One of the ongoing themes of this blog and the accompanying Facebook discussion page that inspired it is the concept of #Culturalinertia.
More specifically, shifting the way we think and talk about the issues that have become so ingrained in our culture that we may not even recognize the influences that prevent us from progressing forward with new thinking and approaches to the problems at hand.
We have explored, and will continue to explore, many aspects of this cultural phenomenon.
One of the things that makes this Cultural Inertia difficult to expose is the emotional attachments we form to the thinking that has us bogged down and stuck on the path we’ve been on for so long, especially if we attempt to deal with specifics that we all have strong opinions about.
The issue today is the concept of “Innocent until proven guilty,” and how it applies to our society outside of a court of law.
It has been a core tenant of our American legal philosophy that even someone suspected of committing a crime is to be considered innocent until proven guilty in a court of law before a jury of their peers.
However, over the years, that has expanded to a societal claim that we as a society must treat others with this same presumption of innocence. Despite this claim, society does not function this way. It never has. It is not supposed to.
We have seen many people lose their jobs over the #MeToo movement without a criminal trial regarding the allegations. We have seen many people lose their careers and public standing over videos of them giving racist rants in public spaces have surfaced, without a court of law making a determination of discrimination or assault.
After Dylann Roof confessed to killing multiple people in a church in Charleston, South Carolina, and his personal manifesto was found along with motivations posted on his social media, I commented on his guilt. I was told we needed to wait for a court of law to decide his guilt at trial before we could speculate.
He had confessed. We had witnesses. We had proof. Everyone knew he was guilty. That wasn’t the issue, the issue was could the evidence be presented in a court of law beyond a reasonable doubt without committing a procedural violation allowing the cased to be dismissed on a technicality.
Even if the court had found him “not guilty’ for any reason, it would not have changed the fact that he had committed this crime.
Saying he did would not open us up to charges of “defamation” or “slander” for which we could then be sued.
This is exactly why courts use “Not guilty” instead of “Innocent” as a final verdict option.
For an example of the other perspective, our current President famously took out a full page advertisement in a major United States newspaper calling for the execution of five young men that had been accused and convicted of a horrible crime. They were later exonerated of all charges, actually proven innocent of the crime for which they had been convicted.
Those men have no legal recourse against the man who called for the public to execute them for something they had not done. Their accuser is now President of the United States, he has never retracted or apologized for this. He has actually defended it.
The important points being that it is possible to be convicted of a crime of which you are innocent and it is possible to be found guilty of a crime of which you are not innocent.
Now it is also important to note that while there is a statute of limitations preventing some criminal charges from being prosecuted after a specific amount of time has passed, there is no such statute of limitations on public outrage.
This is an important distinction, especially when we get into evaluating personal and professional qualifications for elected and appointed governmental officials.
A political campaign or a political confirmation hearing are not criminal law courts (with the exception of a Senate impeachment trial) and do not operate under the same presumption of innocence.
When running for mayor, governor, Senate, House of Representatives, President, or any other elected office, the candidate is basically put on public trial. In this process, the press serves as prosecutor, the campaign team serves as defense, and the public serves as the jury. This jury must only reach a majority verdict not a unanimous one, and in the event of a tie, a retrial (run-off election) is performed.
Both Presidents Bill Clinton and George W. Bush were known to have, and admitted to, using drugs in their youth. Clinton with marijuana and Bush with cocaine. The public elected them both despite these issues, neither of which they could have been arrested and tried for at the time they were running for President due to the amount of time that had passed and the lack of proof beyond a confession offered while not under oath and not having been read their Miranda rights prior to confessing. If they had confessed to or been suspected of murder instead of recreational drug usage, every aspect of that would have been much different.
Now we as a people are faced with a Supreme Court candidate that has been credibly accused of an attempted rape. The only third party witness is also a named accomplice and he refuses to testify. So it is the word of two different people against each other with no physical evidence available to provide proof.
A court of law would not convict him based on this allegation. Nor would it provide him, nor any government official, grounds for a “defamation” law suit.
According to many courts, a public official is a government employee who has, or appears to the public to have, a significant role in the business of government and public affairs. Such people are considered to be held in a position that would draw or even demand public scrutiny. They also are considered to have significant ability to defend themselves regarding such public scrutiny and therefore cannot claim defamation unless the statement is not only proven to be false, but the defamer is proven to have shown reckless disregard for that falsity. New York Times Co. v. Sullivan, 376 U.S. 254.
This rule also applies to public figures. Not all courts have not specifically defined “public figure,” but they do identify candidates for public office and people who have achieved pervasive fame or notoriety as fitting this description. Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). A public figure could also be someone who voluntarily enters the public eye because of a particular public issue or controversy.
Courts have upheld this rule based on the U.S. belief that the public should be able to freely discuss national issues without fear of repercussions. If a public official or public figure believes that he or she has been defamed, he or she must prove with convincing evidence that the statement is false. The public official also must prove that the defamer showed reckless disregard for that falsity, either because the defamer knew the statement was false or should have known. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).
Just as a defendant is supposed to be set free if they cannot be found guilty beyond a reasonable doubt; a nominee for a lifetime appointment to the Supreme Court should be deemed unimpeachable beyond a reasonable doubt at the time of appointment.
From allegations of sexual abuse, clear proof of multiple counts of perjury, and possible qualification discussions with members of Trump’s personal defense firm, far too much reasonable doubt exists for his confirmation.
There is no requirement for presumption of innocence in the court of public opinion nor is there a statute of limitations on public outrage and outcry.
“You focus too much on Trump and racism, there are other important issues too, discuss those instead.”
“You need to stop fear-mongering about Trump.”
“Your girl lost the election, get over it and move on.”
For the purpose of this essay, in order to get to the issues at hand, I’ll ignore for the moment that the people telling me that my girl lost must have missed all my posts proving that Secretary Clinton was not “my girl,” in any way; that the people telling me to move on are the ones that spent 8 years screaming about birth certificates and emails and supported over 60 failed attempts to repeal the Affordable Care Act and are often sporting the battle flag of a defunct enemy of the state that was defeated in Civil War over 150 years ago; that the people telling me not to “fear-monger” are the ones supporting the NRA’s incessant “They’re coming for all your guns” nonsense for decades now.
Instead, I’ll address three points:
Is there anything more important right now to discuss than the incoming Presidential administration and its influence on Civil Rights?
Is it fear-mongering to point out verifiable facts?
Should we move on, without discussing these issues further?
“As bad as it was after Shelby and in this election, at least we had a Civil Rights Division which took these concerns somewhat seriously,” said Scott Simpson, the director of media and campaigns for the The Leadership Conference on Civil and Human Rights. “And we don’t know what we’re going to get under Sessions. But we can look at his record, and his record bodes very poorly for the future of voting rights in this country.”
“Shelby” is Shelby County v. Holder, the June 2013 Supreme Court decision that struck down a key provision of 1965 Voting Rights Act used to determine which voting jurisdictions would have to pre-clear any changes to voting procedures or laws with the US Department of Justice or a federal court. Without it, nine states and parts of six others with a history of racial discrimination related to voting were allowed to make changes as they saw fit. “The election, at least for communities of color, started in June 2013,” Simpson says. “The Shelby decision is when this election began for people of color.”
Throughout the campaign Donald Trump screamed about a rigged election, laying the groundwork for his recent tweet about winning despite millions of illegal votes being cast, a claim he cannot prove, but easily proven false. And the implications of this lie are important, as discussed by the New York Times:
In addition to insulting law-abiding voters everywhere, these lies about fraud threaten the foundations of American democracy. They have provided the justification for state voter-suppression laws around the country, and they could give the Trump administration a pretext to roll back voting rights on a national scale.
In the wake of the announcement of his win, despite losing on election day, the following weeks would see hundreds of hate crimes reported by followers inspired by his fear-mongering, hateful rhetoric against non-white and/or non-Christian citizens.
Of course, the President-Elect, after much prompting, issued a weak statement condemning the violence of his exuberantly passionate supporters, but, to use his own terminology, he only did so because it was visually important to do so, while still using the rhetoric that incited them in the first place.
Then if there was any doubt about his intentions for the future of civil rights, or his intentions to enable further acts of overt racism, he began to announce his selections for the Presidential Cabinet positions, including people like Steve Bannon and Jeff Sessions.
He then continued assembling a list of appointees to his Cabinet. There appear to be two criteria for such an appointment:
A willingness to differ utterly to the whim of the President-Elect.
A history of at least a few years worth of words and actions demonstrating the intent to undermine, discredit, dismantle, and ultimately privatize the division to which they will be appointed to lead. A clear and obvious example being Betsy DeVos as Secretary of Education.
These appointments include people who have not only joined in, but helped lead the way in normalizing the “alt-right” message of White Nationalism, Racism, Rape-Culture, and Patriarchal Misogyny that send a clear signal on the administrations intents for the future of civil rights for those that any have any combination of the following traits: people of color, women, and non-Christian.
This is not speculation, each one has a long and well documented history that is easy to investigate on your own.
Now consider the ever-growing coterie of nepotism beneficiaries and sycophants he is assembling, we begin to see the signs of a fascist dictator ascending to power. One who has modeled his speech methodology from the collective speeches of Adolf Hitler, one who has openly expressed admiration and respect for the dictatorial leadership style of Vladimir Putin. Consider that in combination with his social media Twitter tantrums, his inability to overlook a slight exemplified by his need to repeatedly attempt to humiliate and insult anyone who expresses criticism of him. Consider those in combination with the fact that this is a man who has never stood up and faced adversity in any way; he dodged the draft repeatedly; he has turned tail and run from multiple failing businesses to shelter himself instead of fighting for the employees depending upon him to succeed; he bullies and threatens people in order to settle lawsuits in his favor, but settles with all those who stand up to him rather than appear in court to defend himself. His only concept of conflict resolution is to throw tantrums, insult and threaten.
All together, it paints a clear picture of a man who is a vindictive, petty, spiteful, cowardly despot surrounding himself with similar, but weaker, personalities to do his bidding. So much so that he has already threatened retaliatory efforts against anyone in the press who publishes anything he considers a lie about him (whether true or not), his press surrogate has said that anyone that has spoken out against him will have to “bow down” to him as President, and he’s expressed the desire to revoke the citizenship rights of anyone that protests his administration or policy efforts — which would eliminate their ability to vote against him in the future. And before anyone claims that’s “fear-mongering,” make sure you consider that is a logical extension of the gerrymandering that the people he is appointing, and the leaders in the Republican House and Senate, have been working towards for years now. It is not speculation, it is simple analysis of the actions and words of these same people.
Then we backtrack just a little bit and remember his threat not to honor the rigged election results unless he managed to win. Once he is in power, he will continue to dismantle voter protections, equal rights, women’s’ rights, while stripping the people of their constitutional rights in favor of increasing rights of corporations, especially those corporations run by his own cadre of cronies.
It isn’t a leap of logic or faith to extrapolate from all of this, the possibility that the Republican Congress, Presidential Cabinet, and Supreme Court appointees he chooses over the next few years, might conspire to use their dismantling of the governmental institutions, constitutional rights, and voters rights, might well conspire to attempt to undo the two-term limit on a presidential candidacy in order to prevent a swing back to either the Democrats or some other Progressive movement and continue the regime indefinitely.
This is why my blog here, and my Facebook discussion page will continue to raise these issues at every opportunity, even if our major media outlets fear to do so. Right now, there is no more dangerous threat to the citizens of our nation or the future of our economy and society than the President-Elect.
If we are unwilling to face — or even speak — the truth, we will face the consequences. And they will be dire.
This article explains that Shapiro is well-versed in constitutional issues, and his argument has a legal, if contorted, basis. Nothing in the Constitution explicitly stands in the way of senators who would be willing to destroy the nation’s highest court ― if not an entire branch of the federal government ― to stop Clinton from selecting judges who share her views.
Considering the Republican Party’s dogged refusal to negotiate or compromise on most issues over the last eight years and their nearly unwavering dedication to obstruction even when doing so is detrimental to their own constituents, it really isn’t a difficult leap to think that they’d actually be willing to kill off the one branch of our three branches of government that has the authority to declare the laws they are attempting to create (such as the religious right to discriminate and voter obstruction laws) are actually unconstitutional.
Is it a transition our society and/or economy could survive?
Does the willingness of one party to hold hostage and threaten to destroy a fundamental core piece of our governmental structure influence the way you had intended to vote on either the Presidential or down ballot options?