"As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions."
The ravings of some fringe anarchist? The rantings of a social pariah, angry at being marginalized by "the system?"
Nope, this is the introductory paragraph published in the New York Times and written by Louis Michael Seidman. The same Louis Michael Seidman that is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University.
It is remarkable in its Herculean efforts of straw-man construction. As one who is partial to the textualist approach to constitutional interpretation I'm impressed with Professor Seidman's tango with arguments that nobody has ever made. It is easy to build up a body of half-truths and nonsensical extrapolations and then tear the whole thing down. When you present people with whom you disagree as idiots not meant to be taken seriously, to an audience all to eager to accept this presentation, you are freed from the obligation to make an actual argument that can withstand scrutiny.
But then the good professor saves anyone from the obligation of taking his argument seriously by basically saying "never mind." You see, he doesn't think the entire constitution is evil and should be ignored. Just the parts he doesn't like. "This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation."
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
01 January 2013
24 September 2010
Novel Concept
Commentator, legal-eagle, super-genius, Canadian...just some of the words one could use to describe Dahlia Lithwick. She covers the Supreme Court and other legal matters for slate.com and the NPR program Day to Day, among other things.
She recently wrote in an exchange at the "DoubleX" forum on slate.com (where questions about "what women really think about news, politics and culture" are answered--thank goodness) about Christine O'Donnell, the woman who won the Republican nomination for Senate from Delaware. She writes that she has "been fascinated by Christine O'Donnell's constitutional worldview. ... O'Donnell explained that 'when I go to Washington, DC, the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not its constitutional.'"
I don't know anything about O'Donnell. She could be the next Henry Clay or the next John Keryy. She could be nuttier than a squirrell's turd. I don't know. But I like where she's coming from, as far as her approach to legislation.
But what I think matters not. What matters, apparently, is what women really think about news, politics and culture. So, Ms. Lithwick, what did you think about Ms. O'Donnell?
"How weird is that, I thought. Isn't is a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?" (italics in original).
I would like to take a quick moment and reiterate that this woman, though born in Canada, got her JD from Stanford University and writes on the Supreme Court and other legal matters and, by god, helps let us know what women really think about news, politics and culture.
Well, Dahlia, you might want to look into another line of work and at least a partial refund from Stanford. Judicial review, the concept about which she seemingly knows nothing, is not provided for in the constitution. And legislators keeping in mind that the constitution (which can, in fact be read and understood even by those who haven't studied at places like Stanford) placed certain limits on what each of the branches of government can do is, to me anyway, refreshing.
She recently wrote in an exchange at the "DoubleX" forum on slate.com (where questions about "what women really think about news, politics and culture" are answered--thank goodness) about Christine O'Donnell, the woman who won the Republican nomination for Senate from Delaware. She writes that she has "been fascinated by Christine O'Donnell's constitutional worldview. ... O'Donnell explained that 'when I go to Washington, DC, the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not its constitutional.'"
I don't know anything about O'Donnell. She could be the next Henry Clay or the next John Keryy. She could be nuttier than a squirrell's turd. I don't know. But I like where she's coming from, as far as her approach to legislation.
But what I think matters not. What matters, apparently, is what women really think about news, politics and culture. So, Ms. Lithwick, what did you think about Ms. O'Donnell?
"How weird is that, I thought. Isn't is a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?" (italics in original).
I would like to take a quick moment and reiterate that this woman, though born in Canada, got her JD from Stanford University and writes on the Supreme Court and other legal matters and, by god, helps let us know what women really think about news, politics and culture.
Well, Dahlia, you might want to look into another line of work and at least a partial refund from Stanford. Judicial review, the concept about which she seemingly knows nothing, is not provided for in the constitution. And legislators keeping in mind that the constitution (which can, in fact be read and understood even by those who haven't studied at places like Stanford) placed certain limits on what each of the branches of government can do is, to me anyway, refreshing.
03 February 2010
Oh My
Behold Keith Olbermann equating Dred Scott v Sanford with Citizens United v Federal Election Commission. This is stunning. "Hyperbole" doesn't do this justice. Neither does "idiotic."
My favorite part, among many, is where he describes MSNBC and his show as an "independent" news source.
Just one thing for shits and giggles, though. He equates Chief Justice Roberts with Cheif Justice Taney and this decision with Dred Scott. No, really. That's his thesis, such as it is. This is stupid in so many ways, but let's just look at the most obvious. Taney wrote Dredd Scott; Roberts joined the holding opinion written by Justice Anthony Kennedy (he also wrote a concurring opinion joind by Justice Alito).
Further, Olbermann hates the "personhood" bestowed upon corporations. And one might think that this opinion did that. It didn't. Corporate "personhood" predates John Roberts, Keith Olbermann, Roger Taney, John Marshall, Thomas Jefferson, the Constitution and the Declaration of Independence. It is a common law tradition. Just because individuals, exercsing their right to assemble and following their applicable state laws in incorporating, form a corporation doesn't grant the government any more power over them than what the government had before incorporating.
My favorite part, among many, is where he describes MSNBC and his show as an "independent" news source.
Just one thing for shits and giggles, though. He equates Chief Justice Roberts with Cheif Justice Taney and this decision with Dred Scott. No, really. That's his thesis, such as it is. This is stupid in so many ways, but let's just look at the most obvious. Taney wrote Dredd Scott; Roberts joined the holding opinion written by Justice Anthony Kennedy (he also wrote a concurring opinion joind by Justice Alito).
Further, Olbermann hates the "personhood" bestowed upon corporations. And one might think that this opinion did that. It didn't. Corporate "personhood" predates John Roberts, Keith Olbermann, Roger Taney, John Marshall, Thomas Jefferson, the Constitution and the Declaration of Independence. It is a common law tradition. Just because individuals, exercsing their right to assemble and following their applicable state laws in incorporating, form a corporation doesn't grant the government any more power over them than what the government had before incorporating.
21 January 2010
Who Gives What to Whom?
I read an article by Andrew McCarthy (may be restricted) in a recent issue of National Review where he takes Attorney General Eric Holder to task for bringing the 9/11 masterminds to New York for a jury trial. As is usually the case, Mr. McCarthy is tendentious and very fond of recalling that he worked on the first World Trade Center bombing case (I've yet to see a piece written by him that doesn't mention this in one way or another). Also he faults Mr. Holder for being overly political (!) in the AGs office.
I'm not going to address McCarthy's bromides against Holder, some of which have merit (the dropping of the investigation/prosecution of the Black Panthers harassing voters in Philadelphia is an embarrassment), others don't. But McCarthy repeats a meme I've heard over and over from all sorts of sources and political directions that I'd like to address. At one point he writes:
Again, let's leave aside the stridency of the statement and focus on, "to vest ... with constitutional rights."
Eric Holder can't give anyone constitutional rights. No one can. The constitution doesn't "give" rights to anyone, foreign or domestic, and the government that is established by the constitution and it's myriad bureaucrats and lackeys can do no such thing either. The constitution establishes, defines and limits our federal government. It separates three general functions of government into three co-equal branches and says what they are and can or can't do. Vaguely and with heaping doses of ambiguity to be sure, but that's really all it does. Now, the government doesn't give you, me or him the right to free speech or press or religion or guns, it merely specifies a few that the founders thought necessary to clarify. Otherwise it is understood then, as it should be now, that they set up a powerful but limited federal government saying that any powers not given to the government by the people herein are reserved to the states or the people.
You see, we are the sovereigns. The assumption should be, should always be, that we have all of the rights necessary to secure our life, liberty and pursuit of happiness. We are free to do whatever we damn well please so long as we don't harm another or his property and are willing to accept any and all consequences for our actions. And the laws that we are to obey, such as they are, are to be promulgated and enforced by the states unless there is compelling federal interest and constitutional authority for the feds to be involved at all. The feds establishing rules for ingress and naturalization of foreigners would be a prime example of legitimate federal authority (being run quite poorly at the time being, by the way, but legitimate nonetheless). The feds telling the states what the speed limit or legal definition of drunk driving, say, isn't.
How do we treat foreigners held by our government? Well that depends. Are they here and did they violate any of our laws? Well then the appropriate authorities should detain them until the penalty is served and then, if here illegally or with a visa, they should be tossed home. What about those picked up overseas? Now we get into some murky areas. Are they picked up in the theater of war? If so, then they should be held pursuant to military rules and customs and under the auspices of any binding treaties. What about nasty people like the guys the CIA picked up in Italy that may or may not have been thinking about doing nasty things to us? Well, they shouldn't do that. No agent of our government has any authority to detain anyone in the world not on sovereign soil (except in the theater or war exception above).
Would that put Americans more at risk? Who knows? The job our security and intelligence agencies have done over the last few decades has shown, if nothing else, that we've pissed away a whole bunch of money and haven't been any safer or more secure, just less free. There is also some implied risk in living in a free and just society (see David Foster Wallace here).
I just wanted to get that off my chest. So now you know. Anytime you hear about the US giving rights to anyone, you'll know I just got a little bit more aggravated. I hope you will, too.
I'm not going to address McCarthy's bromides against Holder, some of which have merit (the dropping of the investigation/prosecution of the Black Panthers harassing voters in Philadelphia is an embarrassment), others don't. But McCarthy repeats a meme I've heard over and over from all sorts of sources and political directions that I'd like to address. At one point he writes:
"In November, Holder announced what he insists is his own decision to vest
Khalid Sheikh Mohammed and four other jihadists with the constitutional rights
once enjoyed by Mark Bingham and the nearly 3,000 other Americans they
massacred."
Again, let's leave aside the stridency of the statement and focus on, "to vest ... with constitutional rights."
Eric Holder can't give anyone constitutional rights. No one can. The constitution doesn't "give" rights to anyone, foreign or domestic, and the government that is established by the constitution and it's myriad bureaucrats and lackeys can do no such thing either. The constitution establishes, defines and limits our federal government. It separates three general functions of government into three co-equal branches and says what they are and can or can't do. Vaguely and with heaping doses of ambiguity to be sure, but that's really all it does. Now, the government doesn't give you, me or him the right to free speech or press or religion or guns, it merely specifies a few that the founders thought necessary to clarify. Otherwise it is understood then, as it should be now, that they set up a powerful but limited federal government saying that any powers not given to the government by the people herein are reserved to the states or the people.
You see, we are the sovereigns. The assumption should be, should always be, that we have all of the rights necessary to secure our life, liberty and pursuit of happiness. We are free to do whatever we damn well please so long as we don't harm another or his property and are willing to accept any and all consequences for our actions. And the laws that we are to obey, such as they are, are to be promulgated and enforced by the states unless there is compelling federal interest and constitutional authority for the feds to be involved at all. The feds establishing rules for ingress and naturalization of foreigners would be a prime example of legitimate federal authority (being run quite poorly at the time being, by the way, but legitimate nonetheless). The feds telling the states what the speed limit or legal definition of drunk driving, say, isn't.
How do we treat foreigners held by our government? Well that depends. Are they here and did they violate any of our laws? Well then the appropriate authorities should detain them until the penalty is served and then, if here illegally or with a visa, they should be tossed home. What about those picked up overseas? Now we get into some murky areas. Are they picked up in the theater of war? If so, then they should be held pursuant to military rules and customs and under the auspices of any binding treaties. What about nasty people like the guys the CIA picked up in Italy that may or may not have been thinking about doing nasty things to us? Well, they shouldn't do that. No agent of our government has any authority to detain anyone in the world not on sovereign soil (except in the theater or war exception above).
Would that put Americans more at risk? Who knows? The job our security and intelligence agencies have done over the last few decades has shown, if nothing else, that we've pissed away a whole bunch of money and haven't been any safer or more secure, just less free. There is also some implied risk in living in a free and just society (see David Foster Wallace here).
I just wanted to get that off my chest. So now you know. Anytime you hear about the US giving rights to anyone, you'll know I just got a little bit more aggravated. I hope you will, too.
26 May 2009
Reaching Better Conclusions
Judge Sonya Sotomayor, President Obama's first nominee to the Supreme Court has said:
I'll say yet again, judges being empathetic is just dandy, so long as their empathy doesn't interfere with their interpretation of the law. But how, specifically, did Ledbetter betray any sense of empathy? The legislature was silent on a particular issue, the plaintiff sued based on a particular statute and not another, where the question of the timeliness of the act was covered in her favor. Were the justices to say, "Well the statute is silent on this particular matter and it is obvious that there was discrimination (they held that there was) so we'll decide in her favor"?
Nonsense.
It is tough to tell what reasoning they should have had because former constitutional scholar and professor Obama did not share any specifics.
But soon we will have Justice Sotomayor (alas, only one of her) and we will then be able to know all that we've been missing throughout our poor history; wanting the richness of experience that she will now be in position to share.
A few other points: she's not Latina. She's American of Puerto Rican descent. There is no Latin America. At least not on any map I've ever seen. The Caribbean Islands and Central and South America were conquered and settled by the Spanish and Portugese. I can't recall ever hearing the phrase Latin American before the 1990s. The use of Latin, in this sense, is due to the fact that the areas were ruled by nations who spoke Romance languages, of which, coincidentally, English is one. Languages derived from the mother Roman tongue, Latin. These cultures are no more ingrained with ancient Roman culture than the US or Canada, and in some instances very much farther removed. So technically, all of the Americas are Latin America and someone born in the Bronx in 1954 would do just as well to look at herself as an American first and foremost, one who is about to have a pretty damn important job.
It also grates my gears when native English speakers pronounce it "Lateena," or better yet "Lateeña," to show that they're hip or whatever. I've noticed this is only done with Spanish and no other language--other that when the talking heads starting speaking of Qatar and pronouncing it gutter as a fluent Arabian might, except those fluent Arabians at the Qatari embassy who would pronounce it Qatar because they were in America. Paris is never, thankfully, referred to as Paree. I've never heard anyone affect the proper German (or hoch Deutsch) pronunciation of Bonn or Berlin. When I took German in high school and college I briefly affected the German accent when speaking of particular towns or phrases, properly pronouncing Gesundhëit and such. I sounded like, and was, a horse's ass.
I've heard of Judge Sotomayor bfore (she was involved in the labor dispute between Major League Baseball and the Players Association in the mid-90s) and her name was always pronounced as it reads, emphasis on the "s" and crisp pronunciation of the "t" and mayor was articulated the same was as the elected officials on large towns and cities. But this morning, the Latin bug (in the bastardized, identity-politics sense) seemed to creep out of hiding and the emphasis is "SoTomayOR."
I don't know how she'll be as a justice, she may end up being as good as Souter sucked--I doubt it, but one can hope, eh? But her above referenced quote is disturbing, as is Obama's view of what baggage a judge should carry with him when reading a text.
UPDATE: Eugene Volokh considers whether Benjamin Cardozo, who was Hispanic, was also "Latin." He seems to accept as legitimate, though ruefully, the "latino/a" moniker.
Again, it's a false creation for political purposes. If proposed legislation in America were to benefit, say, Panama or Nicaragua it may or may not pass based on the merits of the actual legislation. If the legislation is phrased to benefit "Latin America" or "Latin Americans" its passage is all but guaranteed--unless its a free-trade agreement that pisses off the unions, then there might be some issues, but its identity politics all the same
Justice [Sandra Day] O'Connor has often been cited as saying that a wiseIf this is her feeling, then its obvious that the bench need be made up solely of women on Hispanic descent. They will reach better conclusions due to the richness of their experiences that no mere caucasion could fathom. Was Ledbetter decided properly? According to the president it wasn't, as this is the case that he cited when saying he wants empathetic judges.
old man and wise old woman will reach the same conclusion in deciding cases....
I am... not so sure that I agree with the statement. First... there can never be
a universal definition of wise. Second, I would hope that a wise Latina woman
with the richness of her experiences would more often than not reach a better
conclusion than a white male who hasn't lived that life.
I'll say yet again, judges being empathetic is just dandy, so long as their empathy doesn't interfere with their interpretation of the law. But how, specifically, did Ledbetter betray any sense of empathy? The legislature was silent on a particular issue, the plaintiff sued based on a particular statute and not another, where the question of the timeliness of the act was covered in her favor. Were the justices to say, "Well the statute is silent on this particular matter and it is obvious that there was discrimination (they held that there was) so we'll decide in her favor"?
Nonsense.
It is tough to tell what reasoning they should have had because former constitutional scholar and professor Obama did not share any specifics.
But soon we will have Justice Sotomayor (alas, only one of her) and we will then be able to know all that we've been missing throughout our poor history; wanting the richness of experience that she will now be in position to share.
A few other points: she's not Latina. She's American of Puerto Rican descent. There is no Latin America. At least not on any map I've ever seen. The Caribbean Islands and Central and South America were conquered and settled by the Spanish and Portugese. I can't recall ever hearing the phrase Latin American before the 1990s. The use of Latin, in this sense, is due to the fact that the areas were ruled by nations who spoke Romance languages, of which, coincidentally, English is one. Languages derived from the mother Roman tongue, Latin. These cultures are no more ingrained with ancient Roman culture than the US or Canada, and in some instances very much farther removed. So technically, all of the Americas are Latin America and someone born in the Bronx in 1954 would do just as well to look at herself as an American first and foremost, one who is about to have a pretty damn important job.
It also grates my gears when native English speakers pronounce it "Lateena," or better yet "Lateeña," to show that they're hip or whatever. I've noticed this is only done with Spanish and no other language--other that when the talking heads starting speaking of Qatar and pronouncing it gutter as a fluent Arabian might, except those fluent Arabians at the Qatari embassy who would pronounce it Qatar because they were in America. Paris is never, thankfully, referred to as Paree. I've never heard anyone affect the proper German (or hoch Deutsch) pronunciation of Bonn or Berlin. When I took German in high school and college I briefly affected the German accent when speaking of particular towns or phrases, properly pronouncing Gesundhëit and such. I sounded like, and was, a horse's ass.
I've heard of Judge Sotomayor bfore (she was involved in the labor dispute between Major League Baseball and the Players Association in the mid-90s) and her name was always pronounced as it reads, emphasis on the "s" and crisp pronunciation of the "t" and mayor was articulated the same was as the elected officials on large towns and cities. But this morning, the Latin bug (in the bastardized, identity-politics sense) seemed to creep out of hiding and the emphasis is "SoTomayOR."
I don't know how she'll be as a justice, she may end up being as good as Souter sucked--I doubt it, but one can hope, eh? But her above referenced quote is disturbing, as is Obama's view of what baggage a judge should carry with him when reading a text.
UPDATE: Eugene Volokh considers whether Benjamin Cardozo, who was Hispanic, was also "Latin." He seems to accept as legitimate, though ruefully, the "latino/a" moniker.
Again, it's a false creation for political purposes. If proposed legislation in America were to benefit, say, Panama or Nicaragua it may or may not pass based on the merits of the actual legislation. If the legislation is phrased to benefit "Latin America" or "Latin Americans" its passage is all but guaranteed--unless its a free-trade agreement that pisses off the unions, then there might be some issues, but its identity politics all the same
24 March 2009
On Scalia
It's a shame I didn't read this until after I watched the interview series with Supreme Court Justice Anotin Scalia that the "legal analyst" for CBS News purports to analyze.
But I'll leave it for you. Here is the interview (Part I, II, III, IV & V).
There is also his interview with Lesley Stahl on 60 Minutes:
Part I & Part II.--Sorry for the links, I'm having a hell of a time embedding video on blogger recently.
There is also his excellent work, A Matter of Interpretation which I've mentioned around here a few times. Look into any of these works, or better yet, read a few of Justice Scalia's opinions. Does any of this material square with the image presented by the "legal analyst" for CBS News? If anyone thinks it does, I'd love to hear how.
UPDATE: Hadn't seen this, apparently Justice Scalia is also now a homophobe.
But I'll leave it for you. Here is the interview (Part I, II, III, IV & V).
There is also his interview with Lesley Stahl on 60 Minutes:
Part I & Part II.--Sorry for the links, I'm having a hell of a time embedding video on blogger recently.
There is also his excellent work, A Matter of Interpretation which I've mentioned around here a few times. Look into any of these works, or better yet, read a few of Justice Scalia's opinions. Does any of this material square with the image presented by the "legal analyst" for CBS News? If anyone thinks it does, I'd love to hear how.
UPDATE: Hadn't seen this, apparently Justice Scalia is also now a homophobe.
20 November 2008
Glass Half Full
So I was pondering how much I'm going to disagree with the next administration and how much the current administration and congress handling of the economic crisis will probably give me an ulcer and maybe ruin my profession.
Then I got to thinking, is there anything to be hopeful about? Any change I can believe in?
My hope is that President-elect Obama will help lead some necessary change in our drug policy, and if you're listening, here's my proposal:
Take the current federal drug control policy, including foreign interdiction, the entire DEA and all funding and grants to the states and throw them out. Then...
Don't do another thing.
Nice and easy and you heard it here first.
Then I got to thinking, is there anything to be hopeful about? Any change I can believe in?
My hope is that President-elect Obama will help lead some necessary change in our drug policy, and if you're listening, here's my proposal:
Take the current federal drug control policy, including foreign interdiction, the entire DEA and all funding and grants to the states and throw them out. Then...
Don't do another thing.
Nice and easy and you heard it here first.
19 November 2008
Gay Marriage
Since the debate over whether gays & lesbians have a "right" to marriage started brewing several years ago, my thoughts on the matter took time to coalesce. But coalesce they did and here's what I came up with:
Marriage is a legal arrangement between parties that have attendant legal rights; the ability to take title to property as "tenants by the entirety," is one small example and the one with which I am most familiar.
State legislatures have the authority to define legal arrangements in their respective states. Other states, under Article IV (full faith and credit clause) must abide by these arrangements unless otherwise proscribed by congress. Which congress took care of with the absurdly named "Defense of Marriage Act." I think the name foolish, but the authority of the congress to do this is without question. So it was fine to me the way things were going. And I thought a constitutional amendment trying to define marriage was/is an asinine idea.
The libertarian in me doesn't care about who wants to marry whom, but the small conservative in me (getting smaller by the day) prefers that the arrangement be handled by the state legislatures. I didn't think this an area where judges have the authority to decide that now things are different, and we now think that marriage can be between people of the same gender.
The past tense in that last sentence probably gave me away.
I was in traffic tonight pondering this (there was a news update on NPR about the California Supreme Court hearing challenges to the recently passed Proposition 8). I was going through in my head, again, that the states are well within their rights to decide who can engage with whom in certain contracts when it hit me.
No, they can't.
The Commonwealth of Pennsylvania (for example only) can corporately dislike gay people and gay lifestyles and everything else gay. But the Commonwealth of Pennsylvania has certain rules set-up affecting the establishment of corporations/partnerships/legal arrangements. If two or more people join together to form a Limited Liability Company or a Corporation, following the proper guidelines established by the legislature (a legitimate, if overwrought, use of government authority) no state or commonwealth can proscribe a particular class of citizens (however defined) from assembly--not including criminals (it seems reasonable to me to prevent certain types of convicted felons from participating in certain activities).
In other words, if the people of Pennsylvania tried to say, via legislation, that gays could not form a General Partnership, the legislation would be promptly (& rightly) rent asunder by any court worthy of the name. The same holds true for licensing authority. There is no compelling reason for the state to deny a gay person a driver's license, an insurance license or a license to do any of the other things that the state in it's infinite wisdom deem requisite of licensing.
The argument that "marriage is different" fails in that the same argument could have been made to justify and perpetuate any social change that is now taken for granted that wasn't explicitly sanctioned by legislature. For example, women were able to own, purchase and transfer property without express statutory authorization. Cultural norms, of which I'm typically a fan, slowly evolved from only white, Christian men being allowed to take title to everyone being able to, regardless of gender, creed, race or sexual orientation. It fails the reasonableness test to claim that gays can participate in every other form of legal contract, save this one. You know, because they'd ruin it.
If marriage (or our culture) can't withstand the "assault" of gays wanting to be married, then what good is it?
None of the above changes the fact that this is still entirely a state issue and of no concern of the federal government in any context.
Marriage is a legal arrangement between parties that have attendant legal rights; the ability to take title to property as "tenants by the entirety," is one small example and the one with which I am most familiar.
State legislatures have the authority to define legal arrangements in their respective states. Other states, under Article IV (full faith and credit clause) must abide by these arrangements unless otherwise proscribed by congress. Which congress took care of with the absurdly named "Defense of Marriage Act." I think the name foolish, but the authority of the congress to do this is without question. So it was fine to me the way things were going. And I thought a constitutional amendment trying to define marriage was/is an asinine idea.
The libertarian in me doesn't care about who wants to marry whom, but the small conservative in me (getting smaller by the day) prefers that the arrangement be handled by the state legislatures. I didn't think this an area where judges have the authority to decide that now things are different, and we now think that marriage can be between people of the same gender.
The past tense in that last sentence probably gave me away.
I was in traffic tonight pondering this (there was a news update on NPR about the California Supreme Court hearing challenges to the recently passed Proposition 8). I was going through in my head, again, that the states are well within their rights to decide who can engage with whom in certain contracts when it hit me.
No, they can't.
The Commonwealth of Pennsylvania (for example only) can corporately dislike gay people and gay lifestyles and everything else gay. But the Commonwealth of Pennsylvania has certain rules set-up affecting the establishment of corporations/partnerships/legal arrangements. If two or more people join together to form a Limited Liability Company or a Corporation, following the proper guidelines established by the legislature (a legitimate, if overwrought, use of government authority) no state or commonwealth can proscribe a particular class of citizens (however defined) from assembly--not including criminals (it seems reasonable to me to prevent certain types of convicted felons from participating in certain activities).
In other words, if the people of Pennsylvania tried to say, via legislation, that gays could not form a General Partnership, the legislation would be promptly (& rightly) rent asunder by any court worthy of the name. The same holds true for licensing authority. There is no compelling reason for the state to deny a gay person a driver's license, an insurance license or a license to do any of the other things that the state in it's infinite wisdom deem requisite of licensing.
The argument that "marriage is different" fails in that the same argument could have been made to justify and perpetuate any social change that is now taken for granted that wasn't explicitly sanctioned by legislature. For example, women were able to own, purchase and transfer property without express statutory authorization. Cultural norms, of which I'm typically a fan, slowly evolved from only white, Christian men being allowed to take title to everyone being able to, regardless of gender, creed, race or sexual orientation. It fails the reasonableness test to claim that gays can participate in every other form of legal contract, save this one. You know, because they'd ruin it.
If marriage (or our culture) can't withstand the "assault" of gays wanting to be married, then what good is it?
None of the above changes the fact that this is still entirely a state issue and of no concern of the federal government in any context.
01 October 2008
Sarah, Sarah, Sarah
I'm just gonna squint my eyes realll tight when I vote for McCain so his is the only name I can read when I pull the lever.
Sarah Palin was recently interviewed by professional hairdo Katie Couric and was asked, inter alia, about Roe v. Wade:
Couric: Why, in your view, is Roe v. Wade a bad decision?
Sarah Palin: I think it should be a states' issue not a federal government-mandated, mandating yes or no on such an important issue. I'm, in that sense, a federalist, where I believe that states should have more say in the laws of their lands and individual areas. Now, foundationally, also, though, it's no secret that I'm pro-life that I believe in a culture of life is very important for this country. Personally that's what I would like to see, um, further embraced by America.
Couric: Do you think there's an inherent right to privacy in the Constitution?
Palin: I do. Yeah, I do.
Couric: The cornerstone of Roe v. Wade.
Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.
Couric: What other Supreme Court decisions do you disagree with?
Palin: Well, let's see. There's, of course in the great history of America there have been rulings, that's never going to be absolute consensus by every American. And there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So you know, going through the history of America, there would be others but …
Couric: Can you think of any?
Palin: Well, I could think of … any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.
I'll give a pass on not being able to verbalize clearly her views on inherent, un-enumerated constitutional rights and that the states are the arbiters of what "privacy" is. This a question most people would need to ponder and chew on for some time to be able to answer succinctly. The problem is that if you give these candidates essay questions you can be sure as shootin' they ain't gonna be the ones answering them.
But on the "other cases" question, her answer is not acceptable. You're a federalist, eh? You were recently a mayor and are now a governor? You're familiar, of course, with eminent domain?
HOW CAN YOU NOT NAME KELO?!?
She was campaigning for governor when the decision was handed down. This (absolutely horrible) decision affects every town, burg, township, city, borough, hamlet and state in the frickin' Union! It speaks directly to liberty and property rights and judicial activism and caused not a little uproar when it was handed down. John Street knew about it for Christ's sake!
OK, maybe knowing the case name off the top of your head is asking too much, but even saying, "You know, the one where they took the lady's house to develop condos? And called it "public use?"...that one?" Ending your declarative statements with that little lilt of a question at the end? Since you don't really know what you're talking about? You know?
And the pap about no consensus on Supreme Court opinions in the "great history of America." She talks like the third-string on a small high school forensics team.
Why doesn't this dreadful performance make me switch my vote?
Because Biden's answer, while seemingly more informed, was worse. Just because you can introduce 1000 hours of testimony into the legislative record saying that something might affect interstate commerce doesn't make it so. Not every distasteful act is a federal offense. In fact, based on the limited scope of (designed) federal authority, there should really be scant few federal offenses. And Senators shouldn't be larding up the congressional record and the federal court system trying to invent new ones.
Further, his statement that Roe is a good decision becuase it is "as close to consensus that can exist in a society as heterogeneous as ours[,]" is simply stunning in it's stupidity. We've reached consensus on this issue? Democratic societies reach consensus via the courts? I thought that was done through the legislatures. It is not the role of the judge to assume the responsibility of building a consensus for society. I will digress on Roe more later.
And because Palin's devolution into Quayle II doesn't bode as ill as Barack's dedication to the further expansion of the federal government and the attendant loss of liberty that entails.
Maybe I'll vote for Barr after all. I'm going to a Libertarian event at the National Constitution Center tomorrow night. Maybe that'll convince me to waste my vote.
Sarah Palin was recently interviewed by professional hairdo Katie Couric and was asked, inter alia, about Roe v. Wade:
Couric: Why, in your view, is Roe v. Wade a bad decision?
Sarah Palin: I think it should be a states' issue not a federal government-mandated, mandating yes or no on such an important issue. I'm, in that sense, a federalist, where I believe that states should have more say in the laws of their lands and individual areas. Now, foundationally, also, though, it's no secret that I'm pro-life that I believe in a culture of life is very important for this country. Personally that's what I would like to see, um, further embraced by America.
Couric: Do you think there's an inherent right to privacy in the Constitution?
Palin: I do. Yeah, I do.
Couric: The cornerstone of Roe v. Wade.
Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.
Couric: What other Supreme Court decisions do you disagree with?
Palin: Well, let's see. There's, of course in the great history of America there have been rulings, that's never going to be absolute consensus by every American. And there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So you know, going through the history of America, there would be others but …
Couric: Can you think of any?
Palin: Well, I could think of … any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.
I'll give a pass on not being able to verbalize clearly her views on inherent, un-enumerated constitutional rights and that the states are the arbiters of what "privacy" is. This a question most people would need to ponder and chew on for some time to be able to answer succinctly. The problem is that if you give these candidates essay questions you can be sure as shootin' they ain't gonna be the ones answering them.
But on the "other cases" question, her answer is not acceptable. You're a federalist, eh? You were recently a mayor and are now a governor? You're familiar, of course, with eminent domain?
HOW CAN YOU NOT NAME KELO?!?
She was campaigning for governor when the decision was handed down. This (absolutely horrible) decision affects every town, burg, township, city, borough, hamlet and state in the frickin' Union! It speaks directly to liberty and property rights and judicial activism and caused not a little uproar when it was handed down. John Street knew about it for Christ's sake!
OK, maybe knowing the case name off the top of your head is asking too much, but even saying, "You know, the one where they took the lady's house to develop condos? And called it "public use?"...that one?" Ending your declarative statements with that little lilt of a question at the end? Since you don't really know what you're talking about? You know?
And the pap about no consensus on Supreme Court opinions in the "great history of America." She talks like the third-string on a small high school forensics team.
Why doesn't this dreadful performance make me switch my vote?
Because Biden's answer, while seemingly more informed, was worse. Just because you can introduce 1000 hours of testimony into the legislative record saying that something might affect interstate commerce doesn't make it so. Not every distasteful act is a federal offense. In fact, based on the limited scope of (designed) federal authority, there should really be scant few federal offenses. And Senators shouldn't be larding up the congressional record and the federal court system trying to invent new ones.
Further, his statement that Roe is a good decision becuase it is "as close to consensus that can exist in a society as heterogeneous as ours[,]" is simply stunning in it's stupidity. We've reached consensus on this issue? Democratic societies reach consensus via the courts? I thought that was done through the legislatures. It is not the role of the judge to assume the responsibility of building a consensus for society. I will digress on Roe more later.
And because Palin's devolution into Quayle II doesn't bode as ill as Barack's dedication to the further expansion of the federal government and the attendant loss of liberty that entails.
Maybe I'll vote for Barr after all. I'm going to a Libertarian event at the National Constitution Center tomorrow night. Maybe that'll convince me to waste my vote.
18 September 2008
Words to Live By
"Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays thetreasury. There is not even a patriotic duty to increase one's taxes.Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands."
--Judge Learned Hand
This was first presented to me by an attorney who was explaining the difference between tax avoidance (legal) and tax evasion (not).
This is, of course, contra to Joe Biden saying the it is the patriotic duty of wealthy people to pay more in taxes. Feh.
--Judge Learned Hand
This was first presented to me by an attorney who was explaining the difference between tax avoidance (legal) and tax evasion (not).
This is, of course, contra to Joe Biden saying the it is the patriotic duty of wealthy people to pay more in taxes. Feh.
26 August 2008
Calling Harrison Bergeron
9 year-old pitcher not allowed to play in 8-10 year-old little league team "because he's too good." Story here, and detailing the requisite follow-up legal action here.
Money line:
I was watching the Incredibles this weekend, uh with my daughter, and this story brought back this dialogue:
Title comes from this (excellent) story by Kurt Vonnegut.
Money line:
Jericho ’s pitches are so fast and accurate that league officials and some
parents feared their kids weren’t able to play freely, league attorney Peter
Noble said recently.
I was watching the Incredibles this weekend, uh with my daughter, and this story brought back this dialogue:
Helen: Everyone's special, Dash.
Dash: [muttering] Which is another way of saying no one is.
Title comes from this (excellent) story by Kurt Vonnegut.
16 July 2008
Habeas, he said
Well, I've learned as much as I care to about habeas corpus, and my reading of it tends to side with the dissent in Boumediene.
The writ is labeled as a privilege in the Constitution and the legislature has the authority to suspend it. Whether only in the cases of Rebellion or Invasion seems a bit restrictive if generally "the public Safety may require it." In other words, I don't think Congress only has the power to restrict habeas during a Civil War or foreign invasion. I think Lincoln over-stepped his bounds during the Civil War, but he did have the aggravating factor that congress was not in session when he ordered the writ suspended. Congressional authorization was sought and received when congress reconvened.
Bush, as is typical, was completely off the reservation in thinking that he could detain anyone, anywhere, indefinitely due to his "unitary" authority, without any legislative aid. I don't think the Authorization for Use of Military Force implicitly grants the president this authority, either. The Military Commissions Act of 2006, however, did.
I appreciate the holding opinion in Boumediene, especially as it relates to the open-endedness of the conflict and the fact that we do not have a formal declaration of war with an established state to whom the prisoners would be returned upon formal cessation of hostilities. But I do not think that this trumps Congressional authority in this instance. If these are prisoners taken on the battlefield, then the executive, with congressional authorization, has the ability to hold prisoners without challenge.
The question, to me, is not whether constitutional rights extend to foreigners. We established a limited government. The question is whether the constitution grants the government the authority to detain non-citizens indefinitely without recourse. Also, what of those not detained on the actual field of battle. Better yet, what is the actual field of battle. My heart says that the government was not given that authority (security, security, they cried!, notwithstanding).
My head says that based on our history and the relevant texts (and yes, past and current congressional quiescence in times of conflict), the legislature and executive were correct and the supremes over-stepped their boundaries on this one.
That being said, the administration and congress are now in a position to have to create a system where they must justify the detention of those held (one of the major discrepancies between this case and Eisentrager is that the enemy aliens in that case admitted they were such; the current case involves people challenging their classification to begin with). If the government can prove its case for holding them, then they're fine. This only increases openness and accountability from our government. Which is as it should be.
And for those that think that any restriction on Bush's "unitary" authority as commander-in-chief will directly lead to another attack, please let it be known that if the executive authority was enforcing the laws that were then on the books, 9/11 could have been prevented.
Neither the world nor the constitution changed on 9/11, a bunch of assholes took advantage of non-enforcement and got lucky. To take credit for there not being another attack since then ignores the fact that the first attack did happen on their watch.
Neither our constitution nor our sovereignty has ever been at stake. And for the administration constantly to float the canard otherwise is insulting.
The sacrifice of liberty for security is a losing proposition all around.
The writ is labeled as a privilege in the Constitution and the legislature has the authority to suspend it. Whether only in the cases of Rebellion or Invasion seems a bit restrictive if generally "the public Safety may require it." In other words, I don't think Congress only has the power to restrict habeas during a Civil War or foreign invasion. I think Lincoln over-stepped his bounds during the Civil War, but he did have the aggravating factor that congress was not in session when he ordered the writ suspended. Congressional authorization was sought and received when congress reconvened.
Bush, as is typical, was completely off the reservation in thinking that he could detain anyone, anywhere, indefinitely due to his "unitary" authority, without any legislative aid. I don't think the Authorization for Use of Military Force implicitly grants the president this authority, either. The Military Commissions Act of 2006, however, did.
I appreciate the holding opinion in Boumediene, especially as it relates to the open-endedness of the conflict and the fact that we do not have a formal declaration of war with an established state to whom the prisoners would be returned upon formal cessation of hostilities. But I do not think that this trumps Congressional authority in this instance. If these are prisoners taken on the battlefield, then the executive, with congressional authorization, has the ability to hold prisoners without challenge.
The question, to me, is not whether constitutional rights extend to foreigners. We established a limited government. The question is whether the constitution grants the government the authority to detain non-citizens indefinitely without recourse. Also, what of those not detained on the actual field of battle. Better yet, what is the actual field of battle. My heart says that the government was not given that authority (security, security, they cried!, notwithstanding).
My head says that based on our history and the relevant texts (and yes, past and current congressional quiescence in times of conflict), the legislature and executive were correct and the supremes over-stepped their boundaries on this one.
That being said, the administration and congress are now in a position to have to create a system where they must justify the detention of those held (one of the major discrepancies between this case and Eisentrager is that the enemy aliens in that case admitted they were such; the current case involves people challenging their classification to begin with). If the government can prove its case for holding them, then they're fine. This only increases openness and accountability from our government. Which is as it should be.
And for those that think that any restriction on Bush's "unitary" authority as commander-in-chief will directly lead to another attack, please let it be known that if the executive authority was enforcing the laws that were then on the books, 9/11 could have been prevented.
Neither the world nor the constitution changed on 9/11, a bunch of assholes took advantage of non-enforcement and got lucky. To take credit for there not being another attack since then ignores the fact that the first attack did happen on their watch.
Neither our constitution nor our sovereignty has ever been at stake. And for the administration constantly to float the canard otherwise is insulting.
The sacrifice of liberty for security is a losing proposition all around.
18 June 2008
Say Again, part II
Continued...
Then there is this piece from yesterday's Wall Street Journal (I will reprint the entire article below in case those rat bastards pull the article from free public viewing).
In the article, which is a condensed interview with Obama on the economy, the would-be president had this to say:
I find it morally repugnant and more than a little frightening that Barack Obama sees it as a legitimate function of goverment to redistribute wealth "equitably." He also says it nonchalantly. Left unsaid is who gets to define "equitably."
Further, there's this:
His view of the role of goverment and from whence authority flows is anathema to me. Corporate profits are the property of the stakeholders to do what they deem best for themselves corporately. Taxes on corporations are silly and counterproductive. They serve merely as an indirect tax on the people. Any tax burden is simply passed through to the cost of the goods or services provided. Even Robert Reich agrees with this. The only people who benefit from corporate taxes are CPAs and tax attorneys.
Obama's views skew far beyond mere Keynesian economics and tiptoes towards authoritarianism.
The government should take only what it needs to perform its defined functions*, and those restrictions should be read very narrowly. Anything more is an unjust dimunition of liberty or taking of property.
We've just had eight years of staggering incompetence from a man who said that when people hurt, government has got to move. We've also seen what happens when people depend upon the federal government to provide that which is beyond its purview or competence.
For the reasons stated above and below, I cannot vote for Barack Obama. I will address the thorny war issue specifically and foreign relations generally in due time.
†I've been advised that if one is to go on about such things, one must put forth whether or not he is a lawyer. This is a custom I will follow here and probably never again. One must be a lawyer to practice law. One needn't be a lawyer to read current events and know what the constitution or legislature says about this or that. To read the law takes no expertise. And if any of my arguments are deemed insufficient, I will gladly accept any legitmate criticism. The fact that I am not a lawyer is not legitimate criticism or refutation of any point, it is a straw man.
WSJ article:
Obama Plans Spending Boost, Possible Cut in Business Tax
By BOB DAVIS and AMY CHOZICKJune 17, 2008; Page A1
FLINT, Mich. -- Sen. Barack Obama shed new light on his economic plans for the country, saying he would rely on a heavy dose of government spending to spur growth, use the tax code to narrow the widening gap between winners and losers in the U.S. economy, and possibly back a reduction in corporate tax rates.
In an interview with The Wall Street Journal, the Illinois Democrat said that he was trying to put together tax and spending policies that dealt with two challenges. One is the competition from rapidly growing developing countries, like India and China. The other: the U.S. becoming what he called a "winner-take-all" economy, where the gains from economic growth skew heavily toward the wealthy.
Sen. Obama cited new economic forces to explain what appears like a return to an older-style big-government Democratic platform skeptical of market forces. "Globalization and technology and automation all weaken the position of workers," he said, and a strong government hand is needed to assure that wealth is distributed more equitably. He spoke aboard his campaign bus, where a big-screen TV was tuned to the final holes of the U.S. Open golf tournament.
Sen. Obama's nod to lowering corporate taxes comes as Republicans have been attacking him for proposals that would raise the cost of doing business, such as his pledge to raise the tax rate on capital gains, and his vow to increase the top income-tax rates, which are often used by small, unincorporated enterprises.
He didn't say how deeply he would cut the rate, but said it could be trimmed in return for reducing corporate tax breaks, simplifying the tax system. With existing loopholes, he said, "How much you pay in taxes as a corporation a lot of times is going to depend on how good your lobbyist is." With "a level playing field," he said, the rates could be reduced.
He stressed the idea was not a move toward Sen. McCain's broader tax-cutting philosophy. While Sen. McCain has argued that tax cuts -- particularly on business -- spur growth, Sen. Obama rejected that as flawed economics. "I've seen no evidence that...would actually boost the economic growth and productivity," he said.
Douglas Holtz-Eakin, chief economic aide to Republican candidate Sen. John McCain, dismissed the Obama strategy as "classic industrial policy which shows a lack of faith in private markets." He was skeptical of any potential Obama corporate-tax cut, noting a lack of details. "It's like being for kittens, puppies and sunshine," he said.
Clinton Deficit Hawks
The overall Obama economic approach echoes the 1992 presidential platform of Bill Clinton, who also launched his bid for the White House seeking a big expansion in infrastructure spending. But those plans were quickly shelved once he reached the White House. Congress rejected a proposal to steeply increase energy taxes, which could have been used to pay for the spending.
Clinton deficit hawks, especially then-White House economic adviser Robert Rubin, successfully argued that slashing the deficit would have a bigger impact on growth than boosting spending because markets would react favorably to a shrinking deficit. "Rubinomics" became the reigning Clinton economic strategy, and many labor leaders backing Sen. Obama worry that the 46-year-old senator ultimately will turn to Mr. Rubin, as Mr. Clinton did.
Sen. Obama waved off that concern. "I've got Bob Rubin on one hand [as an adviser] and [former Labor Secretary] Bob Reich on the other....I tend to be eclectic." Mr. Reich, has long championed infrastructure spending to boost jobs and the economy, and is a favorite of labor. He frequently and famously feuded with Mr. Rubin early in Mr. Clinton's term over the administration's ideological direction.
The chances of pushing through an infrastructure spending program are greater now than they were in 1992, Sen. Obama said, because of new concern about energy prices. Many alternative-energy projects -- clean-coal technology, wind-power generators and the like -- could be packaged as infrastructure. "The difference I would suggest is that there is a strong recognition in the public mind that we can't continue on our current energy path," he said. That means "there's a bigger opening to bring about change."
Sen. Obama and Sen. McCain disagree sharply on economic issues, with the Arizona Republican promising to cut the corporate tax to 25% from 35%, retain all of President Bush's cuts in personal income taxes, and push for a host of free-trade agreements.
Sen. Obama has proposed a variety of measures that would raise taxes on individuals at the top end and provide tax relief to middle- and lower-income households. Under his plans, those in the middle would see their after-tax income increase by 2.4%, or $1,042, according to a nonpartisan analysis by the Washington-based Tax Policy Center. Americans with incomes above $2.8 million would see their after-tax income decrease by 11.5%.
The Democrats' 2008 standard-bearer laid out a series of large-scale spending plans during a speech earlier on Monday in Flint, which has been a symbol of economic decline since the anticorporate movie "Roger and Me" was released in 1989. While Sen. Obama has made the proposals before, he wrapped them together for the first time in what he called a "competitiveness agenda."
Spending Program
The heart of Sen. Obama's spending program is his plan to spend $15 billion a year for 10 years on energy technology. It would be funded by revenue collected from a separate Obama proposal to cap greenhouse emissions through a system of trading pollution permits. Sen. Obama would auction those permits to producers of carbon dioxide, such as electric utilities, and figures the sales would yield about $100 billion a year. Most of that would go to consumers as rebates on utility bills, he said.
He also would fund an "infrastructure reinvestment bank" that would finance $60 billion in high-speed railways, improved energy grids and other projects over a decade. He would double spending on basic research, subsidize investment in high-speed Internet hook-ups, and offer $4,000 a year in tuition credits for students who later perform public services.
To "capture some of the nation's economic growth," he said in the interview, "and reinvest it in things we know have to be done like science, technology, research and fixing our energy policy, then that is actually going to spur productivity."
Sen. McCain argues for as little government spending as possible and paints his opponent as a liberal who would tax more, spend more and drive the country into deficit. He backs a cap-and-trade system that would be used to fund energy technology, but Mr. Holtz-Eakin said the scale would be far smaller than the Obama plan. And, Mr. Holtz-Eakin said, a "green technology fund is plain silly. Silicon Valley has piles of money devoted to clean technology."
Energy Market
Sen. Obama made the case in the interview for large-scale government intervention in the energy market, saying that although venture funds are investing heavily in energy technology, there was a gap in funding that should be filled by Washington. He called it supporting the "middle stage" between innovation and commercialization. "You have this point in time when things haven't quite taken off yet and still entail huge risks," he said.
Under President Clinton, the Commerce Department put together a broader-based commercial technology program aimed to fund projects at a similar stage. But it never grew beyond fairly small-scale projects, because of fights with a Republican Congress over whether the government was wasting money on projects that ought to be funded by the private sector.
Sen. Obama likened his proposal to a venture-capital fund, with the government seeking private investors to contribute. He lauded a Central Intelligence Agency project which helps fund technologies the CIA finds important, but which lack long-term capital.
Sen. Obama regularly compares the energy effort to President Kennedy's project to rocket a man to the moon in the 1960s. But the record of using government funds to produce big breakthroughs in commercial technology is spotty at best. The few projects that have succeeded were often small and aimed at limited research goals.
'Carter's Second Term'
Under President Carter, the U.S. tried and failed to build a synthetic-fuel industry in the 1970s. (Sen. McCain has taken to saying Sen. Obama would represent "Jimmy Carter's second term.") Plans to build commercial nuclear reactors that would produce more nuclear material than they consumed also failed, and a half-century of government investment in commercial hydrogen reactors haven't produced the necessary breakthroughs.
More recently the Clinton administration, at the urging of then-Vice President Al Gore, spent heavily on a project with the Big Three auto makers to build a higher-tech family car that produced three times the gas mileage of a conventional car. The car was never built and the Bush administration killed the project. At a rally in Detroit Monday night, Mr. Gore announced his endorsement of Sen. Obama.
Start-Up Companies
Sen. Obama also proposes eliminating capital-gains taxes on start-up companies, though he backs higher capital-gains rates overall. He hasn't defined precisely what he means by a "start-up." Wasn't he concerned that tax lawyers would simply form "start-ups" for existing companies looking for a new tax break?
"There are always folks who are interested in gaming the system, and obviously one of the things you have to do with tax policy generally is to pin down definitions so they're not twisted beyond recognition," he said. But he argued, "Companies that are starting off...should be allowed to accumulate capital, reinvest profits, if there are any, to the point that they stabilize."
Then there is this piece from yesterday's Wall Street Journal (I will reprint the entire article below in case those rat bastards pull the article from free public viewing).
In the article, which is a condensed interview with Obama on the economy, the would-be president had this to say:
"Globalization and technology and automation all weaken the position of workers," he said, and a strong government hand is needed to assure that wealth is distributed more equitably.
Now I know that I'm neither a lawyer† nor a constitutional scholar and that Mr. Obama was the editor of the Harvard Law Review and taught Constituional Law, so when I read statements like the one above I run, not walk, to my nearest copy of the constitution and puruse and puzzle until I find where the man derives such awesome authority, especially in the executive office.
Sure enough, as you could've guessed, I found none.I find it morally repugnant and more than a little frightening that Barack Obama sees it as a legitimate function of goverment to redistribute wealth "equitably." He also says it nonchalantly. Left unsaid is who gets to define "equitably."
Further, there's this:
Sen. Obama also proposes eliminating capital-gains taxes on start-up companies, though he backs higher capital-gains rates overall. He hasn't defined precisely what he means by a "start-up." Wasn't he concerned that tax lawyers would simply form "start-ups" for existing companies looking for a new tax break?
"There are always folks who are interested in gaming the system, and obviously one of the things you have to do with tax policy generally is to pin down definitions so they're not twisted beyond recognition," he said. But he argued, "Companies that are starting off...should be allowed to accumulate capital, reinvest profits, if there are any, to the point that theyI also didn't know that keeping my money, as a businessman, was a privilege allowed to me by the goverment. And that the goverment has the authority then to stabilize my profits, all in the name of equanimity, of course.
stabilize."(emphasis added)
His view of the role of goverment and from whence authority flows is anathema to me. Corporate profits are the property of the stakeholders to do what they deem best for themselves corporately. Taxes on corporations are silly and counterproductive. They serve merely as an indirect tax on the people. Any tax burden is simply passed through to the cost of the goods or services provided. Even Robert Reich agrees with this. The only people who benefit from corporate taxes are CPAs and tax attorneys.
Obama's views skew far beyond mere Keynesian economics and tiptoes towards authoritarianism.
The government should take only what it needs to perform its defined functions*, and those restrictions should be read very narrowly. Anything more is an unjust dimunition of liberty or taking of property.
We've just had eight years of staggering incompetence from a man who said that when people hurt, government has got to move. We've also seen what happens when people depend upon the federal government to provide that which is beyond its purview or competence.
For the reasons stated above and below, I cannot vote for Barack Obama. I will address the thorny war issue specifically and foreign relations generally in due time.
†I've been advised that if one is to go on about such things, one must put forth whether or not he is a lawyer. This is a custom I will follow here and probably never again. One must be a lawyer to practice law. One needn't be a lawyer to read current events and know what the constitution or legislature says about this or that. To read the law takes no expertise. And if any of my arguments are deemed insufficient, I will gladly accept any legitmate criticism. The fact that I am not a lawyer is not legitimate criticism or refutation of any point, it is a straw man.
*"...to plan expenditure programs entirely in terms of what the community wants to do through government rather than privately...to plan tax rates so as to provide sufficient revenues to cover planned expenditures...to avoid erratic changes in either governmental expenditures or taxes."--Milton Friedman, Capitalism and Freedom, p. 79.
WSJ article:
Obama Plans Spending Boost, Possible Cut in Business Tax
By BOB DAVIS and AMY CHOZICKJune 17, 2008; Page A1
FLINT, Mich. -- Sen. Barack Obama shed new light on his economic plans for the country, saying he would rely on a heavy dose of government spending to spur growth, use the tax code to narrow the widening gap between winners and losers in the U.S. economy, and possibly back a reduction in corporate tax rates.
In an interview with The Wall Street Journal, the Illinois Democrat said that he was trying to put together tax and spending policies that dealt with two challenges. One is the competition from rapidly growing developing countries, like India and China. The other: the U.S. becoming what he called a "winner-take-all" economy, where the gains from economic growth skew heavily toward the wealthy.
Sen. Obama cited new economic forces to explain what appears like a return to an older-style big-government Democratic platform skeptical of market forces. "Globalization and technology and automation all weaken the position of workers," he said, and a strong government hand is needed to assure that wealth is distributed more equitably. He spoke aboard his campaign bus, where a big-screen TV was tuned to the final holes of the U.S. Open golf tournament.
Sen. Obama's nod to lowering corporate taxes comes as Republicans have been attacking him for proposals that would raise the cost of doing business, such as his pledge to raise the tax rate on capital gains, and his vow to increase the top income-tax rates, which are often used by small, unincorporated enterprises.
He didn't say how deeply he would cut the rate, but said it could be trimmed in return for reducing corporate tax breaks, simplifying the tax system. With existing loopholes, he said, "How much you pay in taxes as a corporation a lot of times is going to depend on how good your lobbyist is." With "a level playing field," he said, the rates could be reduced.
He stressed the idea was not a move toward Sen. McCain's broader tax-cutting philosophy. While Sen. McCain has argued that tax cuts -- particularly on business -- spur growth, Sen. Obama rejected that as flawed economics. "I've seen no evidence that...would actually boost the economic growth and productivity," he said.
Douglas Holtz-Eakin, chief economic aide to Republican candidate Sen. John McCain, dismissed the Obama strategy as "classic industrial policy which shows a lack of faith in private markets." He was skeptical of any potential Obama corporate-tax cut, noting a lack of details. "It's like being for kittens, puppies and sunshine," he said.
Clinton Deficit Hawks
The overall Obama economic approach echoes the 1992 presidential platform of Bill Clinton, who also launched his bid for the White House seeking a big expansion in infrastructure spending. But those plans were quickly shelved once he reached the White House. Congress rejected a proposal to steeply increase energy taxes, which could have been used to pay for the spending.
Clinton deficit hawks, especially then-White House economic adviser Robert Rubin, successfully argued that slashing the deficit would have a bigger impact on growth than boosting spending because markets would react favorably to a shrinking deficit. "Rubinomics" became the reigning Clinton economic strategy, and many labor leaders backing Sen. Obama worry that the 46-year-old senator ultimately will turn to Mr. Rubin, as Mr. Clinton did.
Sen. Obama waved off that concern. "I've got Bob Rubin on one hand [as an adviser] and [former Labor Secretary] Bob Reich on the other....I tend to be eclectic." Mr. Reich, has long championed infrastructure spending to boost jobs and the economy, and is a favorite of labor. He frequently and famously feuded with Mr. Rubin early in Mr. Clinton's term over the administration's ideological direction.
The chances of pushing through an infrastructure spending program are greater now than they were in 1992, Sen. Obama said, because of new concern about energy prices. Many alternative-energy projects -- clean-coal technology, wind-power generators and the like -- could be packaged as infrastructure. "The difference I would suggest is that there is a strong recognition in the public mind that we can't continue on our current energy path," he said. That means "there's a bigger opening to bring about change."
Sen. Obama and Sen. McCain disagree sharply on economic issues, with the Arizona Republican promising to cut the corporate tax to 25% from 35%, retain all of President Bush's cuts in personal income taxes, and push for a host of free-trade agreements.
Sen. Obama has proposed a variety of measures that would raise taxes on individuals at the top end and provide tax relief to middle- and lower-income households. Under his plans, those in the middle would see their after-tax income increase by 2.4%, or $1,042, according to a nonpartisan analysis by the Washington-based Tax Policy Center. Americans with incomes above $2.8 million would see their after-tax income decrease by 11.5%.
The Democrats' 2008 standard-bearer laid out a series of large-scale spending plans during a speech earlier on Monday in Flint, which has been a symbol of economic decline since the anticorporate movie "Roger and Me" was released in 1989. While Sen. Obama has made the proposals before, he wrapped them together for the first time in what he called a "competitiveness agenda."
Spending Program
The heart of Sen. Obama's spending program is his plan to spend $15 billion a year for 10 years on energy technology. It would be funded by revenue collected from a separate Obama proposal to cap greenhouse emissions through a system of trading pollution permits. Sen. Obama would auction those permits to producers of carbon dioxide, such as electric utilities, and figures the sales would yield about $100 billion a year. Most of that would go to consumers as rebates on utility bills, he said.
He also would fund an "infrastructure reinvestment bank" that would finance $60 billion in high-speed railways, improved energy grids and other projects over a decade. He would double spending on basic research, subsidize investment in high-speed Internet hook-ups, and offer $4,000 a year in tuition credits for students who later perform public services.
To "capture some of the nation's economic growth," he said in the interview, "and reinvest it in things we know have to be done like science, technology, research and fixing our energy policy, then that is actually going to spur productivity."
Sen. McCain argues for as little government spending as possible and paints his opponent as a liberal who would tax more, spend more and drive the country into deficit. He backs a cap-and-trade system that would be used to fund energy technology, but Mr. Holtz-Eakin said the scale would be far smaller than the Obama plan. And, Mr. Holtz-Eakin said, a "green technology fund is plain silly. Silicon Valley has piles of money devoted to clean technology."
Energy Market
Sen. Obama made the case in the interview for large-scale government intervention in the energy market, saying that although venture funds are investing heavily in energy technology, there was a gap in funding that should be filled by Washington. He called it supporting the "middle stage" between innovation and commercialization. "You have this point in time when things haven't quite taken off yet and still entail huge risks," he said.
Under President Clinton, the Commerce Department put together a broader-based commercial technology program aimed to fund projects at a similar stage. But it never grew beyond fairly small-scale projects, because of fights with a Republican Congress over whether the government was wasting money on projects that ought to be funded by the private sector.
Sen. Obama likened his proposal to a venture-capital fund, with the government seeking private investors to contribute. He lauded a Central Intelligence Agency project which helps fund technologies the CIA finds important, but which lack long-term capital.
Sen. Obama regularly compares the energy effort to President Kennedy's project to rocket a man to the moon in the 1960s. But the record of using government funds to produce big breakthroughs in commercial technology is spotty at best. The few projects that have succeeded were often small and aimed at limited research goals.
'Carter's Second Term'
Under President Carter, the U.S. tried and failed to build a synthetic-fuel industry in the 1970s. (Sen. McCain has taken to saying Sen. Obama would represent "Jimmy Carter's second term.") Plans to build commercial nuclear reactors that would produce more nuclear material than they consumed also failed, and a half-century of government investment in commercial hydrogen reactors haven't produced the necessary breakthroughs.
More recently the Clinton administration, at the urging of then-Vice President Al Gore, spent heavily on a project with the Big Three auto makers to build a higher-tech family car that produced three times the gas mileage of a conventional car. The car was never built and the Bush administration killed the project. At a rally in Detroit Monday night, Mr. Gore announced his endorsement of Sen. Obama.
Start-Up Companies
Sen. Obama also proposes eliminating capital-gains taxes on start-up companies, though he backs higher capital-gains rates overall. He hasn't defined precisely what he means by a "start-up." Wasn't he concerned that tax lawyers would simply form "start-ups" for existing companies looking for a new tax break?
"There are always folks who are interested in gaming the system, and obviously one of the things you have to do with tax policy generally is to pin down definitions so they're not twisted beyond recognition," he said. But he argued, "Companies that are starting off...should be allowed to accumulate capital, reinvest profits, if there are any, to the point that they stabilize."
Say Again, part I
I know the presumptive presidential nominee for the Democratic Party has a significant following and may very well win this November. Personally, I had been leaning towards McCain for any number of reasons--on which, more later. I voted for Ron Paul in the primary and consider myself libertarian. I agree wholeheartedly with Thoreau that that government governs best which governs least, especially the federal government.
That all being said, I don't dislike Obama (I also don't dislike McCain, so I'm ahead of the game considering the last three presidential elections). I think his "change" rhetoric is getting a little tired, but the same could be said for any of the major candidates this year (McCain, Clinton, Romney & Huckabee).
A friend of mine is an Obama supporter (and quite possible the only person who reads this page) and he asked for whom I would be voting--this was before the primary. I told him Ron Paul and gave a few reasons. McCain had the Republican nod wrapped up and there was still a contest on the Dems side. I also told him that I wanted to wait and see and read more on Obama. I also said that there was no way in hell I would vote for Hillary. Maybe if Bush ran again, but I swoon at the thought of that scenario.
I have read some things by and about Obama and I'll say right here that I don't care about his wife or his pastor(s).
I do care about how a president sees his role in our government and the government's role in the lives of the people. And based on recent statements by Obama, I cannot vote for him.
Recently he gave a speech that touched on his view of the judiciary. I cannot find the speech, but a good (but very limited) synopsis of his views (juxtaposed (poorly) with McCain's) is here. In the article he says, regarding Supreme Court justices, "I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through." Now, its just dandy to have empathetic judges, so long as their empathy doesn't interfere with their job. He mentioned in his speech the case of Ledbetter v. Goodyear. He over-simplifies the case and reduces the majority opinion to a lack of heart and disregard for legislative intent. I don't want to get too far into it (see here and here for some good background). The legislature was quiet on whether each paycheck represented an act of discrimination under Title VII. The court held that the discriminatory act was her employment review which was more than 180 days prior to her complaint. The 180 day time-frame was set by the legislature, not some heartless judge. The plaintiff (petitioner) would have had recourse under the Equal Pay Act.
I agree with Justice Antonin Scalia's view of how judges should read the law ("reasonably," a fantastic primer on this is A Matter of Interpretation--I cannot recommend this book highly enough--see also here). Judges should read and interpret the law; not what the legislators intended to say, what they did say--and, of course, whether they have the authority to say it at all.
To use this decision as a cudgel, to try to make a point that Justice Ginsburg is your ideal based on this case is, in my opinion (non-lawyer that I am), a mistake.
I disagree with Barack Obama's view the the federal judiciary should base its decisions on "empathy," or with "feeling for what the ordinary people are going through." This is an invitation for the judges to make law. In our system, that is not their purview.
Continues...
That all being said, I don't dislike Obama (I also don't dislike McCain, so I'm ahead of the game considering the last three presidential elections). I think his "change" rhetoric is getting a little tired, but the same could be said for any of the major candidates this year (McCain, Clinton, Romney & Huckabee).
A friend of mine is an Obama supporter (and quite possible the only person who reads this page) and he asked for whom I would be voting--this was before the primary. I told him Ron Paul and gave a few reasons. McCain had the Republican nod wrapped up and there was still a contest on the Dems side. I also told him that I wanted to wait and see and read more on Obama. I also said that there was no way in hell I would vote for Hillary. Maybe if Bush ran again, but I swoon at the thought of that scenario.
I have read some things by and about Obama and I'll say right here that I don't care about his wife or his pastor(s).
I do care about how a president sees his role in our government and the government's role in the lives of the people. And based on recent statements by Obama, I cannot vote for him.
Recently he gave a speech that touched on his view of the judiciary. I cannot find the speech, but a good (but very limited) synopsis of his views (juxtaposed (poorly) with McCain's) is here. In the article he says, regarding Supreme Court justices, "I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through." Now, its just dandy to have empathetic judges, so long as their empathy doesn't interfere with their job. He mentioned in his speech the case of Ledbetter v. Goodyear. He over-simplifies the case and reduces the majority opinion to a lack of heart and disregard for legislative intent. I don't want to get too far into it (see here and here for some good background). The legislature was quiet on whether each paycheck represented an act of discrimination under Title VII. The court held that the discriminatory act was her employment review which was more than 180 days prior to her complaint. The 180 day time-frame was set by the legislature, not some heartless judge. The plaintiff (petitioner) would have had recourse under the Equal Pay Act.
I agree with Justice Antonin Scalia's view of how judges should read the law ("reasonably," a fantastic primer on this is A Matter of Interpretation--I cannot recommend this book highly enough--see also here). Judges should read and interpret the law; not what the legislators intended to say, what they did say--and, of course, whether they have the authority to say it at all.
To use this decision as a cudgel, to try to make a point that Justice Ginsburg is your ideal based on this case is, in my opinion (non-lawyer that I am), a mistake.
I disagree with Barack Obama's view the the federal judiciary should base its decisions on "empathy," or with "feeling for what the ordinary people are going through." This is an invitation for the judges to make law. In our system, that is not their purview.
Continues...
19 August 2007
Amen, Brother
In his Tuesday Morning Quarterback column of 10 August 2007, Gregg Easterbrook writes the following:
*=Minor quibble--the constitution was written in 1787. It became the law of the land in 1788 by ratification and the government was seated in 1789.
Emphasis added
Turning to the United States Constitution, George W. Bush said in Washington in 2007, "I don't think Congress ought to be running the war." The Founding Fathers said in Philadelphia in 1789 [*], "The Congress shall have the power to ... declare war, grant Letters of Marque and Reprisal, and make rules concerning captures on land and water." The founders were quite clear that they wanted Congress running wars, among other things declaring only Congress could approve funds "to raise and support armies" and that congressional approval for military spending might
last no longer than two yearsWhat are "letters of marque and reprisal?" The writers of United States Constitution assumed the new nation would have a permanent navy but no standing army: If an army was needed, it would be raised and funded on a two-year basis. Yet the framers knew international circumstances might call for military action short of sending an army into battle. Letters of marque grant to mercenaries -- at the time, it was normal for nations to retain soldiers-for-hire -- the right to act in America's name for a specific purpose, such as taking back some thing or location seized by privateers. Letters of reprisal could confer on the Navy, or on mercenaries, color of the flag to conduct a specific retaliation in America's name. The modern meaning of "letters of marque and reprisal" is "commando raids and air strikes."
So the Founding Fathers did not merely grant Congress sole power to declare war -- they expected Congress to be involved in the conduct of war, by such means as issuing specific instructions regarding what could and could not be attacked on land or water. The Commander in Chief clause of the Constitution mainly serves to make clear that the executive is superior to the military -- the framers did not want the
U.S. military resisting civilian control, as did some European militaries of the era. Bush and other modern presidents of both parties have behaved as though the Commander in Chief clause locates in them unilateral authority for all use of force: the Founding Fathers would be horrified to learn that Bush and other modern
presidents act as though they have unchecked powers in matters of war. Here's
the text of the United States Constitution, which all Americans including our current president ought to take a few moments to familiarize themselves with.
*=Minor quibble--the constitution was written in 1787. It became the law of the land in 1788 by ratification and the government was seated in 1789.
Emphasis added
20 March 2007
Bong Hits 4 Jesus
In January 2002, the Olympic torch was carried through Juneau, Alaska en route to the games in Salt Lake City. Joseph Frederick was a senior at Juneau-Douglas High School at the time. Students were allowed to attend the local torch ceremonies, even though they were going on during school hours. Mr. Frederick was late to school that day due to snow, but was able to make it to the ceremony by walking. Whereupon he and a few classmates unfurled a 14-foot banner reading "BONG HITS 4 JESUS" just as the torch and a television crew passed.
His principal, Deborah Morse, told Mr. Frederick to remove the banner. He refused. She took down the banner and suspended him for 10 days. Mr. Frederick appealed her decision.
Oral argument was heard yesterday in Morse v. Frederick in the United States Supreme Court.
Now, I haven't made my way through the arguments yet, nor have I read through both side's petitions (student here, school district here), but when did a case of teen-aged impudence rise to the federal level?
I think what the kid did was frickin' hilarious, but the rule was and is, if you're gonna be a smack, take the heat. The kid got a great score with the banner hitting just as the TV crew went by. Serve your suspension with dignity.
The school won the first appeal to the school superintendant, but the suspension was reduced to eight days; then won in federal district court, where they were taken by Mr. Frederick for surpressing his First Amendment rights (under 42 U.S.C. § 1983), which was applicable because, he claims, that he wasn't at a "school sponsored event."
Mr. Frederick then appealed the district court's decision where he won. The case was remanded to the district court by the 9th Circuit Court of Appeals saying that Mr. Frederick's First Amendment rights were violated and that Ms. Morse could be held financially liable for her actions. Part of the appeal to the Supremes is that she is covered by "qualified immunity."
Like I said, I think what the kid did was hilarious. I think a ten-day suspension was probably a bit much (especially when one of the other kids only got five days and Mr. Frederick claims that he was only given five days; he quoted Thomas Jefferson in protest, then he got slapped with five more). I would absolutely love to be a fly on the wall in the Supreme's chambers when they discuss this one.
A decision should be issued by June.
His principal, Deborah Morse, told Mr. Frederick to remove the banner. He refused. She took down the banner and suspended him for 10 days. Mr. Frederick appealed her decision.
Oral argument was heard yesterday in Morse v. Frederick in the United States Supreme Court.
Now, I haven't made my way through the arguments yet, nor have I read through both side's petitions (student here, school district here), but when did a case of teen-aged impudence rise to the federal level?
I think what the kid did was frickin' hilarious, but the rule was and is, if you're gonna be a smack, take the heat. The kid got a great score with the banner hitting just as the TV crew went by. Serve your suspension with dignity.
The school won the first appeal to the school superintendant, but the suspension was reduced to eight days; then won in federal district court, where they were taken by Mr. Frederick for surpressing his First Amendment rights (under 42 U.S.C. § 1983), which was applicable because, he claims, that he wasn't at a "school sponsored event."
Mr. Frederick then appealed the district court's decision where he won. The case was remanded to the district court by the 9th Circuit Court of Appeals saying that Mr. Frederick's First Amendment rights were violated and that Ms. Morse could be held financially liable for her actions. Part of the appeal to the Supremes is that she is covered by "qualified immunity."
Like I said, I think what the kid did was hilarious. I think a ten-day suspension was probably a bit much (especially when one of the other kids only got five days and Mr. Frederick claims that he was only given five days; he quoted Thomas Jefferson in protest, then he got slapped with five more). I would absolutely love to be a fly on the wall in the Supreme's chambers when they discuss this one.
A decision should be issued by June.
Subscribe to:
Posts (Atom)