Lawyers, Guns, and Moneys: Armed Schools Edition

This is an older post that I originally wrote on Facebook. Some of the numbers may be out of date, but sadly nothing has changed in the country in regards to school shooting or the immediate responses.

So you have all likely seen the meme going around about solving school shootings by placing armed Veterans in schools. The idea is that Vets have firearms training, love kids, and would love to do something to help them. And most of those are true

And let me say: I am all in favor of veterans getting jobs, I am all in favor of there being fewer school shootings. That being said it deserves a look at what this would actually mean.

There are 98,817 schools estimated to be in the U.S., but lets round that up to 100k just for easy math. Four veterans per school is 400,000 new employees, which at a wage of $8.00/hour means 3.2 million dollars /per hour/ that our schools will have to come up with in a time when they are receiving less money from the states and fewer grants from the federal government because of budget cuts. 8 hour day is 24 million per day, times a 270 day school year means this program would cost $6.8 billion in payroll alone.

Now divided among the fifty states that is only an additional $136 million per state (and yes, I know that is assuming an even distribution of schools across the states, but its illustrative even if some states would be way lower and some way higher). But to break it down Nebraska has roughly 1300 public schools. That means 5200 veterans, for a total of $332,000 dollars per day and $89,856,000 dollars per 270 day school year. Or a cost of $48.41 per person (not per taxpayer) per year in a state that features a school district that last year voted down a $25 million school improvement bond that would have, among other things, paid for there to be /REAL WALLS/ at one school (as opposed to the floating, movable walls which provide no protection at all during a shooting). And again, this is just payroll.

Now…an AR-15 costs at the low end $800, and a Beretta 92FS costs about $300 on the low end. So (in addition to the $6.8 billion) it would cost roughly $320 million to arm them with AR fifteens, or $120 million to arm them with Beretta 92FS. Or if you want to give them a rifle and a side-arm, $440 million.

So to give them a t-shirt (figure ten dollars for $4 million), a Beretta 92FS, and pay them $8/hour it would cost just a bit under $7 billion, and a bit over for an AR-15. Before health care, time off, a pair of pants, any vests ($100 bucks a pop minimum for another $40 million), any /ammo/, and paying them minimum wage. And remember that every dollar you want to raise that wage by, to approach a living wage for veterans, raises the total cost of this project by $400,000 per hour.

To bring it back to Nebraska that means the total cost for each employee would be 5200 veterans + 300 dollar Beretta 92FS + $10 for a t-shirt + $89,856,000 payroll per year = a yearly total of $91,468,000. Plus ammunition, health care and benefits, pants, armor, training, etc. This would total about 9 percent of the budget for the Nebraska Department of Education per year, representing a rather significant increase in expenditures in a time when serious cuts are being made.

On top of that the DoD estimates that roughly 11% of Global War on Terror (GWoT) veterans returning from Afghanistan and Iraq have PTSD, and many more may have symptoms without having a full blown case. As recent political events have shown the VA is terrible about getting veterans in for care, and is pretty terrible about treating them–doubly so for mental health issues. Additionally PTSD may not be readily apparent when someone is being hired. Of our 400,000 vets statistically 40,000 of them probably have PTSD. Even if we catch all but 1% (instead of 10), that is 4,000 armed soldiers with a mental illness that we have placed in schools with guns and ammunition (and t-shirts). Again, I’m not making light of veterans issues and I fully support increased awareness and treatment of issues stemming to our two decade-plus wars, but it is a statistic worth remembering when we’re considering ‘arm lots of people and put them in schools’ as a solution, no matter who we are arming.

There are real problems that face our schools, and our veterans. But lets at least approach solutions, even ones offered around on Facebook, with some understanding of the real cost it would take and the actual feasibility of any ideas.

An Honorable Solution

An “Honorable” Solution


Let’s Solve a 20 Year (plus) Long Annoying Problem


It is spring, and I have recently received a Grant of Arms, and thus like all men my fancies must turn to what the hell you call someone who has a Grant of Arms. This is one of those amusing SCA articles that really doesn’t make any sense to a reader of this website who is here for politics or law, so if that is you feel free to go to another article (may I suggest ‘Never Relieved of That Oath’, my most controversial article?); I promise I won’t be mad.

For those of you sticking around, however, let us dig down in to this problem that has vexed the SCA for at least the last twenty years: What do we do with those fine and worthy individuals who have a Grant of Arms but no other titles, styles, or modes of address? Should they have something to distinguish them? (Yes). What’s the problem with The Honorable Lord/Lady or Lordship/Ladyship? (They aren’t titles). What should we use? (What we have been, but modified).

1. An Important Note

This article talks about awards, and does so in a very frank nature. It assumes throughout the article that people like getting them, and goes in depth in that in Section II. It is not done to imply that any person in the Society is working hard and doing cool things only for awards, nor should it be read to imply that the only reason someone should be in the SCA is to get awards. But given the Grant of Arms is an award and we are talking about titles and styles of address, the article assumes everyone is broadly on board with these things mattering. If that’s too un-chivalrous or inside baseball-y for you that’s fine, but in order to discuss titles we have to broadly assume they are things worth discussing.

2. Background

For those of you unaware (either your Kingdom doesn’t use them, or you’re new, or quite blissfully uninvolved in awards politics), the SCA broadly speaking has four levels of awards that it can give out. Those are:

  • Non-Armigerous (awards which are cool and often highly respected, but carry no rank or precedent).
  • Award of Arms level (Both the Award of Arms [AoA] itself, and those awards carrying precedence similar but often slightly above an AoA itself)
  • Grant of Arms level (Both the Grant of Arms [GoA] itself, and those awards carrying precedence similar but often slightly above the GoA itself)
  • Patent of Arms level (What we refer to, anachronistically, as the Peerage. There is no such thing as a basic or naked Patent, no matter what the West thinks—Patents of Arms come exclusively with Bestowed Peerages, and in many Kingdoms Royal Peerages).

The Grant of Arms dates to the same event as the Award of Arms (West Kingdom 12th Night, A.S. 3 – 1969)[i], but its use was more limited. It was “first created to recognize Kingdom Officers for the work that they had done for the Kingdom,[ii]” and expanded in to a fully realized award level after the others. As such it has always struggled as kind of the ‘middle child’ of the award structure, with uncertain and uneven implementation of privileges and titles

Outside of the Grant of Arms, each rank in the SCA award structure conveys new title and precedence. By long convention an un-awarded member is referred to as m’lord and m’lady, an Award of Arms turns them in to Lord or Lady, and a Patent of Arms (with a Peerage) turns them in to a Knight/Master/Mistress (depending on the order, and preference; the title Dame also pops up).

For a long time following its creation, there was not any sense of a separate title or style of address for holders of a Grant of Arms. They were, like when they had held an AoA, a Lord or Lady and there was no way (besides the use of post-nominals, which itself is far more Victorian than it is Elizabethan) to distinguish them.

A Laurel ruling in the 1980s gave Grants of Arms holders the title of Honorable Lord/Honorable Lady or Lordship/Ladyship, but this is often disputed[iii] (see the endnotes for discussion). Even ignoring the disputes over the continuing provenance of this proclamation, there are legitimate grievances raised with the form. These arguments come down to the fact that:

  • Neither of these titles exist as titles in period; and
  • Neither of these titles are in fact titles, they are honorifics or styles or a weird fusion of both.

The first point stands fairly well on its own. Despite all research to the contrary, I have not in fact been able to find Honorable Lord or Lady used as a title itself. It appears to have been a wholly SCA creation. This is a sticking point for many arrayed against it, as it is somewhat distinct in that it is wholly made up while the other titles of the SCA are actual period titles used wholly incorrectly.

The second form deserves a bit of definition for the newcomer to titular pedantry. A title is what you call yourselves, and honorifics and styles are how other people address or refer to yourself. Thus Elizabeth II[iv] refers to herself as Queen, and other people refer to her as Your Majesty or Ma’am; she would never refer to herself as Her Majesty. Similarly a nobleman would never have referred to himself as “Lordship” or “Honorable Lord”.

Honorable Lord, as the more common form[v], receives special criticism because it combines a style (Honorable) with a title (Lord) and thus ends up with something that is not quite either one. It also specifically bothers some to have GoA holders proclaiming themselves Honorable, as it either seems dishonorable to do so (my lady doth protest too much) or to imply that other people are less than honorable. The argument frequently offered is that it should be an award without a title—that a GoA holder is a Lord or Lady as they were when they had their AoA, just a higher ranked Lord or Lady.

3. Does it Matter?

Reading through all of that might make your eyes cross, and even though I love this kind of thing it does occasionally make me want to go have a nap as well. So the question might have occurred to you of ‘Gosh, does it really matter?’ And that question can apply to both sides—does it really matter if GoAs have a title, or does it really matter if they use one that isn’t period? Regardless of which side you fall down on, it’s not uncommon to want to make this whole thing go away because it is annoying.

But of course it matters, for a couple of reasons. It matters because there is a large section of the SCA that holds these awards, and how they are referred to may change depending on what Kingdom they move to—the only award with such a disparity of address. It also matters to them because it can be very dispiriting to use a title and get told off (or yelled at), whether in person or online, because the title you were told you can use is ‘wrong’ and ‘not period’, even if the person telling you that is using a title which in period would mean they were outranked by the youngest scion of the nobility[vi].

It also matters because the hierarchical nature of the SCA matters, for a whole bunch of reasons. As discussed in the introductory note this article assumes this point, but it is worth laying out. One of the major differences between the SCA and other historical groups is our hierarchical nature. While not a universal positive, as it does create a pecking order and the instinct in some people toward arrogance or ‘lording’ it over others (as period as that may be), there can be little doubt that it has contributed both to the unique culture of the SCA and to the frisson that exists in the SCA that doesn’t in many of the more purely non-hierarchical or egalitarian reenactment groups.

Advancement in the SCA means something because it is not based on just making a nicer kit, but on earning it—often through competition; and advancement means something because it comes with an increased prestige and rights, not just the ability to call yourself something different or standing in a different place in line so you can be a Saxon losing the Battle of Hastings again.

It is kind of icky in the SCA to discuss awards being desirous, and it can also be uncomfortably inside baseball-y. I do understand all of this—we don’t want to encourage people to play only for the awards, and nothing in this article should be read as doing so. And at the end of the day awards are just nice pieces of metal or cloth,  baubles as it were—but it was Napoleon who pointed out, upon founding the Legion of Honor, that it is with such baubles men are led. No one who has seen a proto-peer cry while being told they will be made a Knight, Laurel, or Pelican, can say there is nothing important in our awards.

The hierarchical nature of the SCA provides both accomplishment, and pride; the internal sense of accomplishment that brings emotion to someone when they look at a scroll for an award even ten or fifteen years later. That is part of what made the expansion of the Grant of Arms level beneficial to the Society—it provided another sign post along the path, in what would otherwise be a very long stretch between the Award of Arms and the possibility of Peerage. It also provides the SCA with a way of recognizing a stage of leadership and management greater than at an AoA level while less than at the Peerage level—Grants of Arms should be a strong backbone of service and support, providing lessons learned greater than at the lower level while still learning the lessons necessary to be a good Peer.

This is why, for example, nearly all martial arts schools have moved away from a more period ranking system to the more modern and familiar colored belt system. In more period martial arts the ranks were simply ‘not a black belt’ and then ‘black belt’, with the black belt (dan) ranks carrying some gradation (such as permission to teach independently). In the modern system there are colored belts (kyu) leading up to the black belt ranks, so that a student has goals and milestones and a sense of continuing accomplishment before reaching the milestone of shodan (first rank black belt)[vii]. Kyu ranked students gain knowledge and increase in rank before testing for black belt—as well as the pride of having earned a higher ranked belt, while the sensei and the senior students in the dan ranks know roughly where a student is in their development and are able to assess more easily what they need to learn to advance.

That is why it matters. If we undermine the grant by making it feel like less of an award, superfluous or vestigial, we undermine that intermediate leadership level—and the Kingdoms suffer as a result. If we treat the Grant of Arms as less of an achievement and more of this bastard thing no one is sure what to do with—as is fairly frequently the result of the long, haranguing arguments about why they should just be Lord or Lady—then the people who have worked hard and earned them suffer because their achievements feel more meaningless.

Clearly, these things matter—and clearly a solution is needed. Just as the kyu system allowed for progress, pride, and development in the martial arts, the Grant of Arms does for the SCA. It should have some signifier of that progress (although not a colored belt, we have lots of those taken in the SCA) that furthers the goals of the Society and allows for pride of the person.

So what is it?

4. An Honorable Solution

The answer, in my opinion, lies in what we’ve already been doing—but with a greater understanding and purposefulness behind it.

The style of ‘Honourable’ existed in period—as did the style of Right Honourable. In A Genealogical and Historical Account of the Ancient and Honourable House of Stanley: From the Conquest to This Present Year 1741 (published, predictably, in 1741), John Seacome quotes (according to him verbatim) the Thanksgiving given in the funeral service of Edward Stanley, 3rd Earl of Derby, who died in 1572:

“All Honour, Laud, and Priase, to Almighty God, who thro’ his Divine Goodness hath taken out of this transitory World to his eternal Joy and Bliss, the Right Honourable Edward, Earl of Derby, Lord Stanley and Strange, and Lord of Man and the Illes, Chamberlain of Chester, one of the Lords of Her Majesty’s most Honourable Privy Council, and Knight Companion of the most Noble Order of the Garter.”[viii]

While that book itself is out of period, it is providing the funeral service from someone who died in period—unless there is some evidence that this is a post-period creation or a myth (and it would be a strange thing to make up), we can likely take it as something of a given. This is also backed up by other sources:

“As a courtesy designation, Baronets, upon the erection of the degree, and until the end of the eighteenth century, were styled ‘The Honourable.’ This was only natural, having regard to the hereditary character of what was called in King James’s[ix] time ‘the honourable degree and dignitie of Baronet.’ A duke being styled ‘Most Noble,’ a Marquess ‘Most Honourable,’ Earls, Viscounts, and Barons ‘Right Honourable,’ it followed that the style of ‘Honourable’ should be prefixed by the courtesy of society at large to the newly created hereditary degree.

Instances of this courtesy style are numerous throughout England, Scotland, and Ireland, some being on tombs, others in deeds, letters, and other writings. Some Baronets were so addressed by Oliver Cromwell[x].”[xi]

We can therefore reliably say that at least in the early SCA gray period[xii] there were gentles (for a Baronet was not a nobleman, but the highest form of Gentry) that were entitled to the style of Honourable, and that prior to that there were nobles entitled to the style of Right Honourable—because that is the form the Baronet copied.

The form that the SCA has been using to address holders of Grants of Arms is therefore achingly close to being a thoroughly proper period form—it just needs to be modified slightly. John the Smith, upon being given a GoA, would currently be called The Honorable Lord John the Smith—which, as noted, is neither period nor an actual title. But if he was called in to court as ‘The Honorable, Lord John Smith’ he would be addressed in a period style and using a period title, while also allowing him to have some method of being addressed that differentiates him from having an AoA.

Therefore the most elegant solution (to the author) is to give to GoA holders the style of ‘The Honorable’ (without the U, save in those countries who spell it with a U[xiii]) while maintaining the title of ‘Lord/Lady’. We are already used to addressing people by styles—calling in to court, for example, Her Grace, Duchess Joan of Exampleshire. The SCA also already has examples of someone going up in rank but retaining a form of address, albeit in reverse of the proposed AoA to GoA transition—a Baron who becomes a Count changes their title, but not the style of ‘Excellency’.

The only functional difference would be that an individual would not address themselves as The Honorable, only as Lord or Lady. It would rely somewhat on a third party to address them as such, but that does not seem a particularly onerous burden; it also relieves the issue some have expressed of a person calling themselves Honorable and seeming presumptuous. They would address themselves only with the armigerous title, but would be called in to court using the Honorable style—thus neatly and Solomonically dividing the issue and giving something to everyone.

5. Other Solutions, and Conclusion

The divorcing of Honorable from Lord/Lady and its use as a style is, to the author of this article, the most simple and elegant solution as it provides a period practice that is almost completely in line with current SCA practice. But it is by no means the only proposed solution, and it is worth considering some of the other proposed solutions before closing.

One of the proposed solutions is to give Grants a new and different title and/or style, which is admirable. Proposals that have been floated include the titles Baronet and Marquess—and there may be other titles which have been considered that have not reached the attention of the author here. The problem with these is that each of them ‘solves’ the problem that is alleged to exist with the use of The Honorable Lord or The Honorable Lady by expanding the problem that definitively exists with the SCA award structure—namely the use of period titles in a flagrantly and deliberately non-period manner.

Briefly, the SCA’s award structure is farkakte[xiv] when compared to period. In the SCA a Pelican outranks a lord, and a Knight outranks a Baron—who isn’t even a peer. In the real system upon which the SCA is based a Lord, someone who was a member of the aristocracy by virtue of their own title or marriage to/being the offspring of someone with a title, outranked everyone who wasn’t a peer; and a Baron is a peer who would outrank any Knight who had ever earned their spurs but wasn’t also an aristocrat. And a Laurel or Pelican, in period, would have been an artisan or servant more than likely, or a member of the gentry or aristocracy doing a job for which they might eventually get a knighthood (which wouldn’t change their precedence) or a peerage (which would).

We have taken the middle rung of the gentry, the Knight (who ranked above other Gentleman, but below a Baronet) and put it near the top of our system, while also inventing equally high ranking titles for jobs (like cooking, or tailoring) that wouldn’t have merited nobility at all. We’ve completely ignored the rank of Marquis and in many places the rank of Viscount, and decided that the most broad and basic level of the peerage[xv] isn’t actually a peer.

The sane solution to this is not adding more fuel to the fire. While learned gentles whom the author respects greatly have suggested these titles as the solution, it cannot possibly be that the answer to a broken title in an already broken system is to break the overall system further. It is somewhat baffling that someone arguing that The Honorable Lord used as a title neologistically is more offensive than plucking more period titles out of history and using them entirely incorrectly.

A Marquess is, in the English/U.K. peerage system, someone who ranks above a Count and below a Duke; the title is imported from other languages[xvi], and as a result has not ever been as common in England as Earls or even Dukes. To put them above a Lord and Baron but below a Knight or Viscount is a ridiculousness as great as anything else considered in the SCA. The use of Baronet would be slightly less maddening, as that title is at least not a peerage title but the highest title in the gentry, but it would still represent a perversion of period practice by placing them beneath Knights instead of above them—and brings its own problem, as the only correct method of addressing a Baronet in period or modernly is ‘Sir’. Additionally Baronets in their current form really date from out of period, coming after Elizabeth II when the Crown needed money and utilized the title of Baronet and style of Sir to reward people who were willing to put up hard cash for the King.

The solution to a problematic system cannot be to create more problems; the remedy for an already broken awards structure is not to find more cracks and shove shims of misused period titles in to them. If the objections to The Honorable Lord/Lady are based on period-ness, than we cannot solve it with further out of period titles and never in period structures. The only reasonable solution going forward is to embrace the pattern that has already worked and been widely prevalent, and to modify it slightly to fit both period practice and satisfy titular pedantry. The style of Honorable with the title of Lord allows for most people to do what they were already doing, while using an undoubtedly historical style in a way that is almost what it would have actually been used for.

It is, in other words, the most honorable solution to the problem of the Honorable Lords and Ladies in the SCA.

End Notes


[ii] Id.

[iii] See, e.g., Grant of Arms, The East Kingdom Wiki, (“Very many of the pronouncements and precedents of this era have been superseded, discredited, or just fallen into disuse. This one especially, was never codified in SCA law or policy beyond this statement, so it may be considered “custom” at best and is not official SCA policy. The strictly official SCA title for the holder of a Grant of Arms is simply “Lord” or “Lady”, the same as for holders of Awards of Arms.”) Getting in to discursiveness, of course the SCA Letters of Acceptance and Return announcing changes are themselves a statement of SCA Policy. The Regalia associated with the Peerages, for example, is “only” protected by Laurel—the word ‘chain’, for example, appears once in Corpora and refers to the chain of command not the knight’s chain. How valid the argument is that Laurel King of Arms can protect regalia but not titles is left to the reader.

[iv] By the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Fidei Defensor. A.k.a. Lizzie Duece, to her Roller Derby friends, and “WHY WON’T YOU LET ME BE KING, MUMMY” to a certain son of hers.

[v] In the author’s experience.

[vi] Master, Mistress, and Sir were, of course, not noble titles in period. A knight would outrank a member of the gentry, but the lowest ranked noble has precedence over the highest ranked (otherwise non-noble or royal) Knight—both in period and today.

[vii] Discussions on whether this has elevated shodan from what it was supposed to be—i.e. the overall knowledge level needed to get in to the advance work—to more of an end-goal are appropriate for other venues, and will not be explored here.

[viii] John Seacome, A Genealogical and Historical Account of the Ancient and Honourable House of Stanley: From the Conquest to This Present Year 1741, page 55. Available at

[ix] King of the united English and Scottish Crowns in 1603 until his death in 1625.

[x] Lord Protector of England, Scotland, and Ireland from 1653-1658.

[xi] Francis W. Pixley, A History of the Baronetage 211 (1900). Available at

[xii] 1600-1650 is defined as the “gray period” for heraldic purposes, on the theory that few things would have been invented out of whole cloth and if it existed in 1601 it probably existed in 1599.

[xiii] I’m looking at you, Canada and Drachenwald.

[xiv] “Lousy, messed up, ridiculous”.

[xv] The reason the conflict that led to the Magna Carta is called the Baron’s War is because all peers were barons in the original sense of the word—aristocratic mandate holding lands from the King in return for military service. Many of the warring Barons were, in fact, possessed of higher titles.

[xvi] Being a cognate of Margrave or March-graff

Ashir and Ashland Scroll Texts

This post is a collection of all the scroll texts written by Saito Takauji (me) for the reign of Ashir and Ashland. It includes all the AoAs in English and Mongol text styles, the Cross for Sato and Ise, the Stile Hirth for William Douglas, all three QED texts (including mine), Ashland’s county, and Ashir’s duchy. Sources are noted with their individuals text where appropriate in italics.


Eo Fyrd (Mongol)

Foemen fall quiet as the plains churn with dust, for even the foolish know the peril they face. The bow and the sword are but their last fear, for the thunder of hooves is their death given form. 

At the head of the horde rides the Qan, whose fury brings the mountains low. At his side rides the Qatan, whose glory makes the magnificent sun dim. Behind them come the Falcon Ordu; with battlebefore them, their hearts sing aloud. ________ has ridden the breadth of the kingdom, stirruped in honor and barded in glory. With spear in hand they are made a rider of the Ordu, Eo Fyrd now for all to see.

Proclaimed under the great blue sky on the ___ day of _____ in the month of the __________ (MONGOLMONTH NAME) when the Ordu galloped across the land.

Ashir Ashland

Qan Qatan


Torse (Mongol)

(Based on ‘Praise of Mahakala’ by Choji Odser, circa 1305)

Falcons circle in the great blue sky to hear the words of the Qan Ashir, and the first spring flowers bloom to the call of the Qatan Ashland. From the plains they call ________; of the Falcon Ordu. Let their worth be praised as the sages of old.

With scroll in hand you have spread the law to teachers and ministers, sons and daughters. With your service and your voice, have the mountains been shook and stood to listen. Now the Qatan pins the symbols of rank to your robes, the bird and the three toed dragon. Now the Qan places jade in your hand, and calls you to the rank of the Torse.

Sealed under the eternal sky on the ___ day of _____ in the month of the __________ (MONGOL MONTH NAME), when great deeds were proclaimed.

Ashir Ashland

Qan Qatan

Boga Fyrd (Mongol)

The thunder of hooves are the drums of the horde, the Falcon Ordu born to war. But the strum of the bowstrings is the symphony of the plains, the great Calon horde bring foemen to heel. Without the bow the hordes cannot range, no honor to be found or new lands to find. Without the archer, the bow cannot sing. ____________ has made the arrows sing. They have spread the wings of the Falcon Ordu to new plains and lands, and their prowess has brought glory to all. For this the Qan, Ashir of the Oaks, calls them to bear. For this the Qatan, Ashland the Golden, favors their strength. For this they are granted a horn-bow and thumb ring proclaiming they now stand as Boga-Fyrd.

Done in the sight of the great blue sky on the ___th day of _________, in the Month of the <MONGOL MONTH> when the fletched death flew.

Ashir Ashland

Qan Qatan


Iren Fyrd

Swift are the warriors of the Falcon Ordu, born in to battle as the dust churns behind. Great are the deeds of the Horde of the Heartland, against whom the stars in the heavens must bow. Valiant are those who ride with the Qan, Ashir the Righteous who summons their swords.

One stands amongst the riders and warriors, mud and the foemen scattered before. The Qan and Qatan, riding together, summon ____________ to come to them now. You who have stood in the lands of the conquered, bedecked in glory for the great Falcon Horde; you who have ranged with spear for your kinsman, now let you be raised in the sight of the sky. Stand with the ranks of your ancestors honored, a Fyrdman to fight for the lands that you love.

Done in the sight of the spear born assembled, on the ___ day of _________, in the month of the <MONGOL MONTH>

Ashir Ashland

Qan Qatan


AoA (Mongol)

Worthy men and women are to the life of the Ordu as water, steel, and the breath of the great blue sky. Without worthy people the Qan, Ashir the Swift Falcon, can have no strength. Without worthy people the Qatan, Ashland the Golden Flower, can have no justice.

The worthy from all the lands of the Falcon Ordu are named Taishi, a noble of the court. Their value and their deeds are proclaimed to all the windswept lands, and inscribed in the eye of the heavens itself. Such a one is _______________, whose deeds have called the eye of the Qan and Qatan. Let their name be recorded and read through the lands. Let them take their place among the nobility of the Ordu.

Let their names be sealed among the ranks of the noble this ___ day of ___________, in the month of the <MONGOL MONTH>

Ashir Ashland

Qan Qatan


Stile Fyrd

The wind sings of the glory of the Falcon Ordu, and the wide plains of the land echo the tales of their valor. The unconquered warriors of the Qan stand vigilant at the borders of his lands, and the ever vigilant guard of the Qatan stand ready for the long night of war.

Call the warrior _____________, whose sword flashes and steel gleams in the sight of the great blue sky. They have shed the scarlet blood of the foemen on the field of war, and stood victorious over the fallen. Let their names be etched in steel and placed among the ranks of the honored; let them bear the name of their swords, and stand as Stile Fyrd.

As steel stands eternal so shall these words of the Qan and Qatan, etched in history this ____ day of ____________, in the month of the <MONGOL MONTH>

Ashir Ashland

Qan Qatan


Leather Mallet

The wisdom of our fathers tells that the saddle is worth nothing without its straps. The wisdom of our mothers tells that the deel cannot be made without the thread. So too do the Qan, Ashir the Wise, and the Qatan, Ashland the Just, know that those who make such things bind the whole Ordu together. 

And so they call the seals of nobility to be set upon the name of ______________, who has created works of worth and renown. Know them now and see the righteousness of their efforts. As their science has built the foundations of the Ordu, let them be honored among those known as the Leather Mallets.

So the Qan and Qatan have caused their names to be written in glory this ___ day of __________, in the month of the &lt;MONGOL MONTH&gt;.

Ashir Ashland

Qan Qatan


Calon Swan

Gold adorns the hair of the beauteous Qatan, Ashland. Gold hangs from the saddle and the sword of the righteous Qan, Ashir. The artisans of the Ordu deck the land in beautiful things and glorify the people with their skillfulness.  So the wisdom of the Qan and Qatan call their artisans to cheer for one of their own.

______________ has spread art to the four corners of the world, and brought honor to the Falcon Throne.  As they have spread gold and silver through their lands, let the emblem of the Golden Calon Swan now proclaim their rank.

Limned in gold and set in the silken banners of the Ordu this ___________ day of ____________, in the month of  <Mongol Month>

Ashir Ashland

Qan Qatan


AoA (English)

TO ALL by whom these present letters come, greetings. Ashir, by right of arms King of all the shires, cantons, and Baronies of Calontir, and his Queen of Love and Beauty Ashland, bid you heed now Their words. Know ye of the especial worth and divers efforts that have been shown by _____________, loyal subject of Our realms.

For the good and bountiful deeds they have done to the enrichment of Our lands therefore do we, by our especial grace and in accordance with the law, hereby decree that they be granted now and in perpetuity Arms and raised to the rank and title of (Lord/Lady). We further decree they shall be granted all rights, privileges, and appurtenances thereunto.

Done by Our Hands and sealed by Our Royal sign manual this ___ day of ____________, Anno Societatis (50 or 51).

Ashir                Ashland

King                Queen


Swan (English)

Beauty is the bounty of a Kingdom, and much beloved of Calontir. Its splendid King, Ashir II of the painted plains, and beauteous Queen Ashland, golden haired, send greetings to all by whom these presents come. Knowing of the beauty that has been wrought in Our realm through the good efforts of _______________, the Crown by these letters creates them a member of the Order of the Golden Calon Swan.

Let the works of this good gentle be proclaimed through the lands. Let all loyal subjects of Calontir rejoice for the beauty they have brought to the realm, for the gold and silver and brilliance of their Arts and efforts.

Done in Our names and sealed by Our Royal sign manual this ___ day of ____________, Anno Societatis (51).

Ashir                Ashland

King                Queen


Leather Mallet (English)

(Nota bene: I like scrolls that list off lots of things, but I apologize to Alessandra for this one.)

To all woodworkers, leatherworkers, blacksmiths, goldsmiths, weavers, brewers, cutlers, chandlers, armourers, masons, cordwainers, and practitioners of the diverse sciences, Greetings. Know ye by these letters Ashir, King by right of all Calontir, and Ashland, lawful Queen, espouse special recognition and honors upon your crafts, and wish to continue to see them established as in the days of Their ancestors.

And so They, by Royal Proclamation, elevate the noble craftsman ___________ from the ranks of the apprentices to the ranks of the journeymen, and induct them into the noble Order of the Leather Mallet. As a sign, They command the following medallion to be laid upon their work table, to wit: Purpure, on a pale dovetailed argent three leather mallets proper.

Done the ___ day of ___________, AS ___, by the Royal Sign Manual.

Ashir                Ashland

King                Queen


Iren Fyrd (English)

(Because it is Calontir, I had to do at least one that was done in an Anglo-Saxon or Norse style. Hwaet is the opening of Beowulf, commanding the listener to pay attention. The rest is done with the characteristic alliteration and use of kennings that marks the sagas).

Hwaet! Heard in high halls the honor of the King, Ashir of the Swift Steed. Heard by the hearth the heart of the Queen, Ashland, whose hair shines like Sif’s. Let their words ring like the clash of steel and iron, and echo like the deeds of the warriors of Calontir!

Standing with spear, solid and steady, shines one such warrior. _____________ has forced foemen to flee the field and garbed themselves in glory. Bedecked in righteousness, they stand worthy before the Hall of Kings. Ashir, moved by their power, breaks a ring for their arm. Ashland, moved by their strength, calls them to kneel. Together they name them Iren Fyrd, Warrior of the Spear, and bid them rise.

Done in the hall of ___(GROUP)___ this __ day of ______________, in the ___ year, to the cheers of the Heartland assembled.

Ashir                Ashland

King                Queen


Boga Fyrd (English)


The song of the archer is the strumming of bow-strings, their tempo the clash of the battle before. Ashir, King by Arms and Glory, has heard this song in the plains of his birth. Ashland, Wise Queen, has heard this song in the field of glory.

______________ is one who has known the song of the bowman, and danced in the rain of iron. In honor they have taken the fruit of the yew and defended their homeland, and shown their prowess with the straight clothyard shaft. Let a new bow be placed in their hand, says the King. Let new arrows be placed in their belt, says the Queen. Let them be made a Boga Fyrd, the Crown proclaims to the lands they have guarded.

In honor written, in justice done this __ day of _________________, A.S. ____, and sealed by Our Royal Sign manual.

Ashir                Ashland

King                Queen


Stile Fyrd (English)

(This scroll based on the decrees of the English Company of the Masters of Defense, specifically announcing the playing of a prize and announcing that someone had won their prize and been promoted).

BE IT KNOWN by all to whom these presents come Greetings are given by Ashir, by right and law King, and Ashland, by knowledge and wisdom Queen. We, in accord with the laws and customs of the Realm do issue this letter and by it order, ajudge, and decree the following:

We do hereby give leave and license Our subject ______________ to the rank of Free Scholar and Stile Fyrd of Calontir. They have shown their talent at the subtle mysterie of the longsword, sword and buckler, and rapier and dagger. We call them to be uphold and be true to their Kingdom and Crown, to not pass on their skills to base drunkards or suspect ruffians, and to stand with mercy when they may and justice forever more.

Proclaimed by right and Royal will this ___ day of _________________, being the ___ year of the Society, and set by Our hands and seals of honor.

Ashir                Ashland

King                Queen


Eo Fyrd (English)

Harken to the Halls of the Heartland, the house of heroes of ancient renown. Hear the thunder of hooves in the heart of the battle, horseflesh and iron forcing the lines. Ashir, born in the saddle, calls the Eo to break battle tide. Ashland, whose beauty is peerless, calls the Fyrdman to stand by her side.

_____________ rides cross the Crownlands, bringing to battle the strength of their steed. The foemen they’ve scattered and sundered surrender and seek not the raining of steel. Let they and their partner be clad in bright colors, Eo Fyrd glory given them now. Their spears and lances they’ve shown know no equal, the Crown to proclaim their glory to all.

Done by the Highest, in view of the People, and proclaimed under law to all that can hear. On this ___ day of _____________, in the ____ year, did the Crown of the Falcon speak and make so.

Ashir                Ashland

King                Queen


TORSE (English)

KNOW YE who come by these letters that the true and lawful King, Ashir, and his brilliant Queen Ashland, send greetings and welcome.

Without service there is no Kingdom, and Ashir no sturdy throne to rule the land from. Without service there is no feast hall or pageant, and Ashland has nowhere to lead in wisdom. Service is the brick upon which the great keeps of Calontir are built, for all who seek peace to live in with joy.

_____________ is a true servant of the Kingdom. Espousing special faith in said true servant, the King and Queen create them now a member of the Order of the Torse. They grant them the right to wear the badge of the order and set a torse upon their helm, as is most proper for one who so serves.

Done in the halls they have supported and the realm they have born, this ___ day of ___________, Anno Societatis ___, by Our hand and Royal Sign.

Ashir                Ashland

King                Queen


Falcon’s Claw Scroll:

(This is the first text ever for a Falcon’s Claw):

The horse cannot run if it does not learn as a foal; the falcon cannot strike unless taught as an eyas. So the warriors of the Great Falcon Ordu are not born fully formed of the Great Blue Sky. The fiercesome Khan, Ashir the Twice Crowned, knows they must be trained up in war. The wise Qatan, Ashland the Noble Born, knows they must be raised in honor.

One such training in arms and rising in fame is __________, beloved of the Ordu. For the feats they have shown, Ashir proclaims them a warrior. For the skills they have gained, Ashland proclaims their honor. Qan and Qatan together proclaim them a Companion of the Falcon’s Claw, the young and fierce defenders of the Heartlands.

Done in the sight of the honored elders, in the true ways of the ancestors, on the __th day of the (INSERT NEAT MONGOL MONTH).

Ashir                                                                  Ashland

Qan                                                                    Qatan


Purple Feather Scroll:

(Similarly the first Purple Feather scroll):

The Lily does not spring forth from the soil in full bloom; the Hammer is forged one step at a time, each building upon the last. So the craftsmen and artisans of the Great Falcon Ordu must learn their trade skill by skill, and year by year from their youth.

Thus the wisdom of the Qan, Ashir, says that artisans among the young shall be recognized for their worth. Thus the justice of the Qatan, Ashland, demands that youthful crafters be honored for their skill. Thus the Qan and Qatan together created the Order of the Purple Feather of Calontir, to set among the banners of the Ordu.

(YOUTH NAME) has toiled in the forge smoke or by the fire, worked in silk or fed the Ordu, or shown great promise in one of the myriad arts and sciences valued by the people of the Falcon. Let the tools of their skills be placed in front of them, and their place secured among those who build, craft, and create for the good of all.

The will of the Qan and Qatan is eternal, and committed to memory here on the __th day of the (MONGOL MONTH) in the (MONGOL YEAR).

Ashir                     Ashland

Qan                       Qatan


Purple Jess Scroll:

(Similarly the first Purple Jess scroll)

The Master of the Qan’s horses knows well the toil of the stables; the Mistress of the Qatan’s robes knows well the prick of needle by candle light. None who serve the Great Falcon Ordu can do so without learning at the hands of their elders, passing their knowledge on in a chain of wisdom stretching to the ages.

Ashir, the Qan who toils tirelessly for the Ordu, values those who have taken their first steps on the path of service. Ashland, the Qatan who loves those who serve the riders of the Falcon, honors those who would work for the good of the people. The Qan and Qatan together take the flower of the youth of Calontir and shower them with renown.

(YOUTH NAME) knows the early years of toil and effort, and has brightened the lands of the Ordu with their word. So the great Qan and Qatan brighten their name with the Order of the Purple Jess, and their garments with the symbols of that order; the brilliance of these is eclipsed only by the work they have done.

Set in the proper signs and sealed under the law of the elders on the __th day of the (MONGOL MONTH) in the (MONGOL YEAR).

Ashir                     Ashland

Qan                       Qatan


QED Chivalric Behavior:

Hear now oh Heartland, the words of the Qatan—Ashland the fair haired, fierce ruler and wise. With thunderous hooves she has ridden to warfronts, ruled with justice, and forged peace ties beside. Dear to her heart are those who have shown the honor due to a worthwhile foe. Honor so given is honor returned, from the glorious mother of the great Falcon lands.

_____________ is endorsed with Qatan’s distinction, for their honorable deeds done in Ordu’s name. Let the now horde bedeck them with gems and with glory, though no gold can match the honor they’ve shown.




QED Gentle and Courteous Behavior

The great golden Horde of the Falcon knows warfare, the battle and siege and dark churning mud. But also the glory of silk and of speaking, the sword kept in sheath for kind words instead. Ashland the Qatan, brilliant and righteous, holds those who know this close to her heart. For the Ordu can grow not only at sword point, but in reflection of those who shine like the sun.

____________ is endorsed with Qatan’s distinction, their words and their deeds strong as their steel. Let the horde now bedeck them with gems and with glory, earned by the way they’ve inspired the sky.




QED Ideals of the Society:

(This is the scroll text that Countess Ashland had me write, knowing it would be my own QED scroll text).

The heroes of ancients live on in our stories, their names to ring out on the steppes for all time. They stand as ideals for those who would follow, their striding and legends as tall as the sky. Ashland the Qatan, the golden haired glory, stands with those legends in word and in deed; the joy of our Ordu knows well the effort it takes to inspire the lands that she loves.

And so the Qatan does endorse with distinction the works of her subject, _________________. With every word and deed they have taken, they have furthered the ideals that the horde holds most dear. Let their people bedeck them with gems and with glory, their names to ring out on the steppes for all time.




Order of the Cross for Sato and Ise

(This scroll text is based on the ‘Proclamation of the Emperor Shōmu on the Erection of the Great Buddha Image’, by the Emperor Shōmu in the year 743)

Having respectfully succeeded to the throne through virtue, the Tennô Ashir is possessed of a solicitude for all men. The Chûgu, Ashland, is ever intent on spreading benevolence and peace through all of the lands. Their fervent desire is for all to live under the aegis of the Falcon, that the benefits of peace may be brought to all warring factions, even animals and plants sharing in its fruits for all time to come. Therefore they take this vow:

All who serve the common good, and bring peace to the lands shall be rewarded. But those who serve in peace and assist the preparations of warriors most of all shall be honored. Serving those who serve would appear to be an easy task, yet a lack of sufficient forethought might result in the people being put to great trouble. The names of those who help to lead, and train, warriors in the art of the horse and sword shall be inscribed at the base of a monument to Hachiman.

Sato Jiro of the House of Kuji and Ise no Kusunoki Kametsuru have undertaken to lead the mounted warriors of Our lands. In their names we create a shrine of veneration to Hachiman. Wood from their lands shall be carved into ema to furnish it, and for the shintai we command a stirrup from each of their most spirited mules. For their worth and dedication, and in accordance with the law and will of the land, we raise them in honor to the Cross of Calontir.

Let no authority disturb or harass them by arbitrary demand, for We exercise all the power in the land by our lawful edicts. This edict is to be proclaimed far and wide so that all may understand Our intentions in the matter.

Sealed under the law, and in accordance with Our will on the ___ day of ______________, in the first year of the current era, known as Anno Societatis ___ in some courts.

Ashir                                                   Ashland

Tennô                                                 Chûgu


Stile Hirth for William Douglas:

(Based on ‘Grant of a crest to Thomas Cathorne of Pembrokeshire, 1553’, Cynthia’s Revels by Ben Johnson (1600), and period prize announcements of the London Company of Masters)

BE IT KNOWN to all that profess arms that Ashir, by right of such skill King of Calontir, and Ashland, by wisdom his Queen, send greetings.

Equity wills and reason ordains that virtuous men of noble courage be by their merits and good renown rewarded not only by their deeds, but be set in a place of honor with others of their kind. As such Our ancestors created by their hand and royal will the Order of the Stile Fyrd, to give leave and license to those skilled in the subtle mysteries of defence to practice said art and to recognize their demonstrations of honor on the field.

Having especial knowledge of his good works and skill in the arms, We do therefore prefer and create William Douglas, subject of our Realm, by Grant of Arms a member of this noble Order. He has been found a well-tried and sufficient man with diverse weapons, and played the prize victoriously within Our lists here and in years past.

In witness whereof We affix these letters under the Royal sign-manual this 16th Day of June, Anno Societatis 52, at the 31st War of the Lilies.

Ashir                           Ashland

Rex                              Regina


County for Ashland:

(Her Excellency specifically requested that the scroll text reference her children, hence ‘mother to three kestrels’; also she wanted to be able to claim the first beef sticks of Sir Cilian’s lands, hence ‘The first claim of tribute from the lands of Macmarro’.)

The life of the Ordu is birthed in wisdom, and justice is the blood that beats from its heart. Without glory or honor the folk do not prosper, and none will answer to the Qan’s mighty call. Only with rulers of iron and conscience can the virtues of heaven be seen in the land.

One who has ruled is the golden flower Ashland, the Lady of arrows and needles and war. Mother to the Falcon, mother to three kestrels, champion of those still learning to serve. In Heartland and battle she has rallied the riders, like great Queens of old she has stood by their side. The swamplands have trembled at the sight of her coming, the thunder has ceased and the rains fled the sky; none who have stood beside her have perished, but those turned against her have run for their lives.

The Qan of the Falcon, Damien the Oak Born, has seen with his own eyes how keenly she strikes. The Qatan born of wisdom, Issabell the Lily, knows well the greatness of her skill and her heart. Beneath the blue sky, with their wills united, they make these decrees for all of the Ordu.

Land shall be granted to her as a birthright, pastures and orchards for the good of her folk. Gold shall adorn her brow as is written, though no gold compares to what nature bestowed. And the title of Gonji, peer only to sovereign, shall be granted to her to have for all time.

Further for worth and merit in wartime, shall glories and honors be heaped by her yurt. The first claim of tribute from the lands of Macmarro are hers to decide, to give or to keep.

Done by Our hand and confirmed by Our will, in wisdom and honor write we words this day; sealed in red ink and set in the banners, let any who flaunt them suffer Our wrath.

Done before the law in the ancient forms this __ day of the (MONGOL MONTH), in the (MONGOL YEAR).

Damien                               Issabell

Qan                                      Qatan


Duchy for Ashir:

(This scroll text references ‘The Epic of Jangar’, in which the noble Prince destroys the city of Goljing for various epic and appropriate reasons. The reference to ‘the bear-blooded Taiji’ is to Duke Ostwald; Duke Ashir specifically asked for land in the scroll text to be held in trust for Ostwald’s children, as a way of remembering His Grace.).

Hear now, O Children of the Great Blue Sky. The mountains have shaken at the passing of horses, the plains have been choked by the marching of armies. The foemen have fallen like the wheat of the farmer, cut down by blades more wicked and sharp. Ashir the twice crowned, born of the falcon, lord of the riders has come once again. All have prospered beneath the sign of the Blue Hand—none who have stood against him have lived.

The fiercest of warriors, the Qan born of Oak Trees, Damien MacGavin calls to him now. Righteous in wisdom and haloed in glory, the Qatan Issabell sits by his side. With voices joined they call to the Baatar, the fierce bladed horse lord, the servant of all.

Hear ye now, those born to the kestrel, of the honors granted to the valiant Ashir. The gems he has born are no longer worthy, for his glory has dulled their lustrous light. The symbols of honor he has earned with his valor, set them now upon his breast and his brow: The three leafed crest of the highest of nobles, the dragon and falcon, and the finest of gold. No lesser symbols do justice or honor to the Taiji who brought the world to its knees.

Land shall be given for horses and pasture, green and fertile for cows and for sheep. No man shall take them or tax them or burn them, and on these he answers to none but the Qan. Let any who seek to intrude on this glory be dealt with like Jangar destroying Goljing.

In the days of the ancients and wisdom of elders it is said that a lord must see to his kin. And so shall more land be given for pasture, the good and the bounty to pass not to him. He shall take it for those born to his kinsman, the bear-blooded Taiji who bore him through battle. Let those lands be an honor like their blessed father; let his strength and its bounty shelter them still.

Set among the banners of the righteous, sealed in the red ink, and commended to the will of Heaven on this __ day of the <MONGOL MONTH> in the <MONGOL YEAR>.

Damien                               Issabell

Qan                                      Qatan


Heralds of Calontir Holiday Letter

To the Heralds of Calontir, greetings!

What a year it has been. This message is to take a minute to reflect on what we’ve accomplished in the last year, and look forward to what we’re planning for the next.

In 2016, I had the pleasure of stepping up as Gold Falcon Principal Herald. That gives me an opportunity to see all of the amazing work the Heralds of this Kingdom do from a unique position. So many of you are working so hard, on so many projects, and they don’t all get the love they should. Part of this is because a lot of our work goes on behind the scenes. And part of it is because my first instinct as a person is that if things are running well, they don’t need comment.

I recognize that is not the best way to run things, and I am working on it. But I wanted to take this opportunity to say thank you.

To all the book heralds who work endless hours at consult tables, helping people get arms and names and whose sole credit is a line in OSCAR.

To all the field heralds who are willing to sacrifice their voice, their time, and their effort at a moment’s notice to make sure our tournaments have the pageantry they need.

To all the court heralds who get up in front of the whole of the Kingdom and speak for our royalty and landed nobility, and ensure courts are well heard and well received.

To the administrative heralds who keep things running, doing work in the background no one may ever see because you care about it happening.

Thank you. You are what make this College one of the best in the SCA, and make it happen. We had a fantastic year: Months of great submissions and no returns, flawless courts, and some of the best run tournaments I’ve seen in my entire SCA career.

I want to thank some specific people as well, who have earned great word fame for all the things they’ve done.

Konstantia Kaloethina continues to be a pillar of this Kingdom, and work her tail off.

Brigida von Munchen, my Purple Falcon, who has my back and keeps things going when I can’t, and whose service to this College is long and well known.

Lelia Corsini, my Purple Quill, who keeps me sane, on task, and well advised at all times.

Dorcas Whitecap, whose program as White Hawk to get new people doing court heraldry has been phenomenal.

Alexandra Vasquez de Grenada (Shandra), who has served so ably as the Saker Herald these last two years—you leave the office in a fantastic state for whoever succeeds you.

The technowizards who keep the College looking good, Hugo van Harlo, Giovanni Loredan, and Ffelix Aeskelsson, whose efforts have made the websites and Precedence look so damn good.

And to a crack group of heralds who stepped in at Toys for Tots, and who I heard many great things about (Johann Steinarsson, Brian Robert MacDougall, Bryan of Loch Rannoch, Sawbina Fahy, Maegwynn Attewoode, Da’ud ibn Ibrahim al-Sisari, Finan mac Crimthainn, Jade Winterwolf, Odo de Home, and Robert Brockman)…

Thank you. You all rock so very hard, and have for so very long. You make this job easy, you make me and the Kingdom look good, and my debt to you all knows no bounds. Thank you.

This was a great year. We had a lot of great work that came out of the Heraldic Retreat, including a re-ordering of the Heraldic Titles and the way the College works that are still coming. We’ve pitched out some extra handbooks to help heralds, and some of those will be rolling out this year. We have great commentary on OSCAR, and so many people participate not just on our internal letters but other Kingdom’s and Laurel as well.

Here are some of the plans and goals for the next year:

  • New Herald’s Handbook (being written by Gold Falcon and Purple Quill)
  • Gold Falcon Handbook (being written by Konstantia Greek Fire)
  • Saker Handbook update (to be written by the next Saker)
  • Calontir pilgrimage to Glenn Abhann for Known World Heraldic (It’s only 10 hours from KC, 7 hours from St. Louis!)
  • Shepherding through every non-registered Calontir award until they are registered.
  • Recruiting and promoting heralds (helping to move new heralds to experienced, and experienced to senior).

As always if you want to help on any of these projects or have project ideas of your on, do not hesitate to contact me. You can always reach me at

Until then I remain,

Yours in Service,


Saito Takauji

Gold Falcon Principal Herald

The Requirements of Law

The Requirements of Law


Hillary Clinton Didn’t Commit Espionage, Sorry Guys


There are certain days when you just know the internet is going to blow up. Affirmative Action decision from SCOTUS? Bring out the racists. Abortion decision? Call out the pro-lifers. And then there is today: The day Hillary Clinton was found to have not committed any crimes by the FBI, who advised no charges be filed. Not just that, but that no charges be filed because no reasonable prosecutor would file such charges.

And the internet didn’t just explode, it EXPLODED. It T-REXPLODED. Whatever is higher than “everyone on the far left and middle to far right collectively lost every bit of their shit” is exactly what happened as every person on the internet decided they had a law degree and knew exactly what the FBI should have done instead.

Facebook Law Degree

But the problem is…they’re wrong. Today was a victory for the just application of the law as written. Today was a reminder that just because we may not like someone doesn’t make their conduct more or less illegal.

But how did this happen? How did we get to this point, when a year of talking head speculation said that there was a strong chance of an indictment?

The answer comes down to intent, and the different levels of intent required under the various statutes of the espionage act.

A Brief Reminder

In case you were living under a rock, this whole non-event has had to do with the use of a private email server by Hillary Clinton. The question is whether or not this violates various provisions of the espionage act because the server handled classified information. That’s the background.


In order to be convicted of a crime, there are two required portions. The first portion is an actus reus, or a guilty act—that is that there has to be some act that is proscribed by the law. The second requirement is mens rea, or a guilty mind—what we call intent. First off, it is important to distinguish intent from motive—in most cases the law doesn’t care why you did something, unless you did it for a reason that constitutes a defense to the law.

Intent is a requirement of nearly all crimes, but that doesn’t mean the intent is the same in every crime. The law recognizes three different levels of intent: General intent, specific intent, and strict liability.

General intent is what people think of when they think of intent, because it is the level of intent that gives rise to the phrase ignorantia juris non excusat—ignorance of the law is no excuse. General intent requires only that you intend to perform the act that causes harm, not that you intend to cause harm; thus if you throw a hatchet in to a crowd and hit someone you’ve committed battery (at a minimum) regardless of if you genuinely didn’t think you’d end up hatcheting someone in the face.

Strict liability crimes are a very small section of crimes, in that they don’t require any intent at all. These are generally traffic offenses (speeding doesn’t require intent), or statutory rape—statutory is the most famous one, where it doesn’t matter if you knew the other party was under 18 or even thought she was over 18.

Specific intent are those crimes which require a raised level of intent. You don’t just have to intend to commit the act that causes harm, you actually have to intend the harm itself. These are crimes which include the words ‘knowingly’ or ‘willfully’ most often. For example, specific intent is the difference between a murder and a manslaughter. Murder is an unlawful killing which requires malice aforethought (intent) or a depraved heart (which is reckless and intentional disregard for human life), while voluntary manslaughter is an unlawful killing without other excuse or defense. Murder requires a specific intent to kill, while manslaughter only requires an intent to commit the act that causes a death.


So what does this have to do with Hillary Clinton and the possible crimes under the Espionage Act? Simply that the sections of the act she may have committed the act for she didn’t have the requisite intent for, and the ones she had the requisite intent for the other parts of the act weren’t committed. Because no part of the Espionage Act she both had the required intent for and had the required acts for, there is no part of our understanding of criminal justice that would allow her to be charged or convicted.

In order to go through this, let’s examine the potential violations piece by piece.

18 USC 793(f)

The most commonly cited statutes that Clinton may have violated come from Title 18, Chapter 37, Subsection 793 of the United States Code. The relevant sections are (f), as well as (d) and (e). They can be found in full at, but let’s look at some of the specifics.

Subsection (f) states in part:

“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed…Shall be fined under this title or imprisoned not more than ten years, or both.”

So in our lesson on statutory interpretation, we can see first that the standard for conviction under 18 USC 793(f) is gross negligence. Gross in legal terms essential means that it is above and beyond ordinary negligence, being defined by The People’s Law dictionary as: “Carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil.” (

Note that in the statement by the FBI, the Director never used the phrase ‘Gross negligence’. He very specifically dances around using those words, but it is entirely possible that if it was turned over to a prosecutor they would be able to prove gross negligence. The problem with this one is that while she may have had the requisite mens rea, the other parts of the statute weren’t met. Remember that 793(f) both requires gross negligence and that the item be removed from its ‘proper place of custody’. Proper place of custody is a term that does not appear in any legal dictionary, but which was not found to be violated here. While it wasn’t secure, a Cabinet level appointee is given great discretion in determining the proper places for documents—in this instance, it is good to be the boss and be able to make those determinations. The FBI, in not recommending that she be charged, found that she had not removed or allowed to be removed any document from its proper place of custody or delivered it to anyone. Therefore while she may have had the intent (or lack thereof, as negligence is actually a lack of an appropriate intent to keep safe), the other elements of the crime weren’t present. Therefore, she wasn’t charged.


18 U.S.C. 793(d) and (e)

The other two parts of 793 that could be relevant are (d) and (e). They are substantially similar, except that one deals with data you have a lawful right to access and the other unlawful access.

They read:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

Shall be fined under this title or imprisoned not more than ten years, or both.

Now it is back to reading the statute. The two are essentially the same, and both of them require that the person in question “…willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted…” Therefore we can see that this is not a general intent crime, because it requires willful communications—it requires not negligence or even just communication, but willfulness. Once again on the People’s Legal Dictionary, Willful is: “Referring to doing something intentionally, purposefully and stubbornly.”

Therefore willfully storing it on an unsecured server is not enough; that would be a general intent crime. Willful means that it is done for the purposes laid out in the statute, not for any other purpose or in any other state of mind. Therefore if there is even a reasonable doubt as to whether or not she intended to deliver it to any person not entitled to receive it, or to willfully retain and not deliver, she did not have the mens rea required. Even if she has committed communication or the retaining parts, if she did not do it with willfulness then she cannot be charged under the crime.

Note that from the beginning, it has been claimed by Clinton and her staff that there was never any intent to break the law, or fail to deliver, or communicate to any unauthorized party or location. She has maintained that she thought it was in line with the practices of previous Secretaries of State (Colin Powell used a personal email service not on servers under his control, which is somehow being treated as a better option for some reason), and that she intended it to be archived and kept according to the law.

Now you can assume she was lying, but it’s important to remember that 1) Just because you want her to be lying doesn’t mean she is, and 2) her lying would have to be proved by extrinsic evidence to the preponderance of the evidence standard. So even if we decide that there was a benefit Clinton thought she was going to get by keeping the private server, we have to be able to prove she willfully communicated or retained and failed to deliver. The FBI didn’t find that this could be proven, either because Clinton was genuine in that she thought it wasn’t against the law (which wouldn’t be willfully breaking it) or because there wasn’t enough evidence to prove that she did it willfully.

18 USC 798(a)(3)

The other option that gets thrown around is section 798. This reads:
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(3) concerning the communication intelligence activities of the United States or any foreign government…

Shall be fined under this title or imprisoned not more than ten years, or both.

So once again turning to our statutory readings, we find that 798 has an even higher standard than the other ones. This is not just the standard of willfulness, but knowingly and wilfully. Everything that was said up above is also true here, but even more so. Clinton would not have just needed to intentionally make available to an unauthorized person, but also need to do so knowing that the information was going to go to a person she knew to be unauthorized. Whereas under 793(f) there is an argument that if there was evidence of a hack (which the FBI did not find) she could have been guilty of causing it to be removed, that won’t cut it here—she would have to give it to a person or use in a manner prejudicial to the interest of the U.S. both knowing and willing it to happen.

So to sum up:

She can’t be guilty under 793(f) because even if she was grossly negligent she didn’t cause it to be removed from its proper place, in part because she is partially responsible for determining that proper place and acted in good faith in determining it. She can’t be guilty under 793(d) and (e) because even if she did deliver or transmit it, she didn’t do so willfully under the legal definition of willfulness—she acted on purpose but she didn’t act purposefully to violate the law, which matters because the statute creates a specific intent. And she can’t be guilty under 798 because that requires an even higher standard of intent, knowingly and willfully, and if she doesn’t meet willfully she won’t meet that one either.

Other Miscellany

Koala picture because it had been too long without a picture.

Koala picture because it had been too long without a picture.

One of the things that has also been going around is that other people would have gone to jail for this. The FBI specifically addressed this, saying that they did not expect a lesser employee acting in a similar fashion would have been charged with a crime, but they probably would have faced administrative or security sanctions.

First, there are other circumstances where people have been punished for somewhat similar circumstances. There was a sailor who was convicted of removing classified information, the case of soldier Bradley (now Chelsea) Manning, and Edward Snowden.

The important thing that differentiates both the sailor and Manning are that they were members of the U.S. Military. Uniformed soldiers, sailors, airmen/airwomen, and marines are bound by different rules than civilians—and especially different rules than Cabinet Secretaries acting within the areas of their competency. While Clinton likely had, as Secretary, the right to determine to an extent the proper place of custody for intelligence, that is not something open to either enlisted or officers. And lest we forget, General Petraeus was not claiming that his reporter girlfriend accessed information he stored on his own server—he knowingly and willfully provided information he knew to be classified to a third party he knew to be unauthorized to receive it, to make a biography better. Snowden is under similar circumstances, as an employee of the CIA—intelligence employees have a different standard of discretion they are given then the Secretary of State.

As for administrative and security sanctions, there are literally none that can be put against Clinton. You cannot administratively sanction someone who is no longer your employee, just like your last boss can’t come write you up in your new job. And Clinton doesn’t have a security clearance any longer, as she is no longer employed. And because the system of security clearances exists because of an Executive Order, if Clinton is elected President there is literally no mechanism to deny her access to information. A Security Clearance is, in effect, a level of clearance to see the information the President has. Just like the Queen of England doesn’t have a passport because all passports are issued in her name, so are security clearances irrelevant to the President who has the power to establish them.


So that is a very long explanation of why she not only wasn’t indicted, but was never going to be indicted—and why this was the exact outcome that I expected for months as an attorney. For the crimes she had the intent for they didn’t meet all the elements for, and for the crimes she had the elements for she didn’t have the intent that they could prove.

This was a victory for law and order, for not having meaningless trials or wasting taxpayer time or money. It has nothing to do with the FBI being corrupt, when they weren’t a few weeks ago; it has nothing to do with Clinton being corrupt or the laws not applying to her. This is the outcome I would have expected no matter if it had been Clinton, Sanders, or any other person in the exact same circumstances. To indict her would have been a perversion of our understanding of justice.

Also, I called it.

don't hate me cuz you ain't me

Also included just because I wanted another picture.

A Response to Robert Reich

A Response to Robert Reich (And Others)


Movement, Momentum, and Mathematics.


Professor Reich,

You posted today about momentum. I’ll include the whole post, because it is not that long and because I do like you overall and you deserve those coveted Dishonor On Your Cow readers (all 11 of them).

Regardless of how well Bernie does today, the media will say Hillary is now the Democratic candidate. Baloney. The “momentum” theory of politics is based on momentum stories the media itself generates. Don’t succumb to the “momentum” game. Regardless of what happens today, this race is still very much alive, for at least 3 reasons:

1, In the next few months the primary map starts tilting in Bernie’s favor: In later March: Maine, Michigan, Florida, Ohio, Illinois, Arizona, Washington state, and Hawaii. In April: Wisconsin, New York, Connecticut, Maryland, Pennsylvania, Rhode Island. In May: Indiana and Oregon. In June, California, New Jersey, and New Mexico.

2, Small-donor contributions continue to flow in to Bernie’s campaign. In February, the campaign raised a whopping $42 million. South Carolina’s loss didn’t stop the flow: The campaign received $6 million on Monday alone.

3, Bernie’s campaign is a movement. Americans know we must get big money out of politics and take back our economy from an incipient oligarchy. That’s why Bernie will take this movement all the way to the Democratic convention in, July 25-28 in Philadelphia (you might make plans to be there, too).

I would like to take a moment to respond. First, people should probably not make plans to be in Philadelphia in late July. Both because I hear it is hot, and because tickets to the actual convention will be ghastly difficult to get. I lucked in to tickets to the 2008 Democratic National Convention, which consisted of about four hours of waiting in line followed by six hours of speeches that ranged from kind of cool to mind numbingly dull. Lots of people who wanted tickets didn’t get them, because they are something of a resource. So unless you were already planning on sojourning to the City of Brotherly Love, you might not make plans on the chance you’ll get in to the convention.

But let’s move on to the substantive side. You claim that the momentum theory of politics is baloney, fueled only by the media. I’d like to disagree in part. It is true that the idea of momentum likely did not become quite so important in our culture until we were able to track elections more up-to-the-minute, I will grant you. But in most elections there is certainly a traceable upswing in activity and donations as a result of a particularly strong electoral victory. This uptick, including media coverage, is what we call momentum. See, for example, the fundraising efforts that kicked in to gear in 2008 for then candidate Obama: He outraised Hilary Clinton in the 36 hours following Super Tuesday 2008, raising the same $7.5 million Clinton had raised in the whole month. Is that not attributable, perhaps, to momentum?

Now Sanders can certainly point to his fundraising coup after his loss in South Carolina, and there is no denying the amazing grassroots efforts Senator Sanders has created. But let me ask you this: If people were donating to Sanders because of his loss in South Carolina, is that not a reflection of the fact that his supporters felt there was something to make up for? That feeling, like they needed to dig in and give more, is because there is a sense after a drubbing defeat that something has been lost—an opportunity, a moment to shine, a piece of a lead or a sign of gaining.

Momentum, in other words.

And here is the biggest part of that momentum: Some holes you just can’t climb out of. The Democratic primary system is all proportional, unlike the GOP side where there are some winner take all states. That means that for every walloping you take, you have to be able to give one in return or you are in a deficit. The more big losses, states where things are more than 5 or 10 percent different, and the more ground you have to make up in return.

Clinton has been absolutely destroying Sanders in some key states tonight, and there is nothing that Sanders can expect to put on the board to really match. Sanders landslides to date have been in New Hampshire (21 delegates, 15 Sanders and 6 Clinton) and Vermont (10 delegates, all to Sanders). Meanwhile Clinton won South Carolina by 47.5%, and earned more delegates than either of those two states have (39 for Clinton, 14 for Sanders). And as of the time of this writing she is winning Texas by 37.3% and looking to take about 140 delegates (to Sanders’ roughly 70), has won Virginia by 29.9% and took probably 62 delegates (to Sanders predicted 33), Georgia by 44% and earning 73 delegates (to Sanders’ 29), Tennessee by 29% for 42 delegates (to 25), and with close to 60% of the votes in is winning Massachusetts (a Sanders almost must win, 47 delegates for her to 44 for him) by 4%. On the other side Sanders is going to win Oklahoma by 10% and 22 delegates (to Clinton’s 16) and possibly Colorado by under 10% and 34 delegates (to Clinton’s 32).

In those big ticket states, then, Sanders is down big. Even including Vermont and New Hampshire, he is down 454 to 296 delegates. 158 delegates, not including the fact that Clinton also earned substantially more delegates in Alabama and Arkansas (Minnesota is, at the time of this writing, still very much up in the air, but if Sanders does crush it that would help—but even if he won 50 delegates to 27, that would only wipe out her win in Alabama). For comparison, Florida has 214 non-Super Delegates.

Is it insurmountable? No, of course not—but it is a growing hole that he will have to dig himself out of. In order to do so he cannot simply win states 52-48, or else he won’t get there—both because the gains will be too small, and because there is no reason to believe this will be the last evening Clinton wins any primaries on.

That widening hole, the one that makes it harder and harder to get out of it the longer Sanders goes without big wins? That slow gap opening between him and Clinton if he gets nothing but small wins or ties?

That’s momentum.

So in order to begin making up the difference Sanders needs not just wins but big wins. That brings us to the last part of your exhortation to Sanders supporters: To keep their chins up and their hearts in it, because the field is tilting their way soon. That would require two things, of course: First that it actually is going to tilt Sanders’ way, and second that it will be in meaningful enough numbers to make the difference. Are they true?

To look at that, let’s turn to witchcraft. It is well known fact on the internet that Nate Silver is a witch. It is also well known that the founder of has a remarkable track record on predicting elections, including 49/50 states predicted correctly in 2008. Let us therefore turn to Mr. Silver’s website to look at those states which you have said will turn for Sanders (note, they make no predictions for caucuses):

Michigan: 98% chance of Clinton victory. 130 delegates available.

Florida: Greater than 99% chance of Clinton victory. 214 delegates available.

Ohio: 94% chance of Clinton victory. 143 delegates available.

Illinois: Greater than 99% chance of Clinton victory. 156 delegates available.

Further out than that they don’t make predictions, because they are based on statistics rather than feelings. But those represent 643 delegates within the next two weeks. In two weeks, even if Clinton only wins those states by 1%, the world looks much dimmer for a Sanders candidacy. If he cannot pull out a fairly convincing win in one of those major states, which even supporters and endorsers are calling “more favorable to him”, it will look very close to impossible for him to make it to being the nominee. Even when he does win convincingly in, say, Washington and Wisconsin, the board may look good for him but it doesn’t look quite that good. Especially if Florida votes as the rest of the South has, and Clinton wins convincingly.

A last opportunity to gain ground, with prospects ahead difficult and roads to the nomination diminishing. That is a long and circuitous way of saying:


And that brings us to the last section, about Bernie being a movement. As if a movement has never lost in American history, or as if being a movement automatically makes it a morally superior enterprise. And as if there is only one side that can claim to be a movement.

Whenever Senator Sanders has picked up a big endorsement from a union, it has been touted as working class people choosing to back the movement. Why then is it not a movement when the Operating Engineers Union, the Plumbers/Pipefitters Union, the Carpenters and Joiners Union, and the American Federation of Teachers choose to back Hillary Clinton—and are among her top donors? Why is voting for the Senator an act of principled protest, whereas people who genuinely want thato support Secretary Clinton are accused of doing so only because they are blind, militaristic, or simply haven’t really seen what Senator Sanders stands for?

Why is it that there can be a movement, which will swell and break in to the convention in Philladelphia, but not such a thing as momentum? Why is it that whatever setbacks Sanders suffers are only temporary, while any victories he has are signs of impending doom for the establishment? And on the other side, why is it that any defeats Clinton suffer are the crippling blows to the establishment, and any victories she had must be baffling, must have been bought, or must be belittled?

In the end tonight, millions of people voted. In Georgia, 300,000 more voted for Secretary Clinton. In Virginia, 225,000. Texas, 270,000. In Alabama the difference was 175,000. 113,000 in Tennessee. Why are those votes meaningless? Why is 1.08 million more votes for Clinton than Sanders not a movement, not momentum?

I don’t have a better place to end it than that, Professor Reich. You are a man I do greatly respect, and those are the words I wanted to say, to you and the Sanders supporters looking to the future. It isn’t over, and anyone who said so would be crazy. The Sanders campaign is powerful, and even if it does not put a man in the White House it has brought the party to the left of where it was and put certain important issues at the forefront. But it is not a failure of democracy or an indication of corruption if your candidate loses a well-run campaign for an evening or even overall; it is not a breakdown when over one million of your fellow citizens vote differently than you would like.

I don’t think the future looks so good for the Sanders campaign, and I don’t think the math is on his side. But I want the people like you, who believe passionately in him, to prove me wrong. Because despite the length of this response and my other comments (which you can find on this very website), I am genuinely undecided. I like a lot of what Senator Sanders says—just not what I see as a desire to put feeling above fact, and a desperate need to explain away anything that looks negative to the movement. I want the party to do well, and I want the best candidate to win. But I can’t do so in denial of what the world seems to me to be, and what the numbers seem to say. I can’t do it in a way that emphasizes movement while denying momentum, and I don’t believe it is in the interest of any kind of progressive to do so.


Matthew Parker

Scalia Summons Short Sighted Stubbornness

Scalia Summons Short Sighted Stubbornness


Dear GOP: Do you know what a 4-4 Supreme Court Means?


chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

 (Credit: Mark Avery/Orange County Register/ZUMA Press)

Antonin Scalia died today in his sleep. It is of course sad for his family, and my condolences go out to them, but as a Liberal I don’t mind the opportunity to have a Supreme Court that is 5-4 liberal. But as much as it would like to not be, the Supreme Court is always political, and with the exceptionally bad timing of his death it is going to be very ugly trying to come up with a solution for the now empty chair on the SCOTUS.

Of course, the politicking has already started. Mitch McConnell has already said we should wait until after the election to nominate a new Justice. Other GOP leadership figures have begun to say the same thing.

And on the one hand, of course they are. Not for the “will of the people”, because of course the people spoke–they decided they wanted President Obama to choose any SCOTUS justices for openings between 2013 and 2017, subject to the GOP Senate they also paradoxically chose. But because it would be great politically (from one perspective) and be a great way to kick start the beginning of the next President’s term if he is a Republican–to pick a righteous right wing fire-breather to reinvigorate the court with its greatest conservative lion gone.

The problem is they are wrong. They are wrong politically, for how it will look for them, and it is wrong for what it will do to their cases in the long run. Let’s look at each of them in turn to see why the GOP should, if they are smart, negotiate to a moderate center left Justice–and what the Democrats may say about the deal.

Part I: The Politics

The GOP is trying to stall to bank on the idea that they will win the election. Of course, I don’t think they will win–they overestimate how much of the country hates Hillary, and I think the GOP’s demographic problem isn’t going to get any better no matter who they nominate. But there are greater political things to consider here:

Delaying a SCOTUS nomination is going to try to gain political advantage in 2017 while ignoring the damage it does to the party’s image in 2016.

Imagine the following. Mitch McConnell stonewalls and the Senate refuses to even hold hearings on the matter, while talking about how much they are going to let the people decide. All the GOP nominees say that, that the people should decide.

If Democrats were doing it in an opposite circumstance, would the GOP cry out that it was political malarkey? Absolutely. Would the voters believe them? Absolutely. Because it would be–as I said above, the people have chosen. They chose a Democratic President, and a Republican Senate–so they essentially indicated that they wanted someone in the center.

So the GOP nominees are going to go on until November, along with the GOP Senate leadership, about how it is a matter of giving people the choice while the voters hear what they are actually saying: “We want to wait until we win.” And the more they hammer it and the more the Supreme Court flounders (see below), the more people will see the lie of their words for the truth of their intentions. And the more it will harm them in the long run, because it is an issue that they can keep being hammered on.

Imagine how Clinton OR Sanders will go after the nominee on what they are doing. Imagine if it is Ted Cruz, who has already demonstrated a willingness to hold the government hostage in order to enact his ideology–with explosive results. The rising tide of outrage that the Democratic nominee could surf on against the GOP will be almost literally palpable, and every time they bring it up to scour the GOP with it will take away independent voters and deprive them of any chance of seeing victory in the polls.

That leaves them having cost themselves valuable points and voters short of victory with the goal of letting the people decide, which means come January 2017 they have two choices. They either have to be willing to actually let President Sanders or Clinton have the nominee they want, or they will need to look even more like obstructionists by being…well…obstructionist.

But they can avoid that, if they force themselves to do the unthinkable and the unpalatable, if they are willing to compromise.

Part II: The Jurisprudence

The other reason the GOP wants to consider seriously is what this term does to any hope of them making major roll backs on Obama’s policies or the social changes of the country in the next couple of years, if they leave the sit unfilled.

Right now the court is considering Affirmative Action (Fisher). Coming up this term they are going to consider the latest challenge to Obamacare in the Zubik/Little Sisters of the Poor case, Obama’s immigration plan in the Texas case, and abortion in the Whole Women’s Health case. They were hoping to set long lasting precedents in these cases, with a strong chance to oversee major changes (specifically, to get rid of the thing at issue in all of them).

Well, if they leave Scalia’s seat open, they can’t do anything meaningful. That’s because of a Supreme Court procedural fact.

Occasionally, Justices have to recuse themselves because they participated in the case previously. You see this recently with Justice Elena Kagan, who was U.S. Solicitor General before she was on the court and therefore may have participated on behalf of the Government. When one of the Justices recuses it opens up the possibility of a 4-4 split, so the court decided that those are effectively mulligans. On a 4-4 split the decision of the lower court is upheld, but no precedent is set–so the status quo stays but it can’t be relied on in the future.

Zibek was decided in favor of Obamacare, so the requirement of religious groups to sign the contraceptive waiver would remain.

Texas is being ruled on an injunction, and in case of an equally divided court would go all the way back down to a district in Texas for trial, by my reading.

Fisher was decided in favor of the University, allowing it to use race. Affirmative action survives.

All of these represent basic liberal victories. While we would prefer outstanding victories in all of them, upholding the lower courts would still mean those three things survive. Even if, in immigration, only long enough to have a second round of SCOTUS litigation.

Whole Women’s Health was decided for Texas in the lower courts, so that would be a defeat. But it would still be a defeat that benefits the liberal cause more than the conservative, because it would mean Texas’ restrictions stay in place while no other states may rely on that decision in passing new ones.

So all in all things that the GOP absolutely hates would survive in to 2017, where there could very easily be a Democratic President and Senate even in the face of the likely GOP House of Representatives.

Part III: The Deal

In other words, unless my analysis is completely bunk (which I don’t think it is), delaying the appointment of a SCOTUS Justice is likely to represent a terrible choice for the GOP. They will lose face by being seen as obstructionist in the election, three out of the four suits they care most about will stay liberal victories for the time, and even the one victory they have will not roll back abortion like they would like. And all of this in the demographically uncertain hope of winning the 2016 elections–and if they don’t but do keep the Senate, they will face ire for having clearly lied about waiting for the ‘will of the people’ in the elections.

So then what is their option? Force a compromise. Force the Democrats to nominate the single most centrist person that they can while still being appointable by Democratic senators. Force them to bring someone to the table who might rule their way on one of the issues, in the hopes of not losing all of them. Take the wind out of the Democrats sails by working with them to find an acceptable centrist candidate who can bolster the Kennedy (and formerly O’Conner) swing vote.

And the Democrats might consider taking it, for two simple reasons. One, they are likely to win on three out of the four things they care about. And two, the next President is by no means guaranteed to be Sanders or Clinton–taking a centrist now is a way to ensure that they will have a strong voice on the court even if it is President Cruz. Or even worse, if the next President would appoint Justice Cruz (God forbid).

And let’s be honest…a Centrist in Scalia’s seat still drives the court inexorably the left. Hell, Genghis Khan’s ghost on the court drives the court at least a couple of steps to the left, given how far to the right Scalia was. A guaranteed voice of moderation on the court will still reshape it dramatically, and allow it to walk back some of its more insane jaunts.

Unicorn Voters II: The Perilous Majority of Casey

The Perilous Majority of Casey


Unicorn Voters Part II: The Doom-ening


People continue to talk about being Unicorn voters in this year’s election, despite the fact that I wrote a blog post on the subject. Come on now, people–once it goes on Dishonor On Your Cow, it is definitively settled, right? I mean, it’s not like I’m screaming in to the darkness, right?

Hatred in my Heart Toby

Despite having definitively ruled on the subject, it continues to be a matter of debate. So I thought I would continue to address the issue as well. We’re going to discuss some of the small bits before we discuss the big wooly one people are forgetting.

As a housekeeping matter: A unicorn voter is a term introduced to me by my Unicorn Hunter brother in arms Monjoni, and it is someone like this: They will only vote for unicorns. Someone who is wise and kind, just and fair, honest and thrifty, who has never dirtied themselves with compromise or sullied their ideological purity by having to give an inch. They don’t just want a horse, which is awesome but expensive and occasionally poops in inconvenient locations and needs shots and food and all that normal boring malarkey. They want a unicorn, who is perfect in every way, all upside and no downside and craps out tasty ice cream.

unicorn poop

In other words, they want THEIR candidate, and damn anything else. Because compromise is weakness, and ideological purity is king. They want THEIR candidate, and if THEIR candidate loses then the system is rigged, burn the mother-you-know-what-er down and start over cause Democracy is broke, and they sure as hell aren’t propping it up by voting for someone who ISN’T a Unicorn.

These people are good, honest, hard-working folks. You know, morons.


Part I: They Wouldn’t Get That Many Supreme Court Justices

This one is just dumb, because it ignores the reality of…well, reality. Reality being that thing that doesn’t go away when you stop believing in it.

Some memes, memers, and posters are complaining that people saying that a GOP President would get 2-4 SCOTUS Justices are over-inflating the risk. They’d probably only get one, say these apparent long-time watchers of Supreme Court trends and actuarial tables. I mean just look at Obam…

Wait, he got two. Ok, George W Bus…

Shit, he got two too. Ok, Clin…

RBG and Breyer? Balls balls balls. George H.W. Bush, he only got…

Souter and Clarence Thomas. Fuuuuudge. Maybe I should stop…

Ronald Reagan got 3? Ok, I give up. (Kennedy, Scalia, O’Conner). And he got to move Rehnquist from Associate Justice to Chief Justice, which almost counts as a whole separate appointment because of how powerful the Chief Justice is in finessing decisions?

got nothing

True facts time here, kids. Bernie Sanders is strongest with the 18-25 and 25-30 sets, tapering off in favor of Hillary Clinton after that–this is well born out by the Iowa caucus. That means that for the largest groups of Sanders supporters, they have literally not been alive for a time when a President didn’t get at least two Supreme Court nominations. If they’re in the 25-30 set, they were even born in an era when Reagan got 3 Justices added and also got to pick a Chief Justice. And for the fact that even in ONE term, George H.W. Bush got two. And even IF the next GOP President is only one term and you want to call H.W. an aberration (Jimmy Carter, another one term President, got 0 after all), lets look at years:

Obama: Sotomayor 2009, Kagan 2010.

George W. Bush: Roberts 2005, Alito 2006.

Clinton: RBG 1993, Breyer 1994.

George H.W. Bush: Souter 1990, Thomas 1991.

Reagan: O’Connor 1981, Rehnquist 1986, Scalia 1986, Kennedy 1988.

All but one of the Presidents since 1980 got to fill all of their Supreme Court nominations within a span of two consecutive years. And Reagan got 2 of his picks and his choice of Chief Justice in the three years of 1986-1988. That means that once again for the entire life span of most Bernie Sanders supporters, is hasn’t just HAPPENED that Presidents have gotten to put at least two people on the Supreme Court in less time than one full term, it has all but been the RULE.

Part II: It’s Only One Term (or ‘I don’t understand what average life expectancy means’ and ‘I don’t understand the advantages of the incumbency’).

Another argument thrown out by left leaning unicorn voters is “Four years of a GOP President is not that much time, and four years of a train wreck could be what this country needs to have it be ready for (insert candidate, pretty much exclusively Bernie Sanders).”

Essentially this argument boils down to two elements: 1) Whichever one of the GOP clown car that ends up winning is going to be so poisonous and hideous he only gets four years, and 2) The Supreme Court Justices are not that likely to die during those four years.

Let’s first look at the first (for symmetry, if nothing else). Of the Presidents since 1952, the following have served only one term (along with the reason):

George H.W. Bush (Lost an election)

Jimmy Carter (Lost an election)

Gerald Ford (Chose not to run after serving the rest of Nixon’s term)

Lyndon Johnson (Chose not to run, served his whole ‘first’ term after serving just under 50% of Kennedy’s)

John F. Kennedy (Died).

So of 5 presidents since 1952 who served only one term, only 2 of them did so because they lost an election. The remaining three all served one term either by choice (because of the circumstances of their predecessor’s retirement) or death. Even Nixon was elected to a second term. Ignoring the three that are likely unrepeatable circumstances, that leaves 2 Presidents not elected to a second term versus the other 6 that did.

Two versus 8 (20%) is not the kind of odds I would like to be facing when the prospect of Presidents Trump, Cruz, or Carson. This is due to the fact that incumbency, the fact of being the derriere in the chair at the time the votes are cast, has an overwhelming power behind it. The Facebook meme has it right: Congress is re-elected roughly 96% of the time (See this fine and elegantly crafted link). The odds are not good at all that a popular revolution would rise up and throw the GOP out of the White House because people were sick to death of them–after all, that is the same logic the GOP thought would lead to Obama being a one term President.

howd that work out

But even if we accept the idea that against all odds we can make a GOP President pack his bags after a four year stunt, what about the second part of that? That they’re not likely to die anyway, so what is the big deal.

Just look at these people.


Ruth Bader Ginsburg is an 82 year old woman who has had pancreatic cancer, and looks like she might get blown off the chair if Elena Kagan sneezes too hard. Anthony Kennedy, the 79 year old man next to her with a stent already in his heart, looks like he is someone’s beloved grandfather you drive out to California so your kids can see him because you know the next time you can afford to do it he might not be around.

Hell, the entire front row has an average age of 73.6. John Roberts looks like a fresh faced youngster in the middle there by comparison, and it’s worth remembering that he is 61 years old–i.e. someone four years from retirement age himself. Remove him, and the average age jumps to 76.75.

Anthony Kennedy is 79, Antonin Scalia is 79, Ruth Bader Ginsburg is 82 (and again, a cancer survivor), and Stephen Breyer (the skinny gentleman over Scalia’s shoulder) is 77. And as I pointed out in my last article, the average life expectancy for men is 76 and for women is 81 in this country. Five Supreme Court Justices are over their gender’s respective average life expectancy, meaning that five of the 9 Justices are beating the odds every day they breathe.

So yeah. One of them is going to pass away from wholly natural causes between the years of 2017 and 2021. Scalia might get his wish to die on the bench, or RBG might be filing a dissent against the Grim Reaper. Because if one of them doesn’t pass away from wholly natural causes between those years, they clearly beat the Reaper at a game of Jeopardy and earned immortality.

And even ONE SCOTUS Justice matters, because…

Part III: The Shit You Care About is Barely Holding On (or, The Perilous Majority of Casey)

Let’s talk about Planned Parenthood v. Casey,  505 U.S. 833. Simply put, Casey was supposed to kill Roe. And it almost did, except for some extraordinary measures.

Casey was the first opportunity to overturn Roe v. Wade since two of the liberal justices responsible for it were replaced by justices appointed by George H.W. Bush. It was seen by the conservative community as being the case with which they would go back to the days before abortion was nationally legal, and therefore be able to kill it piece by piece across the country. No less than the United States Government joined in, filing an amicus curiae (friend of the court brief) to argue that the abortion restrictions in Pennsylvania (of which Casey was the governor) should be upheld because Roe was wrongly decided to begin with.

And it should have killed it. Rehnquist, Scalia, White, Thomas, and O’Conner were all appointed by GOP Presidents and who were expected to uphold the Pennsylvania restrictions. The only reason they didn’t was because of extraordinary efforts by Justice Souter to recruit Kennedy and O’Conner, by tailoring specific arguments to them and convincing them to sign on to an unprecedented three author majority opinion that stunned the country. It certainly stunned the other conservatives on the court–as Scalia’s bewildered dissent shows.

Every Scalia dissent...

Every Scalia dissent…

And even with that it ended up being a very messy plurality opinion.

After Casey, the tripartite authors were left as the defenders of abortion–even if only keeping the core holding of Roe, with Kennedy and O’Connor proving willing (both in Casey and otherwise) to allow other restrictions on abortion. Still, they were a fairly stout three keeping their legacy in Casey from being overturned. Souter eventually retired, but he was replaced by Sotomayor who is fairly well assured to keep up her predecessor’s legacy. But O’Conner was not replaced by someone who would keep that legacy going, being ultimately replaced by Samuel Alito–who never met an abortion restriction he didn’t want to uphold.

Because Souter, a consistent liberal, was replaced with a consistent liberal his vote is safe. But because O’Conner, who upheld abortion rights, was replaced with someone who won’t, that leaves the inconsistent Anthony Kennedy (79!) as the sole swing vote to preserve it.

Think about that. A 79 year old man is the only thing keeping Roe v. Wade from being overturned. A 79 year old man with a stent in his body to keep an artery open that has been in there for going on ten years. A 79 year old man who people joke about needing hugs and attention because he is the sole swing vote. That is how thin our hold on abortion rights are, how close we are to being set back to the patchwork abomination of inequality the country was before that decision.

And pretty much everything else you care about, if you’re vacillating between Sanders and Clinton, is on the same razor thin margin. For that matter if you’re debating between Cruz, Trump, and Rubio you might consider that all the things YOU care about are only secured by one 5-4 vote.

Citizens United? 5-4 (for the operative parts).

Heller v. DC? 5-4.

McDonald v. Chicago? 5-4.

Hobby Lobby v. Burwell? 5-4.

And on the side of things that were decided in the way liberals approve of:

Obergefell v. Hodges? 5-4.

Every single one of the ObamaCare decisions? 5-4.

It’s said that the only math that matters on the Supreme Court is 5-4. One change either way, and things either switched or are locked down completely. If Kennedy or Ginsburg retire or die and they are replaced by whatever far right Originalist they President Cruz drags out of BYU or Ave Maria Law School (America’s most conservative law schools), then the 5-4 decisions become 6-3, with the accompanying feeling of solidity in the mind of the legal community. Conversely if Kennedy or Scalia die and are replaced by a living constitution hippy from Charlotte School of Law or Northern Illinois University (most liberal university from the same article)* then the next Obergefell and ObamaCare are 6-3, and all of a sudden guns, money in politics, and religion go 5-4 the other way.

There is literally nothing more important than that. Supreme Court decisions have a weight to the that justices are rare to overturn, because once you get on the court you rarely want to think about your legacies being thrown out before your body is cold. Stare decisis, the principal that a precedent should stand unless there is a compelling reason otherwise, mingles with pragmatism to drive even Justices who talk a game about not caring about precedents to suddenly caring. Decisions are hard to overturn, painful when they are suddenly reversed,


Four years of a Republican President, with a Republican House and likely Senate, is enough to tip the scales for a long time to come. There is no reason to expect the next President will NOT get two SCOTUS nominees, as for the last 36 years they have always gotten two nominees per Presidency–even if they only served one term like George H.W. Bush. There is no reason to assume that a GOP President would only be one term, and the damage they could do is incalculable.

Don’t be a Unicorn voter. Don’t let perfect be the enemy of good, and don’t forget that the stakes are far higher than one single candidate. And if you think your candidate is more important than your beliefs or your issues, I have bad news: You aren’t supporting a candidate, you’re joining a cult.


So remember kids: Even if Unicorns poop out ice cream, if you eat it all you’re eating is poop. Vote smart, vote for issues that will define our country for decades. Don’t vote Unicorn.



*NOTE: Of course, they won’t hire anyone from BYU, Ave Maria, Charlotte, or Northern Illinois. They only hire clerks and Justices from the Ivies, because of course that’s where the only people who can know anything about law come from, right?

I Love X, and Won’t Vote for Y

I Love X, and Won’t Vote for Y


How If You Are a Liberal And Won’t Vote for The Other Person You Are Dooming Progressiveism and the Country For Your Selfishness


Hello, my name is Matthew and I’m a Liberal. A passionate one, a committed one, and a long term one. I voted for John Kerry once, Obama twice, and in 2016 I will vote for literally whoever wins the Democratic nomination, up to and including a potato with a smiley face drawn on it in Sharpie.

Why, you ask? Do I not have any principals, anything I really stand on? Am I so blind or brainwashed or so much a sheep person (sheeperson) that I’ll vote for anyone with a D after their name?

No. I have principals, and I have candidates that I prefer—and I have strong opinions on the candidates. I like a lot of Hilary, I’ll be honest, but there is a culture of entitlement or inevitability about her I didn’t like in 2008 and am not thrilled about now. While I believe she did nothing wrong with the email scandal, as has been consistently stated, I do think it shows a tone deafness toward what will look bad. I do not like that she doesn’t look like she stands up to the established system except when it is calculated to be to her advantage.

I like a lot of Bernie Sanders and what he says, but there’s also a lot about him I’m leery of. I think it’s telling that he spent 30 years as the howling lunatic fringe calling for regulations, gay rights and marriage, campaign finance reform—and that he got none of it done. I think it is very telling that whenever each of those milestones was achieved it was because someone ELSE did it, someone who is capable of compromise and politicking and not sanctimonious adherence to blind ideological purity. I don’t like that he comes off sounding like a liberal version of the tea party.

But I’ll vote for either of them not because I am blind or priority-less, but because I have a very clear vision and very strong priorities. And my priority goes like this. This woman is 82 years old:

RBG Picture

That’s Ruth Bader Ginsburg, or as she is inexplicably known to young Supreme Court watchers, the Notorious RBG. While not perfect—she is fairly strongly against expanding the public domain in copyright, for example—she is a staunch defender of civil rights and progressive causes on the Supreme Court. A hardy soul who doesn’t believe that the founders wanted a government limited to only the things they could think of at the time.

My other priority is this gregarious gentleman:

chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

(Credit: Mark Avery/Orange County Register/ZUMA Press)

That’s Antonin Scalia. Depending on who you ask he is either the OG in chief (Originalist Gangster), or Scalia is an Italian name meaning ‘Prince of Darkness’. The leading right wing Justice who actually gets to write major conservative opinions (Alito is generally too junior, Thomas too angry), he is the driving force behind the Originalist/Textualist schools of Constitutional Interpretation. Name an issue before the Supreme Court, and he’s dragging the right further to the right and writing opinions or dissents law students love to read because he’s funny—until they start to get uncomfortable with how personal his attacks get on his colleagues. He’s 79.

So what is my priority, that it comes down to those two people? Simple: They are old, old people are more likely to die, and when they die it means they have to be replaced.

By the next President of the United States of America. The next POTUS will probably get to replace at LEAST those two members of the SCOTUS—remember that in the U.S. the average life expectancy for males is 76 and for females is 81. Both Scalia and Ginsburg are pushing their actuarial odds.

And throw in to the mix that Anthony Kennedy is 79 as well, and Stephen Breyer is 77. Another liberal and another conservative pushing their life expectancy tables.

Simply put, that’s my priority. At minimum I expect the next President gets two Supreme Court picks, and if there’s a particularly cold winter or they all go snowing together and there is an avalanche or a nasty flu season hits Washington, they could get up to four.

Two Supreme Court nominees will fundamentally alter the makeup of the Supreme Court for years to come. Four would alter it for literally decades, because after the four oldest we get down to Thomas (67), Roberts (61), Alito (65), Sotomayor (61), and Kagan (55)—i.e. individuals who reasonably have 10 (for Thomas) to twenty or more years (the rest) left on the Supreme Court.

The court right now is effectively a 5-4 split, with Kennedy swinging either because he is more of an internationalist than the GOP as a whole or because he needs hugs and public accolade. It used to be a much more even 4-4-1, with the 1 being the all-important Sandra Day O’Connor vote. Under that system we had landmark decisions like Casey (preserving Roe v. Wade) and others that were more liberal, as well as more conservative ones. When she retired (and Rehnquist died) under George W. Bush we had them replaced with Alito and Roberts.

Picture, as a liberal, every Supreme Court decision you currently hate. Every one Bernie Sanders and Hillary Clinton rail against, and you’ve donated money to them to help overturn. Heller (guns), McDonald (guns), Citizens United (money in voting), Hobby Lobby (religious health care exceptions), Shelby County (voting rights), Fisher (affirmative action)…all of these tent poles have been under the 5-4 established since the retirement and death. For all that Kennedy or Roberts have swung for Gay Marriage and ObamaCare (respectively), the last ten years of SCOTUS jurisprudence have been overwhelmingly conservative victories.

Imagine what they could do with a solid 6-3. Or an un-assaultable 7-2.

Imagine the kind of person that Ted Cruz, Donald Trump, or Ben Carson would put on to the Supreme Court.

John Roberts has been a disappointment to a lot of people in the GOP because he has upheld ObamaCare on multiple occasions, and beyond that he is genuinely a man of thought. Alito, on the other hand, has never met an execution he didn’t support or an expansion of executive power he wasn’t in love with (except for Obama’s, of course). He is a more amiable Thomas.

The person that Cruz, Trump, or Carson would appoint to the SCOTUS would be so far to the right they would make Thomas and Alito look like Hillary Clinton supporters, and make John Roberts look like Bernie Sanders. He’d make Atilla the Hun look like a moderate centrist. And then they’d find not just one of those people, but a second one. And I guarantee you, if there are two of them, President Cruz can find a third and fourth he will happily stick in black robes and sit on the Supreme Court for decades.

We hear people talking about overturning Roe v. Wade all the time now, and as young(ish) liberals we take it for granted this won’t happen. But that’s because we ignore how breathtakingly lucky we have been in keeping Roe alive. Roe barely survived Casey, which only survived because of an incredibly unlikely coalition between three Justices to write an opinion preserving the core of Roe. Since then the central holding of Casey has barely held out, under assault from all sides, largely only because Kennedy hasn’t vacillated too much—but he’s come close.

And one of the people who helped write strategies to overturn Roe? Rafael Edward “Ted” Cruz. One of the people who has promised to overturn gay marriage by appointing Justices who would do so? Donald Trump.

The next President will have a chance to alter the tone and leaning of American jurisprudence for at least years, if not decades. To be a liberal and say that because you don’t like Hillary Clinton, or don’t like Bernie Sanders, and be willing to give the GOP the power to make those appointments isn’t just not “strategically” voting. It is to bloviate in wallowing self-righteousness, to send the country down a path so far to the right none of us will even recognize the court anymore for the sole purpose of smug ideological purity.

It is selfishness, it is short-sightedness, and it is stupidity. To do it with the thought that the GOP’s candidate couldn’t possibly hold it for more than four years, as a recent article suggested, is to give up the only game in town that actually matters. Because in four years there is every likelihood that two Justices will have been passed by a GOP majority Congress, and that’s the ballgame.

So let me not mince words. If you put either Clinton or Sanders as being more important than the cause, you aren’t a real Liberal. You aren’t a real Progressive, or even a real Democratic Socialist. You are at best a poser, a member of a cult of personality built up and a faux progressive. At worst you are actively undermining the cause and dooming the things you claim to care for to damnation for a decade. You are setting back our country, for the sake of a single person rather than all of our people.

Because the GOP knows what the game is about. It was what the movers and shakers in 2000 wanted, by their own admission. It is what they want now. It is what is already recognized as the true legacy of the George W. Bush presidency (see, e.g., And it is you, oh arm-chair general of the progressive cause, oh you sultan of smug self-satisfaction at your own unassailable purity of thought, who will absolutely hand it right to them if you do it.

So be passionate. Caucus, vote in primaries, and get out for the person you believe in. But let me say in no uncertain terms: If you want to give the GOP the Supreme Court for another decade because you care more about one person than the issues you claim to believe in, you have no place taking the labels of progressive or liberal for yourself—because you will be the bell ringer of the death knell of those causes in the only actual battlefield being decided in this election.

Never Relieved of That Oath

Never Relieved of That Oath


Oh God, is that a Major on the Lawn?


I have great respect for military veterans. I have a number of them in my extended friend zone, and a number of them in my family. My family has members that have served in wars going back to the Revolution, and I’m proud of that service. I say that because I’m going to tackle a meme that goes around Facebook among veterans, and I wanted to make clear that it is only against a meme that I believe is incorrect rather than against anyone’s service.

So, with that disclaimer out of the way: Of course you were relieved of your oath to fight enemies both foreign and domestic.


Veterans Oath

The above meme is one that goes around on Facebook from time to time among veterans of a certain political bent, not infrequently after events like the shootings in Colorado and California or the attacks in Paris. It sounds decent enough, right? Nice and patriotic, and a reminder that there is something about military service that stays with a veteran for the rest of their lives. You also see it phrased as “I am a Veteran. My Oath of Enlistment has no expiration date,” such as the shirt at

The problem being that it is completely wrong, and demonstrably so within the structure and nature of the military oath.

The Military Oath

The current U.S. Oath of Enlistment is as follows:

“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

10 U.S.C. 502.

Officers instead swear the United States Uniformed Services Oath of Office:

“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

5 U.S.C. 3331.

Not Dated

Now, the meme is correct up to a point—there is no time frame referenced in the oath. That taken in a vacuum could imply that the oath is meant to be a lifetime commitment, especially when combined with the fact that there is no accompanying “de-enlistment” oath. There is also the fact that within the Enlisted oath, as opposed to the Officer oath, there is no reference to discharging the duties of any office or position; rather it refers only to the person defending, bearing true faith and allegiance, and following orders.

But a statutory requirement is often taken not just in its own words but in the context it occurs in, and this one is no different. One of the ways that we can find the intent of a regulation is how it is applied by the agency responsible for applying it, and whether or not that application has been challenged. In this instance, then, we need to look at how the agencies in question—the U.S. Military services—apply the regulation.

If it was the expectation of the Army, Air Force, Navy, or Marines that the Oath of Enlistment be eternal and binding then there would be no reason to ever swear it again. If there was no mechanism for its removal then all that would be required is to swear it at the time of your enlistment (or commission) and it would be good for the remainder of your earthly existence.

But of course, that isn’t the case. The re-swearing of the Oath of Enlistment is ubiquitously depicted in culture, from actual depictions of the military to fictional ones. Here are pictures of soldiers reenlisting in the U.S. Army:

Reenlistment pic

That image even pervades depictions of the military in the future; see, for example, Marko Kloos’ Terms of Enlistment, which features the main character re-swearing his own future country’s oath multiple times across his career.

This is borne out even in the paperwork that is signed upon reenlistment. U.S. Army DD Form 4 (, also available as a sample in Army Regulation 601-280) is the Enlistment/Reenlistment form, which is filled out at the appropriate time. Section E of that form is the Confirmation of Enlistment or Reenlistment, and it contains in it the whole Oath of Enlistment with space for the service member’s name. After filling that in it is signed, and then there is a section for an Officer to sign that “The above oath was administered, subscribed, and duly sworn (or affirmed) before me this date.”

So this tells us very plainly that it is the expectation of the U.S. Army, at the very least, that your Oath of Enlistment has an expiration date: The expiration of your enlistment. And that it is considered to be a vital part of remaining in the service that it must be done every time. If you have not sworn your Oath of Enlistment/Reenlistment, that means that you are not officially a soldier (or sailor, airman, or marine). In Part C of the DD 4, it explains: “My enlistment/reenlistment agreement is more than an employment agreement. It effects a change in status from civilian to military member of the Armed Forces.” The oath is a sine qua non of that agreement and therefore of being a member of the military. Remember those pictures—many of them were in war zones. If it was anything less than a fundamental requirement, surely they would have waited.

But this also works in reverse. When you are no longer bound by that agreement, you are no longer bound by the status of being a military member of the Armed Forces, of which a vital part is the Oath. By no longer being a military member of the Armed Forces, whether through honorable or less than honorable circumstances, you are no longer bound by the oath that you swore to become a military member of the Armed Forces. There is no other logical schema in which the requirement of re-swearing the oath makes sense as a requirement for reenlistment, and the emphasis placed upon it.

And for comparison, the Oath of Enlistment isn’t the only oath people swear without an ending. As pointed out above, Officers swear a similarly endless oath. But more than that, so do many other government officials. For example, every 4 years we have a man stand outside in January in Washington, D.C. and swear the following:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” U.S. Const. Art. 2, Sec. 1, Clause 8.

Note that the Presidential Oath also doesn’t have an expiration date listed. There is nothing in it about serving for the term elected to, or for stepping down peaceably. The rest of the clause only says “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation”. If it were not meant to expire with the end of his term in office (similar to the term of enlistment) then there would be no need to swear it for a second term. And if oaths without a definite ending are meant to be never ending then theoretically all Presidents are bound by it for their whole lives as well, with their own Facebook memes; perhaps the oldest living President, by that logic, is still bound to execute the office. For now that would be George H.W. Bush, but in a few years it would likely be Bill Clinton and then won’t half the country be thrilled (and the other half perhaps actually thrilled).

Clearly therefore the Oath of Enlistment is believed by the military and U.S. Government itself to expire with your military service, just based on logical interpretation. But that is ok, because veterans really shouldn’t want to still be bound to it…

The Other Part of the Oath

Because if the Oath of Enlistment really has no expiration date that applies to the whole oath, not just part of that. Let’s look at it again, with another section highlighted:

“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

Now, I actually like President Obama. I voted for him not once but twice, and have never hidden that. I have certainly had some disappointments with him, largely in that I do not feel he has been effective enough at going for full on liberal ideals, but I am proud to have voted for him twice. But allow me to ask a question for you, and for this question you may substitute any President you want whether you like them or not:

Would you want to be required for life to follow any order the President of the United States gave you, or any order of a person he set over you?

Because if the oath lasts forever, then that is what can happen. President Obama (or any other President) could show up at a Veteran’s house and give him a lawful order—and they would not just be likely to follow it given it is the President, but be lawfully required to do so. And even more than that, President Obama could appoint some Major to go to your house and order you to Iraq even if you’ve been retired from the military since Vietnam. Or World War II.

Because remember, the Uniform Code of Military Justice looks dimly on not following orders:

Any person subject to this chapter who—

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties;

shall be punished as a court-martial may direct. 10 U.S.C. 892 (UCMJ Art. 92): Failure to Obey Order or Regulation.

Now under normal circumstances it wouldn’t be lawful for a member of the U.S. Military to give orders to civilians; but under an interpretation of the eternal oath of enlistment, what impediment is there to make such an order unlawful? You cannot argue that one part of the oath is forever and another only applies to your time in the military, as they are both part of the same oath with the same lack of duration.

And as a side note to that: How happy would you be to have to follow the UCMJ for the rest of your life, even decades after you’ve been separated from the military? For example, let’s consider 10 U.S.C. 888 (UCMJ Art. 88):

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

And for those who are non-commissioned, let us refer to Department of Defense Directive 1344.10 (February 19, 2008):

Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.

So roughly that means that if you consider yourself to have never been released from your oath, that you are still bound by UCMJ Art. 88 or the DoDD 1344.10 (as it is a lawful order from an office designated by the Commander in Chief to issue regulations to soldiers). And that means that if your oath of enlistment is eternal and you have posted memes, pictures, updates, or articles against President Obama (such as calling him a traitor, calling to disobey laws he has signed, calling him a dictator) then you have violated still binding laws and regulations and should expect to be brought up on charges before a court martial you are still subject to.

And lest anyone think the DoD is not very serious about those regulations (instituted, I might point out, under President George W. Bush), allow me to share:

Or Not

That’s the reality of an oath that never goes away, and doesn’t expire with your separation from the military. That’s the price of getting to say proudly no one ever released you from your oath, because you can’t have that cake and eat it too. If no one ever relieved you from defending us against enemies foreign and domestic, no one relieved you of any other part of that oath. And we may well interpret other oaths of other members of the government (which anyone who served in the military was, during their time) similarly. And violation of the rules which once bound you are damning, because they still bind you.

Or not. The other option is to live in the world we actually live in. The one where no military, government department, or court in the land will believe you are still bound by your Oath of Enlistment, because you aren’t. The one where you can criticize the government whenever you want because you are no longer a member of the military, and where you are not bound to follow the orders of the POTUS any more than any other civilian is. I can’t even say you get to choose, because you don’t.

Our veterans gave great service when they swore their oaths, and that deserves recognition. But if they have become veterans it means that time of active service came to an end, and that it also ended their obligations under the oaths they swore. And it doesn’t make any sense, nor would it be actually palatable to even veterans who like the current President, for it to be any other way.