Saturday, September 26, 2009

Support President Obama and Our Troops

Afghanistan isn’t a popular place to be fighting any more. Americans who tend to vote Democratic never liked it in the first place. Americans who tend to vote Republican aren’t all that interested, now that the war is being fought on the watch of a commander in chief named Barack Obama. But, the war is being fought by a volunteer army, which means that most Americans, those with better options, aren’t on the front lines anyway. So it is not a really emotional issue for anyone. The loud screaming is all about issues, and delusions, much closer to home.

There is a history to why we are in Afghanistan now. That history needs to be carefully examined before anyone commits our nation irrevocably to either “staying the course” or getting out now. We should do one or the other. We should not muddle along, with half an eye on staying the course, and half an eye on getting out.

When we first went into Afghanistan, it was in direct response to the planes hijacked and crashed into buildings on September 11, 2001. The organization that planned and directed those operations was openly situated in Afghanistan, with the permission and support of the government then in power.

Smashing the Taliban was a relatively easy operation. It was not exactly like invading a hostile country, where everyone was our enemy. The Taliban had been relatively popular when they took power, because they ended the capricious, violent rule of a series of warlords who freely raped and robbed the population. But, they had worn out their welcome, imposing rules most people didn’t really care for, with their own style of brutality.

Better luck for the USA, on the northern borders of Afghanistan was a substantial army, veterans of thirty years of continuous warfare, who knew the country, and were the sworn enemies of the Taliban. All they needed was for a nice superpower to provide them with a good supply of arms and ammunition, tactical air cover, and some special operations ground forces to clear the way. Our interests coincided for the moment, and the Taliban government was history.

After that, almost everything went wrong. It has long been a mantra of Democratic Party politics that we should have focused on Afghanistan, where the real enemy was, rather than getting distracted in Iraq. That is true as far as it goes. Iraq was a distraction from the battle against al-Qaeda. Saddam Hussein was an evil dictator from central casting, but he and Osama bin-Laden were sworn enemies. The best bin-Laden had to say of him, when the U.S. did invade Iraq, was “we will support the socialists against the Americans, even though we know they are apostates.” If bin-Laden had set foot in Iraq, Hussein would have drilled him between the eyes without a trial.

More important, if we had stayed focused on Afghanistan, the Taliban might not have survived in sufficient strength to re-establish itself as a power in Pakistan. We might have decimated the entire al-Qaeda leadership. Our president and secretary of defense did drop the ball, in their eagerness to run invade Iraq.

There is another reason Democrats have harped for the past five years on the importance of winning the war in Afghanistan. Democrats have to establish their street cred on national security. They can’t win national elections, or congressional majorities, as the party of peace, love and brotherhood. They have to show that they can fight America’s enemies too, but they are smarter about who to fight and how to go about it.

But now there is a question, is continuing to fight in Afghanistan a smart thing to do?

If we are there to support and sustain the government of Afghanistan, or to bring democracy to the people of Afghanistan, the answer is no, it is not a smart thing to do. The present government of Afghanistan is not worthy of the sacrifices of money, much less of blood, being made in that country by the U.S. military. It is a corrupt alliance of warlords, operating in a centuries old pattern of tribal and clan loyalties. The president’s brother most likely is a major drug dealer, although nobody can confirm that.

On the other hand, if the U.S. pulls out, the Taliban stands a good chance of taking control of the country again, or at least, it remains a power on the Afghanistan-Pakistan border. The government of Pakistan, already weak, becomes even weaker. The chances of a nuclear-armed al-Qaeda rise sharply. It may be in our own vital interest to fight this war out, even though our allies are nothing to boast of.

If there is good cause to remain, the next question is, can we win? What constitutes “winning” anyway? Can we grind down the Taliban and al-Qaeda until they are a negligible force in the world, with little capacity to do us harm? Can we do that without alienating the entire population of Afghanistan, making our troops out to be a foreign occupying power? (If we can’t, we will in the end strengthen al-Qaeda in the region, rather than destroying it.) Can we distinguish ourselves, in the popular eye, from the corrupt government that took power under our protective wing?

It boils down to, can General McChrystal pull off a successful counter-insurgency operation, winning the hearts and minds of a civilian population, that hates the memory of Taliban rule, and hates the operation of the current government, with which we are formally allied? That is a tough call, and nobody should rush to say they have the final answer.

The generals who commanded American troops in Vietnam knew all about how to win World War II, and nothing about how to fight a guerilla army that had the support of a large portion of the people we were there to “liberate.” Fighting yesterday’s war today is not the road to victory. It would be a mistake for those who understand how wrong we were in Vietnam to launch a peace movement now. Opposing yesterday’s war today is not the road to peace and brotherhood.

What we may have in Afghanistan is a war we must win, against an enemy we must fight, at the side of a government we should not support, resting on a federation of warlords who will flip sides three times a year if they find it in their own interest, in the midst of a civilian population that views our troops more favorably than their own local police, but isn’t sure they can trust us either, since we have to work with the powers that exist in the region… and Pakistan is looking like more of the same every day. So let’s cool the slogans, and give President Obama some room to think about all this.

Wednesday, April 8, 2009

Inalienable Rights: The Libertarian's Dilemma

The modern libertarian movement has at least two branches: emphasis on personal liberty, and emphasis on the liberty of players in the economic market place. These two philosophies are in practice hostile to each other. Their rhetoric is similar. Citizens and voters, even active advocates, might not recognize the distinction – until some libertarian party has the misfortune to win elections on a large scale. But in any attempt to actually govern, they and we would learn otherwise. Any libertarian party, which attempts to embrace both philosophies, is a house divided against itself.

A coherent libertarian platform, one capable of governing, must undo a tragic error of judicial legislation, dating to the 19th century. Prior to oral argument of Santa Clara County v. Southern Pacific Railroad Company, Supreme Court Justice Morrison Remick Waite pronounced that “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.” The court reporter therefore entered into the record of the Court's findings that “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.” It is time to recognize that a corporation is NOT a person. A corporation is NOT entitled to “constitutional rights.” The individuals who invest in a corporation are entitled to individual rights AS investors, but the corporation itself is not.

In fact, corporations are creatures of government. There is nothing “natural” about a corporation. Just as Americans have always been jealous of the usurpation of power by our governments, we must be equally vigilant against the usurpation of power by corporations, and for exactly the same reasons. To the extent that we, as the sovereigns of our nation, authorize our governments to charter corporations, we should be equally insistent that the government keep its creature on a short leash, under tight regulation and supervision. That corporation is best which governs least. (Corporations should not govern at all.)

There are practical reasons why it makes sense to allow corporations to exist. The original concept is the “limited liability corporation.” That means, if you invest in General Motors stock, and General Motors goes bankrupt, the most you stand to lose is the value of your stock. If General Motors were a partnership, you and all your assets would be on the line for the debts of General Motors. Your savings, your house, your car, could all be seized to pay the company’s debts. That is true of unincorporated small businesses: if Mr. Jones owns a corner grocery store, and the store goes into debt, Mr. Jones is personally liable for the debts of the store. This is why doctors and lawyers asked for laws allowing them to organize their businesses as professional corporations.

Corporations allow for large sums of capital to be put together, to invest in large projects like trans-continental railroads, or manufacturing plants covering several acres. A handful of individual investors, even rich ones, can’t really put all that together. It is not possible to have “small local airlines” offering service all over the world. But the corporation, like the government, is merely our servant. We must never allow either to become our master.

The problem is that a corporation can grow to possess billions of dollars in assets, employ hundreds of thousands, or even millions, of employees, and dominate the economy of whole cities, states, even nations. It can take on a life of its own, independent of what is good for the people or the community. Then, when free citizens of a democratic republic try to reign in this monster, the managers and directors of the corporation claim “but we are a person, with RIGHTS. You can’t trample on our RIGHTS. Nonsense.

When is the last time we added to the constitution of any state, or of the United States, a provision providing for a “congressional representatives’ bill of rights”? How about a “bureaucrats’ bill of rights”? Do OUR public servants have a “reasonable expectation of privacy” in the conduct of OUR public business? There is no reason that the conduct of corporate business should be any less transparent, or any less subject to restraint, than the conduct of government business. We the people have rights. Government and corporations do not have rights.

Legally, limited liability must be created by law. If there is not specific legislation, authorizing the existence of a limited liability corporation, then there is no limited liability. Every business would be a partnership. In the early decades of the USA, state legislatures passed a separate bill individually authorizing any corporation the state chose to authorize. Later, standard laws provided for a standard process of incorporation.

Corporations exist by government fiat, subject to a government-issued license, with power and authority derived directly from special government favor. Why should we, the people, acting through our elected government, grant this special consideration to any or all corporations? Only if, and only to the extent, that there is some public purpose or benefit to doing so. In fact, there is economic benefit; our economy does produce more efficiently all kinds of things we want, by allowing corporations to exist. Millions of citizens do have individual opportunities to invest, that we would never have through partnerships writ large. But, we have every right to subordinate this creature of government to the public good, and to demand a healthy respect for the rights of individual citizens over the needs and desires of the corporation we suffer to exist.

Human beings are endowed by our Creator with certain inalienable rights. To secure these rights, government derive their just powers from the consent of the governed. IF they provide sufficient benefit to the sovereign people, corporations are suffered to exist, subject to government license. Corporations do not enjoy rights. If we get that straight, then a libertarian program begins to make sense. But if there is one area where extensive government regulation makes sense, it is to severely restrict the natural tendency of corporations, like governments, to exceed their legitimate powers. Why should it be government that regulates corporations? Because, corporations are too big for any other power to do so. Just try to have a “citizens’ committee” push a multi-billion dollar corporation around!

A good rule of thumb, for a free enterprise system that values individual liberty, is that the bigger a corporation becomes, the more essential its product is, the more regulated it will be. No bureaucracy needed to regulate Alexander Graham Bell’s lab work to develop the telephone. He was entitled to the benefits of a patent on his work. But once it became essential to have a phone, once a large corporation owned transcontinental networks (which required government regulation to acquire rights of way), AT&T had to be tightly regulated. We don’t need little Suzy to get a business license to set up a lemonade stand in the front yard on hot summer’s day. But we do need peanuts from Georgia, made into peanut butter in Chicago, then sold in Seattle, to be inspected. Likewise, Kerr-McGee oil company must be tightly regulated for the health and safety of all its neighbors, employees, and customers. No corporation should be allowed to exist on any other basis. Rights are for people.

Saturday, November 1, 2008

A Protestant American View of Obedient Catholics in Public Office

One of the dumbest things Nancy Pelosi and Joe Biden did, in the 2008 election cycle, was to debate in public whether the Roman Catholic hierarchy has correctly pinpointed when human life begins. It is true that the “doctors of the Church” have come up with many and varied answers to that question over the centuries. Thomas Aquinas, for example, DID estimate that the soul attached to the male fetus about forty days after conception, and to the female after eighty days – a fact the present day Curia would prefer to overlook or deny. But the foundation of the Roman Catholic church is that the priest knows better than the parishioner, the bishop knows better than the priest, the archbishop knows better than the bishop, and the Bishop of Rome (aka The Pope) because his diocese includes what used to be the center of political power in the Mediterranean world 16 centuries ago, knows better than anybody. So why argue?

I personally don’t buy that. I have many friends who are or have been Roman priests, and others who are faithful lay Catholics. They are cheerful companions I enjoy talking to, I respect their knowledge and commitment, I have enjoyed their masses, which are a perfectly inspiring worship service. But I can read the Bible for myself, and I can come up with as good a sense of what it means as any of them can. In my seldom-humble opinion, my reading is often better than theirs. There is a word for people who think like me: Protestant.

If Biden and Pelosi want to be Roman Catholics, which they have been all their lives, they will be more credible if they simply affirm their obedient acceptance of church doctrine (whatever that may be this year, this decade, this century, this millennium, as distinct from what it has been in the past). Then they have to affirm something else. They have to affirm that when elected to a position of public trust, under the Constitution of the United States of America, they are NOT “the Catholic representative.”

Biden represents the state of Delaware, not the Roman church. Pelosi represents a district in San Francisco, California, not the archdiocese in which she resides. This is the United States of America, not the Holy Roman Empire. The voters who elected them include Roman Catholics, Greek Orthodox, many varieties of Protestants, Jews, Hindus, Muslims, atheists, agnostics, and Unitarians, among others. Ditto for those who voted against them. They are responsible to ALL of the above.

One cannot be Roman Catholic and support abortion. To the best of my knowledge, Nancy Pelosi has never had an abortion. Biden certainly hasn’t, and to the best of my knowledge, has never been the cause of pregnancy in a woman who did. However, one can be Roman Catholic and consider the legislative program advocated by the bishops in North America to be a sadly misguided, unproductive, even counter-productive, means of reducing the number of abortions performed each year. One can be a Roman Catholic and recognize that Roe v. Wade is an accurate and conservative application of fundamental principles contained in the United States Constitution. The Roman church may not approve of that constitution, probably would not have written it the same way if it were up to them, but it IS the Constitution of the United States of America. One can be Roman Catholic and still be a responsible citizen of a pluralistic democracy.

As John F. Kennedy observed, a Roman Catholic who puts his hand on the Bible, and takes an oath to preserve, protect and defend the Constitution of the United States of America, against all enemies, foreign and domestic, would, if they lied, be committing a sin against God. An elected official who took direction from the church hierarchy, as to their conduct in office, would have lied in taking such an oath. The bishops surely would not ask one of their flock to commit such a sin?

As an American citizen, I certainly hope that a Roman Catholic can serve in responsible government posts without becoming a mole, a spy, an agent, an infiltrator, for a foreign prince or a subversive hierarchical organization. Neither respect for the church nor respect for the constitution of our nation is well served by injecting debate over church doctrine into political discourse. Just as the government of a sovereign people does not have to conform to any church doctrine, by the same token, church doctrine does not have to conform to the dictates of any governmental authority.

Thursday, September 11, 2008

Framing the Founders Founding the Framers

The point of any legal argument is to get what you want.

In an adversary system of justice, lawyers for each side cite legal principles, look for loopholes in the plain text of the law, try to find some plausible presentation of constitutional framework. But they’re not concerned with “the majesty of the law.” They want a desirable result for their client.

Courts, especially appellate courts, are supposed to be above all that. Judges are expected to sustain the principles, the constitutional framework, the plain meaning of legislation and statutes. When a case comes up on appeal, the lawyers for each side strain to open up the law for a desired result, while the judges try to squeeze the facts of the case within the framework of established law.

Into this melee fall such highbrow arguments as "Original Intent," "State's Rights" and "New Federalism." The people who made up these cute phrases weren't altruistically committed to ferreting out what was on the mind of the Founding Fathers of Our Republic. They were looking for ways to stop things they did not appreciate and advance a program that they approved of. The advocates of "A Living Constitution" are doing more or less the same thing, only approving and disapproving of more or less the opposite.

Everyone with an ax to grind remakes The Framers in the image that the speaker finds to their own personal taste.

Samuel A. Marcossen published a book in 2002 entitled Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. The first chapter was a pointed and amusing speculation on how Justice Clarence Thomas might rule if Loving v. Virginia came up for hearing when Thomas was on the court. That's the 1967 case which ruled that the 14th Amendment restrains states from forbidding a man and woman of legal age entering into marriage when they happen to be of two different "racial" categories that some state bureaucrat or legislature has created.

"Black" and "white" are two of the more common such absurdities in American history. Thomas, of course, would be classified as "black" by any such scheme, his wife would be classified as "white," and they live in Virginia. (Her name is also Virginia.) By the terms of his own written opinions, Thomas might well feel constrained to rule that, although laws such as Virginia once had on this subject were morally wrong, the federal constitution does not restrain states from passing such laws, and the federal courts would be indulging in legislation from the bench to overturn them.

Marcossen goes on from this promising beginning to destroy any value his argument might have. He argues that the proper standard to evaluate a constitutional argument, which comes before a federal appellate court, would not be "is it original?" but "is it legitimate?" The danger of using an adjective such as "legitimate" should be obvious. Legitimacy is in the eye of the beholder. It is an infinitely elastic word.

A constitution, by its very nature, is a fundamental framework for government. It says very little about what is or is not appropriate legislation. It does however make the basic allocations of what authority the government may exercise, and what branch or level of government may exercise it. As Justice Hugo Black eloquently observed, when the First Amendment says "Congress shall pass no law..." it means Congress shall pass NO law. IT does not mean "Congress shall pass no law unless..."

At the time of the New Deal, the Supreme Court, for a time, rejected a great deal of federal legislation on the ground that it went beyond "regulating interstate commerce" to interfere with what the court found to be intrastate commerce. Many advocates of "original intent," who have arrogated to themselves the label "federalist" honestly dream of rolling back the New Deal, repealing minimum wage laws, as well as the National Labor Relations Act, and then getting rid of subsequent legislation such as the Occupational Safety and Health Act, the Clean Air and Water Act, and sundry other programs.

Advocates of preserving such innovations argue that the constitution is a "living" document which must adapt to new situations. Anthony M. Kennedy, certainly a conservative justice, observes that the framers "made a covenant with the future."

So is there a better way to examine the constitution? Can we achieve judicial review which serves neither as carte blanche for social engineering over the dead bodies of libertarians, nor as open season for concentrating wealth into fewer and fewer hands? Of course there is. And this is the only place in America you can read it.

The plain meaning of the language of the constitution, and the original intent of those who wrote, signed and ratified it, is paramount, insofar as it defines what powers each branch, level and department of government may exercise, and what powers each level, branch and department is prohibited from exercising. There IS however, an objective covenant with the future, which is not up for grabs according to the political whims of the moment.

For example, when the constitution was written, most commerce was local, or intra-state. Interstate commerce and international commerce applied to a rather limited sector of long-distance trade. Today, there is no question that almost our entire economy is at least interstate, and a huge part of it is international. Therefore, while congress might have had no power to pass a federal minimum wage law in 1779, it unquestionably had such power in 1939. That is not because a “living constitution” is infinitely flexible, but because the inexorable forces of the free market have made interstate commerce a much bigger deal than it used to be.

Likewise the Fourth Amendment's protection of "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures…” certainly did not envision that government agents should refrain from tapping a telephone line without a warrant. That is because there were no telephone lines to tap in 1783. The fundamental framework of the Fourth Amendment can only be meaningful if it can be expanded to apply to new technologies.

Otherwise, we would have to pass a constitutional amendment to account for every substantial new invention which becomes an important part of public and private life. That would contradict the very nature of a constitution, a framework which defines what power the government has in the first place, what is and is not a legitimate matter for government intervention. Such a framework should be tampered with very seldom, therefore it should be flexible enough to apply enduring principles to new developments over time.

Of course amendments, by their very nature, establish constitutional boundaries which were NOT contemplated by the Framers, although the amendment PROCESS was provided for. Few of us would wish to be without the Thirteenth Amendment today, but at the time the original constitution was ratified, slavery was not only accepted but provided some measure of legal enforcement. Dred Scot v. Sanford was not a bad statement of constitutional law as it existed at the time Justice Taney wrote his infamous opinion. It was overturned, not by changing the composition of the Supreme Court over time, with the death of old justices and appointment of new justices, but by four years of bloody civil war, which created the political atmosphere in which such an amendment could pass.

The Fourteenth Amendment, which has done far more for the civil liberties of "white" Americans than those of "black" Americans, wrought still another revolution. It implemented something James Madison had advocated, which a majority of the constitutional convention had rejected. It protected the civil rights of individual citizens from the police powers of the states, not just the federal government. Rightly so, for as Madison observed in The Federalist Papers, a tyranny is easier to establish in a smaller jurisdiction, such as a state, than in a larger territory. States, no less than the federal government, can trample on the rights of “the people.” Or as Mark Twain put it, “No-one’s life, liberty or property are safe while the legislature is in session.”

Some men have said of women, “You can’t live with them and you can’t live without them.” But this is much more true of government. We all have a desire to be left alone, and a desire to impose laws upon our neighbor. The constitution is the foundation of whether the government can, or cannot, exercise the power that whoever is in power would like to exercise. If the constitution says no, it doesn’t matter if it would be a good idea. The government can’t do it. It’s as simple as that.

Standards of Death

As a citizen who generally distrusts the death penalty, I must admit I am not comfortable with the recent Supreme Court ruling restraining states from imposing the death penalty for the rape of a child. The first question in constitutional law is not "should those who rape one or more children be executed?" The first question is, does the plain language of the federal constitution prohibit states from imposing a death penalty for this crime? Constitutional law deals with whether a branch of government, at some level, federal or state, has the power to pass a law at all. If it does, then it is indeed up to the legislative branch whether to pass one or not, and what to put into the law if one is adopted.

The constitutional provision at issue is the Eighth Amendment, which prohibits "cruel and unusual punishment."

That is a hard phrase to interpret. Nothing would seem more appropriate for interpretation in light of the "evolving standards" of a civilized nation. There have been human cultures in which a father had the legal authority to kill a disobedient child. Most of us wouldn't stand for that now. At the time the federal constitution was ratified, some states still used the ducking stool and the whipping post. That would be considered cruel and unusual now.

But it is parsing things rather finely to say that "the evolving standards of society" accept the death penalty for some crimes, but not for others. A ruling that any execution is unacceptably cruel would make more sense. Death is or is not cruel, death is or is not a just and acceptable penalty. On the other hand, if a state legislature adopted a statute providing for execution of habitual traffic offenders, most of us would expect the federal courts to overturn the law as providing for cruel and unusual punishment. It is simply out of all proportion for the crime.

I distrust the death penalty because our government is imperfect. Our legal system makes honest errors, and is subject to all kinds of corruption and manipulation. Not anywhere close to 100% of the time, but often enough to worry about. If someone has been wrongly imprisoned, we can release them, offer official apologies, compensate them with money. Once they are dead, no amends are possible, except to clear their name for the history books.

On the other hand, I admit to some admiration for John Grisham's perspective on the death penalty in his early novel, A Time to Kill. Grisham's protagonist observes "Carl Lee Hailey does not deserve to die, but the men who raped his daughter certainly did." (Hailey, a hard working family man with a dark complexion, took killing the men - the lowest predatory characters who ever justified the stereotype “poor white trash” - into his own hands. Hailey is therefore on trial for capital murder himself.) Grisham also observes, in a back-handed critique of the NAACP Legal Defense Fund Inc., that “Most Southern blacks along with most Southern whites who faced the gas chamber deserved the gas chamber."

There is a certain pragmatic accuracy to both observations. There is also a long history of southern courts executing twelve year old boys with dark skin for shooting the white man raping their mother, and executing the mother as an accessory. One hopes that if such a clear cut injustice occurred today in any state court, the federal courts would firmly overturn the guilty verdict as well as the sentence. Because it is “cruel and unusual punishment”? No, because there is no evidence that a crime has been committed. There is no more obvious case of justifiable homicide than killing a man in the very act of raping your mother.

Because the government is imperfect WOULD BE a sound reason to constitutionally ban all executions. There is a fundamental question, is the government competent to hold such power at all? However, no such provision exists in the constitution. It would have to be added. “We the People of the United States, who generally do not trust our government at any level, have concluded that our distrust of government is greater than our desire to see certain depraved criminals die for their crimes, and therefore enact that the penalty of death shall not be inflicted by any legal process in the United States.” That is not in the constitution at present. The Fourteenth Amendment, which provides that no person shall be deprived of “life, liberty or property without due process of law” strongly suggests that a person may constitutionally be deprived of life BY due process of law.

Who "deserves" to die is really not an appropriate question for constitutional law at all. The constitution deals with what powers the government has, not how it should use those powers that "We The People" have delegated to it. IF the government may impose a death penalty at all, then it is up to the legislative branch what crimes a convicted defendant should be executed for. Except if some state enacts a death penalty for third offense drunk driving. That would be so over the top that we would expect the courts to strike it down. Oh, maybe not. Maybe Mothers Against Drunk Driving would file an amicus curiae brief supporting the law. And armed robbery would be sort of in a gray zone, wouldn’t it? In England, a child could at one time be hanged for stealing anything worth twelve pennies or more.

If any crime is punishable by death, it would seem that rape of a child under the age of puberty by an adult over the age of eighteen would qualify. Many murders are less depraved. Murder can be very cold blooded, but it is often an act of desperation, without much thought at all. Rape requires a depravity that may also be present in murder, but not always. And a child? As Grisham also observes, that can inspire pure undiluted rage, and an overwhelming desire to put the perpetrator out of this world, Carl Lee Hailey’s way or by state law, but gone forever, one way or the other. The problem with vigilante justice is not so much that a guilty person dies sooner, but that often an innocent party is murdered, without considering the evidence, or a mob exacts death for a crime that has a much less severe legal penalty.

Somehow, the Supreme Court needs to do better than this. There is plenty of cause to severely limit the powers of government to make private acts a crime, or to intrude into personal and family lives. But a vague reference to “the evolving standards of society” with regard to defining the exact penalty that is commensurate with the rape of a child does not do much credit to the principle of judicial review. Maybe its excessive, maybe its not, but as Justice Antonin Scalia said on one of his better days, the constitution does not mean what we would like it to mean, it means what it says. We need judicial reasoning that rests firmly on what the actual language of the document really says.

Tuesday, July 1, 2008


Until I have something more profound to say, this is a place holder and introduction.

I am a Federalist in the spirit of James Madison, who believes that tyranny can arise from either state or federal governments, that it can be more difficult to prevent or overthrow tyranny in a smaller political unit, such as a state, than a larger unit, such as a nation, and that states rights have nothing whatsoever to do with individual liberties.

I believe that the better way to show respect for the holy name of Jesus would be not to insert it into legislative enactments.

I believe, as Justice Hugo Black put it, that when the constitution says "Congress shall pass no law" it means "Congress shall pass NO law" on a forbidden subject.

Naturally, I find The Federalist Society in its modern deformed incarnation to be anathema to the Constitution of the United States of America. It is generally full of men who would have been loyal to King George III had they lived in 1776.