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Author: Philip Drucker, Constitutional Law Professor & Staff Writer, Los Angeles Free Press (page 1 of 6)

Today’s Rant for 09-17-19: “Insight to Riot.”


In recognition of the 50th anniversary of the beginning of the Chicago Eight (later Seven) Conspiracy trial, today’s topic for discussion, dissection and dissemination is “An Act for Preventing Tumults and Riotous Assemblies, and for the more speedy and effectual Punishing the Rioters” aka The Riot Act.

In 1714, The Riot Act was signed, sealed and delivered by Parliament in response to a series of “many rebellious riots and tumults” following the Death of the Queen Anne, the last of the House of Stewart and the subsequent coronation of King George I who hailed from the House of Hanover. In Germany. He was German. Apparently, a big problem in 18th Century England. He who was of the Whig Party and not the Tories. Another big problem. Modernly, insert Labor for Whig Party and you get at least some of the political rivalry and narrative thereunder. Of course, without the Tower of London, the hangings and beheadings (for the most part) although Brexit is pretty funny to watch.

Once read out loud, the Riot Act allowed the representatives of the Crown to disperse and arrest any crowd over the size of 12 or more persons who did not vacate the premises within one hour under penalty of death. The proclamation read as follows:

“Our sovereign lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.”

The first version of the Riot Act in the United States of America (this excludes colonial adaptations) was passed by Massachusetts in 1786 in response to Shays’ Rebellion. The rebellion was a rural, populist response by farmers to increased taxation and predatory debt collection practices initiated by big city Boston politicians, bankers and lenders. At the federal level, George Washington signed into law the Militia Act of 1792 with the subtitle of “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.” Funny how it didn’t take long for supposed free speech loving Americans to enact laws against inciting riots. Congress shall make no law…

But in all fairness, inciting acts of violence and legitimate public discourse in opposition to the political status quo are two different horses of the same general color. Under current case law, I think it fair to say your First Amendment right to free speech does not include the right to incite imminent, lawless action virtually to cause damage to property and personal injury. Brandenberg v. Ohio 395 U.S. 444 (1969)

At the time of the trial for the Chicago, or Conspiracy Eight (then Seven), prohibitions against inciting riots were codified in federal law under 18 U.S. Code § 2101 – Riots, as part of the Civil Rights Act of 1968.

Under this Act, conspiracies amongst individuals crossing state lines for the purposes of inciting a riot were against the law. Of course, the government must prove the defendant crossed state lines with the premeditated intent to cause chaos, disruption and violence, you know, a riot. Usually, it is quite difficult to prove what someone was thinking at any given moment in time and citing the lack of email or tweet evidence although modernly you’d be surprised what some people nowadays put in electronic print, in social media, Facebook and Twitter and absent a hand-written “confession” letter (no word processors, neither) or even a wire-tapped phone conversation, predictably, the Chicago Seven trial went rather badly for the thought police. This despite everyone in the courtroom getting a free concert performance from Arlo Guthrie. But that’s another story along with additional info you may wish to read about in the Throwback Thursday section of the FREEP.

But for now, this is Tirade Tuesday and, accordingly, I’ll end with an admonition. For those of you who have never been “Read the Riot Act” you can now safely check that off your bucket list, figuratively and literally.

Today’s Rant for 09-10-19: “Why not now?” – Kimberly Teehee (2019) Well, for Starters…


On December 29, 1835, the Treaty of New Echota (TNE), the Echota is the capital city of the Cherokee Nation, new and old, was agreed to by the United States government as a “minority party” that at least superficially passed muster (at least with the US) as a valid, binding representative of the Cherokee Nation.

https://americanindian.si.edu › static › nationtonation › pdf

On September 4, 2019 Kimberly Teehee, Native American activist, advocate and member of the Cherokee Nation became the Nation’s first official US Congress delegate fulfilling one of the promises of the TNE yet previously left vacant for nearly 200 years. Delegate Teehee will not have an actual vote. Her principal roles will be as an observer and adviser. Of course, appointing a Native American to Congress was not the main purpose of the TNE. It was, as it turns out, to facilitate the forcible removal of the Cherokee tribe from their native lands in what was, in 1835, the relatively new state of Georgia, to an area far west, to the territory that would one day be known as Oklahoma.

You see, gold was discovered in Georgia. (Yes, long before the California Gold Rush was.  I guess it was the ‘not quite so great Georgia Gold Rush’.) This prompted the good citizens of the USA to demand the enforcement of their “state’s rights” as the basis of removing that which stood between them and the promise of El Dorado. Namely, the Cherokee Nation.

When the idea of relocation was first brought to the attention of our then Sixth President, John Quincy Adams, a supporter of native rights, he was initially reluctant to move forward. However, subsequent threats of doom, death and destruction moved Adams to begin negotiations with the Tribal Leaders, Cherokee Chief John Ross, to be precise. Not unexpectedly, Ross was cool to the idea.

All of this changed when, in 1829, Andrew Jackson became our seventh President. Jackson, a noted racist and overall psychopath (meaning he did his own killing, often in broad daylight), would have none of these meandering negotiations. So, without Ross, and with a minority group called the “Treaty Party” (you can’t make this stuff up) headed by a minor tribal figure by the name of Major Ridge, who not surprisingly claimed to speak for far more than the actual fraction of the Cherokee Nation his party, in fact, represented. In 1830 Jackson signed the Indian Removal Act into law conveniently allowing him to relocate the Cherokee west, by force, if necessary.

https://guides.loc.gov/indian-removal-act

Eventually, the TNE was worked out between the Federal Government and the sort of but not really Cherokee Nation for their ancestral land that somehow the settlers of Georgia now claimed all rights into, of and about and therefore, non-inclusive, of course. In return of $5 million in compensation, the Cherokee agreed to move west of the Mississippi ceding their previously owned land within the Georgia borders. They were given a two-year grace period to move voluntarily. Only approximately 2,000 Cherokee left. When time ran out, the roughly 16,000 Cherokee remaining were forced off their land by 7,000 troops. The Cherokee were not allowed to take any of their belongings. Many did not have shoes. Most did not have but minimal clothing.

The forced 1000-mile relocation (please note that the power of relocating the population now resides within the emergency powers of FEMA) would begin in 1838 and would continue through the winter. The US government knew this. They went through with it anyway. In the end, the Trail of Tears took the lives of 4,000 people most of whom died of cold, hunger and disease. Some still call it a relocation program. Still others, a carefully planned and executed act of genocide. About time they got that Congressional representation without a vote, don’t you think?

To see what the Cherokee Nation thinks, please visit the Museum of the Cherokee Indian @

https://www.cherokeemuseum.org/archives/era/trail-of-tears?gclid=CjwKCAjw8NfrBRA7EiwAfiVJpaebM6W1eIWhXgZ_ZlnulK_skj1f95ytDKd3SFCg3OMByNgJUlNlSRoC9tMQAvD_BwE

 

 

 

Today’s Rant for 09-03-19: Der Strum & The Fuhrer Circa 2019


I start with a simple reality. Trump is a predator. He’s not an alpha male. He’s not a man’s man. He is a sort of high functioning sociopath without empathy. He’s not “transactional,” unless you consider a “transaction” a one-way street to the benefit of whatever party lies, cheats, misrepresents and steals their way to the “best deal.” I myself would call such behavior fraudulent conduct but then again, I’d like to think I possess a conscience and I do know when a rock bounces off my head I feel pain.

Today, it is not pain I feel. I am physically alarmed and sickened by recent actions by this administration in the name of “immigration.” Let me emphatically state, America does not have anything that could possibly pass for even the semblance of a national immigration, asylum or naturalization policy in place. What we do have is a racist at its core and inhumane proto-pogrom for spreading fear, hatred and now death. Make no mistake, as with all good predators, Wicked Uncle Trump is grooming us, conditioning us, the American public, to accept that which is foreign and unnatural to the American way of life. Remember when Trump mocked a disabled reporter?  

This beast of prey is cunning. Like offering candy to kids, Trump seeks to facilitate his actual goals with paltry platitudes. In this instance, the promise of a safe, secure and homogeneous America. The way it “used to be.” Back then, when we were great. When we were “on top.” You know, back to our, as in us, not them, isolated and insulated superior “culture.” When we knew how to burn a cross or two if needed. When we were bigots and for the most part proud of it.

With Stephen Miller, his mini-me racist self-loathing demented little puerile and treif golem facilitating his master plan behind the scene and pulling the strings, they are at least clever enough to hide their ulterior motives under a veneer.  One that barely disguises (so his supporters won’t miss it) a clearly intolerant and ignorant veil of supposed sovereignty and the protection of our borders.

Are you starting to feel a little sick? They tried to scare us with unarmed men, women and children in “caravans.” They called them invaders. When that didn’t work and Trump got hit with a cleansing blue wave, he started using terms like rapists, gang members, and then infestation. Like rats. Sound familiar? It should. Do you feel that in the pit of your stomach? You should. You are being groomed to accept the ultimate solution.

Like all predators and their master plans, they start by attacking the weakest and most vulnerable amongst us. Threatening the sick and infirmed, those with cancer and other deadly diseases with deportation (and certain death) fits the bill. Ask yourself what does this have to do with domestic tranquility or protection from foreign intervention? Nothing. But if we allow this atrocity to happen, what’s next? If we accept that some lives are, in the natural order of things, worth less than others, of little consequence, and ultimately, utterly disposable, not what, but who is next? We are being groomed to accept the unacceptable.

The Nazis were systematic in their approach to genocide. They were blind to cruelty. They started with those least capable of defending themselves. When they “got away” with it, they moved to the next vulnerable group, then the next. Ranking people according to their “usefulness” is classic Nazi 101. Those who were “less than perfect” aka born with disabilities were at the top of the list for extermination. Now do you remember that reporter?

http://www.bbc.co.uk/history/worldwars/genocide/racial_state_01.shtml

If you are thinking it’s one thing to think it, another to do it, ask yourselves, but don’t look too far from the headlines for who are the actual people who will carry out these death sentences in the name of “immigration”? Will they claim they were just “following orders”? Sound familiar? It should.

https://pbs.org/newshour/science/how-the-nazis-defense-of-just-following-orders-plays-out-in-the-mind

Humiliation will lead to degradation. Degradation will lead to categorization. Categorization will lead to discrimination. Discrimination will lead to relocation. Relocation will lead to…it’s already happening.

https://www.newsweek.com/forcing-immigrant-girls-bleed-through-their-underwear-cruel-degrading-dangerous-opinion-1457040

We cannot let this continue. We can’t.

 

Note: Today’s Rant is a combination and extension of three earlier tweets made by Professor Drucker via Twitter @DruckerPhilip. You can follow him on social media at

www.instagram.com/philip_Drucker (mostly graphics)

www.facebook.com/philip.drucker

Would you like to know more? You can also get your fill of Phil at his website, DruckerReport.com featuring essays in his personal blog 

On 08-27-19 Today’s Rant is: 25th For The 45th Or Fight!


There has been a great deal of discussion lately regarding the 25th Amendment. In an era where a sitting president in public declared himself to be the “King of the Jews” and the “Second coming of G-d” I can’t say such talk is completely unwarranted or unexpected. Let’s do what we do here, break it down and see if we can make an educated guess as to the purpose of the 25th Amendment and its applicability to our present president and situation.

XXV is a somewhat unique amendment in that it, for the most part, is an amendment added to the Constitution for procedural purposes, clarifying and adding to the rather staid issue of presidential succession as contained in Article II, Section 1, Clause 6 of the Constitution reading in part;

“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President …”

FULL TEXT: https://www.congress.gov/constitution-annotated/

Seems simple enough, but as we know from discussions here, the Constitution was purposely written in a “vague” manner that not only encourages interpretation but, as a practical matter, demands it. Our latest mission impossible, should we decided to accept it, is to find the Constitutional meaning for the word “Inability”. Let’s break it down.

The Amendment is fairly new. It was written in response to the Kennedy assassination and the status of then VP LBJ as successor to the presidency. The main inquiry was, did LBJ assume the duties and obligations of the presidency, or was he actually president? Vive le Roi! Long live the Roi! With that in mind, moving on. 

The 25th Amendment is written in four sections. Section 1 involves presidential succession and the unresolved status of the vice president in cases involving Death, Resignation or Inability of the president. Short version, the VP doesn’t “assume” the powers and privileges of the presidency, s/he becomes the actual president. Section 2 involves appointing a new VP (the President does it). Section 3 addresses temporary disabilities (perhaps surgery) and written declarations allowing the VP to assume the duties and obligations of the presidency  and Section 4 that offers guidance regarding a situation where the president, for physical or mental reasons, may, or may not be able to continue as an acting president. Section 4 is admittedly a bit more on the gray side than sections 1-3, but the real question and point of contention seems to be what constitutes an “Inability” when by all reasonable standards, the president is at least still alive and conscious or to put it another way, capable of refusing to leave office? Like here. Like now.

There is no real precedent as Section 4 has never been invoked. Thought about, most recently during Reagan’s second term in office, but never acted on. It would also be fair to say there is no past indication that XXV is an alternative to the impeachment process. But, and I believe this is key, for even more than the definition of inability, the decision to remove under the 25th A for physical and mental impairments was left to politicians. And  that was even clarified by our 34th President;

…the “determination of Presidential disability is really a political question.” –Dwight D. Eisenhower

To invoke the 25th Amendment involves two branches of government, the executive and the legislative. Currently, “High Officials” in the form of cabinet members must first vote by majority to invoke. (Or, I might add, to some other body as Congress may delegate.) Then the invocation must be approved by 2/3rds of both chambers of Congress. The Supreme Court being left out on purpose due to the political question doctrine (the Supremes cannot involve themselves in a strictly political battle between the President and Congress).

The chief author and advocate of the 25th Amendment was Senator Birch Bayh, a famous trivia question answer in constitutional circles for being the only person other than the Original Framers responsible for authoring more than one Amendment.  (He also wrote and passed the 26th lowering the voting age from 21 to 18 years of age.) As a passing foot-note he was also an advocate for the ERA Amendment and for an amendment changing the election for president to the popular vote.

In final analysis, I blame Birch for our current constitutional confusion. Why didn’t he leave the determination of physical and mental “Inability” to medical experts? Doctors, psychiatrists and physicians? Those involved in medicine and healing and who might be able to make an actual determination of fitness and hence the word Inability? Politicians judging the physical and mental impairment of another? (suppression of laughter) Good luck with that.

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