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Messages - Seriati

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General Comments / Re: Hamilton
« on: Today at 03:56:58 PM »
It's funny the way you guys are talking about Hamilton, considering there's a cancel culture movement to have it removed from Disney.  All or nothing on everything.
It's funny that you think that everybody who doesn't agree with you disagrees with you about everything.

Interesting.  I didn't mean to imply that I was talking about you or any of the posters here in that way.  I was talking about those pushing the cancel Hamilton meme, they're all or nothing on everything.  Either it's perfect and agrees with them completely, or it's completely flawed and must be cancelled.  I just thought it was interesting that the way you were talking about it seemed unaware that there was in fact an active cancel culture (from the left) trying to force it back off Disney because it fails to criticize Hamilton's ownership of slaves.

There is no forgiveness in cancel culture (well unless say you're the governor of Virginia and a Democrat).

I certainly don't think that anybody disagrees with me about everything.  In fact, I suspect that most people agree with me about a great deal of things.  We have much more in common than the media wants you to believe.

The idea of cancelling people is very dangerous.

I agree, thus my posts to that point, that destroying someone's ability to work and make a living over a political disagreement is vile.

Sure, maybe it feels good when you see that deserving person punished publicly, and their life is ruined because maybe they had a bad day (or maybe they really are a racist/stupid/evil person).

If that makes you feel good, there's something wrong with you.  Bringing a person to justice, requires justice.  We have courts and due process for a reason.  This current trend of destroying people for lack of sufficient political orthodoxy really is anti-American.  It's against everything this country was founded on.

We just had a local crime that involved a hit and run death with a white driver and a minority victim.  The police found, arrested and charged the driver within 4 days and people are mad that they haven't charged the driver with murder, but rather with the legal charges that actually apply.  People are planning to protest to try and force a charge that doesn't apply, and would go bananas if the jury or the court didn't convict on a charge that doesn't apply. 

There's something very wrong with that.  I mean that's literally mob justice, it's literally the same level of "justice" that applied in lynchings, and because it's going the "correct" woke direction its somehow okay?

But the net effect is a chill on the ability to disagree publicly.  Disagreement is the lubricant of democratic society.  Insomuch as this unfettered urge to cancel those who are not sufficiently in agreement with your group leads to a fear to debate publicly, it's a really bad thing.

Is it though, do you really believe it or are you just saying a platitude?  Your side is "winning" the repression war, are you not currently enjoying those benefits?   How committed are you - really - to overturning the apple cart of pressure and defending the right to have different ideas?

As an aside, "criticism" is not "cancelling".  How those ideas became synonymous in some people's minds is weird - and backwards.

There is a cancel meme for Hamilton.  There is also legitimate criticism of Hamilton.


Have you seen the play or the movie?

Not yet, we could never get the tickets at a time and price point that we could make work.  We're definitely planning to watch it together as a family and everyone's really excited about it.

You'd think it would be easy to find time in a quarantine, but I've been working more hours (even after eliminating a 4 hour round trip daily commute) in the last 6 months than any other period in my career.

General Comments / Re: Hamilton
« on: July 08, 2020, 04:00:39 PM »
It's funny the way you guys are talking about Hamilton, considering there's a cancel culture movement to have it removed from Disney.  All or nothing on everything.

I shortened your name from Kasandra to Kas (first time ever), and you drop the D from DonaldD while complaining about it?

I agree I can make an argument.  I think you can't.  You're not changing minds with the endless dodging.

Kas, rather I'm taking the opportunity to demonstrate that you and DonaldD are seemingly not capable of making the arguments you advocate.  Come on, surely it can't be that hard to demonstrate that you thought before you posted?

Here's a challenge - prove yourself not to be blindly partisan and show us a bunch of examples where Republicans were unwilling to make compromises.

Lol, answer a challenge with a challenge?  Admitting you can't answer the call?

No, I get it - you cannot distinguish between racism and policies meant to address the effects of racism, like affirmative action policies.  In fact, my guess is that you feel that affirmative action policies are by definition, not just in practice, racism.

Why don't you try to define the operation of an affirmative action policy that doesn't mention race.  That's literally the reasoning we just saw in the Supreme Court's decision on discrimination based on sex covering discrimination based on sexual preference and transgender status.

In fact, pre-schoolers are taught that two wrongs don't make a right, it takes very sophisticated thinking to understand how punishing people who are not directly responsible for something makes it better. 

But the fact is, we allowed affirmative action over the years to correct racism.  The arguments for it are there and known, make the case that we should allow more affirmative action, why and how it's implemented and what specific issues you see it as necessary to correct.  I doubt you even can.  You keep it vague and imply that disagreement is just unelightened racism.  I can distinguish between the two concepts, but I'm willing bet you actual describe racism when you try to explain affirmative action and why we need it.

So you can you show where the left is willing to make compromises and the right is turning them down?  Maybe how we urgently need police reform but the Dems filibustered the Senate bill so that only their own bill (in the House) would be up for discussion?

I know you mean well Fen, but some of the things you write make me shudder.

I don't recommend "rising above it."  You should reject it.  AI is perfectly capable of making an argument based on principal, but the current world is not requiring him to do so.  You should reject definitional games, here especially, but also in life, which is much harder, and make him explain his preferred policies and address the concerns.

Well, the thing of it is that some things in life do need updating, and many terms previously were insufficiently specific or relevant.

Needing to "update" is not the same thing as recasting a clear meaning as something different.  Social scientists used to try to create new words that explained their point, but the points were often so ridiculous that people rejected the words and the ideas.  We get a "backlash" against "politically correct," for example.  They gave up on that idea.

Instead they grabbed the idea of re-envisioning words that are incredibly loaded as describing everyday run of the mill concepts and pushing their ideas through that model.  This also coincides with their goal of moving language to match the laws already written.  They can't change the law - cause they can't win the political fight that it would take, but if they change the language they automatically change the law based on that language.  It's been an overt goal for a while.

Justice is blind.  The fact that we've failed to achieve perfect justice is a result of too much consideration of things like race, not too little consideration of things like race.  It will never result in an increase of justice to increase the amount of race we use in determining outcomes for the same conduct.

To me there is an inevitable conflict between being stuck in your ways and between change just for the sake of change.

That's a fiction.  The "conflict" is not with change for the sake of change.  It's with targeted change for very specific purposes.  The purpose of making impossible to have opposing views - if any position opposed to the one true position is "racist" (no matter what it is) and racism is evil, by definition anyone opposing the enlightened is in fact an evil racist that can be discounted.

The purpose of eliminating the ability to think through an argument.
The purpose of encoding political positions into the default moral positions.

The purpose of changing specific concepts in specific ways with highly predictable legal consequences.

The purpose of encoding political positions into law without ever getting a majority agreement.

It's fundamentally anti-democratic to seek not to persuade people but to eliminate their ability to even raise a contrary voice.

You do need to allow for updates, and for rethinking concepts, but of course the pathological version of this is pushing for changes that are either partisan or else self-serving. But blocking all change just on principle throws the baby with the bathwater.

Except none of that requires the methods they are using.  When methods don't match stated benefits it means the true goals are not what they say.

This is the fact, already a reality in Canada, that makes the "I don't use the far-left definition" a sticking your head in the ground kind of answer. It doesn't ever stop at being just a theoretical disagreement if you let things go too far, and in the U.S., which is uniquely obsessed with defeating those who disagree, a pathological direction is virtually guaranteed. That fact alone is not the fault of the left, but of those who perpetuate and encourage a system of division.

Those who do this are the left.  It's their only political operation.  They have reasoned arguments, they have empassioned ones.

Find where they actually listen to the other side and make compromises (you can't).

Step one, unless you think they are indeed racists who are trying to make sure that racism goes unchecked.  You can't have it both ways by accusing Democrats of wanting too many protections for disadvantaged segments of the population and wanting to get rid of protections.
I'm pretty sure none of your interlocutors actually believe that removing this clause is racist, but they do believe that, because of the specific way they misunderstand "leftist" definitions of racism, simply removing that clause must be racist on the part of Democrats because of what they think Democrats believe.

It's flat out racist.  He's literally advocating that a provision that bars the government from discriminating on racist be removed so that it will be easier to discriminate based on race.

Just because he believes that he's serving a good interest doesn't make it okay.

Again, for the talk about privilege and needing to listen, as soon as you hear something that you find uncomfortable the listening ends and you immediately try to recast it as fake or somehow disingenuous.  The idea that discriminating based on race is good and not racist act is a lie.  It's a twisting of linguistics worthy of being included in 1984.

It depends who you're talking to. I think some of the people here are confused about the logic of why certain things are called racist in groups like BLM. They may not be confused about the term as they grew up with it, but actually I don't believe that either. The groupthink coming from even small groups cannot help but permeate into the general consciousness and create a doublethink (i.e. contradictory things accepted at the same time), even if one doesn't notice it's happened. This is just a reality and is in a sense inevitable as soon as language games or updates are happening. You literally cannot avoid the confusion, so 'rising above it' is not exactly an option unless you're a hermit.

I don't recommend "rising above it."  You should reject it.  AI is perfectly capable of making an argument based on principal, but the current world is not requiring him to do so.  You should reject definitional games, here especially, but also in life, which is much harder, and make him explain his preferred policies and address the concerns.

Make AI explain how permitting the government to discriminate on the basis of race - a characteristic that the Supreme Court has already said requires strict scrutiny to apply because it is virtually never a valid basis for government power to be applied - will help reduce racism in our government.  It won't.  It will increase it.

Regarding whether the 'game is already over', I believe the game is already over in the sense that you can't 'stop' people messing with thinking like this. You can oppose, or just roll with it, but there is no 'conclusion' to the upending of meanings of things, of finality to a group's mutual agreement when some parts of the group are seeking to perpetually undermine other parts of it.

The "game" is over, because we've had 3 generations of education controlled by ever more radical leftist ideology.  As of now, virtually all means of communication are controlled by the radical left.  They have a massive control over the media, they control virtually all government bureaucracies,  they control enough of the courts, all of big tech and an increasingly significant number of the country's prosecutors.  They literally control the power to criminalize political thoughts and actions with which they disagree.

Looting and riots become "peaceful protests," homeowners defending themselves from violent mobs become "criminal harrassers oppressing free speech rights," people engaged in open insurrection that leads to multiple gun short deaths with open government facilitation are "peaceful protestors with important issues that aren't responsible for a few bad apples (who are probably secret racist agitators)."  Someone posts about it on Twitter?  Nope, banned or worse their posts are not pushed or pulled to those that have asked to receive them without any notice.

I didn't realize when the left said we've moved into a post truth world with the election of Trump, that they were not talking about Trump but rather themselves.  They lie with impunity, they repeatedly lie in the same ways over and over and over and not only never get called to account they have an army of useful idiots that rebroadcast and internalize their lies.  Meanwhile they wield the power to totally destroy people for just voicing disagreement, in violation of every principal upon which this country was founded.  They believe they have the right to oppress speach, religion, gun ownership, freedom of travel, freedom of association, the right to privacy (other than for abortions), all because they disagree with the person who is asserting those rights.

It's too late.  There are not enough people left who can think to correct this mess, and far too many that are actively pushing it.

- is not some accepted thing; or if it was then it isn't any more. Some people define injustice as unequal opportunity, others as unequal outcome. These are mutually exclusive definitions, and it cannot be assumed that there is a standard understood meaning to these terms. Likewise, even your definition of consequentialism cannot be understood to be clear, because even the notion of getting desired results gets muddied if the results desired are based not on empirical data but on deontological notions.

Just to be clear.  There's no definitional confusion.  Both sides know exactly what the words were intended to mean.  The left just plays a game of redefinition to allow them to argue for new meaning to the written word.

If you accept that there is confusion the game is already over.

The two positions cannot be easily reconciled, to say the least.

Are you saying that it is racist to repeal an ineffectual law that was intended to thwart racist practices?

It is racist to repeal a law that prohibits discrimination based on race.  So advocating for that repeal is inherently racist.

As to your false premises.  This constitutional amendment was effective, or you would not need to repeal it.  It did thwart overtly racist practices, and since you want to implement racist practices you need to repeal it.

Are you saying that you can't argue a proposition in good faith but can only redefine it to pretend you are a good guy when you're really advocating straight up racist action by a government?

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 17, 2020, 02:10:07 PM »
I may have read you incorrectly in that passage.  It appeared on first read that you were arguing that your examples were examples of textualism, when in fact I think you meant them of examples of what is not-textualism.  If that's the case I apologize.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 17, 2020, 01:52:52 PM »
I'm trying to read up on all these terms, and I still don't get how you argue that's "textualism" instead of it's opposed theory "originalism".

Textualism and originalism are not opposed theories.  The latter is a theory of Constitutional interpretation that effectively says the meaning of the Constitution does not change in broad sweeping ways to adapt to the current views of society, rather it means what it meant when the founders drafted.  It's not quite the literalist school that Kasandra asserts, but it's closer than many find comfortable.  It's rooted in the fundamental thought that changes to the Constitution have to occur through Amendments not judicial whimsy.  Generally speaking, it also defers a lot of authority to the States and their governments to fill in the gaps (and historically they have).

Textualism is a school of statutory interpretation and fundamentally it's rooted in the idea that the words Congress uses are the definitive expression of their intent on the manner.  Literally it originated in response to opinions that primarily turned on legislative history, such as transcripts from a single session of a House committee, or even quotes from the sponsor of a bill as to what it meant.  It rejected those kinds of inputs as legitimate sources for the opinions of the 535 members of Congress and the President.  That led to basic rules about how to interpret the meaning of the words used.  They reject strict constructionalism or plain meaning both of which avoid the principal that the words should be interpreted based on their common meaning at the time.

A common example, was a statute that regulated something like motor vehicles - which later could have included things like airplanes.  Textualists interpreted it to mean only regulate ground transport as the term motor vehicles would have been understood at the time it was passed (however, unlike Kasandra implies, it would regulate any ground vehicle, including a hovercraft that couldn't have been conceived of at the time).  Both strict construction and plain meaning would likely have reach a contrary result.  It also meant that textualists rejected the idea that water could be regulated pursuant to a statute that gave the power to regulate chemicals, notwithstanding that water is literally a chemical it's not the common meaning and understanding of how that term was used in context.

Here's the definitions I google:
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law

It helps though if you don't stop with a summation of a philosophy without describing other key concepts: 

"We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."

That's the general root of why they look to the time period in question.  Again, at it's very core textualism rejects the idea that judges have a right to change the meaning of a statute by redefining or reassessing the words used against a more modern understanding of what they could have meant or have come to mean.

In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.

You could argue that Originalism is a specific use case of textualism.  The Constitution was passed one time, by one group, the words they used therefore, are properly interpreted by what they meant at the time.  But I think you can find distinctions where the two philosophies would lead to dissimilar results. 

Any time you guys talk about what the legislators originally meant, or even care at all about the date that the law was passed -- that's originalism as far as I can google up. If you don't care about when the law was passed, only about the text of the law as it currently stands -- that's textualism, again as far as I can google up.

I hope its clearer now.  But the simplest distinction to understand is that originalism is a CONSTITUTIONAL interpretation philosophy and textualism is a STATUTORY interpretation.

Textualism is absolutely defined by an adherence to what the common meaning of the words used in the statute at the time it was passed.  And they expressly reject the idea of defining each word independently and putting it together (which is what Gorsuch did) to get a desired result.  Look at the examples in the Wiki.  "Foreign object" in your eye, does not cause people to believe that the splinter in your eye was from a foreign country, even though you could construct that meaning by using the common definitions of each word and putting them together.

You people sayin that textualism is about the original intent of the legislators or the meaning of the law as originally understood -- then I have to ask, what the heck would "originalism" be then?

Textualism is a rejection of an inquiry into what the "original intent" of the legislators was.  Or rather the only evidence it accepts about their intent is the words they chose to include in the statute.  Most of what I described above, about avoiding compiling definitions that ignore the context of the phrase is expressly a correllary of NOT trying to create a new intent for the statute as passed.  Judges are very clever when they want to manipulate language.

In any event, I hope its clearer. 

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 17, 2020, 01:15:42 PM »
Are you sure there's a limitation on old case rulings being overturned? I've heard of many instances where people behind bars for 25 years have had a new DNA test done and been released immediately when it was determined that their guilty verdict was bogus. Granted that's criminal and not civil.

There's no statute of limitation for proving you didn't commit a crime.  There are statute of limitations limiting when the state can charge you with a crime, though murder often doesn't have a statute of limitations.  Most civil actions have fairly short limitations on bringing the case.  Appeals have their own time requirements.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 17, 2020, 01:12:49 PM »
I see. So textualism means interpreting old law based on new understanding of words, as opposed to the intent of the legislators?

No, it means the opposite and assumes a common understanding of the words in context.  If intent - meaning what they were thinking, but not what they included - then no religion that the Founders weren't already familiar with and had in mind would be included.  But that intent might have been in the minds of some of the Founders, but not others, for instance if one or more of them was thinking of Paganism, Hinduism or any of a host of animist beliefs.  If the Founders intent mattered, any judicial matters made based on scientific discoveries made since 1789 would be have to be judged in terms of whether the Founders had thought about them.

Actually no, that's a warped description of originalism (with an overlay of strict constructionism), which are other judicial philosophies (though strict constructionism is a rare philosophy and not well regarded even by conservative justices).  Take a look at the Wiki for Textualism it explains it what it is and how it differs from those philosophies with a fair bit of accuracy.  In particular, you may also want to read up on those two philosophies so that you can distinguish them going forward. 

There's no part of textualism that limits concepts to what the Founders had in mind.  Originalism does incorporate part of that concept for interpretation of the Constitution.  But even in interpreting the Constitution (which doesn't apply in this decision), advocates are not the literalists you are describing.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 16, 2020, 01:03:16 PM »
Ok, so putting aside the definition of textualism for the moment, if the SC is *not* outright updating the law (officially) that means they are claiming this was always the law had to be interpreted, correct?

Don't mistake reality.  They updated the law, there's zero question of that.  The mechanic they used to do it is to claim that it never could have been read any other way, and even in 1965 that's what it meant.  It's contra-factual.  But yes, they are claiming that is is always how the law worked.

Does that not imply that all previous trials where an alternate meaning was used by the judge are retroactively a misreading of the law, and does that entitle any losers of past cases to have the cases re-opened since the rulings were contrary to the law at the time?

Well they largely also claimed that this is limited to Title VII, and dismissed with a handwaive the identical language in something like 45 other statutes (Alito including a list of citations in his appendix).  They did a handwaive that this doesn't resolve the bathroom issue, for example, which is "separate issue".  But that's a bizarre opinion.  If there's no other way to read the phrase, then it has to read the same way everywhere else it appears.

Previous cases may have appeal rights, depends on the case.  Certainly you can expect thousands, if not hundreds of thousands of new filings to relitigate this issue across the entire legal system.

While activists might think that's great, I don't see it as remotely preferrable to a legislative solution.  I mean in the case of women's sports, both sides have a morally right argument.  Trans athletes want their identity respected, and for the same reasons that we passed a law to protect women's access to sport that prevents men from competing against them natural born women will be permanently disadvantaged if trans-athletes can compete.  The SC's opinion goes beyond what was there before, arguably allowing gender fluid athletes to flip back and forth between gendered competitions based upon their changing identity preferences.  Congress could have reached a balanced approach (or not) that at least tried to resolve that conflict, the Court's blunt hammer not so much.  Women lose on this issue because transwomen are more protected by a protection from discrimination based on "sex" than women are notwithstanding the "sex" protection was explicitly passed to protect women. 

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 16, 2020, 11:29:43 AM »
Actually a purely textual reading does lead to this result - See Gorsuch's opinion for the majority. Kavanaugh was legislating from the bench.  ::)

I find it frustrating when people that don't understand something pretend they do.  The essence of textualism, which can find in direct quotes from Scalia, is the interpretation of the words in the statute in the context in which they were passed and the meaning they had to reasonable people at that time.  It's a principal that is rooted on predictability of the law, stability of the law and the very Constitutional idea that Congress changes laws, not the courts.

Gorsuch is often a textualist, but here his opinion is only in the form of textualism.  It's actually literalist.  He expressly pulls individual words in the phrase out (textualism always requires you consider the whole phrase, or even the whole sentence), to put them together in a way that generates a result.

If you want to see that in real action, you can look at Alito's dissent (and the dozens of pages of attachments), where he goes into detail about the real time dictionary definitions (circa 1965).

Seriously, Gorsuch and Kagan are both proponents of textualism, one a conservative, the other a liberal - that doesn't mean that there is never ambiguity in the textual analysis.  Heck, all the SC judges are textualists today.  It's just lazy ascribing nefarious motives or thought to a judgment just because one doesn't agree with it.

I reject your lazy thoughts.  I agree with the result.  That doesn't change that the opinion is poorly reasoned and the consequences of that will be far reaching.

I don't know any of this legal wizardry, but it seems to me pretty common sense that declaring the current law to say that firing someone for sexual or gender orientation to be illegal, means it always was. If it wasn't always then it means the law is changing now, which is a legislative prerogative.

The essence of textualism is a rejection of the concept of "updating" the law to fit current social mores into existing language that never meant what one would like it to mean now.  Prior to the rise of textualism, the court routinely interpreted laws to mean things that were even contrary to the plain meaning of the words, using things like legislative history to "guess" at what the legislators were really trying to do rather than relying on what they did.  It was just an "amazing coincidence" that what the legislators were "really trying to do" was often the exact same thing the Justices wanted to do with the case.

This opinion is 100% about "updating" the law to match current mores.  The history on this leads to no other conclusion based on all the times its been considered and never come out this way, and at the time far from intended to protect homosexuality in employment people were still arresting people and subjecting them to mental health "care" for being homosexual.  Updating laws is the diametric opposite of textualism.

But if it *was* always the law then it means that those who drafted the law intended that, no? Or is the idea that the lawmakers unintentionally made this into law by using terminology that would change over time in meaning?

You should read the opinion.  The conclusion was that the language could never have been read any other way (despite the fact that it was literally read the other way by everyone, including 10 circuit courts, Congress, administrative agencies, the general population, and 19 SC Justices who never once held discrimination based on sexual orientation to the same standard as discrimination based on sex).

Thematically, the inescapable conclusion is that being anti-homosexuality is nothing but sexism.  The objection of the person that is anti-gay is according to the court a reflection of nothing more than an intent to discriminate based on gender.  If you interpret it otherwise the opinion's logic falls apart.  Notwithstanding that we have decades of laws and jursiprudence that treat it separately, that consider discrimination based on sexual orientation to me unique and distinct from discrimination based on sex.

Let's say that you have a law in favour of freedom of religion, and everyone is allowed to practice their religion freely. But the original legislators didn't consider Satanism to be a legitimate religion, and would have been horrified with the idea that their law allows even Satanism to be practiced freely. But let's say modern people on the other hand do consider Satanism just another religion.

That is textualism.  Much like the 1965 Act was already interpreted to protect a man from sexual harrasment by other men.  It's an inescapable consequence of the choice of words used.  If the act said it was illegal to discriminate against women, a different result happens, but the act said it was it was illegal to discriminate based on sex, which of necessity applies to both genders.

Now, if instead of Satanism, you were to include "lack of religion" you might be starting to cross the line.  But this case is more akin to saying that protection from discrimination against religion is really about belief, so if you passionately believe in the moral imperative of being a Union soldier in Civil War reenactments you would be protected from discrimination by your employer under the act and they would be required to reasonably facilitate your beliefs and observances.

Should the courts wait for a law that explicitly declares that Satanism is also included in "All religions"? Or should the courts accept that modern understanding of 'religion' has changed and Satanism is also included, even though that wasn't the original intent of the legislators?

Religion didn't change.  In 1965 the court recognized conscientious objectors, whose belief was not required to be tied to a belief in a god.  Here's what they said:  "[w]hether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is ‘in relation to a Supreme Being’ and the other is not."

Of course, that's why analogies are tough to use.  Too much extraneous baggage.

It's like saying "All people have the right to a fair and speedy trial", and having the law specify explicitly that yes, this includes women, Jews and Indians. Isn't the modern understanding that women, Jews and Indians are also included in "All people", even though perhaps once they weren't?

All again, textualism would point out that even at the time "all people" had a general meaning easily understood that in fact included all people.    Your arguments really don't come close to addressing what you seem to think they do.

But to give you the counter example of what textualism was fighting against.  The living Constitution crowd may look at that same passage, and decide that it only protects the right of a speedy trial to those people who are politically correct.  They'd look at it and say that those with racist views are inherently sub-human, for example, and non-humans can't be all people and therefore racists are not entitled to a speedy trial.  However, they may love dogs, cats and other pets and desire that such animals be granted a hearing prior to being put to sleep, so they not withstanding their lack of "human-ness," are defined to be people based on their compassion and loyalty.  There's no requirement for consistency, the language always bends to give the result the judge thinks is "right."  And when you come to that passage and try to live your life according to it, you'd need a great lawyer to even begin to explain to you the arcana that surrounds all the caveats and exceptions.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 08:59:25 PM »
Actually no.  A purely textualist reading does not lead to this result - see Kavanaugh's dissent for a textualist reading.  This was a purely literalist reading (which, to my knowledge, no legal practioners other than certain amubulance chasers have ever endorsed). 

The SC interpretation literally violates nearly every principal of statutory construction and does quite literally call into question the stability of the rule of law.  But hey, everyone that read an opinion column is a lawyer these days.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 08:47:10 PM »
That's going to be a "fun" one to watch get tested in the courts. Title VII is statute. The 1st Amendment is part of the Constitution. When statute is in conflict with the Constitution, the Constitution wins. So where Title VII meets up with religious organizations, the protections aren't likely to be as absolute.

As Alito helpfully pointed out, some 45 different statutes refer to discrimination based on sex.  So this is going to go far beyond Title VII.  Kavanaugh's dissent pointed out that even though those 45 laws refer to sex there is a large number of other laws that independently refer to discrimination based on sexual orientation (which per the SC's reasoning is unnecessary).  K also pointed out that of the 30 federal judges that directly considered this question all 30 ruled the other way, and it wasn't until 2017 that any contrary circuit court opinion emerged (previously 10 circuits rules the other way).  He also noted that 19 Supreme Court Justices (including many on the SC today) have decided cases based on sexual orientation, without even once flagging that they should apply heightened scrutiny to the decision (which is what applies in cases of sex discrimination).  Effectively decades of SC precedent decided on erroneous basis (this wouldn't necessarily change the result, but it certainly created an entire body of precedent and law that is effectively completely useless as precedent). 

How did 19 SC justices miss what this court says is the only possible interpretation?  How did the 30 judges?  Why has every Congress since 1975 introduced a proposed amendment to add sexual orientation (some have even had one house or the other pass such amendments, including 3 times in the last 5 years)?

I get liking the result, but this is NOTHING but a result orientated decision that constitutes judicial law making.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 07:33:02 PM »
I don't know how you could even determine that someone is homosexual without using their gender as a part of the equation. I am most definitely not knowledgeable enough to determine if that is part of the ruling, and I choose not to read enough to weigh in on the basis of their decision.

The court posited you could ask it on the employment form, and have a third party strip gender identifiers from the form.  A strained hypothetical I grant.  They then explained, that the person reading the question, if they didn't know what homosexuality was, couldn't define the term without understanding gender therefore it was sex discrimination.   And I'm not kidding about how that played out.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 07:31:02 PM »
I think TheDeamon, this actually is another strong signal that the SC can be intimidated.  The decision is nonsensical.  It literally does things, like assuming that "sex" is defined solely to have a gender based meaning, and then determines that it's inescapable that discrimination against homosexuality and transgenderism is prohibited by the word "sex".  The logic is effectively, that if you wouldn't discriminate against a man that likes women, it is solely the gender of the woman that women that you are discriminating on.  The dissent points out that if you include all four cases, you end up with firing decisions based on sexual orientation without regard to sex.

May I ask how interracial marriages would work based on your interpretation? According to your own interpretation of the law, are you allowed to fire someone for being in an interracial relationship, or for not being in one?

It's certainly a fair criticism, and it's one of the places that the dissent's explanation was particularly weak.  I think that's largely because the SC's decision on cross race marriages was not based on logic either, but rather based on the inescapable fact that opposition to cross race marriages was fundamentally rooted in racism and therefore inherently a discrimination based on race.  Logically, one could have argued very similarly that an employer that hired both black and white employees but not any employee of either race who was involved in a cross race marriage was not discriminating based on race.

Again, though I think the fact that the only opposition one could have to cross race marriages is racism is what decided that issue.  While there's an easy parallel to marriage in the race context and the homosexuality context (not so much the transgendered context), it falls apart when you try to connect that to sexism (which would be the relevant characteristic).  The closest you can get is to some idea of violating "gender expectations" (but that's already protected conduct) and it's hard to see how it would even apply in all cases of homosexual relationships and not in heterosexual ones.  Effectively, there's no tie to a secret sexism involved, which puts it in a different category than the unstated tie to racism.

But I agree, that's one of the weakest points for the argument. 

If one's allowed to fire someone because of the gender of the person they're attracted to, why wouldn't you be able to fire them for the race of the person they're attracted to?

Well again, as noted above, because the later is inherently racist and the former isn't sexist.

To be clear though, I don't think you should be able to fire someone in either case.  Congress should have fixed this long since.  My objection is not to "fixing" this its to unelected Justices pronouncing their rules with the force of law in violation of the Constitution. 

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 07:22:04 PM »
Is that what they 'literally' said, did the judges actually base their argument on the intent of the original legislators -- or are you assuming this to be the case?

Read the opinion.  I did.  Understand how law, and statutory interpretation works.  The Court stated that they didn't need to delve into the intent (which is a bizarre interpretation) because the word "sex" is so clear that NO ONE (Notwithstanding 60 years of history) could ever have plausibly read the provision in any way that doesn't prohibit discrimination based on homosexuality and gender identity.

It's a truly stunning bit of revisionist 'splaining.

Perhaps they based it on the simple meaning of the words in the law instead? (I've not read the reasoning itself myself, only read a summary of it, so perhaps I'm missing something)

Given that they "accepted" sex to mean biological sex, and then interpreted as the only plausible reading of the statute, I'm gonna guess you'll agree with what they wrote.  You should read it.

That said, you should read the dissents as well.

Well, if the current legislators actually disagree, they can clarify the law and use more precise language this time.

I addressed that.  Not going to happen.  Doesn't make the SC creating law in violation of the Constitution okay.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 07:17:37 PM »
I can see this more likely escalating conflicts with right-wing or religious organizations in how they want to build their internal staffing. In the example given in the article, a gay man was fired for joining a gay softball team, which would now be prohibited, and which makes sense to me all things being equal. But now let's say the guy is working for some church that advocates against whatever his lifestyle entails. Would they be entitled under religious freedom to argue he violates the job requirements and literally cannot perform the job adequately, or would that now be in violation because he's protected no matter what?

The court went into religious freedoms, and expressly cited that the defense of religion act is "supra legislation" that overrules other statutes including Title VII in certain circumstances.  I don't find that comforting, what that is, is an invitation to sue the living crap out of religious institutions to define the limit and scope of that right.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 07:15:46 PM »
I think TheDeamon, this actually is another strong signal that the SC can be intimidated.  The decision is nonsensical.  It literally does things, like assuming that "sex" is defined solely to have a gender based meaning, and then determines that it's inescapable that discrimination against homosexuality and transgenderism is prohibited by the word "sex".  The logic is effectively, that if you wouldn't discriminate against a man that likes women, it is solely the gender of the woman that women that you are discriminating on.  The dissent points out that if you include all four cases, you end up with firing decisions based on sexual orientation without regard to sex. 

Moreover, interpretation of a statute requires that it be interpreted as it was understood by reasonable people at the time it was passed.  At the time it was passed, 49 states and DC outlawed homosexuality and the concept of gender dsyphoria was unheard of, the Federal government investigated people for acts of homosexuality and fired them for them (for more than a decade after the law), and homosexuality was still in the DSM as a mental health condition.  Nonetheless, the Court says that at that time, the understanding of the word "sex" in this statute should have been understood by reasonable people to include discrimination against homosexual and transgendered individuals.

That's beyond straining the credibility of the language.

The reason this is important, is that judicial made law is arbitrary and necessarily a blunt hammer.  They can't expound without openly exceeding their Constitutional authority, therefore they have to be vague.  Congress on the other hand, if it fixes a law, can create hundreds of related provisions, or thousands, or zero as it deems prudent, and we wouldn't be left with not having any clue what this means.

Does this reopen every single case that was apparently erroneously dismissed?  Does this mean that biological women now lose out on any ability to resist transgender women in sport?  Does this mean that your health insurance costs have increased because your policy will now be required to protect you both for your own pregnancy and your own testicular cancer?

And I think, gender based mentoring is absolutely low hanging fruit.  There's no consistent way to read the SC's opinion and retain it.  It's trivially easy that the particular job benefit is available to one identical candidate versus the other with the only factor differentiating the two being gender.  The only thing that will save it is if no one get's litigious.  Honestly, this interpretation calls into question the existing jurisprudence on all of this.

General Comments / Re: SCOTUS protects LGBTQ workers
« on: June 15, 2020, 06:31:28 PM »
I don't agree that the reasoning makes sense.  The Supreme Court literally said that "sex" as used in the 1964 statute could have never been interpreted in any other way but to prohibit discrimination based on homosexual status or gender identity.  That even in 1964 that would have been plainly understood from the terms.  That effectively, the past 60 years just reflect every Court of Appeals (through 2017), Congress (currently has pending amendments to add those provisions), and the EEOC (for 45 years), apparently being just too stupid to read the sentence correctly.

It's the most bizarre resort to textualism I've ever seen, effectively goes all the way through and out the other side as activism.

I don't think the SC's read today is legitimate.  They passed a new law in the guise of interpreting a statute.

My best guess is that the consequences of this are going to have more impact than any judicial interpretation since Roe v. Wade, and very likely it will ultimately be seen as a poorly decided results orientated decision.  Like for example, this would seem to settle all debates about whether transgender athletes can compete in professional women's sports (and maybe college given that getting paid seems to be on the horizon) and eliminate any and all chemical tests that relate to hormone levels or requirements.  It would seem to eliminate any right to separate bathrooms or locker rooms based on sex in a number of contexts as well.  It may eliminate any right to create women's groups in the office, or to have programs for gender based mentoring that support women - it's hard to see how they would survive. 

That said, it's hard to imagine anything being done about it.  Culturally the issue has long been settled.  Firing someone because of their homosexual status is repugnant.  Even gender identity, though less settled, was heading the same way.  Can't imagine anyone amending Title VII to remove the newly discovered rights (that were so obvious that no other possible interpretation could have been made in1964 and all times forward).

General Comments / Re: The CHAZ
« on: June 15, 2020, 10:21:00 AM »
Seems the CHAZ has rebranded itself. It's now CHOP instead, for Capital Hill Organized Protest.

To be honest, I think they talked to their lawyers.  The CHAZ is literally an insurrection.  All that was lacking was an order from Trump and federal forces would have been authorized to disperse and arrest everyone defending or supporting the zone.  If they were convicted of participating in an insurrection, 10 years in prison and a permanent ban from holding public office in the United States.  Note now, how carefully the CHOP spokespeople are to claim that they are still part of the United States.  Of course, they don't get the final say.

Fair points Fenring, but I would address them simply.  If the protestors can't point to the specific John Smith or policy that is the cause of their suffering, how can their protest be against anything but the vaguely defined system.

Our current government is masterfully designed to oppress and take away people's rights with zero accountability.  The fourth amendment makes it unConstitutional to obtain a warrant without probable cause, yet Flynn was spied on without even reasonable suspicion.  No one has going to jail or even faced charges.  You'd be hard pressed to even point to the person that is "responsible".  That's a straight forward case, involving people with maximum privilege.

How exactly does some one point to the person that is "responsible" for police abuse that occurs across an entire country based on race?  What policy is it?  How does one point to what policy is causing generations of black people to be born into situations with little financial hope, failing educational prospects and aggressive policing for things that don't feel like a crime (e.g., driving while black)?  What policy or person can you point to that makes every interaction for a black man with the police more dangerous than for a white man?

General Comments / Re: Defund the police
« on: June 09, 2020, 03:01:58 PM »
Tomato, tomato. If there are $X in education, and you remove $Y, then X-Y < X. Reducing government is not the same as not expanding it.

It's fundamentally different.  It's as different as keeping what you grow in your field versus surrendering it all to the "bossman" who gives you back the portion they think you need.  The Feds should not be taxing you to take money they then give back to you on education.

Unless perhaps you are suggesting that the states would subsequently add $Y back in to the budget, which seems highly unlikely.

State budgets are a mess.  They will stay a mess until we fundamentally reform the ability to make future commitments.  A politician should only be able to agree to what they are funding from their budget for pensions, not promise that the state will lock up 40 years of its budgets to pay generous pensions while that politician themselves doesn't have to put anything in.

We've allowed politicians to build their power bases for decades by selling the future and now that "future" has come and our budgets no longer have "discretion" in them.  Everything is a mandate.

You could equally say that you are not actually defunding the police by the removal of some of the $4.7 billion doled out to state and local law enforcement. I expect that supporters of the police would call it defunding the police. (reworded by edit)

Again, not clear to me that police should be "defunded," rather they should be right sized and we should carefully consider if reallocating money, personnel and time to other functions would be a better benefit.  We are asking the police to be generalists prepared for anything.  Why not have specialists for domestic situations?  Or specialists for dealing with drug and alcohol addicts?  People that come to the situation already knowing a good bit about what's going on?

General Comments / Re: Defund the police
« on: June 09, 2020, 02:54:05 PM »
I would agree with the above. Police services with regards to how their rules and SOP should be consistent as well their must be a consistent way to hold them accountable. Most other professions have such measures in place.

Except I think you're not listening if you believe the above.  Police serving a poor community need to follow very different standards to serve that community in the way it wants and needs.  Those police officers need to move past an idea that they are there to "protect" the rest of the city from that community and understand they are they to protect that community.

National standards are even worse that the top level local "standards" we impose today.  Less responsive.

The entire message of this protest is about being heard at the most local level, and you think even more top down management will do that?

Washington was facing the classic question of whether the ends justify the means.  And like many others they didn't believe that they did, that the ends could be pursued with more appropriate means.

That's the problem we're facing now.  Can the ends be achieved with more appropriate means?  On the one hand, looting has zero do with the actual problem, it detracts from the message and it's not even clear what the goal is.  On the other hand, nothing short of riots and looting seems to have made any difference.  Is there another means to achieve the end?

For the looting to be wrong in context there has to be another way to achieve the goal. 

On the other hand, we should all be able to agree that professional looters that aren't expressing a rage, whose goal is self enrichment or simple chaos should not be given the same benefit of the doubt.

General Comments / Re: Fix it
« on: June 09, 2020, 02:44:42 PM »
Okay, to be fair Crunch didn't make a point either, he just argued with an irrelevant sound bite.  Doesn't excuse arguing back in the same manner.  Though it seems not to be in vogue today it's a pretty basic principal, two wrongs don't make a right.  You should remember that no matter who you are responding to, other people are reading your arguments as well, so make them good and meaningful and address rather than ignore the problems.

General Comments / Re: Defund the police
« on: June 09, 2020, 01:26:04 PM »
No dodging.  What did you mean?

Defunding the DOE is not defunding Education.  Education is primarily funded at the local and state level.  The Federal Government shouldn't even be involved.

I thought you were making a point, but apparently you're just using memes to restate the left belief that the Federal government should be expanded to pay for everything all the time.

General Comments / Re: Defund the police
« on: June 09, 2020, 01:13:01 PM »
Not really.  I have to ask you what you meant by it.  Did you have a point?  Pointing to Trump is not a point.

Is anybody defending the people who looted stores?

Lot's of people actually.  Actually saw a pretty good rant on it that's even fairly persuasive.  But why ask?

General Comments / Re: Fix it
« on: June 09, 2020, 01:08:30 PM »
And I was very confident when you found yourself unable to explain a reasonable critique you'd make it personal and ignore the substance.  I guess we each now know the other too well.

General Comments / Re: Defund the police
« on: June 09, 2020, 01:05:49 PM »
Don't think I ever expressed support for defunding WHO.  I would like to see better accountability from all UN agencies.

I don't support "defunding" public schools.  I do support school choice, which is not the same thing, and breaking teacher's unions (I support breaking all public employee unions, teachers, police and otherwise).  I think it's fascinating that we have a thread arguing about police unions protecting bad cops, when we've had arguments about teachers unions making it impossible to fire bad teachers for years.

Not sure what "defunding" Californina even means.  CA is a sovereign entity that collects it's own taxes.  The Federal Government should be collecting taxes for the limited purposes that the Federal government is charged with under the Constitution, not to redistribute to states amounts that they should be collecting directly.

I'm actually on the fence about defunding the police.  Don't get me wrong the policy as advocated by the screaming voices on the left is nonsensical and dangerous, but the question itself has merit.  Is funding the police the most effective way to achieve the goals we are trying to achieve?  If transferring a portion of those funds to another service generates a bigger gain in the goals of compliance with law it's a good thing.  If we'd have to spend $3 billion on support for every $1 billion we pull from the police its not a good thing.  It's going to require serious minds really working collaboratively, and unfortunately we're not in a place where collaboration is accepted, it's totally a you're with us or against us game.

General Comments / Re: Fix it
« on: June 09, 2020, 12:31:02 PM »
Given that, as Kasandra pointed out, France has 1/13 the police killing rate of the USA, does is really follow that France has a problem, based exclusively on your example?  I expect the real point of your post, however, was to suggest that the USA is really not so bad, because, look, other people think that France has a problem.  But if France has a problem, then the USA has a problem that is 13 times bigger, so... not a great argument - that mustn't have been your point.

And this is why its misleading.  If France has 1/13 the killing rate but everyone dead is from the minority group then they have a far bigger problem.  If they have 1/13 the killing rate and 10X the violence rather they have a different bigger problem.

But even at a basic level, the idea that the rates are directly comparable without context is nonsense.  What level of violent crime occurs in the 2 countries how does that interact with the death rate?  You don't know, and from this post its clear that the rate is useful for your arguments without even caring about it's relevance.  Effectively it's cited as proof of substance context free, when the context is required for it to actually be substantively relevant.

General Comments / Re: Fix it
« on: June 09, 2020, 12:26:46 PM »
It's interesting that in discussion police brutality and bad officers you're arguing about the death rate.  Sure that's easy to find, but it's rare everywhere for the police to kill someone.  I'd be much more curious how often say the French police or the British police beat someone compared to US officers.  How often suspects in custody are beaten or assaulted.  How often those organizations use violence at all.

Are you offering to find out and report back?

Nope already tired.  Hard to find the relevant data.  Should make you wonder though why its so easy to find one set and not the other, but it won't because the available data plays into the conclusions you want to reach even if it's not the most relevant to the analysis.

Focusing on deaths is a tiny tiny part of the puzzle.

But an effective indicator, as it helps place a value on different categories of human lives.

It's a poor indicator, specifically because it DOESN'T place a value on different categories of human lives, while appearing to do so.  It's in fact more likely to be misleading than probabitive without accounting for other factors.  The overall use of violence would be better, but would still need to account for the actual crimes and circumstances to get to a point of reflecting on the value of different categories of human lives.

Also when you look at the demographics you should ask if they were properly weighted to account for race.  The US is massively diverse compared to some of those countries.  I wouldn't be surprised at all, if in France for example, police interactions with the Muslim minority have dramatically different results than with the majority (we know this difference occurs in the US). 

There are so many factors that change how this plays out in the US that don't apply in Europe.

Again, can you make a case one way or another?

A case for what?

General Comments / Re: Defund the police
« on: June 09, 2020, 12:22:34 PM »
So then you quoted her to deliberately mischaracterize what she wrote?  OK.

There's nothing about what I wrote that mischaracterizes the author.  It's impossible to read her passage without coming to a conclusion that some elements of policing and imprisonment are based on racism and the history of slavery.  The author's choice of "bound up" is not in fact limiting on that conclusion.  Why do you always waste time on non-substance?

General Comments / Re: Fix it
« on: June 09, 2020, 12:14:58 PM »
It's interesting that in discussion police brutality and bad officers you're arguing about the death rate.  Sure that's easy to find, but it's rare everywhere for the police to kill someone.  I'd be much more curious how often say the French police or the British police beat someone compared to US officers.  How often suspects in custody are beaten or assaulted.  How often those organizations use violence at all.

Focusing on deaths is a tiny tiny part of the puzzle.

Also when you look at the demographics you should ask if they were properly weighted to account for race.  The US is massively diverse compared to some of those countries.  I wouldn't be surprised at all, if in France for example, police interactions with the Muslim minority have dramatically different results than with the majority (we know this difference occurs in the US). 

There are so many factors that change how this plays out in the US that don't apply in Europe.

General Comments / Re: Defund the police
« on: June 09, 2020, 12:02:25 PM »
policing is a phenomena that exists across time and culture, it exists in diverse and non-diverse cultures.  It's NOT based on the history of slavery and oppression. 
You missed the context.  Kohn said that the history of policing in the United States is inexorably bound up with the history of slavery and the oppression of Black bodies and Black lives.  She also said "bound up with" not "based on" as you paraphrased.  Those two misses on your part completely change the point she was making.

I did not miss the context. I dispute that the context is as relevant as the author is asseting.  Policing in the US has far far more in common with policing in other countries, other times and other places than its has differences.  It's counter factual to believe it's bound up with oppression of blacks (and I've read some of her sources that counter factually assert it was based upon runaway slave recovery forces). 

The author's pretense goes beyond useful insight to cluttering any possible solutions.

General Comments / Re: Defund the police
« on: June 09, 2020, 11:59:13 AM »
So... a police officer was suspended, after he was caught on tape pushing a 75 year old man, causing him to fall and hit his head.  Another officer was also suspended over the same incident.

This triggered the remaining 57 members of that 'special' squad to resign immediately over the suspensions (not from the force, they resigned from the squad.)

Let's think about that - the simple act of suspending officers involved in an incident that caused severe harm to a citizen was enough for those officers, as a group, to remove their services from the force.  Of course, this did not happen in a vacuum, and I get that the police are feeling victimized and put upon; but suspending officers who were caught on tape causing physical harm to a single old man who posed no threat to the dozens of armed police marching together down the street... it certainly speaks to a particular attitude that is clearly pretty widespread throughout that particular police force.

I saw the video, and apparently I have more questions than you do.  It looked to me like the officers were charged with clearing the streets.  I read that this was the time when curfew went into effect.  It looks to me like the tactic involved is to clear everyone forward of the moving police line.  It seems to me that this is a tactic that has to be allowed.  Public order requires that the police be able to establish, maintain and move perimeters and that that they be entitled to enforce curfews.

To that effect, the old man has to move forward, he should have returned home, but in any event he is not entitled to maintain his space in that circumstance.  Now the police should have arrested him instead of pushing him.  The way they've used this tactic historically has been to be a violent moving wall triggering a mob to panic, flee and disperse.  That's heavy handed.  The alternative would be what?  To zip tie, arrest and leave a pile of hogtied protestors behind themselves.  Is that what should occur?

Resolve for me how the police enforce the law, without causing the harm.  I agree beating the crowd and old men into submission is unacceptable, but I think you have to agree that non-compliance and preventing the police from clearing the street is also unacceptable.  So what's the solution? 

A couple other points, I don't think you correctly interpreted what happened on the officer "stopping to help" and not being allowed.  The officers in the line did not stop, but the officer following the line did stop and call it in.  That was a situation where different officers had different tasks.

I also find it ridiculously troubling that once again you have a dozen or more officers witness a situation and the "police report" makes a false claim.  The man did not trip.  If the violence is justifiable then the police officers would include it in the report.  The fact of the falsification says everything you need to know about how commonly and easily they lie on those reports.  Every time police use violence the suspect was "resisting arrest" and every time that they can't find any wrongful conduct the suspect was "loitering" or "disturbing the police" or "refused law directions".   I get qualified immunity, but maybe falsification of a report in this manner should automatically result in felony charges.

Finally, on the resignations, its the sensible thing to do.  Officers are literally risking their lives to be on those lines.  Right now any grey area is going to be interpretted against them.  It's a risk to life and a risk to honor and career.  You can't have it both ways, either they have to have some lattitude (and we have to agree on how much is too much) or they can't do the job and the consequences have to be accepted.

General Comments / Re: Defund the police
« on: June 09, 2020, 11:45:00 AM »
Ultimately I don't think there's a 'fix" for something that's inherent in humans. Of the millions of police interactions every year, a tiny percentage have bad outcomes. Similarly, a tiny percentage of cops are bad humans. Lucky for us, those outliers can now be captured on a phone and set on repeat.

I'm not sure that any of that is true.  I think a surprisingly high percentage to of interactions with police have bad outcomes, just not fatal outcomes.  If George Floyd hadn't died would it have gotten attention that an officer used that much force unnecessarily?  There's virtually no reason he should have been in custody at all in this situation.  That was a bad outcome.

Talking back to an officer will get you a bad outcome.  Refusing to agree with them when they violate your constitutional rights will get you a bad outcome.  Being black is often enough to generate a bad outcome when you are minding your own business.

I think it's a bad outcome anytime citizens come away from a police interaction believing that the officers involved were acting on bias or personal opinion, were unduly threatening or authoritarian or were not there to protect the people they are interacting with. 

As to the number of "bad" cops?  What does that even mean.  Do you know many cops?  I know a few and they are uniformly defensive, gruff,  edgy and untrusting.  Why is that?  Just selection bias based on who I know?  I think its something more, it's an "us" versus "them" mentality that's been conditioned into them.  It's almost like a Judge Dredd idea "I am the law." 

It's not enough to rely on cell phones to catch them after an atrocity.  Departments need to take a serious look at themselves.  If they are there to protect communities they can not allow officers that don't respect that mission or worse abuse it to stay on the force.

I'm all for trying to vet out bad cops or ideally not recruit them in the first place, but if our expectation is something resembling airline safety stats, we're in for a disappointment. That doesn't mean we shouldn't be in continuous improvement mode - that should be the status quo.

I was reading the other day about a woman that filed a sexual assault compliant against an officer, and had the internal affairs officers try to blackmail her into dropping the claim.  I don't think we need to draw a parallel to airline safety stats, maybe just to the idea that baggage handlers shouldn't be putting bombs on the planes.

General Comments / Re: Defund the police
« on: June 09, 2020, 11:21:54 AM »
Wow, so much to unpack on this thread.  I'd like to start with a link to a study, it's a recent study (2017) that targeted perception of the police in poor communities.  It's especially interesting because it was conducted in 6 cities, one of which just happened to be Minneapolis.

I found myself reflecting, over the last few days, on the question of what it would mean to defund the police, and why anyone would think it's a good idea.  The police are supposed to be there to protect "your" community and to keep "you" safe, but what if your perception of the police was that they are not to protect your community but rather to protect other communities from your community?  Or that they are not there to keep you safe, but to keep others safe from you?  Would you call the secret police if you were having a problem?  Would you call the secret police in on a domestic dispute knowing that they may kill or disappear your partner?  Sometimes sure, but maybe not as much as you might if they were really there to help you resolve the situation without that level of danger.  What would you do if you called them to investigate a suspicious sound outside your house, and they shot the neighbor's kid without so much as asking him a question about what he was doing?

Whether it's real or not, policing can't work if a community doubts that the police are there to help them.  To that effect there are some massively disturbing points in that study.  Very few people in those communities believe the police are fair or that they act free from personal bias.  Officers coming in with heavily handed and arbitrary decisions that they refuse to explain that harm people they are supposed to be protecting are antithetical to the work they are supposed to be doing.  You can't protect a community by "abusing it for it's own good."

But the solutions can't be worse than the problem.  That survey also shows that even people in those communities have a lot of positive beliefs about how policing should work and its necessity.  This gap is exactly why people in those communities feel their voices have been ignored.

Sally Kohn lays it all out:

It took me a while to come around to police and prison abolition. But I kept listening and learning, to groups like Critical Resistance and INCITE! and leaders like @osopepatrisse and @charlenecarruthers and so many more… and I came to really understand what I wish I’d been taught sooner, how the history of policing and the carceral system in the United States is inexorably bound up with the history of slavery and the oppression of Black bodies and Black lives.

⁣This is what happens when some studies something in isolation and through a specific lense, they over generalize and start to see everything through that lense.  Policing is a phenomena that exists across time and culture, it exists in diverse and non-diverse cultures.  It's NOT based on the history of slavery and oppression. 

The issue is that police work is supposed to be about community norms.  In theocracies that leads to morality police imposing strictly or loosely religious rules (and if you went straight to Islam in your head you're being too narrow, religious norms have been imposed worldwide with the force of law inside communities, including in the US in all religions). 

In the US it's supposed to be about secular principals agreed by the community at large.  But we have corrupted that process.  We have so many nonsensical laws on the books that virtually no one respects them all, we can't we don't have agreement on them, not even large minorities agree on some of them.  There's so many arbitrary rules imposed by those who believe in their own moral superiority (and this mantle used to be heavily from those on the right and is now heavily from those on the left).   Pretty much, if the police want to arrest someone they can ALWAYS find a technicality.  Against that background, how could one not think they are using their bias to decide who to arrest and who not to arrest.

As a final point, the author demonstrates a principal that I wish others would take more seriously.  Propaganda works.  Calls to listen can add value, when you get information on other's perspectives and learn new facts that you didn't know your own decisions can be better.  Calls to shut up and listen, on the other hand are not designed to add value, they are designed to force compliance.  Solutions require that everyone listen, not just the aggrieved, cause the aggrieved are often ignoring in their rage very legitimate issues that need to be addressed.

And to my fellow white friends who still wrestle with this, think about the fact that YOU live a fairly police-free existence already. So what are the police for? Presumably to protect you from some implicitly (or explicitly) racialized other. Why do “they” have to be policed so that “we” can be safe?

Police are not private security.  They are not a security force for white people.  They are not there to protect us from a "racialized other" they are there to enforce the laws that the community has imposed.  If they are doing that ineffectively it is proper to find out why and demand they stop.  If the laws are stupid, then it calls for the much harder job, instead of blaming the police for enforcing the laws a society stupidly allowed to come into force ask yourself why you voted for the politicians that put them into place?

If you support a politician that criminalizes plastic straws - for example (jail time for non-compliance) - you are supporting someone who is willing to impose incredibly harsh consequences in support of minor goals.  Imagine what they have done with the laws that don't make headlines.

If you are on the left and think you are above this frey, that you're so woke and it's the right that is the problem, that it's Donald Trump's racism that did this, then you have to really wake up.  Ask yourself why the politicians that you've elected that manage everyone of those Blue city police forces, and in many cases have for decades have put the laws that are sitting on the necks of your black communities in place.  Republicans didn't do that, they never had any power to do that.  Wealthy liberal blue communities did that, and are still doing it.  Posting a black square on facebook and not holding your own politicians accountable is not "doing something."

General Comments / Re: Free speech
« on: June 01, 2020, 04:37:05 PM »
I tend to agree that if Twitter and Facebook start discriminating against certain political viewpoints they should be held accountable, not because they are not entitled to have a viewpoint, but rather because they lied to every single user about who they were in order to build the market share that let them get to the point where they can have this impact.

Does your opposition to them "discriminating against certain political viewpoints" also apply to e.g. if they discriminate against Islamist fundamentalism or against the Chinese Communist Party?

Depends on what you mean.  Do you mean they engage in discrimination against Muslim view points that support fundamentalism?  But not against any other philosophy of Islam nor against any branches of other religions that espouse similar views?  Then yes, they should not be eligible for the protections of Section 230 (at least in that context).

Or do you mean that they engage in discrimination against support for terrorism by Islamists, but leave up say posts encouraging the IRA to actively blow things up?  Honestly, all that content should be pulled.  I would not hold  them liable if they imperfectly pulled it down, absent a finding that they specifically discriminated.  In that case, they may be facing criminal liability though not civil.

As for the Chinese Communist Party, are you suggesting that they are pulling down information because it's propaganda?  Or because it's Chinese?  It's hard to see how they  would ever be able to discriminate against all pro-Chinese posts and not be outside the safe harbor today.  Pulling all propaganda (or trying to) is specifically protected.

I think it's key to remember, nothing required ANY of the them to agree to host a broad and open forum.  They made that choice deliberately.  They could have chose to be a forum that's only for talking smack about the Chinese government and not faced any legal liability.  Or they could have been that same forum and been in trouble based upon what their permitted users posted.  It's when they profess openness and that they are NOT restricting content that they become entitled to protection from the consequences of their user's content.

Do you not see that there is an interplay here between being open and entitled to this special protection and not being open and not entitled to this special protection?

Or are these things something that would be okay for them to discriminate against?

Okay in what way?  Anyone who wants to do so can discriminate in any private way they want.  You can be hateful in your public speech.  The KKK can open forums and publish materials, its a fundamental right.

Again though, if you are claiming protection from the consequences of what you are publishing based on a rule that is applicable specifically because you are not moderating or curating it, the fact that you engage in view point curation should eliminate your specific ability to rely on that rule.

End of day, these cases are still going to be nearly impossible for plaintiffs to win.  The difference is that it opens the tech companies up to lawfare activists because rather than getting a summary judgement, more of these cases will go to discovery and even to settlement.  Financially, this has the potential to be a major difference.

I mean consider CNN and their settlement with Nick Sandmann.  We don't know the amount, but I doubt it was anywhere near the $250m he sued for.  It's incredibly unlikely that CNN would have lost that case given the background law, so why did they settle what may be the equivalent of a nuisance claim?  Because the risk it was going to get past summary judgement was real, the kid was the perfect plaintiff to push that case, and if it gets past summary judgment it opens the door for many many others to get in too.  CNN would rather eat a settlement that makes his claim look plausible than establish any precedent in any court that makes all similar claims plausible. 

Plus, if it had gotten past summary judgement the door to discovery would have swung open and CNN would have found itself in a world of hurt.  Even if you assume no bad faith or incompetence, CNN would have had to die on the hill of press freedoms and refuse to turn information over.  If the court's inclined - which plaintiffs always do their best to file with a court that is inclined - they can hold that refusal to provide information as evidence admissable in court that the information would be damaging to CNN's defense and effectively assume a level of guilt.

I listed that out as an analogy to why this threat is so great, even if it's extremely unlikely that much of anyone wins a case for years.

General Comments / Re: Protestors vs. Rioters
« on: May 31, 2020, 02:39:20 PM »
It should be pointed out that Floyd was the guy (presumably) killed by the police officer. Not the other way around.

You are 100% correct, I thought I took that mistake out.

General Comments / Re: The Great Unmasking
« on: May 31, 2020, 01:47:08 PM »
So you're going with the Logan Act?

I'm going with he lied to the FBI about a serious matter, not something that incidental, irrelevant or innocuous.  The lie was serious enough that it justified prosecution, which he short-circuited by his confession and plea. If I thought he should have been tried for a Logan Act violation I would have said so.

You were responding to the actual transcript.  There's no lie in the transcript.  Do you not remember what was going on, or are you deflecting?

General Comments / Re: George Floyd
« on: May 31, 2020, 01:44:17 PM »
While he cites what clearly is a training deficiency being in play here.

There is no training deficiency in play here.  You're talking about training for police work, which has been ongoing for thousands of years.  You're talking about how to secure suspects which is something that every single police officer has been trained in.  You're talking about killing a man that didn't have to die with a technique that no one has ever been taught to apply in a police setting.

There is zero excuse for officers using techniques where death is a probable result, outside of life or death situations.  Knee on the back?  Could kill someone is a fluke situation.  Knee on the throat?  Will kill someone or potentially cause brain damage if misapplied.  Unless you're literally trying to make him unconscious - which again is using deadly force - why would anyone ever use this technique?

"Training" deficiency is an excuse and a lie to cover for acts that should always have been illegal.  If you want to say he was trained to do this, then I want charges against everyone that wrote that training, approved the use of that training and taught that training.   

Crunch, not sure about the local law, but normally 2nd degree charges require that you prove a specific intent to kill (or at least seriously harm) the person.  First degree also requires the same but that the intent be formed in advance.  So planning to murder someone in the future is first degree.  It's hard to prove that here, or in any case involving an arrest because there is a clear alternative of what the officer's goals could have been.

3rd degree is all that's left a prosecutor can't show the defendant intended to kill or seriously harm the person.  So for example if they were just reckless and disregarded the risk (like a drunk driver), or they were inflamed by serious provocation (like finding your spouse in bed with a lover).  This one though really varies tremendously based on the state in question.  It's entirely possible that this will end up in some  other type of charge.

General Comments / Re: The Great Unmasking
« on: May 31, 2020, 12:38:41 PM »
So, as I read the transcript it's clear that Flynn negotiated foreign policy with Moscow while not an officer or representative of the US government, without seeking permission from the current Administration or informing them afterward, and then lied about it afterward to the FBI.  It's hard for me to believe that you are so dismissive of the significance of him doing this.

So you're going with the Logan Act?  Even though it's never been prosecuted by the DOJ in it's entire history, notwithstanding that it's constantly and openly violated.  Notwithstanding that the 2 times it was proscecuted prior to the formation of the DOJ - on stronger facts - it failed.  Notwithstanding the wide spread (pre-Trump) opinion of the legal community that it was unConstitutional and could never be the basis for an enforcement (an opinion that was clearly reaffirmed by Sally Yates as the Acting AG during the Obama Administration's transition).

Even if you got over all of that, you still have a major problem that Flynn was already part of the incoming administration and entitled to be in contact with foreign parties, including foreign governments, and to convey the incoming administration's positions.  Ergo, the entire premise of the Logan act is inapplicable.

In other words, you tripling down on a complete bogus cause of action.

Again, there is ZERO in those transcripts that should have triggered any intelligence reporting, or any unmasking.  Everything he said in those calls was something he was legally entitled to say.

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