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Justice

Late June (Dis)Pleasures.

Walk with me. A sedate stroll on Sauvie Island, easing us into a week where I will be working on a longer writing project and thus not posting across the 4th of July holiday.

Nature put on a show. Then again, when does it not?

Bloom and setting of fruit happening simultaneously for the black berries.

Oregon grapes already basically ripe,

while Hawthorne berries showed only a hint of the red that will later attract birds and squirrels alike when reaching full saturation.

Oak galls galore, a consequence of chemical injections by wasps who benefit from these growths.

Flowers in the meadows competing for my breathless mutterings – Oh, beauty!

Rufus Towhee hopping around, distracting me away from their nest, while ground squirrels watched with amusement.

Water levels high at the lake, serene at the canals, and small clouds lightening the grey skies.

The ospreys reliably resettled their nest that I visit every year.

If you stand close by, quietly, long enough, there will be coming and going, with lunch provided for those who wait long enough and screech loud enough.

Nature, relying on us to preserve it, since we have stressed it already so close to the limits. Preservation that will be made infinitely harder with the abominal Supreme Court Chevron decision last week which, as Zoe Schlanger at The Atlantic put it, shoved American environmentalism into legal purgatory. Read it and weep. The kneecapping of federal regulators will, of course, not just harm the environment, but also have huge implications for consumer protection.

This implies not just safety for what you eat and drink, or cars and planes, or warnings about chemical agents that might be harmful. It fully embraces the issue of pharmacological treatments, their safety and access granted to them, including the long sought prohibition of oral abortifacients. It also implies that a judge or a panel of judges can make decisions on the availability or necessity of vaccines. Think of another pandemic rolling around, and the judiciary, filled with anti-vaxxers, decides that vaccination is illegal. It will affect labor regulations, from workplace safety to pay requirements to the sales of goods no longer considered fairly made.

We cannot even conceive of the extent of the consequences this decision will have for the American people. Protection blown to the winds like grass seeds.

Justice Kagan’s dissent in Loper Bright Enterprises vs Raimondo is worth contemplating.

“A rule of judicial humility, gives way to a rule of judicial hubris. In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”

Regarding stare decisis, the respect for previously made decisions:

“It barely tries to advance the usual factors this Court invokes for overruling precedent. Its justification comes down, in the end, to this: courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.“

Mullein has the symbolism attached that it opens channels of communication with a higher power. Man, do we need that…..anybody out there????

Well, so much for sending you off to a holiday week. Enjoy your fireworks while they are still safely regulated in defiance of profiteering at all cost.

Music today is the Prelude to Bach’s Cello Suite # 2 in D-Minor. You can read darkness into it, or, as I do, a moment of hope. Preludes are beginnings – and we can always begin anew, putting things right. Eventually. Hopefully.

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Juneteenth 2024

Today is Juneteenth. We mark the day in 1865 when the last of enslaved Black Americans in Texas first learned of the Emancipation Proclamation – more than two years after it was issued. It is a day that reminds us that change is not just desirable, but possible. That liberation is to be celebrated as a shift from a status quo – slavery – to a goal, however compromised in its evolution: freedom and equality for all.

Photographs today were taken 10 years ago when I still worked as a volunteer photographer with dance groups for teaching kids African dance, drumming and customs.

Seems like the perfect day to ask the question why so many powerful forces in this country, most densely represented in the current Supreme Court constellation of judges, want to revert from the change that we celebrate to a situation that enshrines the status quo at the very time when slavery was alive and well.

I am, of course, talking about the embrace of Originalism, the legal theory that judges should interpret the Constitution exclusively in ways the Founders meant it.

Let me count the ways in which this approach, heavily promoted by right wing forces across the judiciary, is problematic. For a more in depth discussion of the issues I strongly recommend a new book by Madiba K. Dennie, The Originalism Trap. The legal commentator, previously a counsel at the Brennan Center for Justice and professor at New York University School of Law, is now a deputy editor and senior contributor at the critical legal commentary outlet Balls and Strikes, which I follow closely. Her new book reveals the many inherent faults of this supposed intellectual theory that treats civil rights gains as categorically suspect, eager to roll them back, reverting the country to the inequitable version of the past.

Here are the bullet points as expressed by her:

  • Originalism is the idea that the meaning of the Constitution is fixed in time, locked in when the Constitution’s provisions were ratified. If you asked an originalist how you should interpret the Constitution today, they would tell you there’s only one way you can legitimately interpret it: the way it was interpreted 200 years ago. Originalism is ostensibly tied to a single point in time, and as a result, it bakes the biases and bigotries of that time into constitutional interpretation. 

  • Even if there was a single objective historical meaning of the Constitution (and there isn’t), and even if the Court relied on the finest historians to unearth that meaning (and it doesn’t), it would still be irresponsible to cast aside all the ways democracy has evolved in the intervening centuries and relinquish our right to self-governance. A well-intentioned liberal originalist would still be outsourcing constitutional interpretation to 18th century men who couldn’t possibly imagine a modern pluralistic society. That does a disservice to the whole nation, and poses an unique threat to historically marginalized people.

Dennie favors an alternative approach dubbed inclusive constitutionalism. It focusses on the fact that our nation adopted the Reconstruction Amendments in the wake of the Civil War. The 13th, 14th and 15th amendments were added to the Constitution and abolished slavery, granted equal rights to formerly enslaved people, and enshrined the right to vote for people of all races.

In the scholar’s words:

“They instruct us to create an equitable multiracial democracy in which everyone can live freely, equally, and with dignity. Inclusive constitutionalism argues that the whole Constitution must be interpreted through that lens. Legal interpretation should be guided by the Reconstruction Amendments’ expansive principles and their unfinished mission to foster a democratic society with equal membership for all.

Inclusive constitutionalist courts would protect people’s right to make decisions about their own bodies and to live with dignity. They would protect people’s right to make decisions about their communities and participate in the political process. And they would recognize all people as legitimate members of their communities.”

Of course all 300 million of us are currently ruled by nine unaccountable people, the majority of whom want to turn back the clock and have the power to do so for the rest of their lives. There will have to be structural reforms like court expansion and term limits as some limitations on the court’s authority in addition to demanding a retreat from originalism as selectively applied as it is right now. It would truly be in the spirit of Juneteenth, or the promises of democracy, providing equal rights to all marginalized or hierarchically locked in place groups.

Happy Juneteenth! A federal holiday. Never mind that in Alabama, Arizona, Arkansas, Florida, Idaho, Iowa, Louisiana, New Hampshire, Oklahoma, South Carolina, Tennessee, and Texas, Republicans have passed laws to prevent teachers from teaching kids why. It’s not just the Judiciary …..

Ok, time to turn away from doom and gloom to celebrate the spirit of Juneteenth: here is Jean Baptiste to the rescue, with music to dance to!

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Protecting the Young

Let’s treat ourselves with something amusing, if slightly moralistic, at the end of this week: a short animated film about the strenuous efforts of parental love. Enjoy the clip while you can, because much darker contemplations follow in short order…

Would a parent risk their own life, like we’ve seen in that charming animation, if that pregnancy was violently imposed on them, created by rape, and secured by laws that demand forced birth? You probably have seen the same statistics as I did this week, horrifying enough that I could not just ignore them.

Since the SC Dobbs decision revoked the rights and protections offered by Roe vs Wade not so many months ago, some 64.500 pregnancies resulted from rape in the 14 states that now have complete abortion bans. (If that number is not horrifying enough, think about this one: it is estimated that 5% of all rapes result in pregnancy. That means that you have a 20 fold number of rapes that occurred in these states, within less than two years.

Friderike Heuer Jupiter’s Moons (2023) Figures by Paula Modersohn Becker (1876 – 1907)

What do we know about children born from rape? Psychologists have identified a number of factors that severely impact the development of these secondary victims of the crime. Risk factors are pregnancy and delivery, bad parent-child relationships, stigmatization and discrimination, identity issues, and, last but not least, significant numbers of infants being farmed out to foster care where they often enter a cycle of violence themselves since that system is not in good shape or under supervision.

The post-traumatic stress experienced by the mothers who were raped can influence the development in utero of these babies, as does the frequent intake of anti-depressant and anti-anxiety medications to deal with the horrors of PTSD, or self-medicating with alcohol and/or drugs, substances that affect embryonic development.

For many mothers it is hard to love a child that was forced on them twice, first by the rapist and then the state depriving them of bodily choices. According to the research literature, communities treat children of rape with disdain and families, communities and the children themselves are hyper-vigilantly looking for negative traits that might have come down to them from the criminal.

Many of these children, later on trying to get a handle on their identity, want to know their fathers despite the harm those brought upon their mothers, and that leads to internal conflict and a sense of guilt, particularly if these rapes occurred during war times.

These combined factors, exacerbated by the rape victims’ shame and/or anger, predict serious mental health consequences for the majority of children born this way.

Friderike Heuer Aphrodite (2023) Portraits by Helene Schjerfbeck (1862 – 1946)

As I said, I could not avoid touching on these issues, given their political importance in a country that is trying to take rights and decisions away from women, and willfully ignores what happens to their children as well.

Let’s have music that might lift the mood a bit, again related to some sort of animation. When was the last time you listened to Peter and the Wolf ? There is a reason it has had such staying power.

Today’s photomontages are from an ongoing series that attempts to bring painters I cherish into my contemporary world. The two on offer happen to depict women protecting their children in landscapes I photographed in the US and in Europe.)

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Learning from the Best

I came across the document from 1944 by chance, but was immediately intrigued. The Simple Sabotage Field Manual was originally written by the OSS (Office of Strategic Services,) the forerunner to the CIA, an organization formed as an agency of the Joint Chiefs of Staff to coordinate espionage activities behind enemy lines for all branches of the United States Armed Forces.

It gives detailed instructions how to harm productive outcomes in organizations of all kinds and was distributed by the Allies to cooperative citizens in Europe during the war. Declassified in 2008, finally, it has made the rounds in business schools and board rooms. (Ref.)

Part of the instructions focus on slow-walking the decision-making process, trusting that a delayed outcome, as it often does, has adverse consequences. In that regard it reminds me of the insane slow-walking by multiple players that we are seeing in our current political landscape. Those in power can delay and defer, until it is too late – court cases becoming moot, or their outcomes no longer able to influence real world results. Simple sabotage? I’d say a more serious one, if you consider the real life consequences of these actions.

As one example, think of gerrymandering election districts, which will remain on the ballot if the judges don’t pick up the cases or slow-walk them through the court system. A good example here is the Supreme Court’s glacial pace in the Alabama gerrymandering case which led to allowing maps it later held were unconstitutional and discriminatory to be used in the 2022 midterm election. Citizens were deprived of their rights simply through slow -walking.

Currently, the Ohio AG is slow-walking a petition to put an anti-gerrymandering amendment onto the November 2024 ballot, again potentially curtailing significant rights to Ohio citizens. (Ref.)

Another issues is connected to Congress’ slow-walking of aid decisions – any delay of potential help for Ukraine, for example, indirectly aides and abets the aggressor in this war, with irreversible consequences, if the delay leads to Russia winning the war. Here is an excellent essay about this topic by Yale historian Timothy Snyder from just yesterday.

Another example that springs to mind are the legal issues associated with Trump indictments, across multiple states and for diverse accusations.

Judge Cannon in Florida, presiding over the stolen documents case, for example, has managed to drag out the proceedings in ways that will open possibilities for the accused to claim political interference in the election campaign once he was chosen in the primary, or, worse, allow himself as future president to attempt self-pardoning.

Then there are the cases that are on hold while the issues of absolute immunity, claimed by Trump, are waiting for appellate or Supreme Court decisions.

In addition, we are waiting to see how the Supreme Court contorts to handle the Colorado and Maine 14th amendment cases where Trump was not permitted to appear on the ballot for the primaries (note, NOONE has said or argued that he is prohibited from the ballot in a general election, as afar as I know, so far.) A timely decision is of incredible importance, since recent polls reveal that Americans who plan to vote for Trump in 2024 claim they would change their vote if a jury convicts him of a crime.

The best summary of the 14th amendment issues, pro and against Trump, can be found here, by legal scholar Ian Millhiser. Another great break-down of what individual scholars of constitutional law fear or predict regarding the SC decision-making process was offered in yesterday’s Washington Post.

As you will see, slow-walking is high on the list for an institution that wants to see a certain outcome without making itself vulnerable to accusations of putting – yet again – a thumb on the scale of an election outcome….

Photographs today show cloud-laden vistas, the fog of war against democracy was my immediate association. The sabotage manual and its instructions to fog up the process is still in use.

Music is Debussy’s Fog (Brouillard) from the Preludes.

Here is the full Prelude set, if you want to have your dark winter evening filled with light….

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Jurisprudence for the Bad Times

7/25/023

This appeared in my inbox yesterday, after Netanyahu and his brethren had pushed through legislation that a majority of Israeli citizens opposes. Unless you live under a rock, you will have heard in the news or read in our own major newspapers about the changes that drive Israel in the direction of other small, autocratic countries like Hungary and, increasingly, Poland, and the huge opposition they ignited. I thought I’ll summarize the major points best I can, but with a focus on what it implies for women, Jewish, Arab and Palestinian women alike. (Correspondingly, photographs today are street shots of women across the years.)

I used to be on the Board of the local Chapter of NCJW, the National Council of Jewish Women, before it closed its doors here in Portland, and am still receiving important information from the national group. Much of today’s information was gleaned from there.

The basics: The State of Israel has no formal constitution that anchors a separation of powers, preventing the executive or legislative bodies from accumulating too much say through a structural system of checks and balances. The judicial system, in particular the Supreme Court, served as a check on governmental excesses or violations of human rights instead, particularly those affecting minorities and women. It functioned around a “reasonableness doctrine,” which permitted the court to overturn government decisions that they felt lacked standards of basic fairness and justness, and the rulings did not require unanimity from the full bench.

The reasonableness doctrine, that very tool to curb power grabs by the legislative, has now been scrapped by the coalition of Netanyahu, far-right factions in his government and the ultra-Orthodox. More is in the wings, including the proposal that the court needs full bench agreements, and a new bill that will allow to override court decisions with a simple majority vote of the Knesset (Israel’s legislature). There is also a proposed bill that stipulates pure government control over the appointment of judges, and a proposal that would turn legal advisers who serve government ministries from professional appointees accountable to the attorney general into political appointments controlled by Cabinet ministers. Add to all that the hope of the extremist religious factions to move closer towards a theocracy, where many legal decisions will be in the hands of religious courts.

The specifics:

Last week there was an emergency meeting convened by the Labor Party and others at the Knesset under the title: “Emergency conference on the elimination of the status of women.” Points of discussion were far right proposals to advance the “right” to gender segregation, as well as their bill towards expanding the rabbinic courts’ powers in matters of divorce to include alimony and custody elements, with dire ramifications for the rights of women in divorce proceedings. And, importantly, the extremists’ move to disband the National Authority for the Advancement of the Status of Women, an independent watchdog that preserves and protects women’s rights.

According to the Israel Democracy Institute, this is the status quo:

The current situation in Israel is that women’s rights are not adequately protected. Women are not appropriately represented in the senior ranks of government ministries and local authorities (only 14 of the 257 local authorities are headed by women); many women are the victims of various forms of violence (the estimate is that approximately a million women and children in Israel are exposed to domestic violence); women suffer significant wage differentials in the job market; and a large percentage of working women hold low-paying jobs, especially women from groups that are the victim of discrimination, such as the ultra-Orthodox and Arabs.

If the legislative proposals became law, the situation would be far worse.

For one, the composition of any future court would shift even more heavily male and conservative, if the appointing committees would be under the control of the radicalized government. If the courts can no longer effectively provide constitutional reviews of proposed laws, the protection of women and minorities would suffer. The proposed amendment of the anti-discrimination law will harm women. Right now the law says that gender segregation is unlawful discrimination. The ultra-Orthodox would like to reinstate gender segregation in all forms, thus excluding women from public office, the courts, and the like (women are already minimally represented as is.)

Even if the courts could still fulfill their role in protecting against discrimination, the proposed bill that a simple majority of the legislative body could overrule the court, would leave women without ANY recourse.

And women’s rights in rabbinical courts are considered by many to be a travesty. Included in the proposed legislation to expand the power of rabbinical courts in civil matters is the adjudication of child support even without the consent of both parties, contrary to the current situation where if one of the spouses requests transferring the child support case to the family court, they can do so. Women who want a divorce are often forced by these courts to sign all of their rights away to be granted the legal separation. (Ref.)

Women’s advocacy groups like Bonot Alternativa called for a strike last week.

“One in three women experiences ‘get’ (divorce) extortion and are forced to give up their rights to free themselves from marriage. One in every 10 court procedures in the rabbinical court lasts over two years and causes a case in which the woman and hundreds of other women are refused a get each year and join the ranks of the agunot (chained women).”

Here is a link of an interview by Daliah Litwick of three Israeli women involved in the opposition to an expansion towards theocratic rule. It provides a lot of details of what the stakes are.

The options:

Hundred of thousands have marched in Israel in protest across the last months. Many professionals, military personnel included, have threatened strikes or absence from work duties. Eminent politicians across the spectrum, including former and current presidents, have warned against pushing the new legislation through, seeing it as a dangerous undermining of democracy.

There are also people who study resistance, in particular non-violent resistance from a general and a Jewish perspective. Just last week, a conference took place in Israel, organized by Bar Ilan University and the German University of Leipzig. Titled Non-Violent Resistance: Multi-disciplinary perspectives from the past, present and future for today’s democracies, the conference showcased lecturers from diverse fields and backgrounds. They tackled a lot, from the Hebrew Bible as Resistance Literature, to the Strategy and Principles of Non Violent Civil Resistance on a pragmatic level. It was surely no coincidence that the key note, presented by Menachem Mautner, the Danielle Rubinstein Professor of Comparative Civil Law and Jurisprudence at the Tel Aviv University, Faculty of Law, was titled – Jurisprudence for the “Bad Times.” Maybe their insight and knowledge can be applied to a contemporary crisis as Israel experiences it right now.

We will see how much and how long an active opposition to those undermining democracy can endure. Seeing the commitment by such large numbers of Israelis so far is providing some hope.

Here is NCJW’s solidarity statement from yesterday.

Here is a wild collection of variations on a theme – The People United Will Never Be Defeated.

Rest in Power, Frederic Rzewski.

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Women and Words

Layli Long Soldier’s (Oglala Lakota) first full-length collection Whereas (2017) won the National Books Critics Circle award and was a finalist for the National Book Award. Her poem above was published in 2018, in one of the most interesting anthologies around: The New Poets of Native Nations. 21 authors write about their thoughts and experiences of being indigenous people in America, with work published after the year 2000, the heirs to Joy Harjo and Sherman Alexie.

“New Poets of Native Nations gathers poets of diverse ages, styles, languages, and tribal affiliations to present the extraordinary range and power of new Native poetry. … Collected here are poems of great breadth — long narratives, political outcries, experimental works, and traditional lyrics — and the result is an essential anthology of some of the best poets writing now.” 

The diamond structure of the poem allows the reader to find their own path – combinations of diverse actions taken or ignored, for past, present or future. At the core, inevitably presented and crossed, is grief. But at the beginning and the end is an “us,” the reason why this poem stirs me. The words “as we” and “our faces” acknowledge, in my mind, that grief is shared, and action as well as consequences can be communal. The harmful ones, but the empowering ones as well.

By the way, all the words in this poem also appear in a Native American Apology Resolution, signed by then President Obama. Never heard of it? I hadn’t either – it wasn’t a direct apology from the government, but rather apologizing “on behalf of the people of the United States to all Native peoples for the many instances of violence, maltreatment, and neglect inflicted on Native peoples by citizens of the United States.” The resolution included an important disclaimer as well: Nothing in it authorizes or supports any legal claims against the United States, and the resolution does not settle any claims. Robert T. Coulter, executive director of the Indian Law Resource Center, pointed to the “overwhelming silence” regarding the resolution. “There were no public announcements, there were no press conferences, there was no national attention, much less international.” No wonder we didn’t know.

***

In a month that has seen the highest Court in the land generally rescind rights that were granted to the vulnerable or those with less power in our social, historical and political landscape, it is important to remember that we can and must build coalitions.

On June 22, 2023, the United States Supreme Court refused to hold the United States accountable for water rights it holds in trust for the Navajo Nation. In times of increasing water scarcity and competition for water, this is a blow to the spirit of preceding treaties.

In another ruling, 303 LLC Creative vs Elenis, discriminatory behavior was given the green light for a business offering customized expressive services, allowing it to violate state laws prohibiting such businesses from discrimination in sales (as it turns out, the facts presented for this case were based on lies, but the Court seemed to be not caring or oblivious.) The revival of the ugly spirit of Plessy vs Ferguson is going full speed ahead.

And a 6-3 majority on the Court dismantled affirmative action in college admission policies, a process originally granted due to an acknowledgment of structural racism. Note, it did so for elite educational institutions (and likely to extend to businesses and institutions of all kinds focused on diversity, equity and inclusion), but leaving the practice standing for military academies. I am paraphrasing someone who said this first: minorities can die in the bunker, but not share the boardrooms…) which struck me as particularly apt.

Here is a summary by lawyer and court observer Dahlia Lithwick on the outcome of this term – I am quoting her verbatim because she is succinct and hits the nail on the head.

To see why this term was not some kind of triumph for moderation, consider the decisions that commentators have deemed huge victories for the left. Moore v. Harper simply rejected the independent-state-legislature doctrine, a fringe theory that was rendered toxic by its central role in Donald Trump’s failed coup; at the same time, the court awarded itself ongoing authorityto rein in any state courts that it deems to have gone “too far” in protecting democracy, codifying a minority viewpoint into law. United States v. Texas merely put a new limit on the outrageous collusion between red states and a clutch of rogue Trump judges eager to seize control over immigration enforcement. Haaland v. Brackeen followed precedents reaching back two centuries in upholding Congress’ power to protect Native people; even then, it left the door open to future legal attacks on Indigenous rights. Allen v. Milligan affirmed an interpretation of the Voting Rights Act that has stood for nearly four decades and imposes moderate limits on racial gerrymanders. It was arguably the one clear-cut “liberal” victory of the term, and that’s only because the protection of voting rights has now become coded as an exclusively liberal concern. Even that “win” came only after the court left an illegal gerrymander in place for the 2022 midterms, and after years of attacks on Section 2 of the Voting Rights Act that left it much weaker than it used to be.

Now consider this term’s victories for the right. Biden v. Nebraska abolished a program that would’ve forgiven $430 billion in student debt for 43 million borrowers by concocting a self-contradictory theory of standing then relying on a “major questions doctrine” that isn’t a real doctrine. 303 Creative v. Elenis gave for-profit companies a First Amendment right to discriminate against LGBTQ+ people for the first time ever. Students for Fair Admissions put an end to race-based affirmative action in higher education as we know it. Jones v. Hendrix condemned innocent people to languish in prison under illegal sentences through no fault of their own. Sackett v. EPA revoked federal protection over millions of acres of wetlands in a grievous blow to the Clean Water Act that will devastate sensitive ecosystems, endangered species, flood control, and drinking water. These decisions were interspersed with smaller conservative rulings that promoted key tenets of the conservative legal project, including one that offered an existential threat to unions’ right to strike and yet another favor to corporations that seek to dodge lawsuits.

The grief – The grief – The grief – The grief.

Yet, there are also words full of fire, thoughtfulness and resistance. Do read the dissent in the Affirmative Action case penned by Justice Ketanji Brown Jackson (starting on page 72 of this link) – I’d give my right arm to write with such clarity, persuasiveness and power. Converting grief to light across our faces, summoning communal resolve to serve justice. Let’s choose the right action – and the right team.

Here are the words of a man who knew:

“We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented. Sometimes we must interfere. When human lives are endangered, when human dignity is in jeopardy, national borders and sensitivities become irrelevant. Wherever men and women are persecuted because of their race, religion, or political views, that place must – at that moment – become the center of the universe.” 

― Elie Wiesel, The Night Trilogy: Night, Dawn, The Accident

That place has never been far from home….

Photographs from New Mexico, where the poet Long Soldier resides.

Music was written and performed during a time of hope and glimpses of change. Why should we not also hope that we can win back what is so systematically destroyed right now? There must be a path.

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Seeking Distraction

Walk with me. Walk, I said, not run, I can’t keep up.

Running would make me tired, though, helping with sleep. Too many thoughts intruding, among them repeat disbelief when thinking about the filmed German interview of average people in an average small town wishing for the return of the NSDAP (National Sozialistische Deutsche Arbeiter Partei – Hitler’s Party) while planning to vote this weekend for the right wing extremist AfD candidate in local elections. Apparently they are not extreme enough. When confronted with the question” What about the 6 million Jews murdered during the NSDAP’s rule, they shrugged. Literally shrugged. The AfD now shows 20 % in national polls.

Then again, this week saw the extremist group ˆMoms for Liberty” posting a Hitler quote in one of their newsletters. This is the group trying to get their members on every school board in the country, known for harassment campaigns against teachers, educators and parents. The group has backed bills banning transgender women and girls from playing women’s sports, and encouraged book bans. Their annual summit this year will feature multiple 2024 presidential candidates, including Donald Trump, Nikki Haley, Ron DeSantis, Vivek Ramaswamy, and Robert F. Kennedy, Jr.

Also this week we have yesterday’s Supreme Court 6 : 3 decision Jones v. Hendrix, written by Clarence Thomas, that has been called a tragedy, and I cannot detect a smidgen of exaggeration. Basically you no longer have recourse in this country when you were sentenced to prison for a crime that turned out to be no crime, or for a time period that exceeds a legal limit. Habeas Corpus proceedings to correct the errors made by federal courts have been effectively denied by the right wing of the court. Justice Jackson wrote a powerful dissent, worth a read.

Meanwhile in Texas, Governor Abbot made sure that my insomnia continues: signing a new law that deprives outdoor workers of water breaks, undermining any safe guarding of the health of manual laborers. With temperatures up to 122 degrees ( 50 Grad Celsius!) this week, it is no surprise that the first workers are dying from heatstroke.

Death by maritime creatures was also on the table this week: BBC reports that the Russians have doubled their population of dolphins, trained to attack divers and/or spy, at their naval base on the Crimea naval base, that part of Ukraine they annexed illegally in 2014.

A video from 2020 is going viral again: California Kayakers getting swallowed by a humpback whale and then spit out again…. they survived. How is that going to help getting to sleep, when your kids kayak in CA???

In D.C., in the meantime, Indian Prime Minister Narendra Modi is received with all the bells and whistles of a government courting the business opportunities and strategic relationships with the Indian Subcontinent, particularly in view of recent developments involving China. Never mind that Modi has abetted mass murder, is yielding an iron fist against any form of resistance, engages in religious persecution and has forced, bribed or persuaded mass media and social media to prevent access to any information critical of him and his government. Here is a short essay by Arundhati Roy in The Guardian that fills in the facts. I am also re-upping a link to a lecture she gave this March in Sweden on the issue of Freedom of Speech and failing democracy – a masterpiece of political thought.

And talking about democracy, before we all despair, here is some good news: last week the Michigan House and Senate both passed a package of eight election bills implementing large parts of Proposition 2, a constitutional amendment that called for numerous pro-voting changes within the Michigan Constitution. Elections matter!

In times of irritation there is always the cop out of Positive.News, a British news website that tries to make you less upset, I guess. This week I learned that a zero emissions shuttle service debuted at Glastonbury, UK, an AI pollution-preventing ‘crystal ball’ was launched to help alert swimmers in Devon when the water is too dirty, Sea Watch celebrated the return of minke whales and 60 percent of Brits now carry a reusable bottle, compared to just 20 per cent eight years ago, giving plastic bottles a shove. And no, dear British Readers, I am not making fun of this effort. Just documenting how desperately one has to look for something, anything good to counterbalance the upsetting in the world….

I also learned here that “Sleep matters for the grey matter,” with researchers from the UK and Uruguay asserting that daytime napping may help to preserve brain health by slowing the rate at which our brains shrink as we age.

That’s what I’ll do: nap. Thinking of June meadows, counting lazuli buntings and swallows instead of sheep, dolphins, humpback or minke whales.

Sleep WILL arrive. Or a shriveled brain. One or the other.

And here is a summer symphony.

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Staying connected

Valentine’s Day has come and gone, but I am still thinking about it. That is partly because my inbox yesterday contained a moving essay about the historical origins of the celebration and some associations to the war in Ukraine by Timothy Snyder. The thought of loss of life and loved ones in war feeds into a question the day always poses for me: what is harder, feeling isolated in a world where romantic love, or love of all kinds, is celebrated when you don’t have a longed-for partner, being single or a widowed, for example. Or is it worse to actually have a love in your life but be unable to connect to them, because you are locked away, be it through pandemic lockdown, exile, displacement or prison.

Which brings me to the actual thought-provoking issues that I recently learned about. (I am summarizing an article by KERI BLAKINGER from the Marshall Project who provides sources; a shorter version can also be heard in a podcast here.)

The number of contraband cellphones has exploded in US prisons, particularly since the onset of the Covid epidemic when incarcerated people were basically left to rot and die in our prisons, with no protective measures and little if any medical care. It is almost like they felt they had nothing to lose if they were potentially culled by the disease and wanted to stay connected to their families and friends during times were supervised prison visits were no longer available due to the pandemic.

Possessing electronic devices other than those regulated by prison administration is a crime; they are assumed to be used for illicit activities like trafficking drugs, making threats and running scams. Being caught with them makes, at a minimum, for losing privileges, more likely being put in solitary confinement, and in some cases producing new criminal charges. Never mind that in almost 100% of the cases contraband cellphones have been brought in and sold for a steep prices (up to $6000) entirely by staff, and not by visitors who have to undergo electronic searches before meeting their loved ones. Occasionally there are drop off’s by drones into remote corners of the prison areas, but those, too, happen under the “blind”eyes of the supervising and bribed wardens.

By all reports the biggest usage is reserved for connecting to those you left behind in the outside world, literally zooming with mothers on deathbeds, or seeing your children grow up.

Other uses are equally upsetting when you think about the implications. Cellphones are used to make videos depicting the inhumane conditions of our prison system from the quantity and quality – or lack thereof – of rotten food,

to the medical conditions of those who are refused medical care, to the sickening conditions of the cells, full of mold and walls left covered with vomit and feces. ( I have previously written about the hunger in prison catastrophe here.) Grievance procedures have been helped with these videos, as has a DOD law suit against the state of Alabama over prison conditions. (The prison administration has acknowledged the ever deteriorating conditions but claimed they do no violate the constitution.)

Cell phones allow incarcerated persons to earn money, by selling artwork on line, or publishing articles, or doing gig work. They are also an enormous help in gaining an education. Some incarcerated people in Georgia, for example, run a computer science course on a group messaging app. Some 300 participants, across states, are using Harvard’s CS50 materials which are all on-line, for a class that is self guided and self graded, and of course, illegal in a prison system that values punitive over rehabilitative actions.

People also learn medical procedures from the internet when the prison infirmary fails them and even order contraband antibiotics with these illegal devices to save the lives of their mates.

Here is a stunning fact, though. Contraband cellphones are most predominant in the worst of prisons, which might correlate with the presence of gangs there, who provide a structural network for the acquisition of these devices. It might also have to do with the fact that those human beings put in cages in these hellholes have no longer much to lose. However, it seems an entirely male thing. Women prisons have not seen any of the recent proliferation of illicit devices.

Why, you ask? Or I asked, wondering. Incarcerated women, 80% of whom are mothers, do not want to risk losing access to their kids, with visitation rights immediately endangered if they are found out. A sliver of connection not willing to be sacrificed for daily contact that might bring about a punishment of permanent loss. Let that sink in, the day after Valentine’s Day.

Photos today from a pre-pandemic visit to one of Oregon’s prisons.

Music today is an album by incarcerated persons, “Tlaxihuiqui” (pronounced tla-she-wiki), which means “the calling of the spirits” in the Uto-Aztecan language of Nahuatl — it was recorded over four days and released by Die Jim Crow Records. I am linking to it here – you need to scroll down and click on the individual tracks. They are as distinct from each other as they come.

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Uneven Justice

I was born in the year of the cop-out, double speak, dust bunny, group think, fairness doctrine, junk food, mass-market, neoconservative, split decision, swing state, tax shelter and wrongful death, among others. Don’t believe me? The Thesaurus offers the fun opportunity to enter your birth year and be presented with all the words that were first used in print that year. Oh, I forgot, kvell was amongst them, the yiddish term for being extraordinarily proud of something. The word is derived from the German word “Quelle,” a source of water erupting. Kvell’s counterpart is kvetch, habitually complaining, as I am known to do. It is derived from the German word “quetschen,” to squeeze to the point of pain. This as an entry, you guessed it, to another round of griping while reveling in the inventiveness of the German/Yiddish language. (Patience, we get to politics in a minute…)

Thinking of words was triggered by reading about the numerous phrases that German holds for pedantry or nit picking. Pea counters (Erbsenzähler) is among them, as is Korinthenkacker (‘currant crapper’) and Paragraphenreiter, which means ‘paragraph rider,’ related to the ways laws are numbered (§), laws that you insist on while doing it by the book, context be damned. Of course, pedantry about applying the law only occurs if it suits those who dispense it.

Take Germany, for example, and consider how unevenly justice was meted out for individuals and corporations that engaged in profiteering during the Nazi era. A new book by investigative journalist David de Jong, Nazi Billionaires, explores the ways how fortunes were made by German tycoons working within the Third Reich’s business and industrial structures. Already rich industrialists (with the exception of the founders of Porsche cars who started poor) profited from the production of weapons (forbidden by the Treaty of Versailles.) Then, with the introduction of the Nürnberg Race Laws, they disenfranchised and eventually expropriated Jewish businesses. Robbery and theft of business assets continued once foreign territories were occupied in those countries.

By 1941, they also used “forced slave labor from mass deportations of people from European countries and Russia, some 12 – 20 million people of whom more than 2.5 million died from horrific working conditions in factories, mines and work camps.” Besides deportations and prisoners of war, concentration camps provided slave labor for private companies, a collaboration of the SS with big companies like BMW, Daimler, Volkswagen, IG Farben, Siemens, Krupp, Dr. Oetker, and companies controlled by Günther Quandt and Friedrich Flick.(Ref.)

What happened to the these corporate perpetrators of crimes against humanity after the war? The book explores how only three trials were held, bringing Friedrich Flick and his managers, Alfred Krupp and his managers, and the entire executive board of IG Farben to justice. All other trials were canceled by the Americans, because they had policy interests that trumped justice. “The Americans limited the number of trials against industrialists because they didn’t want to put capitalism on trial. At that time, the Cold War was getting started, and the Americans made this policy decision where they wanted to rebuild West Germany as a democratically viable and economically strong state, which would act as a buffer against the Soviet Union and the encroachment of communism.”

So people were not dragged into court, were allowed to keep their assets (in the West) to stabilize the newly created republic, and never had to admit to culpability or take responsibility for their crimes. Historians believe that to be true for hundreds of thousands of people who escaped de-nazification under the sheltering embrace of the American occupying forces. Nowadays, some rich families do damage control (some billionaires give away money to relevant charities) often after public outcry. Others create foundations that investigate issues associated with macro-violence, or even recompense forced laborers directly, out of moral obligation, like the heir to the Reemtsma fortunes, fortunes which were partially derived from using slave labor in their factories. Before it went public at the stock exchange last September, Porsche, as another example, tried to remedy parts of its history by negotiations with the heirs of Adolf Rosenberger, the company’s cofounder, who was pushed out of Porsche in 1935 and erased from Porsche company history for being Jewish. But these are drops in the bucket compared to the overall numbers.

I wonder, of course, how much the dispensation of justice – or absence thereof – via the legal system, criminal courts, impeachment trials, ethics commissions and so on is guided by the very same mechanisms right here and now in the U.S. Putting our trust into the likes of the Muellers, Garlands, Smiths of the world might be naive in light of historical precedents that showed nations willing to sacrifice justice on the altar of economic and political imperatives. With the arrival of the 118th house of representatives and their interest in protecting the monied elites we will not even be able to hope for justice. As I write this, the Trump Org CFO Weisselberg was sentenced to five months jail for 15 years of tax fraud, in exchange for a guilty plea and testimony that concerned the Trump organization, but did not flip on Trump personally. The original charges implied a prison sentence up to 25 years. On a five month sentence, he’ll serve approximately 100 days. Compare that to a typical NYC public defense case where people are sentenced to 3-6 years (and will serve 1500+ days) for stealing a jacket. Justice?

70 years after the words first appeared in print, tax shelter, cop-out, double speak and fairness doctrine are as relevant concepts as ever. And now I go and chase dust bunnies.

It was not only industrialists who turned Nazi collaborators. So did the musical world overnight. Here is a Deutsche Welle documentary film (translated into English) that looks at some aspects of music in that era, including how it saved the lives of camp inmates.

Photographs are of German industrial sites.

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Next on the Right-wing chopping block: The Indian Child Welfare Act.

As I write this on November 8th, the outcome of the midterm elections is uncertain – and I am a nervous wreck. The date has so many echos in history, some good, some bad. In 1895, Wilhelm Röntgen accidentally discovered the x-ray, a boon to medicine. On this day, Hitler started the Beer Hall Putsch, a (for now) unsuccessful attempt to overthrow the German government. An attempt to kill Adolf Hitler and other high ranking members of the Nazi party during the 16th anniversary observances of the Beer Hall Putsch failed in 1939. In 1994, the Republican Party won control of both the Senate and the House of Representatives on 11/8 for the first time in over forty years. And on November 8, 1978, President Jimmy Carter signed the Indian Child Welfare Act (ICWA), a law enacted to address the crisis of Native children being separated from their families, communities, and cultures, the gold standard for child welfare policies and practices. Decades if not centuries of children stolen and a culture to be extinguished were supposed to be a thing of the past.

If you read this on November 9th, the constitutionality of the anti-genocidal ICWA is argued in front of the Supreme Court, with 4 cases consolidated under Haaland v. Brackeen, challenged by non-Indian families who wish to adopt American Indian children, along with the state of Texas and three other states with very few Native inhabitants. They are represented pro bono by Gibson Dunn, a high-powered law firm which also counts oil companies Energy Transfer and Enbridge, responsible for the Dakota Access and Line 3 pipelines, among its clients. (A date, by the way, equally if not more ominous than November 8th: a night of coordinated waves of anti-Semitic violence in 1938, known as Kristallnacht, for the many glass windows broken in Jewish stores, homes and synagogues, 30.000 Jewish men imprisoned, the beginning of he Holocaust.To add insult to injury, the Nazi regime blamed the Jews for the riots and imposed exorbitant fines on Jewish communities for the damages. Never forget.)

Ostensibly the Brackeen case is about the right of White parents to adopt American-Indian children, but at closer inspection, it is the first step in a far broader attack on tribal rights and sovereignty, one that ultimately aims at control over land and extraction of resources. I figure, rather than biting my nails over the election outcome, I’ll try to fill you in about what is at stake with courts that are stacked – and might be ever more so. (Detailed information about the case can be found in a terrific podcast, This Land, by Rebecca Nagle, (Cherokee Nation,) in an overview by Lakotalaw.org. and an essay in yesterday’s VOX. I am summarizing below.)

The Supreme Court is asked to decide on basically two major issues. Plaintiffs contend that federal protections to keep Native children with Native families constitute illegal racial discrimination and that ICWA’s federal standards “commandeer” state courts and agencies for a federal agenda. In other words, White families wanting to foster and adopt Native children are claiming reverse racism and arguing that federal overreach is trampling states’ rights associated with the Commerce Clause – two dogwhistles frequently linked to the desire to dismantle anti-racist policies.

So, legislation consciously designed to undo genocidal, racist policy is claimed to be racist because it gives preference to Native families to adopt native children over the rights of Whites. Never mind that Native status is a political designation (see Morton v. Mancari) and not a racial one. And with that political status come certain rights – tribal law and sovereignty included. According to the ACLU:

“Tribal sovereignty is the right of tribes — 574 currently recognized by the federal government — to make and be governed by their own laws. This sovereignty is inherent, as Native Nations existed long before the creation of the United States. Hundreds of treaties have guaranteed tribal nations the right to self-govern. Through these treaties, Native Nations gave up their right to millions of acres of land that would become the United States in exchange for promises to tribes, including the guarantee that lands “reserved” for tribes would be governed by the tribes in perpetuity. The outcome of Brackeen v. Haaland could put centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves — in jeopardy.”

Under the guise of “equality” language, Native tribes’ federal protections and rights are supposed to be gutted, with tribal rights claimed to violate the rights of individuals. The framework upheld by ICWA “is the same federal framework that recognizes the inherent right of Tribal Nations to protect their sacred sites, burial grounds, and drinking water. If the Supreme Court chips away at Tribal sovereignty, oil and gas companies will have a clearer path to extract fossil fuels on Tribal lands without the consent of Tribal Nations.”

The pro bono lawyers for the plaintiffs have previously represented Walmart, Amazon, Chevron, Shell and Energy Transfer, the pipeline company behind the Dakota Access Pipeline (DAPL) that indigenous people have protested against at Standing Rock, which cost the pipeline company upwards of $7.5 billion. Indigenous resistance worried the oil industry and only seven months after the indigenous camps in North Dakota were shut down, Gibson Dunn filed the case that is now in front of the Supreme Court in federal court.

Vultures, all.

This is of course not new. In the 1950s the same argument was used by Western States congressmen to terminate tribes: Collective rights of tribes shouldn’t trump individual rights of US citizens. The results were catastrophic. The legal abolition of dozens of tribes led to the privatization of their lands for the benefit of white settlers and businesses. Now as well, it is not only the children who will suffer, although studies across the last decade have shown how much they do. In two studies from 1969 to 1974, the Association on American Indian Affairs found that 25-35% of all Native children had been separated from their families and placed in foster homes or adoptive homes or institutions. Ninety percent were placed in non-Indian homes. Yet today, after ICWA was established, Native children are four times more likely to be removed from their families than white children are from theirs. And according to a 2020 study, in many states Native family separation has surpassed rates prior to ICWA. This is mostly due to states ignoring or flouting ICWA requirements. (Ref.)

But a potential ruling of the ICWA as unconstitutional has further consequences. The plaintiffs’ arguments about the commerce clause (the other leg they stand on in addition to claims of reverse racism) could potentially invalidate much of the last century of federal law — including landmark statutes such as the Affordable Care Act, the ban on whites-only lunch counters, and the federal ban on child labor. It is questionable if the Supreme Court would go this far. But then again, with this court you never know. I guess worriedly biting my nails will not stop after November 8th….

Photographs today are from Texas, where the case originated. Images are of missions, the church actively involved in the “reeducation” of Indian children and erasure of tribal language and culture, and some photographs from hikes.

Music is about a stolen child.

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