Travels with Gunther and Kara

HI folks…departing for this post from my normal traveling and photography related content to address in long form the SCOTUS decisions this week…so this post delves into politics and potentially controversial things. If you’re not interested in that…then feel free to skip the rest of this and come back tomorrow when I’ll post the last couple of days of our UK trip experiences and images.

This post came about because of some of the things that the human kid was saying and responding to on twitter…Neil tried explaining the why’s and how’s to him but having a intelligent conversation about complicated topics in 280 characters just doesn’t work.

Anyways…here we go. After reading this…I welcome any civil, respectful comments and we can have a debate on the merits of these decisions…but I really wanted to try and get rid of some of the hyperbole that the left (and the right) are blasting out.

Honest disclosure…we’re right of center in out household…but it’s more center rather than right, maybe mid right but definitely not far right…and there are actually some things that the center left says that I agree with…for instance I can see some of both sides in the abortion thing…as a Catholic my religious decision is that abortion is wrong…but from a legal standpoint I think that Congress should pass some sort of national minimum standard for it’s legality so that those with differing religious tenants have an option they are ok with. And I really wish that both sides…and really both the far left and far right are equally guilty here…would just stop demonizing the other side and instead try and compromise so that both sides get part of what they want…usually if nobody is completely happy with the outcome that means it was a good outcome. Unfortunately though…I feel that’s pretty darned unlikely in today’s political climate.

As you most likely know…the SCOTUS released some opinions this week on affirmative action, the rights of LBGTQ people vs the rights of others to religious freedom, and President Biden’s student loan cancellation executive order…and in all three of these (and we’ll also address Roe v. Was as well since that was last year’s controversial decision and falls into the same vein) the conservative side of the case was the winner.

And immediately…the liberal media and twitter feed along with liberal politicians proceeded to melt down with quotes such as

• Illegal decision by a biased and illegitimate SCOTUS
• The plaintiffs do not have legal standing so therefore the case should not have been before the court anyway (in the LBGTQ case this is at least a valid question but not in the others)
• The SCOTUS should stay in their lane
• These decisions are contrary to the opinions of 70% of the people in the country
• They’ve overturned decades of settled law (hint, there is almost no such thing as settled law unless the SCOTUS says there is)

And so on and so on.

The problem is…despite all of the outcry there…the opinions are easily available online and if one chooses to go and actually read them then you’ll have actual facts instead of random claims by people on twitter…and no, your barber’s sister in law’s friends sons boyfriends mother is not a valid source of facts.  And…despite the claims that this is an activist court…it is (a) no more activist than the left leaning ones that we’ve had before and some of their decisions are clearly slanted towards the left.

Before we an get into all of that…we need to have a brief civics lesson. This is because civics, which teaches the constitution and how the government works…is no loner taught in school…combining this with the “I get my news and facts from social media rather than from a reliable source” that the younger generations use (and that’s not a disparagement of them, just pointing out where they primarily get information from) results in some claims that are simply wrong.

First up…the US…despite what you may have heard…is specifically not a democracy…that’s when the one man one vote principle applies and people like the President would be elected by popular vote and laws passed by popular vote would happen. What we have is a federated democratic republic consisting of the several states…and the constitution is the supreme law of the land.

You might be surprised to learn that most of what is in the constitution is a compromise because of conflicting desires back in the late 1700s between the large cities of New York and Boston and the mostly rural/agricultural remainder of the original 13 states…and conflicting desires between thee various states as well. And you need to remember and understand the desires and wants and times the founding fathers lived in. They had just finished a war to gain independence from England, they had no desire for a strong central authoritarian government or king, and they believed in state’s rights first and foremost.

We should all be thankful that those folks were willing to compromise or else we would not have a country at all…the divisions were that strong. The very first compromise they made was to ignore the reason that what came to be known as the Constitutional Convention was called by the states in the first place. Before the Constitution…there were the Articles of Confederation and the convention was actually called for by the states to modify the Articles to solve some issues…but the great compromise at the beginning was to recognize that the Articles were fundamentally broken and needed to be completely replaced. Following that…there were many other compromises…the Electoral college, the bicameral legislature, the 3 branches of government, having a President vice a king and Prime Minister…and it took a great deal of personal trust between the parties to hammer out something that nobody liked completely but could live with since everybody got part of what they wanted.

Once the Constitution was ratified…the country and government was established with 3 co-equal branches of government…legislature, executive, and judicial…and each has checks and balances on the other two but none of them are superior to the other two.

Then the arguments began over what the words actually meant…and this pretty quickly divided what was known back then as strict and loose constructionists and that has pretty much come down today to conservatives and liberals respectively. Strict/conservative construction means that the words in the constitution mean exactly what they meant in the late 1700s and no more…loose/liberal means that the words meant what I decide they mean today and anything not mentioned in the constitution is legal. This debate has been going on for 200something years and will likely never end…but it’s important to remember that the constitution itself provides powers that are both delegated to and withheld from the various branches…and it states that all other powers not enumerated in the constitution remain the properly of the states. That last part tells me that the fellows that wrote the darned thing wanted it to be interpreted exactly the way they wrote the words…no more and no less.

OK…end of civics lesson…let’s talk about those 4 decisions I mentioned above.

In order to file a lawsuit…one needs to have standing. Standing is a legal term and I’ll leave it as exercise for you to go google it if you want more details…but I already did it and in order to have standing you need 3 things…you need an injury in fact (i.e. you suffered harm)…the person you’re suing has to have caused the harm…and the court you’re suing in needs to have the ability to fix the problem. That’s it…as long as you meet those 3 things then you can sue whoever you are trying to sue.

Edited to add later.

To be fair…the human kid says that the standing doesn’t have an actual harm…and in at least the Colorado case he is possibly correct…there is conflicting evidence on whether she suffered actual harm. The organization that bankrolled the suit should have found a better plaintiff that actually had a web design biz and waited until that person declined to do a gay marriage site and was prosecuted under the CO law  As it was…the court used some fine nuances in the standing legal history to justify standing. That is legally correct…but a cleaner example of him would have been better as a slam dunk standing case and eliminated one of the left’s complaints about the decision. The affirmative action case clearly met the standing requirements and the student plan did as well albeit not as obviously as the Harvard case. In the Harvard case…the HEROES Act…and the Higher Education Act the President is going to cite now…seem clearly unconstitutional anyway as only Congress has the power of the purse and they Cabot delegate it to another branch…as I said down below before this is clearly a problem that only Congress can solve. The CO case pits 2 constitutionally guaranteed rights against each other…freedom of religion in the 1st amendment and equal protection under the 14th. Both of those rights cannot simultaneously be Net in this case…recognizing one violates the other…so why is this not a case of the court denying discrimination against religious people…it’s only being cast as discrimination against gays…but prohibiting that prima facile discriminates against a better sourced religious site designer. And it is most definitely correct that this case was brought as a political cudgel…but the previous year’s case filed by the gay couple against the wedding cake designer was also clearly intended as a political cudgel since the gay couple picked the only baker in town that would not be a gay wedding cake…that wasn’t an accident either…both suits are stupid political shenanigans. The President said he’s going ahead with loan forgiveness with the Higher Education Act since it has no national emergency clause… ut if they had read the opinion they would know that the delegation of the spending money authority was in there as well as the over reach idea…so don’t be surprised when that one loses in the courts as well.

End of the addition section.

First up…affirmative action. The plaintiffs in this case clearly had standing as the use of affirmative action by Harvard prevented them from getting a Harvard education and being admitted to the good old boy network of Harvard graduates with the influence and monetary compensation that gets you later in life, this harm was cause by Harvard’s use of Affirmative Action, and the federal courts can fix the problem. So…once standing was granted…and this one is pretty obviously correct…the legally correct according to the constitution is that Affirmative Action is unconstitutional…the 14th amendment provides equal protection under the law and the 15th amendment provides that rights shall not be abridged because of race. Since Affirmative action is by definition based on race…it is clearly unconstitutional. Now I understand and agree that racial prejudice still exists and that blacks in particular generally have fewer educational opportunities than whites, Asians, and others…but restricting the rights of other races by giving preference to one race is not the right way to fix the problem. Better school district funding, teachers, and resources are part o the fix…and perhaps other things as well…but violating the constitution is clearly *not* the way to solve this problem.

Second…the rights of LBGTQ vs the right to freedom of religion. Standing…well, this one is a lot murkier in that there is some evidence that the lady web designer in question suffered actual harm due to the law outlawing discrimination against LBGTQ in Colorado. She has stated that she wanted to expand her business into designing web sites for couples getting married and that the law would require her to support and endorse gay marriage if she did that…and that she did have a client who approached her to do a wedding website…the state says that all of this is incorrect and since she wasn’t actually asked to design such a website the point is moot. I’ve looked a bit and could not find any definitive facts either way…and I’ll be the first to admit that I and not a lawyer and hence don’t understand the ins and outs and precedent cases and all of that about standing…but the court (and you can go read the opinions yourself as I stated above) decided she did have standing and essentially found that the right to religious freedom outlined in the 1st amendment (note, the original 10 amendments in the Bill of Rights were all ratified at the same time and their numbers were based on the relative importance the founding fathers gave to each…so religion and arms were the top two concerns) conflicted with the equal protection under the 14th amendment and thus the religious freedom argument took priority. As I said…this one was and is a lot murkier and I would suggest reading the actual opinions to get a better understanding.

Third…student loan cancellation. Standing…one of the two suits that was addressed here was tossed out based on lack of standing by a vote of 9-0…the second one that succeeded happened because the states were smart enough to include the loan company headquartered in their state to be part of the suit. Thus…the cancellation of the loans would affect the income of the loan company which would affect the amount of taxes they paid Nebraska which would cause harm to Nebraska…so they were granted standing. This one is a bit murky as well…and the 3 liberals on the court voted against standing because it was clear that if they were granted standing the loan cancellation was illegal as I’ll explain. It’s not nearly as murky as the case in Colorado…but it’s not as clear as the affirmative action one either.

Once the state was granted standing…essentially the court said that the HEROES act which authorized the secretary to forgive loans based on a national emergency was an unconstitutional delegation of a power specifically provided in the constitution solely to the legislative branch…the power to raise taxes and spend money or power of the purse. The law provided that in cases of national emergency the secretary could do so…but the interpretation of the law by the court was that this authorization was intended to handle individual or small group cases because in those cases the agency could internally reprogram already appreciated funds to cover the shortfall caused by whatever loan modification they authorized. However…the agency can reprogram already authorized funds but they do not have the power to obligate new funds\…and the legislative branch does not have the power to delegate the power to spend money to the executive branch. Thus…the President’s executive order and the secretary’s forgiveness plan is illegal. After the decision came out…the President announced that he’s starting a new program under the Higher Education Act of 1965 to do the same thing…but again I think this will result in another suit and it will again be held unconstitutional for the same reason. The President said yesterday that this new approach was legally sound…but apparently he didn’t read the court opinion because he thinks it was rejected because the national emergency is over when actually it was rejected because Congress cannot delegate the power of the purse to an executive agency.

Now personally…we had college loans and we paid them off because we signed the loan document and one pays back money you borrow. In our opinion…student loan borrowers no more deserve too have their loans cancelled than other groups have to have their mortgages or car loans or credit card loans cancelled…you borrowed the money for what in many cases turned out to be useless degrees which won’t earn you anything so you have to pay it back. Under the equal protection clause as well…cancelling only student loans for people making under a certain income seems to fail as well. This is another of those problems that Congress could solve…although even then the power of the purse argument wouldn’t apply but the equal protection clause would seem to apply to me…but that’s one of those more nuanced interpretations.

Finally…Roe v. Wade. We keep reading about how last year’s decision violated 50 years of “settled law”…but in actuality the SCOTUS specifically *did not* outlaw abortion. What they did was follow the constitution. Roe v. Wade was decided by a liberal court based on the woman’s right to privacy…and even the late Justice Ginsburg always said that she thought the decision was correct but was based on the wrong (and weaker) clause in the constitution. What last year’s decision did was to determine (correctly in my view) was that the right to abortion was not enumerated in the constitution…and hence under the constitution any power to do remains with the states…and as we’ve seen the various states are enacting various laws either restricting or guaranteeing the right to abortion. That is as it should be.

Again…this is a problem that Congress could solve. If they were to pass a law authorizing nationally abortion up to some point in the gestation period with whatever restrictions they included…and if a President were to sign it…then there would be a national right to abortion. Neither side is interested in that though…even though it would be doing their job…because both sides would lose what they deem as a valuable political cudgel come election time.

Finally…we keep seeing things like Congress should place term limits on the SCOTUS and that the Electoral College should be abolished because the popular vote winner doesn’t always become President. Fortunately…the founders wrote those things into the Constitution and it would take a constitutional amendment to change either of them…and I realize that amending it is hard…but news flash…it’s supposed to be hard, that’s the way the founders wrote it. They were particularly concerned about the “tyranny of the majority” in which a small majority would overturn the desires of the slight minority…so the amendment was designed to be deliberately hard and require both a 2/3 majority of both houses of Congress or a 2/3 majority of the states and then a 3/4 majority of the states to ratify the amendment so that any amendment would need to be supported by a majority of the country across both urban and rural states. I keep trying to remind people that…for President…the popular vote is completely irrelevant…in other words it simply doesn’t matter. It’s right in the constitution folks…you need to win a majority of the Electoral College to become President…and without the Electoral College we would not have either a country or a constitution as the rural states were never going to vote to allow NY and VA (back in the day) to elect the President regardless of the wishes of the rest of the country…and today they’re not going to let NY, FL, and CA do it either.

In closing…I implore everybody to stop getting your facts from twitter…go research things yourself and find out actual facts rather than some slanted viewpoint that may or may not have anything to do with actual facts…and once you have some actual facts go ahead and form your own opinion.