I hope everyone has a Happy New Year! I couldn't resist posting this!
The logic of gun control ultimately leads this idiotic proposal (cutlery control). Ban long knives in the UK as violent crime is on the increase (I guess their gun control isn't working) and kitchen knives are use in as many as half the stabbings?
Monday, December 31, 2012
Sunday, December 16, 2012
Happy Holidays!
Happy Holidays to all! Barring some really big legal news, I'll be on vacation from the blog till early Jan. Thanks for all who participated!
ObamaCare Contraceptive Mandate cases
Obamacare mandates that employers provide birth control coverage for all female employees. After allegations of Freedom of Religion violations, HHS excluded churches from the mandate. Howerver, a number of religious organizations that are not "churches" have sued alleging First Amendment violations. There are a number of separate suits, but this one is the first one to make it to a U.S. Court of Appeals. Unfortunately, they dodged, at least temporarily a ruling. The government has promised to reconsider and may issue new regulations on the topic. Stay tuned!
Brian Terry's family files suit over BATF's fast and furious
The family of murdered Border Patrol Agent Brian Terry filed a $25 million lawsuit against the government. Terry was allegedly murdered by a weapon that BATF let get across the border untracked in it's infamous Operation Fast and Furious. Perhaps some disinfecting light will be shown on this insane government program. However, expect the government to stonewall, and it is always difficult to sue the feds.
Friday, December 14, 2012
Obama: Not going after rec. pot users in 2 states
Pres. Obama said the feds would not go after recreational pot users in Colo or Washington state where state voters chose to decriminalize recreational use. This is not that big a deal. The feds have never been interested in recreational use. They only go after the dealers.
What can we expect from Pres. Obama?
What can we expect from Obama in his second term? FWIW, here are just a few predictions.
Give that Republicans maintained control of the House; we can expect a lot of executive orders to get around the House. Yes, the President may lawfully use executive orders and direct federal agencies, but only to execute laws and policies passed by Congress. Under the Constitution the President executes the laws passed by Congress. The President does not make the laws. It is sometimes a fine line, but it is clear that in domestic affairs executive orders and agencies may be directed only to execute laws and policies created by Congress. Orders and agencies may not be used by the President to make new policies, not approved by Congress. The process may not be used to bypass the legislative process. Obama got the Hispanic vote. Expect aggressive use of executive orders in the area of immigration. The President has a lot more leeway in military and foreign affairs, and we will continue to withdraw from Afghanistan. However, one gets the impression that the administration is looking for some pretext to get involved in Syria in some fashion. Stay tuned. In spite of Obama’s anti-Israel leanings, he still got the Jewish vote. Expect Obama to continue quiet support of the Palestinians and to lean even harder on the Israelis to make concessions. Much will depend on future Israeli elections. Perhaps this is the best approach to lasting peace in Israel and Palestine. Who knows? Stay tuned.
As always, the power to nominate people to fill Supreme Court vacancies will be crucial. Many key decisions are 5-4. Democrats retained control of the Senate. Hard-core liberals foam at the mouth when discussing Citizens United (First Amend rights for corporations) and the Second Amendment case D.C. v. Heller. Liberals have offered proposed constitutional amendments in Congress to overrule both decisions. Just as many hard-conservatives still foam at the mouth over Roe v. Wade, there is no reason to think the attacks will subside. Obama publicly criticized Citizens United and is not a fan of Heller. If Obama gets any appointees, he will be looking for Justices to limit or overrule those two cases (and expand federal constitutional powers). One of the cardinal rules of politics is to “reward your friends and punish your enemies.” Obama urged his supporters to vote for him to get "revenge." Of course by punishing your enemies, you are also supporting your friends who also dislike your enemies. The NRA and corporations backed Romney. Catholic and other leaders criticized Obama for some of his health care policies. Expect Obama to go after them via the Supreme Court or legislation. We can also expect that candidates who are wimpy on First Amendment freedom of religion will be looked upon favorably. Unlike the situation when conservatives control the White House and Senate, we don’t need to worry about attacks on abortion and privacy rights. Every President does this. However, this practice threatens civil liberties and weakens the constitution, depending upon what is targeted. Is it too much to ask to request that Presidents stop playing ideological games with the Supreme Court? Don’t’ expect this practiced to end as long as victors reward their friends and punish their enemies. It certainly won’t end in this politically polarized atmosphere where many elections are decided by relatively slim margins.
Justices usually retire when there is someone in the White House with whom they are ideologically compatible. Don’t expect any of the conservatives to retire. However, death or disability can happen to anyone at anytime. Kennedy has been relatively healthy and probably enjoys his role as the most powerful person on the Court. The liberal most likely to retire is Ginsburg who is 79 and has had serious health problems. Look for the Court to remain ideologically split as it is now.
In the civil liberties area, as stated above don’t expect support for Second Amendment or freedom of religion. The administration has supported the indefinite military detention provision of the NDAA. Look for strong civil liberties support in the areas that liberals tend to favor: women’s’ rights, abortion rights, etc. Expect aggressive support for affirmative action that will test the limits of the equal protection clause. Most of this is good, but how about some principled, even-handed loyalty to the supreme law of the land.
The Obamacare decision seemed to support unlimited federal power under the taxing and spending and general welfare clauses. However, Republicans in the House will, at least temporarily, block use of these clauses for radical federal expansion of Democratic programs. However, the Obamacare precedent remains a potentially loaded gun to be used when the time is right.
Being a lame-duck, Obama may be even more aggressive in pushing his far-left agenda. Expect courting and efforts at vote buying of new and traditional democratic and liberal voters to continue. Left-wing political correctness will be pushed even harder.
Give that Republicans maintained control of the House; we can expect a lot of executive orders to get around the House. Yes, the President may lawfully use executive orders and direct federal agencies, but only to execute laws and policies passed by Congress. Under the Constitution the President executes the laws passed by Congress. The President does not make the laws. It is sometimes a fine line, but it is clear that in domestic affairs executive orders and agencies may be directed only to execute laws and policies created by Congress. Orders and agencies may not be used by the President to make new policies, not approved by Congress. The process may not be used to bypass the legislative process. Obama got the Hispanic vote. Expect aggressive use of executive orders in the area of immigration. The President has a lot more leeway in military and foreign affairs, and we will continue to withdraw from Afghanistan. However, one gets the impression that the administration is looking for some pretext to get involved in Syria in some fashion. Stay tuned. In spite of Obama’s anti-Israel leanings, he still got the Jewish vote. Expect Obama to continue quiet support of the Palestinians and to lean even harder on the Israelis to make concessions. Much will depend on future Israeli elections. Perhaps this is the best approach to lasting peace in Israel and Palestine. Who knows? Stay tuned.
As always, the power to nominate people to fill Supreme Court vacancies will be crucial. Many key decisions are 5-4. Democrats retained control of the Senate. Hard-core liberals foam at the mouth when discussing Citizens United (First Amend rights for corporations) and the Second Amendment case D.C. v. Heller. Liberals have offered proposed constitutional amendments in Congress to overrule both decisions. Just as many hard-conservatives still foam at the mouth over Roe v. Wade, there is no reason to think the attacks will subside. Obama publicly criticized Citizens United and is not a fan of Heller. If Obama gets any appointees, he will be looking for Justices to limit or overrule those two cases (and expand federal constitutional powers). One of the cardinal rules of politics is to “reward your friends and punish your enemies.” Obama urged his supporters to vote for him to get "revenge." Of course by punishing your enemies, you are also supporting your friends who also dislike your enemies. The NRA and corporations backed Romney. Catholic and other leaders criticized Obama for some of his health care policies. Expect Obama to go after them via the Supreme Court or legislation. We can also expect that candidates who are wimpy on First Amendment freedom of religion will be looked upon favorably. Unlike the situation when conservatives control the White House and Senate, we don’t need to worry about attacks on abortion and privacy rights. Every President does this. However, this practice threatens civil liberties and weakens the constitution, depending upon what is targeted. Is it too much to ask to request that Presidents stop playing ideological games with the Supreme Court? Don’t’ expect this practiced to end as long as victors reward their friends and punish their enemies. It certainly won’t end in this politically polarized atmosphere where many elections are decided by relatively slim margins.
Justices usually retire when there is someone in the White House with whom they are ideologically compatible. Don’t expect any of the conservatives to retire. However, death or disability can happen to anyone at anytime. Kennedy has been relatively healthy and probably enjoys his role as the most powerful person on the Court. The liberal most likely to retire is Ginsburg who is 79 and has had serious health problems. Look for the Court to remain ideologically split as it is now.
In the civil liberties area, as stated above don’t expect support for Second Amendment or freedom of religion. The administration has supported the indefinite military detention provision of the NDAA. Look for strong civil liberties support in the areas that liberals tend to favor: women’s’ rights, abortion rights, etc. Expect aggressive support for affirmative action that will test the limits of the equal protection clause. Most of this is good, but how about some principled, even-handed loyalty to the supreme law of the land.
The Obamacare decision seemed to support unlimited federal power under the taxing and spending and general welfare clauses. However, Republicans in the House will, at least temporarily, block use of these clauses for radical federal expansion of Democratic programs. However, the Obamacare precedent remains a potentially loaded gun to be used when the time is right.
Being a lame-duck, Obama may be even more aggressive in pushing his far-left agenda. Expect courting and efforts at vote buying of new and traditional democratic and liberal voters to continue. Left-wing political correctness will be pushed even harder.
UPDATE: Latest on NDAA detention case
The indefinite detention provision of the National Defense Authorization Act has spurred much opposition. The Plaintiff's have asked the U.S. Supreme Court to intervene--at least temporarily. Hopefully, the U.S. Supreme Court will eventually rule on the merits of this statute. Although the statute is vague, it is potentially dangerous. Further, it could be very difficult to determine if, when and who is detained. Anyone who thought Pres. Obama would be a strong supporter of civil rights has been mistaken. Thanks to Bennett Jones for the link
UPDATE: Supreme Court Justice Ginsburg refused to block enforement of the controversal NDAA provisions. The law will remain in effect. This was a long shot and, as most expected, the government won and the plaintiffs lost.
UPDATE: Supreme Court Justice Ginsburg refused to block enforement of the controversal NDAA provisions. The law will remain in effect. This was a long shot and, as most expected, the government won and the plaintiffs lost.
Tomorrow (Sat 12/15) is Bill of Rights Day
Dec. 15, is Bill of Rights Day. Most of us have a lot to celebrate this time of year. The Bill of Right is one things we should celebrate and one thing we should aggressively support against those who would weaken it (e.g advocating repeal of the Second Amendment, weakening the Fourth Amendment, etc). The Bill of Rights and continuing support for it have made and will keep us the freest people on the planet and a country that truly deserves to be called "the land of the free and the home of the brave." Stand up to the authoritarians on both the left and right.
Wednesday, December 12, 2012
First Amendment Hypocrisy on Campuses
A university Prof. wrote:
"As a university professor, I have seen, over the past few decades, just how misunderstood basic civil rights on campus can be. While people of all persuasions like to defend their side’s First Amendment rights, they tend to be less enthusiastic, if not downright hostile, when it comes to defending (or even tolerating) those with whom they disagree."
"As a university professor, I have seen, over the past few decades, just how misunderstood basic civil rights on campus can be. While people of all persuasions like to defend their side’s First Amendment rights, they tend to be less enthusiastic, if not downright hostile, when it comes to defending (or even tolerating) those with whom they disagree."
Border Searches of Digital Devices
Fourth Amendment protections are much weaker at the border. Your digital device is subject to the usual rules. The search of the device can be done automatically, no suspicion, warrant, etc. required. The lawsuit did not challenge the siezure of the device. If the search had taken place relatively quickly after the seizure, there would be no case. The delay in conducting the search was the issue. In spite of some good arguments about privacy and First Amendment concerns, I don't see courts treating digital devices any differently. To be searched under the Fourth Amendment, the person must have had a reasonable expectation of privacy in the item searched. Given the historical powers of the government at the border, the fact that border crossing is, in most cases, voluntary, people expect more scrutiny at the border, people can delete sensitive info from their computers before coming to the border, the widespread use of computers by terrorists and criminal gangs, etc., arguably, there is no reasonable expectation of privacy. Even if there was a reasonable expectation of privacy, the government interest would outweigh the degree of the intrusion. Sorry, but this cautious libertarian is leaning toward the side of caution on this one.
Gun control failing in Britain
Gun control doesn't work on an island with strict gun control laws, weaker search and seizure protections, and a relatively small gun stock among the population (as compared to the U.S.). Only an idiot could think it would work in the U.S. without abandoning the 4th Amendment. Thanks to Prof. Joseph E.Olson for the link.
Tuesday, December 11, 2012
Handgun hypocrisy?
Many gun controllers have bodyguards, security details, live in gated communities or high-rise high-security buildings. Many are able to use their political clout in cities like NY and Chicago to get permits. (See article below on court decision on Illinois anti-carry law)
More on the Supreme Court's gay marriage cases
At this point, my predictions on the 2 gay marriage cases at the Supreme Court are 5-4 striking down DOMA (in Windsor v. U.S.) and requiring that states recognize gay marriage (Hollingsworth v. Perry--the Prop. 8 case). The precedents, e.g. Loving, Romer, Lawrence v. Texas, etc) all suggest that result (as did O'Connor's concurring opinion clearly did in Lawrence). Kennedy will be the swing vote. His prior rulings in Romer and Lawrence suggest that is the way he will vote. However, Roberts fooled us in the Obamacare case and there is always the possibility that Kennedy will surprise us.
Many are hoping for sweeping, clear-cut rulings in the 2 gay marriage cases the Supreme Court will hear. However, there could be some procedural and other issues that the Court could decide without giving us blockbuster rulings. In other words, the Court could "punt."
Many are hoping for sweeping, clear-cut rulings in the 2 gay marriage cases the Supreme Court will hear. However, there could be some procedural and other issues that the Court could decide without giving us blockbuster rulings. In other words, the Court could "punt."
Big Victory for the 2nd Amend.
Great news for those who love liberty. Bad news for left-leaning authoritarians. The U.S. Court of Appeals for the Seventh Circuit ruled today that Illinois' total ban on carrying firearms for self-defense outside the home or business is unconstitutional.
This is one of the few victories for the Second Amendment in the federal courts. The court gave the state 180 days to come up with a law that was not a total ban. Let’s hope this is finally a case that the U.S. Supreme Court will hear.
This is one of the few victories for the Second Amendment in the federal courts. The court gave the state 180 days to come up with a law that was not a total ban. Let’s hope this is finally a case that the U.S. Supreme Court will hear.
Monday, December 10, 2012
"The NRA is the new KKK."
More anti-Second Amendment, left-wing, propaganda (Fecal matter?) The speaker obviously lacks a historical understanding of the KKK, one of whose aims was to disarm blacks.
Second Amendment takes another Hit
U.S. Court of Appeals upholds NY law requiring a showing of "need" for concealed carry permit. IMHO, this law is unconsitutional. The Founding Fathers and Supreme Court giveth and the lower courts taketh away.
Excessive force? Breaking car window and dragging suspect out through it.
The Ninth Circuit suggested that under the circumstances, it could be.
Chicago: America's False Confession Capital
DOJ has opened an investigation of Chicago PD. If anyone thinks a left-leaning city goverment means strong constitutional rights, they are sadly mistaken. Watch the video and related videos and materials.
Friday, December 07, 2012
Handgun most common weapon used in civilian justifiable homicies.
No surprise here. The handgun is the most frequently used weapon in civilian justifiable homicides. Note, howerver, that the FBI's data grossly underreports the number of civilan (non-cop) justifiable homicides.
The UCR measure of civilian jusifiable homicides (JH) is not reliable. First, and this is a problem with all UCR data, not all police agencies report, not all agencies use consistent criteria, and politics sometimes play a role in reporting and classifying. With regard to JH, remember that UCR data is reported by police. I would bet that except in the most obvious cases, police will report a possible justifiable homicide as a homicide as they have no way to know who to believe. The person claiming JH has a motive to lie and the police are not required to beieve the suspect. Further, police generally are cynical and don't want to appear to be gullible. Thus, reports by police in the UCR underestimate the real number of JH's. How do we know if something should arguably be counted as a JH? Later, the police may determine that a crime they reported as a criminal homicide (CH) was really a JH. This may come about because of ballistics tests, powder residue tests, or any number of causes. Do police go back and change their report to the UCR? Probaby not. They are busy collecting current data, and would have to admit that they were wrong. Police agencies have more pressing business than correcting reporting errors.Next, assume an alleged CH gets to the prosecutor's office. Further investigation may reveal that it was most likely a JH. The prosecutor drops the charges. Does the prosecutor report this to the UCR. No. The UCR is for police to report. Assume the prosecutor presents the case to the grand jury and they decide not to indict because they believe the CH was really a JH. This decison will never appear in UCR. Finally, assume the CH charge goes to trial and the jury finds that it was JH. This will never appear in the UCR. What the UCR actually represents is only the tip of the iceberg of JH's. Later changes will never be reflected in the UCR. Research based on polls by Kleck, Gertz and other suggest that there are as many lawful defensive uses of firearms as there are unlawful use. These conclusions have been challenged, but this research has been replicated. Further, the crime-control/deterrent effect of citizen handgun ownership is not totally measure by the number dead criminals. Lawfully wounding or scaring off a violent criminal prevents a crime. If the criminal is deterred because he/she knows the person is armed, or has guns in the house, a crime is prevented. Unfortunately, there are no official statistics on this. See the link
http://www.guncite.com/gcdgklec.html
for a reprint of an article by the nation's leading criminological expert on gun control and related topics, FSU Prof. Dr. Gary Kleck.
The UCR measure of civilian jusifiable homicides (JH) is not reliable. First, and this is a problem with all UCR data, not all police agencies report, not all agencies use consistent criteria, and politics sometimes play a role in reporting and classifying. With regard to JH, remember that UCR data is reported by police. I would bet that except in the most obvious cases, police will report a possible justifiable homicide as a homicide as they have no way to know who to believe. The person claiming JH has a motive to lie and the police are not required to beieve the suspect. Further, police generally are cynical and don't want to appear to be gullible. Thus, reports by police in the UCR underestimate the real number of JH's. How do we know if something should arguably be counted as a JH? Later, the police may determine that a crime they reported as a criminal homicide (CH) was really a JH. This may come about because of ballistics tests, powder residue tests, or any number of causes. Do police go back and change their report to the UCR? Probaby not. They are busy collecting current data, and would have to admit that they were wrong. Police agencies have more pressing business than correcting reporting errors.Next, assume an alleged CH gets to the prosecutor's office. Further investigation may reveal that it was most likely a JH. The prosecutor drops the charges. Does the prosecutor report this to the UCR. No. The UCR is for police to report. Assume the prosecutor presents the case to the grand jury and they decide not to indict because they believe the CH was really a JH. This decison will never appear in UCR. Finally, assume the CH charge goes to trial and the jury finds that it was JH. This will never appear in the UCR. What the UCR actually represents is only the tip of the iceberg of JH's. Later changes will never be reflected in the UCR. Research based on polls by Kleck, Gertz and other suggest that there are as many lawful defensive uses of firearms as there are unlawful use. These conclusions have been challenged, but this research has been replicated. Further, the crime-control/deterrent effect of citizen handgun ownership is not totally measure by the number dead criminals. Lawfully wounding or scaring off a violent criminal prevents a crime. If the criminal is deterred because he/she knows the person is armed, or has guns in the house, a crime is prevented. Unfortunately, there are no official statistics on this. See the link
http://www.guncite.com/gcdgklec.html
for a reprint of an article by the nation's leading criminological expert on gun control and related topics, FSU Prof. Dr. Gary Kleck.
Longest-Serving U.S. Attorney Resigns Under Cloud
U.S. Attorneys generally have excellent records. This one is the exception. The convictions of the Danziger bridge cops may be questioned.
Supreme Court to hear 2 gay marriage cases
One of the most contentious outstanding culture wars and legal issues is gay marriage. Hopefully, we will have 2 Supreme Court decisons on this by June or so.
Stay tuned.
Stay tuned.
NBC sued over edited Geo. Zimmerman tape
Geo. Zimmerman is suing NBC for its release of an edited tape that cast him in a very negative light (racist). NBC previously apologized. Hope Zimmerman wins. The media gets away with too much unprofessinal, unethical behavior. Hopefully, someone will be held accountable.
TIH: 1789, 1941, 1993
1787
Delaware became the first state to ratify the U.S. Constitution.
1941
Pearl Harbor, of course
1993
A gunman opened fire on a Long Island Rail Road commuter train, killing six people and wounding 17. (Colin Ferguson was later sentenced to a minimum of 200 years in prison.)
Delaware became the first state to ratify the U.S. Constitution.
1941
Pearl Harbor, of course
1993
A gunman opened fire on a Long Island Rail Road commuter train, killing six people and wounding 17. (Colin Ferguson was later sentenced to a minimum of 200 years in prison.)
Wednesday, December 05, 2012
Tuesday, December 04, 2012
Only in the Big Apple! (Bizarre Crime)
Latest criminal conviction for a brutally bizarre murder in Nanny York City. No disrespect intended for the victim and his friends and family, but NYC is long past due on banning computers and corkscrews.
Why "Nullification" is Invalid
Thanks to 44 who e-mailed me an interesting piece on the current "Nullification" controversy. The article, to which I am responding is by Tom Woods. He makes a lot of superficially appealing points, but misses a few key ones.
He writes
“Thus we read in a recent AP article, “The efforts [to nullify unpopular federal law] are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)
What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”
In other words, the standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.”
I agree with that so far. He has spotted the key nail, but fails to hit it on the head. The gut issue that he misses is WHO has the final say on whether a federal law is “made in pursuance thereof” (is consistent with the Constitution) It was established in 1803 (Marbury v Madison) and anticipated in one of the Federalist papers that the federal courts, and ultimately the U.S. Supreme Court would have the final say. Somebody must have the final say or chaos will rule and the rule of law will be threatened. Nullification is a power of each individual state. I have never seen it argued that the alleged power arises only when all of 2/3 of the states want to nullify (see below) For nullification as it has been argued to make sense, the states individually must each have the final say on the meaning of the Constitution. Individual states could then reach different results on what the Constitution means that are binding in that state. If something is the Supreme law of the land, it must have uniform interpretation if it is to be “supreme". This is inconsistent with the rule of law, and the Supreme Court’s 1803 decision in Marbury v. Madison. Jefferson is cited by the author, and his words provide some insight, but Jefferson was not part of the Constitutional convention. One can cherry pick the debates and find support for just about everything. The Constitution specifies two specific remedies for unhappy states. It does not specify nullification. There are 3 well specifically established routes, that do not threaten the rule of law and constitutional supremacy and uniformity, that states can use if they want to question a federal law. File a lawsuit and hopefully get to the Supreme Court. One can hope that the Court would hear the case if it was in the ballpark. States can ask that the federal law be invalidated.Second, one can amend the Constitution. Two-thirds of the states can, under Art. V of the Constitution, can call for a convention to amend the Constitution. Finally, those unhappy with the law can use the federal legislative process to get it repealed. There are at least 3 cleary valid alternatives to nullification.Why are these folks jousting at windmills and wasting our time with this sophistry?
Nullification defeats the uniformity and consistency across the nation that was one of the main motivations for the new constitution. Let me provide an extreme example of the mischief that could occur. I don't think this will ever happen, but I am trying to make a point. A plaintiff gets an injunction against a state forbidding it from discriminating against interstate commerce within the state. The state argues that the statute authorizing courts to issue injunctions against state governments (42 U.S.C. sec. 1983) and its accompany jurisdictional statute are unconstituttional. If those statutes are unconstitutional, the courts have no jurisdiction to issue injunctions against the state and thus the injunctions are invalid.
Nullification is fun to argue about, but is constitutionally irrelevant and invalid. I am reminded of theologians arguing about how many angels can fit on the head of a pin.
He writes
“Thus we read in a recent AP article, “The efforts [to nullify unpopular federal law] are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)
What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”
In other words, the standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.”
I agree with that so far. He has spotted the key nail, but fails to hit it on the head. The gut issue that he misses is WHO has the final say on whether a federal law is “made in pursuance thereof” (is consistent with the Constitution) It was established in 1803 (Marbury v Madison) and anticipated in one of the Federalist papers that the federal courts, and ultimately the U.S. Supreme Court would have the final say. Somebody must have the final say or chaos will rule and the rule of law will be threatened. Nullification is a power of each individual state. I have never seen it argued that the alleged power arises only when all of 2/3 of the states want to nullify (see below) For nullification as it has been argued to make sense, the states individually must each have the final say on the meaning of the Constitution. Individual states could then reach different results on what the Constitution means that are binding in that state. If something is the Supreme law of the land, it must have uniform interpretation if it is to be “supreme". This is inconsistent with the rule of law, and the Supreme Court’s 1803 decision in Marbury v. Madison. Jefferson is cited by the author, and his words provide some insight, but Jefferson was not part of the Constitutional convention. One can cherry pick the debates and find support for just about everything. The Constitution specifies two specific remedies for unhappy states. It does not specify nullification. There are 3 well specifically established routes, that do not threaten the rule of law and constitutional supremacy and uniformity, that states can use if they want to question a federal law. File a lawsuit and hopefully get to the Supreme Court. One can hope that the Court would hear the case if it was in the ballpark. States can ask that the federal law be invalidated.Second, one can amend the Constitution. Two-thirds of the states can, under Art. V of the Constitution, can call for a convention to amend the Constitution. Finally, those unhappy with the law can use the federal legislative process to get it repealed. There are at least 3 cleary valid alternatives to nullification.Why are these folks jousting at windmills and wasting our time with this sophistry?
Nullification defeats the uniformity and consistency across the nation that was one of the main motivations for the new constitution. Let me provide an extreme example of the mischief that could occur. I don't think this will ever happen, but I am trying to make a point. A plaintiff gets an injunction against a state forbidding it from discriminating against interstate commerce within the state. The state argues that the statute authorizing courts to issue injunctions against state governments (42 U.S.C. sec. 1983) and its accompany jurisdictional statute are unconstituttional. If those statutes are unconstitutional, the courts have no jurisdiction to issue injunctions against the state and thus the injunctions are invalid.
Nullification is fun to argue about, but is constitutionally irrelevant and invalid. I am reminded of theologians arguing about how many angels can fit on the head of a pin.
Borough Insurer to pay $900,000 in Taser Death
Mt. Joy (Pa.) borough officials breathed a sigh of relief when their insurer settled a Taser death suit for $900,000 and agreed to pick up the entire tab. News releases usually do not specify how much the insurer and the insured will pay. I wonder if the borough's liability insurance will go up?
Monday, December 03, 2012
My Take on the Recent Pres. Election (FWIW)
After reflecting on the event for almost a month, here’s my 2 cents, FWIW, on the Presidential election. I am not going to mention all the obvious things, (e.g. demographics), just a few things that the “experts” generally missed.
1. Mass media partisanship was the worst ever. Most of the major mass media (e.g. NYT, NBC, CBS, ABC, Time magazine) showed major pro-Obama bias. Anything that seemed to be anti-Obama or pro-Romney was spun or ignored (e.g BATF’s Operation Fast and Furious). The worst offenders were Fox (pro-Romney) and MSNBC (suggestions that racism sparked much opposition to Obama). Al Sharpton (a chronic race-baiter) had (still has?) a show on MSNBC. Needless to say he did not support Romney.
2. Given that liberals generally dominate higher education most places, it is not surprising that Obama won the college student vote and given that these faculty frequently write and speak to the general public, that Obama won overall.
3. It seemed that anger motivate many pro-Obama voters. Even Obama suggested that people should vote for him to get “revenge.” People were rightly fed up with some of the excesses of capitalism, capitalists acting badly (e.g. Enron, huge salaries and bonuses for execs who ruined their companies, etc.) There was a perception that the “rich” and corporations don’t have too much power and don’t pay their “fair” share of taxes. (Is this an update version of populism?). The “politics of envy” may also have played a part. Class warfare became at least an implicit theme. One of the most effective political ads was one which blamed Romney and the corporations ( Bain Capital)with which he was affiliated for making the unemployment problem worse by laying off employees. This is, of course, what any businesses does when the economy tanks and the business starts taking losses. Nonetheless, the ad triggered the anger. Of course, the problems are much more complex than just capitalists acting badly, e.g. out-of-control government spending.
4. Rather than moving to the center of the political spectrum to get more votes, Romney seemed more interested in courting the Tea Party and other right-wing groups.
5. Obama’s attempt to buy votes (immigration reform by executive order, proposing federal supplements to teacher salaries) were blatant, but probably effective.
6. Most people saw Obamacare as a necessary and worthwhile reform. Few thought about how it would be paid for, its impact on medical care and the constitutional issues. (My own personal policy take is that it is a worthwhile reform, if we can pay for it without more massive deficits and it doesn’t hurt the quality of care.) I have doubts on the constitutional issues and the general impact of moving too far to the left).
7. Did too many hard-core libertarians and Tea Partiers sit out the election because their candidates didn’t get the Republican nomination?
8. Romney didn’t stress enough the European economic chaos that comes with the far left and the welfare/entitlement state. He didn’t stress enough that future generations are going to be very heavily taxed to pay for the welfare state’s care of the ballooning baby boomer elderly population (medical, social security, etc). One can argue that the young voters who voted for Obama may have shot themselves in the foot (inflicted a self-inflicted wound).
Next installment: What we might expect from Barack in the next few years.
1. Mass media partisanship was the worst ever. Most of the major mass media (e.g. NYT, NBC, CBS, ABC, Time magazine) showed major pro-Obama bias. Anything that seemed to be anti-Obama or pro-Romney was spun or ignored (e.g BATF’s Operation Fast and Furious). The worst offenders were Fox (pro-Romney) and MSNBC (suggestions that racism sparked much opposition to Obama). Al Sharpton (a chronic race-baiter) had (still has?) a show on MSNBC. Needless to say he did not support Romney.
2. Given that liberals generally dominate higher education most places, it is not surprising that Obama won the college student vote and given that these faculty frequently write and speak to the general public, that Obama won overall.
3. It seemed that anger motivate many pro-Obama voters. Even Obama suggested that people should vote for him to get “revenge.” People were rightly fed up with some of the excesses of capitalism, capitalists acting badly (e.g. Enron, huge salaries and bonuses for execs who ruined their companies, etc.) There was a perception that the “rich” and corporations don’t have too much power and don’t pay their “fair” share of taxes. (Is this an update version of populism?). The “politics of envy” may also have played a part. Class warfare became at least an implicit theme. One of the most effective political ads was one which blamed Romney and the corporations ( Bain Capital)with which he was affiliated for making the unemployment problem worse by laying off employees. This is, of course, what any businesses does when the economy tanks and the business starts taking losses. Nonetheless, the ad triggered the anger. Of course, the problems are much more complex than just capitalists acting badly, e.g. out-of-control government spending.
4. Rather than moving to the center of the political spectrum to get more votes, Romney seemed more interested in courting the Tea Party and other right-wing groups.
5. Obama’s attempt to buy votes (immigration reform by executive order, proposing federal supplements to teacher salaries) were blatant, but probably effective.
6. Most people saw Obamacare as a necessary and worthwhile reform. Few thought about how it would be paid for, its impact on medical care and the constitutional issues. (My own personal policy take is that it is a worthwhile reform, if we can pay for it without more massive deficits and it doesn’t hurt the quality of care.) I have doubts on the constitutional issues and the general impact of moving too far to the left).
7. Did too many hard-core libertarians and Tea Partiers sit out the election because their candidates didn’t get the Republican nomination?
8. Romney didn’t stress enough the European economic chaos that comes with the far left and the welfare/entitlement state. He didn’t stress enough that future generations are going to be very heavily taxed to pay for the welfare state’s care of the ballooning baby boomer elderly population (medical, social security, etc). One can argue that the young voters who voted for Obama may have shot themselves in the foot (inflicted a self-inflicted wound).
Next installment: What we might expect from Barack in the next few years.
New book on libertarianism
Thanks to Bennet Jones for the material below (via e-mail). See esp. the comment on the birth of modern libertarianism and for at least one difference between libertarians and conservatives.
"The Rothbardian Way
by Llewellyn H. Rockwell, Jr.
Here is the introduction to the new edition of For a New Liberty: The Libertarian Manifesto.
There are many varieties of libertarianism alive in the world today, but Rothbardianism remains the center of its intellectual gravity, its primary muse and conscience, its strategic and moral core, and the focal point of debate even when its name is not acknowledged. The reason is that Murray Rothbard was the creator of modern libertarianism, a political-ideological system that proposes a once-and-for-all escape from the trappings of left and right and their central plans for how state power should be used. Libertarianism is the radical alternative that says state power is unworkable and immoral.
"Mr. Libertarian," Murray N. Rothbard was called, and "The State's Greatest Living Enemy." He remains so. Yes, he had many predecessors from whom he drew: the whole of the classical-liberal tradition, the Austrian economists, the American antiwar tradition, and the natural-rights tradition. But it was he who put all these pieces together into a unified system that seems implausible at first but inevitable once it has been defined and defended by Rothbard. The individual pieces of the system are straightforward (self-ownership, strict property rights, free markets, anti-state in every conceivable respect) but the implications are earthshaking. Once you are exposed to the complete picture – and For a New Liberty has been the leading means of exposure for more than a quarter of a century – you cannot forget it. It becomes the indispensable lens through which we can see events in the real world with the greatest possible clarity.
This book more than any other explains why Rothbard seems to grow in stature every year (his influence has vastly risen since his death) and why Rothbardianism has so many enemies on the left, right, and center. Quite simply, the science of liberty that he brought into clear relief is as thrilling in the hope it creates for a free world as it is unforgiving of error. Its logical and moral consistency, together with its empirical explanatory muscle, represents a threat to any intellectual vision that sets out to use the state to refashion the world according to some pre-programmed plan. And to the same extent it impresses the reader with a hopeful vision of what might be.
Rothbard set out to write this book soon after he got a call from Tom Mandel, an editor at Macmillan who had seen an op-ed by Rothbard in the New York Times that appeared in the spring of 1971. It was the only commission Rothbard ever received from a commercial publishing house. Looking at the original manuscript, which is so consistent in its typeface and almost complete after its first draft, it does seem that it was a nearly effortless joy for him to write. It is seamless, unrelenting, and energetic.
The historical context illustrates a point often overlooked: modern libertarianism was born not in reaction to socialism or leftism – though it is certainly anti-leftist (as the term is commonly understood) and antisocialist. Rather, libertarianism in the American historical context came into being in response to the statism of conservatism and its selective celebration of a conservative-style central planning. American conservatives may not adore the welfare state or excessive business regulation but they appreciate power exercised in the name of nationalism, warfarism, "pro-family" policies, and invasion of personal liberty and privacy. In the post-LBJ period of American history, it has been Republican presidents more than Democratic ones who have been responsible for the largest expansions of executive and judicial power. It was to defend a pure liberty against the compromises and corruptions of conservatism – beginning with Nixon but continuing with Reagan and the Bush presidencies – that inspired the birth of Rothbardian political economy.
It is also striking how Rothbard chose to pull no punches in his argument. Other intellectuals on the receiving end of such an invitation might have tended to water down the argument to make it more palatable. Why, for example, make a case for statelessness or anarchism when a case for limited government might bring more people into the movement? Why condemn U.S. imperialism when doing so can only limit the book's appeal to anti-Soviet conservatives who might otherwise appreciate the free-market bent? Why go into such depth about privatizing courts and roads and water when doing so might risk alienating people? Why enter into the sticky area of regulation of consumption and of personal morality – and do it with such disorienting consistency – when it would have surely drawn a larger audience to leave it out? And why go into such detail about monetary affairs and central banking and the like when a watered-down case for free enterprise would have pleased so many Chamber-of-Commerce conservatives?
But trimming and compromising for the sake of the times or the audience was just not his way. He knew that he had a once-in-a-lifetime chance to present the full package of libertarianism in all its glory, and he was not about to pass it up. And thus do we read here: not just a case for cutting government but eliminating it altogether, not just an argument for assigning property rights but for deferring to the market even on questions of contract enforcement, and not just a case for cutting welfare but for banishing the entire welfare-warfare state.
Whereas other attempts to make a libertarian case, both before and after this book, might typically call for transitional or half measures, or be willing to concede as much as possible to statists, that is not what we get from Murray. Not for him such schemes as school vouchers or the privatization of government programs that should not exist at all. Instead, he presents and follows through with the full-blown and fully bracing vision of what liberty can be. This is why so many other similar attempts to write the Libertarian Manifesto have not stood the test of time, and yet this book remains in high demand.
Similarly, there have been many books on libertarianism in the intervening years that have covered philosophy alone, politics alone, economics alone, or history alone. Those that have put all these subjects together have usually been collections by various authors. Rothbard alone had mastery in all fields that permitted him to write an integrated manifesto – one that has never been displaced. And yet his approach is typically self-effacing: he constantly points to other writers and intellectuals of the past and his own generation. In addition, some introductions of this sort are written to give the reader an easier passage into a difficult book, but that is not the case here. He never talks down to his readers but always with clarity. Rothbard speaks for himself. I'll spare the reader an enumeration of my favorite parts, or speculations on what passages Rothbard might have clarified if he had a chance to put out a new edition.
The reader will discover on his or her own that every page exudes energy and passion, that the logic of his argument is impossibly compelling, and that the intellectual fire that inspired this work burns as bright now as it did all those years ago.
The book is still regarded as "dangerous" precisely because, once the exposure to Rothbardianism takes place, no other book on politics, economics, or sociology can be read the same way again. What was once a commercial phenomenon has truly become a classical statement that I predict will be read for generations to come."
"The Rothbardian Way
by Llewellyn H. Rockwell, Jr.
Here is the introduction to the new edition of For a New Liberty: The Libertarian Manifesto.
There are many varieties of libertarianism alive in the world today, but Rothbardianism remains the center of its intellectual gravity, its primary muse and conscience, its strategic and moral core, and the focal point of debate even when its name is not acknowledged. The reason is that Murray Rothbard was the creator of modern libertarianism, a political-ideological system that proposes a once-and-for-all escape from the trappings of left and right and their central plans for how state power should be used. Libertarianism is the radical alternative that says state power is unworkable and immoral.
"Mr. Libertarian," Murray N. Rothbard was called, and "The State's Greatest Living Enemy." He remains so. Yes, he had many predecessors from whom he drew: the whole of the classical-liberal tradition, the Austrian economists, the American antiwar tradition, and the natural-rights tradition. But it was he who put all these pieces together into a unified system that seems implausible at first but inevitable once it has been defined and defended by Rothbard. The individual pieces of the system are straightforward (self-ownership, strict property rights, free markets, anti-state in every conceivable respect) but the implications are earthshaking. Once you are exposed to the complete picture – and For a New Liberty has been the leading means of exposure for more than a quarter of a century – you cannot forget it. It becomes the indispensable lens through which we can see events in the real world with the greatest possible clarity.
This book more than any other explains why Rothbard seems to grow in stature every year (his influence has vastly risen since his death) and why Rothbardianism has so many enemies on the left, right, and center. Quite simply, the science of liberty that he brought into clear relief is as thrilling in the hope it creates for a free world as it is unforgiving of error. Its logical and moral consistency, together with its empirical explanatory muscle, represents a threat to any intellectual vision that sets out to use the state to refashion the world according to some pre-programmed plan. And to the same extent it impresses the reader with a hopeful vision of what might be.
Rothbard set out to write this book soon after he got a call from Tom Mandel, an editor at Macmillan who had seen an op-ed by Rothbard in the New York Times that appeared in the spring of 1971. It was the only commission Rothbard ever received from a commercial publishing house. Looking at the original manuscript, which is so consistent in its typeface and almost complete after its first draft, it does seem that it was a nearly effortless joy for him to write. It is seamless, unrelenting, and energetic.
The historical context illustrates a point often overlooked: modern libertarianism was born not in reaction to socialism or leftism – though it is certainly anti-leftist (as the term is commonly understood) and antisocialist. Rather, libertarianism in the American historical context came into being in response to the statism of conservatism and its selective celebration of a conservative-style central planning. American conservatives may not adore the welfare state or excessive business regulation but they appreciate power exercised in the name of nationalism, warfarism, "pro-family" policies, and invasion of personal liberty and privacy. In the post-LBJ period of American history, it has been Republican presidents more than Democratic ones who have been responsible for the largest expansions of executive and judicial power. It was to defend a pure liberty against the compromises and corruptions of conservatism – beginning with Nixon but continuing with Reagan and the Bush presidencies – that inspired the birth of Rothbardian political economy.
It is also striking how Rothbard chose to pull no punches in his argument. Other intellectuals on the receiving end of such an invitation might have tended to water down the argument to make it more palatable. Why, for example, make a case for statelessness or anarchism when a case for limited government might bring more people into the movement? Why condemn U.S. imperialism when doing so can only limit the book's appeal to anti-Soviet conservatives who might otherwise appreciate the free-market bent? Why go into such depth about privatizing courts and roads and water when doing so might risk alienating people? Why enter into the sticky area of regulation of consumption and of personal morality – and do it with such disorienting consistency – when it would have surely drawn a larger audience to leave it out? And why go into such detail about monetary affairs and central banking and the like when a watered-down case for free enterprise would have pleased so many Chamber-of-Commerce conservatives?
But trimming and compromising for the sake of the times or the audience was just not his way. He knew that he had a once-in-a-lifetime chance to present the full package of libertarianism in all its glory, and he was not about to pass it up. And thus do we read here: not just a case for cutting government but eliminating it altogether, not just an argument for assigning property rights but for deferring to the market even on questions of contract enforcement, and not just a case for cutting welfare but for banishing the entire welfare-warfare state.
Whereas other attempts to make a libertarian case, both before and after this book, might typically call for transitional or half measures, or be willing to concede as much as possible to statists, that is not what we get from Murray. Not for him such schemes as school vouchers or the privatization of government programs that should not exist at all. Instead, he presents and follows through with the full-blown and fully bracing vision of what liberty can be. This is why so many other similar attempts to write the Libertarian Manifesto have not stood the test of time, and yet this book remains in high demand.
Similarly, there have been many books on libertarianism in the intervening years that have covered philosophy alone, politics alone, economics alone, or history alone. Those that have put all these subjects together have usually been collections by various authors. Rothbard alone had mastery in all fields that permitted him to write an integrated manifesto – one that has never been displaced. And yet his approach is typically self-effacing: he constantly points to other writers and intellectuals of the past and his own generation. In addition, some introductions of this sort are written to give the reader an easier passage into a difficult book, but that is not the case here. He never talks down to his readers but always with clarity. Rothbard speaks for himself. I'll spare the reader an enumeration of my favorite parts, or speculations on what passages Rothbard might have clarified if he had a chance to put out a new edition.
The reader will discover on his or her own that every page exudes energy and passion, that the logic of his argument is impossibly compelling, and that the intellectual fire that inspired this work burns as bright now as it did all those years ago.
The book is still regarded as "dangerous" precisely because, once the exposure to Rothbardianism takes place, no other book on politics, economics, or sociology can be read the same way again. What was once a commercial phenomenon has truly become a classical statement that I predict will be read for generations to come."
Different school standards for different racial groups?
More harmful insanity from the folks in charge of public education. Where do they find these leaders? The author writes:
"So yes, it touches me in a raw spot, this news that two states — Florida and Virginia — have adopted new education standards under which they would set different goals for students, based on race, ethnicity and disability.
Like many other states, Florida and Virginia requested waivers from the No Child Left Behind Act’s unrealistic goal of having every child at grade level in reading and math by 2014. But these states used their waivers to create separate and unequal performance standards for their black, white, Hispanic, Asian and disabled children.
Last month, for example, Florida set a goal of having 86 percent of white kids at or above grade level in math by 2018. For black kids, the goal is 74 percent. Virginia is wrestling with similar standards."
What message does this send to black parents and students and non-black parents and students? The left's politically correct obsession with equality at any cost takes root. Does this mean these states are basically going to give up trying to improve education for black students? Do these rules violate equal protection? Can we expect society to become "color blind" when government fosters just the opposite? This should give some insight into how the left pretends to really care about black Americans in order to get their votes. Does it empower and encourage black students and parents?
"So yes, it touches me in a raw spot, this news that two states — Florida and Virginia — have adopted new education standards under which they would set different goals for students, based on race, ethnicity and disability.
Like many other states, Florida and Virginia requested waivers from the No Child Left Behind Act’s unrealistic goal of having every child at grade level in reading and math by 2014. But these states used their waivers to create separate and unequal performance standards for their black, white, Hispanic, Asian and disabled children.
Last month, for example, Florida set a goal of having 86 percent of white kids at or above grade level in math by 2018. For black kids, the goal is 74 percent. Virginia is wrestling with similar standards."
What message does this send to black parents and students and non-black parents and students? The left's politically correct obsession with equality at any cost takes root. Does this mean these states are basically going to give up trying to improve education for black students? Do these rules violate equal protection? Can we expect society to become "color blind" when government fosters just the opposite? This should give some insight into how the left pretends to really care about black Americans in order to get their votes. Does it empower and encourage black students and parents?
Small Texas town to get first female law enforcement officer
The small Texas border town of Presidio is about to get its first female officer. She recently graduated from the Sul Ross State University Law Enforcement Academy
College campuses not supporting pot use by students.
Voters in Colorado and Washington voted to legalize recreational use of marijuana. Most institutions of higher learning, however, do want it on their campuses. Young voters helped pass the laws, but may not get the benefit if they are college students. In general, however, state law trumps university regs.
Four female veterans and the ACLU have filed a lawsuit against the Department of Defense. They want equal training and promotion opportunities for women who, in reality, serve in combat roles.
New lawsuit focuses on women in combat
Four female veterans have filed suit against the Department of Defense demaning equal combat training and promotion opportunities for women in the U.S. military. These changes are probably long overdue given the women are, in fact, involved in combat roles but are not trained or promoted for it.
New President in Mexico
Mexico has a new President from a different party (PRI) than that of his predecessors (PAN).
As usual, this one has promised to combat corruption. Many expect that he will back off on the war against the cartels started by his predecessors in the interest of saving lives. The Mexican economy has been surprisingly good in spite of all the chaos. His politcies will obviously have significant impacts on the U.S. and drug enforcement in particular. Stay tuned.
As usual, this one has promised to combat corruption. Many expect that he will back off on the war against the cartels started by his predecessors in the interest of saving lives. The Mexican economy has been surprisingly good in spite of all the chaos. His politcies will obviously have significant impacts on the U.S. and drug enforcement in particular. Stay tuned.
Struggle over the power of judicial review in Egypt
The concept of judicial review (Courts can overrule the actions of the other branches of government when those actions are deemed inconsistent with the supreme law of the land--Constitution) is long- and well-established in the U.S. Arguably, that concept has helped make the U.S. the freest nation on the planet. Egypt is currently struggling with this concept. The outcome could be crucial in shaping the future of Egypt.
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