Classes #22: Equal Protection I and Eminent Domain

Class 22: Equal Protection I: School Desegregation

  • Brown v. Board of Education (I) (1003-1012).
  • Bolling v. Sharpe (1012-1015)
  • Brown v. Board of Education (II) (1015-1017)
  • Massive Resistance to Brown and the Role of Courts (1017-1020)
  • Cooper v. Aaron (1020-1026)

Class 21: Eminent Domain

  • Introduction, 997
  • Kelo v. City of New London, 1001-1008

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Trump Elephant as Free Speech

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From Judge Roy B. Dalton Jr.’s opinion in Maxwell v. School Dist. of Volusia County, handed down Oct. 23 but just posted on Westlaw; seems quite correct to me:

Plaintiff Tyler Maxwell … is … an eighteen-year-old senior at Spruce Creek High School … in Port Orange, Florida. To park in the lot adjacent to the School, Tyler paid $55 for a School parking decal. On September 14, 2020, he drove his pickup truck to School, but this time with a new passenger in the truck bed—a red, white, and blue elephant statue with “TRUMP” emblazoned on its side.

The school forbade this, arguing that:

School Board Policy 805 “reasonably regulates political activities in time, place, and manner of use while on School Board property” so the prohibition of Tyler’s elephant does not violate Tyler’s constitutional rights. Policy 805 prohibits “political posters, signs, banners, or any other writing which promotes a political issue, cause, position, or candidate” that is “permanently posted in or on school board property.” The School concluded, Tyler’s “political activity … occurred on school grounds, during school hours, and appears to give the imprimatur of public endorsement of partisan political positions or a particular candidate” in violation of Policy 805….

No, said the court:

The School’s response contends the elephant is school sponsored expression, stating it gives the “imprimatur of public endorsement” and cites two school sponsored expression cases. But it would not be reasonable for the public to believe an elephant endorsing a presidential candidate, clearly placed in an individual student’s car, parked in the school parking lot where mostly students park, represents the School’s view. {That is no more likely than attributing to the School a student’s bumper sticker message on the environment or affinity for Gator football.} {Neither is the elephant display associated with any curricular activity.

{The School published on its website the grounds for revoking a student’s parking decal. The grounds do not include politicking. Failure to abide by school policy is a ground for revocation, but the policy Defendants cite prohibits “permanently posted” political signage. Tyler’s elephant is not permanently posted on school grounds.}

The mobile elephant is pure student expression, and the School must tolerate it unless the expression “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” To “justify prohibition of a particular expression” the School “must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Accepting the truth of the verified allegations at this juncture, Tyler will likely succeed in showing the School did not have a reasonable belief his elephant would lead to a substantial disruption of school activities.

Tyler alleges the elephant did not disrupt students—it remained outside the School, in Tyler’s truck. And the School allows other forms of political speech at that location, including bumper stickers. While the Court is mindful of the School’s difficult task of ensuring a safe and orderly place of learning for students, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tyler has shown a likelihood of success on his First Amendment claim….

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Detroit Ballot-Counters Board Up Windows, Block Republican Poll-Watchers

Detroit Ballot-Counters Board Up Windows, Block Republican Poll-Watchers

Tyler Durden

Wed, 11/04/2020 – 18:40

Authored by Paul Joseph Watson via Summit News,

Windows are being boarded up at a Detroit absentee ballot counting center as poll watchers complain about a lack of transparency.

“The scene at Detroit’s absentee ballot counting center is growing more heated. The windows now being covered up. Allegations of violations. Sec. of State says she welcomes challenges,” tweeted Fox News’ Matt Finn.

The Secretary of State responded by claiming the process had been “bipartisan, transparent and open” from the beginning.

Sadly, some of the poll-checkers had already found numerous errors…

Poll watchers claim that there are an unfair number of Democrats to Republicans and that the process is not transparent.

Trump supporters are furious at an alarming number of mail in ballot drops changing the results of closely fought swing states.

The Biden campaign’s prediction that Trump may appear to be winning on the night but that mail in ballots would change the result over the following days appears to be coming true.

The Trump campaign has already signaled its intent to demand recounts and challenge the outcome up to the Supreme Court.

*  *  *

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Classes #22: Equal Protection I and Eminent Domain

Class 22: Equal Protection I: School Desegregation

  • Brown v. Board of Education (I) (1003-1012).
  • Bolling v. Sharpe (1012-1015)
  • Brown v. Board of Education (II) (1015-1017)
  • Massive Resistance to Brown and the Role of Courts (1017-1020)
  • Cooper v. Aaron (1020-1026)

Class 21: Eminent Domain

  • Introduction, 997
  • Kelo v. City of New London, 1001-1008

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Twitter Again Refuses To Censor Kathy Griffin’s Pic Of Decapitated Trump Head 

Twitter Again Refuses To Censor Kathy Griffin’s Pic Of Decapitated Trump Head 

Tyler Durden

Wed, 11/04/2020 – 18:20

So-called ‘comedian’ Kathy Griffin has once again tweeted the horrific image of her holding a bloody decapitated head of President Trump. 

The post’s timing occurred minutes after Trump declared victory in the US presidential elections early Wednesday morning. 

Nine hours later, the gruesome photograph remains uncensored by Twitter and outlines the conservative bias on the social media platform.  

Griffin did not post a caption with the photograph. Her hatred towards the president led to her firing by CNN in 2017 for tweeting the same image.

In recent weeks, there’s been a massive uproar among conservative users of Facebook and Twitter, who allege these left-leaning social media platforms are unfairly censoring them. 

Griffin’s post has been up for nine hours, receiving more than 10.9k retweets and 48.5k likes. Yet, the image could be breaking Twitter’s sensitive media policy, which means users “may not post media that is excessively gory or share violent or adult content within live video or in profile header, or List banner images. Media depicting sexual violence and/or assault is also not permitted.”

So it’s okay if liberals post graphic content, but when conservatives tweet NYPost stories about Hunter Biden, they automatically get censored or at worst suspended or banned from the platform? 

Griffin’s latest stunt on Twitter is her crying out for attention. 

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Rabobank On The “Election Meltdown”

Rabobank On The “Election Meltdown”

Tyler Durden

Wed, 11/04/2020 – 18:00

By Philip Marey, Senior US Strategist at Rabobank

Election Meltdown

  • The US election results are coming in slowly and are likely to be contested. This will reduce the legitimacy of the president that will be sworn in in January and further fuel the social unrest.

  • The difference between a second term Trump and a first term Biden could hyperbolically be characterized as an ‘Emperor’ versus a ‘Prime Minister’. In the US context this means that neither Congress nor re-election concerns will restrict Trump’s foreign and trade policies. In contrast, Biden’s policies both at home and abroad will have to keep a broad and shaky coalition happy and together.

  • Foreign and trade policy will remain focused on meeting the challenge of China as the main rival of the US. While Trump will continue his bilateral approach, Biden is likely to return to a multilateral approach. However, both have electoral incentives to be tough on China.

  • Fiscal policy will depend on the outcome of the elections for the Senate and the House of Representatives. If the Republicans control one of the two and the Democrats the other, gridlock will continue, no matter who becomes President. This means limited fiscal stimulus and limited changes in tax and spending policies. In contrast, a Blue Wave in Congress and a Biden presidency would lead to a large fiscal stimulus in 2021Q1, tax hikes and heavy federal government spending.

Introduction

The US elections are developing in line with our baseline scenario: the results are coming in slowly and the outcome is likely to be contested. At time of writing, it may still take days before a winner of the presidential elections is announced and we may not know who takes the Senate until early January. At least, it appears likely that the Democrats retain their majority in the House of Representatives.

As the quick and decisive Biden victory priced in yesterday did not materialize, the 10y US treasury yield fell back today. In addition to safe haven flows a large fiscal stimulus is being priced out as the joint probability of a Biden victory and a Democratic Senate has fallen considerably. Since the Democrats are likely to remain in control of the House of Representatives we seem to be heading for two more years of ‘divided government’. This means gridlock and little lawmaking on the domestic front. No big fiscal stimulus near-term and no expansive fiscal policy in the coming years. This means that whoever becomes president will primarily be able to make policy internationally.

As we discussed in Economy or identity? Trump’s support has remained stable and insensitive to economic data or his handling of Covid-19. Instead, for most Trump voters it is identity that matters. And it has also proven a powerful incentive to get out and vote. Hence Trump was right in approaching this election as a ’turnout election’ instead of a ‘persuasion election.’ In contrast, Democrats, the mainstream media and economists continue to believe in the myth that left wing economic policies will bring back white blue collar workers to the Democratic Party.

Red Mirage and Blue Shift

While fair elections are crucial to any democracy, in the US both main political parties show little trust in the elections. Republicans often claim that voter fraud takes place which should be prevented by restrictions to voting. In turn, Democrats assert that these measures are aimed at voter suppression. The problem is that unlike other major democracies, the US electoral process is not organized by a neutral body. What’s more, people are not automatically registered as voters. In fact, the US has a long history of voter suppression that goes back to the nineteenth century when Southern states started to suppress black voters after the Fifteenth Amendment guaranteed their right to vote in 1870. And this was voter suppression by the Democratic Party by the way.

President Trump’s assault on voting by mail may also be seen in light of voter suppression. He tried to get his voters to go to the polls instead of mailing in their votes and give him an early lead. This then would put him in a stronger position to claim fraud when the results from the mail-in ballots are announced and give Biden a late boost. Voter suppression is more effective if you know in which pocket you can find more voters of the other party and fewer of your own party. This time it will be in the mail. Therefore we are likely to see a pattern in the election results as they are announced over time. A ‘red mirage’ would give Trump an early lead on Election Night, but a ‘blue shift’ will slowly benefit Biden in the overtime count. While Trump has already announced he will not concede, Biden is likely to wait out the blue shift. In other words, an early concession seems unlikely. In fact, we may not see any concession at all. Instead, the loser is likely to contest the results.

While there are few actual convictions of voter fraud, there are numerous cases of incompetence in the electoral process. Of course, this is damaging to the credibility of the elections. Since this incompetence tends to occur in large cities, run by Democrats, this fuels the Republican claims of voter fraud. Meanwhile, the mutual distrust between Republicans and Democrats are fuelled by America’s enemies. Finally, the rhetoric from both parties about the elections does little to boost confidence in their fairness. President Trump has already decided that the 2020 elections are rigged and he will not accept defeat. Meanwhile, the Democrats have spurred their voters to produce an overwhelming majority to prevent all kinds of nightmare scenarios. In vain as it seems now. How much trust in the fairness of the election outcome are voters supposed to have if this is what the two main political parties are telling them?

As the elections are close we are likely see a lot of market volatility and safe haven flows in the coming days. This against a background of a Covid-19 resurgence and ongoing civil unrest. Since the outcome is likely to be contested, the uncertainty may last even longer. This will only amplify the ongoing civil unrest. No matter who is sworn in as president on January 20, his legitimacy will be challenged. Meanwhile, foreign adversaries such as the Russians, Chinese and Iranians, are likely to amplify the mutual distrust through cyber warfare. As we concluded in Civil unrest, no matter who wins the elections, the turbulence in US politics and society is not likely to pass. In fact, what we are seeing now may be only the beginning.

The Emperor and the Prime Minister

When it comes to foreign and trade policy, the US President has considerable policy discretion. The options for the Senate or the House of Representatives to restrain the President are limited. We have already seen how Trump has shifted US foreign and trade policy during his first term. However, we have to keep in mind that his decisions were taken with his re-election chances in 2020 in mind. If he wins a second term, he will no longer be restrained by this. In other words, we may see a Trump 2.0 who will use the full power of the executive office. Meanwhile, he has reshaped the Republican Party in his own image. Therefore we could hyperbolically characterize Trump’s style of governing in his second term as that of an ‘Emperor’.

This stands in sharp contrast to a Biden presidency. If we look at the primaries then it is clear that Biden’s mandate is limited. He struggled in predominantly white states and was saved by black voters in South Carolina. Biden will have to keep a broad coalition happy and together, ranging from centrists to democratic socialists. In order to carry out the Democratic agenda, he will have to think about the 2022 midterm elections. What’s more, he will have to think of the 2024 elections, if not for himself then for his running mate Kamala Harris. In this sense, Biden’s position and style will be that of a ‘Prime Minister’, the complete opposite of Trump 2.0.

While the US is heavily polarized on domestic topics, there is a broad consensus that China is a problem. According to the Pew Center, the percentage of survey respondents who say they have an unfavorable opinion of China has risen in the last 15 years from a minority to a majority. And this is true of Democrats and Republicans, even though Republicans always score higher than Democrats on this topic. Therefore, foreign and trade policy will remain focused on meeting the challenge of China as the main rival of the US. While Trump will continue his bilateral approach, Biden is likely to return to a multilateral approach. However, both have electoral incentives to be tough on China. Financial markets would welcome Biden’s foreign and trade policies. In contrast, Trump’s confrontational international adventures remain a cause for concern.

Turning to fiscal policy, the outcome of the Senate elections is crucial. After all, decisions about spending and taxation are made by Congress. Biden and a Blue Wave in Congress would make a large fiscal stimulus in 2021Q1 very likely. That would have a positive impact on longer-term interest rates and equity prices. On the other hand, once the economy has recovered it would also bring tax hikes and increased regulation. This would have a negative impact on rates and stock prices. Moreover, Democratic rule would benefit and harm a different set of sectors than Republican rule. For example, infrastructure spending under Biden would focus on clean energy, while his regulation will be aimed at fossil energy.

In contrast, if Republicans keep their majority in the Senate (or instead get one in the House of Representatives), Congress will remain divided and gridlocked. This means slow fiscal decision making and limited size fiscal impulses. Only another impending implosion of the economy could get them to another CARES Act. Meanwhile, Republicans are likely to block a Democratic surge in regulation, aided by an overwhelmingly conservative Supreme Court.

Conclusion

We are still waiting for the outcome of the presidential elections and the full results for the Senate. Will the Blue Shift be large enough to overcome the Red Mirage? While markets are trying to discount which combination of president and Senate will prevail – assuming the Democrats remain in control of the House of Representatives – and what this means for asset prices, political instability in the US is rising. The social unrest of 2020 is likely to continue into 2021 and could very well be accompanied by a rise in political violence. This could start to erode consumer confidence and the business climate.

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Daily Briefing – November 4, 2020

Daily Briefing – November 4, 2020


Tyler Durden

Wed, 11/04/2020 – 17:55

In light of the market rally occurring along with election uncertainty today, senior editor, Ash Bennington, and managing editor, Ed Harrison, together pose the question, “just what exactly are the markets celebrating?” They discuss how investors may not have considered the strong probability for and election outcome other than a blue wave – and what the policy implications might be in a split government. Going off of that, Ed and Ash also review the economic data that is rolling out this week, shedding light on how the recovery is slowly breaking down in key indicators of the overall economy. Ed then projects what that data could mean for the labor markets going forward, Q4 GDP numbers, and the monetary policy response. In the intro, Peter Cooper reviews the data for the ADP report, ISM Services Index, and the ISM Manufacturing Index.

via ZeroHedge News https://ift.tt/2Gzkv68 Tyler Durden

The Media Had 4 Years to Figure Out Trump Voters. They Blew It.

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When Donald Trump pulled off a stunning upset and won the presidency in 2016, few people were more shocked than the professional take-havers in the mainstream media. Pundits, journalists, and political strategists—who live in Washington, D.C., or New York City but seldom leave their Twitter bubbles—were totally blindsided by the fact that a crass reality TV star had managed to defeat Hillary Clinton, the embodiment of the Democratic establishment.

A healthy media might have learned from its mistakes, engaged in soul-searching, and tried to gain some insights into the working-class coalition that Trump had assembled. Clearly, this didn’t happen, because four years later—in the midst of a nail-bitingly close election—the predictions of the pundit class have proven to be no more accurate than they were in 2016. In fact, by some measures the experts performed even worse than last time: The pre-election polls, which suggested a landslide Biden victory, Democratic control of the Senate, and gains in the House, are so spectacularly wrong it calls the validity of the profession into doubt.

To take just one example, Sen. Susan Collins (R–Maine), for instance, did not lead her Democratic challenger, Sara Gideon, in a single poll of the Maine senate race. She was thought to be losing by 5, 6, or 7 points. (Quinnipiac had her down 12 points in September.) On Wednesday afternoon, Gideon conceded the race, which Collins won easily.

And while Biden currently looks likely to narrowly eke out a presidential victory, he is underperforming the polls in several states. In 2016, pollsters could reasonably claim that the numbers actually showed a very close and ever-tightening race in battleground states like Michigan, Wisconsin, and Pennsylvania: Trump’s win, though surprising, wasn’t exactly outside the range of possible outcomes. This time, the public was primed for a blowout that never materialized.

This means, of course, that the mainstream media narrative about the “shy,” reluctant, or otherwise undercounted Trump voter—namely, that he does not exist—was completely, utterly, bafflingly wrong: Once again, Trump is more popular than the media thought was possible.

Perhaps more importantly, the media continues to be wrong about why Trump is popular, and about which people like him. Unable to admit that a Democratic Party held hostage by liberal arts graduates who write their preferred pronouns on their name tags might be out of touch with the working class voters who traditionally vote blue, many cable news talking heads settled on any number of alternative explanations: from Russian interference to lingering, perhaps resurgent, racism throughout the U.S. (CNN’s Van Jones called it a “whitelash” in 2016.)

Trump, though appears to have improved—albeit modestly—his totals with minority voters, including and especially Latino voters. The narrative that Trump’s divisive rhetoric about foreigners and immigrants renders him completely toxic to minority voters just doesn’t match the reality. Indeed, the results thus far suggested that the racial gap—at least for Latinos—is shrinking, and class and educational attainment are becoming more salient considerations than race.

It’s unfortunate that many within the media—including and especially the prognosticators—continue to get things so wrong. Massive polling errors are bad for cultivating a well-informed citizenry, as David Graham argues in The Atlantic:

Without reliable sources of information about public opinion, the press, and by extension, the public, should perhaps employ a measure of humility about what we can and can’t know in politics. As wise as this may be—and even if people manage to act on it—that sort of epistemic humility risks falling prey to the same asymmetrical warfare that has characterized much of the Trump era. At the moment, the leader of the Republican Party is an authoritarian populist who claims to represent the “true” will of the people, despite losing the popular vote twice. The president is unlikely to exercise any such humility in claiming, without evidence, that public opinion is with him. He might be wrong, but without reliable polls, who’s to say otherwise?

Given the narrowness of Biden’s presumed victory, it seems unlikely that Trumpism has been dealt anything resembling a death blow. The GOP will have little reason to shun Trump; on the contrary, given the results in 2016, 2018, and now 2020, one could make the case that the Republican Party performs better with Trump’s name on the ballot than without it. Those in the mainstream media who continue to fail to understand Trump aren’t going to get off easy: They just plain have to get better at this, or they will continue to lose ground to their challengers in the alternative media.

Several people who fall into this latter category—which includes a bevy of populism-sympathetic podcasters and upstart policy advocates—were recently profiled in The FederalistPublisher Ben Domenech and culture editor Emily Jashinsky call them the new contrarians, or “the New Contras for short, because the one thing they all have in common is refusing the wokeness that dominates legacy media, and has created a practically religious climate of insufferable identity politics.” They cite Glenn Greenwald and Katie Herzog as two such New Contras: Both were solid journalists of the left, gradually chased out of respectable leftwing journalism spaces for disagreeing with mainstream orthodoxy.

Institutions like The New York Times and The Atlantic have grown much more squeamish about inviting dissenters into their midst. Publications are now occasionally beholden to staffers who think it’s the job of journalists to run interference for the Democratic Party and hide stories from readers if they could conceivably help Trump. Many young rising stars in the world of investigative reporting think newsrooms have wrongly prioritized objectivity and should move toward a kind of “moral clarity” that is likely to make their institutions even more confused about why millions of people—roughly half the country—have aligned themselves with Donald Trump.

As independent thinkers exit the mainstream media, groupthink and blind spots among the legacy press are likely to get worse. The result would be a travesty, and not an outcome anyone should want or root for.

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