On The Passing of Justice Ginsberg

This video is a primer on why the passing of any Supreme Court Justice should not matter this much.

When I heard the news on my way home yesterday, I thought “How very 2020…”. I didn’t think this for any of the reasons that the persons in this video thought so. Let me expand on this…

Unlike several of my friends, I’m not doing a happy dance about Justice Ginsberg’s passing. Her longtime sincere and genuine friendship with Justice Scalia gave me hope for the future of this country, in a world where everything is now political, the two managed to find common ground, and enjoy it together without letting opposing political viewpoints and judicial philosophies make that common ground toxic. I liked what their ability to do so said about the two of them as persons and as individuals, and as I get older, and the ever increasing politicization of everything continues apace, it causes me to resist the pull to go along with this trend. I don’t want to celebrate the death of someone of a different ideological persuasion. This isn’t out of a concern for “civility”, which is too often “”Shut Up.” they said, in a hoodie.” It isn’t a “form” issue. It is because I don’t want to let that kind of hatred and pettiness be internalized by ME. If she was a creation of the same God who made me, I don’t get to regard her that way, without facing judgement from that same God for contempt of his creation.

That said, the secular canonization of Justice Ginsberg that has been a feature of the last decade or so is not a good thing for political discourse or society, and the “statement” she dictated to her granddaughter earlier this summer is a disappointment. As she felt the onrushing of her own immanent mortality, she could have recognized something I have frequently told clients who have agonized over decisions regarding their testamentary directives: “It’s one thing to be thoughtful, but you really shouldn’t torture yourself over these things, because the truth is, you’ll be dead.” Instead of recognizing this, her final word on the subject of her replacement portrayed the kind of thinking which is part of the problem we face today: The idea that the seat she occupied “belongs” to a certain ideological persuasion.

The fact that is lost on everyone, and that will sadly remain so, is that Supreme Court Justices were never supposed to be so “crucial” to everyday Americans, and if they hadn’t strayed into the practice of activism, brazenly usurping legislative authority (and had craven and cowardly legislators who are elected to make hard decisions not let them do so), this wouldn’t be the crisis that too many people see it to be.

I’ve witnessed a variety of reactions to her passing. Respect. Sadness. Unrestrained glee, which I dislike as much as the unhinged despair in the video above, in which people lay bare their understanding, without ever admitting it, that the “rights” they fear losing aren’t really rights at all, but licenses granted by a branch of government that pretended to mystically divine them from penumbras and emanations of actual rights which this government saw fit to guarantee in a “Bill of Rights”, while ignoring the inconsistency of these “rights-cum-licences” with our base jurisprudence and legal philosophy. And like all licenses, they can be revoked by the same government that issued them in the first place.

I could teach a class on how American jurisprudence went tragically wrong. I can cite chapter and verse. I can give real world example after real world example. And it would all come back to the same thing: When judges decided to make law under the pretense of applying what other jurists had never actually “found” in the plain meaning of what had been commited to paper, we started on an inevitable course to where we are today… a place where a Supreme Court vacancy is treated as an existential crisis. I’ll even acknowledge that it might even be one if you subscribe to an ideology which has routinely turned to the courts for decades in order to achieve legislative results that they were unable to achieve by legislative means. Ultimately, the blame for this lies with Congress, as it has enabled them to maintain a lucrative and cushy sinecure by never actually making the tough decisions, despite the fact that doing so falls squarely within their lane, and no other branch of government. Once this is understood, it should become obvious that filling the vacancy left by Justice Ginsberg with another justice of a similar persuasion won’t fix that problem.


Being Wrong About “Rights”

As should seem obvious, this is a piece I started last summer, and never fully finished.  While the original train of thought has moved on so far down the line, it has gotten lost, in the Covid Summer of Inconsistencies (Protestors (peaceful and otherwise), Demonstrators, and Rioters absolutely are NOT responsible for increases in Covid cases, but if you walk into the supermarket without a cloth mask doing little to nothing to stop virus particles that you *might* be exhaling through the spaces in the weave, you hate grandma and want her to die), it still seemed somewhat relevant, as it concerned a modern conceit, albeit a different one than the arbtirary and caprecious exercises of authority currently practiced by various state governors.

It’s not generally a good thing to set a lawyer thinking. And yet a confluence of events has caused me to do just that. The ball was set in motion by a matter a colleague started working on recently. He had been contacted by a corporate client with offices in a few western states, who was concerned about an employee who let them know was going to come out very soon as “transgendered” and would be “transitioning”, and the client, after several brushes with various states policies on a host of different matters, had the foresight to know that this might create “issues” for the company.

That client didn’t know how right they were.

As my colleague started to dig into state regulation and describe what he found, the more the wheels started grinding. He informed me that under state law, it is illegal discrimination to fail to use the “appropriate” pronoun for a person who is “transgendered”, with “appropriate” being determined by the “transgendered” person, not by any objective, scientific measure. The law also makes the employer responsible for such transgressions when they are committed by an employee.

Those who have known me for a while have heard or read my rants against the current trend of using victimhood as both a sword and a shield, but as it turns out, this is actually one area of the law that demonstrates this concept. This being the case, I was unsurprised to read an article demonstrating how this concept is employed, as well as the perverse effect of enforcing laws like this one. While there is much to raise an eyebrow about in this article, the most important point is the one that is the obvious consequence of such law:

“The judge in the case refused to allow Whatcott’s lawyer to offer testimony showing that, in point of fact, Oger is a biological male. According to the judge, “the ‘truth’ of [Whatcott’s] statements in the flyer is not a defense.” As such, said the judge, “evidence is simply not relevant to the legal issue…””

Truth is not a defense.

To quote Jared Keso’s over-the-top character in the modern classic “Letterkenny”, “What kind of fucked up pagentry is that?”

According to Merriam Webster, the definition of mental illness is :

“any of a broad range of medical conditions (such as major depression, schizophrenia, obsessive compulsive disorder, or panic disorder) that are marked primarily by sufficient disorganization of personality, mind, or emotions to impair normal psychological functioning and cause marked distress or disability and that are typically associated with a disruption in normal thinking, feeling, mood, behavior, interpersonal interactions, or daily functioning”

It seems to me that declarations of “gender identity” that are in contravention to biology and objective scientific classification qualify as an “impairment to normal psychological functioning”, and a “disruption in normal thinking, interpersonal reactions and daily functioning”.

Why does it matter?

Because the enforcement of such a law against a person who does not see fit to recognize the mental illness of another, and sanction and encourage that mental illness by pretending that their belief is an expression of reality is a violation of the “offender’s” civil rights (real rights, not license granted by government, deceptively clothed as “rights”).

To understand why this particular rabbit hole is repugnant to not just reality, but to our underlying legal philosophy, it is necessary to go back and start with Blackstone’s explanation of the distinction between an actual right, and what government will term a “right” which actually isn’t. From Volume I of his Commentaries on the Laws of England (the best primer to understand not only western common law, but its philosophical and moral underpinnings as well), Chapter One:


BY the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society ; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws : private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature ; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to formation of states and societies : so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple ; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

THE absolute rights of man, considered as a free agent, endowed with discernment to known good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up on one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature : being a right inherent in a us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives, up a part of his natural liberty, as the price of so valuable a purchase ; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has tough proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the fame power ; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick c. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind : but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty : whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance ; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV d, which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that favoured of oppression ; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II e, which prescribes a thing seemingly as indifferent ; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, wen prudently framed, are by no means subversive but rather introductive of liberty ; for (as Mr Locke has well observed f) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

THE idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be loft or destroyed by the folly or demerits of it’s owner : the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable bluffing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law ; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo inftanti a freeman g.

And yet, whether or not one classifies the right to speak the truth of a person’s actual gender, as defined by objective scientific criteria to that person’s face as an expression of Freedom of Thought, or Freedom of Conscience, the right to do so is an absolute one, and is absolutely protected pursuant to the First Amendment, and has always been understood as such, as recognized by Thomas Jefferson:

The right to hold one’s own views, and to think and to decide for oneself on any
question, is an essential right for a free people. A person is free to believe anything he wishes, even if in error, and may not be persecuted nor denied the right to hold public office for those beliefs. The First Amendment protections for freedom of religion, of speech, of the press and of assembly, all together protect the Freedom of Conscience. “No provision in our Constitution ought to be dearer to man than that which protects  the rights of conscience against the enterprises of the civil authority.” –Thomas Jefferson
to New London Methodists, 1809. ME 16:332

Indeed, Jefferson understood the futility of government trying to abridge this right, because he understood precisely what this right is, despite government’s proclivity to try to interfere with its exercise:

“There are rights which it is useless to surrender to the government and which
governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing; the right of free commerce; the right of personal freedom. There are instruments for administering the government so peculiarly trustworthy that we should never leave the legislature at liberty to change them. The new Constitution has secured these in the executive and legislative department, but not in the judiciary. It should have established trials by the people themselves, that is to say, by jury. There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army.” –Thomas Jefferson to David Humphreys, 1789. ME 7:323



Navigating Through The Noise

SIG*INT  intelligence obtained through the interception of transmission signals

HUM*INT : the gathering of political or military intelligence through secret agents

“May you live in interesting times.” —Sir Austen Chamberlain

One of my professors, who I remain convinced had actually been a spook before academia liked to say “The majority of spying is done by normal people, who offer real-time, on the ground reports of the things that they are seeing, and while it can seem really mundane, you can learn more than any spy satelite or electronic intercept can tell you about actual conditions.”  At the time, I was skeptical, but then I started practing law, and after a few years, I have come to value HUMINT a great deal more than SIGINT when it comes to what is going on around us.

I think it is safe to say that the conditions in which we live today are far outside the contemplation of all but the most scheming and fanciful among us even a year ago.  I know that if you had told me that a virus was going to have the majority of the country home-bound for months on end, receiving ever-increasng amounts of welfare to survive, while various malcontents would coalesce around an eggregious exageration regarding racism, and literally run riot all over the country, defying, with the tacit approval of cynical politicians, the same “emergency” mandates by which the average American was made to kill their own economic prospects and small businesses, and relentlessly assail various aspects of American culture under the same tired and untrue rubric of “racism”, I would have had a difficult time believing it.

We live in an age where everyone is a few keystrokes away from information.  Unfortunately, there is so much that sifting through it to find something meaningful requires sometimes serious effort, making understanding the world a more arduous task than it it seems to be on first blush.  With regard to our own country, SIGINT abounds.  There are no shortage of broadcasts, blogs, and digitized magazines and newspapers today.  Sadly, too many of them focus their efforts on telling us what to think, rather than giving us information and letting us draw our own conclusions, making this SIGINT-rich environment difficult to draw any meaningful intelligence out of.  At this time, any value SIGNIT about our own country and culture has is as a secondary source, once carefully sifted, in order to confirm the HUMINT that has revealed itself to be more reliable.

When I became an attorney, I realized that most people get very honest and candid with their lawyer than I would have believed when I was in law school.  So much so that I can honestly say that I know things about people that I don’t want and NEVER wanted to know.  But at the same time, they will be remarkably frank about other things.  Like how they are getting by in a Covid lockdown, or their experiences or lack of experiences with the virus.  This has been interesting in trying to flesh out the true nature of the experience, along with direct information from people who work in the health care profession.

Starting with the health care professionals I know and trust who have first hand experience, I would say that (a) the virus is real, and not a hoax; (b) those who are doing the frontline work are tired…this has gone on for months, and the people with the “oin-demand” skillsets for dealing with Covid patients haven’t had a meaningful break; (c) standards for hospitalization and treatment have been relaxed from where they were at the beginning, as certain protocols have proven to be more effective than others (meaning that while there are increased cases to follow the increased testing, the hospitalization numbers may not always indicate the same degree of severity that we would have expected in March or April).  I have no doubt that it feels like a neverending grind with the days all mashing into each other, and it undoubtedly sours some dealings with others who don’t see the same thing from day to day.

Then there is the everyday perspective.  Many of the clients I have met with in the last two months are 50 or older.  While almost all of them were wearing masks before the governor “mandated” it, several of them were doubtful about the daily information from government and the media, and a few made it clear that they felt that some of the “experts” had destroyed their credibility by talking out of both sides of their mouths.

And then there were the others.

One client came in to sign a lease-related document.  He sat in my office, wearing a mask, and reading through the eight page document, occasionally asking a question about it.  When he got to the end, he took out a pen, signed it, and handed it back to me so I could notarize his signature.  He regarded me quietly for a minute, then asked “You aren’t worried about this virus?” (presumably because I wasn’t wearing a mask…he was six feet away from me, sitting on the other side of my desk).  I looked up and said “Not really.”
He seemed to ponder it, then said “I can’t even go to work.  If I get this, I’m dead, what with all my other conditions.”  I looked at him and said “I’ve been coming to work since this started.  I’m essential personnel, and the things I do for people don’t stop just because there is a virus.”  He nodded, then volunteered “My cousin got it a few weeks ago.  He’s dead now.”  I stopped and looked up, saying “I’m genuinely sorry to hear that.”
He asked me “Do you know anyone who has had it?”  I replied “A few people who might have had it, but weren’t diagnosed.  A few online acquaintances who said they had it, but recovered.  And my sister-in-law had it.  She was diagnosed because she had a fever when she went to work.  She recovered without ever really feeling sick.”  We discussed the document and some additional information, and he left.

Another client came to visit me so that they could sign some real estate conveyance documents.  While this person was masked, they expressed no concern about my lack of a mask, and we even exchanged some jokes about it, until she said “Well, it isn’t like we’re in a church.”  I looked her in the eye, and said “We’ve been back to church for more than a month now.  And I’ve even been singing up in front every Sunday!” as I let a smile cover my face.

The client became visibly unconfortable, and asked “Don’t you have any senior citizens in your church?”  I replied “About half the congregation.” They asked “Have they been coming?” and I said “Most of them, yes.”  I could see the face cloud up “But they’re wearing masks, right?”  I shook my head and said “No, only two of them wore masks.”

As they signed the documents, they asked “Why is your church open?”  I smiled and said “Because when our governor, who said that it was fine to go to the grocery store and Wal-Mart, who allowed the riots demonstrations to continue, but decided he was going to dictate to US how we conducted communion, it was a bridge too far.”  After a pause, the client looked me in the eye and said “I can respect that.”  Then they asked “Aren’t you scared?”

I waited to answer, then said “I don’t think most people want to die or suffer a serious injury or illness, but can you say that being told you can’t go to work, the movies, out to a ball game, church, or even a friend or family member’s birthday party is actually living?  Our “two weeks to flatten the curve” started how many months ago?”

I could see the activity behind the client’s eyes.

I added “Do you know anyone who has actually died from this?  Do you know anyone who has had it?  In my case, I know ONE person who doesn’t work in health care who knew someone who died from it.  I have a family member who had it, and she’s fine, and some accquaintances who had it, who were slightly ill for a few days.  I know one person who has had it, and has had a few months now of some lingering effects.”

The client looked at me, and said “I know some people who tested positive, less than 5 who were sick, and no one who died.”  I asked “Does this in any way conform to what we’re hearing on the news daily?”

They looked at me for a minute, then said “You know, everytime I come to see you, you say something that I’m going to think about for a while after I leave.”

I’m not about to pretend that I know everything about this pandemic, but it should be fairly obvious that the legacy media isn’t telling the full story, either.

For years, I blogged as Blackiswhite, Imperial Consigliere.

I stopped blogging for awhile, forgot my password, and got locked out of threesurethingsoflife.wordpress.com, and since I didn’t pay for upgrades, I was out of luck.

Fair enough.

I have to be someone different, even though I still am me, just with more experience.

There will be more soon.