The Penumbra School of Law

I was watching in horror a series of Mark Dice videos of interviews in which passersby signed petitions to repeal the First Amendment to shut down criticism of Obama because it was all clearly racist. petitioned to repeal the Bill of Rights; revealed they didn’t know when and why we celebrate the Fourth of July; signed up to ban the American flag and replace it with a New World Order one.

I wanted to believe the people responding were outliers -- just ignorant San Diego beachgoers. Unfortunately there are too many indications they are not, and that this disregard for the Constitution and its protections, this lack of knowledge of our history and how it shaped the Constitution, and why it is important to us, are rife in both the states and the federal government .

A. Widespread Administration Disrespect for the Law

The administration at every level expresses its contempt for Congress and its legal obligations knowing the attorney general will never prosecute its wrongdoing. The most obvious at the moment involve record keeping by the IRS and Hillary Clinton.

As you’ll recall, the IRS contributed to Obama’s reelection campaign -- perhaps even fixing its result -- by denying his opponents the tax exemptions to which they were entitled. Then it made up cockamamie excuses why it could not produce the email record evidence which they were legally obligated to preserve and produce. Now it turns out that the records requested did exist and were destroyed after the agency was put on notice to keep and provide them to Congress.

Eight months after Congress requested emails from embattled IRS official Lois Lerner, tax agency employees "magnetically erased" hundreds of backup tapes.

"The IRS did not put forth an effort to locate and preserve the backup tapes," said Timothy Camus, deputy inspector general for investigations with the Treasury Inspector General for Tax Administration. He said 422 backup tapes were destroyed.

The new details about the IRS watchdog's year-long efforts to uncover Lerner's missing emails emerged during a hearing Thursday before the House Oversight and Government Reform Committee.

In like fashion, Hillary Clinton has repeatedly lied about her noncompliance with her obligations respecting her email record keeping and disclosures to the State Department and Congress. Her conduct surely means classified information unlawfully kept on her insecure, previously undisclosed, server has made its way to foreign governments. (As these revelations of her lies continue to unfold daily you might want to follow my rule of thumb -- everything Hillary Clinton says or ever said is untrustworthy. Saves me lots of time waiting for her clumsily proffered tales to be unraveled as they certainly will be in time.)

This week we learned that the lawyer who previously was in charge of preserving and producing the Lerner IRS records, is now in charge of obtaining Hillary’s emails and producing them.

Which do you think we’ll see first -- the missing Lerner emails or the missing Clinton ones?

B. The Supreme Court Has Rendered the Congressional Power to Legislate Nugatory

Professor David Bernstein dissects the Roberts Court on ObamaCare and observes a disturbing trend 

The ACA has never polled well, and the Republicans took over the House and then the Senate, in part due to dissatisfaction with Obamacare. Since the Republicans have no stake in fixing a law they unanimously opposed, and the Obama Administration has no intention of reopening the legislation to major changes, the Administration has been left with using and abusing executive discretion to delay, ignore, and modify statutory provisions to get the law to work, or just to avoid the negative political consequences of it working as planned.

King v. Burwell represented the best hope that the Supreme Court would take the appropriate posture on all this, which is that those who rush through a law they haven’t even read or understood and with no political support from the other side have to live with the consequences when inevitable mistakes arise. Instead, the majority took the position that its job is to help out the other branches when it turns out that such a law is unworkable as written. Too bad.

If the Court can “help out” Congress by reading into laws what isn’t there and changing the clear meaning of words like “state” into “federal”, it can “help” Congress even more by systematically rewriting any law with which a majority of the justices disagree. At best, this tactic will only encourage sloppier legislative drafting.

For lazy Congressmen this is a boon. They can spend all their days fundraising and golfing. Of course, it’s only the little people in the trenches who need to be concerned about what laws require or permit them to do and plead for more certainty.

C. The Right to Religious Freedom Seems Imperiled Along with the Right to Free Speech

There’s nothing about the Supreme Court’s decision on same-sex marriage that necessarily impinges on the religious freedoms of others, but the writing is on the wall that this barrier is the next one the left intends to attempt to breach. 

The ACLU was one of the primary proponents of the Religious Freedom Restoration Act, and has used the Act in litigation to protect religious freedom. But now, as ACLU deputy legal director Louis Melling explains, the ACLU wants RFRA to be limited (she uses the term “amended”) “so that it cannot be used as a defense for discrimination.”

Melling argues, “religious liberty doesn’t mean the right to discriminate.” Why yes, it does, or at least it can.

Take Orthodox Judaism. Orthodox institutions (with a few exceptions) won’t recognize women as clergy, won’t recognize someone as Jewish unless they are Jewish according to halacha, won’t eat food unless the oven was turned on by a Jew, won’t recognize Jewish-Gentile intermarriages as legitimate “Jewish” marriages, won’t recognize same-sex marriages, or, in most cases, the legitimacy of same-sex romantic/sexual relationships, wouldn’t hire a teacher who is pregnant out of wedlock or openly homosexual and sexually active because that individual would have flouted religious law, and so on.

All of these things are “discrimination,” and some of them are, or plausibly could be in the future, illegal (though some would be protected by the so-called “ministerial exception” independent of RFRA).

D. The Challenge to our Constitutional Rights Has Extended to the State Level As Well

In Oregon, a state agency (with the Zimbabwe-like title The Oregon Bureau of Labor and Industry) in bed with the local LGBT community fined the small baker Sweetcakes $135,000  (forcing it into bankruptcy) for refusing to  bake a lesbian couple’s wedding cake. It also banned the bakers from making any statements challenging same sex marriage.

In January 2014, the agency found the Kleins unlawfully discriminated against the couple because of their sexual orientation. In April, McCullough recommended they pay $75,000 to Rachel and $60,000 to Laurel.

In order to reach the total amount, $135,000, Rachel and Laurel submitted a long list of alleged physical, emotional and mental damages they claim to have experienced as a result of the Kleins’ unlawful conduct. Examples of symptoms included “acute loss of confidence,” “doubt,” “excessive sleep,” “felt mentally raped, dirty and shameful,” “high blood pressure,” “impaired digestion,” “loss of appetite,” “migraine headaches,” “pale and sick at home after work,” “resumption of smoking habit,” “shock” “stunned,” “surprise,” “uncertainty,” “weight gain” and “worry.” [Emphasis supplied]

A list of these so-called damages, the failure to acknowledge there are other means of obtaining a cake elsewhere along with the agency ban on free speech by the defendants should put to rest any notion that the Oregon Bureau of Labor and Industry is more than a soviet style show tribunal acting against this week’s designated kulaks.

Even worse tactics were used by Milwaukee D.A. John Chisholm against Scott Walker allies, apparently inspired by Chisholm’s public employee union member wife, angered at Walker’s policies.

Agents with weapons drawn swarmed through every part of the house. They barged into the bathroom where my partner was showering. I was told to shut up and sit down. The officers rummaged through drawers, cabinets and closets. Their aggressive assault on my home seemed more appropriate for a dangerous criminal, not a longtime public servant with no criminal history.

After they left, I surveyed the damage. Drawers and closets had been ransacked. My deceased mother’s belongings were strewn across the floor. Neighbors gathered in small clusters at the end of their driveways and the press arrived in force.

What had prompted the raid? My guess: As an adviser to Gov. Walker, I had played a lead role in drafting and implementing public-employee labor reforms that would propel him to the national stage.

The governor’s reforms, commonly referred to as Act 10, prompted angry union protests. The reforms also enraged many politicians, including, as I would later find out, Mr. Chisholm and members of his staff. My ties to Gov. Walker and Act 10 made me a prime target for Mr. Chisholm’s campaign to intimidate anyone close to the governor.

In other words, I was targeted because of my politics -- in plain violation of the First Amendment and federal civil-rights statutes.

Mr. Chisholm had campaigned for Gov. Walker’s Democratic opponent.[snip] As Mr. Lutz testified, the Milwaukee County district attorney made it his “duty” to “stop Governor Walker” from succeeding with Act 10.

Targets of these raids had been forbidden to discuss them and suffered these depredations in silence at the time.

When you read these accounts of apparently sane members of Wisconsin's "public service" and "law enforcement" launching thug assaults with battering rams against the suburban homes of their ideological opponents, would you really want to bet that the full force of the state won't one day SWAT a "homophobic" florist to death? In a deranged culture where the Stalinist bloodlust of political correctness is so insatiable that a hit TV show has to be yanked from the airwaves because of the roof of a motor vehicle driven by the characters, how many networks will be willing to countenance anyone espousing "traditional" theology or morality?

E. MY Plan

I suppose I could bemoan the loss of our liberties or pen an optimistic piece on how this, too, shall pass. But I’m thinking there’s an economic opportunity in this widespread shift. Why not create a new online law school, the Penumbra School. You can get your law degree from me at little cost and in rapid order. How? Well, we can skip all the courses on legislation. All we need is a meditation course in its place where we try to divine the feelings on matters of the linchpin Justice Kennedy. And we can dispense with constitutional law since it is now whatever five justices think it should have been. Contract and Corporation Law classes are unnecessary as the GM bailout established they count for nothing if the president decides to abrogate them. Immigration Law is unnecessary, too. No need to read what Congress has passed about immigration just leaf through the latest executive orders from the White House. True that leaves a few things -- Administrative law, for example -- but it increasingly appears that with minor exceptions like this week’s SCOTUS slapdown of the EPA, that Congress is just giving the bureaucrats blank checks to regulate whatever the heck they want to as they please and generally the courts are giving them wide berth to do just that. Our laws are being written on shifting, unpredictable sands, and the people charged with legislating, enforcing and interpreting seem to like that just fine.

I think my idea’s a cash cow.

To those of you who think my graduates will never be able to pass a bar exam, I have a simple answer. How much longer do you think the Supreme Court will allow states to use bar exams, anyway? A smaller percentage of blacks pass bar exams than whites do. 

Bar Passage:  California, the state that administers the most bar exams, reports pass rates by race.  For July 2011, the pass rates for first-time test-takers were:

     White test-takers:                    75.4%

     Asian test-takers:                    67.3%

     Hispanic test-takers:               55.3%

     Black test-takers:                    45.7%

     Other minority test-takers:      59.0%

California allows graduates of unaccredited law schools, as well as apprentices who "read the law," to take the bar exam, but those differences do not account for the racial disparities.  The same California report breaks down bar results by educational preparation -- with the same racial patterns in each group.

New York, the nation's second-largest administrator of bar exams, reports similar racial disparities in bar passage.  A study reviewing New York's July 2005 exam reported the following pass rates for first-time takers:

     Caucasian/White test-takers:                   86.8%

•     Asian/Pacific Islander test-takers:           80.1%

•     Hispanic/Latino test-takers:                    69.6%

•      Black/African American test-takers:      54.0%

[No “Other” group reported] 

So, it’s simply a matter of time until bar exams are challenged and abolished as having a “disparate outcome”, and my grads can sail home free with only a few courses on feelings and none on law.

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