Venezia. The Atlantis-like ancient city with its bridges over canals, long boats mastered by the gondolier, the city whose balls made masquarade masks famous, where artisans of show-making spend a whole day to make a single show of artistic wonderment, a hidden restaurant in a corner alley uncovers the best Italian cuisine, and the city whispers of its centuries of stories from its cathedrals and water-hugging mansions of Casanova’s fame.
III. THE CLOSING ARGUMENT: Constitution Masterclass -- The 30,000 Cap
Article I, Section 2, Clause 3 provides: “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative.” Interpretations clash: was this intended to impose a cap on the number of people a member of the House could represent, or the number of Representatives that could ever be in the House? Equally, who can enforce the rights of Section 2 as applied to Representatives?
Congress capped the number of representatives by the Permanent Apportionment Act of June 18, 1929, and has not changed it since. A 1941 federal law provided the means to assign seats after the Census. States contested this when it lost a seat after the 1990 census due to this cap. The Supreme Court acknowledged this was not a question submitted exclusively to the Legislative branch as a “political question” beyond its jurisdiction to resolve. Thus, the question turns to the import and intent of the 30,000 rule — is it a cap on the number of representatives or is it a ceiling on the number of people represented?
The phraseology can be read either way — that the restaint is on the “number of” Representatives in a ratio to the population rather than the population size represented by the District; or that the ratio intends a cap on the number of people represented by each representative. Linguistically, the former argument holds more sway; historically and philosophically, the latter argument proffers more persuasive evidence.
If we see it as sufficiently ambigious to turn to the Constitutional record, we find that the ratio of the house to the population was intended to be close to the people at a size no more than 30,000 people, reflected in the papers of the Founding Fathers themselves.
Indeed, the controversy over this language almost sunk the Constitution itself, despite the supporters arguing in Federalist Papers throughout that this was a minimum of people to be represented not merely a cap on the number of representatives in the House. So much so, that the very first amendment ever proposed was to clarify this point: that the minimum number of representatives must be proportional to the population in a strict ratio. Due to an editing error as passed by Congress, the amendment never passed, though mostly it faded as the Founding generation protected the intended ratio in fact.
The best plaintiff to seek such a relif would likely be a state without representation due to the absence of this maximum number of people per representative, given the prior case-law on the subject, or, of course, Congress itself could remedy the problem all by itself.
John Solomon and Steven Richards of Just The News just put out a hit-piece on Kyle Seraphin in which they claim that Kyle recklessly discharged a firearm on a firing range that was declared “cold”, diagonal across the line of the instructor who was on the range allegedly repairing a target.
The article states that “Seraphin acknowledged to Just the News in an interview last year that he was "dicking around" when he fired his weapon at his supervisor's target at the range in 2022, but he insisted the incident should not have led to his suspension and termination and that he believes he was a victim of whistleblower retaliation.”
The article goes on to alleged that when asked why he fired on the instructor’s target during the incident, Seraphin “said it is sometimes what you do when you are “d*cking around” with friends on the range.”
Sounds pretty incriminating.
Until you hear what Kyle actually said, and how Just The News absolutely took the word “d*cking around” out of ...
Pros: Limit the permanent political class growing into an aristocracy of elites whose incumbency status and power-holding position affords them an institutional edge over competitors, encouraging a gerontocracy of lifelong politicians, disconnected from the real world of everyday economics and more likely to be embedded into a parasitic government-driven, power-access oriented system that empowers corrupt elites at the expense of the people.
Cons: In contemporary government, the real consequence of term-limiting the Thomas Massies of the world is to empower the permanent state, empowering bureaucracy over democracy, in lobbyists, career staffers, and the ever-expanding bureaucratic state, like a show of Yes Minister, married to the corrupting effect of donor class gatekeeping in the real world of modern elections driven by television expense ever consuming larger and larger shares of campaign exploding budgets to reach the ever growing number of voters they...
Something majestic of a colorful Oriole in flight, the feeling of freedom in the outstretched wings to soar in the sky, beyond gravity and above the landed earth, ready to roam and reign while seeking a safe and strong landing place for a bit of a rest.
A. Art of the Day: Best way to start a day: early morning coffee. Maybe on a back porch. Maybe at a kitchen table. Maybe in a friendly diner. Maybe at a corner caffe. Maybe in a local coffee house. A tradition commenced in the hills of Yemen, it traversed the Islamic world until it reached Europe, where it turn the holy inspirational drink in the Turkish caves to the everyday place of chatter in the newborn cafes of Europe in the 17th century. Be that as it may, for many still, it signals the start of the day in a good way.
A symphony of cigar smoke, whiskey in the air, leather comfort awaiting, all inviting into a conversation w/ either oneself or fellow travelers, where the lyrics of the malt dance with the warmth of the tobacco, in a tradition as old as both.
“All human beings are members of one frame, Since all, at first, from the same essence came. When time afflicts a limb with pain, The other limbs at rest cannot remain. If thou feel not for other’s misery, A human being is no name for thee.”Persian poet Sa’adi:
*NOTE: A reminder: links are NOT endorsements of the authors or their interpretation of events, but intended to expand our library of understanding as well as expose ideas of distinct perspective to our own.
III. CLOSING ARGUMENT: Constitution, Fifth Amendment & Discovery
In general, civil contempt “is intended to coerce the disobedient party into compliance with the court’s order through incarceration and/or monetary punishment.” Commonwealth v. Bowden, 838 A.2d 740, 761 (Pa. 2003). The court may not impose a coercive civil contempt sanction where compliance with the court’s order is impossible. In re Martorano, 346 A.2d 22, 29 (Pa. 1975). In determining what sanction to impose, “a court must exercise the least possible power suitable to achieve the end proposed.” Commonwealth v. Cromwell Twp., 32 A.3d 639, 653 (Pa. 2011) (citing Spallone v. United States, 493 U.S. 265, 276 (U.S. 1990)).
Contempt is not available for a witness asserting the protection of the Fifth Amendmenty right not to be a witness against onself. Note what the Amendment does not say: a right not to incriminate onself. Instead, it's a right not to be a witness in any manner in a proceeding where the witness' evidence can be used adverse to them. A witness “cannot be compelled to give evidence against himself.” “The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (U.S. 1973).
The Third Circuit held that: “A trial court must carefully balance the interests of the party claiming protection against self-incrimination and the adversary's entitlement to equitable treatment. Because the [Fifth Amendment] privilege is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side.” S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 192 (3d Cir. 1994). This includes orders to compel password disclosures. Commonwealth v. Davis, J-42-2019 (Pa. 2019). A court cannot order contempt for a Fifth Amendment assertion. Commonwealth v. Leclair, 2014-CJC-11469 (Mass. 2006).
A Pennsylvania Court of Common Pleas expressly cited Graystone Nash and used it as the basis for decision-making in Haas v. Bowman, 62 Pa. D. & C.4th 1, 10 (Pa. Com. Pl. 2003). In Haas, the Court of Common Pleas cited numerous cases to hold that “Under this standard, noncompliance with pleading requirements cannot be a basis for entering a judgment against a party properly invoking the Fifth Amendment privilege.” Haas v. Bowman, 62 Pa. D. & C.4th 1, 11 (Pa. Com. Pl. 2003). “Absent independent, probative evidence produced by the party bearing the burden of proof, the implications of one's assertion of the Fifth Amendment privilege are speculative at best, and insufficient to support an adverse factual determination.” Harmon v. Mifflin Cnty. Sch. Dist., 552 Pa. 92, 100, 713 A.2d 620, 624 (Pa. 1998).
Where usinesses are alter egos of the individual defendants, the businesses too should be protected by the Fifth Amendment. United States v. Doe, 465 U.S. 605, 613 n. 11 (U.S. 1984). Under United States v. Doe, 465 U.S. 605, 613 n. 11 (U.S. 1984), the Supreme Court held that the business records of an individual proprietorship are essentially the same as individual records for the purposes of the Fifth Amendment. Braswell v. United States, 487 U.S. 99, 104 (U.S. 1988). Pennsylvania courts recognize this risk and that a court cannot, through contempt, compel an individual to be a witness against themselves. Sweet v. The City of Williamsport, No. 20-CV-00512 (C.P. Lycoming County June 27, 2022 Linhard, J.)
As such, the coercive power of the state cannot compel, under threat of contempt, a witness to be a witness against themselves without violating the Fifth Amendment to the Constitution, a right rooted in opposing Inquisitorial methods to extract information from state targets.
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