A DREAM That Is All Wet

Pictured are young immigrants paddling their way toward American citizenship (or at least toward Obama-ordered two years of amnesty). These are the DREAMers whom Obama has exempted from any immigration enforcement and whom he has granted the easy road (or river) to permanent residence and citizenship. Don't ask, don't tell is back. If an illegal immigrant says he's a DREAMer, then he is, period.

President Obama has ignored the Constitution and slapped Congress in the face. Though Congress rejected the so-called DREAM Act, Obama has, by executive order, implemented a major portion of that rejected act. For those who have dried off from their swim to citizenship, DREAM workshops have already been set up in most of America's major cities. The workshops help the applicants fill out the forms from DHS. In Chicago and Los Angeles, the crowds of DREAMers were so great that additional workshops designed to teach illegals how to become legal had to be set up. The course teaches them how to avoid the pitfalls of admitting they're here illegally under any definition, including but not limited to claiming they are DREAMers without having to explain how they fit the all-new and improved definition.

The DREAM program is open to all illegals between the ages of fifteen and thirty-one who entered the country before they were age sixteen and have lived here for at least five years. The application form requires no proof. Just say you fit, and you do. You can say I'm a DREAMer, but I'm not the only one. In fact the estimates of those who would semi-legitimately fit into the unconstitutional parameters is between 1.7 million and 3 million. It doesn't take a genius or a demographer to figure out that number will undoubtedly double or triple almost overnight as more illegals catch onto the scam.

Several TV and newspaper reports indicate that the workshops have told the illegals that if the Republicans win in November, their executive order amnesty would be revoked. Well, I certainly hope they're right. But they also know that the thing is that once that semi-legal status has been established, it will be well-nigh impossible to undo it that quickly, if it can be undone at all. So, sign 'em up! The executive order, aka The Democratic Voter Registration Project, throws a huge monkey wrench into the machinery of genuine comprehensive immigration reform.

There simply can't be any question that Obama's order is just another Democratic tactic for influencing the outcome of the presidential/congressional elections. Once young Juan and young Juanita are signed up for the program, Hispanics would take serious umbrage at that legal status being revoked. Convince enough Hispanics that this is going to happen and there could be the double benefit for the Democrats of illegal voting, and voting by angry legal Hispanic voters who encouraged their friends and relatives to come here illegally in the first place. The DREAM Act and the DREAM order are nightmares.

And not to put too fine a point on it, the order applies not only to illegals already in the United States, but also to those attempting to cross into the country. Under the Obama order, Border Agents are no longer allowed to arrest or detain those caught entering the country illegally once the magic word “DREAMer” has been pronounced, in Spanish or English. Are you pissed off yet?

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Random Thoughts On Voting

Bev's article yesterday got me thinking about voting itself, the importance of it, and the degrading of it. I have to go back into fuddy-duddy mode to discuss my feelings about the current pathetic state of voter participation. And much of this is in light of the Holder Justice Department's twisting of the Voting Rights Act of 1965.

When I first got the vote (it was age 21 back then), a voter actually had to get off his dead behind and go to the polling place. Absentee ballots were difficult to obtain, and required sufficient affidavits of absence to satisfy election standards which were quite restrictive as to why the voter couldn't possibly get to his or her local polling place. The Founders risked their lives, fortunes and sacred honor to make it possible for all eligible citizens to vote. The Civil War was the final act in making all men equal in voting qualification. The Fourteenth Amendment established the universal right of all American men to vote. The final act toward universality of voting was the Nineteenth Amendment which very belatedly recognized that the Founders had left out half the population because of their sex.

Fighting the Revolution and the Civil War were deadly serious matters. Those who fought in either wanted the right to vote to be universal. They didn't say anything about it being easy. In fact, the lazy, mentally incompetent, and uncaring were discouraged from voting based on the moderate difficulty of taking time off to go to the polls and the further ability to read or comprehend sufficiently to be able to discern what was on the ballot. It wasn't a perfect system, but the Constitution guarantees fair elections, not perfect elections.

Fast forward to today's ridiculous ease of voting and voting fraud. We have high speed computers to count votes, but restrictions on using those same computers for maintaining current and honest voter rolls. I plead guilty to voting by mail, another stupid idea that has been in place for a couple of decades now. Not absentee (with legitimate reason for not being able to vote in person on election day at the local polling place), but “by mail.” The possibilities of voter fraud with mail-in votes are legion, but why have it in the first place? Oh, because it makes voting easier. I would add “and therefore less valuable.” The best things in political life are not free.

I first registered by mail because at election time I was still recovering from major surgery and couldn't make the walk to the polls. I didn't intend it to be permanent, but they just made it so damned easy. And I've been doing it ever since. Today, if I had to go to the “local” polling place, I would have to drive thirty-five minutes on dirt and mountain roads to get there. My mailbox is less than a mile away, so I continue to vote by mail. But what if vote-by-mail were eliminated? Then I'd bloody well make the drive. And if the car didn't work, I'd rig up a carriage and have Niko the Wonder Dog pull me to the polls. Under which of those scenarios does my vote seem most valuable—particularly to me?

Furthermore, if I had to go all that way to the polling place, I would probably spend a lot more time reviewing the most current facts and information. As it is, I have my prejudices like everyone else, so I tend to vote as soon as I receive the ballot in the mail to “get it out of the way so I won't forget it.” If my candidate was found to be an al Qaeda agent three days before the election, there's no provision for me to change my vote from four weeks earlier.

The left constantly emphasizes ease of voting over fairness or legitimacy of voting. Furthermore, they are now using it as an excuse to perpetuate voter fraud and party loyalty. Voter photo ID requirements are being savagely attacked as racist by the Holder Justice Department because it “suppresses” minority voting. Aw hooey! It does nothing of the kind. Fortunately, he can only wield this legal hatchet in Southern states affected by the Voting Rights Act of 1965, a law as useful to today's realities as the Missouri Compromise.

The irony is that Holder is unintentionally proclaiming that the people he purports to be protecting are either too stupid or too lazy to get voter photo ID (or both). He gave a speech at the NAACP proclaiming how difficult the racists make it for minorities to get a photo ID. He did so at a meeting that required valid photo ID to get in. And like most Obamists and other race-baiters, he lied.

Just how difficult is it to get a valid photo ID to vote? Well, if you can't afford one, they'll give it to you for free. If you can't make it to the DMV or whatever department issues the ID, they will make provisions to transport you there or in some states they will come to you. If you're not smart enough to know that, you're not smart enough to be voting. In California, you can drive up to the DMV, get your driver's license (a valid photo ID), then drive around the building once and set up your voter registration (presumably, even if you're an illegal immigrant). How much easier could it be?

Well, it's too damned easy. Men and women fought, bled and died to assure the right to vote. Why is it necessary to make voting as easy as ordering a NetFlix movie online? Who in his right mind thinks that everyone should vote? All the ease of voting does is guarantee that the lazy, shiftless and government-dependent can make sure their freebies and lives of ease don't end. Sure, fraud is a big issue, and more of it keeps turning up as the Obamists deny there is any at all. But my gripe is with people who think that one of our most valuable rights should have no costs. If it's too easy and too facile, those exercising it will hold it in contempt.

Eric Holder and his race-baiting friends have now gone so far as to claim that valid photo ID is tantamount to the poll tax. Leave it to the “progressive” Democrats to haul out an issue which died almost five decades ago. As for my opinion, if you're too lazy, too stupid, or too ugly to get a photo ID and get up off the couch to go to the polling station, then stay home and wait for your government assistance check. We don't need you, and the Republic will fare far better without your ignorant vote.

Voters in Philadelphia can ignore this rant. They will have the poll protection of the New Black Panther Party and the ever-vigilant Holder Justice Department to assure ease of voting.
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Some Final Thoughts On Obamacare

I’m taking the week off until next Monday. But before I go, here are my final thoughts on the ObamaCare ruling. Basically, while this is a legal disaster for the country, I think politically this is a very good thing. Also, by way of a bonus, at the end of this article, I’ve included some links to the CommentaramaCare proposal which outlines the reform we really need.

● The Supreme Court Fails: Legally speaking, the ObamaCare decision is horrible. Some conservatives have latched onto the fact Roberts made a lot of great points about how the Commerce Clause and the Necessary and Proper Clause don’t extend nearly as far as the statist would have you believe. Sure, that’s nice. BUT then he turns right around and opens an unlimited window for Congress to use its tax powers to do anything! There may eventually be limits on this power, but as it stands right now, this is one of the five or six biggest power grabs in Constitutional history.

It is also troubling that this decision is based on verbal semantics: punishing someone for non-compliance is not the same thing as forcing someone to comply. Really?! That’s nonsense! That’s a distinction without a difference -- a verbal game -- and it’s disturbing that the Supreme Court would accept this double-speak as reasoning. This will lead to a whole new world of control once Congress realizes it can just “tax” you into compliance without ever triggering the limits on its power to “punish.” That’s troubling.

● The Conservative Opportunity: Politically, however, this is a very different story. Politically, I think this decision is a Godsend for two reasons.

First, this decision will destroy the Democrats, and not just Obama. Human nature tells us that people forgive and forget misbehavior if it stops before the negative consequences kick in. So long as people assumed the Supreme Court would rein in ObamaCare, the public was very likely to forgive the Democrats and consider this a non-issues. Now that assumption is gone, and this decision revives the possibility of negative consequences. That will wake up the public and end its forgiving mood. Indeed, I would suspect this will endanger another 3-5 Democratic Senators in flyover country and could ultimately give us another 2-3 seats. And while I don’t think that will give us enough seats in the Senate to overcome a filibuster, it will be the difference between a majority (52-53 seats) and a solid majority (54-57 seats), which should be all we need under the new scorched-earth Senate.

Secondly, I think this ruling saved us from a disaster. If the Supreme Court had struck down the mandate, but left the rest, I have no doubt the Republicans would have declared victory and just moved on. That would have left a plethora of horrible things ensconced in law, including trillions in taxes, dirty deals with drug companies, anti-competitive requirements on hospitals and doctors, new entitlements, the unfunded expansion of Medicare, the creation of these insurance exchanges, etc. In effect, the least damaging part of the law would have been struck down and the other 99% of the harm would have remained. Now the Republicans will need to address the bill itself, and the pressure will be to repeal and replace the whole thing. That means they will actually need to fix much of this. That is the real reason this decision may ultimately prove to be a saving moment for the Republic, because it means the Republicans can’t ignore the real problems.

● Repealing Stupidity: Repealing ObamaCare should be simple. Passing it by reconciliation means that by definition it can be repealed by reconciliation. And reconciliation only needs 51 votes. Naturally, the Democrats (and some weak Republicans) are whining that somehow the bill can’t be repealed by reconciliation, but that’s nonsense.

● Building A New Crisis: There is an economic crisis built into ObamaCare and it will be interesting to see what happens. The law expands Medicaid to the point that it will shatter state budgets. But states don’t need to sign up for this. Indeed, the Supreme Court ruled that the states can refuse to expand Medicaid as the bill requires, and the Federal government cannot withdraw Medicaid funding if the state so chooses -- it can only withhold the additional funds intended to cover that expansion.

But just because states don’t need to sign up, doesn’t mean they are smart enough to refuse. A few Republican governors have said they won’t sign up, but most see this more as an opportunity to negotiate a lot of freedom from the requirements of Medicaid. It will be interesting to see what they obtain. The problem, however, lies with the Democratic states. . . as always. These idiots are rushing to sign up as a show of support. This will result in a dramatic increase of their Medicaid costs, which will bust their budgets. At first, the federal government funds this expansion, but within a couple years, that subsidy vanishes. That’s when states like California and New York will find themselves in budget hell (as if they weren’t already). Without federal money, I don’t see this as sustainable, but how will they cut off so many people once they sign them up? Watch out if you live in a liberal state which accepts this expansion!

● Death to the Middle Class: Conservative economist and Senior Economics Writer for the Wall Street Journal, Stephen Moore, just made an interesting statement. He claims that 75% of the cost of ObamaCare will fall on the middle class -- people making less than $125,000 per year. That’s not at all surprising because that’s who always pays for these programs. Still, this is unwelcome news for a middle class which has been hit with falling incomes, falling asset values, falling home prices, massive inflation, an ever-higher tax burden, and fewer job prospects. At some point, this rubber band will break.

Conclusion

To sum up my thoughts, this bill is a disaster. It will crush the stupid states, it will crush the middle class. It will damage our healthcare system a lot. The Supreme Court’s ruling has damaged our Constitution. BUT this will wake up the public and will help to finish off the Democrats. It will also force the Republicans to act. In the end, this decision may prove to be the moment which spurred the Republicans to actually fix the healthcare crisis, and thereby save the country. Let’s hope.


Finally, by popular demand, here are some links for you to consider:

First, here’s what’s wrong with our healthcare system: Out of Control Costs, Out-of-Control Costs II, Access, and Quality Control Problems.

Secondly, we have a report card on why ObamaCare fails to address these problems: FailureCare.

Lastly, we have CommentaramaCare, a proposal on how the system should be fixed: Com-Care Tort Reform, Com-Care Medical Reforms, Com-Care Coverage Reform, and Com-Care Summarized and Priced.

Have a happy and free Fourth everyone!

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Pelosi Loves Judicial Review

We’ve been tossing around the meaning of the questions and answers during oral argument at the Supreme Court in the matter of Obamacare. Some of us are feeling fairly confident that the high court might find the entirety of the law unconstitutional. Others of us feel that the insurance purchase mandate may go, leaving everything else temporarily intact. But whatever the result, we have at least one thing that should allow us to rest a bit easier. Nancy Pelosi says the Democrats will accept the ruling.

Now I gotta tell ya, in the words of Vice President Joe Biden, this is a big f-ing deal. San Fran Nan speaks for the Democrats in the House as well as the People’s Republic of San Francisco. She has now put our minds at rest by stating that her team isn’t going to grab pitchforks and torches and head for the Supreme Court building. Thank God, they’re not going to turn the premises into Red Square. And of course I always take Nancy’s word for her respect for the Constitution.

Says the Bay Area genius: “Democrats in the Congress have long believed in judicial review. We respect the third branch of government and the role they play under the Constitution, and that is a role to have the opportunity to review laws passed by Congress. This is part of our constitutional process and we respect it.” Now isn’t that a relief? Of course that made me wonder what she meant by “long believed.” Is she saying there’s a time when Democrats didn’t believe in judicial review? The lady doth protest too much, methinks. Oh, well, let’s move on.

I must admit that I find it a bit odd that the leader of a major Congressional party would find it necessary at all to announce that her faction would honor a Supreme Court decision. Isn’t that pretty much what everyone has agreed on since Marbury v. Madison back in 1803? So we’ll have to wait to see what she really means. Considering the “respect” that the Democrats in Congress and have shown for the Constitution during my lifetime, I’m going to sleep with one eye open.

Given that Pelosi (and more recently the attorney arguing in favor of Obamacare at the Supreme Court) stated that the health care law was actually about freedom, is she saying that she has no problem obeying an order that takes freedom away? Yeah, I know. A foolish consistency is the hobgoblin of little minds, but when was the last time you had to deal with anyone with a mind smaller than Pelosi’s?
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Stopping the Ghost of Mussolini

by The Individualist

The purpose of this article is to make the case for an amendment to the constitution that I will label the anti-fascism amendment.

The Spirit of the Anti-Fascism Amendment

The greatest danger of Fascism is governmental control of the means of production. This is Benito Mussolini’s Third Way between Capitalism and Socialism, where the machine of industry is not undone but rather the ownership of that machine is transferred to a national government. This is accomplished through byzantine regulations or the appropriation of the equity of industrial entities, most notably the transfer of ownership of corporate stock to the government. This grants the government the ability to control the means of production, even as the government retains its traditional role of watchdog policing disputes.

The problem with combining these two functions is something called “Segregation of Duties”. When one has the power to control an asset, to record the use of that asset and the authority to approve its use, then there is a potential for abuse and fraud and a breakdown of controls. When governments combine these powers over industry with a takeover of social services, the potential for abuse can lead to dictatorial control. The Anti-Fascism Amendment I am proposing is intended to stop our government from being able to exercise this type of power.

Thus, first, I propose the following:

Neither the federal government nor any state or local government may ever hold any ownership interest in any business or partnership, including for-profit and nonprofit corporations.

With the assignment of US Senators from state appointments to general elections, we began to move power from the states to the federal government. The federal government expanded its reach into what are now "entitlement programs". This creates a "segregation of duties" issue similar to the one caused by government ownership of equity, but more subtle. Government operation of these services by using regulation to override the authority of the states, means that issues with how they are managed are less likely to be corrected by the same government that is responsible for them. Since Federal courts and agencies are the auditors who regulate and the final arbiter of disputes there is a conflict when the federal government manages the operations.

Since these “entitlements” have become an accepted part of our culture and likely can’t be removed, the fix as I see it is to divorce the regulation and decision making from the federal government. I propose the following:

All monies for programs or services that would violate the strict interpretation of the tenth amendment because they cannot be justified as a power granted by the US Constitution must be decided upon by state authority. Each state will appoint one financial expert answerable to that states comptroller’s office and their decision making authority will be subject to the executive and legislative branches of each state as deemed appropriate by state authorizes. These individuals will make up a Commission located in Kansas.

Monies appropriated for these programs will be sent directly to the Kansas Commission. The federal government may only define the purpose of the funds. All matters as to program operation and the distribution of funds shall be the express authority of the Kansas Commission. The Kansas commission must provide the rules and procedures for these programs to the federal government. The federal government will then have the duty to audit those operational procedures and financial results in accordance with the rules and procedures provided by the commission.

Fascism without Godwin’s Law

Godwin’s law states that any internet discussion will eventually devolve to a comparison to Hitler. I wish to ignore Hitler and concentrate on Fascism’s father Benito Mussolini. In his book Liberal Fascism, Jonah Goldberg places Mussolini as Fascism’s philosophical father. Fascism as an economic philosophy was based off of Corporatism which is an offshoot of syndicalism. These were ideologies which centered around worker’s unions or syndicates controlling corporations and businesses.

Many label Fascism as “rightwing” because the fascists were at odds with the communists for the control of Socialism. Both ideologies support dictatorial collectivism in the name of achieving a utopian dream. Conservatism in America is based on the classical liberalism of Jean Baptiste Say and Thomas Malthus. These are the philosophies of the US Constitution: Free Markets, Limited Government, Constitutional Republics, the regard for Property rights and Individual Liberty. Fascism is none of these things.

"There is no security of property, where a despotic authority can possess itself of the property of the subject against his consent. Neither is there such security, where the consent is merely nominal and delusive."

-Jean-Baptiste Say, A Treatise on Political Economy, 1803

Compare this with the following quote from Benito Mussolini:

“The corporate State considers that private enterprise in the sphere of production is the most effective and useful instrument in the interest of the nation. In view of the fact that private organization of production is a function of national concern, the organizer of the enterprise is responsible to the State for the direction given to production.”

–Benito Mussolini

Mussolini believed in Totalitarian control and a command economy. He achieved this goal without destroying corporations. However they were directed by the state and thus economies were planned. This article from the Library for Economic Liberty explains it very well (link). Thus, Fascism is promoted when a single state power is given control over the institutions that run our lives. That control can be in the form of regulation or in state ownership. The end is the same either way, it will be government bureaucrats who make life choices for the individual.

Can I get a Trade in on my New Deal?

Prior to the New Deal this issue was a limited one since the federal government controlled much less of the social services provided. Every day social services and charities were governed only when necessary by the state and local governments As the New Deal expanded to the Great Society, the government slowly crept into the cradle to the grave socialism.

Roosevelt enacted Social Security in 1935 and Johnson enacted Medicare in 1965. Fannie Mae started in 1938. Confiscatory income tax rates up 90% were put in place to pay for these programs. The New Deal started the meme that there were “things the government should provide,” which is the basis for justifying entitlements. With the encroachment of entitlements paid by the government, the federal bureaucracy saw fit to control how the funds were spent and Federal usurpation of power began. I truly believe in my gut that this change in the zeitgeist of Washington started with the advent of Roosevelt’s New Deal.

A Funny Thing Happened to My Freedom when I let Others Secure it for me

“The general will rules in society as the private will governs each separate individual."

Maximilien Robespierre

“Liberty, equality, fraternity, or death; the last, much the easiest to bestow, O Guillotine!”

Charles Dickens

Carl Sagan was an atheist because he thought that there was no God based on rational thought. In the French Revolution high minded individuals rejected God to revolt at the notion that men had a higher calling. These kinds of Atheists reject the idea of God because they see Man and thus themselves as the preeminent authority. To those who are ambitious and want power, a belief in a Creator that judges men is nothing more than a road block to power. Fascism with its totalitarian control will be the vehicle of choice for people who harbor these ambitions in their heart.

We have seen our government take stock in banks and auto industries and fund entities like Fannie Mae and Solyndra. At Gibson Guitar the government walks in, accuses them of violating Indian laws though India sees no violation, and absconds with their inventory. In the French Revolution, an unscrupulous individual named Fabre D ’Englantine ingratiated himself with the Jacobins and used similar tactics to take the estates of the “evil rich” by accusations to the Counsel of Twelve that sent merchants to the guillotine. Vive la révolution!

When a private corporation makes a mistake the government is first to chastise the leaders of the company and to enact penalties for wrongdoing. Agencies dutifully report to a congress, eager to gain a political payday appearing to protect voter’s interests. When a government sponsored entity makes similar mistakes the same politicians will obfuscate the issue to avoid the political fallout of what is Congress’s responsibility.

Giving Congress and bureaucrats the kind of control over industry, social services and government which economic Fascism trumpets and heralds, and which government has been slowly adopting, creates the justification for fraud in the mindset of politics. This is the best argument that I can come up with to try to explain it. Please remember these two things:

“The government cannot honestly regulate what it owns.”

“A Fascist Economy attracts Jacobins and brings the Terror.”

Conclusion

We must not allow the federal government to own or control industries or companies within industries. And when federal funding programs are necessary, that spending should be made through an independent National Commission answering to representatives of each state. Otherwise, we invite economic Fascism, and once economic Fascism takes hold, unlimited power and corruption follows, which destroys freedom. The amendments I propose are my modest attempt to answer that issue.

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Poor Backwards America

Since Justice Ruth Bader Ginsburg told Egyptian audiences in Cairo that nations should use models of government other than the United States Constitution for their new constitutions, a small backlash has begun to grow larger. Ginsburg prefers South Africa’s constitution (South Africa’s?!), or the Canadian basic document which contains no less than eight specific prohibitions on freedom of speech and religion.

Letting no grass grow under its feet, Politico wrote a one-sided “news” article on the subject seemingly supporting Ginsburg’s view. The Politico article is entitled: “Study: Constitution in Decline,” and takes its impetus from a study done by David S. Law and Mila Versteeg entitled: “The Declining Influence of the United States Constitution.” The study was prepared for Washington University in St. Louis, and published in the New York University Law Review. To start with, there is a substantial difference between the Constitution in decline and the decline in influence of the American Constitution overseas. But I can’t disagree with the former, and the latter is a simple fact. Citing genuine statistics, the study concludes that “the US Constitution appears to be losing its appeal as a model for constitutional drafters everywhere.”

The authors looked at 729 constitutions adopted by 188 different countries from 1946 to 2006. They found that the influence of the US Constitution peaked in the 1990s at the end of the Cold War, then declined rapidly. This seems to be counterintuitive, but the statistics hold up.

There are many reasons why this might be true. The most obvious is the misplaced emphasis on “human rights” over individual rights. This is at least partially understandable. Many of the nations adopting new constitutions have little or no experience with self-rule, freedom, or the concept of ordered liberty. They are products of either the end of colonialism or the end of oppressive dictatorships. The siren song of “human rights” makes considerable sense taken in that context.

But most of these nations also have little experience with the ideals of private property ownership, contracts, and the rule of law rather than of men. Egypt and possibly Syria would be prime examples. Get rid of that nasty military dictator, replace him with democracy, and replace one-man rule with the goal of one man, one vote, one time. Egypt is quickly becoming openly hostile to America and its institutions, and its constitution is likely to look a lot more like the Koran than the US Constitution.

Another reason which hits closer to home is the activity of the “progressives” who have, starting with Woodrow Wilson, considered the Constitution to be a roadblock in the way of gross social experimentation and central government control of daily affairs. Ginsburg’s remarks bear that out. And shortly after Ginsburg made those remarks on foreign soil, Barack Obama followed up with a political speech demeaning the Constitution as being so creaky that it was impeding his efforts to fundamentally transform America.

With a few notable exceptions, administrations of both political parties have followed the liberal progression from self-government and the rule of law to government by decree and disrespect for the separation of powers so beautifully laid out in the Constitution. The prerogatives of Congress have been overcome by executive orders and bureaucratic diktats from the executive branch, all in derogation of the specific ground rules of the Constitution.

Another (perhaps minor) factor is the very recent use of foreign law in Supreme Court decisions. Foreign law has always been an element of court decisions where international treaties are involved. But even then, the Supreme Court has often interpreted treaties which are not self-actuating solely by use of American law and the Constitution. Lately, the four liberal members of the US Supreme Court have joined with a swing vote to render decisions citing foreign law that quote air-fairy “fundamental human rights.” The favor is not being returned. Foreign courts cite American constitutional decisions at a rapidly decreasing rate.

And finally, there’s the false argument that (in the words of the study): “No evolutionary process favors a specimen that is frozen in time. At least some of the responsibility for the declining global appeal of American Constitutionalism lies with the static character of the Constitution itself.” That is the argument of the intelligentsia, but the booboisie picks it up quickly.

The arguments include “the Constitution provided for slavery” (which it didn't) and “the Constitution denied women the right to vote.” Those arguments forget a fundamental fact. The Constitution is a bedrock document, and changing it was made purposely difficult. But it is not static, nor is it frozen in time. Those things which the original document got “wrong” or didn’t address were corrected or addressed in the Bill of Rights and all the subsequent amendments. When citing the Constitution, it is unfair and just plain wrong to refer only to the original document. The Constitution, as amended, is an integrated document balancing multiple rights with multiple restraints.

Simply put, as the Founders well recognized, the Constitution provides for the maximum amount of freedom without surrender to the will of temporary majorities. That latter concept is misunderstood throughout the world, and our indigenous left plays it for all it’s worth. Any document which prevents a nation from exercising what may seem to be “the will of the people” (on any given day) will be unpopular in nations which desire pure democracy—a concept which has failed every time it has ever been tried.

Anti-Constitutional, pro-democracy advocates should read history. The Founders certainly did. And their Republic, no thanks to progressive administrations, has stood the test of time since the proclamation of the Bill of Rights. But can it survive Barack Obama and Ruth Bader Ginsburg? Why should fledgling nations respect our Constitution when a sitting Supreme Court justice and our Chief Executive Officer don’t?
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Look Into My Eyes And Believe

This past week, Attorney General Eric Holder appeared again before the House Oversight Committee. During that hearing, he attempted to hypnotize the Republican majority members into ignoring the 500 pound gorilla in the room (Operation Fast and Furious) and instead to concentrate on Holder’s many accomplishments in office.

This was a new tactic for Holder, since mounting evidence seemed to disprove his claim that he knew nothing about the operation. Apparently, Republicans are not highly-susceptible to the new Mesmer’s intense gaze. Rep. Ann Buerdle (R-New York) chose instead to produce a video of the earlier testimony of the family of murdered Border Agent Brian Terry. Terry was shot down by Mexican cartel members using weapons purchased during the Fast and Furious fiasco.

Buerdle simply couldn’t be charmed by Holder’s hypnotic eyes and sleep-inducing voice. After showing the video, she asked Holder: “How many more Border Patrol agents would have to die as a part of Operation Fast and Furious for you to take responsibility?”

Holder was unable to dodge the question entirely, but continued his previous pattern of refusing to use Brian Terry’s name, preferring to refer to him as “the Border Agent” or “that Agent” so he didn’t have to admit that a real human being had been brutally murdered as a result of Holder’s negligence and incompetence.

Having failed to hypnotize the Republicans, he did seem to have hypnotized himself. Never mind “that agent.” The real victim of Fast and Furious is Holder himself, with Republicans unfairly piling on. The Democrats pleaded with him not to answer Buerdle’s questions. He even ignored the sage wisdom of the Al Gore defense: “I didn’t do it, and I’ll never do it again.” Holder simply launched into a tear-jerking “poor me” performance.

Says Holder: “You know I should be held accountable for certainly my role in whatever I did or didn’t do in connection with the supervision of Fast and Furious. But, yeah, I’m Attorney General of the United States, and I should also be held accountable and perhaps even given some credit—imagine that—given some credit for the things this Justice Department has done under my leadership whether it deals with national security, revitalizing antitrust, revitalizing civil rights enforcement efforts, so one has to balance all of these things.”

OK, Mr. Attorney General, let’s look at a few of your accomplishments. In the voting rights arena, you dismissed already-proven charges against Black Panthers who intimidated white voters at the polls in Philadelphia. But on the other hand, you have used your power under the Voting Rights Act to quash redistricting in North Carolina and Texas because it might favor Republicans. In at least one of those cases, under an Act of Congress designed solely to eliminate racial discrimination, the vast majority of the voters are black in the district in question. You chose to prevent the redistricting because the locals wanted to make partisan Democratic offices into nonpartisan offices.

As for religious freedom, you have thrown your full support behind the HHS Secretary’s requirement that Catholic institutions provide free birth control and abortifacient drugs despite the strong objection of the Catholic Church. And that is merely one facet of your perpetual defenses of the unconstitutional mandates of Obamacare. In your pursuit of legalization of unconstitutional power-grabs by the Obama executive branch and its monomaniacal czars, you have written Article One and the Tenth Amendment out of the Constitution entirely.

There are even indications, unproven so far, that Fast and Furious was expanded on your watch to accomplish the goal in which it did ultimately succeed. You forgot the likely and foreseeable but unintended consequences. The indication is that you approved the operation for the purpose of getting weapons into the hands of criminals so you could then pass massive gun-control legislation to stop the sales of weapons that you and your boss don’t want in the hands of mere American citizens. Even I don’t believe that you intended for “that agent” to be murdered, but that was the result nevertheless.

Here is more of Holder’s “poor me” recitation: “I’m not claiming to be a perfect person or a perfect attorney general. I get up every day and try to do the best job that I can. I have faith in the people that work in the department, and you know that kind of question [referring to Buerkle’s grilling], I think is frankly, and again respectfully, I think that’s beneath a member of Congress.”

And so you see, dear reader, that the real villain here is Buerkle (and her Republican colleagues). After all, the AG was just doing his job and was only following orders. Seems we’ve heard that somewhere before. I should also add that Eric Holder is the last person on earth who should be deciding what is “beneath” a member of Congress. His standards are not those of a decent and fair-minded official of the law, but rather the street thuggishness of a Chicago South Side politician who will attempt to achieve his agenda by any means necessary.
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DOJ Discovers The Constitution

The United States Department of Justice under Attorney General Eric Holder considers the Constitution to be an infinitely malleable document, subject to the whim of temporary majorities, Congress and the Chief Executive. But as of last week, it found one constitutional provision it considers cast in concrete. That would be the Fifth Amendment.

US Attorney Patrick J. Cunningham, deeply-involved in the Fast and Furious scandal, is invoking his Fifth Amendment right to remain silent before the House Committee on Oversight and Government Reform. The Committee is looking into who is responsible for the gun-running operation which has ended up with thousands of weapons in the hands of Mexican criminal cartels and which has resulted in an unimaginable number of deaths in Mexico and that of a Border Agent inside America's borders.

Sooner or later, high-ranking members of criminal organizations such as the Mafia and the Department of Justice learn that lying only trips them up, while silence protected by the Constitution only makes them look guilty but can’t be used as proof of guilt. That certainly fits Cunningham, who is the chief of the Criminal Division of the US Attorney’s Field Office in Arizona. When you get caught flouting the law and end-running the Constitution, become a devotee of that selfsame Constitution.

Then, when your arse is showing as you get caught with your pants down, hire a savvy lawyer to blame the victims and the system. Use the Al Gore defense when El Rotundo was caught taking money from the cash box of Buddhist nuns: “I didn’t do it, and I’ll never do it again.” Cunningham’s lawyer says: “Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress [on Operation Fast and Furious]. If, as you claim, Department officials have blamed my client, they have blamed him unfairly.” Deny the claim, then call the informants liars.

The lawyer even uses classic mob jargon. “The Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.” Cunningham doesn’t even have the honor to fall on his sword and take the heat for the actions of his Capo, Eric Holder. So he attacks the Justice Department before it has even accused him of anything. Right now, the only ones pointing the finger of blame at him are Congressional investigators, some Committee members, and a lineup of witnesses. But not the Department itself.

Now Cunningham may find himself directly in line with that pointed finger from DOJ. He is soon going to find out how much honor Holder, Obama and the whole Democratic machine have. You won’t take a small hit for us? Then we will utterly destroy you, your family, and your reputation. You have fouled up our gun-grabbing, gun-running plan, and you will pay the price for trying to dirty our skirts!

House Oversight Committee Chairman Darrell Issa says “The assertion of the Fifth Amendment by a senior Justice official is a significant indictment of the Department’s integrity in Operation Fast and Furious. The former head of the ATF has previously told the committee that the Justice Department is managing its response to Operation Fast and Furious in a manner designed to protect its political appointees. This is the first time anyone has asserted their Fifth Amendment right in this investigation and heightens concerns that the Justice Department’s motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.”

As tough as that statement is, it’s probably mild compared to what Cunningham has been threatened with by those same DOJ political appointees (including Holder himself) if he caves in somewhere along the line and refuses to take the fall for the unethical and vicious behavior of the out-of-control Justice Department.

At first, the Obama administration, with Holder as its front-man, claimed they were completely unaware of the “gunwalking” plot and had no knowledge of any of its details. Over the months since, huge piles of evidence and testimony have piled up that show those original statements to be outright lies. In order to protect their political skins, it became necessary to find someone in the Justice Department who could be blamed for keeping Holder and Obama in the dark about Fast and Furious. It’s a lame tactic, but it could become the focus on one individual that takes the spotlight off Holder and Obama long enough to get through the next election cycle. It looks like the designated sacrifice is Cunningham.

The “rogue agents” and “rogue Justice Department field office heads” theory simply reeks of unethical and perhaps criminal manipulation of facts and what Bill Clinton called the politics of personal destruction. Holder and Obama are pedaling like mad to distance themselves from this deadly scandal. Poor Cunningham is going to have to make a choice somewhere along the line. Face the possibility of serious legal sanctions against him and ‘fess up now, or wait, and risk the possibility of that plus the wrath of the Holder Justice Department. Oh, what a tangled web we weave, etc.

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Kagan Sets Up The Sucker Punch

U.S. Supreme Court Justice Elena Kagan has recused herself from the upcoming appeal of the State of Arizona challenging the ruling of the Ninth Circuit Court of Appeals which struck down the major enforcement provisions of Arizona's tough immigration enforcement law. She has done the right and ethical thing.

Simply put, Arizona's law included among other things a provision that during the course of a lawful stop or arrest, the police officer could inquire into the individual's immigration status if he had a reasonable suspicion that the person was in the country illegally. The police could then hold the suspect pending determination of his immigration status. If the person turned out to be in the United States illegally, the Arizona authorities would then turn the suspect over to the federal immigration authorities. The Obama administration successfully took Arizona to court, claiming that this was unconstitutional interference with the federal government's sole authority over immigration.

Arizona argued unsuccessfully that it had a compelling state interest in protecting its lawful citizens, and that the new law merely provided a means by which the federal authorities could be made aware of an illegal immigrant by use of ordinary and established state and local police procedures. The law did seem to grant power to the state to establish its own rules on immigration, and did provide for certain non-investigatory detention beyond the initial inquiry into the person's immigration status. The law did not allow or require the state to take any further action against the detainee such as deporting him from the United States, but there were some criminal sanctions for being present in Arizona illegally. Arizona argued that its law merely reported illegal immigration, while the Obama administration argued that it regulated immigration, a solely federal prerogative.

The law does make it a crime for an undocumented worker to be present in the state. And the law makes it a crime to fail to register with the federal government or attempt to take work or hold a job without government authorization. Unlike the "reasonable suspicion" provision, these provisions do seem to skate very close to the edge of federal supremacy. In any event, all the provisions mentioned were stricken by the federal judge, and his ruling was upheld by the Ninth Circuit Court of Appeals. It will be up to the Supreme Court to sort these provisions out.

A federal judge and ultimately the Ninth Circuit Court of Appeals found against Arizona. Arizona appealed, and the US Supreme Court has now granted certiorari (agreed to hear the case). Justice Kagan immediately recused herself and made a public statement as to why she was doing so. As a senior attorney at the Justice Department (Solicitor General), she had played a major role in the early litigation against the Arizona law. Good for her. She did the right thing. Why she did the right thing may yet turn out not to be quite so honorable.

Caution: What follows is comprised largely of my opinions about anyone or anything having to do with the Obama administration, combined with a healthy dollop of paranoia and suspicion. I'm not stating anything except the jurisdictional matters as fact, and if this turns out to be a debate over Kagan's intentions versus my wariness, that would be a good thing.

I'm sure that every one of you is sophisticated enough to know that the state challenges to Obamacare will be wending their way to the Supreme Court. Different appellate districts have made diametrically opposite decisions, and it's up to the Supreme Court to resolve them. Mounting evidence shows that Justice Kagan was deeply involved in the preparation and final versions of Obamacare while she was Obama's Solicitor General. In fact, within just a few days before the passage of Obamacare, Kagan wrote to the Justice Department's Office of Legal Counsel that a lawsuit was being prepared to block the House from "deeming" the measure passed by a quirky procedural rule if it didn't get enough votes. She not only alerted them, but made suggestions as to how to defend against the lawsuit.

She even went so far as to alert the Office of Legal Counsel of all the arguments which were being prepared against the procedural trick (by a former Tenth Circuit US Appeals Court judge who is now Director of the Constitutional Law Center at Stanford University). During her confirmation proceedings, Kagan was asked for a written response to the following question posed by the Republicans on the Judiciary Committee:

"Have you ever been asked about your opinion or offered any view or comments on the underlying or constitutional issues related to any proposed health care legislation, including, but not limited to Pub. L No. 111-148 PPACA (the Patient Protection and Affordable Care Act) or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?" Kagan answered "no."

Kagan's early opinions of the efficacy of socialized medicine offered as a professor of law at Harvard (pictured) would not automatically require her to recuse herself from considering the Obamacare cases at the Supreme Court. Every professor of law (except possibly Barack Obama) has legal opinions. They'd be pretty dumb if they didn't. Most prominent law professors have written law review articles (again, except Barack Obama, editor of the Harvard Law Review). Those articles frequently go against current prevailing law. But those opinions are largely political abstract law in nature until they start coming down from the bench. So her early legal career was important to the process, but not necessarily to her ultimate confirmation.

So where am I going with this? From everything I've seen and read, Kagan's involvement in Obamacare was at least as deep as her involvement in the Arizona statute controversy and litigation. Her self-recusal from the Arizona case leads me to think that doing the right thing in that case was a red herring, designed to draw attention away from Kagan's personal views and actual involvement in the preparation of the Obamacare legislation.

She, her liberal Democratic friends and their errand boys in the mainstream media can now point out how upright, honest and ethical she is about not hearing cases in which she has been personally and professionally involved. When she refuses to recuse herself from the Obamacare decision, as I expect she will, they can all say "why look, she recused herself in the Arizona case, so if she doesn't recuse herself here, it's because her hands are clean and she is justified in hearing the matter."

Along with her "recusal credentials" she is likely to claim that if she has to recuse herself, the same should be required of Justice Clarence Thomas. Well, hooey. Thomas had no personal or professional involvement in passing or litigating Obamacare. His wife is an ardent anti-socialized medicine advocate. So what? She's not sitting on the bench, he is. And unlike Obama, Thomas does not allow his wife to make his decisions for him. Double red herring.

Maybe I'm just getting old and cynical. But I suspect Kagan's self-recusal in the Arizona case is even more cynical. Sorry, folks, I just don't trust their phony good intentions. So, what do you think?
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Murderer Executed Unjustly? Lies Persist.

Recently, we were treated to breathless "news" reports about the pending execution of convicted murderer Troy Anthony Davis. After multiple appeals, including a last-minute unsuccessful appeal to the US Supreme Court, the State of Georgia was finally allowed to perform its duty and sent Davis off to his final reward with a lethal injection.

Death penalty opponents and far too many news reporters used the argument that Davis was convicted and sentenced to death based solely on eyewitness testimony that later proved to be faulty. Any lawyer will tell you that eyewitness testimony is notoriously unreliable, and counting on that and the public's ignorance of the actual facts of the case, Davis supporters created and then perpetuated a complete lie. First, he was not convicted solely on faulty eyewitness testimony. Second, the revisions, recantations and contradictions of the eyewitneses on which Davis supporters rely were neither substantial nor timely, let alone credible.

Let me establish before proceeding that this is not a discussion of the rightness or wrongness of the death penalty. I personally support the death penalty, and believe the circumstances which trigger capital punishment should be expanded rather than contracted. But as the DA played by Sam Waterston who supported the death penalty on Law and Order said: "One can believe in the death penalty without being sanguine about it." Moreover, I disagree with, but have great respect for those who argue against the death penalty on deep moral or religious grounds. But that has very little to do with the Troy Davis case.

Davis supporters say that seven of the nine civilian witnesses who testified that they saw Troy Davis cold-bloodedly shoot and kill police officer Mark MacPhail have recanted or modified their eyewitness testimony. This is largely untrue, and where it is true, it is misleading and generally irrelevant. In fact, none of the "recanting" eyewitnesses actually rejected their testimony concerning MacPhail's murder. Instead, those who say that they "didn't say that" at the time of the investigation are claiming that the investigating police officers typed up their statements and interviews and presented them to the eyewitnesses for signature. In a murder case, we're supposed to believe that eyewitnesses didn't read the statements they signed.

Even if that were true, they must have read the statements some time, since they testified to exactly the same facts and identification at trial and in front of the jury. The eyewitnesses were neither actors memorizing lines, nor were they trained professional witnesses. Yet each testified in open court to what they had seen, and with no hint of memorization, what they testified to was absolutely consistent with their written statements.If they had doubts, why didn't they express them much earlier, since the trial occurred two years after the statements were signed and further interviews conducted? They were specifically asked by the prosecutor at trial if they had read their statements and if they were accurate, and in each case the answer was "yes."

The "recantations" began concurrently with the filing of the first appeal and after pressure from defense counsel, starting nearly three years after the conviction by a jury of his peers. We must now believe that the eyewitnesses didn't know what they were saying during the investigation, two years later at trial, and for three years thereafter until the defense/appellate attorneys and the anti-capital punishment advocates got hold of them.

Having discussed the seven non-police witnesses "recanting" their testimony, what about the remaining two? Well, they both stick adamantly to their original statements and testimony. One of the two (a man named Coles) was rewarded for this by being accused by the defense attorneys of being the actual murderer. MacPhail was shot in the face and the stomach from in front. All the eyewitnesses, including those allegedly recanting, testified that Coles was standing behind MacPhail when the shooting took place. None of them have changed their version of that testimony.

So unless Coles borrowed the magic bullet from the Kennedy assassination, it would have been impossible for Coles to have shot officer MacPhail. Coles was a known associate of Davis's, and possibly a partner-in-crime with him. But unless Coles was also capable of being in two places at the same time, all testimony, including the "recantations" place him where he could not possibly have shot MacPhail.

Coles initially fled from the crime scene on foot, but as soon as the police arrived, he quickly returned to give officers his version of what happened. This included his seeing Davis shoot officer MacPhail, which was, and still is, consistent with the statements and testimony of the other eight eyewitnesses. If he was protecting himself from prosecution for murder, it's a bit more than coincidental that eight other people also said Coles was behind the police officer, on the spot, in the heat of the moment, and without any coaching or threats from Coles. Eyewitness identity testimony becomes more reliable when multiple eyewitnesses tell nearly identical versions of the incident and when several personally knew the accused murderer from a time prior to the murder.

All of the appellate courts, including the Supreme Court, ultimately held that the prosecution had acted properly, the witnesses were reliable, and the jury acted properly by determining that Davis was guilty beyond a reasonable doubt. Whether one agrees or not, the legal and constitutional issues were litigated at length, and Davis lost.

Now you're saying to yourself, "but that still indicates that there was no physical evidence of Davis's guilt." Not correct. There was no physical evidence that the trial jury saw. But there was plenty of conclusive evidence that they didn't see. The over-used and dubious "exclusionary rule" came into effect prior to trial. All the damning hard physical evidence that proved Davis's guilt was excluded from the trial, and the jury never heard it. Police officers allegedly did not obtain the proper search warrants before seizing the physical evidence which conclusively tied Davis to the murder and as the murderer.

Coles's testimony becomes more believable when you know that Davis went to Coles's house after the murder, and exchanged his bloody shirt before fleeing to Atlanta. Davis also left behind a gun he had used to shoot another man earlier on the day of the MacPhail murder. Ballistics tests absolutely confirmed that the bullets removed from officer MacPhail and the victim of the earlier shooting matched each other, and came from Davis's gun, which the officers had seized. But the police did not obtain search warrants for either the gun or the bloody shirt (clear blood-spatter evidence) before seizing them, so the jury never saw or heard about them.

One can argue that the jury reached its verdict improperly on mere eyewitness testimony, and that therefore his execution was unjustified. The Supreme Court and the Georgia Pardons and Parole Board found otherwise (multiple times), but opinions can still come down on either side. However, anyone who continues to advocate that Davis was innocent is either delusional or simply lying to support a cause. Even if one argues that the law was violated or the Constitution misinterpreted, it is morally irresponsible and factually insane to continue to argue that Davis was not a murderer. A murderer whom I believe received both his legal punishment and his just reward.

There is one further pro-Davis argument that is easily dismissed: Davis was tried and convicted by a jury that was consistent with Georgia's alleged white prejudices against black defendants. Well, the jury was comprised of seven whites and five blacks. This fact is also bolstered by the other fact that the race-baiters don't want you to know. The large majority of convicts on Georgia's death row are white males, and the only female convict on death row is also white. Quod erat demonstrandum.
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Happy 224th Birthday, You Crazy Document!

Date: September 17, 1787
Place: Philadelphia, Pennsylvania
Subject: U.S. Constitution is signed and ready to be ratified
Our founders realized after adopting and implementing our original governing document - the Articles of Confederation - that it just was not right. So they called on the thirteen states to send representatives to meet and discuss adjustments. Beginning on May 14, 1787, fifty-five representatives from twelve of the thirteen states (Rhode Island declined) met in Philadelphia. Men like James Madison of North Carolina, Alexander Hamilton of New York, Ben Franklin of Pennsylvania and 52 others  debated, wrote, argued, and rewrote the Articles of Confederation. After a few weeks they realized that what was really needed was a completely new document. Finally on September 17, 1787, after more debate, more writing, and more arguing, these fifty-five learned men adopted and signed off on four pieces of paper each measuring 28 3/4 inches by 23 5/8 inches and containing in total 4543 words (including signatures) that formed the foundation of our government.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The U.S. Constitution was ratified by eleven states by July of 1788. North Carolina took a little longer by signing on November of 1789, with Rhode Island bringing up the rear finally signing on June of 1790.

How did they do it? How did fifty-five men from diverse backgrounds agree on an entire foundation of government in just four months and have complete agreement in three years when today we cannot even agree on what our problems are? Where are our Monroes today? Where are our Franklins, Blounts, Carrolls, Rutledges, and Pickneys today who are Statesmen with a capital "S"? Statesmen who are willing to put what is best for our collective future above what is best for their immediate political futures?

Oh, well, let's celebrate that there once were such visionary Statesmen, and let's pray that we have more somewhere in our DNA. [+] Read More...

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Equal Justice For Some

Our oh-so-civilized British friends are allowing sharia law to creep into their daily jurisprudence. Recent United States Supreme Court decisions have cited foreign law, and several states have already taken action to prevent foreign law, including sharia law, from being cited in the state courts. The State of Michigan is now considering such legislation, following in the footsteps in twenty other states.

This action should turn out to be the most interesting so far, since Michigan has the largest Muslim community of any state. The movement has loosely been called "American Laws for American Courts," and the legislation in each state follows that concept, though there are minor differences in the wording of the statutes from state to state. The Michigan bill, so far stuck in committee, was proposed by state Representative Dave Agema (R-Grandville). The cries of racism, Islamophobia and xenophobia began even before the bill was introduced.

Agema insists that the proposed law is designed to fend off local imposition of foreign law in general, and is not specifically designed to prevent the imposition of sharia law. I will take him at his word, but I also have to think that he is not seriously worried about the imposition of French food purity laws or German highway standards on the citizens of Michigan. Regardless of his motives, he is clearly taking the stand that Michigan law must be equally enforced upon all citizens of Michigan, and that any other law is in conflict with the fundamental rights and obligations of the sovereign State of Michigan. That concept of uniform and equal treatment under the law is as old as the Republic itself.

But don't count on Michigan Republicans to rally behind Agema. Republican Victor Begg, who is coincidentally a senior adviser to the Council of Islamic Organizations of Michigan, says the proposed legislation is hogwash and that its sole agenda is to thwart sharia law. He calls it a witch hunt with Muslim-Americans as the real target. I don't want to be the bearer of bad news, but there are no witches, and the targets are those who would harm the fundamental American concept of equal justice under law.

Joining Begg in his hysterical attempt to prevent "victimization" of minorities who wish to live under law different from that of their fellow citizens are the Council of American-Islamic Relations (CAIR, unindicted co-conspirator in the Holy Land Foundation terrorist funding), the NAACP and the ACLU. As Claude Rains would say, "all the usual suspects." Supporters of the bill have listed court decisions in several other states which applied international, foreign or sharia law in cases which should have been decided solely on state, federal and constitutional law.

The Center for Security Policy, a Washington DC think tank, has looked at fifty appellate cases from twenty-three states and determined that sharia law had been applied or recognized as precedent in each of the cases. The legal arena called "conflict of laws" has until very recently been concerned solely with reconciling conflicting state statutes and law, or state law which conflicts with federal law. Only in the last few years has any consideration whatsoever been given to reconciling foreign or sharia law, other than those laws implementing treaty obligations.

Proponents of the legislation argue rightfully that the statute is designed to protect constitutional liberties, not designed to go after anyone's religious practices. That doesn't mean that occasionally religious practices may not violate state or federal law directly. So long as there is no "impermissible meddling in the practice of religion," the Supreme Court has consistently held that even direct prohibition of certain religious practices which are impermissible for those not of that faith are valid. Mormons gave up polygamy in order to have Utah become a member of the community of States. Muslims apparently expect different treatment.

Saced Khan, a university lecturer on Islamic history, has pulled out all the traditional "victim" tropes. "While Hispanics, blacks and gays have gained a certain amount of political and social capital over the years, the relatively small Muslim community is an easy target." This from a man who has on other occasions pointed out how a "substantial Muslim minority" has been ignored by Michigan society in a nation which has a President who has declared America to be one of the largest Muslim nations on earth. The Muslims are either a small oppressed minority, or a large important minority, depending on the day of the week and the audience being addressed.

In addition, Khan says: "The [Muslim] community has thought that because of its longevity in Michigan, the fact that it has been such a productive and integrated part of the greater society, that for this attack to occur, for it to be targeted in such a particularly (sic) way, it's a false issue in that none of the community members have ever tried to assert the codification of sharia within the legal system. The community recognizes that many of the principles of sharia are already addressed or accommodated in state and federal law (emphasis added)."

Aside from being a tad incoherent, that statement needs to be vetted for its inconsistencies. First, "longevity" implies "legitimacy" only in the minds of sharia proponents and illegal immigrant amnesty boosters. Then contrast "none have ever tried to assert sharia" with "already addressed in state and federal law." You can't have it both ways. And of course this is all a smokescreen to cover up the fact that the legislation is designed to address precisely the early stage imposition of sharia law in the courts.

I can envision cases in which Muslim beliefs would be the final determining factor in a legal matter without violating the proposed statute. For instance, take a child custody dispute between two Muslims. After the state law has been satisfied in all its particulars determining custody, including the overriding rule of the "best interests of the child," the next stage could be determined entirely using Muslim principles without offending state or federal law. Suppose that all things being equal, a Muslim religious organization to which both parties had submitted determined that sharia law requires that the father get the child.

The state law already having determined that either parent would be acceptable, and that there is no danger to the child based on which parent is granted custody. then the agreement of the parties to accept the decision of the religious body becomes the determining factor. In other words, the custody is granted based on state law, the agreement of the parties, and only incidentally on Muslim belief and sharia. Had the Muslim belief violated state law, or sharia law been cited as the sole reason for the custody decision, then the proposed law would indeed have been violated.

The same logic could be applied to a Catholic divorce. All things being equal, and the parties having agreed in advance to have custody be determined by an ecclesiastical court after compliance with all state statutes and rules, the Church body would be the final determiner of custody. But if you want to talk about state interference in religion, don't the Catholics actually have a better argument than the Muslims? Catholic doctrine forbids divorce in the first place, yet Catholics recognize that despite their religious beliefs, divorce is a matter for state legislation, and they know they must accept it.

And finally to counter Khan's false "victim" comparisons, there is no black law, there is no gay law, and there is no Hispanic law which can ever be cited to alter or contradict the rules of state law. Once a state has taken valid and constitutional authority over a given area of law, it applies to every citizen of that state, regardless of religious belief. That is the legal/constitutional balancing act which must be done when religious belief becomes religious excess. The government may not excessively interfere with religious practice, but that door swings both ways.


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RNC Supports Constitution, Electoral College

The twentieth century Progressives managed to advance the cause of direct democracy by open confrontation. They pushed the cause of direct election of United States Senators, thereby diminishing the power of the states to have their own deliberative body to counter-balance the "people's" House of temporary majorities. But they did so up-front, and passed the Seventeenth Amendment to the Constitution.

Their twenty-first century successors are far more reticent about taking their case directly to the people over another attack on the independent power of the states. Direct democracy advocates now want to end-run the Constitutional provision of election of the President by the states as set forth in Article II. That impediment to direct democracy is the Electoral College. A number of states have entered into interstate compacts which would require that a given state's electoral votes must be given to the presidential candidate who wins the popular vote, regardless of how that state's voters actually voted.

That is not only an attack on the balance the Founders set up between the whole people and the sovereign states, but it is also questionably democratic. If the people of State A vote for Candidate X, but the other interstate compact states B, C, D and E vote for Candidate Y, how is it democratic to nullify the votes of the people of State A by giving their electoral votes to the candidate who lost the vote in State A?

Over the past century, there have been multiple attempts to amend the Constitution to abolish the Electoral College. All have failed, most at very early stages. "The Electoral College is anti-democratic," say the abolitionists. Well, no, it isn't. It is anti-direct democracy. The state electors are selected based on which candidate wins that state. In some states, the electors are bound completely by the will of the majority of the state's voters ("winner take all"), in others proportional electors or "individual conscience" are permitted by state statute. None of these methods conflict with the basic constitutional mandate of election of the President by the states, subject to the rules and will of the people who vote in the respective states and the final vote in the Electoral College.

The Founders believed a true republic could survive only if there were balances between the big cities and the rural areas, the populous states and the sparsely-populated states, the will of the whole people and the independence of the states. The Electoral College was a product of that balancing process. On rare occasion, the votes of the Electoral College resulted in the candidate with the smaller number of popular votes winning the presidential election. But it also means that the votes of the people of each individual state went to the candidate who won in that state.

As an opponent of direct democracy, a believer in the wisdom of the Founders, a fan of republican balance between the will of the people and the independence of the states, and an oppressed Californian, I must dolefully report that California has recently joined the direct democracy movement as it relates to election of the President. The largest single bloc of electoral votes could now conceivably go to the candidate who lost the popular vote in the state. At least that's true if the compact is finally approved by other interested states and survives a constitutional test at the United States Supreme Court.

To its eternal credit, the RNC last week loudly denounced this latest stealth attack on our republican form of government. Would it be redundant to say that the republic was supported by the Republicans? The "progressive" attempt to thwart the clear intention of the Constitution is commonly called the National Popular Vote initiative. With the exception of one RNC member who voted "present," the entire RNC opposed the initiative.

So many members of the Committee were adamantly opposed to the initiative that the leaders had to limit time for speeches to ten minutes per member. Most addressed the issue first, then the fact that pro-initiative types had been reporting that Republicans in the state legislatures were leaning toward support of the initiative. The speakers were not happy campers, and there were dozens of them. There was also a rumor that at least 20 members of the voting RNC were in favor of the initiative.

Prior to the meeting, RNC member Saul Anuzis of Michigan had expressed tepid support for the initiative, along with a small group of his companions. Anuzis and the others quickly realized that they were about to be singled out for direct attack, and modified their positions before the speeches. Anuzis later told reporters that the small group changed their position because they were not willing to take any hits for something they didn't care that much about in the first place. It had become apparent that their opponents cared a great deal.

Anuzis remained unrepentant, however. Rather than take a principled (if incorrect) position on the initiative, he raced for a plane out of town while concluding his public remarks by saying that "[the initiative] is now on everyone's radar and that's good." In other words, as soon as he gets to a place of apparent safety and finds himself in a much less tenuous minority, he will semi-renounce his vote and lukewarmly support the initiative for some inexplicable political gain.

Historically, I should point out that here in California, the first subtle move to undermine the Electoral College happened decades back. When I first proudly cast my vote at age 22 (18 year olds weren't allowed to vote yet), the ballot required the voter to vote for the "Electors pledged to Lyndon Johnson" or "Electors pledged to Barry Goldwater." Today, the ballot doesn't mention Electors at all. Cast your vote directly for a candidate.
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Exec Order Raising Debt Limit OK

If you look hard enough, you can find lawyers who will support your crazy position. Apparently, Jeffrey Rosen at The New Republic had a quick frappucino at Starbuck's, grabbed his AT&T (formerly Cingular) phone, and picked up some law at the local drive-through. He is now convinced that President Obama can constitutionally raise the debt limit by executive order.

The geniuses advising TNR, along with some of their lay colleagues, have come to the amazing conclusion that if Obama raised the debt limit by executive order, the Supreme Court would support him "by a lopsided margin (emphasis added)." They base their conclusion on cases decided by the current Supreme Court which rely on "standing" and "political questions" for their holdings.

First, let's talk about standing. In order to sue, a person must have standing. In simple terms, it means the person or entity filing the suit must fit into the following box: "A person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative." Those are the verbatim words of the United States Supreme Court.

The attorneys providing TNR with their input believe that on the grounds of standing, it is likely that the High Court would simply refuse to hear the case. Most likely, if Obama did take the proposed executive action, the plaintiff would be John Boehner et al. In a recent case, confirming decades of precedent, the Court decided that an individual taxpayer did not have standing to sue the State of Arizona over its school voucher program. Too distant, too abstract, and unlikely to produce a result that would clearly redress one taxpayer.

The lawyers have somehow latched onto that decision to opine that the Speaker of the House of Representatives (where all revenue acts must come from) has no standing to sue the Chief Executive over fiscal matters directly impacting the defined power of the House of Representatives. Such an executive order would rely on the Fourteenth Amendment provision that "the public debt of the United States, authorized by law . . . shall not be questioned." Only the House has that revenue power, and the President cannot write law by executive order in an area specifically reserved to another branch of government. Boehner and the House would not only have the standing to sue, but would have a constitutional mandate to do so.

The lawyers also argue that the 1935 Perry case which in which a bondholder sued to void an Act of Congress taking the Treasury off the gold standard is a direct parallel empowering Obama to act independently without authorization from Congress. The two cases have next to nothing to do with each other. An individual bondholder is like an individual taxpayer--too distant, too abstract and unlikely to produce a result which would resolve the plaintiff's problem.

Going off the gold standard did not in any way directly affect the Fourteenth Amendment provision that the validity of the public debt shall not be questioned. Furthermore, the action was initiated in the House of Representatives, not by an executive order. An Obama executive order would neither confirm nor deny the national debt, it would just raise the debt ceiling without Congressional authority. Who better than the Speaker of the House of Representatives to have standing to challenge that executive order? Comparing him to an individual bondholder who actually was challenging the validity of the national debt is utterly ludicrous. Nevertheless, TNR and its legal advisers believe that as many as three of the conservative Justices would join the four liberals to deny Boehner standing based on those two "standing" precedents.

The lawyers then go on to posit that if the Justices somehow mysteriously did allow Boehner standing, the conservative justices would still join the four liberal living-constitutionalists in ruling against him and the Congress. They suggest that the only possible holdout would be Justice Clarence Thomas (their least favorite Justice, and my favorite). Their supposition is that Thomas might conclude that Article I gives Congress, and not the President, the power to borrow money on the credit of the United States. He might hold that the debt ceiling doesn't repudiate the debt or question its validity, it simply risks default by prohibiting the President from assuming extra debt beyond what Congress has authorized (remember "authorized by law?"). That sounds exactly like Thomas, and sounds completely right to me.

But somehow, the TNR legal advisers believe that Justices Roberts, Alito, and Scalia would not agree with Justice Thomas. The lawyers use their living Constitution arguments and try to meld them with some very dissimilar rulings by that triumvirate on the issue of "political questions" to dream that the four justices would not be entirely in sync. The political questions argument would apply only to how the Congress decided to raise or not raise the debt limit, not who raised it (i.e. the President). The Constitution clearly grants that power solely to the Congress, with the House initiating any such action. The President may suggest, but he may not impose.

Where the TNR lawyers go wrong on the "political questions" issue is their misunderstanding of the conservative justices' rulings either confirming executive power or refusing to decide on what they consider to be a purely political question pitting Congress against the executive branch. In those cases, the conservative justices voted in favor of the President's powers based entirely on the express provisions in the Constitution relating to those powers. The easiest to understand is the President's power to conduct war without interference from a Congress which has already assented to the military action.

Here's some of the living constitutionalist language from liberal lawyer Eric Posner: "[The President] has as his paramount duty to ward off serious threats to the constitutional and economic system." Economics and "serious threats" may be important and are surely political, but the President must still perform his magic within the Constitutional framework which leaves revenue and debt in the hands of Congress. Only a liberal would suggest that the President should ignore the Constitution in order to comply with it.

The TNR authors conclude with a statement from former President Bill Clinton (also a "constitutional scholar," like Obama): "I would invoke the Fourteenth Amendment to raise the debt ceiling without hesitation and force the courts to stop me" (and I didn't have sex with that lawyer, Hillary Rodham Clinton). Yeah, I added that last part. I doubt personally that he actually would have done such a thing, because by now he would have triangulated and worked out a budget and debt-ceiling agreement with Congress. But it's fun watching him try to egg Obama on.

I'll close with the Obama statement that TNR opened with: "I've talked to my lawyers and they are not persuaded that this is a winning argument." For once, I agree with Obama's lawyers. But the TNR folks remain undeterred. They go on to call Obama and his lawyers cowards.

Note: If there is truly a deal in Congress which Obama would sign, then that only means that for now the debt-ceiling crisis is averted. If the debt-ceiling is raised by Congressional action, keep this post in the back of your mind for future reference.
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Ready For The Shredder?

In its Fourth of July edition (10th anniversary "History" volume), Time Magazine asks the question: "Does it [the Constitution] still matter?" Given that the venerable document is about to disappear into a shredder on the cover, I think I can guess where the Time editors stand. Well, let me answer that question. Yes, and it matters more now than at any other time in American history.

It is typical of Time to pick one of the most significant patriotic holidays of the calendar year to print its leading question. "Leading" because the question assumes the answer, and the shredder is merely the exclamation point that replaces the question mark. This is hardly the first conservative blog to address the Time controversy, and it certainly won't be the last. For that reason, I want to limit my discussion to a couple of issues and a few questions that popped into my mind before I finished reading the entire Time hit piece.

If Time had been honest enough to admit its prejudices in favor of the "living Constitution" view and the necessity of an ever-growing and ever more intrusive federal government, it would have given the shredder a title: "Obama Administration." But it didn't, so I guess we're supposed to assume the passage of time and the realities of modern life are the shredder.

Given the proclivities of Time to state editorial opinion as fact, distort actual facts, present one-sided arguments and set up straw man arguments to knock down, why did it feel compelled to print the article at this particular time? I have a theory. Any time is a good time for bashing the obsolete and confining Constitution, but there is a great debate going on in Congress and in the nation over the President's power to wage war. There is an odd confluence of both right and left opinion holding that Obama has gone way too far with his use of American arms and resources in non-wars in Northern Africa and the Middle East.

Time felt that the President needed defending, and burying the issues of the Constitutional powers of the President and the War Powers Act in a general discussion of the over-restrictiveness of the founding document was the perfect place to do it. The author, managing editor Richard Stengel, showed off his solid intellectual credentials by making his major point about the non-wars in Latin: Inter arma enim silent leges. He translated that phrase as meaning "In time of war, the Constitution is silent."

There are two problems of serious significance with that translation. First, the phrase actually says the law is silent, not the Constitution. Only a living Constitution-type would make that purposeful error. It accomplishes what the "progressives" have wanted for over a century--to make the Constitution just another "law," subject to the will of temporary majorities and power-grabbing administrations. Second, it suggests that the Constitution is silent about the President's war-making powers, which it is most certainly not. Congress declares war, and the President runs it as Commander-in-Chief.

The real argument is not about "silence" but rather whether the President's present independent action using all the trappings of war has crossed the line from "running" to "declaring," from defense to offense. That's an issue all by itself, and I am simply addressing the purposeful conflation of the Constitution and simple law (i.e., the War Powers Act). People of good faith and decent intellect can come down on either side of that issue, and I'm not going to take sides in that debate--at least for now.

Even if I'm wrong about why Time chose this particular occasion to print the article, there are plenty of other reasons that converge--all of them relating to protecting Obama and advancing the cause of trivializing and demeaning the Constitution. Chief among those is Obamacare, currently under threat from multiple state attorneys general and wending its way through federal appellate courts on its way to the United States Supreme Court. The administration and Congress joined hands to mandate the purchase of health insurance, and the constitutionalist arguments against that rely on the lack of any constitutional authority for the federal government to do so.

So again, the living constitutionalists at Time need to demean the document as being unable to keep up with the times. How are we expected to adhere to a document written by a bunch of white men in the 1700s who knew nothing about airplanes, television, computers and DNA? That's a foolish and specious argument. The Founders didn't need to know about airplanes to grant power to the federal government to regulate (not create) interstate commerce. They didn't need to know about TV, computers and DNA to write the First, Fifth and Sixth Amendments. And somehow we have survived rather easily their lack of the gift of prophecy.

Contrary to the newest arguments from the liberal/left legal establishment, the Constitution is a document of "negative liberties." Those not addressed specifically as forbidden or allowed are wide open to development with the times. Horse=canal boat=railroad=trucks=airplanes. Somehow, those changes in the times and advances in technology haven't hampered the ability of individuals, states, and entrepeneurs to develop modern inventions and put them into the stream of commerce without offending the Constitution in any way, or being limited by it. The Constitution is a document limiting federal action in a general framework, not some simple agency agreement for micromanagement of every facet of American life.

Until now, not even "progressive" federal administrations have ever tried successfully to impose a legal requirement on individual citizens to purchase something. But the Obama administration and its leftist followers truly believe that the powers of the federal government are, and ought to be, unlimited. Still, after declaring in multiple legal actions in multiple jurisdictions that the federal government has the power to mandate a purchase, in the most recent and significant litigation, the government argued, for the very first time, that the mandate is not a mandate, but a tax. That pitiful changing of legal horses in the middle of the stream at least has the benefit of Congress's power to tax as opposed the its complete inability to mandate a purchase under the Interstate Commerce Clause.

As for Stengel's argument that "if the Constitution was intended to limit the federal government, it certainly doesn't say so," I say hooey! Even if one has not read and studied the Federalist Papers, it doesn't take more than a cursory reading of the Constitution to find that limitation. It's the Tenth Amendment, which says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Clearly, the federal government has only those powers specifically delegated to it, and it has nothing to do with the modern development of airplanes, computers, TV or DNA.

Times' history is wrong as well, in that it repeated the mantra that the Founders treated slaves as 3/5 of a person. Actually, they did worse. They treated slaves as slaves, leaving the issue to the states in order to get the Constitution passed. Nevertheless, they still treated slaves as "persons" for purposes of humane treatment (as if such a thing were possible in the presence of slavery), but counted slaves as 3/5 of a person solely for the purpose of keeping the Southern states in the newly-reforming Union. Do I need to point out that we fought a bloody Civil War and passed three post-Civil War Amendments to undo this moral lapse in judgment?

There are many, many more egregious and intentional errors in the Times article, and I don't pretend that this post is even close to being exhaustive of the issues. These just happened to be the arguments that struck me most forcefully.
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