One of the things that is I think maybe more controversial than the average Joe
American would think or would understand, is the concept of rights. What is
a right now, in a certain sense, what a right is is a
legal guarantee to something, some kind of legal protection enacted in law guaranteeing something.
All right, I have a right to freedom of speech. It's basically
a legal guarantee or a legal protection that the government cannot engage in adverse actions
against me based on the content of stuff that I talk about within the sort
of historical parameters of the kinds of things the First Amendment and the term of
art freedom of speech is designed to protect, which chiefly concerns questions of political
and social and cultural relevance. A lot of the stuff I talk about on
this show. Right, So if now, there's certain things that are within
that ambit, certain things that are not me using potty language on the radio,
for example, is not within the ambit of the First Amendment, And
I don't have the same protection for saying it. If I come on here
and curse a bunch, the FCC will find power talk. That's but that's
censorship, Yeah, well, it's censorship around obscenity which is not necessarily protected
by the First Amendment. To the same extent that you know, me giving
my opinion on Joe Biden's policies is right. But it's a legal guarantee.
It's a kind of legal guarantee that I can't be prosecuted for the content of
what I'm trying to say about these topics. And if I am prosecuted or
subject to other kinds of government action adverse action, I can vindicate my rights
in court. Okay, So it's a kind of leg A right is a
kind of legal protection, a kind of legal guarantee that you can do certain
kinds of things without adverse consequences. It means I can own a gun without
the state confiscating it from me, or penalizing me, or taxing me,
or burdening me. Well a certain extent, maybe you can tax in certain
ways without taking too much adverse action against me. You can't quarter a British
soldier in my house. The good old Third Amendment. You can't unreasonably The
Fourth Amendment provides a right against unreasonable searches and seizure. Police officers can't come
in my house without a warrant. And if they try to do that,
then I have legal protections I can pursue. So a right, in its
most basic sense, is something that exists within the context of American law.
It's a guarantee within American law, and it's rooted either in the US Constitution
or the California Constitution, within federal statutory law or California statutory law. It's
a kind of guarantee, a legal guarantee against adverse action by the government against
me for doing X, Y or Z conduct or adverse action by private individuals.
You have a sort of right to You have a right to go to
businesses, to engage in businesses, engage with businesses as a customer. That
right cannot be fringed, infringed rather on the basis of you being an African
American. Okay, this was the whole revolution of the Civil Rights Acts that
basically you had private businesses shutting African Americans out of, you know, whole
sectors of cities and whole industries in various ways, huge restrictions on basic living
on the part of African Americans. You can't go to all these different grocery
stores, you can't go to these kinds of hotels. You can't go to
these kinds of restaurants. These are kind of basic essential services that allow people
to live and function and move around in society and Africa, Americans were sort
of shut out from a lot of them, a lot of these services and
a lot of parts of towns throughout the United States on the basis of nothing
else other than their skin color. And so the Civil Rights Acts forbade that.
So, no, you have a right to go to a you know,
to go to a grocery store and not be shut out from that service
purely on the basis of your skin color. Now you can be shut out
of a business on the basis of other things. No shoes, no shirt,
no service is a perfectly legal form of discrimination. You don't have the
right to go to a business with no shoes and no shirt and just expect
service. So a right is again it's a kind of guarantee from the government
that you can do something. But people use the word right to mean other
kinds of things that I think are a little bit more loosey goosey. I
think we start to use and I think we get into problems when we sort
of mix these two uses of these terms. Everyone has the right to an
education. Okay, well what does that mean? What exactly do you see
how it's kind of different there. I have a right against an unreasonable search.
That's a fairly concrete thing. You need a search warrant before you come
into my house. Okay, that's a very concrete thing. It's something that's
within the legal process. It's within the realm of legal processes. I can
appeal if a cop comes into my house and searches for things. You know
that there are certain circumstances in which a police officer, if he's got a
preponderance of the evidence indicating that someone went into a house, you know,
they see someone stab a guy and then run into a house, they don't
need a search warrant first before they go into the house and catch the guy
who's got the bloody knife. So there's an appeal process for that. But
it's a fairly concrete thing. I have a right to an education. Well,
that's a much more nebulous thing, right, What does that mean?
I have a right to an education if you purely just mean I can't be
hindered by the government from going to a school. Okay, But is when
you say people have a right to a good education. That's almost like a
positive You're guaranteeing some sort of positive thing, Especially when you use this language
of rights, which we in America believe to be like a very ironclad thing.
It's hard to say for a state, everyone has a right to a
good education. Okay, Well, if you go through Fresno Unified, for
example, my constant education punching bag, and you can't read or write by
the end of it, or you can't read it right very well, were
your rights infringed? Well, do you think you have the ability to sue
as a result? No, So what does that even mean? I think
Americans love the language of rights, but use the term in all kinds of
ways that are sort of loosey goosey, And that seems specifically to be what's
happening with a proposed ballot initiative. That's going to sound really nice, but
the practical implications of what it's going to mean, I think could be way
more far reaching. And it's the kind of thing that makes me hate California's
pure democracy systems, like the ballot initiative process. Should from the Sacramento Bee,
Should clean air and water be a fundamental human right California voters to decide.
In the Golden State, we pride ore This is a piece, an
opinion piece in the Fresno in the Sacramento be written by Terry Tamminin and James
Struck, who are former secretaries of the California Environmental Protection Agency. In the
Golden State, we pride ourselves on our future facing environmental values and our climate
leadership. We I mean you guys, the authors of this piece who ran
the California APA. Maybe, but I don't know that well. Most Californians
think that way anyway. At the same time, nearly one million residents of
California, primarily in disadvantaged community, are without access to clean drinking water,
and California cities such as Los Angeles, Long Beach and Fresno are burdened year
after year by some of the dirtiest, most polluted air in the nation.
The glaring duality underscores the failure of our current legal framework to ensure the fundamental
rights of all Californians to clean air, water, and a healthy environment.
It's time for a change. It's time for California to enshrine this right into
our state constitution. So will. I mean, this is and this is
the thing where we're going to say that anything we like that is good,
we're going to enshrine as a legal right within the state constitution. Does that
actually make sense? What does it mean to have a right to clean air?
I mean, yes, I think maybe a healthier way of understanding this
is that as human persons, we are owed certain kinds of goods on account
of our basic human dignity, which means that certain kinds of goods should be
respected in our regard. Every child conceived into the world should have a mom
and dad who loves them. Every child should get an education of some sort.
I think thinking about it in terms of these are things that people are
owed on account of being members of the human family. I think that's a
more sensible way of talking about it than a right. Well, we have
a constitutional right to you know, have two parents. Well okay, well
what if my mom's a druggie and my dad's a druggy and they place me
for adoption, or my dad is a druggie and leaves or abandons the family
and I only have my mom. Has my fundamental right been violated in such
a way that I can sue somebody that I can vindicate my rights in the
courts. Well, then we're talking about rights in two different senses. If
that's not the case. And I feel like what this is trying to do
is take something that, yes, it's a something that human beings are owed,
that human beings should have, which is the ability to grow up in
a clean environment. Yes, people should have that, but I think it's
a little bizarre to enshrine it within the state constitution. I think what this
is going to be. This is going to be framed as this is guaranteeing
a right to a clean environment for individuals, and really what it's going to
be is some kind of carbon emissions mandated limit on the state, on businesses,
on political on municipalities. Basically, this is going to become some kind
of carbon emissions tax or some kind of carbon emissions cap, or some kind
of environmental massive statewide environmental regulation. Because unless you're going to make it,
if it's not that, then it makes no sense to put it in the
state constitution. Okay, we don't vindicate like certain kinds of Again, children
have a right to to loving parents in the sense that that is something that
every human being should have. That is something every being human being is owed,
But we don't have a process for legally vindicating that right, that obligation
to people all the time. Again, if your dad walks out on you
and abandons his family, in many cases, you can't force that person to
come back into the home to take care of you the way it should be
you. Certainly you can't necessarily use the courts to accomplish that goal. People
are owed two parents, people should have two parents, but you can't necessarily
use the courts to vindicate that. People are owed a clean environment. But
how do you bend the courts to mandate that? How do you put that
in the state constitution? And what does that actually mean effectively once it's in
the state constitution. Well, I think what it's just going to mean is
a massive carbon limit, some kind of massive emissions limit on businesses. We're
going to dig into what this could mean in the next segment. This is
the John Girardi Show here on Power Talk. There's a proposed California state constitutional
amendment. It's working its way through the state legislature to guarantee for Californians,
quote, a right to a clean environment, to a healthy environment, rather
to clean air and water and a healthy environment. And you might think that
sounds really broad, that sounds really general, that sounds really vague. Yes,
it is broad, it is general, and it is vague. I've
got the actual text of this. So the way that constitutional amendments work in
California, there's a couple of different ways you can amend the California state Constitution.
And for those who need a refresher course, for our federal government,
the United States government, we have the Constitution of the United States, and
this is our foundational law. Any simple laws that are passed by Congress,
majority in the House, majority in the Senate, and the President signs it,
those laws have to be consistent with the US Constitution. So the US
Constitution is fundamental. It trumps any normal laws passed by Congress. Okay,
when the thirteenth Amendment was ratified, which abolished slavery in the United States,
well, any prior American law, any prior American laws that operated on the
assumption that slavery was okay and regulated slavery like this, and that all those
prior laws got wiped out. Why Well, because the thirteenth Amendment came into
effect. If the Constitution says not X. Everything that's said X beforehand is
wiped out. The constitution takes precedence over normal laws. The same is true
in California. We have the California State Constitution. California has a constitution just
like the federal government does in California. Then on top of that has normal
laws passed by the state legislature of California. A majority of the Assembly votes
for something, a majority of the state Senate votes for something, and the
governor signs it into law. So our normal laws passing California have to be
consistent with the California State Constitution. Now amending the California State Constitution, there
are a couple of different ways to do it, so adding new things into
the state Constitution. The method that this proposal is going through is it's getting
two thirds majority votes in the Assembly in the state Senate before being put on
and that automatically would qualify it for the ballot to be a ballot initiative voted
on by the voters of California. So this is an amendment to the California
Constitution, a proposed amendment to the California Constitution to say that the people should
This is the text that's going to be at it. The people shall have
a right to clean air and water and a healthy environment, considering the general
well being and other needs of the people. The principles inherent in the rights
recognized in this subdivision A shall serve as a guide to all branches of government
in the performance of their official duties. All branches of California government. The
rights recognized in some division A clean air, water, and a healthy environment
shall inure to all people in equal measure, and shall not be construed or
applied in a manner that is inconsistent with duly enacted laws of the State or
other rights set forth in this Constitution. Now, they Chamber of Commerce,
and I'm not like an unqualified fanboy for the cal Chamber points out that this
is a hugely broadly vaguely worded thing, and god knows how it's going to
be interpreted. And this is the problem with putting this, this American obsession
with calling everything a constitutional right, using the language of rights in all these
different ways. Yes, like people are owed, people should have clean air,
clean water, and good environment. But there's a difference between that and
something that's very concrete and actionable sort of negative protection like no unreasonable search and
seizure. You need a warrant before you search my house. So the Colchamber
of Commerce wrote enshrining into the state's constitution a general right to clean air and
clean water is unnecessary, and then go through all the different California environmental regulations
that are already on the books. It is therefore unclear what new substantive protections,
if any, this new constitutional right provides Californians that is not already being
afforded under existing local, state, and federal environmental laws and regulations. What
is clear, however, are unintended negative consequences resulting from the placement of such
rights in the state's constitution. More than a mere redundancy, it lays the
legal foundation to challenge virtually any state or local government infrastructure, energy procurement proposal,
or housing project on the basis that any one of them threatens they're new
and as yet undefined general right. And that's true. I mean it talks
about all branches of California government. And guess what. Municipal governments, city
governments, county governments, those are all just extent school districts, those are
all just extensions of state government, right local governments, municipal governments, county
governments and all that. Those only exist as creations and extensions of California government.
They don't have the same kind of independence from California state government that say,
you know, a state government has from the federal government. For example,
layering a constitutional amendment on top of the extensive matrix of existing laws undermines
their applicability and effectiveness in favor of an unworkable framework in which no growth would
become the only option. And that might be right. I mean, what
are we defining as clean air, clean water, and a healthy environment.
It doesn't say do we just go by existing California statutes. I don't know.
Seems seems like a kakamimi idea to me. Now, when we return,
I want to talk about how this is going to work and other problems
between the state constitution and statutes, how this actually relates to something we dealt
with and fighting against Proposition one, which is the big abortion amendment that's next
on the John Girardi Show. There's this proposed ballot initiative in California to guarantee
as a California state constitutional right, a constitutional right to clean air, clean
water, and a quote healthy environment. That's all it says. It doesn't
define anything any more precisely than that, and so people are asking, well,
well, this seems like a bad idea to put this in the state
constitution when we have no actual definition for it. Now, the opinion piece
in the Sacramento be about this possible ballot initiative that we'll be facing. And
so just so you guys are aware of the process, the state legislature is
voting to have this be a proposed ballot initiative that the voters of California would
vote for, I think this November, and if the voters approve it,
it would become enshrined in the California State Constitution. Now, so that's the
process this would go under. But again, what does this bill, what
does this proposed amendment to the California Constitution say? This is literally all it
says. The people shall have a right to clean air and water and a
healthy environment, considering the general well being and other needs of the people.
These principles shall serve as a guide to all branches of government in the performance
of their official duties. That is more or less all it says. Clean
air and water, healthy environment. Do we have a definition of that?
Do we have a definition based on emissions and particulate you know, counts or
whatever, what constitutes clean air or clean water? Do we have any definitions
about how this interfaces with existing California state laws regulating emissions, cap and trade,
all you know, environmental impact reports, and any assessment of how that
relates to the existing layer upon layer upon layer of California law that already regulates
the environment. No, nothing, nothing, It's just there. Is it
guaranteed something more than existing California statutes? Doesn't? I don't know. Does
it? Does it mandate? Does it mandate something equal to existing California statutes?
Do we do? We We're not changing at all. So to try
to read these tea leaves, all I've got so far is this op ed
in the Sacramento Be in favor of this constitutional amendment which I've been talking about
throughout the show again, written by Terry Tammanan and James Strock, who are
former heads of the California Environmental Protection Agency, the California state version of the
EPA. Now they write that here's what they write, opposition to the proposed
amendment has begun to line up. This is the two former heads of the
California EPA writing this. The California Chamber of Commerce has placed it on its
job killer list, arguing that existing environmental regulations are efficient to protect California's kind
of misstates what the California and Chamber of Commerce was saying. What they were
saying is we already have a ton of environmental regulation and it's not clear what
this does on top of everything that's already on the books. This is entirely
vague, and it just leaves every any kind of development or growth subject to
questioning as to whether it infringes on this right to clean air, clean water,
and healthy environment. That's actually what the California Chamber of Commerce said,
but let's gloss past that. Here's what these two former heads of the California
EPAS say. The reality is that these regulations California's existing exhaustive regime of environmental
law, all of California environmental law, the extensive ambitious programs of and eliminating
all non electric vehicles by twenty thirty five, Cap and Trade sequa, which
allows random yahoos to sue for any building development for almost any building development.
All these layer upon layer upon layer of California environmental law, these regulations,
right, these two former heads of the California EPA are often inadequate, under
enforced, and subject to political maneuvering. By enshrining environmental rights in our state
constitution, we create a firm foundation upon which future environmental policies and regulations can
be built. So what does that mean? Again? This question is if
we're going to put a right to clean air, clean water, and how
health the environment, put that in our state constitution, what does that do
to the law on the ground day in and day out in California. Does
that mean that existing California laws are actually not enough that we have a new
standard we have to live up to. Well, they're sort of talking out
of both sides of their mouth, these former heads of the California EPA.
On the one hand, they're saying, our California existing environmental laws are often
inadequate, often under enforced, often subject to political maneuvering. So by putting
environmental rights in our state constitution, we create a firm found day So let
me pause before I get to the next point. If our existing California law
is inadequate. You're proposing this as something to enhance it. Right, If
you're arguing we need to do this because existing California environmental law is inadequate,
then you're saying this very generally worded thing that we're going to put in the
California State Constitution is enforcing some new and higher standards. But they then say,
by enshrining environmental rights in our state constitution, we create a firm foundation
upon which future environmental policies and regulations can be built. So what's going to
guide us is future environmental policies and regulations. That's the more specific thing.
And how does it give us a more firm foundation? All right? The
state of California can regulate the environment as it pleases. It can already do
that. There's nothing about putting this in the state constitution that strengthens or weakens
the ability of the State of California to pass environmental laws and relevantly empowered executive
agencies to issue environmental regulations. They can still do that, Okay. State
governments have the ability to regulate the environment. That's not in question. Passing
this constitutional amendment doesn't change that. So it's like they're kind of talking out
of both but they're sort of talking out of both sides of their mouth.
It creates a firm foundation upon which future environmental policies and regulations can be built.
So proponents of this are going to have to try to get around the
obvious question of you're putting this really broadly worded thing into the state constitution and
it's going to cause massive uncertainty every time a municipality wants to approve of a
big building project. Is the state going to be able to swoop in and
stop it on the grounds that it violates people's rights to a clean environment,
to a healthy environment. And probably, I would imagine proponents of this will
say no, no, no, no, no, no, no no
no, it's not changing anything on the ground level. It's just providing principles
for future future action. Now that doesn't make sense, and frankly, it
reminds me of some of the debates we had over Proposition one, which was
passed in twenty twenty two. This was the big abortion amendment, which said
that abortion is now the right to an abortion is a fundamental right in California
law. And so here's the problem. I'll connect this, I promise I
won't just make this an abortion segment. Proposition one put a very broadly worded
right to abortion into the California state Constitution. It just says the state cannot
interfere with a woman's right to an abortion. No qualification, no qualification about
the kind of abortion, the nature of abortion. Nothing. State cannot interfere
with a women's right to an abortion. To sorry a person's right, because
California thinks that women are not the only people who can have abortions, all
right, But the problem is, existing California statutory law governing abortion says that
abortions after viability are only legal if the doctor deems them to be a threat
to the mother's health. So that's in the California statute that was passed by
a majority of the Assembly, majority of the state Senate, signed by a
governor. That's on the books as a normal California law. So people then
ask, well, if you're putting a broader right to abortion into the state
constitution, does that mean that we now have legal abortion completely free and clear
in the third trimester? That that old restriction on post viability abortions and viability
is around twenty two, twenty three, twenty four weeks. It's the point
in pregnancy where a child can survive delivery kind of varies kid to kid.
If you're putting into the state constitution, which is supreme, which is our
foundational law in the state of California, which which trumps any prior existing normal
laws passed as a statute by the Assembly, the Senate, and the governor.
If you're putting into the California State Constitution a broader protection, then are
you legalizing third trimester abortion? Now, the politicians who pushed that know that
third trimester abortion is not popular even in California, and so they say no,
no, no, no, no no, no existing law holds.
Well, that makes no sense. If your statutory right is narrower, but
your constitutional guarantee is broader, then the constitutional guarante Trump's So, I think,
what with this environmental constitutional amendment, this proposed constitutional amendment for our California
State Constitution to guarantee in very broad terms that everyone has a right to clean
air, clean up water, and a healthy environment end quote. That's an
enormously broad right. It's much broader than any of the specific environmental laws and
regulations that are on the books that were passed by the state legislature or authorized
by state regulators. So what's going to control. The constitutional amendment controls the
California state constitution. If it's guaranteeing something bigger then the specific guarantees of California
statutes, then that's going to control. And I agree with the California Chamber
of Commerce on this. If we pass this some big, huge broad right
to clean air, clean water, and a healthy environment. I want people
to have clean air. I want people to have clean water. I want
people to have a healthy environment. But guess what, those terms are subject
to very different interpretations by different people. And I think it's going to lead
to any development in this state, which, by the way, we desperately
need. We desperately need more housing. I don't know how we can talk
out of one side of our mouth about the desperate need for more housing.
But at the same time past this wildly over broad measure guaranteeing clean air,
clean water, healthy environment, where now any proposed housing could be subject to
Oh what it threatens my right to the construction and emissions that it's going to
cause. It's going to threaten the right of people in this community to a
quote healthy environment under some vaguely, broadly determined criteria that as yet we don't
have. Don't vote for broad vague general constitutional amendments. It's a bad idea,
and I almost guarantee this stupid thing's going to pass, because who wants
to vote against clean air, clean water, and a healthy environment. When
we return the Hunter Biden conviction and just the general thought about whether justice is
really served here next on the John Girardi Show, Hunter Biden got convicted of
his gun crimes, and there's this attitude among Democrats of like, see how
much better Joe Biden is than Donald Trump. Here? Donald Trump is calling
the judicial process rigged, and Joe Biden did nothing to interfere with it.
Joe Biden was clean and pure as a wind driven Snow's see, there's no
special treatment for the Biden's. He's not pardoning his son, all right.
And there's sort of this attitude that Hunter Biden received fair justice, or even
unfairly over zealous justice against himself. Let's be real here, that is not
true. The federal prosecutor in this case tried with might and main to wipe
all of Hunter Biden's crimes away. They were pursuing a plea deal to the
bitter end that would have reduced all of Hunter's millions and millions and millions and
millions of dollars of unpaid taxes, his gun crimes, everything down to a
couple of misdemeanors for which he wouldn't do any jail time. And it was
such a ridiculous deal that the judge, the federal judge in this case,
shut it down. When that collapsed and the prosecutor was revealed for being as
wildly duplicitous as he was, he was sort of forced then to file these
gun charges against Hunter Biden, but had the statute of limitations pass on some
of his far more serious tax crimes. No, Hunter Biden did not really
get totally fair justice here. He deserved worse. That'll do it for John
Girardi Show, See you next time on Power Talk