We guide listeners through a retrospective of the podcast on the occasion of the show's 50th episode. What lessons have we learned from our guests and conversations? We discuss societal loneliness and disconnection, the state of the dating apps, and the key traits and situations to avoid while dating.
We also explore the ways that communities can support both single and coupled people in today's world. Come celebrate this big milestone and final episode of season 2 with us!
One of the most often-raised objections to the Colorado Supreme Court's decision disqualifying Trump from running for president under Section 3 of the Fourteenth Amendment is that Trump has never been convicted of engaging in insurrection. As conservative Washington Post columnist Jim Geraghty puts it: "If you're going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn't he first be convicted of engaging in an insurrection?"
The answer to this question is "no." The reasons why are based on a combination of the basic structure of our legal system, and the original meaning of Section 3.
A standard element of our legal system is that the same events often give rise to both civil and criminal liability. For example, a person who commits rape, murder, or assault is subject to criminal penalties, and also to civil suits by his or her victims. In such cases, a criminal conviction is not a prerequisite to civil liability. Indeed, even an actual acquittal on criminal charges doesn't necessarily preclude civil lawsuits against the perpetrator. Just ask O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims' families. The criminal acquittal didn't stop Simpson from incurring $33.5 million in civil liability. The criminal and civil cases were distinct, and the result of one did not determine that of the other.
The same reasoning applies to Trump. The absence of a criminal conviction for insurrection doesn't immunize him from civil proceedings arising from his role in the January 6 attack on the Capitol. Disqualification under Section 3 is a civil issue, not a criminal one. It cannot result in a prison sentence or other criminal sanctions.
There are many reasons why civil and criminal cases arising from the same events might turn out differently. The most obvious is that a criminal conviction requires proof beyond a reasonable doubt, while a civil plaintiff can prevail merely based on a preponderance of evidence standard (a slightly more than 50% chance that her position is right). In the Colorado Section 3 case, state courts found that the plaintiffs had sufficient proof to satisfy a "clear and convincing evidence" standard (a higher burden than preponderance, but less than proof beyond a reasonable doubt).
The lower standard of proof and other procedural differences between criminal and civil cases are justified by the generally less severe consequences at stake in the latter. Civil defendants don't risk the death penalty, prison terms, or getting a criminal record. In this case, Trump doesn't even face the prospect of forfeiting any of his property or paying damages. All he stands to lose is eligibility for various state and federal government jobs.
There are situations where the consequences of civil liability are so grave that the civil-criminal distinction may seem artificial, as when defendants end up paying enormous damages that force them into bankruptcy. A short prison term might be less painful than that. But Section 3 disqualification isn't one of those cases.
In addition to these general considerations about the structure of the legal system, there are also points specific to the original meaning of Section 3. None of the ex-Confederates who were adjudged disqualified during Reconstruction had ever been convicted of any crimes related to their roles in the Civil War. That strongly suggests the original understanding didn't require prior criminal conviction for insurrection - or any other offense - before an insurrectionist could be disqualified.
In addition, it's important to recognize that tens of thousands of Confederate troops had surrendered under parole terms that arguably exempted them from prosecution for their wartime activities so long as they did not engage in further insurrection or other lawbreaking. The most famous example is General Ulysses S. Grant allowing Robert E. Lee and the Army of Northern Virginia to surrender under terms that allowed "each officer and man… to return to their homes, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside" (emphasis added).
Lee's army - and other Confederate forces who surrendered on similar terms - included large numbers of men who could be disqualified under Section 3, because they had previously held public office. That includes Lee himself, subject to disqualification by virtue his previous service as a high-ranking US Army officer (Section 3 disqualifies any insurrectionist who had previously been an "officer of the United States," a category that included commissioned military officers).
After the war, there was disagreement over whether Lee's parole terms exempted him prosecution. Ultimately, attempts to prosecute him were dropped. It is implausible to conclude that the framers and ratifiers of Section 3 thought that Lee and others like him were exempt from disqualification, merely because they were not prosecuted for insurrection, and possibly could not be, given the terms of their surrender.
Legal considerations aside, the victorious Unionists were not willing to prosecute and imprison the many thousands of ex-Confederates covered by Section 3. On the other hand, they were determined to prevent them from holding public office.
In sum, the idea that Section 3 disqualification requires a prior criminal conviction for insurrection is at odds with the general structure of our legal system, which separates civil and criminal liability. It is equally at odds with the original understanding of Section 3.
There is a separate argument about how much civil due process is needed before someone can be disqualified under Section 3. In my view, the trial Colorado held is more than enough. But wherever you come down on this civil due process issue, it's distinct from the claim that a criminal conviction is needed.
UPDATE: Conservative political commentator Conn Carroll criticized this post in a Washington Examinercolumn. I have responded to him here.
The war in Gaza - the war in Gaza and Israel, we should say, so as not to lose sight of the fact that hostilities began with an armed incursion into Israeli territory - is as complex a historical event as one can possibly imagine, with deep and tangled historical roots, a large and very complicated set of relevant actors (Israel, Hamas, the Palestinian Authority, Egypt, the US, Hezbollah, Iran, Qatar, the Saudis, …), and potentially profound implications for the future relationships among all the parties and for the world as a whole. Not to mention the unimaginably terrible suffering on all sides. It is, to put it mildly, too complex for a blog post, too difficult to find one small piece of the issue to address that is not connected to all the other pieces.
But I find one small corner of this complicated tableau particularly disturbing. Why is it, I ask myself, that Israeli conduct always seems to be judged by different standards than those applied to any other country in the world in similar circumstances; and, similarly, why is it that the grievances of Israel's enemies are viewed more sympathetically than the grievances of any other group in the world?
Yesterday's Illinois Appellate Court decision in McClellan v. Hull, written by Justice Sharon Oden Johnson, joined by Justices Michael Hyman and Carl A. Walker reverses the order (which had been issued by Judge Debra A. Seaton), though without reaching the First Amendment question.
The quick factual backstory: McClellan and Hull met on Facebook, and then met twice in person and had sex on the second time. McClellan says it was consensual, Hull says that McClellan raped her. Four weeks after that, in April 2021, Hull Tweeted "that she was raped by him, he was a predator, she wanted justice for herself and sought to warn others of his sick nature" (McClellan's paraphrase).
McClellan claimed that this was "harassment" that entitled him to an Emergency Order of Protection under the Domestic Violence Act, and the court agreed. The court issued the Emergency Order, which "ordered Hull to have no contact by any means with McClellan." The Emergency Order was extended several times and then replaced by a longer-term Order of Protection. And at one of the hearings,
[T]he circuit court stated that it was not relevant whether there was a sexual assault; under the statute, it had to decide the relationship between the parties and whether Hull's social media messages were defamatory…. [T]he circuit court found that McClellan's allegations regarding abuse fell under the harassment prong of the Domestic Violence Act for defamation based on the accusations of rape in a social media post….
The court then stated that both parties were prohibited from posting about each other or the case on social media, and noted that there was a criminal case pending [apparently a case against McClellan based on Hull's allegations]. The court then amended the EOP to include the prohibition….
From State v. Price, decided Sept. 6 by the South Carolina Supreme Court but posted on Westlaw in just the last two weeks:
Price was convicted of murder in 2003 and sentenced to thirty-five years in prison…. The parties inform us Price began serving his sentence on December 23, 2003, and remained in prison until March 15, 2023. On that date, the Department of Corrections released Price pursuant to an order signed by now-retired circuit court judge L. Casey Manning on December 30, 2022.
There is no official record of the events that led to Judge Manning signing the order releasing Price from prison. It appears, however, that in February 2022, attorney J. Todd Rutherford—counsel for Price—contacted Solicitor Byron E. Gipson of the Fifth Judicial Circuit about reducing Price's sentence pursuant to section 17-25-65 of the South Carolina Code (2014). In mid-December 2022, Rutherford and Solicitor Gipson began exchanging emails with drafts of an order. According to Rutherford, he and Solicitor Gipson met privately with Judge Manning in late December in the judge's chambers. The Richland County "Case Management System Public Index" does not reflect that this meeting occurred, and there is no indication the meeting was recorded or transcribed. The victim's family was not notified of any of these events.
On December 30, Judge Manning signed two documents. The first document, entitled "ORDER REDUCING SENTENCE," provides,
This Matter comes before this Court by Defendant, through his undersigned attorney, J. Todd Rutherford, who petitions this Court to Reduce the Defendant's Sentence: The Court finds the following facts to exist in this case:
That the Defendant was convicted of Murder … on December 19, 2003 and came to the South Carolina Department of Corrections on December 23, 2003.
That the Defendant was sentenced to a sentence of thirty-five years in prison by The Honorable Reginald I. Lloyd and has served approximately nineteen years to date.
Upon motion of the Solicitor in accordance with S.C. Code Ann. § 17-25-65.
An account of Defendant's cooperation is contained in an addendum attached to this Order.
THEREFORE, IT IS ORDERED that the sentence be reduced from thirty-five years to nineteen years.
The second document states only, "Order sealed this 30th day of December of 2022," without identifying the "Order" being sealed.
It appears Judge Manning placed both documents in a sealed envelope, signed his name across the seal, and wrote the date "12-30-22" on the exterior of the envelope. At an unknown point in time, the envelope was delivered to the clerk. The envelope bears no indication it contained an order or that the contents of the envelope related to any particular case. Neither the envelope nor the documents inside it have ever been file-stamped nor bear any other indication either of them were filed with the clerk of court. As of April 19, 2023, the public index contained no entry for any order subsequent to the clerk of court receiving this Court's remittitur from our decision in Price's direct appeal on May 9, 2006.
The article claims that a prohibition on viewpoint-based removals of school library books is "settled law" announced by a "majority opinion." But that's not so.
The Dec. 7 article asks, "How Would This Supreme Court Rule on Book Banning?," and says this in paragraphs 4, 5, and 7 (out of 7) (emphasis added):
All this raises the question of what the current Supreme Court would do if it were to decide to take up one of the simmering book-ban cases. The key precedent on the issue is Island Trees School District v. Pico, from 1982. That case arose out of the removal of ten books from public middle-school and high-school libraries in a school district on Long Island, New York, by the local board of education. Though Island Trees is forty years old, the case concerns books addressing the same themes included in today's bans: Richard Wright's "Black Boy," Kurt Vonnegut's "Slaughterhouse-Five," Eldridge Cleaver's "Soul on Ice," and titles by Bernard Malamud and Alice Childress. The vice-president of the local board, a retired New York City police sergeant, had deemed the books obscene, "anti-American," and "just plain filthy," though he admitted that he hadn't read them. In fact, he heard about them at a meeting of an organization called Parents of New York United (P.O.N.Y.U.), a conservative group from Watkins Glen, in far-western New York, which had compiled a list of objectionable books and given it to the Long Island school-board members. P.O.N.Y.U. is a precursor of sorts for Moms for Liberty, the modern conservative book-banning group from Florida. (Indeed, Governor Reynolds spoke alongside other state Republican lawmakers at an event hosted by Moms for Liberty at a middle school in Des Moines just months before passing the Iowa law.)
The Island Trees case made its way to the Supreme Court after a district-court judge in Brooklyn, appointed by Ronald Reagan, ruled in favor of the school board, finding that students had no right to access the books in question. The Second Circuit Court of Appeals reversed that ruling, and the Supreme Court took up the subsequent appeal. There, in a majority decision written by Justice William Brennan, the Court invalidated the ban, echoing a prior ruling that students do not surrender their First Amendment rights "at the schoolhouse gate." But the over-all ruling is hardly a model of judicial clarity. The decision was 5–4, with seven separate written opinions, including four dissents. The majority noted that citizens, including minors, have a right to receive information and ideas. Nevertheless, the opinion is limited to the removal of books that are already in a library, and the Court makes explicit that it is not ruling that school libraries must acquire any particular books. Moreover, Chief Justice Warren Burger wrote a dissent in which he made the evergreen argument that parents should have "influence, if not control" over their children's education, equating parental control to "democracy in a microcosm." He also suggested that children who are denied books in school libraries are not prevented from obtaining them: they can simply go to a bookstore and buy them. Finally and, perhaps, ominously, Burger asserts that there is no constitutional requirement that schools maintain libraries at all. "The board," he wrote, "could wholly dispense with the school library, so far as the First Amendment is concerned." …
This Supreme Court has been protective of some speech, particularly religious speech. (See Justice Neil Gorsuch's opinions upholding a public-high-school football coach's right to hold group prayer on the fifty-yard line, and in favor of a wedding-Web-site designer who feared being forced to work for same-sex couples.) But it's not clear what the current Court would do when the desire to ban speech—or, in the question of book banning, to restrict access to certain ideas—is articulated as a parental right. We know, from the Dobbs decision, that the conservative Justices are not averse to overruling settled precedent, even with regard to a constitutional right. And what about the voices of fundamentalist religious groups who are certain to weigh in on behalf of bans? Will the Court grant deference to a religion-based desire to restrict the information that all public-school students can have access to? It may be that those who favor bans will find a more receptive bench now than they did four decades ago.
But I think this is mistaken, because there was no majority decision in Pico, no settled precedent on the subject, and no majority judgment that children have a right to receive information from a school library.
Justice Clarence Thomas has served for 32 years on the U.S. Supreme Court where he has been a consistent originalist who has led the Court to move in his direction on issues as varied as the Confrontation Clause; federalism; executive power; and the reining in of the administrative state. He has written hundreds, if not thousands, of opinions, and one thing is apparent from all of them that I have read. They all reflect Justice Thomas's authorial voice, and they do not reflect the authorial voice of his law clerks. Justice Thomas's brilliance, and commitment to originalism shine through in all of his opinions. He is more consistent, steady, and reliable than any other justice on the Supreme Court. He almost never follows precedent, but he always follows the original public meaning of the text of the Constitution. He is the very best justice out of 116 to have ever served on the U.S. Supreme Court better even than my old boss Justice Antonin Scalia. Justice Thomas not only talks about the importance of being an originalist; he practices originalism in every majority opinion, concurrence, or dissent that he writes. I do not always agree with Justice Thomas, but I always know where he stands and why.
I say this because neither legal academia nor the news industry seem to be aware that the very best justice, which the Supreme Court has ever had is currently serving on the bench. Left wing bias, and a disinclination to read Justice Thomas's opinions, has so skewed our public perception of him that no-one realizes what former Second Circuit Chief Judge Ralph Winter once told me is true: "Clarence Thomas is quite simply a genius." Moreover, Justice Thomas has such a clear body of rules, which he consistently follows in case after case over 32 years on the bench that it is as obvious as the day is long that he is incorruptible in every sense of that word. Justice Thomas would never "bend" the law to please Justice Scalia, his closest friend; his wife Ginni Thomas, who is active as she has every right to be in politics, or his good and close friend; the Koch brothers; Texas billionaire Harlan Crow; or anyone else. Clarence Thomas cannot be "bought." He is completely and utterly incorruptible as anyone who takes the time to read the opinions, which he produces prolifically can plainly see. I defy the many critics of Justice Thomas's ethics to point to a single outcome in which he wrote any opinion whatsoever or took any action whatsoever for a corrupt purpose. Read More
I won my campaign to get the Supreme Court to deny Special Counsel Jack Smith's petition for certiorari before judgement. I had argued in an amicus brief that Jack Smith lacked standing to represent the United States because his appointment as Special Counsel was unconstitutional. I therefore urged the Court to deny his petition, which it did.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Bound By Oath podcast: We head into a Pennsylvania Coal mine to unearth the origins of modern regulatory takings doctrine, resurface at Grand Central Terminal in New York City, and find ourselves in a bit of a fog.
New on the Short Circuit podcast: A pair of motions to suppress that shoot the moon.
Today, President Biden issued a proclamation granting pardons to all people who committed or were convicted of "simple marijuana possession" under federal and District of Columbia law. This is an admirable step in the right direction. But, as Reason's C.J. Ciaramella explains, it's only a modest expansion of a marijuana possession pardon initiative Biden undertook last year, when he pardoned all US citizens and permanent residents who had committed the offense of simple marijuana possession under the federal Controlled Substances Act and DC law up to that point.
As Ciaramella notes, the new proclamation expands pardons to certain offenders convicted of possession on federal lands. I would add that it also covers anyone who committed the relevant offenses in the fourteen months since Biden's previous pardons (which only covered people who had committed them up to early October of last year). Also, unlike last year's pardons, this year's also cover people who committed the DC offense of "attempted simple possession of marijuana," which is a distinct crime from actual possession. Not sure why this wasn't included in the October 2022 proclamation. Perhaps it was an oversight.
Like last year's marijuana pardons, this year's probably won't actually free anyone from prison. Virtually everyone serving a federal prison sentence for marijuana offenses is there for charges related to distribution. But the pardons will nonetheless benefit recipients in ways I summarized in my post about the previous round of pardons:
The fact that the pardons may not actually free any current prison inmates, doesn't mean they will have no effect. Biden rightly notes that the pardons will still help some people who may "be denied employment, housing, or educational opportunities as a result" of their past convictions. A criminal record for marijuana possession might also hurt a parent's chances in a child custody dispute. The pardons can address these issues by effectively wiping these convictions off the books.
Limited, as they are, Biden's marijuana possession pardons are commendable. But he could have done much more. A recent Gallup poll shows 70% public support for marijuana legalization, including even a majority of Republicans (55%). If Biden had made a push for simply abolishing federal laws banning possession and distribution of marijuana, he could probably have gotten it done, especially when Democrats had control of both houses of Congress during his first two years in office.
And, as Jacob Sullum has pointed out, Biden's distinction between possession and distribution makes little sense:
The moral logic of Biden's distinction between simple possession and other marijuana offenses is hard to follow. He says using marijuana should not be treated as a crime. If so, how can helping people use marijuana justify sending anyone to prison? And why should people convicted of assisting cannabis consumption be saddled with felony records for the rest of their lives?
There is similarly no justification for excluding offenders who aren't US citizens or permanent residents from the scope of the pardons. The justice of punishing people for marijuana possession doesn't depend on citizenship or residency status.
Biden today also pardoned 11 people serving disproportionately long sentences for various other drug offenses.
In my post on last year's pardons, I noted that Biden's use of the pardon power is far better than Trump's, which focused on cronies and political allies. Better than Trump in this area is a very low standard of comparison. But it's a sadly relevant one, as Trump looks likely to become the GOP nominee again.
Like many of my fellow liberals, I would love to live in a country where Americans had never elected Mr. Trump — let alone sided with him by the millions in his claims that he won an election he lost, and that he did nothing wrong afterward. But nobody lives in that America. For all the power the institution has arrogated, the Supreme Court cannot bring that fantasy into being. To bar Mr. Trump from the ballot now would be the wrong way to show him to the exits of the political system, after all these years of strife.
And from Compact:
The [Colorado Supreme Court] ruling sets up a dangerous new version of an all-too-familiar scenario: It transforms what ought to be a national referendum on the future of the country into a national spectacle of how judges will interpret a provision from its past. Doing so might for a moment save liberals—and, if the US Supreme Court goes along, conservatives, too—from their nonnegotiable responsibility to win power by winning elections. But it would do so by putting the very democracy such forces purport to want to save at greater risk and only postpones the need to rule by legitimate means, rather than through legal hijinks.
As with the Adam Unikowsky article, I pass this along because it strikes me as interesting and thoughtful, though there are facets of the analysis with which I may well disagree.
An interesting and detailed post, by a very knowledgeable lawyer. There are some parts that I'd likely approach differently (though I say this tentatively, not having focused on the issue myself in as much detailed as others have), but it seems much worth reading. I also hope to link in the coming days to material from others expressing other views [UPDATE: see, e.g., this post linking to two Samuel Moyn articles]. Here's an excerpt from Unikowsky's post (read the whole thing for the detailed analysis):
Now seems to be a good time to revisit my post from the long-ago era of September, in which I pegged the chances of the Supreme Court disqualifying Trump at 10%. In view of this recent development, I'll up the odds to 20%—still low, but not that low. 13-seed-beats-a-4-seed low. Totally within the realm of possibility.
Breaking that down, I'd give a 15% chance that the Supreme Court affirms the Colorado Supreme Court. I'd give an additional 5% chance that the Supreme Court vacates the judgment while leaving the door open to future Section 3 litigation, and then disqualifies Trump in a future case.
And while I'm throwing arbitrary probabilities at the wall, here's my take on the probabilities of how the Supreme Court will dispose of the Colorado case:
From yesterday's order by Chief Judge Nancy Rosenstengel (S.D. Ill.) in Robe Probe v. McGehee:
Two amorphous plaintiffs, Robe Probe John Doe, initiated this action on October 2, 2023, against various personnel of the Fourteenth Judicial Circuit Court of Illinois along with Judge John McGehee. {In the Complaint, Robe Probe (also called Judicial Felons Watch) describes itself as a national watch dog that polices judicial abuses, judicial fraud, judicial corruption, and judicial felonies and monitors corrupt state court judges nationwide.} In the Complaint, Plaintiffs make many serious and colorfully-worded allegations that Judge McGehee acted improperly while presiding over a state court action in Rock Island County, Illinois. Plaintiff John Doe identifies himself as the plaintiff in that underlying state court action.
As an initial matter, the Complaint contains accusations of criminal acts, corruption, bribery, and case fixing, paired with malicious language, derogatory slurs, and charged phrases like: "Muslim terrorist," "judicial thug," "judicial felon," "imbecile, ignorant, clueless crook," "ignorant fool," "crook scorpion lawyer," "perverted sadist defendant," "judicial clown," "mad hyena," "clueless pathetic creature," and "maniacal, out of control psychopath." Simply put, the language in the Complaint is inappropriate and will not be tolerated in this Court.
Aside from the fact that the Complaint contains outlandish, disrespectful, and intimidating allegations and language, it is clear to this Court that the real plaintiff standing behind "Robe Probe" and "John Doe" is Roger Shekar, a restricted filer in the Seventh Circuit {[a]lso known as Raj Shekar or Garan Shekar}.
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