Tag Archives: Commentary

It’s Really About Outnumbering

Disclaimer: This piece is not intended as an attack on any religion.  What it tries to point out is how groups try to control and manipulate power.  I’m all for anyone who seeks spiritual awareness in any context.

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There has been a lot of controversy swirling about the new administration’s policies on immigration. And while the words “terrorism” and “extremism” have been thrown about as justifications for issuing unconstitutional, blanket bans on specific target groups, I do not believe this is the real reason behind such actions. And guess what, there has been no dramatic influx of radical terrorists without the unconstitutional ban.

It’s really all about “outnumbering.” Backtracking to an earlier time in this country, we can look at the history of abortion laws. How is this related? Well, it’s like this. Over a hundred years ago abortion was legal in this country and you didn’t need a doctor to perform it. Salons sprouted up offering these services. Two opposition groups developed. One was doctors, they were upset that they were not getting a piece of the pie. The protestants, the second group, were upset because white, middle and upper class, protestant woman were now getting frequent abortions. The original outlawing of abortion had to do with doctors wanting money, under the guise of controlling anything they would deem to be medical, and the fear the protestants had about being outnumbered by the Catholics. The Catholics weren’t as worried, abortion was strongly against their religious tenants and the obedient posed no threat, they were out there being fruitful and multiplying, even where the children could not be fed.

You see, religious leaders longed for the days when religion dominated government. In Republics, like ours, this was eliminated, but the easy solution was to outnumber other religions – control the populous. That way, the majority of elected officials would share your belief system and the laws would be shaped to reflect and enforce that singular religious set of values and morals over any other set. Americans, and their elected officials have, for a few centuries now, been dominated by white, European Christians. This has now changed because of immigration. And in another 30 to 50 years, for the first time in this country, white, European Christians will be in the minority. Not surprisingly, we see an increase in white, nationalist Christians wanting to solidify their powerbase, and the only way to maintain control for the long-term is to limit immigration. And what better way to package and sell this idea than FEAR. After-all, those in power don’t want to admit they are really opposed to other religious beliefs.

I don’t think the real fear is rooted in Islamic Extremism. I think the fear is that Muslims are growing in number world-wide, and growing in populous in the US. And those in control don’t approve of Muslim values and teachings – they are still fighting the battle of proving their God is the best and superior God – instead of actually acquiring any spiritual awareness. Terrorism provides a convenient excuse for other agendas, like “othering” an entire group of people on the basis of race, ethnicity, or religion to purposely discriminate and eliminate if possible. For example, terrorism has been an excuse used by the Russians to invade in the Ukraine and involve itself in Syria. And “fake news,” just like the label of “terrorism,” will now be used to discredit any source in opposition to any agenda being propagated by those in control. Almost all of the terrorism that has occurred in this country has been from home-grown terrorists – good white Christians. They all had their justifications.

People can choose not to act from the basis of fear and make intelligent and lawful choices, but will they? People are easily led by fear-mongering.  A couple of quotes come to mind:

“Our government has kept us in a perpetual state of fear–kept us in a continuous stampede of patriotic fervor-with the cry of grave national emergency. Always there has been some terrible evil at home or some monstrous foreign power that was going to gobble us up if we did not blindly rally behind it …” — General Douglas MacArthur.

“Of course, the people don’t want war…that is understood. But voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.” — Hermann Goering.

Next year, will there be too many Germans, Italians, or Chinese in this country? That’s why our forefathers designed the Constitution the way they did – to prevent all forms of discrimination and one of the primary means for preserving this country’s freedom has been to keep religion separated from politics.

Good luck playing the discrimination game, two generations from now this country will look a lot different than it does now. In another 500 years we may only have one race – what will the racists and bigots discriminate against then – oh yeah, there is still religion : – )

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Photo:  This photo was found on the Internet in the public domain.  I’ve been unable to find any other attribution for its source.

Hello Politics . . .

Well, eventually this topic was going to come up.  It’s hard to avoid, especially with today’s newsfeed continually ticking off the latest Congressional blunders.

The diverse topics that fit into this category can be so emotionally charged that I waited a little while before adding any commentary.  But I think some of the current political issues are worthy of discussion.  I’d just like to keep it civil.  Right now, I don’t see much civility on any side of these issues.

So, let’s start off with a note about the U.S. Constitution.  This amazing, and actually short, document ensures a lot of protections for the citizens.  What some don’t understand is that these protections only apply to the federal or state governments, not to the private sector.  The Constitution is like a contact between the government, and its actors, and the people.   The government cannot unreasonably infringe upon the rights guaranteed in the document.

This is why so many other federal laws exist.  Laws such as the Civil Rights Act, the Voting Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Pregnancy Discrimination Act, the Consolidated Omnibus Reconciliation Act, the Immigration Reform and Control Act, the Equal Pay Act, the Equal Credit Opportunity Act, the Fair Housing Act, the Employee Retirement Income Security Act, the Family Medical Leave Act, the Fair Labor Standards Act, and the Genetic Information Nondiscrimination Act.  These anti-discrimination laws extend to both the public and private sectors.

None of these laws would have been enacted, but for, the private sector having exploited people.  And now some of these laws are turned on their heads and have led to other forms of exploitation.  We can have a little fun talking about that later.

So just this week, the House voted to essentially gut the main provisions of the Americans with Disabilities Act.  I don’t recall that being on any politician’s campaign platform during the election year.  I don’t recall the public demanding such action.  So why are politicians stripping away protections for the citizens to benefit big business?  And why aren’t people paying attention?  Read on to my first post in the politics section of my blog: “The Politics of Division.”

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The Politics of Division

I don’t think anyone would deny that the country is very divided on a number of political issues.  The odd thing is this, I can talk to my liberal friends and my conservative friends, and this “gap” in general viewpoints is really pretty small on most matters.  So, what’s the deal?

For the past several election cycles, both major parties have hit hard on dividing people, usually on ideological social policy issues.   Using the vast power of all forms of media, they have convinced the public that these are huge issues, that the people should be divided over them, and that the point of view held on the issues defines what party you should vote for.  They have even convinced most voters that this handful of issues are more important than going to war or ballooning the deficit to give select portions of the populous, the 1%ers, a huge tax break.

Why?  By polarizing the country on such issues, and by screaming about them, they beat the drums to get their voters, their “believers,” out to the poles to vote for them.  They drive the heard.  And then once elected, if you have noticed, neither party tries to eliminate these issues or solve them politically.  Why?  Because they need them for the next election cycle.

Abortion, gay or transgender rights, and immigration are three primary examples.  Of course, guns are in the mix too.  Looking at abortion for an illustration, under the second Bush administration, there was a four to five-year block (2003-2007) where the Republicans had control of all three branches of government.  Both houses of Congress, the White House, and the U.S. Supreme Court.  Yet, they didn’t outlaw abortion, or even try to, although they claim that as one of their party’s major platforms.  They had the power to do that, but they would not have been able to use this issue in the next election cycle if they made it go away.  The Democrats, equally, play the same game.  Amazing how there is no “solution” for immigration, or was there ever really a problem to begin with?

They manipulate these issues, and the people, to get votes on issues they do not intend to fix.  Once in power, they follow their own agenda, which is usually doing things to help out their biggest campaign contributors and, of course, themselves.

The problem for the politicians that I don’t believe they saw coming, is they were too successful.  They have truly divided the country in ways that now threaten the existence of democracy.

Fear-mongering with false information is a primary tactic used to divide.  Beating the drum of White, European, Christian Nationalism is perhaps the scariest tactic I’ve seen of late.  Things are getting really ugly.  The flaming I see on the Internet is shocking.  We’ve had violence in the streets.  We have threats on the free press.

The government is militarizing the police, not just because criminals are using more advanced weapons, but because they are preparing for civil unrest.  If this purposely generated division spills into too much street violence, beware of Martial Law.

In the background of this purposely orchestrated hatred, the wealthy just received a huge tax cut at the cost of ballooning the deficit by 1.4 trillion dollars – even though 78% of the public opposed it.  Congress also just gutted the Americans With Disabilities Act.  Again, to benefit business interests over people.  It’s rolling back environmental regulations, allowing short-term corporate profits to take precedence over poisoning the planet and the people.  Wow!  You see, the dial hasn’t moved either way on abortion, immigration or guns – the issues people think they are voting on.  Once in office, the politicians ignore the public’s wishes completely and give themselves and corporate America huge payouts.

I could list out more issues in detail and offer data now, but I’ll save that for some individualized posts.  I realize people can have strong views on many issues, but I’d ask people to really stop and analyze situations and contexts, not just issues in isolation.  Examine how those in power might be manipulating.  I never expect complete agreement on such controversies, but I do appreciate civility and intelligent thought and discussion.  I like to have my thinking challenged.  It is even good for all of us to be proven wrong on occasion – just to get our minds to open.

Enlightenment comes in many forms.  Hating or vilifying others because they believe differently is not one of them.  We must learn to think, analyze, converse and compromise.  We can’t let sound bites, buzzwords and incendiary catch phrases divide and conquer.  The nation is stronger united.

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The Objective Reasonable Person

Justice Antonin Scalia, noted for his scathing dissents, once opined, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

While I did not often agree with Scalia, and didn’t in that particular opinion, the “fortune cookie” analogy is not always far off the mark considering the wishy-washy standards applied by judicial decision makers. Yes, “The fortune you seek is in another cookie.”

In the law, one will invariably encounter standards that judges or juries are required to apply in order to reach “just” decisions. There are basic standards for applying the law to the facts of the case in the trial courts and then standards of review applied in the appellate courts when examining what happened in those trial courts. But there are so, so, many gray areas in the law that don’t conform themselves to a nice A + B = C result that require a judgment call. An educated guess, perhaps. Or sometimes little more than a blind stab in the dark in hopes of hitting some target, but a fair and proper target, right? (That’s a rhetorical “right?’)

Then again, there is also that phenomenon known as outcome bias, where decisionmakers decide and then conform the evidence to fit their decision – sounds a tad bit unfair or “unreasonable.” And yet, the concept of “reasonableness” is said to be the mainstay of our law and many of these legal standards incorporate that very word yielding such terms as the “reasonable person,” “reasonable-speaker,” reasonable-listener,” “reasonable aid,” “reasonable effort,” “reasonable anticipation,” “reasonable care,” and “reasonable doubt.” And conduct is deemed “reasonable” if it is “consistent with that of the prudent person in like circumstances.” But with that standard, we not only have to debate what is “reasonable,” we now have to debate what is “prudent,” or what would be “reasonably prudent?”

Such standards are supposed to accommodate all circumstances and uniformly fix any legal ailment, whether it is determining if someone reasonably thought their life was threatened to have exercised self-defense, or what constitutes extraordinary and unusual stress to a “reasonable highway worker” to be compensable under workers’ compensation. All similar puzzles should be solved the same way. What is equitable for one is equitable for all similarly situated. The law should be the same for everyone.

Standards supposedly allow stability and predictability for potential litigants so they can evaluate whether any potential legal controversy is a worthwhile endeavor. Will it result in the desired outcome or be a frivolous, and expensive, chase through the scared halls of justice? Or in criminal law, uniform application of the standards resulting in uniform penalties not only serve to treat everyone that is prosecuted equally, but the predictability of the outcome supposedly serves as a deterrent to criminal behavior. Nice to have a good idea of the result of your conduct ahead of time. You would hope that your attorney could accurately advise you of such, instead of finding yourself engaged in a giant crapshoot. And since we’re into definitions, “crapshoot” = “a risky and uncertain venture.”

Yet ask anyone, yes absolutely anyone, except perhaps a judge, and I think they will tell you that the law is not equal for everyone. It favors the rich over the poor, the majority over the minority, non-sentient corporations over living, breathing individuals, and people over all other life forms. And criminal legal procedure favors the prosecution over the defendant. You have to be a pretty lousy prosecutor to lose a case, especially since you get to pick which cases you’ll prosecute to begin with.

And these multitudinous standards are magically said to be “objective.” But how is that really possible, and just what do these terms really mean? Could the so-called reasonableness standards be just archaic, mythical devices entrenched by thousands of legal precedents? “Legal fictions,” if you will, to achieve and support virtually any decision a jury, a judge or panel of judges makes, “reasonable” or not? Reasonable in whose eyes? Your eyes? Mine? Reasonable is such a weasel-word.

A “legal fiction,” by-the-way, is defined as: “Believing or assuming something not true is true. Used in judicial reasoning for avoiding issues where a new situation comes up against the law, changing how the law is applied, but not changing the text of the law.” The “reasonable person” has been said to be a “hypothetical,” as opposed to a “fiction,” but then who gets to define the hypothetical reasonable person? It seems more to me to be a phantom assumed to actually exist.

Quoting court decisions and Black’s Law Dictionary, reasonable is said to be: “Just; proper. Ordinary or usual. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason; not immoderate or excessive, being synonymous with rational; honest; equitable; fair; suitable; moderate; tolerable.”

Wow, seems to be a wide berth between “equitable” and “tolerable,” and “appropriate to the end in view” sounds like a forced contrivance, whose view? But hey, that’s just me talking. And it is duly noted that the architects of these standards ordain that a “reasonable person” “is one who gives due regard to the presumption that judges act with honesty and integrity and will not undertake to preside in a trial in which they cannot be impartial.” Humm, so those writing the rules get to declare they are objective and impartial and demand we agree, otherwise we are unreasonable.

In addition to rambling through the gray pastures of the dictionary, stringing chains of circular non-speak together, i.e., “reasonable means governed by reason,” which means nothing at all, courts tack on that great adjective, “objective.” Reasonableness standards are supposedly objective. And my favorite definition of “objective,” and the one I believe to be the most accurate is “having reality independent of the mind.” This, of course, means not subject to personal biases or as Merriam-Webster states: “expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations.” But MW added that subjective word “perceived” spinning us down another corridor of deception, because even our minds can lie to us about what we are perceiving, or form it into the shape we desire.

Black’s Law Dictionary would say that an objective standard is a “legal standard that is based on conduct and perceptions external to a particular person,” as opposed to a subjective standard “that is peculiar to a particular person and based on the person’s individual views and experiences.” Really? Our programming starts the day of our birth, and we are constantly told how the world is, what it is we are perceiving, what to like and what to hate, what is legitimate and what is unauthentic, how one should feel or not feel, when to have empathy and when to ignore the needs or suffering of others. Our minds are filled with innumerable prejudices that become so inherently ingrained that we no longer see them as being biases.

Yet, the legal system would have us believe that all of this social programming has absolutely no effect on how a case will be judged, how a verdict or judgment might be reached, or what the assessment of remedies or penalties will be, by people magically commanded to be objective and set aside all of their life experiences when deciding the outcome of your legal entanglement. Yes, the legal system, created by humans and all of their prejudices, supposedly being the bastion of objectivity with those sitting in judgment possessing that detached, dispassionate, external “God’s eye view” or “view from nowhere,” transcending any subjective interference as Plato might pontificate, will dole out justice equally on the basis of reasonability. And basically, that’s Bullshit, with a capital B. If it wasn’t Bullshit, there would no market for attorneys that are taught how to strategize and manipulate, how to argue, how to spin, and how to select venues, judges, and jurors based upon their very subjective prejudices. Wordsmithing is a skill taught to attorneys so they may shape outcomes, not based upon what’s “reasonable,” but based upon what favors their client’s preferred outcome, the client’s subjective view of justice.

The existentialists would certainly have a great laugh over this concept of objectivity. For there really is no way for a human to exist other than through their subjective and continuing contact and experience with the world. Thoughts do not exist independently of circumstances and context. But you don’t have to be an existentialist to see how the legal system essentially pits the subjective, particular views of those sitting in judgment against the subjective, particular views of those being adjudicated – hypothetical reasonableness notwithstanding.

I would be remiss if I did not mention another favorite legal standard, the abuse of discretion standard. This standard is employed by an appellate court examining if the trial court abused its considerable discretion with a ruling on a particular controversy like the admission or exclusion of evidence. An abuse of discretion by the trial court “occurs when a trial court’s ruling is clearly against the logic of the circumstances and is sufficiently arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” That’s a mouthful. And, “If reasonable minds can differ about the propriety of the trial court’s ruling, there was no abuse of discretion.” “Reasonable minds?”

So how does this play out if several judges in an appellate court panel decide there was an abuse of discretion, and the remainder decide there was not. Well, if the judges all agree, the standard works. If the majority of the panel, the most judges, decide there was no abuse of discretion, then the standard works. But if the majority of the judges decide there was an abuse of discretion, and a minority decide there was not, the standard fails because “reasonable minds,” and surely the judges have “reasonable minds,” have, in fact, differed and there can be no abuse of discretion. Yet the appellate court decision that there was an abuse of discretion stands, so “reasonable minds differing” creates an absurd result that ignores the court’s own standard. That might seem unreasonable.

Irregardless of my pontifications, for all of these reasonableness standards, how many court decisions, in your own view, just seem to defy “reason” and exhibit great bias? Good luck if you find yourself in that objective reasonable crapshoot called a court of law, for “Person who eats fortune cookie gets lousy dessert.”

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Photo: I found the scales on the Internet n the public domain and could find no other attribution.  I added the text – a favorite quote I came across in a case while studying property law in law school.