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Author: Philip Drucker, Constitutional Law Professor & Columnist, Los Angeles Free Press (page 3 of 16)

Phil Drucker Rants for 4-21-20: “Would You Like a Second Scoop of Stupid on Your Covid-19 I’m Going to Scream Cone?  

Let’s talk about the 10th Amendment, shall we?

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” -10th Amendment

It is in many ways a fitting ending to a document that starts with “We the People…” All power begins and ends with the people. So, what is it we expect from our dual sovereigns? The Covid-19 virus has given us an excellent opportunity to dissect and discuss the various constitutional roles and expectations of the people and along with it the very definition of good governance in a two sovereign both beholden to the will of the people in a democratic (one person, one vote) republic (government by elected representatives).

Let’s start with a simple, I’ll be kind and call it a presumption. The Federal response to the coronavirus pandemic has been abysmal. If nothing else, the Feds are responsible for protecting our shores from invasion. This includes invasion by germs, microbes and viruses. It is a mistake to think the Feds can’t, at a minimum, lessen the chances of exposure and once exposed, to the spread of any potentially fatal illness across the several states. Their ability to coordinate, alleviate and yes, eradicate these types of menaces is unparalleled in the world. Until today. Now, We the People are left to depend on the states for our safety and well-being. Will it be enough? Only time will tell.

Under the 10th Amendment, the powers not granted to the Federal Government are in the main referred to as the Police Power (PP). The PP gives the individual states the primary obligation and, therefore, the concomitant rights to protect the health, safety and welfare of its citizenry. Problem is no individual state has the right to cross state lines. Viruses? Not so much. They don’t care about lines on a map. Due to the inability of the Federal Government to get its act together, we are finding out a bit more about what the states can and will do to alleviate the pain and suffering of their people. They buy PPE on the open market. Some of them reach out and make alliances with other states, offering aid, medicine and supplies. Some don’t.

Some put the national economy ahead of the lives of their constituents. Some state officials have suggested the elderly should be willing to die so the Walton family can keep hiding money in their offshore bank accounts and so Jeffy the B at Amazon can continue to abuse his employees while selling you stuff you don’t need. Will it be enough? Only time will tell.

That leaves us with the people. I’m a people. I want to live. I respect my state’s right, authority and, in my mind, moral obligation to use all reasonable means available to keep us Californians as safe as possible. Viva! But some don’t. There are too many among us in too many states who consider the “stay at home wear a mask for heaven’s sake don’t be a fool” order a “lockdown” and of course, despite its obvious benefits, including the saving of lives, a government overreach and, of course, an infringement on their “essential rights.” The right to be stupid, I guess.

This strikes me as odd in many ways. Some, rather obvious. They quote Patrick Henry’s “Give me liberty or give me death!” in front of the local 31 Flavors. OK, a scoop of death it is. Hint: Next time, maybe try Sam Adams as your spiritual leader, sit down and have a beer. Just a suggestion. But here’s one a bit more obscure reason I find their disdain for the power of the state curious and it has everything to do with abortion.

The reason governors can issue mandatory orders for the population at times of great crisis involves the state’s interest in preserving life. No life, no citizens. No citizens, no work. No work, no taxes. The state needs you to be part of its productive workforce. Part of that is keeping you healthy so you can go to work. When it’s safe. Got it? But this the “conservatives” amongst us do not like. 

For the same reasons, a robust workforce, perhaps even to fill the next generation of soldiers we may need, the state has an interest in birth. The basic Constitutional argument for banning or not banning abortion is on one side we have the rights of individual women to make decisions regarding her fundamental privacy rights, in this case the right when to bear or not bear a child. On the flip side is the state’s compelling interest in protecting its citizenry, or in this case future citizenry and ensuring the continuance of the state’s vital interests, like you going to work, buying stuff and then collecting taxes on your paycheck and on what you buy. Sweet deal if you ask me.

And so, what is the moral of the story? The Feds have let us down. Some states are doing better than others. And the people, who can’t even wear a mask in public let alone stay home for their own good? That somehow this is a constitutional violation of their rights? While at the same time approving of the states right to force a woman against her will to bring a child she may or may not want to bring to full term? Even if the mother’s health is at risk? Even in cases of incest and rape? That somehow an infant’s first breath is more important than a sick or elderly person’s last?

Maybe leaving it all up to We the People wasn’t such a good idea in the first place. Only time will tell.


Did you get your fill of Phil?



Instagram: Philip_Drucker


Phil Drucker Rants for 4-14-20: “One Flu From Over The Cuckoo’s Nest?”

Let’s get a few things straight and for the record. The Spanish Flu pandemic of 1918 did not originate in a Spanish laboratory as an experimental biological weapon for use against the Germans in World War I. It didn’t even originate in Spain at all. The reason we call it the Spanish Flu is one of calculated perception during wartime and not of any sensible, factual reality.

Spain was a neutral country during WWI. When “la grippe” landed upon Spanish soil near the end of WWI and without any wartime morale to lift, or any military secrets to keep, the Spanish press did what all presses do. Write articles and well, report, widely. When King Alphonso XIII fell gravely ill to the disease, well, the French, English, Belgians and Americans said, “Hey! Don’t look at us! We had nothing to do with it!” But it wasn’t true.

The Allied nations who by this time had been joined by America, all started calling it the “Spanish Lady” or “Spanish Flu”. The Spanish protested vociferously. The headlines of their daily newspapers began shouting out the “French Flu”. But it didn’t take hold. This despite the Spanish Flu was relatively mild, mostly contained and in no reasonable estimation “widespread” throughout the nation. Even after King Alphonso XIII recovered from the virus, it did not change the rest of the world’s commitment to avoid any notoriety or taking reasonable responsibility for their actions, This despite far more incriminating and tangible evidence of their likely culpability
In creating, aiding and abetting the virus. But not Spain.

Our best guess is, as part and parcel of the lack of hygiene and sanitation surrounding the trenches in Western Europe coupled with the general shortages of readily available medicine (and starvation) normally attributable to times of war, the Spanish Flu pandemic probably originated in England (returning soldiers may have brought it with them), France or Belgium. But not Spain.

And then there is America, where the first documented cases (but not reported to the public at the time) of the virus were in a hospital camp in Haskell, Kansas, or possibly, some say, a bit earlier, though in a less well-chronicled outbreak in somewhat nearby but not really Massachusetts. But not Spain.

The Spanish Flu was the first of two deadly pandemics caused by the H1N1 influenza virus. One of the defining characteristics of the H1N1 strain is its ability to be transmitted through birds and pigs. The other H1N1 pandemic? You guessed it. The Swine Flu epidemic of 2009. This time, they blamed the pigs. But not the birds. Strange because you can’t get the disease by eating pork. It was passed mostly through perspiration droplets from humans. At least they didn’t blame Spain. Note: The county of origin was probably Mexico. Why not the Mexican Flu? Probably had a better crisis PR firm.

So, extrapolating out to today’s world of misinformation, disinformation, distraction, gaslighting, infighting and outright lies, there are the 24-hour news cycles whose only mission seems to be making matters worse than they are for higher and ever higher ratings. Are there no government officials who are in fact responsible for protecting us willing to take any responsibility at all (they take none, right?) for their lack of action in the face of an ever-climbing infection and mortality rate? Who I say, who let this contagious cow out of the barn? I was being facetious. DO NOT call it the Cow or Bovian Flu. My money is on the Wuhan or Chinese Flu. COVID-19 just sounds so cold and impersonal. Just like a virus should, you know?

Of course, given my druthers and perchance for historical and social justice, how about the Trumped Up Flu? At the least, a colloquial saying added to the lexicon? “Let them eat Chloroquinine? Anyone? A bit much? Still, it’s a thought.

Did you get your fill of Phil?

Instagram: Philip_Drucker

Phil Drucker Rants for 3-31-20: “Did You Know He Bred Deerhounds Too?”

Sydney Thompson Dobell was a poet who in his day was perhaps of some minor notoriety and merit, but not much. Born on April 5, 1824, Syd was the son of a wine merchant on his father’s side and on his mother’s, the daughter of Samuel Thompson, a London political reformer. He grew up as all good products of Victorian Era middle-class England, a “dandy” of sorts but in his case, with a fierce desire to change the world through political reform, and his poetry.

 As a sentient, somewhat worldly Englishman during the last half of the 19th Century, STD was undoubtedly aware of political and/or artistic events and movements as the Crimean War, Franco-Prussian War, Age of Romanticism and the Belle Époque Era (Golden Era) of French and Western history. During this time, the modernization and attendant carnage of war led to the call for a new type of art, of painting, sculpture and writing to address the pain, suffering and horrors of war previously hidden from public view but now exposed via telegraphed reports from the front and wide access to, at least, for the times, modern photography.

 One of the movements produced by the blending of art, intelligence, pathos and political commentary involved a group of poets often called the Spasmodic school. Reportedly dubbed by no less than Lord Byron, the Spasmodic movement created a kind of realistic, worried about our very existence and heavy (probably too much so) on metaphor style and method to describe the state of enlightened 19th Century thought. I guess you could say it was at the time romantic to live one’s life in vain trying to obtain the unobtainable. Existentialism on steroids I tell you.

 Religion at the time was, for the most part, an internal struggle between the individual and the present-life. Little thought was given to the afterlife. As Plato, most likely quoting Socrates at his trial before he was forced to drink hemlock, said many centuries before,

 “The unexamined life is not worth living.”

 These words, meant to show the banality of living one’s life in a routine dictated by the rules of others, without question, became the rallying cry of enlightened thinkers who, in many ways, wanted nothing more than the ability to make decisions for oneself and to let the chips fall as they may, or may not.

 Writing under the nom de plume Sydney Yendes, Dobell began writing and publishing a series of spasmodic minor poems about life, death, more death, tragedy and political reform including his generally acknowledged masterwork, “The Roman”, to be followed shortly thereafter by “Balder” another dramatic poem of mid-level accomplishment and notoriety.

 T. Dobell was an early and outspoken advocate of Women’s rights and openly championed the cause of the oppressed. He died on August 22, 1874.

 So, why am I writing about this guy? It’s because via his unique blend of metaphor, extravagance, drama, politics, spirituality, unrequited life and death and struggle, he furnished one of my all-time favorite quotes.

 “It is a zealot’s faith that blasts the shrines of the false god, but builds no temple to the true.” – Sydney Thompson Dobell

 True then, perhaps even truer today. Reminds me of Bernie, to be honest. Big Business/Banks suck, yeah, yeah, but what is the alternative? The Solution? Ain’t nothing free. And then there’s Trumpus Unelecticus the fattest of the fatted golden shower manna calves hissself. You are remembered, and admired my friend. Yes, you still are.


More Phil:



Instagram: Philip_Drucker







Phil Drucker Rants for 3-24-20: “Meet Henry Cornelius Burnett”

Born in Virginia but raised from an early age in Kentucky, Henry Cornelius Burnett was a lawyer by profession. Some would say a good start. Some not so much. After a stint in public office as a circuit court clerk, he was elected to and eventually served four terms representing Kentucky in the USA House of Representatives. Later he continued to represent Kentucky but as a member of the CSA[1] House of Representatives.

He was your typical mid-nineteenth century knuckle dragger. An all-around first-class racist slave owner. George D. Prentice, a pro-Unionist editor who built the Louisville Journal into a newspaper powerhouse described him as “a big, burly, loud-mouthed fellow who is forever raising points of order and objections, to embarrass the Republicans in the House.”

He was thought of as “passionate” regarding his policies and politics in general by those who, of course, admired the “Southern Cause”. His campaign platform included a promise to arraign Lincoln (and I imagine to “lock him up”) for treason.

Kentucky was officially a neutral state during the war. That didn’t stop Burnett, who represented the pro-secessionist 1st District, from forming a militia unit sympathetic to the Southern cause. Although having no previous military experience, he became a Colonel in the 8th Kentucky Infantry. After the Union occupied the state to prevent further acts of secession, Henry, never one to shy away from violence except when it put him personally at risk (his entire military career consisted of one battle that the Gray Team lost) advocated for actions amounting to what we would call today guerilla warfare against the “Lincoln guns” and their supporters.

In the event Kentucky continued to refuse to secede, he and his fellow rebels began plotting to annex the entire 1st District to and align itself with the runaway state of Tennessee. He was part of a cabal that tried to initiate a Confederate Kentucky government within the already existing Pro-Union Kentucky. Neither of these events ever happened. Eventually, HCB was expelled from Congress for disloyalty to the Union and taking up arms against the United States. As the war dragged on, and the South continued to lose, he became more radical, at one point calling into question Confederate President Jefferson Davis’ loyalty as he was a graduate of the Yankee military academy West Point.

After the war, he asked for clemency from former Vice President, now President and fellow racist Andrew Johnson. Johnson ignored him. Henry was later criminally indicted, but never prosecuted for treason, the reason why unknown. In his remaining years H.C. Burnett, Esq. remained in Kentucky and returned to the practice of law. He died of cholera. He was 40 years old.

HCB, his plain tombstone showing evidence of his Confederate past, did not live to see Kentucky leave the Union. I never thought we would either, but here we are. Too bad Henry didn’t think about asking a Russian oligarch for an investment in an aluminum plant. Seems to have done the trick quite nicely.

Did you get your fill of Phil?

Instagram: Philip_Drucker

[1] Confederate States of America

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