Supreme Court III

Revolution

You say you'll change the constitution
Well, you know
We'd all love to change your head
You tell me it's the institution
Well, you know
You better free your mind instead.

But if you want money for people with minds that hate
All I can tell you is brother you have to wait

On July Fourth, it seems appropriate to ask if we are in another revolution?

The (Supreme) Court serves as a crucial guardian of the rule of law and also plays a central role in major social and political conflicts. Its decisions have profound effects on the life of the nation. Though conflict surrounding the processes by which the President nominates and the Senate confirms Justices is not new, it has become more intensely partisan in recent years.

So goes the introduction to the Final Report of the Presidential Commission on the Supreme Court of the United States. There has been, IMHO,  a judicial coup in the Supreme Court. A majority of the Court representing  a view of a minority of the Nation have rendered decisions that only intensify this partisan debate. These opinions, IMHO, are themselves “egregiously wrong,” in Justice Alito’s current usage of the word, not the original usage of the word. Justice Thomas has written opinions which make statements that are factually incorrect. Justice Thomas has also stated that constitutional issues on contraception, same gender marriage, etc., should be reviewed, although selfishly not miscegenation, which could effect him personally. If the SCOTUS ruled that one plus one was three, it would not make this statement correct. SCOTUS is supposed to make factual statements to render opinions about the constitutionality of laws. If it does not, it is in conflict with its oath to uphold the Constitution. 

The role of the Chief Justice may be the most significant role in overcoming this judicial coup.  The most important decisions of the United States require a super majority. https://dbeagan.blogspot.com/2022/06/supermajority.html. A criminal case requires a unanimous decision. A civil case requires a less than a uniramous decision but still a supermajority. Simple majorities invite a culture of domination, where the majority dominates the minority. The Constitution was designed to insure that the majority does not dominate any minority. Mankind is a group animal. There are decisions that must be decided by the group,  The question is how to make those decisions. 

 A unanimous decision can be blocked by any minority, even a minority of one. A majority decision invites tyranny of the majority,  which is expressly what the Constitution was trying to avoid. An efficient supermajority was found by Caplin and  Nalebuff[1] to be 64%. Within one standard deviation from the mean in a normal distribution will contain 68% of the values. Both are remarkably close to the Constitutional mandate of two-thirds. If two-thirds of a group support a decision then it probably does reflect the decision of the group, not just any majority of that group.

 In keeping with the role of the Chief Justice, it would seem that the decision of HIS Court should reflect the will of the Nation, not just the majority of the court. It takes four justices to decide that Supreme Court will even hear a case. The Chief Justice can, and should, impose a rule that the opinions of HIS Supreme Court are not the binding on the Nation unless a supermajority, not a simple majority, supports that decision. That means under the current SCOTUS,  decisions should require the support of six of the nine justices to be the decision of the nation. To do otherwise is to risk that decisions on gun control, contraception, marriage, and other issues including abortion could be decided by a majority of the SCOTUS but a minority of the nation. 

There are probably other recommendations that are appropriate from the Commission’s Final Report concerning  membership and size of the Court, terms, and term limits,  and other items that are not under the Chief Justice's purview.  On this Fourth of July lets us hope that Chief Justice Roberts can find the time to read the report and help prevent another revolution.

---

[1] Econometrica, Vol. 56, No. 4 (July 1988), 787-814

Faith

 

Faith

Before this river becomes an ocean
Before you throw my heart back on the floor (I just gotta have faith)
Oh, oh, baby, I reconsider my foolish notion
Well, I need someone to hold me but I'll wait for somethin' more.

In whom do you have faith?

St. Paul, in First Corinthians 13:13 ( or One Corinthians, if you are a certain Orange Menace) said the three remaining virtues are Faith, Hope and Love and the greatest of these is Love. But we could not receive Love if we did not have Faith in the person giving us Love. We have faith that even if we do not understand something, that some person we trust is telling us the truth, is not lying. That person may be a person of authority or a celebrity that we trust. That is why endorsement deals are so lucrative. A company is using that endorser as someone, say a sports figure, or some agency, say the American Dental Association, who is trusted.

One of the agencies that we trust is the state. In most states, there are licensing authorities.  To be a teacher, land surveyor, doctor, lawyer, cosmetologist, nurse, building contractor, counselor, therapist, electrician, etc. you may have to obtain a state license to be able to practice. This license says that the state has served as a gatekeeper and will back your trustworthiness. To be married by the state you have to obtain a marriage license. To drive you have to obtain a driver’s license. In each of these cases you are examined by the state and found to be trustworthy for this particular activity.

Another agency we trust is religion. We believe in God. We are not God and do not know everything God knows. But there are leaders of that religion who we will trust not to be lying, knowingly or unknowingly.

Still another group whom we trust is a political party. When we vote for a candidate endorsed by that Party, we have faith that the candidate has the beliefs consistent with that party. That means for example we can vote for upper case R Republicans who are candidates because we think they believe in a lower case r republic.

But gatekeepers can deny trust to those who should be trusted, a false negative. And agencies whom we trust can be lying, a false positive. Faith means we expect there only to be  true positives.

 

Ownership

 

Mickey Mouse Club Theme

Who's the leader of the club that's made for you and me?
M-I-C-K-E-Y--M-O-U-S-E!
Hey there, Hi there, Ho there. You're as welcome as can be!
M-I-C-K-E-Y--M-O-U-S-E!

Is Mickey Mouse about to enter the public domain?

A headline in the Guardian recently claimed “Mickey Mouse Could Soon Leave Disney As 95-Year Copyright Expiry Nears”  https://www.theguardian.com/film/2022/jul/03/mickey-mouse-disney-copyright-expiry.  The problem is that there is a confusion between a copyright, ©, and a trademark, ™. The copyright on Steamboat Willie, Mickey Mouse's first appearance on film, is about to enter the public domain. But that does not mean that every appearance, past and future, of Mickey Mouse is entering the public domain. Copyrights are about ownership; trademarks are about trust. Steamboat Willie is about to enter the public domain. As such, copies of Steamboat Willie can be used by anyone in the public and images, screen shots, from Steamboat Willie might also be used. But this does NOT mean that any and every image of Mickey Mouse is in the public domain. That is because Mickey Mouse is a trademark. A trademark is a mark of authenticity, which is conveyed by the owner of the trademark. The Lowenbrau Golden Lion trademark dates to 1383, long before 1928.

If you made an image using the trademarks of Lowenbrau, Shell, Stella Artois, Levi Strauss, Heinz, Peugeot, and Prudential or many others, which are all known, distinctive, and much older than 95 years, you should expect a cease and desist order .  And if you use an image of Mickey Mouse, expect a cease and desist order from The Walt Disney Corporation very quickly. You are making a claim that is not true.

A copyright is intended to protect the Intellectual Property, IP, of the owner for a period of time. That period of time in the United States is the life of the creator of the copyrighted material and his heirs, a period which US Law has most recently defined as 95 years. But a trademark is not about the ownership of property, it is about trust, that the property is what it claims to be. Mickey Mouse first appeared in Steamboat Willie in 1928. But an appearance, does not mean that the property, tangible or intellectual, has entered into the public domain. There is difference between ownership and trust, don’t confuse them. There is a difference between copyright and trademarks, don’t confuse them.

 

Leadership II

 

Leader of the Pack

I felt so helpless, what could I do?
Remembering all the things we'd been through
In school, they all stop and stare
I can't hide the tears, but I don't care
I'll never forget him, the leader of the pack

What does it mean to be a leader?

Ironically Elizabeth II, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith is more of a republican than many US Republicans. The Queen is beloved by her Subjects, because she understands that she is a servant of her Subjects, and takes care to sign all of her correspondence to her subjects, “Your obedient servant”. The sovereign does not dominate their nation.  The sovereign serves their nation. Authoritarians dominate  their nation and then use that domination to rule the nation and may serve their own purposes, not the nation’s.  An authoritarian may act as if they are the sovereign, but they are not sovereigns if they are not servants.

The problem is that the leader of the pack is often determined by dominance, and that requires an individual, User Optimal, solution.  However, once that leadership position has been obtained, the position requires a group, System Optimal, Solution.  To become a leader may require dominance, but to be a leader requires service.  It is like many of us learned in Cub Scouts.

The Cub Scout follows Akela.
The Cub Scout helps the pack go.
The pack helps the Cub Scout grow.
The Cub Scout gives goodwill.

If the leader, helps himself more than he helps the pack, he is not Akela. Give goodwill.

Pro- Life

 

People

People
People who need people
Are the luckiest people in the world
We're children, needing other children
And yet letting a grown-up pride
Hide all the need inside
Acting more like children than children

Is a fetus people?

This is not just an idle question but is at the heart of the whole Roe v. Wade debate. I was raised a Catholic. As such I believe that life begins at conception and therefore a fetus is a life. But that does not mean a fetus is one of the People according to the US Constitution, and despite what the Supreme Court might have said, that makes all of the difference.

The US Constitution outlines how “We the People of the United States", strove  "to form a more perfect Union.”  It describes who are the People  in Article 1, Section 2.

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

“Other” persons were chattel slaves and slavery was of course abolished by the 13^th Amendment, so there are no longer "other" Persons. The language  goes on how to establish the counting of people.

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

That law is the US Census. That law may classify the People by race, age, gender, nationality, citizenship, etc., but they are all still Persons. It does NOT enumerate fetuses as persons. (It also does not  enumerate Corporations as Persons, but that is another matter).

A fetus may be a life but is NOT constitutionally People. I personally do not have a problem with that. Ending a life is not just classified as Murder. It can be, and is, legally classified as Murder by various degrees, Voluntary Manslaughter, Involuntary Manslaughter, Execution, Suicide, Accident, or …Abortion. Abortion may be ending the life of a fetus but it can not legally be Murder unless the victim is a person. It might not legally be Murder if the fetus is a person, but it could be one of the other classifications. Abortion does not have to be listed as a right in the Constitution to be a right, if the “victim” is not People. The Court of Popular Opinion may think that think that O.J. Simpson is a Murderer, but a California Court found him legally Not Guilty of Murder. IMHO, the Supreme Court has confused its role with the Court of Popular Opinion.

Supermajority

 

Sunshine Superman

Superman or Green Lantern ain't got a-nothin' on me
I can make like a turtle and dive for your pearls in the sea, yeah
A you-you-you can just sit there a-thinking on your velvet throne
'Bout all the rainbows a-you can a-have for your own

We don’t need a Superman.  We need a supermajority.

The most important decisions of the United States constitutionally require a supermajority.  E.g.

“…The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present…”

“…Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member…”

“….If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law…. 

“…Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill…”

“…A quorum for this Purpose (counting Electoral College votes) shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice…”

 

“….He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;…

…The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;…

14^th Amendment …No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability…

25th Amendment …If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office….

In other words, the most important decisions of the United States, according to its Constitution, require, not a simple majority but, a supermajority.  It boggles the mind that opinions of the Supreme Court are NOT considered to be important decisions that also should require a supermajority. It is the responsibility of the Chief Justice of the Supreme Court, not to try like Neville Chamberlin and appease a minority who have become a majority in one institution, but instead require that all Supreme Court decisions by HIS Supreme Court should be by a supermajority of the sitting justices.  Criminal juries require a unanimous finding.  Civil juries require a supermajority finding.  Should not the same be expected of the Supreme Court?

Wishes

 

What a Fool Believes

But what a fool believes he sees
No wise man has the power to reason away
What seems to be
Is always better than nothing
And nothing at all keeps sending him...

And, despite Larry David’s wishes as expressed in the FTX commercial,  fools can vote.

 Republican Rep. Greg Steube (R-Fla.) deleted a tweet Thursday that accused House Speaker Nancy Pelosi (D-Calif.) of allowing CNN, or as Steube put it the “Communist News Network,” to build a TV set in Statuary Hall. CNN had actually used a green screen displaying that section of the U.S. Capitol.

https://www.wfla.com/news/politics/gop-lawmaker-deletes-tweet-blasting-cnn-for-full-tv-set-inside-capitol-that-was-actually-a-green-screen/

My son worked on the digital effects team that made the hologram where the dead Tupac Shukar appeared to be on stage with Snoop Dogg at Coachella in 2012. Without a trace of irony, a number of people wanted to be taken backstage to talk with Tupac. I would like to say that those people, and Rep. Steube, were just fooled by new technology and once they realized that there is this new technology, then they will no longer be fooled. However Hans Christian Andersen addressed the same thing in his story about the Emperor’s New Clothes in 1837. His story was an update of Spanish story from 1335 .  In these cases, no new technology was involved. 

The old adage “If wishes were horses, beggars would ride” applies. Just because you wish something were true, doesn’t mean that it is true. Be wise.