Law school: What about rights the constitution is silent about?

What happens to rights not enumerated (explicitly stated) in the constitution? Do does that power flow automatically to the people, congress, the president or the USSC? Some legal scholars argue that unenumerated rights flow to the people. The Bill of Rights seems to be in accord with that assessment. The 9th Amendment reads as follows:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The 9th is one of the original 10 Amendments in the Bill of Rights. The 9th makes it clear that the rights enumerated in the Constitution are not an exhaustive list, and that people retain other rights not specifically mentioned. However, the Supreme Court usually treats the Ninth Amendment as a guiding principle rather than a source of substantive rights, something I have never understood. The courts acknowledge the existence of unenumerated rights, but the 9th does not specify what those rights are or how they should be determined. This has leads to debate and interpretation in legal and political spheres about what constitutes a fundamental right deserving of constitutional protection. From what I can tell, there is no good way to distinguish a fundamental right from a non-fundamental one, and the USSC has been reluctant to "find" fundamental rights the Constitution protects.  

So, what about abortion, same sex marriage, the right to marry generally, privacy, contraception, interstate travel, procreation, custody of a person's children, vote, control of important decisions about one's health care or body, and slew of other things? None of those are mentioned in the constitution. 

Before the Roe v Wade decision in 1972, the states regulated abortion. After Roe, the court found a right to an abortion, but put a limit on it, allowing the states to regulate abortion of late term pregnancies. Basically, the Roe court gave most of the scope of a right to an abortion to the people. The states were left with a small portion of that right. It was a compromise that tipped the balance of power to the people, but left power to regulate late term abortions to the states. The court decided there was a right to abortion in the shadow of the right to privacy and under the 14th Amendment due process clause (reasoning that never made much sense to me). 

So, what about how the self-professed, freedom-loving radical right authoritarian Republicans think about and deal with these things? After I slapped it once, Perplexity said this:

Q: Republicans have recently restricted abortion rights, an unenumerated right, so why do you say that there are no recent examples of Republicans specifically asserting that unenumerated rights, such as abortion, are subject to federal or state regulation?

A: I apologize for the confusion in my previous response. You are correct, and I should have interpreted the search results more accurately. Let me provide a more appropriate answer based on the information available. Recent examples show that Republicans have indeed asserted that abortion rights, which are considered unenumerated rights, are subject to federal or state regulation. In 2022, the Supreme Court's decision to overturn Roe v. Wade, supported by Republican-appointed justices, effectively allowed states to regulate abortion. Following this decision, Republican-led states have enacted various abortion restrictions, demonstrating their belief that this unenumerated right is subject to state regulation. Although former President Trump has recently stated he would leave abortion laws to the states, this shift in position contradicts previous Republican efforts to restrict abortion at the federal level, including a 20-week abortion ban passed by House Republicans during Trump's presidency.

That makes perfect sense. Authoritarians want power to accrue to elites and capturable (corruptible) governments, while draining it from democratic, pro-civil liberty governments and the people. State governments are much more easily captured than a national government. Although they claim to support democracy, civil liberties, the rule of law and the Constitution, authoritarian American institutions such as DJT, his MAGA, the morally rotted GOP and Christian nationalist theocrats oppose all of that.

In essence, American radical right authoritarianism has turned the Constitution on its head. It wants to give power to captured governments and courts that elites can mostly or almost completely control. Authoritarianism has to do that because the Constitution is inherently pro-democracy and anti-authoritarian by virtue of the 9th and other Amendments. That those Amendment have to be subverted.

From what I can tell, our Constitution is ossified and needs updating. Unfortunately, it is impossible to change it by proposed congressional amendments. Our society is too bitterly divided. And, efforts to change it could make it less democratic and more hostile to civil liberties than it is now. That's what the American authoritarian wealth and power movement wants to do by calling for a Convention of States. Since each state gets only 1 vote on each proposed constitutional amendment, this would favor rural states. Authoritarians want to use that to neuter civil liberties and laws they dislike, primarily laws that interfere with wealth and power accumulation by elites.

A criticism of the MSM's timidity toward DJT

Yesterday, Alternet published an opinion (maybe paywalled)(reposted at MSN.com, not paywalled) by D. Earl Stephens (formerly Managing Editor of Stars and Stripes) criticizing the MSM and the NYT in particular:  

The real reason corporate media won't cover 

Trump's attacks on democracy

We need to talk about the abominable headline below, and how it is we have come to the fatal point where The New York Times and our broken mainstream media seem to need the America-attacking Donald Trump a helluva lot more than the America-attacking Donald Trump seems to need The New York Times and our broken mainstream media.

Aside from platforming maniacal, caustic headlines topping spurious content like the one above (which I promise to get to in a minute), this newspaper’s inability to spot the biggest news story of our lifetimes, and treat it with the heft it deserves, is journalistic malpractice, and a very real danger to our country.

The Times isn’t alone in its mishandling and disregard of the continuing attack on our country and its institutions that back it up. In fact, I can’t point to ONE so-called reputable news source in our “mainstream” media that has appropriately sounded the alarms, and given this perpetually breaking news story the treatment it demands.

Why have they abandoned us, and the most important story in the world?

Our country has been under steady attack for nearly four years now. Why aren’t our newsrooms on wartime footing? Bare minimum, why haven’t Democracy Desks been set up in these broken newsrooms staffed with journalists who do nothing but monitor the Republicans’ movements as they ruthlessly defend an attack on America, and go about annihilating truth, justice, and our right to even vote?

Backed by his morally busted political party, the son of a bitch means to finish us off whether or not he ever gets power again. He is the literal definition of a terrorist and/or an authoritarian strongman — a thug. He bows to murderous fascists like Putin, and openly revels in their success.

Since that terrible attack on our Democracy began four years ago, our broken media has given us almost nothing but normalization and capitulation.

How else to explain this headline and the story it trumpeted written by one of the NYT’s leaders in its editorial department, Deputy Opinion Editor Patrick Healy:

What matters most? You mean, the safety and well-being of our country and its citizens from those who would attack it?

Of course it didn’t mean that ...

That headline and the one I lead this piece with above topping an offensive, ridiculous slice of gaslighting by the ultra-Conservative Rich Lowry of the National Review, were splashed across the pages of The New York Times on Monday.

My only plausible guess for the mainstream media’s failure to cover the attack on our country, besides sheer and incomprehensible incompetence, is that they are hedging their bets. Trump has been undeniably good for their bottom lines, which looks to me to be the only damn thing they truly care about.

If Trump goes away, so does the money. And what of the millions of dollars of tax cuts he’s promising to once again give the owners of these pompous rags?

Otherwise, there’s no making sense of any of this.

Stephens calls the NYT editorial department "a dumpster fire of a news source." Alternet published that opinion yesterday, so it seems unlikely that the NYT editorial published today (my blog post earlier today) was in response to Stephens' criticisms of the NYT.

I agree with Stephens' analysis and criticisms. The MSM is failing to report the urgency and seriousness of the authoritarian threat that DJT and his morally rotted party presents to democracy. Stephens had the guts to actually call DJT a son of a bitch, a terrorist, an authoritarian strongman and a thug. He called the Republican Party morally busted, which I equate with my usual morally rotted label. 

We are making progress: Another MSM source has gone semi-woke!

In an odd editorial (not paywalled), the NYT opinion editors published another scathing attack on DJT. The attack was a headline in a huge font and short 3 paragraph attack in large font, followed by lots of photos with short captions from each of his years in office:

Donald Trump’s First Term Is a Warning

Republicans have tried to rewrite the four years of Trump’s presidency as a time of unparalleled peace, prosperity and tranquility: “the strongest economy in history,” as Senator Katie Britt of Alabama put it during the Republican National Convention. The difference between Trump and Biden? “President Trump honored the Constitution,” said Gov. Kristi Noem of South Dakota. Gov. Glenn Youngkin of Virginia offered Mr. Trump’s first term as an example of “common-sense conservative leadership.”

The record of what Mr. Trump actually did in office bears little resemblance to that description. Under his leadership, the country lurched from one crisis to the next, from the migrant families separated at the border to the sudden spike in prices caused by his trade war with China to the reckless mismanagement of the Covid pandemic. And he showed, over and over, how little respect he has for the Constitution and those who take an oath to defend it.

For Americans who may have forgotten that time, or pushed it from memory, we offer this timeline of his presidency. Mr. Trump’s first term was a warning about what he will do with the power of his office — unless American voters reject him.

Nowhere in the opinion does the word authoritarian, corrupt, kleptocratic, autocratic, plutocratic,  or theocratic appear. Hence my assessment of a semi-woke MSM source, not woke. The NYT still doesn't completely get it. But, it is getting better!

Fun inside the capitol on 1/6

Hang Mike Pence!! MAGA!!

Fun outside the capitol on 1/6

Wokeness-o-meter reading for the NYT 

seems fairly accurate, but a bit high

Cyberwar update: China; Erosion of American judicial independence and neutrality

For years, a personal major security concern has been America's vulnerability to cyberattacks by enemies. The problem is serious and quickly getting a lot worse. In my opinion, the combination of (i) being an open society and country, (ii) the difficulty of governing, (iii) intense private sector hostility to government, (iv) intense Republican Party hostility to government, (v) broken-gridlocked government, and (vi) other factors such as the size and number of targets for hackers make the US very vulnerable. 

Meanwhile, the private sector keeps gaslighting us saying that cybersecurity is a top priority. Despite cynical corporate propaganda but American companies keep getting hacked. The US government gets hacked. So does critical infrastructure such as the electrical grid, power plants and water plants. One estimate is that the economic cost to the US economy will be about $452 billion in 2024.

A rapidly growing threat comes from an increasingly aggressive and belligerent China. Breaking Defense writes:

NSA’s China specialist: US at a loss to deter Chinese hackers

"They’re not going to be motivated to stop," David Frederick, assistant deputy director for China at NSA, said of the Volt Typhoon hacking group

Officials from the National Security Agency and the State Department said they’re still struggling to come up with a way to deter a powerful hacking group allegedly backed by the Chinese government and accused of slipping into US critical infrastructure networks.

When asked how the US plans to deter the group dubbed Volt Typhoon from future attacks, David Frederick, assistant deputy director for China at NSA replied, “I don’t have a good answer to that.”

“They are trying to position themselves to have an asymmetric advantage in a crisis or conflict. If you look at the cost-benefit from their point of view and just the breadth of targets in the United States and our allies in terms of global networks, they’re not going to be motivated to stop,” Frederick said at an Intelligence and National Security Summit this week. “So that’s a hard problem — how do we get them, sort of thing.”

Volt Typhoon, which the US government says is “sponsored” by the Chinese government, has been accused of invading thousands of devices worldwide since it was discovered in 2021, Recorded reported. But the group gained more attention in May 2023 when it was more publicly outed by Microsoft security analysts.

On the same day Microsoft announced the existence of Volt Typhoon, the NSA and other national and allied agencies issued a warning about China state-sponsored cyber actors using built-in network devices to target US critical infrastructure, including in Guam.

The WaPo reports:

Chinese government hackers penetrate U.S. internet providers to spy

Beijing’s hacking effort has “dramatically stepped up from where it used to be,” says former top U.S cybersecurity official

Chinese government-backed hackers have penetrated deep into U.S. internet service providers in recent months to spy on their users, according to people familiar with the ongoing American response and private security researchers.

The unusually aggressive and sophisticated attacks include access to at least two major U.S. providers with millions of customers as well as to several smaller providers, people familiar with the separate campaigns said.

“It is business as usual now for China, but that is dramatically stepped up from where it used to be. It is an order of magnitude worse,” said Brandon Wales, who until earlier this month was executive director of the Cybersecurity and Infrastructure Security Agency, CISA.

The hacks raise concern because their targets are believed to include government and military personnel working undercover and groups of strategic interest to China.

The group’s emphasis on obtaining access for potential physical destruction “is nowhere near where the nations of the world behave,” said retired Gen. Paul Nakasone, who stepped down in February from his posts running U.S. Cyber Command and the National Security Agency.

We are in deep trouble and there is no way to fix this. The federal government will remain broken for the foreseeable future while the GOP tries to replace democracy and the rule of law with authoritarianism and the rule of the thug. Our own internal divisions are not only killing us from within, our internal war makes us vulnerable to lethal external cyberattacks.

Lethal is not overkill or hyperbole (in my opinion). If the US grid goes down, think what would happen. Power to critical infrastructure like water plants would go down. Without clean water for a couple of  months, people will start dying by the tens of thousands within a few weeks. After that, we will die in the tens of millions. Here in Southern California there is almost no free flowing clean water flow, if any. Where the hell would drinkable water come from? Nowhere, that's where. Same for Arizona, Nevada, New Mexico, Texas, Utah, etc. And, what about sewage treatment? Those plants would be knocked out too. Consider that.

Perplexity:

Q: If there is a major nationwide cyberattack on the US electrical grid that damages it and knocks it out of operation, about how long would it take to restore power?

A: Restoring power after a major nationwide cyberattack on the US electrical grid could potentially take weeks, months, or even years, depending on the severity and extent of the damage.

Q: Is Germaine being an irrational alarmist or something worse about cybersecurity?

_________________________________________________________________

_________________________________________________________________

News reports keep dribbling out that indicate an erosion of the neutrality, honesty and/or independence of federal and state courts. Blatant conflicts of interest and partisan bias are being denied and ignored. Judicial ethics is going extinct. The Verge reports:

Judge who owns Tesla stock greenlights X lawsuit against critics

A lawsuit aimed at punishing critics of Elon Musk’s X will go forward, thanks to a ruling from a judge with a financial interest in Musk’s success.

On Thursday, Judge Reed O’Connor denied a motion to dismiss X’s lawsuit against Media Matters For America (MMFA). The suit was filed in Texas last year and alleges that MMFA should be held legally liable for negative reporting that caused companies to pull ads from X. O’Connor dismissed objections that it was filed in a state where neither X nor MMFA is headquartered, saying the fact that MMFA “targeted” two X Texas-based advertisers — Oracle and AT&T — by mentioning them in articles and interviews is sufficient. (X is based in California, though its current San Francisco office will soon close and Musk has discussed moving to Texas.)

O’Connor also determined that X’s claims had enough merit to proceed in court — which is, to put it gently, concerning.

Unlike your standard libel lawsuit, X doesn’t say MMFA made a factually incorrect claim; it outright admits that X served ads against racist or otherwise offensive content. Instead, it argues that this situation is rare and the authors “deliberately misused the X platform to induce the algorithm to pair racist content with popular advertisers’ brands.” What constitutes misuse of a platform? Using accounts that had been active for more than a month, following the accounts of racists and major brands, and “endlessly scrolling and refreshing” to get new ads. In other words, X isn’t suing MMFA for lying — it’s suing them for seeking out bad things about a business and not reporting those things in a sufficiently positive light.

Drawing a weak case out is an unmitigated win for X and Musk, who have effectively infinite legal resources. It’s a win for the Musk-favored strategy of forum shopping. It’s a loss for MMFA, which laid off staffers in the wake of this suit and two equally specious investigations by Republican state attorneys general sympathetic to Musk, both of which have been blocked by other judges.

The Lever reports court news that is far scarier than the authoritarian (silencing legitimate criticism is authoritarian) crap Musk is pulling off:

Justice, Brought To You By Big Oil

Texas is opening a fossil fuel-backed business court stacked with judges who’ve represented oil and gas companies

On Sept. 1, Texas is slated to open its new business courts, a brand-new legal system backed by Big Oil — and several of the court’s main judges have in the past represented fossil fuel companies as lawyers, The Lever has found.

The judges were hand-picked over the last two months by Texas Republican Gov. Greg Abbott, a major recipient of oil industry cash — and many can be quickly replaced if they hand down decisions he opposes, a judicial design that he championed.

The courts consist of 11 regional business courts and a new statewide court of appeals to hear appellate litigation, which are expected to have immediate impacts on environmental cases in the state. As Public Health Watch, an independent investigative news organization, reported last month, a suite of cases involving state environmental authorities will now be transferred from a generally liberal appeals court to the state’s new Fifteenth Court of Appeals, created to oversee the business courts.

There, these cases will be decided by a panel of conservative judges historically friendly to industry — particularly oil and gas interests, a powerful force in Texas.

“Greg Abbott created a boutique court for corporations where he, not the voters, gets to pick the judges,” said Adrian Shelley, the director of the Texas office at Public Citizen, a progressive advocacy organization. “It’s that simple.”

The judge that Abbott selected to head the new appellate court, Scott Brister, has since 2009 worked at a law firm known for its specialty in fossil fuel litigation. While an attorney there, Brister, a Republican, led the defense of the oil company BP in litigation over the catastrophic Deepwater Horizon oil spill, one of the worst environmental disasters in history, which released more than 100 million gallons of oil into the Gulf of Mexico in 2010.

Before then, while serving on the Texas Supreme Court, Brister threw out a major guilty verdict against oil giant ExxonMobil for allegedly poisoning a town’s water supply.

A jury originally awarded $7 million in damages to the plaintiffs in that case, but in 2003, Brister and his fellow justices claimed that the scientific evidence was not robust enough to support that illnesses contracted by the town’s residents were connected with Exxon’s pollution.

The court reversed the verdict on the company’s appeal, and the plaintiffs received nothing.  

Texas’ model is different from many other states’ business courts, experts say: The judges are appointed personally by the governor, with virtually no oversight from the legislative branch. And they only serve two-year terms — in contrast to 12-year terms in Delaware and six-year terms in Nevada — in theory making it easy for Abbott or a successor to quickly replace a judge who doesn’t rule in favor of his political interests. Abbott has been pushing for Texas to create such a system for years.

There it is right out in the open, pro-business courts. Power flows to companies. Plaintiffs receive nothing because power has shifted to companies. This is the face of American radical right authoritarianism and the modern Republican Party. This is what they want to do to all courts. They want power shifted from the people to the elites. 

In all of this, one can reasonably believe that trifling concerns like global warming, pollution and human health are going to get very short shrift from this new system of "justice" in Texas, assuming they get any shrift at all.

He had his day in

court