Should people who oppose war be obligated to pay for it via taxes?

Don Quixote and I were talking today about the Commerce Clause.  We weren’t saying anything original.  We were simply wondering whether the Supreme Court, in ruling on ObamaCare, will address the vast reach of the Commerce Clause and whether it will (a) reaffirm that reach; (b) reverse that reach entirely (which requires reversing the 1942 decision Wickard v. Filburn); or (c) chip away at Wickard because destroying it in one fell swoop would create a constitutional crisis.

Right now, the pro-ObamaCare people are actually correct when they argue that there’s no real difference between Wickard and ObamaCare.  In the former Congress forced a farmer to grow wheat, and the Supreme Court gave that coercion a judicial nod.  Under ObamaCare, Congress is forcing Americans to buy insurance, so why shouldn’t that get the nod too?.  We can parse the difference by saying that the real issue is whether the federal government benefits from the forced activity (which is essentially a tax) or whether third party companies profit (making the coercion a form of something else).

The real issue, though, isn’t where the money goes.  It is, instead, determining how far Congress can go in dictating American activity.  After all, to the extent our money supply is federal, every decision we make, including the pennies we toss into a Salvation Army pot, implicates federal monetary policies.

That talk led DQ and me to the intersection between taxes and religion.  The Constitution guarantees that the Federal government will not establish a religion and then force Americans to yield to that government church’s doctrines.  That right has been understood to mean that citizen’s religious beliefs are excluded from Congressional oversight.

The Constitution, however, also authorizes Congress to extract taxes from American citizens and nowhere does it say that citizens can withhold those funds based upon their religious beliefs.  To the extent that the Quakers were already a pacifist organization at the time the Constitution was first ratified, it cannot have escaped the Founders’ notice that, by specifically authorizing War powers in the Constitution, they were requiring pacifists to fund any war started under that constitutional power.

Beginning with the Vietnam War protests, peace activists of all religious and non-religious stripes have objected to having their tax dollars spent on War.  Two constitutional principles — the federal government’s authorization to wage war and the individual’s absolute right to freedom of worship — are in permanent opposition.

What do you think?  Does the natural right of the individual to freedom of worship trump the government’s power to tax and wage war?  Or is taxation and war such an inextricable aspect of government that civilization functions only when people cannot opt out?

My feeling is that, to the extent we have a republican democracy, those who don’t like war have the option of voting into power others who share their feelings.  If a sufficient majority of anti-war activists enter Congress, Congress can refuse to fund wars (as it did when a Democrat congress abandoned the South Vietnamese); or it can enact laws allowing people to deduct a certain percentage from their taxes, equal to the percentage cost of war in the federal budget; or, if the anti-war crowd has sufficient numbers, it can amend the Constitution to turn America into a pacifist nation or one that sees only pro-war people pay for war.

For me, this is an idle (albeit enjoyable) mental exercise, but in the larger scheme of things it’s not.  It is, instead, the real deal in determining whether, when it comes to core religious or moral beliefs, the government or the individual prevails.

In the context of the ObamaCare debate, it ties back into the mandate requiring religious institutions and organizations to pay for insurance that will provide birth control and abortifacients, even if those practices are antithetical to the payors’ core doctrinal beliefs.  I can understand how there could be a battle royale when it comes to asking pacifists to pay for war, since there are two conflicting constitutional rights involved.  I do not understand, though, how the government can force people to abandon an explicit constitutional right (freedom of worship) in favor of a right there is nowhere mentioned in the constitution — women’s alleged right to free birth control and abortions.

All of which leaves me very curious as to the ultimate outcome of the ObamaCare decisions.

As always, I love hearing your opinions, especially since so many of you are better informed or more analytical than I am.

King Obama’s executive fiat on illegal immigration — Open Thread

I assume that you all know by know that President Obama has issued an executive order granting amnesty to young illegal immigrants.  It’s a clever move.  Marco Rubio had already proposed something similar, so Obama can say that at least some smart Republicans are already on board with the idea.  The move will presumably cement Hispanic voters to his side, which could be a very big deal in Florida, where some Jewish voters are looking askance at Obama.  Any Republican objections will be touted as Republican racism.

There are some downsides, though.  Congress might get testy at having Obama’s challenge to its authority.  The question is whether Democrats in Congress will be sufficiently testy to challenge their President in an election year.  My guess is that they will not, so the only “nay” voices will come from Republicans — who will then be charged with covert racism that they’re hiding behind a thin procedural screen.  Never mind the Constitution, of course.  Only racists care about that document anyway.

There are two demographics, though, as to which Obama might have been too smart by half:  blacks and unions.  As to both, cheap Hispanic labor is a threat.  In a time of seemingly intractable unemployment, for Obama to pour new competition into the market, rather than to create new jobs, might be a mistake.  I’m sure, though, that the Obama-ites have already examined this problem and concluded that any potential black voter or union hemorrhage is more than offset by increases in Hispanic votes.

I said in the post caption that this is an Open Thread and I meant it.  What’s your take?

Barack Obama is not the only law teacher who doesn’t know law

There’s a lot of buzz lately about an article David R. Dow, who is the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor of History at Rice, about the Supreme Court’s ObamaCare hearings.  In it, he insists that, if the Supreme Court justices overturn ObamaCare because it’s unconstitutional, they must be impeached.  Interestingly, in his entire essay, Dow pretty much avoids the Constitution.  As best as I can tell, his entire defense for ObamaCare is that it’s good social justice policy.  His only bow to the Constitution is to say that the Constitution protects the community, as well as the individual.

Better constitutional minds than mine have taken apart Dow’s silly argument, so I won’t address it here.  I just want to raise a single point he makes, both because it’s wrong (duh!) and because it touches upon something that I haven’t seen mentioned elsewhere.  Dow, of course, argues that car insurance justifies ObamaCare:

First, Congress’s authority in passing the law rests on an elementary syllogism: You don’t have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do).

Prof. Dow, I hate to tell you this, but there are no federal car insurance mandates, so far as I know.  Those are state laws.  Anyone with even the most rudimentary constitutional knowledge knows that, while the Constitution was written to grant the federal government only the most minimal power over individuals, with the Bill of Rights working hard to maximize individual freedom, state governments have a lot more leeway to exercise affirmative control over individuals.  (Just in case you were wondering, Prof. Dow, that’s the 10th Amendment right there.)

More than that, and please correct me if I’m wrong, the Supreme Court has never examined whether the federal government has the authority to force all American citizens, whether or not they drive, to have car insurance.  Another legal principle that Law Professor Dow seems to have forgotten is a fundamental rule, not just of life, but of life:  The fact that something hasn’t yet been challenged doesn’t mean the absence of challenge proves that it’s correct.  If the Supreme Court had indeed considered federal laws forcing all Americans, whether or not they drive, to have car insurance, Dow’s point would be well taken.  To the extent, though, that no one yet seems to have challenged this non-existent law, so that the Supreme Court hasn’t opined on its constitutionality, for Dow to declare that mandatory federal car insurance is the necessary precedent to establish ObamaCare’s constitutionality is a bit presumptuous and a lot ignorant.

[Pardon typos in this one.  It falls in "the dictated but not read" category.  I have to run and will be gone for several hours.  Any comments, corrections, additions, etc., are welcome.]

A clever statement by a Leftist reveals that the Left views the Constitution as a content-free document has created an online poster that has been getting a fair amount of play on Facebook.  The page is entitled “The #1 Reminder Every GOP Lawmaker Needs To See.”  It then quotes “American Hero” Jamie Raskin, a law professor, before successfully running for Maryland’s State Senate himself, testified before the Maryland State Senate in 2006.  Back then, he had this to say:

Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution.  You didn’t place your hand on the Constitution and swear to uphold the Bible.

That sounds very clever, doesn’t it?  Nice parallelism, and a definite superficial truth:  American politicians don’t swear to uphold the Bible.  Of course, that cute little parallelism ignores a deeper truth, which is the fact that the Constitution includes this nifty little Amendment called the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The classic religions (as opposed to recently created New-Age spiritualism) all define marriage, and they all define it as a union between a man, on the one hand, and a woman, on the other hand.  Freely exercising ones religion means that, constitutionally speaking (and lawmakers are charged with upholding the Constitution), the government doesn’t get to redefine marriage to include other sexual variations.

In 2008, during the Prop. 8 debate (when California voters were asked to, and did, pass a Proposition defining marriage as being between a man and a woman), I spoke with a very smart, very liberal friend who couldn’t understand why the Catholic Church was taking a stand against Prop. 8.  I suggested to him that the Church was concerned that there would come a time when it would be sued for refusing to perform a gay marriage and that it might lose that suit if gay marriage is deemed a civil right.  He scoffed:  “The Church is opposed to abortion, but no one sues it for that.”  What he couldn’t grasp is that the Catholic Church doesn’t perform abortions, but it does perform marriages.

The HHS fight over funding contraceptives and abortifacients proves that the concern I raised in 2008 is precisely correctly.  Suddenly, through the purse, a Leftist government was trying to get the church to perform abortions.

When Leftist government passes laws that conflict with a religion’s doctrinal points, it has no problem ignoring the First Amendment and using the power of the state and the purse to force the religious organization and its practitioners to abandon their doctrinal concerns.  In other words, Leftist government is happy to enact and enforce policies that essentially prohibit the free exercise of a religion.

I’ve said it before and I’ll say it again:  the government should get out of the “marriage” business.  The government’s control of “marriage” is residue of a time when church and state were inextricably intertwined, rather than Constitutionally separate.  Let’s leave “marriage” to the religious organizations, and let them define it as they will.  The state, which has a huge interest in promoting stable unions that result in healthy, happy children, should then bend itself to the task of figuring out how best to promote those unions.  Promoting them, of course, boils down to money.  The state needs to figure out how to entice people (hint:  tax breaks) into joining together and having stable nuclear families.  Civil unions, folks.  In this day and age, it’s the only way to keep the state’s hands off the church.

Looping back to law professor and ignoramus (oh, and American Hero) Jamie Raskin, someone needs to give him a constitutional refresher course:  When the lawmakers place their hands on the Bible and swear to protect the Constitution, they are also swearing to protect people’s rights to practice their Biblically based, life-affirming beliefs without state interference.

Anatomy of a smear; or, no, conservatives are not trying to ban contraception in America

In 1965, the United States Supreme Court decided Griswold v. Connecticut, the first case to enunciate a “right to privacy” under the U.S.  Constitution.  Before Griswold, notion of a right to privacy had only existed as a common law doctrine, applicable to ones fellow citizens.  This was the first time, however, that the United States Supreme Court anchored this common law privacy right to the Constitution — despite the justices’ acknowledgment that the Constitution makes no mention of privacy as one of the inalienable citizen rights upon which a government cannot impinge.  Instead, the justices used strained and imaginary “penumbras” and “emanations” of existing rights (the Fourth Amendment, for example, which bars unreasonable searches and seizures) to justify their decision.  So, a lousy law (and banning contraception was an exceptionally lousy law) led to something even worse:  a fake constitutional right.

In any event, since 1965, contraceptives have been legal all over America.  You can get them with a prescription if they’re hormonally based, and you can pick them up at any pharmacy, grocery store, vending machine, high school, middle school, etc., if they’re barrier-style contraceptives.  United States taxpayers already subsidize those that get to people through Planned Parenthood and through our schools.

Such was the status quo until ObamaCare.  Now, though, the Progressives have added a hitherto unknown imaginary constitutional right:  women have the absolute right to free contraceptives.  Of course, since nothing is free, what this really means is that women have the absolute right to contraceptives paid for by others.  Regardless of how one feels about either privacy or contraception, anyone with even a smidgen of intellectual honesty has to concede that forcing third parties to pay for women’s access to a readily available, perfectly legal product is not something one can find in the Constitution itself, or even in the Constitution’s recently discovered penumbras and emanations.

Some Republicans in Congress, appalled by this government overreach, have proposed a bill that bars the government from using ObamaCare to justify forcing third parties to pay for women’s contraceptives.  It’s important to note here that they are not banning contraceptives.  Nor are they even reversing the current status quo (because the ObamaCare ukase has not yet gone into effect).  Rather, the Republicans are maintaining the status quo that has existed in the United States since 1965:  contraceptives are legal and women (and men) are free to buy them any time, any where.  Some are more expensive than others, but none are very expensive.  The alleged annual $600 cost for the average women wouldn’t be a big deal now if it wasn’t for the rising price of fuel, something that makes everything expensive.

The above are the facts.  Here’s the spin the Progressives are using to keep the White House in 2012 and to regain the House:  “GOP officials fight to restrict women’s access to contraceptives.”  (That verbatim quotation is taken from a longer post saying that the current GOP fight regarding contraception is akin to their failed fight to keep the state of Florida from forcing Terri Schiavo to starve to death.)

Let me repeat:  The Progressives are explicitly stating that the GOP is “fight[ing] to restrict women’s access to contraceptives.”

This is a bald-faced lie.  The GOP isn’t touching the status quo on abortion, a status quo that has been in place for almost 50 years.  Instead, the GOP is fighting to restrict the federal government from creating a non-existent “right” to birth control, a right that allows the federal government to force third parties, including religious organizations, to subsidize birth control, abortifacients, and sterilization.

Facts are stubborn things, and the facts favor conservatives.  Unfortunately, as Churchill knew, “A lie gets halfway around the world before the truth has a chance to get its pants on.”  We’ve got the facts on our side, but this is one lie that the Progressives are making sure has legs.

Whenever my “real me” Facebook friends put up a post about the GOP attack on contraception, I politely point out that, as I understand things, the GOP isn’t challenging women’s right to contraception.  It’s just challenging a federal mandate forcing religious institutions to subsidize a doctrinally offensive product.  Interestingly, whenever I drop that indisputable fact into one of hate-filled rants regarding the GOP and women’s rights, I stop the Facebook conversation dead.  There are no arguments and no ripostes.  Facts are stubborn things.

Obama administration to offer religious organizations a “choice” — a Hobson’s choice

Back at the end of the 16th century, Thomas Hobson ran a livery stable (which, in pre-auto times, was the equivalent of a car rental place).  Unlike other livery stables, he refused to allow his customers free pick of horses.  Instead, they were told that they could take the horse in the stall nearest the stable door . . . or they could take no horse at all.  And so a phrase was born:  A Hobson’s Choice is a situation in which the appearance of a choice is illusory, since the only alternative to the offered “choice” is nothing at all.

Centuries later, when Henry Ford started his assembly line, he is reputed to have given his customers the same choice Hobson did:  “Any customer can have a car painted any color that he wants so long as it is black.”

It’s clear that the Obama administration has been studying the Hobson and Ford playbook.  The headline in the New York Times copy of an Reuters report reads “White House Open to Compromise Over Contraception: Adviser.“  That sounds heartening, doesn’t it?  Except, as always, the devil is in the details:

Signaling possible room for compromise on the issue, David Axelrod said such religious institutions have a grace period to find a way to include health insurance coverage for contraception as part of the U.S. healthcare overhaul without going against Catholic Church doctrine.

“We certainly don’t want to abridge anyone’s religious freedom so we’re going to look for a way to move forward that both guarantees women that basic preventive care that they need and respects the prerogatives of religious institutions,” Axelrod, a senior adviser to President Barack Obama’s re-election team, said on MSNBC’s “Morning Joe.”

Think about that for a minute:  Under this so-called compromise, churches will still be required to pay for women’s contraceptives and abortifacients, but the Obama administration is kindly offering them the chance to figure out a way to subsidize these pills and treatments without offending their core doctrinal opposition to contraceptives and abortifacients.  Sounds like a choice to me — a Hobson’s choice.

The Obama administration is not naive.  It knows as well as we do that some things cannot be the subject of compromise.  Just as one cannot be “a little bit pregnant,” there is no way to fund a repugnant practice without being a participant in that practice.  These are binary issues.  And this alleged offer to compromise is no compromise at all.  One may as well ask the condemned man if he wants to be hanged from a gallows or a gibbet — he’s still dead at the end, and the Church is still being forced to bow down to government mandate on doctrinal issues.

Kathleen Sebelius’ defense of the new ObamaCare mandate is pathetic

Pathetic is a very strong derogatory word, but I think it’s apt when looking at Kathleen Sebelius’ defense for the Obama administration’s recent mandate that all employers must purchase insurance that provides their employees with birth control, sterilization and morning-after pills.  A fisking is in order (all hyperlinks in original omitted):

One of the key benefits of the 2010 health care law is that many preventive services are now free for most Americans with insurance. Vaccinations for children, cancer screenings for adults and wellness visits for seniors are all now covered in most plans with no expensive co-pays or deductibles. So is the full range of preventive health services recommended for women by the highly respected Institute of Medicine, including contraception.

[Don't you love that concept of "free"?  In fact, nothing's free.  It's simply that the plan shifts the cost from employee to employer -- so that the employer has less money for salaries, other benefits, new job creation, facility maintenance, etc.  But it's all good in Obama-land.  I also like the way that the only one of the "full range of preventive health services recommended for women" that Sebelius names is the fairly non-controversial "contraception."  To those who haven't been paying attention to the details, the message is clear:  all those conservatives are getting their knickers into a twist for nothing.]

Today, virtually all American women use contraception at some point in their lives. And we have a large body of medical evidence showing it has significant benefits for their health, as well as the health of their children. But birth control can also be quite expensive, costing an average of $600 a year, which puts it out of reach for many women whose health plans don’t cover it.

[Again, in a marvel of sleight of hand, Sebelius is pretending that this whole uproar is about nothing more than contraception.  As a matter of law, deceit includes misrepresentation through omission.  This is deceitful.  Also, note that careful language, to the effect that "birth control can also be quite expensive."  Aside from the fact that those are wiggle words, she's doing the same thing that Babs Boxer did, which is to try to cast this as an economic issue, when it is, in fact, a much deeper one:  the morality and Constitutionality of forcing religious institutions to subsidize a doctrinally offensive practice.]

The public health case for making sure insurance covers contraception is clear. But we also recognize that many religious organizations have deeply held beliefs opposing the use of birth control.

[Is that all she's got?  The fact that for some people birth control can cost $600 per year is her entire "public health case for making sure insurance covers contraception" is her justification for a vast cost-shifting program that requires practically every employer in America to subsidize insurance that covers women in the workforce between age 16 and menopause?  Remember, this "clear" case will cost employers a bundle, a cost that will inevitably be shared out to old people, infertile people, gay people, celibate people, etc.  How nice of Sebelius, secure in her own lack of logic, to recognize that her little economic scenario might offend core religious beliefs.  Fear not, though.  She's got an answer for those offended people.]

That’s why in the rule we put forward, we specifically carved out from the policy religious organizations that primarily employ people of their own faith. This exemption includes churches and other houses of worship, and could also include other church-affiliated organizations.

[We covered this often, so I won't go on at length.  The exemption is so narrow that it pretty much covers only the smallest of churches, the one staffed by two nuns and a priest, all three of whom do the janitorial and grounds maintenance work too.]

In choosing this exemption, we looked first at state laws already in place across the country. Of the 28 states that currently require contraception to be covered by insurance, eight have no religious exemption at all.

[This one really steamed me.  Someone in the Obama administration forgot to read the Constitution.  You see, states have broader rights vis a vis individuals than does the Federal government.  This makes sense because (a) the feds have more coercive power than the states and (b) it's easier to relocate from a state you don't like, than to be forced to emigrate from a country that's oppressing you.  If Alabama is too rough, go to California.  If the Obama government is coming after you, though, it's a lot harder to find a safe haven.]

The religious exemption in the administration’s rule is the same as the exemption in Oregon, New York and California.

[See comments above.]

It’s important to note that our rule has no effect on the longstanding conscience clause protections for providers, which allow a Catholic doctor, for example, to refuse to write a prescription for contraception. Nor does it affect an individual woman’s freedom to decide not to use birth control. And the president and this administration continue to support existing conscience protections.

[Again, sleight of hand.  What doctors can or cannot do is not the issue.  The issue is that faith-based organizations are being forced by the federal government to subsidize a product that offends core doctrinal beliefs.  If that isn't a violation of the First Amendment, I don't know what is.]

This is not an easy issue. But by carving out an exemption for religious organizations based on policies already in place, we are working to strike the right balance between respecting religious beliefs and increasing women’s access to critical preventive health services.

[To which I have a last word:  Feh!]

To its credit, USA Today, which hosted Sebelius’ advocacy piece, openly disagrees with her — and provides a link to its opposition right in the body of her dishonest little essay.

Hugh Hewitt hits an important nail on the head regarding the new ObamaCare mandate

I hadn’t looked closely at what Sebelius said when promulgating the new ObamaCare rules that require religious organizations to fund birth control, sterilization, and morning-after pills.  Hugh Hewitt, however, did look — and caught something interesting:

The press release that accompanied the new rule didn’t mention “Catholics” or “Catholic institutions,” but was as obviously aimed at Catholics and their institutions as the Blaine Amendment of long ago.

“This decision was made after very careful consideration, including the important concerns some have raised about religious liberty,” said Obama’s HHS secretary, Kathleen Sebelius, a pro-choice absolutist. “I believe this proposal strike the appropriate balance between respecting religious freedom and increasing access to important preventive services.”

To begin with: You cannot “balance” the right to free exercise of religion any more than you can “balance” the right of a newspaper to print stories that may injure national security.

You cannot “balance” the right to vote with the desire to save money in a time of extreme fiscal crisis.

You simply cannot indulge in social engineering when the Constitution of the United States declares the rights that you wish to engineer off-limits to the political forces of the day.

Ruth Bader Ginsburg’s disdain for the Constitution she swore to support and defend

On August 10, 1993, as one of the requirements for becoming a United States Supreme Court justice, Ruth Bader Ginsburg placed her hand on the Bible and spoke the following words:

I, Ruth Bader Ginsburg, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.

Apparently the aged Supreme Court justice needs a refresher course on her solemnly sworn oath.  How else to explain the fact that she went on Egyptian TV and spoke disparagingly of the United States Constitution as a passé document that is no longer good enough to protect human rights?

Ginsburg, who has been rendering stultifyingly unintelligible liberal opinions since 1993, clearly doesn’t understand that the best and only way to protect human rights is to rein in government.  Otherwise, the government giveth and the government taketh away.  With the stringent controls in the Bill of Rights, and the checks and balances in the remainder of the Constitution, there would be nothing to prevent the United States government from having gone Chicago long before Obama took the oath of office.  And even now, Obama is ever so slightly constrained by at least the appearance of Constitutional propriety, something that buys us time (assuming he’s out of office by January 2013).

Obama’s faux-recess appointments are illegal and will be sold to the public as virtuous, but we can still be of good cheer

You’re not imagining it.  I haven’t had a dang thing to say about Barack Obama’s brazen constitutional violation, which was also an indirect repudiation of the 2010 mid-term elections.  His decision unilaterally to declare the Senate on a “recess” and then to make “recess” appointments has been analyzed to death and I agree with everyone:  it violates the Constitution, it violates the Democrats’ own stance during the Bush administration, it violates the voters’ efforts to rein him in, and it’s a clever move that it makes any Republican objections look like pettifogging proceduralism in the face of a dynamic young president.

It’s that last, of course, that is making Congressional Republicans hesitate.  They know Obama has taken one giant step closer to anti-constitutional government (read:  dictatorship), but they’re trying to figure out which will be less damaging to them, the rock or the hard place.

My feeling is that, since each position is a problem, Republicans should stand on their principles and launch a full-bore attack against Obama’s gross violation of the separation of powers.  They should do ads, give speeches, anything they can to educate the public on the dangers of reposing too much power in one branch of government — and, most certainly, the dangers of allowing an executive, who technically controls the military, to seize that power with impunity.

If you’re going to drown anyway, make a splash when you go.  And maybe, just maybe, if you’re making the splash, someone might notice and take an interesting in saving you.

Sadly, I think we can predict with some certainly that Republicans will take this latest insult to American freedoms as they always do:  lying down, preferably with a “please, sir, may I have some more” sign taped to their collective foreheads.  The whole notion of fighting vigorously for the things that matter seems alien to the “go along to get along” Republicans.

To give the ‘Pubs some credit, when you’ve been beaten about the head by the major media for decades, you can get a little too cautious.  Even if you don’t respect your torturer, it doesn’t mean you don’t fear him.  And it takes a certain amount of courage for each individual Republican to run himself deliberately through the gauntlet:  racist, religious madman, Tea Bagging idiot, racist, stupid person, racist, etc.  It’s one thing to understand that the people hurling the insults are meaningless.  It’s another thing entirely for a politician to be sanguine about the fact that this name-calling will be directed relentlessly at his own constituents.  Doesn’t mean said politician should remain silent, but it does make it very hard to speak.

If it’s any consolation, Nazi Europe isn’t the only possible outcome when someone with political power seeks to violate constitutional limitations.  Back in the 1790s, the British were worried about the same thing:

This attractive print shows Prime Minister Pitt steering a small boat, The Constitution, which also carries Britannia, towards a castle with a flag inscribed “Haven of Public Happiness.” They are pursued by Sheridan, Fox, and Priestley.  And remember that it took another 150 years, which included the extraordinarily successful Victorian Era, before the socialists succeeded in derailing British constitutionalism.  We live in a faster-paced world, but there’s still time to right the ship of state, to steer our way through troubled waters without drowning, and to reach a safe, constitutional haven.

Reminder to self: be profound, as all pundits must be

That post caption is a complete lie.  I can issue as many reminders to myself as I like, but when the spirit doesn’t move me, you could look through my house with a magnifying glass and you still wouldn’t find any profundity.  Heck, today I’m not even sure if I could come up with any decent banality, although this post is a good try.

I’m only grateful that I’m not a paid columnist on deadline.  If I was, I’d suddenly find myself being a Tom Friedman or a David Brooks, mouthing less-than-sweet nothings to a paying audience.  Worse, that audience, having paid and having invested many years in proclaiming its wisdom in reading these “great thinkers,” finds itself in the role the courtiers played in “The Emperor’s New Clothes.”  Readers valiantly cheer these pundits’ ponderous prose, which is often quite poorly written, and that varies with pendulum-like rhythm between meaningless and dangerous.

And it’s not just me harshing on them (although I have been known to call Friedman an “idiot”).  Matt Welch, at Reason Magazine, isn’t so thrilled either when he looks at these pundits, complete with large pulpits and small thoughts.  His complaint is that the Friedmans and Brooks of the world (and they’re not the only pundits, of course, just the best known), have a “do something” attitude that demands an immediate government fix to any problem.

By doing this, the pundit crowd reveals so many things:  it’s practical ignorance; it’s need to “make a statement” because each pundit is, after all, paid to do precisely that; and, of course, a world view that’s wedded to proactive government.  The Founders would have been horrified by this last attitude.  In a truly splendid article from National Review, Yuval Levin explains that the Founders, distrustful of both mobs and government, created a system that was intended to make “doing something” extremely difficult:

As the framers saw it, both populist and technocratic politics were expressions of a modern hubris about the capacity of human beings — be it of the experts or of the people as a whole — to make just the right governing decisions. The Constitution is built upon a profound skepticism about the ability of any political arrangement to overcome the limitations of human reason and human nature, and so establishes a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus. Experts should not govern, nor should the people do so directly, but rather the people’s representatives should govern in a system filled with mediating institutions and opposing interests — a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously and, as Alexander Hamilton puts it in Federalist 73, “to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.”

All things considered, perhaps it’s a good thing that I’m not up to being profound today.  My sluggish thoughts are right in line with the Founders’ goals.

Elizabeth Warren — mob boss *UPDATED*

I woke up this morning to find that my Leftist friends literally plastered Facebook with the above poster.  (Since I grew up and still live in the Bay Area, I have lots of Leftist friends.)  If the text on the image is unclear, this is what it says:

There is nobody in this country who got rich on his own.  Nobody.  You built a factory out there — good for you.

But I want to be clear.  You moved your goods to market on the roads the rest of us paid for.  You hired workers the rest of us paid to educate.  You were safe in your factory because of police forces and fire forces that the rest of us paid for.  You didn’t have to worry that marauding bands would come and seize everything at your factory.  [Bookworm note:  Warren must have made this statement before the Gibson Guitar factory raid, when marauding bands of government agents did precisely that to a factory that forgot to pay off the Democrats.]

Now look.  You built a factory and it turned into something terrific or a great idea — God bless!  Keep a big hunk of it.  But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.

There are so many things wrong with Warren’s statement that I really don’t know where to begin.  Tonestaple sent me an email that certainly gets the tone right (which led to my post’s title):

They [meaning the middle class Leftists who applaud the above statement] seem to think it is the ne plus ultra of common sense.  I think it sounds like a gangster saying, “Nice factory you’ve got here – be a shame if anything happened to it.”

As my interlineation about Gibson Guitar shows, Tonestaple perfectly nailed the reality behind Warren’s cutesy, nursery school-esque, “God blessy” statement that everybody should share with everybody else.”  The reality is that, in Obama world, if you don’t make nice with the government, the government is not going to make nice with you.  (The cutesy tone, incidentally, is classic Warren. She was one of my law school profs, and I found her invariably sweet in word, unintelligible in substance, and vaguely vicious in action.)

Tone aside, there are two major problems with Warren’s factory parable.  The first is the assumption that the factory owner contributed nothing to roads, education, police and fire forces, etc.  In Warren’s world, the factory owner is a pure parasite.  Warren conveniently forgets that the factory owner pays taxes (hugely more taxes than all those people whom she posits paying for roads, education, etc.); that the factory owner provides work for and pays the salary of those employees who then pay taxes; and that a successful factory owner makes a product that provides a benefit to people.

The second problem with Warren’s statement is actually a much more profound one than her “forgetting” that it’s the employers who provide the goods, services and salaries that make all those useful taxes possible.  Warren’s statement turns the Declaration of Independence, the Constitution, and everything else the Founders stood for upside down.

In Warren’s world, a socialist world, the government owns everything.  (And don’t you love it when well paid Harvard professors advocate socialism?)  The Founders would have been horrified by Warren’s pronouncement.  As their writings demonstrate, they believed that natural rights, the rights that ought to govern any righteous nation, mandate that ownership is vested in the individual.  The government is merely a servant of the people.  We, the people, pay its salary (taxes) so that it can provide services for us.  That’s all.

You don’t have to go very far to understand that the Founders wouldn’t have agreed with Warren that the government allows people to own things, provided that they then make nice with the government.  Our seminal document, the Declaration of Independence, spells out the master-servant relationship, and it is the people who are masters and the government the servant, not vice versa:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

These were the principles on which our nation was founded, and they provided the guiding paradigm for our Constitution.  When my children ask me what the Constitution is, I have a very simple answer:  It’s a contract under which the federal government promises to provide certain limited services for the American people and, further, promises not to abuse the power that the people hand the government to enable it to carry out those services.  Elizabeth Warren clearly has no use for our nation’s contract.

UPDATEJoshuaPundit comments too on Warren’s dangerous economic ignorance and class warfare.

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Single issue voters and bad presidents

I presented my daughter with the following scenario:

Imagine that the president you elected has been in the White House for one term.  During that time, everything that indicates the health of the country is worse than when your man came into office.  Whether one looks at the economy, national security, relations with other countries, law and order, or a national sense of well-being, everything is worse.  But this president is a reliable supporter for a single issue that you hold near and dear, whether that issue is abortion, gun rights, medical care, or something else.  Do vote for him again?

My daughter’s response was quick.  “No.”  When I asked her why not, she got a little muddled, but it boiled down to this:  it would be selfish to keep a bad president in office simply to preserve a single issue.

With this answer in mind, I then went about confusing her:  Two of the biggest issues that grab voters are (1) gun rights, which is in the Constitution, and (2) abortion, which is a penumbra of a non-enunciated “privacy” right under the Constitution.  Would the issue’s constitutional standing change whether your favorite single issue would be enough for you to keep an otherwise bad president in office?  That is, if a bad president was the only thing that stood between you and losing your Second Amendment right to carry guns, or if that bad president was the only thing that stood between you and your penumbra right to an abortion, would that change your feelings?

“That’s not a fair question, Mom.  A made-up Constitutional right is really stupid.”

As it is, my sense is that you can risk booting “your” guy out of office if the Constitution is at your back, because there are, in theory, other forces that existing to protect an explicit Constitutional right.  The president isn’t the last bulwark.  However, you’re on shakier ground if the “right” your president protects is an adjunct constitutional right that has a more gossamer foundation than the Constitution itself.

What do you think?

The only way to shred the Constitution is to fake it

Time Magazine, which is scarcely a relevant publication anymore (at least not the way it was when I was growing up), garnered itself some publicity by questioning whether the Constitution still matters.  Proving that there are good lawyers out there, Aaron Worthing explains the thirteen egregious errors Time made in order to denigrate the Constitution’s importance.

Through fakery, the Times article tries to explain that the Constitution either supports the huge federal government we have today, as well as illegal immigration, affirmative action, and the whole panoply of Leftist causes, or that it should stand in the way of those same causes.  This sleight of hand allows it to ignore the fact that the document as written is antithetical to Leftist/statist government.

The only way to change this stubborn fact is to do the one thing Leftists avoid at all costs:  formal constitutional amendment.  And why do they avoid it?  That’s easy.  They do so because they know that, whether through Congressional amendment or popular vote, the Americans will baulk at the way in which the Leftists want to take a document focused tightly on individual liberty, and turn it into a document that tightens government control.

Worthing’s article is excellent.  I’ll also toot my own horn by pointing you to a post I wrote about how the modern Civil Rights movement has been used as a springboard to fold, spindle and mutilate the Constitution almost beyond recognition.

Does it violate the 13th Amendment for the Democrats to cut off pay for active duty military? *UPDATED*

Here’s J.E. Dyer about the administration’s threat to cut off pay to active duty military:

The possibility that the military will be required to continue on duty without pay also highlights one of the important differences between the military and the rest of the federal government.  The government can’t require its civilian work force to operate without pay. Its only options, with the civilian work force, are furloughing employees and shutting down services.  The civilian work force is protected by union agreements and labor laws in this regard.  The troops are not. (Emphasis mine.)

I agree that the military is different.  Ordinary labor laws could not possibly apply to them.  (“Excuse me, I have to leave the battle now.  It’s time for my union-mandated coffee break.”)  I understand too that even some Constitutional rights don’t apply to them, such as Free Speech, which can be limited because of national security.

However, can our troops really be used as slave labor, forced to work for free?  Even prisoners get wages.  Here’s the text of the 13th Amendment:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Unlike the military (or, at least the military as threatened by Obama), I’m working for pay now, and don’t have the time to do research into the ways in which the Courts have interpreted the above language.  As I said, I know there are prisoner labor cases, and perhaps there are even cases that apply directly to the military.

Do any of you know specifics about the 13th Amendment and the military?  Do any of you have an opinion about this?

UPDATE:  My friend AJStrata is up in arms about the threat to the military, which he thinks would be a spectacularly stupid move on the Administration’s part.

“It’s always something — if it ain’t one thing, it’s another.”

If you’re old enough to have lived through the 1970s, you recognize my post title:  Gilda Radner’s famous character Roseanne Roseannadanna would let loose with a foolish tirade, and then wrap it up by saying “It’s always something — if it ain’t one thing, it’s another.”  Someone needs to resurrect that character, or at least that catch-phrase, to appreciate fully what’s going on right now with the Koran burning.

Everyone I know thinks that that Pastor Terry Jones is an insensitive, ill-mannered, publicity-seeking lout for having burned the Koran.  That he did so is un-American, not because it is illegal, but because it runs counter to deep American values that find repugnant the thought of book-burning, especially burning religious books, and that embrace a pluralism that shows respect for different religions.  Ordinary Americans, not crude attention seekers such as Jones, understand that America is blessed with a huge population of peace-loving, law-abiding Muslims, and that it’s a rude, mean-spirited slap in the face to treat their holy book so badly.  Can I make it any plainer that I am disgusted with what Jones did?

Sadly, however, significant numbers of Americans, all (almost all?) liberal (including Lindsay Graham, who is RINO through and through) think that what Jones did requires government intervention, in the form of federal laws banning Koran burning, or religious book burning, or all book burning, or Islam insulting, or whatever the liberal thinks will work to placate the Muslims so that they don’t riot and murder innocent UN workers.  (And while, God knows, I hold no brief for the UN, to invade a UN compound and murder workers in cold blood is the slaughter of the innocents.)

Those who are willing to pass such laws fail to understand two things.  First, one of the things that makes America uniquely American is the reverence we hold for free speech, even ugly free speech.  While we draw the line at two types of free speech — pedophilia and direct incitement to violence, a la “go out and lynch the person right now” — we otherwise believe that free speech can only benefit us.  Ugly, mean speech should be countered by smart speech, compelling speech, apologetic speech (if necessary), persuasive speech, etc.

If we allow the government to ban ugly speech, we suddenly find ourselves in a situation that sees the government determining what’s ugly.  I can tell you with certainty that, during the first two years of the Obama administration, he and Congress, working together, would happily have banned all anti-Obama speech on the ground that it was racist hate speech.  It’s a slippery slope and a censoring government will always slide you down to the midden at the bottom of the hill as quickly as possible.

Second, the other thing that the pro-censorship crowd utterly fails to understand is that banning Koran burning or book burning or smack talk about Islam is only the beginning.  Those who haven’t been paying attention don’t appreciate that this is the religion of perpetual outrage.  “It’s always something — if it ain’t one thing, it’s another.”

If we ban Koran burning, the agitators amongst the Muslims will riot about pigs on tissue boxes, something that excited much outrage in England a few years ago.  If we ban pigs on tissue boxes, they’ll start killing over abstract ice cream logos that, if held at a certain angle and viewed with one eye half closed, could possibly be understood to be Arabic script for Allah, something that also happened in England.  If we ban ice cream labels, they’ll agitate wildly over people entering Muslim-driven cabs with alcohol bottles or seeing eye dogs, as Muslims did in St. Paul, Minnesota.  If we ban alcohol and dogs in cabs, the jihadists and their useful idiots will storm embassies because of cartoons, which is what happened all over the world over some Danish cartoons (pictures that were skillfully augmented by exceptionally vicious anti-Mohamed cartoons that an Imam drew when he didn’t get the proper reaction to the original cartoons).  And of course, if we ban cartoons people have already drawn, the Islamists will hunt down people who merely suggest drawing cartoons, as happened to poor Molly Norris, who had to go into permanent hiding for her suggestion.

If you pay a blackmailer, he won’t go away.  He’ll come back for more.  “It’s always something — if it ain’t one thing, it’s another.”  Those who wish to drain the American bank account by chipping away at Constitutional freedoms will discover themselves bankrupt, burqaed and muzzled.  The radical Islamists will not be grateful for our sacrifice, they will be delighted by our obeisance, and they will push and demand more and more and more.  Further, because they know we haven’t got the stomach for the fight, each demand will be accompanied by bloodshed, along the lines of the Mafioso who slices off an ear or a finger, or blows away a knee cap, to make his point.

To those who say “But they’ll kill our troops,” I have one more thing to say:  What the hell do you think the Islamists have already been doing to our troops for the past eight years?  Everything the troops have been fighting and dying for goes away if we unilaterally surrender our Constitution and bow to our new sharia overlords.

“It’s always something — if it ain’t one thing, it’s another.”

UPDATEThis post perfectly illustrates the one-way street nature of sharia and its adherents.

Nicholas D. Kristof appears unclear on the Constitutional concept

“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

If it wasn’t for the fact that he’s a committed gun control guy, I might have mistaken Nicholas Kristof’s NYTs column today for a perfectly realized, Iowahawk-esque gun control parody.  He opens, of course, with the “How did Jared Loughner get a gun” question.  He does not answer that question by pointing to the fact that local law enforcement, led by that colorful liberal Sheriff Dubnik, had let Loughner run wild for years.  That would have been a good answer.  Instead, he goes directly for the gun kill (pardon my metaphoric language):

To protect the public, we regulate cars and toys, medicines and mutual funds. So, simply as a public health matter, shouldn’t we take steps to reduce the toll from our domestic arms industry?

To prove his bona fides to ask this insanely (and inanely) silly question, Kristof waffles on for a couple of paragraphs about his youth with a gun in his hand.  He also acknowledges that guns are less of a risk than swimming pools (and, one might add, bathtubs and cars), but that doesn’t stop him.  Having cleared the decks, he takes the momentous leap to compares America’s gun situation to Yemen’s:

(The only country I’ve seen that is more armed than America is Yemen. Near the town of Sadah, I dropped by a gun market where I was offered grenade launchers, machine guns, antitank mines, and even an anti-aircraft weapon. Yep, an N.R.A. dream! No pesky regulators. Just terrorism and a minor civil war.)

How to solve this crisis:  Treat guns like toys.  Kristof doesn’t mean, of course, that every kid should find one in his Christmas stocking.  He means that the government should regulate guns like crazy:

• Limit gun purchases to one per month per person, to reduce gun trafficking. And just as the government has cracked down on retailers who sell cigarettes to minors, get tough on gun dealers who sell to traffickers.

• Push for more gun safes, and make serial numbers harder to erase.

• Improve background checks and follow Canada in requiring a 28-day waiting period to buy a handgun. And ban oversize magazines, such as the 33-bullet magazine allegedly used in Tucson. If the shooter had had to reload after firing 10 bullets, he might have been tackled earlier. And invest in new technologies such as “smart guns,” which can be fired only when near a separate wristband or after a fingerprint scan.

Not content with roping Canada into the discussion, Kristof also cites to Australia’s gun control efforts to make his case.

In Kristof’s column, however, one word is conspicuously absent:  Constitution.  Perhaps Kristof figures that, if he just ignores it, no one will notice that he doesn’t deal with an explicit Constitutional limitation on government power.  He’s probably right, too, insofar as his column is read almost entirely by people who share his sentiments about guns.  Heck, 20 years ago, I would have agreed with him.  If asked, at that time I would have said that the Second Amendment is so narrowly written that it requires people to train with a militia as a prerequisite for them to have guns.  If they’re not going to train (a la the Swiss model), the government gets to take their guns away.  It didn’t occur to me that a militia is a citizen military regardless of training or, more importantly, that the whole point of the Second Amendment is to protect the people from their government, not to allow the government to decide which of its citizens gets guns or to take those guns back at will.

As far as I know, there is nothing in the Bill of Rights that mentions toys.  Or maybe I just missed the Second and a Half Amendment, the one saying that “A well-adjusted, exhausted, entertained child population being necessary to the happiness and security of a free State, the right of America’s children to play with any damn toy they so desire shall not be infringed.”  Nah.  I don’t think I missed it.  It doesn’t exist.  That’s why citizens are fairly sanguine about federal safety rules when it comes to toys — toys aren’t an explicitly protected product under the Constitution, one that cannot be the subject of government meddling and restrictions.

The Founding Fathers, however, did see fit to exempt guns from government control — not just federal control, but any government control.  One could make a very good argument that even the gun laws we currently have (registration, waiting periods, etc.) violate the Constitution.

It’s true that the Founding Fathers did not envision the gun world we have today, one that makes guns easy to manufacture or that produces an astonishing variety of guns, some of them with more lethal efficiency than others.  Their inability to predict the future, though, does not give Progressives the right simply to ignore them.  The Constitution is the contract between government and people.  This marvelous contract has within it mechanisms for amending it if it no longer serves the people.

Simply ignoring the Constitution is not one of the contractual options.  If Kristof is interested in having guns regulated in precisely the same way toys are, perhaps he should spearhead a Constitutional amendment that repeals the Second Amendment.  Should he do so, I don’t wish him success, and I don’t see him having much luck, but that’s still what he should do.  To write an entire column comparing a Constitutionally protected instrument to a toy is just fatuous and stupid.

UPDATE:  Thanks, pst314, for bringing my attention to my horrible Kristol/Kristof mixups.  I’ve corrected them all, but I’m really embarrassed.  Sometimes my brain and my fingers live lives independent of each other, but that’s no excuse for making such a heinous error.

Reading the Constitution in Congress

My daughter’s 8th grade history class is studying the Constitution.  With the Republican House’s plan to inaugurate its majority by reading the Constitution aloud, I had a little talk with her about the Constitution.

Me:  Can you tell me what the Constitution is?

Daughter:  It’s a document that tells the government what to do.

Me:  That’s a good start in thinking about it.  Basically, it’s a contract between the government and the people that sets out the powers and limitations of the federal government.

Daughter:  That sounds like a good idea.

Me:  It is.  So tell me, what are you supposed to do if you don’t like a part of this contract?

Daughter:  I don’t understand.

Me:  If you don’t like part of the contract should you just ignore it?

Daughter:  No.  That’s wrong.

Me:  Should you pretend it means something different than it says?

Daughter:  You can’t do that!  (I refrained from saying here “you wanna bet?”)

Me:  Did you know that there’s a mechanism within the Constitution itself for making changes?

Daughter:  No.

Me: It’s called the Amendment process.

Daughter:  Oh, right!  I knew that.

Me:  Can you give me an example of an amendment?

Daughter:  The Bill of Rights?

Me:  That’s a very good example.  The Bill of Rights is the first ten amendments to the Constitution.  How about an example of a part of the original constitution that was wrong and that got changed?

Daughter:  Slavery?

Me:  Yup.  The government used the Constitution’s own rules to change a part that wasn’t right.  Now, with all this in mind, I have a question for you.  Today marks the start of a new Congress.  The Senate is still going to have a majority of Democrats, but the House is going to have a large majority of Republicans.  Indeed, the last election saw the biggest turnover since 1938.  That means that, not only did the majority party switch as a result of the election, but it switched by huge numbers as the voters rejected the governing majority party.  The first thing the new Republican House is planning on doing is having someone read the entire Constitution.  Do you think that sounds like a silly political stunt, or a waste of time, or a good idea?

Daughter:  That sounds like a really good idea, since the Constitution tells them what they can and can’t do.

Me: I agree.  And how about this — The new Republican House has promised that every bill it writes (and a bill is what becomes a law if it gets the vote) will have at the top a statement about which Constitutional power the House believes authorizes it to pass that law.  Do you think that’s a good idea?

Daughter:  That’s a wonderful idea!

The liberal media may be outraged that the current House is going back to the seminal contract that defines its powers, duties and limitations, but at least one future voter likes the idea that her government is trying to follow the rules.

The New York Times has a temper tantrum

Today, the GOP takes over the House.  The New York Times is not pleased and wrote what is quite possibly the most ungracious editorial ever.  How can you top this for snark:

Those who had hoped to see a glimpse of the much-advertised Republican plan to revive the economy and put Americans back to work will have to wait at least until party leaders finish their Beltway insider ritual of self-glorification. Then, they may find time for governing.

I won’t quote any more.  Suffice to say that it all falls in the same vein.

The alleged pompous behavior, of course, is to read aloud the Constitution — you know, the seminal American document that simultaneous grants and limits power to the federal government.  As young Ezra Klein revealed, nothing irks Progressives more than people who actually think the Constitution means something.  To the extent they think it’s a cross between a relic and toilet paper, aggrandizing it by parading it around Congress is an insult.

The sad thing is that most NYT’s readers will nod their heads sagely and agree with the editorial.  Some, I hope, will be disgusted and seek other reading material.

Young Ezra Klein *UPDATED*

I’m late to the party on this one, but I still wanted you all to read, if you haven’t already, Don Surber’s post about Ezra Klein, a Progressive who shocked the world (at least the Leftist world), by honestly stating that he believes the Constitution simply isn’t a relevant document.

It’s so old, you see.  Kind of like the old Bible, and old Shakespeare, and all those other old White Men books of time-tested wisdom.

UPDATE:  Whatever Iowahawk is drinking, I want the same.  The man is just a bottomless well of satiric brilliance.  No surprise then, that his Ezra Klein takedown is a masterpiece.  (Hat tip:  Soccer Dad)

Republicans = slavery lovers (or so saith an article in the NYT)

Every summer for the past several years, we’ve gone to a local (and wonderful) Civil War reenactment.  Without exception, the people who have chosen to reenact the Southern side will tell one, quite earnestly, that the Southern side was about states’ rights, not about slavery.  Even 145 years after the war ended (or perhaps I should say, especially 145 years after the war ended) there is no other line to take to justify dressing up in the gray, even for the fun of playing with fake guns and cannon on a large field on a hot, sunny day.

In Saturday’s New York Times, there is an opinion piece saying that this modern-day point of view is a mythological revision, and that the Southern secession and the subsequent war arose solely from slavery, and had nothing to do with states’ rights.  In other words, says the author, Edward Ball, all those who seek to dress the South’s side in the Civil War as a 10th Amendment issue are lying, to themselves and to everyone else.  To prove this, Ball quotes from the secession documents themselves:

But a look through the declaration of causes written by South Carolina and four of the 10 states that followed it out of the Union — which, taken together, paint a kind of self-portrait of the Confederacy — reveals a different story. From Georgia to Texas, each state said the reason it was getting out was that the awful Northern states were threatening to do away with slavery.

South Carolina: “The non-slaveholding states … have denounced as sinful the institution of slavery” and “have encouraged and assisted thousands of our slaves to leave their homes.”

Mississippi: “Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world. … There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union.”

Georgia: “A brief history of the rise, progress, and policy of anti-slavery and the political organization into whose hands the administration of the Federal Government has been committed will fully justify the pronounced verdict of the people of Georgia.”

Several states single out a special culprit, Abraham Lincoln, “an obscure and illiterate man” whose “opinions and purposes are hostile to slavery.” Lincoln’s election to the White House meant, for South Carolina, that “the public mind must rest in the belief that slavery is in the course of ultimate extinction.”

Up to a point, I don’t quibble at all with Ball — the South wanted to keep its slaves.  Its entire economic structure was built on slavery, and it did not want to experiment with a true capitalist system based on freely exchanged labor.  Feudalism is addictive for those in the power seat.

The fact, though, that the Southerners had morally nefarious ends doesn’t mean that they were wrong about their means.  Constitutionally, under the 10th Amendment, the federal government probably didn’t have the right, unilaterally, to do away with slavery.  The only way to do that would have been through an Amendment — and that’s precisely what the federal government ultimately did.  It ended slavery, not by fighting the South, but by enacted the 13th Amendment and then, through brute force, dragging a protesting Confederacy back into the Union, only subject now to the 13th Amendment.  The 13th Amendment, in other words, was a tacit admission that the slaveholders’ procedural argument was the correct one.

What this means is that, if reenactors want to hide behind states’ rights to justify their gray uniforms in the 21st Century — that is, if they want to say that they believe in the 10th Amendment — they are free to do so.  That is partly honest.  Total honesty, however, would require them to acknowledge that way too many in the Confederacy used states’ rights — that is, they used a legitimate constitutional measure — to justify a heinous institution.  The two are separate — slavery and states’ rights — despite being combined to a malevolent end in the mid-19th Century.

This last distinction is a significant one because Ball, having made a good historical point (that slavery was a driving force behind secession, with states’ rights as the procedural vehicle), then uses it to launch a cheap and false low blow at Republicans.  Because modern-day conservatives believe in the 10ths Amendment’s literal meaning (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”), Ball implies that they must also somehow be allied with slavery:

It’s peculiar, because “states’ rights” has become a popular refrain in Republican circles lately. Last year Gov. Rick Perry of Texas wondered aloud whether secession was his state’s right in the aftermath of laws out of Congress that he disliked.

As I said, this is a cheap shot.  That the Confederacy used the 10th Amendment (which occupies a significant position as the last amendment in the Bill of Rights) to justify an evil institution does not invalidate the Amendment itself.  To hold otherwise degrades both the Constitution itself and political debate with the United States.

Cross-posted at Right Wing News

Resist the urge to savage Christine O’Donnell regarding her understanding of the 1st Amendment *UPDATED*

Two of my absolute favorite political writers, Peter Wehner and Jennifer Rubin, have chastised O’Donnell for her recently reported constitutional error.  I think that, perhaps, they’re being unfair.  It’s clear from reading the news reports that the Constitutional portion of the debate was intended to be a pile-up on O’Donnell:

Also during the debate, O’Donnell stumbled when asked whether or not she would repeal the 14th, 16th, or 17th Amendments if elected.

“The 17th Amendment I would not repeal,” she said, before asking the questioner to define the 14th and 16th amendments, adding: “I’m sorry, I didn’t bring my Constitution with me.”

The 16th Amendment allows Congress to raise taxes without apportioning them among the states or tying the taxation to Census results. The 14th Amendment grants citizenship to everyone born in the United States. The 17th Amendment established direct election by popular vote of two U.S. Senators to each state.

I’m a lawyer and, beyond the 1st ten Amendments, plus the 13th and 14th, I too would have trouble nailing any given Amendment’s substance just by numerical reference.  Knowing the Constitution and “speaking the code” are two different things.

As for O’Donnell’s alleged ignorance about the 1st Amendment, I wouldn’t be too hasty.  I haven’t heard the audio from the debate, so I don’t know how exactly it played out.  I’m inherently suspicious of the media’s spin on it, though, simply because I know that they want to paint her as an uneducated hick, unsuited to higher office.  The context was that Coons was pushing the Leftist view, which is that the 1st Amendment essentially outlaws religion in any aspect of public life, leaving it to exist only within the four walls of the Church (or synagogue or temple) or the home.

Coon’s view, although the media heartily approves, is manifestly wrong.  The First Amendment’s carefully phrased language was intended to keep the federal government from establishing a state church, akin to the Church of England that had so recently controlled the colonies.  For those who didn’t worship at its altar, the Church of England still required taxpayer funding and it seriously restricted access to politics, employment and education.  The Founders wanted to ensure that American citizens wouldn’t never be forced to worship in a centralized government faith — or, worse, be penalized for refusing to so worship.  This is a far cry from outlawing faith entirely, which is where Coons is going.

Further, that same carefully phrased language was intended to ensure that local governments could, if they so desired, establish a faith:  “Congress shall make no law respecting an establishment of religion….”  (Emphasis mine.)  That emphasized phrasing makes it plain that other governing bodies can make laws respecting establishment of religion.  And indeed, at the time the Founders enacted the Bill of Rights, several of the States did have official churches.

If you doubt this, contrast the 1st Amendment’s language with that in the 2nd Amendment.  There, the Founders made plain that no governing entity, whether federal, state or civic, could pass any law limiting arms:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The 2nd Amendment is one example of passive voice being a good thing.

O’Donnell clearly understands the way in which the 1st Amendment was intended to work — and it’s entirely possible that, in the context of the debate, she was still laboring over these substantive  ideas when Coons, conversationally, threw out his constitutional quotation.  That would explain O’Donnell’s confusion.  Context is everything and, until I hear what happened there, I reserve the right to question the MSM’s reporting.

Even if the MSM is correct, though, that O’Donnell didn’t remember the precise phrasing in the 1st Amendment, the situation between the two candidates, Coons and O’Donnell, is still unequal.  When it comes to the 1st Amendment, Coons knows what it says, but doesn’t get what it means; O’Donnell gets what it means, but doesn’t know what it says.  And given a choice between the two, I’d always take the one who understands the Constitution, rather than the one who parrots it mindlessly and twists it to Marxist ends.

UPDATENeo-neocon caught the same fallacies in both Coons’ and the MSMs’ approach to the First Amendment.  And I should have known Rush would get there first.

UPDATE IIO’Donnell expounds upon her accurate understanding of the 1st Amendment.