Coale Mind

Various speakers associated with the "Q" phenomenon have recently claimed that Donald Trump can be "reinstated" as President, based on the hoped-for outcome of ongoing "audits" of 2020 election ballots in battleground states. This episode reviews the relevant text of the Constitution, noting that (1) voters choose Presidential electors, not candidates, and (2) the 20th Amendment speaks directly to the time that a new President and Vice-President takes office, and concludes that no "reinstatement" will happen. 

Special guest! Jason Bloom, one of the nation’s leading jury consultants, talks about his experiences with jury selection during the COVID-19 pandemic. From that foundation, he and I talk about issues likely to arise as jury trials return to reopening courthouses across the country. They include:

- A surprising eagerness of people to show up and serve on juries, in part driven by widespread feelings of frustration after months of shutdown;

- Concern about what Jason calls the “massive exercise in confirmation bias” that potential jurors bring to the courthouse with them, depending on how restricted a juror’s information sources may be;

- The once-obscure psychological terms “ultracrepidarian” and “pareidolia” (you have to listen to the podcast to explore those terms’ meaning :));

- Remembering that 2020 changed potential jurors not only because of COVID, but because of Black Lives Matter, the Biden-Trump election and its aftermath, etc.

- And a reminder that jury service—unlike the similar civic-engagement exercise of voting—forces jurors to form a consensus among their different beliefs; and 

- Why 1-page written questionnaires for potential jurors may be particularly useful now in light of the above issues. 

 For information on Jason, his background, and his outstanding jury consultation services, please visit his website.

The Constitution protects economic liberty,  but only against regulations that lack a rational foundation in a legitimate governmental interest. 

Two recent cases from the U.S. Court of Appeals for the Fifth Circuit show how slippery this principle can be in practice. The underlying principle is alive and well, but "rationality" is a fairly easy burden for a regulator to satisfy. 

In one, a Louisiana ban on the making of funeral caskets by Catholic monks was struck down (in no small part, because the ban served to benefit the funeral home directors who controlled the relevant agency). 

In the other, a Texas ban on telemedicine by veterinarians was affirmed, by a 2-1 vote, on the rational basis that pets cannot talk while humans can. (The dissent was swayed by the argument that babies cannot talk either, but we allow pediatricians to treat them by telemedicine). 

Despite the disappearance of the shadowy "Q," and the failure of the long-promised "Storm" to occur, followers of "QAnon" still hold out hope. Some believe that President Trump will return to power on March 4, 2021, in the reversal of an 1871 that turned the US into a "corporation" (spoiler alert--it didn't). Another view is that "NESARA," a secret package of economic reforms, will kick into gear in the summer of 2021, bringing about the return of President Trump and at last triggering the "Storm." 

These beliefs are fanciful, but they are spun from underlying facts that many times are correct--so far as they go. Why do we do this to ourselves? This episode examines the psychological concepts of "pareidolia" and "apophenia"--our tendency to create order from unrelated sensory information, as was famously illustrated by NASA's "Face on Mars" picture in the 1970s. Those psychological tendencies, while useful in another time when our ancestors needed to instantly distinguish friend from foe, now poses dangers to the proper operation of our democracy--which assumes that voters are operating with reliable and fundamentally factual information and worldviews. 

In just the first few weeks of his Administration, President Biden has issued 20-plus executive orders--a noticeably faster pace than his immediate predecessors. What exactly is his authority to issue such orders? And what are the limits on it? This episode of Coale Mind examines the text and structure of the Constitution to identify some answers--both substantive, and procedural. 

The Senate plans to begin a second impeachment trial of Donald Trump. Can it do so under the Constitution? This episode looks at the Constitution's text, evidence of the framer's intent, two historical impeachment cases, and the Constitution's structure. It concludes that the answer is likely a matter of political will and consensus, which the two historical examples  (former Senator William Blount in 1798 and former Secretary of War William Belknap in 1876) show is hard to actually sustain all the way through a trial to an judgment of impeachment. 

The pardon provision in Article II of the Constitution is broad -- but so are other clauses that describe other aspects of the Presidency. This episode of Coale Mind reviews those terms of the Constitution, and considers how our debate about them reflects our society's broader debate about what we want the United States to be. 

Sixth Street in Austin is one of the nation's most famous "party streets." But is also the location of a Texas-style showdown between the governor, on the one hand, and the local mayor and county judge, on the other, about the regulation of bars and restaurants during the COVID-19 pandemic. This episode looks at the laws underlying their dispute (which just reached the Texas Supreme Court in its first case of 2021), and examines how those laws help explain the broader structure of our modern local governments. 

The Supreme Court's recent rejection of the Texas v. Pennsylvania lawsuit has produced some muttering on the far right wing about the concept of secession.

This episode examines Texas v. White, the 1869 Supreme Court case that held -- once and for all -- that a state cannot secede from the United States. The case arose from shady dealings by the Confederate government of Texas involving millions of dollars (1860 dollars, mind you) in U.S. bonds. 

The desperation of the Texas government in 1865 shows the real danger of secession: that while it can be entertaining to idly discuss, the real work of building a government is not something that should be approached as a start-up venture.