Trump, Florida, and Gun-Control: Dues and Don'ts

On the issue of gun control, due process, Florida, and Trump: even if Trump's statements regarding due process are taken very generously they are still wrong, dangerously so, and inapplicable to the Florida shooting in any case. There was no need in Florida to short-circuit due process and violate rights. There was plenty of warning and plenty of time for the law to act well within its authority and regarding the limits of the Constitution. They simply didn't.

Pre-deprivation vs. Post-Deprivation Process

Due process is ALWAYS required. That is simply what the word 'due' means: it is what is required to satisfy rights. The process which is 'due' is usually pre-deprivation process. In pre-deprivation process, an adversarial proceeding such as a hearing occurs in front of a neutral-arbiter (judge) before rights are offended by the government. An adversarial process means both sides are represented and the person(s) being deprived get to make their case, examine the evidence, etc. A criminal trial is one way to satisfy due process but not the only one and never has been. It is not even the only way to satisfy pre-deprivation process.

Post-deprivation process is usually invoked when there is an immediate danger to life or property. An eviction of a tenant, for instance, often requires a hearing first and the eviction happens only if the court finds in favor of the landlord. If the landlord's property is in danger of being damaged by the tenant before that can happen, the order can be reversed: the tenant is immediately removed, then the court argues about it. Post-deprivation process means that the adversarial part happens after the defendant has already been deprived of something.

Another example is an 72-hour psychiatric hold on an individual who is (arguably) an immediate danger to themselves or others. An emergency hearing is then held to decide whether to release the individual or if involuntary commitment or some other action actually is necessary. Not surprisingly, there are rules for how this has to happen and— if these rules are satisfied— due process is satisfied as well. Process is not short-circuited, merely follows a different path.

Attorneys among my readers may be cringing that this explanation simplifies things a bit. Although this is quite true, I am not writing for attorneys but for people (like Trump?) who have no understanding of the law. This is also why I am uncharacteristically not peppering this piece with citations: just understand that there are already provisions for emergency circumstances and there have been for centuries. Lack of such options is not really the problem (here).

Not Relevant Anyway

In the case of the Florida shooter, Cruz, this really does not matter anyway. There were opportunities and plenty of time for authorities to do things the long and slow way. It is not disputed that the would-be shooter, Cruz, interacted with law enforcement many times (the exact number, either 23 or 36, apparently depends on how you count) over a period of several years. This was not a last-minute development, not in any sense, any more than it was in the case of Virginia Tech. What is more, at least three incidents rose to potential felonies. Arguably a number of them did, but that hardly matters: Cruz, at the least, was the subject of a 9-1-1 call where he is alleged to have threatened his adoptive brother with a firearm, a potential felony. Further, he was alleged to have texted threats to his ex-girlfriend and her new boyfriend. Making specific threats of violence or death to specific individuals in a specific context and putting his name on it is a potential felony. It is indisputably reasonable cause for a criminal investigation which is in turn likely to furnish probable cause for arrest. It can be argued that imminent danger and probable cause for arrest was already present with no need for an investigation before-hand (post-deprivation process), but the slow way would likely have worked as well.

If Nikolas Cruz had been convicted of or plead guilty to, say, felony assault, particularly as an adult, this would have started a criminal record. Given a criminal record, it would have been much more likely his other activities would have been put together. The FBI, for instance, might have immediately seen that the subject of the called-in tip already had a history of potential violence. Certainly, it would have made it harder for Cruz to pass a background check to purchase firearms!

[Note, I am not excusing the FBI here for dropping the ball by not referring the tip, merely saying that local authorities might have made the FBI's error less likely.]

Who Should Bear the Blame

Random law-abiding citizens should not be punished for this incident by having their constitutional rights to due process nor their natural, common law, and constitutional rights to keep and bear arms violated. Period. Giving more power to the very authorities who dropped the ball has two results:

1. the power will be abused in the wrong situations
2. there will still be nothing to guarantee it will be used to prevent tragedy

The same authority which failed to act in this case can still refuse to act in the future, but they will have even more tools to abuse authority when they feel so inclined. There may be ways in which the existing process can be tweaked (I am cautiously in favor of GVROs myself, I have written elsewhere about potential loopholes in juvenile criminal records and background checks), but none of that really matters here. The background check did not succeed because a juvenile record was prematurely expunged, but because no record was ever created in the first place because the local authorities failed to do their jobs.

The people who should be punished (under whatever process is due) for this horrific act of violence are, in order:

1. the shooter himself
2. the local sheriff's office, including potentially the sheriff and individual deputies
3. whoever at the FBI failed to pass the phoned-in tip to the regional office as procedure required

It is possible that other legitimate targets for ire may come to light. The first one, the shooter, is ongoing. It is actually unusual for the perpetrator to be available for justice. I had to endure the long process of a trial for the shooter at my school, but many of the perpetrators suicide or are killed by police. There is a potential for closure available here in that process and that is not a small thing. The second one is best conducted by Floridians and particularly those in the affected county through whatever process is available under their state constitution. At the very least, the locals can and should respond at the ballot box, but that is not something any of us can do for them; they have to want to take action. Finally, we are told that an investigation of the missteps within the FBI is ongoing. Perhaps this will yield results and perhaps it will not. We, as citizens, need to keep on top of this process, but it is too early to expect results.

None of these things particularly involve making new laws, short-circuiting due process, or even gun-control at any level. The criminal justice system failed in what it is already authorized and charged with doing. The failure cost lives. The details of the precise magnitude of the failure and why are still forthcoming, but the fact that it occurred is not really in question.

Emergency Response and Personal Safety

This blog grew out of a thread regarding police and personal safety on approaching suspects. It is part of a bigger issue in emergency response generally and one which keeps coming up in different forms. This is also not an official Sheriff's Auxiliary post because I want to be free to represent my own opinion here and not any specific organization's policy.

The assertion is--- and I have seen this made a number of ways--- that the #1 priority is personal safety and the Licensed Peace Officer (LPO) should do whatever they need to do (regardless of law or procedure) to go home to their families. I have even caught myself using close variants of it in training (though I do usually catch myself). I am going to look at this in the light of emergency response generally to show that it is subtly and dangerously wrong.

Is Personal Safety the #1 Priority?

If we did take this assertion to be true with LPOs specifically and with emergency response generally, what would be the logical result? If personal safety is the top priority, then the solution is simple: don't send emergency personnel into the field. Problem solved. In fact, there is no other way to satisfy such a priority.

Clearly, we do send emergency personnel into the field. Clearly as well, personal (personnel - either works) safety is important. So something else must be going on here. What is it? First, the assertion of priority needs to be corrected. Second, there is a misapprehension about the role of procedures and training.

Life Safety is the Mission:

Life safety of everyone (not just you) is paramount. This is, in fact, the mission. Being an emergency responder (in any capacity) does require a certain level of risk. Whether volunteer or professional, this risk is known when you sign up. It is not a secret. Whether paid or not, if one is not comfortable with some risk in order to accomplish the mission, then the proper response is to go home.

Most of us, when we decide to do emergency response, do it at least partly because we are motivated by a personal need to help others even at a personal cost. This almost has to be true of volunteers because very little else could explain our behavior. And, let's face it, emergency professionals, including LPOs, are seldom paid what they are actually worth: one could flip burgers and make what many paramedics make, without the stress, without the liability, and without the crazy hours. I have no idea what it would take to pay me to do a domestic call at 02:30 hrs as an LPO, but  it is much more than the officers I know make.

Personal safety is important. We train on safety all the time. For one thing, if we do not practice personal safety, we become victims and someone else has to go risk their lives to save our sorry behinds. And, we do want to go home to our families. There are times where we do not go into a situation (and the rules say we don't) because the risk is not warranted. But... and here is the important part... personal safety does not justify taking actions which actively endanger others. We call that 'cowardice'.

The Real Priority:

It is also not true that our first priority is ever our own safety. For one thing, when I am on the field with an LPO I serve alongside, my first priority is that they go home to their families. I expect, with many of those I work with, they are thinking the same thing in reverse (that is: they don't want to fill out the paperwork if they lose the useless volunteer). That's what a team is: we watch each others' backs. As a class, responders watch the public's backs--- or we should--- and that goes whether or not we are paid enough or appreciated enough. Which brings me to:

The Role of Rules:

We have rules and train to them because they protect lives. Sometimes bad rules (or rules which did not anticipate the circumstances) do get in the way of the mission and of life safety, but that means that the rules need to change, not that we should ignore them. When we do have to violate rules--- and sometimes we do--- the issue needs to be explained and examined so that we can adjust future rules and training. A process with no feedback loop is dangerous and worse than useless.

What if you work in a system where this is not true, where the rules are systematically bad and dysfunctional? Quit. Yes, really: if it really is that bad, it isn't worth your life and others to stick with it. Not for anything. A good supervisor, one who protects their personnel from bad calls upstairs, is priceless and if you have such a one, great, fight for them, but otherwise ¡Quit! and go somewhere else.

In emergency response, if you simply decide to not follow the rules, Bad Things(TM) happen, maybe to you, maybe to your fellow responders, maybe to the public.

And Here We Get To the Real Problem:

There is a corollary here, though, and it applies to everyone, not just the emergency responders: if we hold emergency personnel (including LPOs) to the rules, if we hold them accountable for breaking them, then we citizens need to be responsible for the rules that we control, the laws and policy that we set. When we set bad rules, or stick our heads in the sand and let it be someone else's problem, people die.

Addicted to Bad Statistics - a Growing Epidemic

OK, references keep popping up to this CDC study on the dangers of patients receiving prescriptions for opiate pain-relievers becoming chronic opiate users. Specifically, they make reference to a finding that patients receiving a 1-day prescription for opiates only have a 2.6% chance of still being on opiates 1 year later while those given an initial 30-day prescription have a 45% chance of being on opiates 1 year later... So, I look up the study to see the data and conclusions for myself. Apparently not enough people sit through classes on research traps and simple mistakes.

This is the most telling point which should jump out at anyone interested in citing the research to make recommendations on opioid prescriptions or policy:

The findings in this report are subject to at least five limitations... Second, the extent to which chronic opioid use was intentional ... is not known. ... Third, information on pain intensity or duration were not available, and the etiology of pain, which might influence the duration of opioid use, was not considered in the analysis. [ https://www.cdc.gov/mmwr/volumes/66/wr/mm6610a1.htm (emphasis mine)]

They also note that longer-term prescriptions were much less common than short-term prescriptions. So... the obvious conclusion would be that doctors tend to write prescriptions for longer-terms for patients expected to need the pain relief for a longer period of time and... not surprisingly, they do. The study also notes that those receiving longer-term prescriptions tend to (among other things) be older and have a previous pain diagnosis. (duh!)

In other words, doctors are already likely exercising judgement by providing short term prescriptions to most people and only giving 30-day prescriptions to a much smaller number of people with longer-term conditions. But the researchers did not have data available to exclude this possibility ---and to their credit, say so. The warning in the study, however, is completely ignored by everyone citing it even though the data is useless for the purposes they are trying to make of it.

Garbage in; Garbage out

The capital-P Problem is that the purpose they are generally trying to make of it is this: recommending that doctors stop providing 30-day prescriptions to people with chronic conditions because of the higher danger of long-term use! This is usually linked to a claim that 80% of heroin users get their start with prescription opioids (another bad statistic I'll save for another day) and that reducing opioid prescriptions will therefore reduce future heroin use.

Question: what will long-term pain sufferers likely turn to when they cannot get legal prescriptions from their doctor to treat their valid medical conditions? In all likelihood, they will turn to black market sources, with no quality control, which has a higher chance of leading to addiction and overdose as well as feeding our larger issues with drug smuggling.

Is there a very large recent increase in drug overdoses? Yes. Is this a problem? Yes. Does stupid misuse of incomplete data help point to a solution? No.

And the solutions we persistently fail to consider...

You cannot willy nilly stop prescribing opiates to people with long-term pain unless and until you can offer other solutions. To do so is inhuman. Unfortunately, for many people who suffer long-term pain (including myself until recently), other solutions are few and non-existent. Opiates are more effective for short-term pain and lousy for long-term pain--- this is well-known. Using opiates to control long-term pain simply sucks less than being in pain for months on end with no other alternative.

Ironically, better alternatives for long-term pain are either difficult to get FDA-approval in the US or are flat illegal. Marijuana, for instance, shows long-term efficacy for chronic pain for some classes of patients and is much less dangerous than opium-based medications, but it is currently defined in law as having no valid medical use. Nor am I making a pro-marijuana case here, but rather the case that it is disingenuous to say people should stop using opiates while we are actively foreclosing alternatives.

Las Vegas Shooter Scoped Other Events, Reflections On Living With Violence

Yes, another update on Las Vegas, but this is rather interesting: the Clarke County Sheriff there has stated to the press that Paddock probably did have help (they are looking for a particular woman seen in the hotel, not his girlfriend) and information has been released that he has booked other hotels overlooking other major events: this was a *long* time in planning. He started buying weapons in 1982, so it is hard to tell when the purpose of his purchases may have changed.

[Las Vegas shooter booked hotel overlooking Lollapalooza, seen with mystery woman]

If this guy fits profiles of other mass murderers (and note that so far he does not), then he will have reached out to other people (small number) over that time to pull them into his plan. Normally, they will make suggestions that they can pass off as a joke if rebuffed, and therefore the subject does not necessarily connect the comment until after (I, myself, experienced this with a shooter). As people come forward, they may provide more insight into the situation, especially if authorities locate actual co-conspirators. This process may, however, take years to gather information and to actually piece it together.

Another part of the picture that is starting to emerge: given the time and resources ($100s of thousands, aircraft, etc.) available to this plot, very little had a chance of preventing it. The only realistic chance of stopping it would have been if his preparation had been discovered more or less by accident, if a co-conspirator chickened and came forward, or if someone he approached a) understood what he was asking, b) went to authorities, and c) was believed. Nothing short of that would have likely prevented the incident or necessarily reduced the scope of the damage he was able to cause.

Believe me, that is not a comfortable thing to realize--- it is not something we like to admit--- but it is likely the truth. I had a discussion with my wife this morning and with the father of a victim at my school a few years back that I am doing better at handling this kind of thing than I used to be because I no longer feel helpless: I am doing things that make a difference. As Mr. Gibson put it, I have found “a way to make lemonade”. The people that find a way to do that--- or found a way to do that during the attack--- the heroes of that night--- will have a much better time coping and moving forward. We have to find a practical way to do that as a country, and that is actually one of the reasons for the misguided push for gun control and other measures which likely would not make a difference. I know from experience that they are wrong, but I understand the impulse.

The things which *would* make a difference are not quick fixes, they take time, thought, and facing uncomfortable reality. Maybe we will eventually get to that point. The other thing that helps is simply *faith*: I believe we live in a fallen world, that evil exists, it always has, and though we continue to strive against it, it will to the End. At some point, we have to realize that life is deadly, that it is unfair, and move on with what we have. I truly believe there IS an ultimate purpose, and that helps me deal with the horror of where I have been.

Monuments To Lasting Peace

There is a deep irony in the efforts to remove monuments like those to Robert E. Lee in the name of "healing from the Civil War". To a great extent, the efforts of people like Lee after the Civil War are why we have a country to heal in the first place. Lee, Confederate General Longstreet, Union General Sherman (among others) worked tirelessly to end the Civil War and knit the country back together.

Lee took efforts at Appomattox to endure that he was not surrendering merely the forces under his command but signing an overall armistice. He made particular efforts to stop groups of Confederates who wished to wage a guerrilla campaign after the stacking of arms. The entire process was conducted with such dignity and honor that Union General Chamberlain ordered his soldiers to salute their defeated foe--- a salute which was returned by the Confederates in the first step of becoming a single nation again. Rarely in history does any civil war end in that kind of mutual respect.

After the surrender, Lincoln, Lee, Longstreet, and Sherman, along with Grant and Breckenridge (the last Confederate Secretary of War), worked to get people to come together to build a new peace without endless reprisals. They managed to hold the fragile peace together through and after Lincoln's assassination. Lee himself died five years after the surrender. Longstreet and Sherman--- perhaps one of history's unlikeliest combinations--- became good friends, working to keep Lee and Lincoln's vision of a new nation going through the upheavals of reconstruction and economic collapse. Longstreet and Sherman, with Lee's support, lead efforts to get land, education, and economic self-sufficiency to freedmen (much of which was later undone by others).

This is all, of course, a simplification, just one piece of a very complex period, of complex people, but the point is, there is more to war than who won and who gets blamed in the victor's history books. Victory is imposed on the battlefield, but establishing lasting peace takes something more. By attacking the memory of people like Lee, Longstreet, etc., we are attacking the precarious peace that they gave us. The "we won, now shut up and go away" attitude is exactly what people--- better people than us, apparently--- fought to prevent. We were shown the right way to end a war: all we have to do is keep walking in that direction.

Further Reading

There are many books and many primary sources on the fighting of the Civil War. Finding good accounts on the establishment of peace afterwards is surprisingly hard and woven into many other sources. As Union General J. L. Chamberlain noted, once the fighting ended, so did the official record of the Civil War. Here are a few sources which may be a good start:

• William C. Davis, "An Honorable Defeat: the Last Days of the Confederate Government" Harcourt. New York. 1946
• Joshua L. Chamberlain, "The Passing of the Armies; An Account of the Final Campaign of the Army of the Potomac, Based Upon Personal Reminiscences of the Fifth Army Corps" J.P. Putnam and Sons. New York. 1915. (Chamberlain was responsible for organizing the surrender ceremony and receiving the stacking of arms on behalf of the V Corps, U.S. Volunteers. He also notes his fears for the loss of the peace after Lincoln's assassination. A more compact record of just the surrender is here: https://www.civilwar.org/learn/primary-sources/last-salute-army-northern-virginia
• Eric Foyner, "A Brief History of Reconstruction" Harper and Row. New York. 1990 (Woven in and out of this larger work are accounts of people who tried to keep Reconstruction on track and meet their obligations to former slaves, including, at various points,  Lee, Longstreet, and Sherman. If you have not read about the tortured history of Reconstruction and its dramatic failures, this is not a bad place to start.
• The personal memoirs of Ulysses S. Grant, now in the public domain, also contain personal recollections bearing on these issues, including his fears of a collapse of the peace--- or of large-scale retribution against the South--- after Lincoln's assassination.
• Information on the Fifth Avenue Presbyterian Church monument to Stonewall Jackson commissioned by Rev L. L. Downing, the son of a slave Jackson taught to read. The stained-glass window behind the pulpit is beautiful, and worth seeing. If you do not understand the inscription, they are the last words Thomas J. Jackson spoke in the presence of his wife and surgeon on his death bed after the Battle of 2nd Chancellorsville.

Other commentary

• Condoleezza Rice on Removing Civil War Monuments: 'Sanitizing History to Make You Feel Better Is a Bad Thing'
• Bethlehem, PA NAACP President: "You can't eliminate what history is."
• A counterpoint: Lee's great-great grandson fine with moving monuments. (This is Robert Edward Lee V. As an aside, I once met R. E. Lee IV through a friend and former housemate of mine who was a raving socialist--- at least at the time, I have not seen him in many years--- but a good man. R. E. Lee the IV was (then) scruffy, wore his jeans around his knees and greeted us with "'Sup?". Given that we were all three somewhat young and unformed at the time, I don't know that I made any better impression, but the experience did rattle my preconceptions of what Lee's descendant would be like.)

Understanding the Rules of Conventions and Why They Are Different

Why must the rules be adopted each time and why by 2/3?

Introduction

There has been much argument in the 2016 election cycle about the fairness of the primary process, that it is not democratic, that it is establishment, or fixed in some fashion. There have been accusations of cheating. Inevitably, some accusations of cheating will be true (there always are). In more cases, there are mistakes or outright incompetence in a messy and complex process. Most often, mistakes are made because people do not understand the rules and why they are important.

Here is one issue which comes up over and over again which many people seem to be confused about and I do believe it is manifestly unfair when it is done. The issue is the proper way to adopt the standing rules of conventions. The rules which are passed control the business of the convention. If the rules are not themselves passed fairly, nothing else can be fair. Understanding this issue is the beginning of a fair delegate process and of effective convention activism.

The Issue and Why It Occurs

In 2016, we are dealing with this issue within several Missouri Congressional Districts (as of the time of this writing, district conventions will occur tomorrow, 30 April). It has come up before at levels ranging from county to national. It is at the core of the controversy over the 2012 rules for the National Republican Convention and whether they apply at the start of the 2016 Republican National Convention (technically, they do not).

The bottom line is simply this: the rules from one convention do not carry over from one election to the next and the report of the rules committee must always be approved by a vote of 2/3 of the delegates. This procedure is not optional and a convention cannot be valid without following them.

I should note here that I do not accuse people of violating the rules in this case (necessarily) out of malice. In the overwhelming majority of cases, the error results in ignorance of the rules for several reasons:

1. Most people, if they are experienced in the rules of order at all, are used to dealing with them in the context of regular meetings of organized societies. This is just as true of Republican (or Democratic, etc) Committeepersons who typically attend regular committee meetings. The rules of conventions are different and they are different for important reasons, but most people, even Presiding Officers, have simply not studied the appropriate sections of Robert's Rules.
2. Before 2008, the Republican Party in Missouri was not accustomed to contested conventions. This is less true in other states, such as Michigan, where other state-wide primaries are conducted at the convention and therefore are almost always contested. Because of the lack of contested conventions, we have allowed ourselves to become sloppy about certain rules of order which were seldom used and seldom mattered. Some of the violations of rules we observed in 2008 as activists in the Ron Paul campaign were actually intended to shut us out (regardless of the rules) but many violations were the result of actual confusion and inexperience with the rules of contested conventions. In turn, new activists were often themselves inexperienced with the rules or with common practice.
3. It seems convenient to violate certain rules of convention. Attempts to pass rules by less than 2/3 and carrying over rules from past conventions are often done in the name of efficiency. Robert's Rules of order attempts to balance efficiency against the rights of strong minorities: conventions meet to accomplish an agenda of party business. There are certain rights of minorities which are sacrosant, however, and cannot be violated for the sake of efficient meetings. In truth, the efficiency gains are illusory, anyway, given that Robert's Rules of Order specifies a sufficient framework of rules to carry out business without needing to force through or carry over convention rules.

The Simple Explanation

Although people may have difficulty understanding why conventions work the way they do (we'll get to that), the basic, correct process is simple, as James Lochrie, President of the American Association of Parliamentarians, explains:

The rules committee's mandate is to propose special rules of order and administrative policy (policy is described in chapter 2 ) for use during the convention. Often the same rules are used from year to year, but they should be adopted afresh each time. This provides an opportunity for delegate or members to add new rules or amend existing ones...

A two-thirds vote is required to adopt convention rules. Subsequent to this vote , individual administrative rules require only a majority to adopt or amend; rules of order continue to require a two-thirds vote to adopt or amend. If a convention rule of order is rescinded, the associated rule contained in the parliamentary authority returns to effect. [Meeting Procedures: Parliamentary Law and Rules of Procedure For the 21st Century. James Lochrie. Scarecrow Press. 2003. pp 177. Emphasis mine.]

Lochrie here is quite plain and is merely restating what is laid out in Chapter XIX of Robert's Rules of Order, Newly Revised, 11th edition and particularly in the section of the Rules Committee Report on pp 618. It is also a very old principle of parliamentary law that deliberative body (a body which meets to decide the answers to questions for some group) determines its own rules for how it goes about that process.

For legislatures, the approval of their own rules is a constitutional requirement. At the start of every legislative session, the US House appoints a committee to recommend rules for the next session. It is customary in the house for someone to move that the previous set of rules be adopted until the committee completes its task, but it still requires a motion both to use the temporary rules and to approve the new ones recommended by the committee:

It is proper here to adopt the following motion: Resolved, That a committee be appointed to prepare and report a system of rules and regulations for the government of the House, and until such report is made and approved, that the Rules of the last House be adopted. This is done in obedience to the13th section of the first article of the constitution, which vests each House with power to determine upon its own rules of proceeding. [Joel Barlow Sutherland. A manual of legislative practice and order of business in deliberative bodies. Jacob Frick and Co. Philadelphia. 1821. pp 173]

Sutherland's book was in turn cited by Thomas Jefferson's manual of parliamentary law.

The Slightly More Complex Explanation

In order to really understand the reason that convention rules must be passed in the way that is required, it is useful to know two things: first, why conventions of delegates have to be handled differently from regular meetings of ordinary societies and, second, why they must require two-thirds to pass. I go into this process and its reasons step-by-step in < a href="https://www.scribd.com/doc/310968332/CaucusProcessAndRobertsRules-Handout">a course I teach on caucus and convention activism and the rules of order, but I will hit the highlights here.

Why Are Conventions Different?

The bottom line is simply this: in regular meetings, each meeting is part of a continuous session of roughly the same body of people. The county committees, for instance, are seated in periodic elections. In between elections, they can set standing rules for themselves which carry over (unless amended) from one meeting to the next. After each election, they are required to reorganize, and that includes a reset of the standing rules adopted by the previous body. As noted above, the same thing happens with the US House after an election (or, technically, any adjournment of any body sine die ("without day").

But with a convention, every convention has adjourned without day and every body of delegates is elected anew. In every election cycle, the decisions are made by different people under different circumstances, and they have a right to decide their own (potentially) peculiar methods for doing so, according to the circumstances they face. In election year where the presumptive nominee has already been decided by the time of the Missouri primary is not best governed by the same rules as an election year in which four strong factions (none of which are a majority) must come to some agreement!

Why a 2/3 Majority?

Parliamentary law in general and Robert's Rules of Order in particular are designed to move forward the business of the majority while protecting the rights of strong minorities (and individual members). While the majority has an interest and right to an efficient order of business, minorities have the right to express an opinion, nominate candidates, vote, and take part in the determination of the rules. The rules of order therefore are an attempt to compromise between these conflicting interests. A simple majority (50%+1) is required to move business forward, such as to pass a resolution, but actions which "strip rights, constrain debate, or change normal rules" require a 2/3 vote.

As noted in RONR11 pp 619, a rules committee report will almost always contain rules which "strip rights, constrain debate, or change normal rules," so when passed as a package, such a report always requires 2/3 to be adopted. There is actually a handy little procedure described on that same page for separating out individual rules for its own vote, at which point the rule in question may or may not require 2/3 to pass. By following that procedure, the body can efficiently pass all of the rules that are agreed on and then deal separately with the issues which require debate. This, again, achieves the objective of balancing a legitimate need for efficiency against the rights of minorities.

Why is it not really necessary, anyway?

People attempt to have rules carry over and make the passage of a body or rules by a simple majority because they are afraid of the convention ending up without any rules to follow at all. While this would indeed be concerning, it cannot really happen as such. At the start of a convention, the delegates are bound by the rules of order specified in the bylaws of the society (in the case of the district/state conventions, this is Robert's Rules of Order, Newly Revised). These rules are in effect until the rules committee report (a set of recommended rules) are adopted--- and if the report fails to be adopted.

As it turns out, Robert's Rules of Order includes--- and has included for some time--- a fairly complete framework for bootstrapping conventions, nominating, holding elections, and amending documents. While it can be more efficient to add to that (such as setting limits on debate for and against more appropriate to the situation, or to specify how slates of delegates will be nominated, or what committees shall be appointed to handle convention business), it is not a disaster if these customizations do not happen. It is quite possible to simply fall back on the rules of order and plough forward. Because no extra rules exist during the convention bootstrap process, as it elects its own convention officers and rules, Robert's Rules already specifies the procedures in a clear fashion. In the 11th and later editions, these procedures are all organized in their own chapter (XIX) for easy reference.

The Lochrie (2003) book referenced above also has its own chapter on the convention process, in a less detailed and easier to read format than Robert's Rules. The Lochrie book is also available in Kindle format to put on a tablet or phone, highlight and bookmark. My copy of Robert's Rules always looks like it has been attacked by a sticky-note factory so that I can find what I need quickly, but I am finding the convenience of the Kindle book quite appealing.

A Note About Mason's Manual (Added Nov 2023)

Mason's Manual of parliamentary procedures for legislatures specifies that the rules for a session pass by a simple majority and may always be suspended or modified the same way. Republicans who participate in the legislative process may be familiar with Mason's and mistakenly believe that the same process is appropriate in a caucus or convention. As Mason's itself specifies, the rules appropriate for private organizations and those appropriate for public organizations do and must differ substantially because of the nature of membership and representative government. Legislative rules very rarely rely on supermajorities and Mason's avoids them for reasons of law and court precedent. Rights of minorities and individuals to debate, make motions, nominate, etc., are protected using mechanisms other than RONR's supermajority requirement. The full complement of such mechanisms cannot readily be ported to a convention under Robert's Rules. The effect of following Mason's on rules adoption outside its proper environment is to strip the rights of strong minorities out of the convention process entirely.

Conclusion

Personally, I want to win for my cause and my candidate. This is why I research the rules and why I train others. But I want to win fairly, both because of my own sense of honor, my faith in the principles of self-government (and that the Orderer of this world, in the end, knows what He is doing), and for the practical reason that if I win unfairly, I damage my own integrity that of my candidate and of my cause. If I win unfairly today, it will not serve my cause tomorrow.

If we do not pay attention to the rules, then we will be exactly what some of the Trump-supporters claim us to be; I will not be a part of that.

Bathroom Wars: Tribalism Is Only Sometimes Bad

During the ongoing Bathroom Wars, I note the inherent tribalism of both extremes of the debate, of those who are bigoted against LGBT individuals and of the LGBT activists themselves. In some respects this is not a problem, per se, because people have some right to be tribal in their approach even when it is irrational. However, the modern Progressive position and that of Progressive LGBT activists for decades has been staked against that tribalism and everything it stands for. Therefore, the Progressive position in this and other issues is inherently hypocritical where a bona fide nativist or bigot is not: they explicitly state their tribalism,them against the world.

Four Characters of An Honest Approach

More honest still are the people who:

1. Admit their tribal tendencies in their own life and interactions;
2. Realize that other people who do not fit into those boxes have a right to exist and to their own choices regardless;
3. Admit the utility of those tribal tendencies and of a hierarchy of difference in guiding social interactions and societal structure;
4. Realize that there are times and places where we need to seek relationships outside those molds to check our own assumptions or surpass our own limitations, that, too, testing boundaries is part of developing our own sense of who we are;

[Aside: This list has a striking resemblance to a stepladder refinement of views in philosophy or a double-diamond thought process, which I believe is a useful tool and often an accurate description of how people think, but I am not implying that it is the only tool or description applying to this or any issue. Note that, consistent with a diamond thought process, someone may appear to flip-flop their position as they refine it further: someone who holds positions 1-3 may take the same external positions as someone who only hold #1 and someone holding 1-4 may take policy positions resembling that of someone holding only 1 and 2. @TODO: this maybe needs a diagram and a reference.]

The homophobes and bigots in the Bathroom Wars have at least gotten to #1 on this list and do not apologize for it. They often pull in aspects of #3 in a self-examined manner but may or may not have figured out #2 to any significant degree (often lumping everyone who is different for any reason in the "pervert" category). This depends on whether they are actively hostile to LGBT individuals or merely want to be left alone themselves. Clearly, whenever this behavior leads to violation of anyone else, it is wrong and must be opposed. But that kind of bigotry is not the only problem.

Many of those in the LGTB-advocacy and the Progressive wing generally (those who appear to be actively promoting the ordinances which started the issue) have not even found #1 or have but reject #2 with respect to people who are not transgender. Post-1965 Progressive thinkers tend to be actively and explicitly hostile to #3: the stated goal is to break down and destroy traditional structures wherever they are found, in marked contrast to pre-1965 Progressives. In college, I frequently encountered and opposed both of these categories:

• those who would do violence against or otherwise harass an LGBT individual who was doing no harm to them (which is how I found myself participating in a Bigayla sit and and march, being knocked to the ground by an attacker while standing in front of a transgender student I did not even agree with), and
• those extremists on the other side who labeled heterosexuals or cisgender individuals "perverts" and wanted to break down any vestige of distinctions (while simply replacing them with their own categories and distinctions)

People who generally oppose both extremes but believe that upending everyone and everything else is not the right approach accept 1 through 3. These are the people who realize that the bathroom issue is not about transgenders per se (but much more fundamental societal issues) and who advocate for access to single-occupancy or otherwise re-purposable facilities to accommodate any and all needs for additional choice in private spaces. Many of these folks (myself included) don't really care why someone expresses the need for that space. #4 is where we all need to get to and is specifically evidenced by, say, Carly Fiorina's team-management at HP where the goal was to assemble teams with different approaches to a problem in order to court divergent views [@CITATION NEEDED]. I explicitly used that same approach to filling out design/problem solving teams at the Pentagon/AFSAA back in the 90's and actively picked up 'discards' from other teams who had been rejected for divergent views I wanted access to and I did that again in my own consulting business later on.

Folks on both sides who are comfortable with their own identities (as much as humans are capable of being so), who may or may not advocate for their favored choice but at the same time have no desire to impose their views or choices on everyone else are also exhibiting (at least) characters 1-3. So, neither the tribalism of the LGBT community banding together for self-protection against bigotry and to advocate for their cause nor the tribalism of the Christian advocating for heterosexual relationships within marriage is bad as long as that remains within the bounds of the public peace.

We Are Required To Attempt All Four

I also believe that as Christians, we are explicitly commanded to exhibit all four of these characters. We must make space for people to make their own choices while attempting to maintain our own integrity ("discernment" vs "judgement") and our own social structures; being a disciple to others requires reaching out to them and developing divergent relationships without compromising our own principles or the exercise of our faith. These are not easy things to do and they are not meant to be. We will often fail at these things, but we are still commanded to attempt them.

It is also particularly necessary to attempt these approaches in the context of little-r republican self-government. This is where the current tribalism in American politics does hurt us as Ronald Dworkin so ably points out in Is Democracy Possible Here: without agreement on fundamental principles of self-government, there can be no rational policy debate no matter what positions and facts we bring to it

Rejecting Moral Relativism and Strict Utility, Thomas Aquinas

None of this means that we embrace moral relativism (which I explicitly reject). The idea that all persons are entitled to be accorded with some level of dignity for their beliefs does not presuppose an equal dignity of those beliefs. At some level, people are simply entitled to hold beliefs which are wrong, insincere, or even self-destructive without unwarranted interference. Whether their beliefs are right, wrong, or neither particularly right nor wrong is independent of the dignity accorded to the person as a fellow being and fellow creation.

Nor does the requirement for recognizing that dignity in others erase the special duties we may owe. As St. Thomas Aquinas noted in his Summa Theologica, the universal requirement for charity toward others does not mean that we do not choose to favor those to whom we owe a special relationship (self, family, friends, community, fellow citizens) all other things being equal. A man may sacrifice himself for a stranger and at some points may have a duty to do so, but the same duty is not owed, all other things being equal, for him to sacrifice his family or community for a stranger or strangers. A man may (and often ought) bend his customs or traditions as a sign of respect for the dignity of a stranger, out of Christian mercy and charity, but does not have duty to destroy his customs or traditions, to abandon his faith, simply in order to avoid offense. As a man, I do not have a duty to abandon my manliness nor a woman to abandon her womanliness because someone else finds it offensive, but that may mean I am not entitled to enter their private space.

Ending the Bathroom Wars Requires Some Balkanization

On the issue of bathrooms upon which we have become so fixated, different communities create slightly different social structures for balancing privacy, efficiency, and simple bodily needs. A single-occupancy room provides the most privacy but often the least efficiency. Bathrooms separated by gender provide some degree of privacy and some degree of efficiency but do not work for people who (for whatever reason) require a degree of privacy or utility not allowed in that structure, e.g.:

• dad with a female child
• someone with a medical condition requiring discretion
• a pre-op transgender
• a disabled man needing assistance from a wife
• someone who has suffered abuse who will not disrobe in front of others, etc.

Note that we do not necessarily care whether the need is "reasonable"; the mere desire for accommodation ought generally be enough. Bathrooms separated by gender with one or more designated "family restrooms" provide a good overall mix of function.

In some places, the requirements are different. The all-female dorms at college had customs and social structures for when a visiting male had to pee. If the visitor did not obey those customs, he could well expect to be summarily ejected. In the coed dorm I lived in at points, each hall had a single bathroom where, say, one person could use the shower and the other the stall at the same time. Customs for resolving that issue with mixed sexes also existed. When I visited the Legends bar and dance club (this particular one being an LGBT hangout), they had their own social conventions for the restrooms which one either accepts or leaves. That is all as it should be: a city such as Springfield, MO or Charlotte, NC ought not attempt to enforce the same structure on Legends that it does a Franciscan monastery, on a public hall and a private business.

Sometimes when you arrive at someplace where the rules are not what you expect or where you need extra consideration, you must appeal them to the proprietor or community. Sometimes the community or individuals may be gracious and sometimes not. Sometimes asking for consideration requires revealing a private need (such as a disabled man needing assistance from his wife) that you would prefer not to reveal or which risks humiliation. Although we should try as communities to set the best policies we may and attempt to deal graciously with the exceptions, it is an unfortunate fact of humanity that this often fails--- sometimes spectacularly--- but it is not a problem that blunt use of legal force can necessarily solve.

There will always be exceptions and there will always be ungracious people. The debate within constituencies on what policies to have will often be ugly (as all policy debate often is) and that is OK. Somehow we need to find the means to live together (or live apart, see 1-3 above) to resolve things as best we can, not necessarily such that everyone gets what they prefer.