selection ran into Republican opposition, he talked about replacing Hegseth with a more palatable choice. 

Then someone realized that, with repeated Shock & Awe stunts going pear shaped, Trump was in imminent danger of getting a reputation as an incompetent old fool.

Then the folks around Trump began leaking that, while Hegseth’s nomination might be in deep doodoo, it was all a very clever ploy to use the nominee as a “heatshield,” to take attention away from the ghastliness of other nominees like Tulsi Gabbard, Kash Patel and RFK Jr. (See, e.g., Mark Caputo, Hegseth Brings His Nomination Back from the Brink.)

Friends and neighbors, if you think Trump and his henchpersons are playing three-dimensional chess, then please let me know, because I have a fine, fine bridge in Brooklyn that I can let you have at a cheap price. 

And What Will the 53 Republican Senators Do About the Shock & Awe Bullshit Nominees?

Three points. First: I don’t know what they’re going to do, and I won’t try to predict what they are going to do. Second: One can always hope, but I have zero expectation that their decisions will be based on patriotism, principle, and reason. Third point: All that said, the most reliable means of predicting human behavior is careful analysis of motivation and incentive. Accordingly, I strongly recommend

Jonathan Martin, Here Are the GOP Senators Best Positioned to Take on Trump: These are the Republican lawmakers who, by dint of age, independence or unusual constituencies, could provide a crucial check on Trump’s dictatorial ambitions

Martin names ten of them: McConnell, Collins, Cassidy, Tillis, Ernst, Murkowski, Grrassley, Young, Moran, and the yet-to-be-named (by Governor Mike DeWine) person from Ohio to replace J.D. Vance, and he takes a careful look at each of them—their individual situations, their likely motivations, and their incentives. See also

Aaron Blake, The fascinating—and important—Florida and Ohio Senate appointments: A look at the dynamics for both appointments, which could make the Senate mor or less Trump-y

In Sum

There will be 53 Republican senators in the next Congress. To Trump’s absurd nominees, one may expect at least 43 of them to say, “SIR, thank you for the shit sandwich, SIR. SIR, may I please have another one, SIR.”

But, for Trump, 43 will not be enough. He needs 50 (so that Vice President Vance can break the tie).

How many will he get?

Que sera sera.

Posted by Ron Davis, Dec. 7, 2024

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First, Kash Patel Came for the Justice Department Lawyers

Kash Patel, Trump’s pick to head the FBI, tells us where he stands on civil liberties:

First they came for the Justice Department lawyers who prosecuted the coup plotters.

But I was a Republican senator, not a prosecutor, and I had always been publicly vague about what happened in early 2020, so I did not worry.

Then they came for the journalists who told the truth about Trump.

But I was a Republican senator—and I have always been very careful never, ever to tell the truth about Trump—so I did not worry.

Then I made a casual remark about Trump, and I cast a single, solitary vote that Trump did not like, and they came after me.

And there was no one left to stand up for me.