Federalism and due process
This past Monday, the U.S. Supreme Court ruled unanimously that states cannot remove Donald Trump from the presidential ballot, as some have done citing the Fourteenth Amendment’s insurrection clause. The Court found that only Congress can enforce that particular provision, Section 5, and they have yet to enact any enforcement mechanism. If you are a loyal Judex reader, you may recall that I foretold a unanimous decision based on a Section 5 analysis. No applause necessary. It was a pretty easy call. You can read that post here.
Crime
In 2020, sixty percent of Oregon voters approved a law that decriminalized drugs. All drugs. For the past four years, it has been legal in Oregon to possess and openly use drugs like heroin, fentanyl and methamphetamine. Of course, since then overdose deaths have skyrocketed along with a raft of other negative consequences. This week, the Oregon legislature passed a bill to re-criminalize possession of these hard drugs at the misdemeanor level. It awaits signature by the governor, who has not yet decided to sign it, mulling whether “it’s a bill that I think will have the outcomes we need.” She means she’s not sure re-criminalizing hard drugs is the thing to do. It is, Governor. It is.
More crime
This Thursday, the University of Louisville Brandeis School of Law hosted a CLE titled, “The Ethics of Assisting Incarcerated People with Collective Action.” As described, the talk explored:
ethical issues pertaining to an attorney’s role in assisting incarcerated clients with collective action, including striking within prisons. In all fifty states, most concerted activity by prisoners is prohibited by policy, regulation or statute. Nonviolent collective action is an effective method to promote changes in conditions of confinement—likely more effective than litigation—and is therefore something that civil rights and criminal defense lawyers should assist incarcerated clients with. In some cases, affirmatively advising incarcerated people to organize in the first place may also be desirable. The central question explored in this presentation will be: given that the activity in question is almost certainly unlawful, can an attorney give such advice safely and ethically?
Presumably, this was a short CLE. An attorney cannot help a client break the law. Period. End of lesson.
Other
Greta Zimmer was an Austrian Jew whose family fled the country to the U.S. in 1939 to escape the Nazis. On August 14, 1945, it was announced that America had defeated Japan, ending WWII. Greta, by then, was a nurse at a dental office in New York City. When their radios trumpted the news of the war’s end, New Yorkers began spilling into the streets, filling Times Square. Greta, hearing the commotion, ran downstairs and into the street, as well. There, she encountered George Mendonsa, a sailor on leave from his post on a hospital ship in the south Pacific. George, who said later that Greta reminded him of the nurses on his ship, spontaneously grabbed Greta around the waist. The two then kissed in celebration of America’s great victory. Photographer, Albert Eisenstadt, happened to be standing right there and snapped this iconic photograph of the sailor and the nurse:
This week, we learned that a top official in the U.S. Veterans Administration issued an internal memo banning the use of the photo in VA offices. The memo said that “The photograph, which depicts a non-consensual act, is inconsistent with the VA’s no-tolerance policy towards sexual harassment and assault. To foster a more trauma-informed environment that promotes the psychological safety of our employees and the veterans we serve, photographs depicting the ‘V-J Day in Times Square’ should be removed from all Veterans Health Administration facilities.”
How stupid.
American soldiers and sailors in WWII, most barely over the age of eighteen, fought in ferocious battles such as Normandy, Midway and Guadalcanal in a valiant effort to save the world. And they did save the world. People like Greta fled Hitler’s advance into Austria, then had the resilience to serve others. Greta and George had seen trauma. Kissing in the street was not ‘traumatic.’ Greta later said that she was proud of the photo, and would sign copies for people. She and George kept up a friendship throughout their lives.
Now, some people think it inflicts unspeakable “trauma” to just see a picture of the two of them celebrating victory by exuberantly kissing in the street. What have we become?
While this is not exactly on point with the issues I usually cover in Judex, the ideology that moves a person at the VA to put out such a ridiculous directive has infected the justice system, too. One aim of this newsletter is to highlight such things because our courts are too important to abandon to this kind of thinking.
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