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Repairing the Faults in this Nation’s Foundation

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In observance of the Fourth of July holiday, I’ve written a handful of essays for this site over the past five years. One year I wrote two posts, on and before the holiday.

2022: A Republic, If You Can Keep It

2020: Still Dreaming of the American Dream

2020: The Fourth Ahead and the Forgotten

2019: In Order to Form a More Perfect Union

2018: Happy Fourth of July: Remembering the Why

Looking back I realize now writing about the Fourth became imperative because of anti-democratic efforts by Trump and the GOP who enabled his autocratic behaviors.

By exercising our democracy, Trump was removed from office. This is what the nation’s founders envisioned, a leader who could be removed either by election or by impeachment and conviction, when voters revoked and bestowed consent to be governed.

Last year and this year, however, critical faults in the founders’ efforts to create a more perfect union have been revealed, and in a particularly ugly way.

With the Dobbs v. Jackson Women’s Health Organization decision in June 2022, a majority of Supreme Court jurists told more than half the nation they did not have bodily autonomy depending on the state they lived in. Equal protection for their fundamental human rights was voided.

This year with the 303 Creative LLC v. Elenis decision, a majority of the Supreme Court felt empowered to use a hypothetical case – not an actual case in which any citizens’ rights were violated, and a case which may have relied upon false statements – to sharply turn back the clock on civil rights and weaponize the First Amendment to allow open discrimination.

These unelected arbiters chose to ignore stare decisis, making lies of their sworn statements during nomination hearings before the Senate Judiciary Committee.

GOP-appointed Supreme Court jurists have abrogated their role defined in the Constitution, and have now set about making law in a star chamber created by partisan appointments, in turn enabled by bad faith through gerrymandering, voter suppression, and an Electoral College created to protect a white land-owning minority class in order to assure their white patriarchal power continues.

The only good thing any one of these revanchists has done in the course of seizing Americans’ rights is a warning — surprisingly, by the most corrupt of the lot, Clarence Thomas:

Thomas warned us in Dobbs the extremist revanchist faction of SCOTUS was coming for our right to privacy on which the people of this country have relied to make personal, intimate decisions about their loves and their bodily autonomy.

And lo — this June the revanchists came for LGBTQ+ rights, though not in the way we might have expected. They took a made-up threat to establish a right to exercise in commerce a way to deny LGBTQ+ persons the same access to goods and services. They did so in a way which may allow this country to return to Jim Crow — this time not only seating Blacks at the back of the corporate-owned bus but denying any protected class the equal rights they should have as human beings.

Again, equal protection under the law has been discarded by unelected federal employees with lifetime appointments.

This cannot stand; the problem is bigger than Thomas’s targets, Griswold, Lawrence, and Obergefell.

They are going after our unenumerated rights, using enumerated rights to do so.

~ ~ ~

Political historian Eli Merritt has an op-ed in today’s Los Angeles Times: The Fourth of July is all about America’s first principle — the right of revolution.

After the seditious conspiracy and insurrection of January 6, 2021, one might reasonably be put off by the title of this essay. It’s this premise Trump’s seditionists relied upon when they stormed the U.S. Capitol in order to obstruct the certification of the 2020 election, summoning the spirit of 1776 as they did so.

We can’t argue that this country wasn’t born of revolution — it’s fact.

But we can remember as Merritt points out that revolution wasn’t necessarily intended to be violent:

For the founders, the right of revolution did not imply violent overthrow of government. Rather, it was an idea that encompassed the right to resist unconstitutional acts through nonviolent civil disobedience — and, only when this failed after long sufferance, by formal withdrawal from unjust government in the defense of freedom, equality and the right of the people to govern themselves.

The revolution which created this country wasn’t the work of armed rebellion alone beginning 1765 and ending in 1783 with the Treaty of Paris. Our fellow contributor Ed Walker has been examining the second founding, which continued the revolution and evolution of this country from a colonial outpost of monarchical empire to an independent, sovereign democratic republic in which equality for all might be realized through amendments to the Constitution.

We’re now confronted with unconstitutional acts by constitutional officers attempting to undo the second founding — specifically, the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The right to control our bodies belongs to no state, no nation. No judicial decision should encroach upon that fundamental right.

And yet the Roberts’ SCOTUS conservatives found otherwise with its Dobbs decision, in spite of precedent acknowledging the right to privacy about our bodily autonomy.

The same court puts itself at odds with the Constitution regarding regulating commerce in Creative 303 — if a theoretical business relies on religion to limit its client base, is it really a business or is it a church?

(It’s a wholly dishonest exercise when the business doesn’t even exist; the same Christianist business would be unlikely in reality to win LGBTQ+ business because in reality, clients don’t want hire service providers for work which undermines their lives.)

We are further insulted not only by unconstitutional decisions but by the corruption which shaped them. These are not just works, they are not legitimate; they were generated for corrupt purposes and thwart the evolution toward a more perfect union.

How now are we to respond?

~ ~ ~

We must remember once again this Fourth of July that this country has not always ensured all of its people have equality, in spite of its founding manifesto:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The work of the first and second founding are not yet done; we are still and always becoming what we set out to be. Frederick Douglass saw an arc to the path ahead:

…my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world and trot round in the same old path of its fathers without interference. …

We reject that same old path to which the extremist revanchists wish us to return.

We reject their divisive, exclusionary ideology which will not yield a more perfect union.

We may engage in nonviolent civil disobedience to this end; Martin Luther King, Jr. held our feet to the fire in his 1963 Letter from a Birmingham Jail:

YOU express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”

MLK told us we have “a moral responsibility to disobey unjust laws.”

But we should — we must — take every available measure in our democratic framework to revoke our consent and remedy the unconstitutional faults before they fester into worse. This means active engagement in all levels of the democratic political process, from our local school boards to the White House. We can’t take any political office for granted; they are held only with our consent, and our consent is assumed when we are not engaged.

Help new voters obtain ID and register to vote. Ensure they can get to the polls in spite of voter suppression. Educate yourself about the candidates; make sure no seat goes uncontested where a revanchist GOP holds office or runs without opposition. Vote in the primary. Vote up and down the entire ticket — in doing so, you express your consent to be governed.

Do not let them assume you have given consent to an imperfect union, that you consent to their corruption as they take our innate human rights.

I ask once more this holiday as I have before:

I wrote four years ago during the Trump administration, after posting a copy of the Declaration of Independence:

The signatories to this document knew they also signed their death warrant. They debated this document thoroughly, understanding their lives, fortunes, and possibly the same of friends and family were staked on the success of the undertaking launched by this declaration (“corruption of blood” in family’s case, which so concerned the founders it was cited later in the Constitution’s Article III).

They staked blood and treasure for their thoughts and beliefs that the colonies must be free. The least we can do is remember this bravery and consider our own willingness to fight for this American democracy.

When asked in 1787 at the end of the Constitution Convention what form of government had been created, Ben Franklin answered, “A Republic, if you can keep it.”

What will we do to keep it?

What will we do to keep this democratic republic’s foundation from faulting even further?

We’re So Not Through Here

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This is emptywheel, where we have frequently posted work contrary to conventional wisdom, or dissented from political leadership with indifference to party.

Each contributor here has their own voice though we’re sometimes confused for each other.

Today is one of those days when you will see a wide gap between emptywheel contributors.

Specifically, I do not personally subscribe at all to Quinn Norton’s belief that the Union is done.

I have written before, however, on numerous occasions, that the United States has not lived up to its ideals.

The concept of this union was flawed from the beginning, having launched as it did with a concession to slaveowners. That original sin dogs this nation to this day; slavery still exists in the form of a carceral state which is heavily weighted against minorities.

The concept of this union was also predicated upon the occupation of lands belonging to pre-existing nations. I’m a product of one of those occupied nations, whose people were nearly wiped out by disease and greed white American occupiers brought to their land.

But I am also an example of what happens when disparate people come together under a singular proposition: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of happiness.”

I am the product of people from Nordic and middle European countries, the product of trips around the Pacific and East Asia. All my forebears came here because they perceived a freedom to pursue lives and opportunity they did not have in their home nation-states.

They found an appeal in this premise worth risking their persons as well as their fortune, meager as it was: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

My forebears stayed in spite of being erased in a number of ways — like the records of my French-Canadian family members’ existence in Michigan being repeatedly obscured or deleted by majority English- and German-speaking occupants, or my Asian family losing its true name when recorded by customs, and then stranded by the Chinese Exclusion Act. Or my Hawaiian family losing the right to its own land because whites deposed its monarchy and seized the islands, in addition to spreading deadly disease.

In spite of being marginalized then and now, my forebears and family made a comfortable life and felt it was their honor, privilege, and duty to contribute to these United States. Among my family members is a Medal of Honor winner — a second generation American who served in the Navy until he retired. My father and brother both served in the armed forces as well.

This isn’t an easy country. If you don’t speak English and especially if you’re not white, it can really demand a steep price. Try taking the citizenship test.

Witness the harassment Ilhan Omar has faced for her race, ethnic heritage, and religion, in spite of the First and Fourteenth Amendments, yet she continues to serve her constituents as their representatives in our democratic republic system of government.

It’s because of the price many Americans have faced to become and remain Americans that I’m put out at Norton’s “the Union is done” essay.

I don’t think she truly has a clue what it’s taken for a sizable percentage of this country to hold this union together, such as it is. She may have faced misogyny but really, in which countries does misogyny not exist?

She can play with sentiment and co-opt others’ pain in her argument that the Union is done, but she hasn’t faced the existential threat one’s skin can pose in a land founded by slaveowners and their sympathizers.

She has the unacknowledged privilege of associating with people who’d rather see people like my family dead, and yet she thinks she can declare “the Union is done.”

Take a hard look at what the Black Americans of this country have been doing since voting began last month as a commitment to form a more perfect Union. Ask them if the Union is done.

Take a hard look at what Native Americans have had to do — forced to change their lifestyle, assigning addresses to places which to them are simply Home — in order to vote, otherwise invalidated and erased if they don’t. Ask them, too, if the Union is done.

And take note of the naturalized immigrants who are worried they and their kin will be harassed by ICE and potentially incarcerated or deported while trying to vote simply because they aren’t white and have come to this country too recently. Ask them if the Union to which they emigrated, many as refugees, is done.

My Chinese family members weren’t permitted to emigrate here or own land until 1943, when it suddenly became convenient to have China side with the U.S. against Japan. I tell you this Union is not done, from the house I own under a hyphenated Chinese name.

I’ve pointed to the words of former escaped slave Frederick Douglass before, with regard to the shortcomings of this nation:

… Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country. There are forces in operation, which must inevitably work the downfall of slavery. “The arm of the Lord is not shortened,” and the doom of slavery is certain. I, therefore, leave off where I began, with hope. …

The work is slow, so often grinding. It is like farming on a’a and pahoehoe lava, which my family knows well. The biases which are foundational to the problems this country faces are older than this country. We are kidding ourselves if they won’t take at least a half-life to fully end, during which time the demographics of this country will force change. Look at what has transpired, the push and pull in the dozen-plus years this site has tackled the nature of security in an open society.

But this union is by no means done and over. It’s there in the lines we have seen in the streets for weeks, snaking out the doors of polling places across this country. It’s in the cars lined up in a drive-through campaign rally, queued hopefully, trustingly in a drive-through foodbank.

It was there in the streets after George Floyd was murdered.

From goose quill pen’s first ink on parchment 244 years ago, this union has always been aspirational, a nation in a state of becoming, a people who must occasionally check themselves and listen to their better angels.

From the speech before a battlefield of nearly 50,000 American dead 157 years ago, we re-consecrated ourselves,

that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

The union is not over. The dream still lives, its work goes on; we will not yield.

It’s simply time once again to rededicate ourselves to forming a more perfect union.

We can begin this day of all days by exercising and protecting our right to vote.

Three Things: SCOTUS on LGBTQ+ Discrimination, Qualified Immunity, Gun Rights

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Very big SCOTUS day today. Huge — and that’s in spite of the court declining to hear cases on multiple issues.

~ 3 ~

In BOSTOCK v. CLAYTON COUNTY, GEORGIA and two other cases, the Supreme Court ruled in 6-3 decision that firing an employee for being gay or transgender violates the Title VII of the Civil Rights Act of 1964.

Title VII (42 USC § 2000e-2 [Section 703]) reads,

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;

Dissenters were Justices Kavanaugh, Thomas, and Alito; Alito filed a dissenting opinion which Thomas joined. Kavanaugh also filed a dissenting opinion.

Overview of the three cases from Human Rights Watch:

In R.G. & G.R. HARRIS FUNERAL HOMES v. EEOC and AIMEE STEPHENS, Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes. When she informed the funeral home’s owner that she is transgender and planned to come to work as the woman she is, the business owner fired her, saying it would be “unacceptable” for her to appear and behave as a woman. The Sixth Circuit Court of Appeals ruled in March 2018 that when the funeral home fired her for being transgender and departing from sex stereotypes, it violated Title VII, the federal law prohibiting sex discrimination in employment.

In ALTITUDE EXPRESS INC. v. ZARDA, Donald Zarda, a skydiving instructor, was fired from his job because of his sexual orientation. A federal trial court rejected his discrimination claim, saying that the Civil Rights Act does not protect him from losing his job because of his sexual orientation. In February 2018, the full Second Circuit Court of Appeals ruled that discrimination based on sexual orientation is a form of discrimination based on sex that is prohibited under Title VII. The court recognized that when a lesbian, gay or bisexual person is treated differently because of discomfort or disapproval that they are attracted to people of the same sex, that’s discrimination based on sex.

In BOSTOCK v. CLAYTON COUNTY, Gerald Lynn Bostock was fired from his job as a county child welfare services coordinator when his employer learned he is gay. In May 2018, the Eleventh Circuit Court of Appeals refused to reconsider a 1979 decision wrongly excluding sexual orientation discrimination from coverage under Title VII’s ban on sex discrimination and denied his appeal.

The dissent weighed in at more than 140 pages out of the entire 177 page syllabus and decision handed down by SCOTUS today.

The first sentence of the dissent:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

Right-wing ideologues are in a furor over Justice Gorsuch’s delivery of the opinion. They must have had absolute faith in Gorsuch to be so incredibly outraged that his interpretation didn’t sustain bigotry. He wrote,

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. Only the written word is the law, and all persons are entitled to its benefit.

Today’s decision doesn’t end all discrimination against LGBTQ+ persons, only employers defined by Title VII. There is still a need for more legislation to ensure all persons in this country may rely on the same rights in housing, credit, property ownership and more. The House passed the Equality Act in May 2019 to address these shortcomings; the bill is now languishing on Senate Majority Leader Mitch McConnell’s desk in spite of support for the bill from 70 percent of Americans.

Steve Silberman noted a trait shared by two of the three dissenting jurists:

One of the most passionately angry voices today:

“Bungled textualism.” ~chuckling~

~ 2 ~

The SCOTUS declined to hear cases seeking reexamination of the doctrine of “qualified immunity.” Thomas was the lone jurist who wanted to hear cases; in a six-page dissent he wrote, “qualified immunity doctrine appears to stray from the statutory text.”

There will be greater pressure on lawmakers to address qualified immunity in legislation.

Opinion piece about qualified immunity:

Rep. Ayana Pressley on qualified immunity:

~ 1 ~

The SCOTUS declined to hear multiple Second Amendment cases after it avoided addressing New York City’s regulation of guns back in April because the city repeal of the restriction render the case moot.

Justices Thomas and Kavanaugh dissented, wanting to hear a case related to New Jersey’s regulation of concealed carry guns.

~ 0 ~

There’s actually four things today — SCOTUS also declined to hear the Trump administration’s petition regarding California’s SB 54 which prevents the state’s law enforcement resources from being deployed to aid federal immigration enforcement. Alito and Thomas dissented, wanting to take up the matter; surprisingly, Kavanaugh voted with Roberts and Gorsuch to decline.

We are still waiting for a decision on Deferred Action of Childhood Arrivals policy (DACA), which could cost the U.S. as many as 27,000 health care workers at the worst time possible if SCOTUS finds DACA unconstitutional.

This is an open thread.

Illiberal Hollywood: It’s 1984 — Or Is It 1964? Can’t Tell from EEOC’s Inaction

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If you haven’t watched this Bloomberg-produced video yet, you should. The women directors interviewed are highly skilled and have been fighting Hollywood’s not-at-all-liberal misogyny for decades.

And yes, decades — nothing substantive has happened since 1983 when Reagan-appointee Judge Pamela Rymer ruled for two major studio defendants in the Directors Guild of America‘s lawsuits against them for their discriminatory hiring practices. There was an uptick for about one decade after the suit; by 1995, roughly 16% of movies were directed by women.

But since then the numbers have fallen, and neither the DGA nor the federal Equal Employment Opportunity Commission (EEOC) have done anything about it.

We could cut some slack on the first decade, between 1995 and 2005, right? Congress was full of right-wing zealots chasing the president over a blowjob, and the president who followed him was hyper-focused on going to war, pushed by Dick Cheney’s hand up his backside. Their administrations drifted along with them, shaped by their leaders’ attentions.

But a second decade now — over thirty years in all since 1983 — and the EEOC gave the matter no attention at all? It’s not as if the film and television industries aren’t right under the noses of people charged with paying attention. Who can work in government and say they haven’t watched any television or film in thirty years? Hello, West Wing?

Or is that an answer in itself, that the film and television industries are merely acting with government sanction, that it is U.S. government policy to discriminate in entertainment media because it serves national interests? Read more →

Illiberal Hollywood: What’s the Point of a Union if It Doesn’t Represent Members?

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BrokenHollywoodThis year continues to be a big one for women in film. Films featuring women as leads and/or directed by women made beaucoup at the box office. Mad Max: Fury Road, Pitch Perfect 2, Insurgent, and Fifty Shades of Grey are among the top ten films out of more than 284 released so far this year. Two of these films were directed by women; all four featured female leads. And two of these films put to lie once again the bullshit claim that ‘women can’t lead action films.’

The immense popularity of these movies — especially with women — demonstrates how much Hollywood underserves the female audience, in spite of repeated studies revealing how much women contribute to box office results. Women want women’s stories, told by women, and they’ve gotten them too rarely.

You’d think that Hollywood would actively court the single largest demographic by catering to its desires — but no. The film production pipeline remains solidly weighted toward men, still chasing the increasingly distracted 18-25 year-old male demographic.

It’s not as if women aren’t available as actors or directors. The Directors Guild of America (DGA) — the labor organization representing directors — counts among its ranks roughly 1200 female directors, reflecting the parity of female students who’ve been through film school or learned on the job in other production roles.

Which makes one wonder why actor/director/producer George Clooney said in a recent interview, “…there’s something like 15 female directors in a town of directors …”

If a household name like Clooney doesn’t know more female directors, what exactly is it the DGA is doing for its female membership? It’s clearly not representing them within their own organization, let alone to studios and the public.

The ACLU‘s May 12th letter to the federal Equal Employment Opportunity Commission (EEOC) spelled out DGA’s complicity with Hollywood’s exclusion of female directors, when it asked the EEOC to investigate discriminatory practices. DGA has denied the use of short lists, but apart from preparing regular reports on diversity in hiring, it’s not clear at all what the DGA does to further the hiring of women directors. Read more →