Archive: Opinions

I noted in the news last week that media outlets had a temporary focus on the Supreme Court's hearing on sales tax. To wit, whether states had a right to charge sales tax on internet vendors such as Amazon (which has agreements already with, like, 40+ states), Etsy, and innumerable smaller outlets if there was no 'physical' presence in the taxing state. It seems that hearing generated much news, speculation, heat but not much light, though its outcome will not be announced until June. Curiously, a decision of import was handed down that same day and was practically ignored by most media outlets (curious, because it seems that any story concerning immigration seems to find its way to near the top of the news 'heap' these days) and apparently was ignored by most media outlets, although right of center talk shows picked up on it, for all the weirdly wrong reasoning.

It is a case dubbed 'Sessions v. Dimaya' as the government sought to deport a legal (note: legal, i.e., a green card holder) resident who had been convicted of first degree burglary twice. The Justice Department utilized the US Code wording 'crime of violence' to argue its deportation argument. The opposition took the argument in front of the Court not whether burglary is a 'crime of violence' (reasonable people, especially those who have been victims of this crime, would assert that it is a crime of violence) but that the law was written too vaguely, not specifically defining burglary as a crime of violence, thus giving the court and prosecutors too much wiggle room to make their own definition (especially immigration judges and prosecutors).


The vote was five to four against the government case, with the four 'liberal' justices voting to overturn the deportation order, and the four 'conservative' justices voting to sustain it. The surprise (other than the fact that the media seemed to ignore it) was that President Trump's nominee, Neil Gorsuch, the darling of the conservative wing, was the tie breaker: he voted with the 'liberal' wing in an opinion that basically stated that if a law is vaguely worded, it will cause 'unpredictability and arbitrariness' which the Constitution does not allow. It could be stated that literal (not liberal) reading of a law is necessary to be fair, thus dis-allowing courts to define a law to their own liking and definition, and that is unfair and unconstitutional. If it doesn't say it, it doesn't mean it. Another way to put it is that courts are not meant to legislate, for that is the province (per the Constitution) of the legislative process.

Now, Gorsuch as a conservative voting with the 'liberal' side of the Court would be interesting enough (it has been said that George H.W. Bush rued the day he nominated David Souter to the Court, and that Dwight Eisenhower expressed regret for his nomination of Earl Warren, both figuring they had nominated 'conservatives' but learned differently) but the more interesting opinions expressed by Court gurus were that Gorsuch had followed in the judicial footsteps of Antonin Scalia, the deceased jurist whom he had replaced.

Scalia was the scourge of the 'liberal' side of the court (and liberal observers loved tearing his decisions to shreds), even though Ruth Bader Ginsberg considered him a good friend, as he excoriated court opinions which cast a broad net over what the Founding Fathers 'meant' when they wrote the Constitution. Scalia was a 'literalist', or 'originalist' (thanks Joe Girdano for jogging my memory on that word) reader of the Constitution, meaning, basically, 'if they didn't say it, you can't infer that they meant it.' So, the Dimaya decision last week was in the mold of a Scalia-like mantra, that a broad definition of a word or phrase like 'crime of violence' needs to be defined specifically, not inferred, to remain constitutional and fair.

Gorsuch wrote 'vague laws invite arbitrary power, leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up.' Hurrah!!! Sessions must be gnashing his teeth over that one. Notice a lack of tweets on this one, too... If Congress wants to define burglary as a crime of violence, then let them say so. Seems we have a real problem with our national legislature over fixing anything legislatively these past many years, don't we? From the War Powers Act to DACA, Congress wimps out when they have a legal duty to legislate, instead of just letting the Courts decide.

Imagine progressive observers of the Supreme Court seeing Antonin Scalia's basic tenet of law being applied to an immigration case, in direct contravention to Chief Justice Roberts, Clarence Thomas, and of course the current administration's chief law enforcement officer, Attorney General Jeff Sessions. Interesting that almost no media outlet noticed this except certain national talk show hosts who were livid that Gorsuch would rule against the administration in a deportation case, failing to note (and contradicting everything they supposedly stand for...) the posthumous honor bestowed upon the conservative darling Scalia (may he rest in peace, now, as a patriot who will someday be more honored than he is, now).

To me, the larger question is not one man's despicable criminal behavior that needs to be addressed by a lengthy prison sentence (Mr. Dimaya's burglary convictions were never questioned, nor his guilt). Nor is it to be questioned that burglary is violent (you can only imagine the sense of violation that this crime perpetrates upon the victim). But, this: If Congress is going to be contemplating rules for internet speech and website control, can they possibly be so specific in their intent to define words such as 'freedom', 'racist speech', 'hate speech', 'sexist language', or such words as uttered by students and faculty at Reed College last month as 'oppressive', 'Caucasoid', 'virtue', 'Justice', 'social (in)equality', 'power structure' and 'prejudice'.

I realize these are reasonable words in and of themselves, but they are becoming weapons in the hands of the ignorant (how many really understand the original meaning of 'fascist government'?), and if Congress (or any other body, whether it be a government or business operating under the gun, so to speak, of government fiat) attempts to define these and many other words, define them, and give cause for retribution, lawsuit, banning or criminal prosecution, we will all lose. I know you're uncomfortable with that position, but liberty is an uncomfortable proposition, too.

Do words mean different things to different people? Of course. Do words hurt, and cause pain, anger? Of course. But if we allow anything but common sense, fairness and compassion to rule our words and thoughts (virtues which are lacking on the internet to a great extent, as well as in our political discourse these years...) then as Justice Gorsuch wrote (and the majority agreed, with Scalia applauding from the realm of the just rewards) 'Vague laws invite arbitrary power leaving the people in the dark about what the law demands and allowing prosecutors and courts to 'make it up'. Might that also include offensive statements on the web, offensive language, social media, and by implication, campuses of institutions of so-called higher learning?

Isn't total freedom the ability (and sometimes the requirement) to turn it off or walk away if it offends us? If walking away isn't enough, then, by golly, let's have a good round of civil argument about the thoughts and deeds, not outright ban it as if we were the official referees of truth.

Any laws governing social media (and what's left of newspapers, radio and television) and speech are almost bound to eventually end up before these same justices (possibly excluding Kennedy or one of the other older justices). Will they uphold this thinking of the Dimaya decision? Or jeopardize it? Remember Sessions v. Dimaya: It could end up being a case as judicially and constitutionally important as Miranda, Roe v. Wade, or Brown v. Board of Ed, with implications and repercussions currently un-imagined. The next shot heard 'round the world. Coming to a newspaper, radio, or computer/phone screen near you.

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